United States v. Montgomery County Board of Education Appendix Vol. 2
Public Court Documents
April 28, 1967 - March 3, 1969
Cite this item
-
Brief Collection, LDF Court Filings. United States v. Montgomery County Board of Education Appendix Vol. 2, 1967. 968218a0-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4ca9b1ad-a39a-4230-9159-67af8b243d80/united-states-v-montgomery-county-board-of-education-appendix-vol-2. Accessed May 20, 2025.
Copied!
APPENDIX
VOLUME II
Supreme Court of the United States
O ctober T erm , 1968
Nos. 798, 997
U nited S tates,
y s .
Petitioner,
M ontgomery Co u n ty B oard of E ducation , et ad.
and
A rdam Carr, J r., et ad.,
vs.
Petitioners,
M ontgomery Co u n ty B oard of E ducation , e t ad.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEADS FOR THE FIFTH CIRCUIT
PETITIONS FOR CERTIORARI FILED DECEMBER 4, 1968,
AND JANUARY 30, 1969
CERTIORARI GRANTED MARCH 3, 1969
I N D E X
VO LU M E II
Original Print
Order Requiring Defendants to Show Cause filed
April 28, 1967 _____________________________________ 309 367
Opinion in Lee v. Macon County Board of
Education Annexed to Order to Show Cause 311 369
Order to Adopt Plan for Desegregation filed June
1, 1967 ______________________________________________ 364 444
Desegregation Plan Annexed to Order ______ 365 446
Appendix A — Explanatory L e tte r____________ 373 458
Appendix B — Choice Form ____________________ 375 460
Amicus Curiae Notice of Motion and Motion for
Further Relief filed August 17, 1967 __________ 376 462
Plaintiffs’ Joining in Motion filed August 30, 1967 379 464
Answer to Motion filed September 1, 1967 _______ 380 465
Exhibit “A ” Annexed ____ 383 468
Notice of Taking Discovery Deposition filed Janu
ary 30, 1968 _________ 384 471
Further Answer to Motion filed February 1, 1968 386 472
Amicus Curiae Notice of Motion and Motion for
Further Relief filed February 7, 1968 __________ 389 475
Plaintiffs’ Motion for Further Relief filed Feb
ruary 9, 1968 ______________________________________ 394 479
Stipulation filed February 17, 1968 _________ 395 480
Attachment A — Substitute Teacher List _____ 396 481
Memorandum Opinion filed February 24, 1968 __ 404 489
Supplement to Desegregation Plan __________ 413 503
Attachment A — Letter to Students __________ 417 509
W rit of Injunction dated February 24, 1968 _____ 418 511
Notice of Appeal filed February 27, 1968 _______ 419 512
Bond for Costs on Appeal filed February 28, 1968 420 513
Motion for Suspension and Stay of Injunction and
Order During Pendency of Appeal filed Febru
ary 28, 1968 _______________________________________ 421 514
Affidavit in Support of Motion for Stay Pending
Appeal ______________________________________________ 423 515
Exhibit 1 Annexed to Affidavit— Notice of
Appeal _________________________________________ 426 518
Exhibit 2 Annexed to Affidavit— Bond for
Costs on Appeal -------------------------------------------- 427 519
H INDEX
Original Print
Order Amending Order and Injunction of Febru
ary 24, 1908 filed March 2, 1968 _______________ 428 520
Order filed March 2, 1968 _________________________ 430 524
Motion for Leave to Amend Notice of Appeal filed
March 6, 1968 _____________________________________ 437 534
Order Allowing Amendment of Notice of Appeal
filed March 6, 1968 _______________________________ 438 535
Amended Notice of Appeal filed March 6, 1968 .. 439 536
Defendants’ Statement of Points filed March 6 ,1968 440 537
Comments at Conclusion of Hearing of May 5, 1965 442 540
Memorandum Transcript— Hearing of May 25,1967 448 547
Transcript of Hearing— September 5, 1967 _______ 452 549
Appearances _____________________________________ 452 549
C olloquy__________________________________________ 452 549
Testimony of Walter M c K e e -
direct ________________________ 456 552
cross ____________________ 472 565
redirect _____________________ 479 571
recross _______________________ 482 574
Transcript of Hearing— February 9, 1968 _______ 497 584
Appearances _____________________________________ 497 584
C olloquy___________________________________ - _____ 498 585
Testimony of Walter McKee—
direct ________________________ 501 588
cross _________________________ 545 624
William S. Garrett—
direct ________________________ 574 648
cross _________________________ 593 663
redirect _____________________ 600 669
recross _______________________ 601 671
Jack Rutland—
direct ________________________ 602 672
cross _________________________ 624 690
redirect _____________________ 635 699
recross _______________________ 638 702
W alter James Hughes, Jr.—
direct ________________________ 640 703
cross -------------------------------------- 644 706
Original Print
Transcript of Hearing— February 9, 1968
— Continued
Testimony of Charles Lee—
d ir e c t ________________________ 646 708
c r o s s _________________________ 653 713
r e d ir e c t_____________________ 654 714
Walter McKee—
(recalled for defendants)—
direct ________________________ 656 716
cross ______________________ 659 719
redirect _____________________ 661 720
Jim McGregor—
d ir e c t ------------------------------------ 663 722
c r o s s _________________________ 665 723
Herman L. Scott—
direct ___ ____________________ 673 726
c r o s s _________________________ 684 735
redirect _____________________ 690 740
recross _______________________ 690 740
Order Granting Expedited Hearing filed March 12,
1968 ________________________________________________ 698 745
Notice of Cross Appeal by Amicus Curiae filed
April 11, 1968 _____________________________________ 700 747
Argument and Submission ___________________________ 703 749
Opinion and Judgment in the United States Court
of Appeals for the Fifth Circuit dated August 1,
1968 ________________________________________________ 704 750
Judgm ent-------------------------------------------------------------- 724 770
Dissenting Opinion of Thornberry, C.J., dated Oc
tober 21, 1968 ______________________________________ 793 771
Opinion on Petitions for Rehearing En Banc dated
November 1, 1968 ___________________________________ 797 775
Order Granting Certiorari -------------------------------------- ----- 785
INDEX 111
367
- 3 0 9 -
Order Requiring Defendants to Show Cause
(Filed April 28, 1967)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
The plaintiffs having filed on April 11, 1967, their
motion asking this Court to modify its decree heretofore
entered in this case so it will conform with the require
ments of United States and Linda Stout, et al. v. Jefferson
County Board of Education, et al., Fifth Circuit No. 23345,
Dec. 29, 1966 (adopted with modifications by the Court,
sitting en banc, March 29, 1967), and seeking an order of
this Court directing the defendants to show cause why
they should not be required to adopt desegregation plans
conforming with the standards embodied in United States
and Linda Stout, et al. v. Jefferson County Board of Educa
tion, et al., it is the
Order, J udgment and D ecree of this Court that the de
fendants, Montgomery County Board of Education, James
W. Rutland, Jr., Fred Bear, George C. Starke, George A.
Dozier, Dr. J. Edward Walker, Isabelle B. Thomasson and
Dr. Robert Parker, members of the Montgomery County
Board of Education, and Walter McKee, Superintendent
of Education of Montgomery County, Alabama, appear
before this Court at 9 a.m., May 25, 1967, in the courtroom
of the United States District Court for this district, to
show cause, if any they have, why they should not be
368
ordered to adopt desegregation plans for the Montgomery
County, Alabama school system that comply with the stand
ards embodied in United States and Linda Stout, et al. v.
—310—
Jefferson County Board of Education, et al., and in Ex
hibit “A ” to this Court’s decree of March 22, 1967 (the
Court being composed of three judges, one of whom was
the undersigned), made and entered in Anthony T. Lee,
et al., Plaintiffs, United States of America, Plaintiff-In-
tervenor and Amicus Curiae, v. Macon County Board of
Education, et al., Defendants, Civil Action No. 604-E, and
why they should not be ordered to put such plans into
effect in the Montgomery County, Alabama school system,
commencing with the 1967-68 school year. It is further
Ordered that the United States as amicus curiae, acting
through its attorneys of record, appear on said date and
participate in said proceedings to the extent considered
necessary and appropriate. It is further
Ordered that the Clerk of this Court attach hereto copies
of the opinion and decree made and entered on March 22,
1967, in Lee, et al., United States of America v. Macon
County Board of Education, et al., Civil Action No. 604-E.
Done, this the 28th day of April, 1967.
F r an k M. J oh nson , J r.
Chief Judge
369
- 3 1 1 -
OPINION ANNEXED TO ORDER TO SHOW CAUSE
I n th e
UNITED STATES DISTRICT COURT
F or the Middle District of A labama
E astern Division
Civil A ction No. 604-E
A nthony T. Lee and H enry A. L ee, by Detroit Lee and
Hattie M. Lee, their parents and next friends; Palmer
Sullins, Jr., A lan D. Sullins and Marsha Marie Sul-
lins, by Palmer Sullins and Della D. Sullins, their par
ents and next friends; Gerald W arren Billes and
H eloise Elaine Billes, by I. V. Billes, their father and
next friend; W illie M. Jackson, Jr., by Mabel H. Jack-
son, his mother and next friend; W illie B. W yatt, Jr.,
and Brenda J. W yatt, by Willie B. Wyatt and Thelma
A. Wyatt, their parents and next friends; Nelson N.
Boggan, Jr., by Nelson Boggan, Sr., and Mamie Boggan,
his parents and next friends; W illie C. Johnson, Jr.,
Brenda F aye Johnson and Dwight W. Johnson, by
Willie C. Johnson and Ruth Johnson, their parents and
next friends, and W illiam H. M oore and E dwina M.
Moore, by L. James Moore and Edna M. Moore, their
parents and next friends,
Plaintiffs,
370
U nited States of A merica,
Plaintiff-Intervenor
and Amicus Curiae,
vs.
Macon County Board of Education, Madison Davis, Chair
man; John M. Davis, B. 0 . Dukes, F. E. Guthrie, and
F rances (Mrs. J. B.) B ush, and C. A. Pruitt, Super
intendent of Schools of Macon County, Alabama; L ur-
leen Burns W allace, in her capacity as Governor of
the State of Alabama, and as President of Alabama
State Board of Education; A labama State Board of
E ducation; E rnest Stone, Secretary and Executive
Officer of Alabama State Board of Education; James
D. Nettles, Ed Dannelly, Mrs. Carl Strang, F red L.
Merrell, W. M. Beck, V ictor P. Poole, W. C. Davis,
Cecil W ord and H arold C. Martin, as members of
Alabama State Board of Education,
Defendants.
Before Bives, Circuit Judge, and Grooms and Johnson,
District Judges.
Per Curiam :
In these supplementary proceedings, this Court is once
— 312—
again called upon to consider whether the defendants1
Lurleen Burns Wallace as Governor of the State of Ala- 1
1 Pursuant to Rule 2 5 (d ), Federal Rules of Civil Procedure,
this Court on January 23, 1967, ordered that Lurleen Burns
Wallace in her capacity as Governer of the State of Alabama
and as President of the Alabama State Board of Education, Ernest
Stone, Secretary and Executive Officer of the Alabama State Board
of Education; Ed Dannelly and Mrs. Carl Strang as members of the
Alabama State Board of Education, be substituted as defendants
for the named defendants George C. Wallace, Austin R. Meadows,
J. T. Albritton and J. P. Faulk, Jr., respectively.
371
bama and as President of the Alabama State Board of
Education, Ernest Stone as Secretary and Executive Of
ficer of the Alabama State Board of Education (some
times referred to as the State Superintendent of Educa
tion), and the individual members of the Alabama State
Board of Education, have continued, and are continuing,
to use their authority to operate throughout the State of
Alabama a dual school system based on race.
This Court is also once again called upon to pass upon
the constitutional validity of a tuition grant law (Title 52,
§61(8), Code of Alabama) passed by the Legislature of
the State of Alabama and approved by the Governor on
September 1, 1965.
I. Procedural History
This action was commenced over four years ago by
Negro parents of school-age children, against the Macon
County Board of Education, seeking to desegregate the
public schools in Macon County, Alabama. In July 1963
the United States was added as a party and as amicus
curiae in order that the public interest in the administra
tion of justice would be represented. After a full hearing,
this Court in August 1963 made its findings and conclu
sions and ordered the public schools in Macon County,
Alabama, desegregated. Anthony T. Lee, et al., Plaintiff,
United States of America, Plaintiff and Amicus Curiae v.
Macon County Board of Education, MD Ala., August 22,
1963, 221 F. Supp. 297. Thereafter, on three separate oc
casions during the 1963-64 school year, this Court found it
necessary to enjoin state officials from various forms of
interference with the peaceful and orderly desegregation of
schools in Macon County.2
2 United States v. Wallace, 222 F . Supp. 485 (September 1963) ;
Lee v. Macon County Board of Education, order of February 3,
1964; United States v. Rea, 231 F. Supp. 772 (February 1964).
372
In February 1964 plaintiffs filed a supplemental com
plaint, adding as defendants George C. Wallace as Presi
dent of the Alabama State Board of Education, Austin R.
Meadows, Executive Officer and Secretary of the Alabama
State Board of Education, and other individual members
of the State Board of Education. In this supplemental
complaint the plaintiffs requested this Court (1) to enjoin
these defendants from operating a dual school system
based upon race throughout the State of Alabama, (2) to
- 3 1 3 -
enter an order requiring state-wide desegregation of schools
in the State of Alabama, (3) to enjoin the use of state
funds to perpetuate the dual school system, and (4) to
enjoin as unconstitutional the tuition grant law of the
State of Alabama (Chapter 4B [§§ 61(13) through 61(21)],
Title 52, Code of Alabama). At this stage of the proceed
ing, the Chief Judge of the United States Court of Appeals
for the Fifth Circuit, in response to a request of the
district judge, constituted a three-judge court pursuant to
§§ 2281 and 2284, Title 28, United States Code.
After an oral hearing, a review of the evidence and
arguments of counsel, this Court in July 19643 made its
findings and conclusions to the effect that there was a
dual school system based upon race that was maintained
and operated throughout the State of Alabama and that
it was the policy of the state and, in particular, the Gov
ernor, George C. Wallace, as President of the Alabama
State Board of Education; Austin R. Meadows, Secretary
and Executive Officer of the Alabama State Board of Edu
cation, and the individual members of the Alabama State
3 Anthony T. Lee, et al., Plaintiffs, United States of America,
Plaintiff and Amicus Curiae v. Macon County Board of Education,
MD Ala., July 13, 1964, 231 P. Supp. 743.
373
Board of Education, to promote and encourage the im
plementation of that racial policy in the operation of the
Alabama public schools. It was also concluded that Ala
bama’s tuition grant law was nothing more than a sham
established for the purpose of financing with state funds a
white school system in the State of Alabama. Accordingly,
the defendant state officials were enjoined from:
Interfering with, preventing or obstructing by any
means, the elimination of racial discrimination by local
school officials in any school district in the State of
Alabama;
Approving, authorizing or paying any tuition grant
or grant-in-aid under the provisions of Chapter 4B
[Sections 61(13) through 61(21)] of Title 52 of the
Alabama Code for the attendance of any person in a
school in which enrollment or attendance is limited
or restricted upon the basis of race or color;
Failing, in the exercise of its control and supervision
over the public schools of the State, to use such con
trol and supervision in such a manner as to promote
and encourage the elimination of racial discrimination
in the public schools, rather than to prevent and dis
courage the elimination of such discrimination.
In August 1966 the United States of America was per
mitted to file a supplemental complaint in intervention
wherein the United States as a party attacked the con-
— 314—
stitutionality of Alabama’s new tuition grant statute4
4 The 1965-66 tuition grant laws were not in the form of amend
ments to the old tuition grant statute; instead, they were desig
nated as § 6 1 (8 ), Title 52, Code of Alabama.
374
passed after this Court enjoined, in its order of July 1964,
the paying of any tuition grant or grant-in-aid under the
provisions of Chapter 4B, Title 52 of the Alabama Code.
The complaint in intervention by the United States attacked
the new statute on the basis that it was for no purpose
other than to perpetuate racial segregation in the public
schools of Alabama. This aspect of the case was submitted
on stipulation and is discussed later in this opinion.
In September 1966 and in November 1966, the plaintiffs
filed additional supplemental complaints again asking for
a state-wide desegregation order and an injunction against
the use of state funds to support a dual school system. Fol
lowing extensive discovery by all parties, the case was
heard in November 1966 and is now submitted upon the evi
dence and the parties’ oral arguments and briefs.
II. Factual History
In the July 1964 order, this Court found that the defen
dant George C. Wallace, President of the Alabama State
Board of Education, the State Board of Education, the
several individual members thereof, and the Secretary and
Executive Officer of the Alabama Board of Education,
Austin R. Meadows, had demonstrated that they had enor
mous authority and power over the actual operation of the
various local school systems throughout the state. This
conclusion was based on the actual assumption or usurpa
tion of authority by these defendants over the local school
boards exemplified by their total control, when they chose
to exert it, over the Macon County school system, and also
by the general statutory power granted to these various
officials to supervise and control the public schools in the
State of Alabama. Examples of the Governor’s actions and
control, as found previously by this Court, are:
As stated above, acting pursuant to this Court’s
order, the defendant Macon County Board of Educa
tion assigned 13 Negro pupils to the Tuskegee Public
High School. These pupils were assigned in grades
eight through twelve and were scheduled to begin
school on September 2, 1963. Early on the morniiig
of September 2, an Alabama State trooper visited the
home of Macon County Superintendent Pruitt and
presented him with an order of Governor George C.
Wallace, who is also under the law of Alabama the
ex officio President of the Alabama State Board of
Education. This Executive Order stated, in part, as
follows:
—315—
W hereas, there now exist in the State of Alabama
conditions calculated to result in a disruption of
the peace and tranquility of this State and to occa
sion peril to the lives and property of the citizens
thereof, this situation resulting from the threat of
forced and unwarranted integration of the public
schools of this State; and,
* # #
Now, T herefore, I, George C. Wallace, as Governor
of the State of Alabama, and in conformity with
the Constitutional and statutory power vested in me
as Governor of said State, do hereby order and
direct the Macon County Board of Education, Macon
County, Alabama, to delay the opening of Tuskegee
High School for a period of one week, until, to-wit:
Monday, September 9, 1963, with the sole and ex
press purpose of allowing the Governor of the State
of Alabama to preserve the peace, maintain domestic
376
tranquility and to protect the lives and property of
all citizens of the State of Alabama.
Done this the 2nd day of
September, A. D., 1963.
/ s / George C. Wallace
George C. W allace, as
Governor of the
State of A labama
Acting upon this direction of Governor Wallace, the
State troopers surrounded the Tuskegee High School,
and neither the pupils nor teachers were permitted to
enter the school. Tuskegee High School remained
closed for one week. On September 9, 1963, Governor
Wallace issued another Executive Order, which stated,
in part:
Now, T herefore, I, George C. Wallace, as Governor
of the State of Alabama, and in conformity with the
Constitutional and statutory power vested in me as
Governor of said State, do hereby order and direct
that no student shall be permitted to integrate the
public schools of the City of Tuskegee, Alabama.
Governor Wallace announced publicly that the State
Legislature had provided for grants-in-aid to private
schools and assured the organizers of the Macon Acad
emy that the Macon County Board of Education would
cooperate in making grants-in-aid available through
the use of its statutory authority to provide such aid
to students in lieu of operating a particular public
school.
377
Examples of the actions and control of the State Board of
Education and its executive officers, as previously found
by this Court, are:
In January, 1964, the Alabama State Board of Edu
cation passed the following resolution:
Be It R esolved That the State Board of Education
hereby orders that Tuskegee High School be closed,
all grades above the seventh grade, and that the
teachers be transferred to other schools in the
—316—
Macon County School System and the children trans
ferred to other schools in the Tuskegee area, in ac
cordance with the State Board of Education policy
of closing schools where the teacher load is not suffi
cient to justify paying teachers, and in accordance
with Title 52, Code of Alabama, 1940, as amended;
and
Be It F urther R esolved That the Alabama State
Board of Education hereby orders the Macon County
Board of Education to provide school bus transpor
tation for the children attending the Shorter and
Notasulga schools in Macon County.
On the same date, this resolution was wired by the
State Superintendent of Education to the Macon
County Superintendent of Education. In the same ses
sion, the State Board directed the Governor to take
whatever steps were necessary to execute its directive
to close the Tuskegee Public High School above grade
seven. In compliance with the directive of the State
Board, the County Board of Education closed the
378
Tuskegee High School effective February 3, 1964, and
directed that all students then attending Tuskegee High
School (12 Negro and no white students) be trans
ferred to other schools in the “ Tuskegee area.” The
County Board of Education further directed that the
teachers of the Tuskegee High School be assigned to
such other schools in the county as might be designated.
The effect of the State Board’s resolution facilitated
the transportation of white children to the “ all white”
Shorter and Notasulga schools and by limiting the
Negro pupils to “ other schools in the Tuskegee area,”
required them to return to the “ all Negro” Tuskegee
Institute High School in Tuskegee, Alabama. When
on February 3, 1964, the Negro pupils were barred
from the Tuskegee High School, this Court, upon
proper motion, issued a temporary restraining order,
the effect of which did not require the reopening of the
Tuskegee High School for the 12 Negro pupils, but
ordered these Negro pupils admitted to Shorter and
Notasulga on the same basis as the white pupils who
were transferred from the Tuskegee High School Avhen
the Negro pupils first attended in September, 1963.
In February, 1964, the State Board of Education
adopted other resolutions directing the Macon County
Board to provide financial assistance under the grant-
in-aid law:
B e It B esolved That the Macon County Board of
Education is directed to forthwith, February 4, 1964,
provide financial assistance to parents or guardians
of students under the grant-in-aid law of the State of
Alabama as set forth in Title 52, of the 1940 Code of
Alabama, as amended.
379
Be I t R esolved That the State Board of Education
deplores the order of Judge Johnson and pledges
every resource at our command to defend the people
of our State against every order of the Federal
courts in attempting to integrate the public schools
of this State and will use every legal means at our
command to defeat said integration orders and
pledges our full support to the local boards of edu
cation in supporting the public school system as now
— 317—
constituted with the law, and will give every as
sistance possible to support every effort to maintain
our way of life and high educational standards for
all citizens of our State.
Based upon such findings as reflected by the evidence, this
Court found that “ the State of Alabama has an official
policy favoring racial segregation in public education,”
and that, strictly in accordance with this official policy,
“ the State of Alabama has operated and presently operates
a dual school system based upon race.” In the July 1964
order, the Court further found and concluded that “ the
purpose of said State officials, as evidenced by their actions
already recited, was clearly to prevent or impede any de
segregation through their unlawful interference with the
city and county school boards’ attempting to comply with
the law.” It was only “ through the exercise of considerable
judicial restraint” that this Court refrained in July 1964
from requiring these defendant state officials to exercise
their control and authority over the various local school
boards throughout the state for the purpose of desegregat
ing the school systems on a state-wide basis and to enjoin
said defendants from using state funds for the purpose of
380
perpetuating a dual school system based upon race. The
exercise of restraint in that instance was prompted by the
desire on the part of each member of this Court to afford
these defendants every opportunity to comply in good faith
with their affirmative constitutional duty to desegregate
the state’s public schools. See Cooper v. Aaron, 358 U. S.
1 (1958). Board of Public Instruction of Duval County,
Fla. v. Braxton, 326 F. 2d 616, 5th Cir. 1964, cert, denied
377 U. S. 924. We were, however, careful to admonish:
Needless to say, it is only a question of time until
such illegal and unconstitutional support of segregated
school systems must cease. These State officials and
the local school officials are now put on notice that
within a reasonable time this Court will expect and re
quire such support to cease. These school officials
should now proceed to formulate and place into effect
plans designed to make the distribution of public funds
to the various schools throughout the State of Alabama
only to those schools and school systems that have pro
ceeded with “ deliberate speed” in the desegregation of
their schools and school systems as required by Brown
v. Board of Education, supra.
III. The Merits
Over two and one-half years have now elapsed since that
order was entered. During this period the focus on the
rights of American citizens, regardless of their race or
color—and in particular on the right of Negro children to
attend public schools without discrimination on account of
their race or color—has increasingly sharpened. The Con
gress of the United States in Public Law 88-352 (Civil
381
- 3 1 8 -
Rights Act of 1964) has declared it to be a national policy
that students shall have the right to attend public schools
without regard to their race, color, religion or national
origin; that the term “public school” means any ele
mentary or secondary educational institution, or any
institution of higher education or any technical or voca
tional school above the secondary school level operated by
a state, subdivision of a state, or governmental agency
within a state, or operated through the use of governmental
funds.5 The Attorney General was given authority to in
stitute suits against school systems for the purpose of fur
thering “ the orderly achievement of desegregation in pub
lic education . . . 6 With the knowledge that the public
school systems throughout the United States were receiv
ing federal financial assistance in large quantities, the
Congress declared, “ No person in the United States shall,
on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be sub
jected to discrimination under any program or activity
receiving Federal financial assistance.” 7 Negroes them
selves have begun filing individual lawsuits in greater vol
ume than ever before, for the purpose of desegregating
public school facilities. These various efforts, insofar as
the Alabama school system is concerned, have met the re
lentless opposition of these defendant state officials. Not
only have these defendants, through their control and in
fluence over the local school boards, flouted every effort
to make the Fourteenth Amendment a meaningful reality
5 Title IV , §§ 401-406.
6 Title IV , §§ 407-410.
7 Title V I, § 601.
382
to Negro school children in Alabama; they have apparently
dedicated themselves and, certainly from the evidence in
this case, have committed the powers and resources of their
offices to the continuation of a dual public school system
such as that condemned by Brown v. Board of Education,
347 U. S. 4S3 (1954). As a result of such efforts on the
part of those charged with the duty and responsibility
under the law as announced in 1954 by the Supreme Court
in Brown, by the Congress of the United States in the Civil
Rights Act of 1964, and, more specifically, by this Court in
its July 1964 order, today only a very small percentage of
students in Alabama are enrolled in desegregated school
systems.8 Based upon this fact and a continuation of such
—3 1 9 -
conduct on the part of these state officials as hereafter out
lined, it is now evident that the reasons for this Court’s
reluctance to grant the relief to which these plaintiffs were
clearly entitled over two years ago are no longer valid.
It is considered appropriate to restate the general scope
of the control and authority of these defendant officials
over the public schools in Alabama. As noted earlier, the
defendant officials have extensive powers over this public
school system. Section 262 of the Alabama Constitution
provides that “ The supervision of the public schools shall
be vested in a superintendent of education, whose powers,
duties . . . shall be fixed by law.” The State Board of Edu
cation has similar duties: “ [the Board] shall exercise,
through the state superintendent of education and his pro
8 The percentage of students enrolled in schools in which they
are in a racial minority are: White, 0 .0 0 3 % ; Negro, 0 .34% . The
1965-66 Annual Reports to the Alabama State Department of
Education reflect that of the 294,734 Negro children attending
public schools in Alabama only 1,009 were attending desegregated
schools.
383
fessional assistants, general control and supervision over
the public schools of the state . . . Title 52, $14, Code
of Alabama. The Legislature has also provided that “ The
state superintendent of education shall execute the educa
tional policies of the state board of education.” Title 52,
$45, Code of Alabama.
The State Board is expressly authorized to adopt rules
and regulations governing school construction, school sani
tation, and physical examination of school children, and
must enforce all rules relating to “ school health, compul
sory education, and child conservation.” Title 52, $15, Code
of Alabama. It controls the grading and standardizing of
public schools,9 the minimum contents of courses of study,10 11
and the training and certification of teachers.11 The State
Board of Education is further charged with the duty of
“ equalizing the public school facilities throughout the State”
and administers a fund for that purpose. Title 52, $33, Code
of Alabama. The State Board and the State Superintendent
together exercise a broad power of review of actions of
local school hoards and local superintendents in “ matters
relating to finance, and other matters seriously affecting
the educational interest.” Title 52, $$34 and 47, Code of
Alabama.
The Board also has broad powers to effectuate and sup-
—320—
plement other powers previously expressly conferred. Title
52, $31, Code of Alabama.
It was on the basis of these provisions that the Supreme
Court of Alabama was able to conclude: “ Every public
9 Title 52, § 16, Code of Alabama.
10 Title 52, § 17, Code of Alabama.
11 Title 52, § 20, Code of Alabama.
384
school is a state school, created by the state, supported by
the state, supervised by the state, through state-wide and
local agencies, taught by teachers licensed by the state,
employed by agencies of the state.” Williams, Supt. of
Banks, et al. v. State, For Use and Benefit of Pickens
County, et al., 230 Ala. 395, 397,161 So. 507, 507-08 (1935).12
To maintain the racial characteristics of the Alabama
public school system, the defendant state officials have used
their power in essentially two ways. First, they have used
their authority as a threat and as a means of punishment
to prevent local school officials from fulfilling their con
stitutional obligation to desegregate schools, and, second,
they have performed their own functions in such a way
as to maintain and preserve the racial characteristics of
the system. No useful purpose would be served by reiterat
ing the machinations surrounding the closing of schools in
Tuskegee, Alabama, and the Governor’s abortive efforts to
thwart the desegregation of Tuskegee High School, since
this episode is adequately set out in this Court’s opinion
of July 1964 (231 F. Supp. 743). Such conduct, and its
continuation as hereinafter found, reveals a broad spec
trum of state interference with local desegregation efforts.
Title VI of the Civil Eights Act of 1964, as stated earlier,
prohibits discrimination in federally assisted programs.
This law became effective July 2, 1964. In December 1964
the Secretary of Health, Education and Welfare of the
United States published regulations for compliance with
Title VI programs administered by his department.13
These regulations require, among other things, that any
12 Accord: State v. Tuscaloosa County, et al., 233 Ala. 611, 172
So. 892 (1937).
13 45 C.F.E. 80.1-80.9.
385
application for federal financial assistance be accompanied
by an assurance that the program will be conducted, or the
facility operated, on a nondiscriminatory basis.14
On March 4, 1965, State Superintendent of Education
Meadows submitted to the United States Commissioner of
Education state-wide assurance of compliance. When Dr.
Francis Keppel, United States Commissioner of Education,
questioned this “ assurance,” the State Superintendent of
Education reacted by attacking Dr. Keppel’s letter through
a news release to the superintendents of the local school
—3 2 1 -
systems throughout Alabama. Approximately two weeks
after filing his state-wide assurance of compliance, Super
intendent Meadows told the Alabama Teachers Associa
tion:
. . . The minority race has a new junior college in
Mobile and a new one is being established in Jefferson
County . . .
# * * * •
Every type of education facility available to the ma
jority group in Alabama has been made available to
the minority group . . .
His address ended with the following plea:
. . . Will this Nation let Alabama continue its progress,
nurture its fine culture, and further its goal of peace
ful existence in the only way it knows to exist or will
all of this be destroyed by outsiders who either do not
understand or do not care enough for either race in
Alabama ?
14 45 C.F.R. 80.4.
386
In April 1965 the United States Commissioner of Edu
cation issued “guidelines” requiring the school systems
to take immediate steps to desegregate students, facilities
and programs.15 Pursuant to these guidelines, a number
of Alabama school districts decided to desegregate all
twelve grades for the 1965-66 school year. In August
1965, and after Singleton v. Jackson Municipal Separate
School District, supra, Governor George C. Wallace sent
the Superintendent of each such district the following-
telegram :
15 Nothing said here should be construed, inferentially or other
wise, as a decision by this Court on the validity or invalidity of
the 1966 guidelines as issued by the United States Commissioner
of Education, since that question, and other related questions, is
presently pending in a case styled Alabama N A A C P State Con
ference of Branches, et al., Plaintiffs, United States of America,
Plaintiff and Amicus Curiae v. George C. Wallace, et al., Defen
dants, being heard by a separate three-judge court in this district.
Furthermore, in this case we deal solely with constitutional re
quirements on the part of public officials not to discriminate on
the basis of race in the operation of public schools and with con
stitutional requirements on the part of public officials to take af
firmative action to disestablish state enforced or encouraged public
school segregation and to eliminate the effects of past state en
forced or encouraged racial discrimination in their activities and
in their operation of the public school system in the State of
Alabama. It is felt that it is necessary, however, to discuss the
conduct of some of these defendants in connection with the com
pliance or noncompliance of the 1965 guidelines on the part of
local school officials for the purpose of demonstrating the extent
of the control exercised by these state officials over the local school
boards throughout the state. In this connection, it should be
noted that in June 1965 the United States Court of Appeals for
the Fifth Circuit recognized the guidelines, as then issued (1965
guidelines), as “standards for compliance with the requirements of
Title V I of the Civil Eights Act of 1964.” Singleton v. Jackson
Municipal Separate School District, 348 F . 2d 729, 731. For the
purpose of emphasis, we reiterate that in this case this Court is
not concerned with the validity of any guidelines issued by the
United States Commissioner of Education in either 1965 or 1966.
387
WE HAVE BEEN INFORMED THAT YOUR
SCHOOL BOARD HAS VOLUNTARILY SUB
MITTED A SO-CALLED COMPLIANCE PLAN
COVERING ALL GRADES IN YOUR SCHOOL
- 3 2 2 -
SYSTEM. AS YOU KNOW, AYE HAVE NEVER
ASKED ANY SCHOOL BOARD TO VIOLATE
ANY PROVISION OF FEDERAL OR STATE
LAW. IT IS OUR CONSIDERED JUDGMENT
THAT ANY PLAN FOR SO-CALLED NON-DIS
CRIMINATION IN ALL GRADES IS BEYOND
EVEN THE MINIMUM REQUIREMENTS SET
BY THE U S COMMISSIONER OF EDUCATION.
IN FACT, THE DEPARTMENT HAS ACCEPTED
AS MINIMUM COMPLIANCE SOME PLANS
COVERING ONLY FOUR GRADES. IT IS ALSO
READILY APPARENT THAT THOSE SCHOOL
SYSTEMS WHICH HAVE BEEN REQUIRED TO
DESEGREGATE UNDER FEDERAL COURT OR
DER ARE NOT REQUIRED TO DESEGREGATE
ALL 12 GRADES IN ONE YEAR. WE THINK IT
WOULD BE ADVISABLE FOR YOUR SCHOOL
BOARD TO RECONSIDER YOUR ACTION IN
THE SUBMISSION OF YOUR COMPLIANCE
PLAN.
On September 3, 1965, the Governor sent them another
telegram:
THIS FOLLOW-UP TELEGRAM COMES AFTER
A MEETING OF THE STATE BOARD OF EDU
CATION WHICH PASSED A RESOLUTION
YESTERDAY EXPRESSING GRAVE CONCERN
ABOUT THE FUTURE OF PUBLIC EDUCATION
388
IN ALABAMA IN VIEW OF THE FACT THAT
SOME SCHOOL BOARDS HAVE GONE BEYOND
THE MAXIMUM REQUIREMENTS OF COURT
PRECEDENTS IN EXECUTING COMPLIANCE
PLANS. WE AGAIN RESPECTFULLY CALL TO
YOUR ATTENTION THAT THE EXECUTION
AND ADMINISTRATION OF PLANS BEYOND
THOSE REQUIRED IS NOT IN THE INTEREST
OF PUBLIC EDUCATION IN THE STATE OF
ALABAMA. SUCH WAS ENUNCIATED BY THE
SOUTHERN GOVERNORS MEETING IN AT
LANTA. IN VIEW OP THE FACT THAT UNDER
THE PUPIL PLACEMENT ACT THE ADMINIS
TRATION AND ASSIGNMENT OF PUPILS IS
YOUR PREROGATIVE, WE AGAIN RESPECT
FULLY REQUEST THAT YOU TAKE W H AT
EVER ACTION IS NECESSARY TO SEE THAT
THE ADMINISTRATION AND EXECUTION OF
THESE PLANS DO NOT GO BEYOND THE RE
QUIREMENTS OF FEDERAL COURT ORDERS
OF FIVE GRADES. WE URGE CAREFUL CON
SIDERATION OF THE RESOLUTION PASSED
UNANIMOUSLY BY THE STATE BOARD OF
EDUCATION, A COPY OF WHICH WILL BE
FORWARDED TO YOU AND WHICH WE
WHOLEHEARTEDLY ENDORSE. WE COM
MEND THE DILIGENT WORK OF THE GREAT
MAJORITY OF LOCAL SCHOOL BOARDS WHO
HAVE DONE AN OUTSTANDING JOB UNDER
EXTREM ELY TRYING CIRCUMSTANCES.
On September 3, 1965, Superintendent of Education
Meadows sent the local school officials a copy of a resolu
389
tion bv the State Board of Education urging them “ to
take no action in the administration and execution of com
pliance plans which are not required by law or court
order . . . Superintendent Allen Thornton of Lauderdale
County, who had attempted to justify his board’s actions
to the Governor, received the following telegram from the
Governor:
YOUR STATEMENT TO THE GOVERNORS OF
FICE ON THURSDAY SEPTEMBER 2 THAT YOU
ARE SATISFIED WITH THE PUBLIC SCHOOL
SITUATION IN LAUDERDALE COUNTY WHERE
MORE NEGRO PUPILS ARE ENROLLED IN THE
PREVIOUSLY ALL W HITE SCHOOLS THAN
ARE IN EITHER OF THE LARGE CITIES OF
BIRMINGHAM OR MONTGOMERY, AND YOUR
FURTHER STATEMENT THAT YOU PLAN
TO ELIMINATE EVENTUALLY ALL NEGRO
SCHOOLS IN THE COUNTY AND TRANSFER
THE PUPILS TO W HITE SCHOOLS COULD DO
MORE TO DESTROY THE PUBLIC EDUCA
TIONAL SYSTEM OF ALABAMA THAN ANY
ACTION SINCE THE INFAMOUS 1954 DECISION
OF THE UNITED STATES SUPREME COURT.
THOSE WHO HAVE WORKED DILIGENTLY TO
RAISE SUPPORT OF PUBLIC EDUCATION TO
— 323—
A RECORD HIGH LEVEL IN THE HISTORY OF
OUR STATE RESENT AND REJECT THIS A T
TITUDE. W E CALL UPON YOU TO ALIGN YOUR
POLICIES W ITH THE MINIMUM REQUIRE
MENTS OF THE LAW AND OF COURT ORDERS.
(COPIES OF THIS TELEGRAM SENT TO FLOR-
390
ENCE TIMES, FLORENCE, ALA. ASSOCIATED
PRESS, MONTGOMERY, ALA., AND UNITED
PRESS INTERNATIONAL, MONTGOMERY, A LA
BAMA)
These telegrams had their effect. For instance, on Sep
tember 6, 1965, the Choctaw County Board of Education
resolved:
That due to the change in conditions, particularly
within the past few days, the Board concludes it is
for the best interest of the children attending the
schools of Choctaw County, Alabama, their safety and
welfare, for the continued orderly operation of the
schools in the Count}', and for the prevention of vio
lence which would likely result in serious consequences
adversely affecting the orderly operation of the schools,
the plan of desegregation of the schools of Choctaw
County, Alabama, adopted by this Board on August
23, 1965, be and the same is hereby revoked.
The reaction of these defendant state officials and their
conduct and the responses by the local school officials con
cerning the 1966 guidelines issued on March 7, 1966, by the
United States Department of Health, Education and Wel
fare, for the reasons set forth by this Court in footnote 15,
supra, will not be made a part of the findings and conclu
sions of this Court in this case.
Conduct on the part of these state officials to thwart
desegregation of the public school system in the state con
tinued, and on July 1, 1966, Alabama State Superintendent
of Education Meadows expressed his views on segregation
391
in a parable which he circulated to each local superintendent
of education throughout the State of Alabama.18
— 324—
In August 1966 the Tuscaloosa County School Board
formally assigned two Negro teachers to two predominantly
white schools and four white teachers to two Negro schools.
Shortly after school opened in Tuscaloosa County and
these assignments became known, the State Superinten
dent of Education telephoned the Tuscaloosa County
Superintendent of Education, Dr. W. W. Elliott, and rec
ommended that the two Negro teachers who had been as
signed to predominant!}7 white schools be transferred to 16
16 “ ‘Segregation’ is a perfectly good word. It has been prac
ticed down through the ages for good results. The Lord set aside
or segregated fruit from the apple tree in the Garden of Eden
from Adam and Eve, but Eve persuaded Adam to taste the fruit
and they were both banished from the Garden of Eden and honest
men and women have had to work for their living ever since.
“ Segregation has been used by people of the civilized world
for man’s greatest advancement. Matrimony, the most sacred of
all bonds for men and women, is the highest type of segregation.
In matrimony, husband and wife bind themselves to cleave to one
another, even to the extent of forsaking all others if necessary. A
great ministerial commandment has been the public pronounce
ment at the wedding ceremony ‘W hat God has joined together let
no man put asunder.’ Without this bond of segregation, there
would be no family unit. One of the Ten Commandments forbids
breaking this human bond of segregation. Segregation is the basic
principle of culture. The good join together to segregate them
selves from the bad.
“ Segregation is one of the principles of survival throughout the
animal kingdom. Animals, in many instances, join their own kind
to defend themselves by numbers against other animals that would
destroy them without such segregated bond. Birds of a feather
truly flock together. W ild geese fly across this continent in ‘V ’
formation, but they never join any other flock of birds. W ild duck
fly together and not with other birds. The wild eagle mates with
with another eagle and not with any other bird. Red birds mate
with red birds, the beautiful blue birds mate with other blue
birds, and so on through bird life.
(footnote continued on next page)
392
other schools. Dr. Meadows advised the local school offi
cial that he was calling as a constitutional officer of the
State of Alabama and that the assignment of Negro teach
ers to white schools was “ against the law” and “ public
policy” of the state. A few days later Governor George
C. Wallace, in a press conference, announced that he would
use the police power of the state to maintain peace and
requested that the two Negro teachers be removed and re
assigned forthwith. Later, still in September 1966, State
Superintendent Meadows again endeavored to persuade
the Tuscaloosa County Superintendent of Education to re
assign the Negro teachers. About the same time, Attorney
Hugh Maddox, Legal Adviser to the Governor, telephoned
the Tuscaloosa County Superintendent and informed him
that, “ It [is] the public policy of the State that Negro
teachers not teach white children” and that the Governor
would use his police power to enforce the law. Dr. Elliott
insisted that these Negro teachers were fully qualified and
did not agree to reassign them. On October 17, 1966, the
defendant Meadows, again by telephone, advised Dr. El
liott that the Governor suggested that two additional
teacher units be allotted to the Tuscaloosa County school
system provided the students being taught in white schools
by the two Negro teachers were allowed the freedom to
choose a white teacher. The State Board of Education
“ There can be segregation without immoral discrimination against
anyone. Integration of all human life and integration of all animal
life would destroy humanity and would destroy the animal kingdom.
A time of reckoning must come in this United States of America
on the fundamental principles of segregation and non-discrimination
which can be achieved without destroying segregation in its true
sense.”
393
also promised funds to the Tuscaloosa County school sys
tem for additional classroom space to accommodate two
additional white teachers. These state officials also made
it clear that similar measures would be taken in other
communities if Negro teachers were assigned to teach white
students. A news release circulated by Dr. Meadows on
October 25,1966, to all city and county superintendents and
to all news media was as follows:
- 3 2 5 -
In complete accord and with full approval of Gov
ernor George C. Wallace, any county or city hoard of
education will be allocated a teacher unit and appor
tionment of funds therefor where such board employs
a teacher for pupils to transfer from a teacher of the
opposite race to a teacher of their own race by free
dom of choice of such pupils and their parents. Two
such teacher units have already been allocated to a
county board of education in which thousands of peo
ple filed a petition for such relief, both with the county
board of education and the Governor of Alabama.
The foregoing findings serve to illustrate that the actions
on the part of the defendant Alabama officials have been
designed to perpetuate the racially segregated public
school system in the State of Alabama. These actions have
been to some extent, as noted, dramatic interference with
local efforts to desegregate public schools. However, the
most significant action by these defendant state officials,
designed to maintain the dual public school system based
upon race, is found in the day-to-day performance of their
duties in the general supervision and operation of the sys
tem.
394
A . S chool Construction and Consolidation
The State Board of Education and its Secretary and
Executive Officer have been vested by statute with general
supervisory powers over public education in Alabama.
Code of Alabama, Title 52. The State Board is specifically
authorized to adopt rules and regulations “ for the proper
construction of school buildings.” Title 52, Section 15, Code
of Alabama. For approximately fifty years, the State De
partment of Education has conducted periodic surveys of
the Alabama school system. These surveys are for the
purpose of enabling that department to make decisions
and recommendations concerning the location, construc
tion, consolidation, expansion and abandonment of schools
and school buildings. The factual information is obtained
from field inspections and relates to the distribution of
student population within the school districts, the location,
capacity and physical condition of school buildings, and
other information concerning school sites. This informa
tion is then evaluated by the State Superintendent and
the State Board of Education. Certain standards regard
ing the adequacy of physical structures have been estab
lished by the State Department; for instance, standards
respecting the minimum size of school sites, minimum
student standards, and minimum teacher standards. On
the basis of the information gathered in the surveys and
these standards, the survey teams make recommendations
and classifications. First, they classify the school buildings
as either “ suitable for permanent use,” “ suitable for tem
porary use,” or “ should he abandoned.” Second, recom
mendations are made concerning the consolidation of exist
ing schools. Third, recommendations are made concerning
395
—326—
where new schools should be constructed or existing facil
ities enlarged. This information, together with the recom
mendations, is published by the State Department of
Education in a Survey Report after the findings and rec
ommendations are approved by the State Superintendent
of Education. To a large extent, these recommendations—
of necessity—are controlling upon the local school boards,
since local boards that ignore them are penalized through
the use of regulations that have been adopted by the State
Board and through the use of other obligations such as
those governing the allocations of state funds under the
Minimum Program Fund17 for teachers’ salaries.
Other regulations establish a method of calculating the
number of teacher units earned by and to be awarded each
school. Transportation allowances to the local school dis
tricts are made in recognition of the survey recommenda
tions, and the Survey Reports determine, to a large extent,
the State Superintendent’s approval or disapproval of
sites for new school construction or existing school ex
pansion. In each instance, the local school board must
obtain the approval of the State Superintendent as to the
location and need for expansion; the approval of the State
Superintendent is also needed for construction projects,
since the principal source of construction funds comes from
state bond issues. The State Superintendent’s approval on
school construction projects is important, even where local
funds are used, since local boards of education cannot is
sue warrants without the specific approval of the State
Superintendent of Education. Title 52, Code of Alabama,
§§ 216-218, 235 (4). Furthermore, the Governor and the
State Superintendent of Education constitute a majority
17 Title 52, §§ 208-215, Code of Alabama.
396
of the Public School and College Authority. This agency
has the power to establish priorities for projects and to
make funds more readily available to local school systems.
The evidence in this case is absolutely overwhelming
that the State Board of Education and the Alabama Super
intendent of Education, with the assistance of their staff
in the State Department of Education, have exercised ex
tensive control over school construction and consolidation
in such a manner as to perpetuate a dual public school
system based upon race and to interfere with the orderly
desegregation of the public schools in the State of Ala
bama. This discriminatory course of conduct on the part
of these defendants has continued and persisted since this
Court’s order of July 1964, for instance, the interference
of State Superintendent Meadows and the Governor with
the Tuscaloosa County Board of Education and their offer
—327—
to that local board regarding construction funds. Such an
offer could have been for no purpose other than to thwart
the efforts of that local board to desegregate the faculties
of its schools. Furthermore, the use of that authority
and control on the part of these defendants over school
construction has not been confined to manipulating the
availability of funds. For instance, a more insidious
method of control over local boards for the purpose of
perpetuating a dual public school system based upon race
has been with respect to school construction and consoli
dation. This is found in the judgments and recommenda
tions contained in the school surveys. The survey recom
mendations regarding consolidation strictly observe the
racially segregated character of the schools. In Calhoun
County—to take but one example— rather than recommend
that the local board close down an inferior Negro school
397
(Hawkins) and consolidate it with a nearby white school
(Bynum), the survey recommended, instead, that the Negro
students from the Hawkins School be transported across
the county to Calhoun County Training School, a Negro
school. Not only was the Calhoun County Training School
a greater distance from Hawkins, which necessitated bus
ing for the purpose of maintaining segregation, but, com
pared to Bynum, the physical facilities were significantly
inferior and less room was available for the Negro students
who were bused from Hawkins. The Survey Report that
was then in existence reflected that the Calhoun County
Training School to which the Hawkins Negro students
were transported “ is located on an inadequate site aboiit
which little can be done.” Such a method of consolidation
was for no purpose other than to perpetuate segregation
of the races in that public school system.
The survey teams have also sought to perpetuate the
dual public school system by refusing to recommend con
solidation wdiere consolidation would have had the effect
of desegregating. These reports reflect that the survey
teams consistently compromised the minimum student
standards in order to maintain segregation of the students.
Such a course of conduct is condemning evidence that the
defendants have sought to perpetuate and, through this
means, have effectively perpetuated the dual public school
system.
In yet another area, the state survey recommendations
pertaining to the location of new schools have been de
signed to perpetuate the dual system. Considerations of
economy, convenience and education have been subordi
nated to the policy of racial separation; survey reports of
construction sites reflect this policy. A striking instance
of this discriminatory conduct is found in the Clarke
398
County survey conducted during the 1964-65 school year.
At the time of the survey, there were twenty-three schools
—3 2 8 -
in the system attended by approximately 5800 students—
2400 white and 3400 Negro. Consolidation was clearly
called for; yet the survey staff sought to perpetuate the
segregated system by recommending and approving that,
in each of the three principal towns of the county, two
separate schools be maintained as permanent school in
stallations, each covering grades 1-12. This recommenda
tion in each of these three towns in Clarke County, Ala
bama, can be explained only in racial terms. Other similar
numerous examples have been presented, the discussion of
which would serve no useful purpose.
Furthermore, through the control of finances in school
construction, these defendants have insured that Negro
children are provided with markedly inferior educational
opportunities. For example, the average pupil-teacher
ratio in the Negro schools is higher than in the white
schools; the per-pupil valuation of school buildings and
contents is $607.12 per white pupil as compared to $295.40
per Negro pupil. Over 25% of the Negro high schools in
Alabama are unaccredited as compared with only 3.4% of
white high schools.
B. F aculty and S taff
It is no longer open to question that faculty and staff
desegregation is an integral part of any public school de
segregation plan—not because of teachers’ employment
rights, but because students are entitled to a nonracial
education, and assignment of teachers to students on the
basis of race denies students that right. See Bradley v.
399
School Board of Richmond, 382 U.S. 103 (1965); Rogers
v. Paul, 382 U.S. 198 (1965); Kemp v. Beasley, 352 F. 2d
14 (8th Cir. 1965); Singleton v. Jackson Municipal Sepa
rate School District, 355 F. 2d 865 (5th Cir. 1966); Wheeler
v. Durham City Board of Education, 363 F. 2d 738 (4th
Cir. 1966); Davis v. Board of School Commissioners of
Mobile County, 364 F. 2d 896 (5th Cir. 1966).
The constitutional duty to desegregate the faculties in
public school systems was made clear by the Supreme Court
of the United States in Rogers v. Paul, supra:
Two theories would give students not yet in desegre
gated grades sufficient interest to challenge racial allo
cation of faculty: (1) that racial allocation of faculty
denies them equality of educational opportunity with
out regard to segregation of pupils; and (2) that it
renders inadequate an otherwise constitutional pupil
desegregation plan soon to be applied to their grades.
This constitutional duty was recognized by the United
States Court of Appeals for the Fifth Circuit in Singleton
v. Jackson Municipal Separate School District, supra, when
the Court stated:
— 329—
. . . [W ]e regard it as essential that the plan provide
an adequate start toward elimination of race as a
basis for the employment and allocation of teachers,
administrators, and other personnel.
and again in Davis v. Board of School Commissioners of
Mobile County, supra, when the Court stated:
. . . [T]he plan must be modified in order that there
be an end to the present policy of hiring and assigning
teachers according to race by the time the last of the
400
schools are fully desegregated for the school year
1967-68.
The recent decision in Clark v. Board of Education of
the Little Rock School District, 369 F. 2d 661, 669 (8th
Cir., December 15, 1966), requires that specific steps must
be taken now to end faculty segregation. The Court stated:
We agree that faculty segregation encourages pupil
segregation and is detrimental to achieving a constitu
tionally required non-racially operated school system.
It is clear that the Board may not continue to operate a
segregated teaching staff. . . . At this point the Board
is going to have to end discriminatory practices in staff
assignment and recruitment.
and, in another passage:
[T]he Board should make all additional positive com
mitments necessary to bring about some measure of
racial balance in the staff of the individual schools
in the very near future. The age old distinction of
“white schools” and “ Negro schools” must be erased.
The continuation of such distinctions only perpetuates
inequality of educational opportunity and places in
jeopardy the effective future operation of the entire
“ freedom of choice” type plan.
As in other areas, some of which have already been dis
cussed, defendants have endeavored to thwart and, with
considerable success, have thwarted efforts toward imple
mentation of the constitutional requirement to eliminate
faculty and staff segregation in the public school system
of Alabama. The Governor’s legal adviser was indeed cor
rect when he declared that, “ It [is] . . . the public policy
401
of the State that Negro teachers not teach white children.”
Evidence in this case reflects that this policy has been
successful for, of over 28,000 teachers in the state, only 76
are teaching in schools to which students of the opposite
race have been traditionally assigned. Defendants, through
the use of pressures, some of which have herein been out
lined, have required local hoards to conform to their views
on faculty and staff segregation in the school system. As
a matter of fact, they have acted affirmatively to use the
Minimum Program Fund to make segregation of the facul
ties and staffs in the several school districts attractive.
— 330—
For instance, as we have previously noted, the State Super
intendent of Education, at the insistence of the Governor,
utilized the state’s power, that had been vested in these
defendants, of allocation of teacher units by authorizing
two additional units to be used for the purpose of hiring-
white replacements for the two Negro teachers hired by
the Tuscaloosa County Board of Education teach in white
schools.
Teacher institutes continue to be conducted separately
for each race. Section 339, Title 52, Code of Alabama.
Generally, the control exercised by these defendants over
in-service training programs and teacher certification has
been used not as a means to eliminate discrimination in the
dual school system of Alabama but as an instrument to
enforce segregation throughout that system.
In this area, as in other areas herein discussed, there is
an affirmative duty on the part of these defendants, as
well as on the part of other school officials throughout the
state, to desegregate staffs and faculties. This is also a
constitutional duty apart from any federal regulatory
scheme.
402
C. T ransportation
It cannot seriously be contended that transportation is
not a critical factor in the process of disestablishing the
traditional dual public school system.18
The defendant state officials exercise considerable au
thority in this area since nearly 100% of the cost of local
school transportation programs is paid from the state
Minimum Program Fund and, further, since § 209, Title 52,
Code of Alabama, empowers the State Board of Education
to approve transportation routes submitted by the local
boards and to establish minimum standards for the buses
that are used to transport the students. This Court’s find
ing in its July 1964 order that these defendants have used
this control over transportation to perpetuate segregation
is as true now as it was then. The State Board continues
to finance and permit the operation of school bus systems
organized on a racially discriminatory basis. The buses
provided Negro children have been and continue to be of a
markedly inferior quality. There is duplication and over-
—3 3 1 -
lapping of bus routes in the school bus transportation * 25
18 See, e.g., Franklin v. Barbour County Board of Education,
259 F. Supp. 545 (M D Ala. 1966) ; Harris v. Crenshaw County
Board of Education, 259 F . Supp. 167 (M D Ala. 1966) ; Carr v.
Montgomery County Board of Education, 253 F. Supp. 306 (MD
Ala. 1966) ; Harris v. Bullock County Board of Education, 253
F. Supp. 276 (M D Ala. 1966) ; United States v. Loiundes County
Board of Education, Civ. Action No. 2328-N, MD Ala., February
10, 1966; Wright v. County School Board of Greenville County,
252 F. Supp. 378 (E D Va. 1966) ; United States v. North Pike
Consolidated School District, Civ. Action No. 3807, SD Miss. Sept.
25, 1965; Baird v. Benton County Board of Education, Civ. Ac
tion No. W .C . 6513, ND Miss. Aug. 3, 1965; United States v.
Natchez Special Municipal Separate School District, Civ. Action
No. 1120 (W ) , SD Miss., January 28, 1966 as amended April 15,
1966; Killingsworth v. Quitman Consolidated School District, Civ.
Action No. 1 302(E ), SD Miss., August 14, 1965.
403
provided in practically every area of the state to permit
white children to avoid attending desegregated schools
closer to their homes; further, this system has been and is
being used to transport Negro children living near white
schools to Negro schools miles away.
D. T rade S chools, V ocational S chools and S tate
Colleges
The state’s trade schools, vocational schools and state
colleges19 continue to he operated on a segregated basis.
The operation of these systems is the immediate responsi
bility of the State Board of Education. See the Regional
Vocational and Trade School Act of 1947, Code of Ala
bama, Title 52, §451(4); the Alabama Trade School and
Junior College Authority Act of 1963, Code of Alabama,
Title 52, §509(96); Code of Alabama, Title 52, §§451(3)
and 509(85). See also Code of Alabama, Title 52, §§438
and 452.
There is no necessity for setting out the facts in detail
concerning the operation of these state colleges since the
evidence conclusively establishes—the defendants do not
controvert it—that these schools have been and continue
to be operated as if Brown v. Board of Education were
inapplicable in these areas. For example, § 438, Title 52,
Code of Alabama, reads:
The state board of education shall have the control and
management of the several teachers’ colleges of the
state, for white teachers, located at Florence, Jackson
19 The term “state college,” as used herein, includes all state
colleges or universities except the University of Alabama, Auburn
University, University of South Alabama at Mobile, and Alabama
College at Montevallo, which institutions have separate boards of
trustees and are not administered by the Alabama State Board
of Education.
404
ville, Livingston, Troy, and of the Alabama State Col
lege for Negroes located at Montgomery.
The plaintiffs are also clearly entitled to relief in this area.
It is quite clear that the defendants have abrogated, and
openly continue to abrogate, their affirmative duty to effec
tuate the principles of Brown v. Board of Education, supra.
Although the facts as herein outlined speak eloquently for
themselves, there is no more clear an indication of this
than Superintendent Meadows’ statement that he has done
nothing to eliminate segregation in the public schools of
Alabama. As Judges Sobeloff and Bell stated in a con
curring opinion in Bradley v. School Board of the City of
Richmond, Virginia, 345 F. 2d 310, 322, 323 (4th Cir. 1965):
[T]he initiative in achieving desegregation of the pub
lic schools must come from the school authorities.
# # # # #
Affirmative action means more than telling those who
have long been deprived of freedom of educational
— 332—
opportunity, “ You now have a choice.” [Emphasis
added.]
# # # # #
It is now 1965 and high time for the court to insist
that good faith compliance requires administrators of
schools to proceed actively with their nontransferable
duty to undo the segregation Avhich both by action and
inaction has been persistently perpetuated.
Accord, Cooper v. Aaron, supra. Such a course of conduct
on the part of these defendants has served to thwart and,
in many instances, defeat voluntary desegregation plans
that have been attempted by the local school districts.
405
It should be noted that one of the most illegal methods
adopted by these defendants to impede desegregation on a
local level is that they have consistently attempted to ob
scure the fact that local school authorities have a federal
constitutional duty to desegregate their school systems
totally, notwithstanding whether a particular system is
under a court order or whether that school system agrees
to comply with the requirements of the Department of
Health, Education and Welfare of the United States.
Statements to the effect that “ the local school districts
should go no further than ordered by the Court,” and the
offers to replace federal funds with state funds have been
designed to lead the local school authorities to believe that
they have no such affirmative duty. Such philosophy com
pletely ignores the fact that the paramount duty to desegre
gate is a constitutional one independent of any court order
and independent of any federal regulatory program. It is
entirely disingenuous of the defendants to fail to admit
that their activities were coercive and for them to contend
they were, at most, acting in an advisory capacity, with
the ultimate control residing with the local boards. The
record presented to this Court clearly indicates that these
defendants stand ready to exercise, and have in many in
stances in areas of public education in Alabama exercised,
the same powers and control that they demonstrated two
and one-half years ago over the Macon County schools
when the desegregated school was closed and white stu
dents were bused to other schools in the same system that
continued to operate on a segregated basis. In addition,
this Court’s conclusion in its July 1964 order that “ The
control by the State Board of Education over the local
school systems is effected and rigidly maintained through
control of * * * finances” has not been diminished by sub
406
sequent events. On the contrary, the evidence concerning
the conduct of these defendants since 1964 strengthens that
conclusion. This control on the part of these defendants
over the local boards is all pervasive; it invests in these
defendants power over school construction and consolida-
—333—
tion, teachers, school transportation and other vital areas
in the operation of the public schools throughout the state.
IV. The Tuition Grant Statute
As observed earlier in this opinion, state and local au
thorities are under an affirmative constitutional duty to pro
vide equal educational opportunities for all children by
ceasing to discriminate on the basis of race and to the
extent herein noted and ordered, eliminating the effects
of past discrimination. To obviate the performance of this
duty, a state may neither operate and maintain two school
systems—one integrated, one segregated—giving public
school students a choice between the two,20 nor simply go
out of the business of running schools in some school dis
tricts and allow that function to be undertaken by private
persons.21 It is also axiomatic that a state may not induce,
encourage or promote private persons to accomplish what
it is constitutionally forbidden to accomplish.22
20 Boson v. Rippy, 285 P. 2d 43, 45-46 (5th Cir. 1960) ; Kelly v.
Board of Education of City of Nashville, 159 P. Supp. 272, 278
(M D Tenn. 1958).
21 Griffin v. County School Board of Prince Edward County, 377
U.S. 218 (1964) ; Lee, et al. v. Macon County Board of Education,
231 P. Supp. 743 (M D Ala. 1964).
22 See Anderson v. Martin, 375 U.S. 399 (1964). And see, Lom
bard v. Louisiana, 373 U.S. 267 (1963) ; N A A C P v. Alabama, 357
U.S. 449, 463 (1958) ; Burton v. Wilmington Parking Authority,
365 U.S. 715, 726-27 (1961) (Justice Stewart concurring) ; Evans
407
Measured against these criteria and when viewed in the
context of the facts and circumstances which gave rise to
its enactment, the vice of the present tuition statute23 be
comes clear: it is but another attempt of the State of
Alabama to circumvent the principles of Brown by helping
to promote and finance a private school system for white
students not wishing to attend public schools also attended
— 334—
by Negroes.
Alabama’s present tuition statute must be analyzed in
the historical context which gave rise to its enactment. It
is unmistakably clear that the concept of tuition grants to
students wishing to attend private schools in Alabama was
born of an effort to resist and frustrate implementation
v. Newton, 382 U.S. 296, 305-307 (1965) (Justice White con
curring) ; Hall v. St. Helena Parish School Board, 197 F. Supp.
649, 658 (E D La. 1961), aff’d per curiam, 368 U.S. 515 (1962).
23 “A ny other provisions of law notwithstanding, no child shall
be compelled to attend any school when in the judgment of the
parent or guardian of such child attendance in the school to which
assigned will be detrimental to the physical or emotional health of
such child or subject the child to hazards to personal safety. In any
such case, the parent or guardian of such child shall file written
objections with the local board of education and request transfer
and reassignment. Upon refusal of any board to grant such a re
quest, the child shall proceed as provided in section 61(7) of this
title, or in lieu thereof, submit an application to the state board
of education for a tuition grant to attend any private nonsectarian
school in or outside the school attendance district in which the
child resides. Tuition grants approved by the state hoard shall not
exceed a total of one hundred eighty-five dollars ($185.00) in any
one school year, or a sum to be determined by the state superinten
dent of education to be the cost per pupil in average daily attend
ance in the public schools of the state, whichever sum shall he less.
The state board of education shall promulgate rules and regula
tions for the administration of tuition grants which shall be paid
only from funds appropriated by the legislature for such purpose.
It shall he unlawful for any person to use funds granted under this
chapter for any purpose other than for the payment of tuition in
school; * * * .” Title 52, § 6 1 (8 ), Code of Alabama.
408
of the Brown decision. Lee v. Macon County Board of Edu
cation, 231 F. Supp. 743 (MD Ala. 1964).24 The first such
statute, enacted in 1957, authorized tuition grants for stu
dents attending private nondenominational schools in school
districts where no public school was available. Chapter 4B
of Title 52, Code of Alabama, of which the 1957 tuition
grant statute was a section, authorized each local board of
education to discontinue operating its public school when
it found that the continued operation of its public school
“will be accompanied by such tensions, friction, or potential
disorder or ill will within the school as substantially to
impair effective standards or objectives of education of its
pupils, or by potential impairment of peace, order and
goodwill in the community, school district, or county in
volved.” Acts of Alabama 1957, No. 528, § 1 at 723. It
was pursuant to this chapter that the State Board of
Education ordered all grades above the seventh grade in
the Macon County public schools closed and directed that
payment of tuition grants be made to students residing in
Macon County where no public schools were available, who
attended racially segregated private schools. In our July
13, 1964 order, we found that implementation of the tui
24 It is appropriate to reiterate our conclusions on this point
made in our July 13, 1964 order: “ Alabama’s grant-in-aid system
appears to have been first proposed by the Special Interim Com
mittee of the Alabama Legislature in 1954. The legislative history
of the statute subsequently enacted by the Alabama Legislature
reflects that this Committee was formed to consider means of
meeting the decision of the Supreme Court in Brown v. Board of
Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). The
Committee’s report to the Legislature set forth a number of pro
posals for delaying or avoiding racial desegregation in education,
and it proposed a number of specific amendments to the Alabama
Constitution, all of which were ultimately adopted. These grant-
in-aid laws are all set out in Title 52, Code of Alabama, recompiled
1958.” 231 P. Supp. at 743, n. 4.
409
tion grant statute was unconstitutional and enjoined its
further use.
It is clear that the present tuition statute was born of
the same effort to discriminate against Negroes, and was
designed to fill the vacuum left by this Court’s injunction
against the 1957 tuition statute. Although the statute is
cast in terms of making eligibility for a tuition grant turn
on the parent’s judgment that the child’s attendance at
public school will be detrimental to the child’s “ physical
and emotional health,” when read in perspective it turns
eligibility for tuition on the parent’s dissatisfaction with
- 3 3 5 -
sending his child to a desegregated public school. Prior
to 1965-66, §61(8) said as much on its face. It authorized
the parent or guardian of any child attending “ any school
in which the races are commingled” to terminate the child’s
attendance there. The amendment simply substituted for
the objective test—commingling of races—the subjective
test that now appears in the statute—“ judgment” of the
parant or guardian. Significantly, every dollar paid during
the 1965-66 school year went to students enrolled in all-
white private schools established when the public schools
desegregated.
Finally, it is also important to emphasize that the state
has failed to advance any rational basis on which to explain
the statute. Eligibility for a tuition grant does not turn
on the inadequacy of public educational facilities to accom
modate all school-age children in the school district. The
statute does not manifest state concern for equalizing the
opportunity of all children, including the poor, to attend
private schools, for the statute does not require a showing
of financial need. Nor does the statute exhibit state con
cern for improving the educational opportunities of special
410
classes of students—those who may be gifted or those who
may be handicapped. Although the statute applies only to
public school pupils, it may not be invoked by pupils in
public schools who wish to attend private schools for rea
sons such as superior instruction, smaller classes, and so
forth. The statute narrows its focus on an extremely
limited class of students—those students whose physical
or emotional health would be adversely affected or whose
safety might be jeopardized by attending public schools.
Since neither of these conditions can be demonstrated to
have any rational basis in fact, there can be only one way
to explain the statute: it is designed to aid and assist
private discrimination of the kind which would be con
demned if attempted directly by the state. As such, the
statute is unconstitutional.
It is appropriate to observe in concluding this aspect of
the case that it is now becoming apparent that the State
of Alabama is attempting to make a concerted effort to
establish and support a separate and private school system
for white students. Twice in less than three years this
Court has had to strike down tuition grant provisions de
signed to achieve this end. Moreover, the Governor has
officially encouraged private contributions to support the
many private schools throughout the state as alternatives
to the public desegregated school system.25 Up to this point,
25 “ [Y]our . . . donations . . . will help people in our State who
are being forced to conduct private schools because of the destruc
tion of their public schools.
“ This group, made up of representatives of the various private
schools, will see that your contribution is distributed to these
schools on an equitable basis. These people— these parents— are
fighting for their freedom too— a freedom that affects all of us
and I hope that you will join me in helping those whose schools
have been taken away from them.” (Emphasis added.)
411
— 336—
this Court has used its injunctive powers to prevent the
State of Alabama from establishing a separate school sys-
ten for white children. It must be made perfectly clear,
however, that if the state persists in its efforts dedicated
to this end, and its involvement with the private school
system continues to be “ significant,” 26 then this “private”
system will have become a state actor within the meaning
of the Fourteenth Amendment and will need to be brought
under this Court’s state-wide desegregation order.
V. The Eelief
A. General, N ature
As has been outlined in some detail, the defendant state
officials have engaged in a wide range of activities to main
tain segregated public education throughout the State of
Alabama. These activities have been concerned with and
have controlled virtually every aspect of public education
in the state, including site selection, construction, consoli
dation, assignment of teachers, allocation of funds, trans
portation, vocational education, and the assignment of stu
dents.
The remedy to which these plaintiffs are constitutionally
entitled must be designed to reach the limits of the defen
dants’ activities in these several areas and must be de
signed to require the defendants to do what they have been
unwilling to do on their own—to discharge their con
stitutional obligation to disestablish in each of the local
county and city school systems in Alabama that are not
already operating under a United States court order, the
26 Burton v. Wilmington Parking Authority, 365 U.S. 715, 722,
81 S. Ct. 856, 6 L. Ed. 2d 45 (1961). See cases in footnote 22,
supra. And see Simkins v. Moses II. Cone Memorial Hospital, 323
F. 2d 959 (4th Cir. 1963).
412
dual public school system to the extent that it is based upon
race or color. In this connection, the State of Alabama
and particularly the defendant state officials are under an
affirmative constitutional duty to take whatever corrective
action is necessary to disestablish such a system. Faculty
members and staff members, facilities and activities, as
well as student bodies, must be desegregated to such an
extent that there no longer exists in the Alabama public
school system discrimination of any sort or to any degree
that is based upon race or color.
This Court can conceive of no other effective way to
give the plaintiffs the relief to which they are entitled
under the evidence in this case than to enter a uniform
— 337—
state-wide plan for school desegregation, made applicable
to each local county and city system not already under
court order to desegregate, and to require these defen
dants to implement it. Only in this way can uniform, ex
peditious and substantial progress be attained, and only
in this way can the defendant state officials discharge the
constitutional duty that was placed upon them twelve years
ago in Brown v. Board of Education, supra. It cannot
seriously be contended that the defendants do not have
the authority and control necessary to accomplish this re
sult. Certainly the possibility of losing state funds for
failure to abide by and implement the minimum constitu
tional requirements for school desegregation which this
opinion and the accompanying decree require will, without
any doubt, effect compliance. Indeed, it is quite clear from
the evidence in this case that the local school officials will,
through economic necessity if for no other reason, abide
by the orders and regulations of these state officials and, in
most instances, will be relieved to find themselves no longer
under the pressures and exhortations of these defendants
413
to abrogate their clear constitutional duties in this area.
The local officials should, after the entry of this opinion
and the accompanying decree, be able to return to the
teaching of students and dealing with the related educa
tional problems rather than expending their time and en
ergies trying to tread the difficult “middle ground” between
conflicting federal and state demands.
The argument that this Court is proceeding without
jurisdiction over indispensable parties to this litigation,
to-wit, local school boards throughout the state, is not
persuasive. We are dealing here with state officials, and
all we require at this time is that those officials affirma
tively exercise their control and authority to implement a
plan on a state-wide basis designed to insure a reasonable
attainment of equal educational opportunities for all chil
dren in the state regardless of their race. It may be that
in some instances a particular school district will need to
be brought directly into the litigation to insure that the
defendant state officials have implemented this Court’s
decree and that the state is not supporting, financially or
otherwise, a local system that is being operated on an un
constitutional basis. Hopefully, these instances will be the
exception and not the rule. Clearly this possibility does not
diminish the propriety of the state-wide relief to be ordered.
Having already resolved this issue of state-wide relief
against the defendants in the order made and entered in
Lee, et al., United States of America, Amicus Curiae v.
Macon County Board of Education, July 13, 1964, 231 F.
Supp. 743, further discussion and analysis is not necessary.
B. Other Considerations
— 338—
Invariably in this area of our country the “ freedom of
choice” plan has been chosen by the courts and the school
systems themselves as the method to effectuate the require
ments of the Fourteenth Amendment in the held of de
segregation of public educational facilities. This is the
plan which this Court will require—for the time being—
these defendant officials to implement throughout the State
of Alabama.27 This Court recognizes that in the freedom
of choice plan there are many administrative complexities.
It may be that these administrative problems will make
some other method advisable in the future. It may well
be that the freedom of choice method of desegregation
will not fully and completely disestablish the dual public
school system based upon race.28 However, for the time
being, provided that all of the factors designed to influence
and having the effect of influencing choice be eliminated,
the freedom of choice plan will be put into effect upon a
state-wide basis. It should be emphasized that, if choice
influencing factors are not eliminated, freedom of choice
is a fantasy. A “ freedom of choice” plan ordered by a court
or adopted by school authorities is not an end in itself;
it is but a means to an end. The plan must operate in
such a manner as to meet the constitutional mandate of
the Fourteenth Amendment. As was stated in the con
curring opinion in Bradley v. School Board, 345 F. 2d 310,
323:
414
Affirmative action means more than telling those who
have long been deprived of freedom of educational
27 The reasons are obvious why school officials have not chosen
other plans such as the “neighborhood school” plan, for under
such a plan white students would be immediately required to at
tend Negro schools located in their neighborhoods.
28 The United States Supreme Court has not yet ruled on the
freedom of choice method of ending racial segregation in the field
of public education. However, Goss v. Board of Education, 373
U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963), has been cited
as support for such a plan. See Bradley v. School Board of City
of Richmond, 345 F.2d 310, 318 (4th Cir. 1965).
415
opportunity, “ You now have a choice.” In many in
stances the choice will not be meaningful unless the
administrators are willing to bestow extra effort and
expense to bring the deprived pupils up to the level
where they can avail themselves of the choice in fact
as well as in theory. . . . The district judge must de
termine whether the means exist for the exercise of a
choice that is truly free and not merely pro forma.
In short, the measure of a freedom of choice plan—or,
for that matter, any school plan designed to eliminate dis
crimination based upon race— is whether it is effective.
I f the plan does not work, then this Court, as well as the
State of Alabama school officials—both state and local—is
under a constitutional obligation to find some other method
to insure that the dual school system of public education
based upon race is eliminated. In adopting this plan, there-
— 3 3 9 -
fore, we stress again that it may be only an interim plan.
Its success will be periodically judged in the light of the
criteria herein set out. For this and all other purposes,
jurisdiction will be retained.
The decree and injunction heretofore issued in this case
will be enlarged as herein indicated and a formal decree
will be entered accordingly.
Done, this the 22nd day of March, 1967.
B ichard T. B ives
United States Circuit Judge
H. H. Grooms
United States District Judge
F ran k M. J oh n so n , Jr.
United States District Judge
416
DECREE
— 341—
It is Ordered, A djudged and D ecreed that the Alabama
State Board of Education, Mrs. Lurleen Burns Wallace,
Governor of the State of Alabama and President of the
Alabama State Board of Education, James D. Nettles, Ed
Dannelly, Mrs. Carl Strang, Fred L. Merrell, W. M. Beck,
Victor P. Poole, W. C. Davis, Cecil Word, and Rev. Harold
C. Martin, members of the Alabama State Board of Edu
cation, and Ernest Stone, Executive Officer and Secretary
of the Alabama State Board of Education, and Alabama
State Superintendent of Education, together with their
agents, servants, employees, successors in office, and all
those in active concert or participation with them who re
ceive actual notice of this decree or any of them, shall be
and hereby are permanently enjoined from discriminating
on the basis of race in the operation or the conduct of the
public schools of Alabama or in any manner pertaining to
the public schools of Alabama. As set out more particularly
in the body of this decree, said defendants shall take
affirmative action to disestablish all state enforced or en
couraged public school segregation and to eliminate the
effects of past state enforced or encouraged racial dis
crimination in their activities and their operation of the
public school systems throughout the State.
It is further Ordered, A djudged and D ecreed that:
I
School Construction and Consolidation
A. The State Superintendent of Education shall require
all local school systems that have been the subject of a
417
survey conducted by or under the auspices of the State
Department of Education to submit to him, prior to the
commencement of the 1967-68 school year, all plans that
have been formulated or adopted for the consolidation of
any schools in their systems that had at the time of the
survey, or now have, fewer students than required under
the minimum-student standards of the State Department of
- 3 4 2 -
Education.
B. The State Superintendent of Education shall con
tinue to conduct surveys of the local school systems
throughout the State, and require that those conducting the
surveys shall:
1. Continue to collect and report data regarding
the residence of students and the attendance at schools
by race;
2. Not fail to recommend consolidation because de
segregation would result;
3. Recommend, to the extent consistent with the
proper operation of the school system as a whole, that
consolidation shall be achieved in a manner to effect
desegregation of the schools of the system;
4. Recommend, to the extent consistent with the
proper operation of the school system as a whole, that
the location, grades and capacity of new schools and
expansions of existing school plants be such as to
effect desegregation of the schools of the system.
C. Approval by the State Superintendent of Education
of all sites upon which schools are to be constructed or
existing facilities expanded shall not be based on any sur
418
vey conducted prior to the entry of this decree, or any sur
vey that does not accord with the standards set forth above
in paragraph B.
D. Approval by the State Superintendent of Educa
tion of all sites upon which schools are to be constructed
or existing facilities expanded shall be withheld if, judged
in light of the capacity of existing facilities, the residence
of the students, and the alternative sites available, the con
struction will not, to the extent consistent with the proper
operation of the school system as a whole, further the dis
establishment of state enforced or encouraged public school
segregation and eliminate the effects of past state enforced
or encouraged racial discrimination by the State public
school system.
— 343—
II
Teachers
A. The State Superintendent of Education shall develop
a detailed program for assisting and encouraging faculty
desegregation in the local school systems throughout the
State for implementation prior to the 1967-68 school year
and shall submit this program to the Court and all parties
within 60 days after the entry of this Court’s decree. The
program should, at a minimum, establish ways in which
the State Department of Education will assist local sys
tems in recruiting, and in planning for the placing of newT
teachers and reassigning of old teachers on a desegregated
basis so that by the fall of 1967, insofar as it is adminis
tratively feasible, no school located in a school district
where students of both races are in attendance listed in
Section IV of this decree will have teachers of only one
race. The program should also provide for assistance in
419
providing training which may be necessary to upgrade the
qualifications of some teachers in order to facilitate de
segregation of faculty. The program should provide for
further progress after 1967-68 to help said local school
systems stay in compliance with constitutional require
ments in the area of public school desegregation.
B. Any services made available by the State Superin
tendent of Education to assist local school hoards to locate
and employ suitable teachers, or to assist teachers to find
suitable positions, shall be provided in a manner to effect
faculty desegregation in the public schools throughout the
State.
C. The State Superintendent of Education shall not give
force or effect to that provision of Section 339 of Title 52
of the Alabama Code which requires that separate teacher
institutes be held for Negro and white teachers; and he
shall direct that a single, system-wide teacher institute be
held in each local school system for the 1967-68 school
year, and for each school year thereafter, and that such
institutes be conducted in a nondiscriminatory manner.
—344—
D. The State Superintendent of Education shall con
duct all in-service training programs on a desegregated
basis.
E. The State Superintendent of Education shall apply
certification requirements without discrimination on the
basis of race, and shall not apply certification require
ments, or grant provisional certificates, in a manner to
perpetuate faculty segregation or to avoid faculty de
segregation.
F. The State Superintendent of Education shall inform
all applicants for certification that the school systems
420
throughout the State are obliged to desegregate their fac
ulties, and that teachers are subject to assignment in ac
cordance with that obligation.
I l l
School Transportation
A. The defendant state officials shall require all local
school boards listed in Section IV of this decree, prior to
the commencement of the 1967-68 school year, to eliminate
race as a basis for assigning students to school buses and
to eliminate overlapping and duplicative bus routes based
on race.
B. The defendant state officials shall require all of said
local school boards, prior to the commencement of the
1967-68 school year, to establish nondiscriminatory criteria
governing the availability of bus transportation to students
within the school district. These criteria, at a minimum,
should entitle each student to be transported to the school
he attends if that school is the one nearest his residence
and if that school is at least two miles from his residence.
C. The State Superintendent of Education shall require
all local school boards listed in Section IV of this decree
to submit to him for approval within 60 days after the
entry of this decree their proposed bus routes and criteria
— 345—
governing the eligibility for bus transportation. The State
Superintendent shall approve or disapprove the proposed
routes and criteria, within 30 days of receiving them, ac
cording to the standards set forth in the preceding para
graphs A and B of this section, and, to the extent that he
disapproves them, he shall notify the local systems of their
deficiencies.
421
D. The State Superintendent of Education shall require
all of said local school boards to communicate those routes
and criteria he has approved to students and parents of
the school districts in a readily understandable manner
and substantially before the opening of the 1967-68 school
year. The local school authorities shall notify parents and
children, prior to the choice period, that the bus routes and
criteria governing the eligibility for bus transportation are
being revised and will be established on a nondiscrimina-
tory basis.
E. Whatever technical assistance is made available by
the State Superintendent for assisting said local school
boards in meeting school transportation problems shall be
provided in a manner to assist the local school boards to
eliminate overlapping and duplicative bus routes based on
race and to formulate nondiscriminatory criteria regard
ing eligibility of students for transportation.
Desegregation Plans for Local School Systems
The State Superintendent of Education shall notify the
following school systems that they are required to adopt
a desegregation plan for all grades commencing with the
1967-68 school year that meets the standards embodied in
the plan attached to this decree and designated as Exhibit
IV
“A ” :
Alexander City
Andalusia
Anniston
Athens
Attalla
Auburn
Autauga County
Baldwin County
Bibb County —346—
Blount County
422
Brewton
Butler County
Calhoun County
Carbon Hill
Chambers County
Cherokee County
Chilton County
Clarke County
Clay County
Cleburne County
Coffee County
Colbert County
Conecuh County
Coosa County
Covington County
Cullman
Cullman County
Dale. County
Daleville
Dallas County
Decatur
DeKalb County
Demopolis
Dothan
Elba
Elmore County
Enterprise
Escambia County
Etowah County
Eufaula
Fayette County
Florala
Florence
Fort Payne
Franklin County
Geneva County
Greene County
Henry County
Houston County
Jackson County
J acksonville
Jasper
Lamar County
Lanett
Lauderdale County
Lee County
Limestone County
Linden
Marengo County
Marion
Marion County
Marshall County
Monroe County
Morgan County
Mountain Brook
Muscle Shoals
Oneonta
Opelika
Opp
Ozark
Phenix City
Pickens County
Piedmont
Pike County
423
Randolph County
Roanoke
Russell County
Russellville
St. Clair County
Tallapoosa County
Tallassee
Tarrant
Thomasville
Troy
Tuscaloosa
Tuscaloosa County
Tuscumbia
Walker County
Washington County
— 347-
Scottsboro
Selma
Sheffield
Shelby County
Sumter County
Svlacauga
Talladega Winston County
Winfield
Talladega County
The State Superintendent of Education shall inform
these local school systems that the desegregation plan is
to be adopted within 20 days from the entry of this decree;
and within 25 days from the entry of this decree the State
Superintendent shall submit a report to this Court and to
all parties informing them of the action taken by him to
discharge this obligation and the results of that action.
Institutions Under State Board of Education Control
No person shall be denied admission to any trade school,
junior college, or state college1 administered by the Ala
1 The term “state college,” as used herein, includes all state
colleges or universities except the University of Alabama, Auburn
University, University of South Alabama at Mobile, and Alabama
College at Montevallo, which institutions have separate boards
of trustees and are not administered by the Alabama State Board
of Education.
Y
424
bama State Board of Education upon the ground of race,
nor shall he be subjected to racial discrimination in con
nection with his application for enrollment in or his at
tendance at any such trade school, junior college, or state
college. Dual attendance zones based on race for such trade
schools, junior colleges, and state colleges shall be abol
ished. The State Department of Education shall direct
such trade schools, junior colleges, and state colleges to
recruit, hire, and assign teachers so as to desegregate
faculty and to accomplish some faculty desegregation in
each such trade school, junior college, and state college by
September 1967.
Equalisation of Facilities
The State Superintendent of Education shall develop,
and submit to this Court and all the parties within 120
days after the entry of this decree, a detailed program for
bringing the quality of the physical facilities, equipment,
services, courses of instruction, and instructional materials
of schools previously maintained for Negro students up
to the level in schools previously maintained for white
students. This program shall eliminate those disparities
reflected in different pupil-teacher ratios, survey classifica
tions of buildings and sites, per pupil expenditures, valua
tion of school property, library books per pupil, course
offerings, accreditation, and transportation. In connection
with applications for teacher units for vocational teachers
or teachers of exceptional children, the State Superinten
dent of Education shall consider and grant those applica
tions that satisfy educational requirements and had been
submitted before the entry of this decree on behalf of
425
schools traditionally maintained for Negro students, prior
to acting upon other applications for such units.
YII
Information and Reports
A. The State Superintendent of Education shall make,
at reasonable times and places, and upon reasonable no
tice, the following available to all parties:
1. All consolidation plans submitted to him by local
school boards pursuant to the requirements of para
graph A of Section I of this decree.
2. All survey reports hereafter conducted pursuant
to paragraph B of Section I of this decree.
3. All applications and records of action by the
State Superintendent of Education regarding the ap
proval or disapproval of school construction or ex
pansion, together with all information relating to the
—3 4 9 -
sites, including the pertinent survey reports.
4. All documents relating to teacher institutes and
to in-service training programs, including a report
giving the number of teachers that attended each in
stitute, the schools the teachers were from, and the
race of the teachers.
5. All proposals of the local school boards relating
to the routing of school buses and the criteria govern
ing eligibility for bus transportation that are sub
mitted to the State Superintendent for his approval
under paragraph C of Section III of this decree, to
gether with a report indicating which proposals have
426
been approved and when and how students and parents
in the various school systems throughout the State
were informed of these routes and criteria.
6. All records pertaining to action taken by the
State Superintendent of Education with respect to ap
plications for teacher units for teachers of exceptional
children and vocational education teachers.
7. Records indicating the State Superintendent’s
action with respect to provisional teaching certificates,
and a report indicating how applicants for certification
were informed of the obligation of the local systems
regarding faculty desegregation.
8. Records showing the attendance zones, bus
routes, racial composition of faculty, and racial com
position of student body for each trade school, junior
college, and state college.
B. The State Superintendent of Education shall sub
mit to the Clerk of this Court and serve upon all parties:
1. Within 60 days after the entry of this decree
the detailed program regarding faculty desegregation
required by paragraph A of Section II of this decree.
2. Within 120 days after the entry of this decree
— 350—
the detailed program regarding school equalization
required by Section VI of this decree.
3. Within 25 days after entry of this decree, a re
port on the action taken by the State Superintendent
of Education respecting the 99 school districts listed
in Section IV of this decree, and the results of that
action.
427
4. A report, which must be submitted by October 5
each year, setting forth the following information with
respect to the local school systems listed in Section
IV of this decree:
(a) The number of students by race, in each grade
of each school for the current school year ;
(b) The number of faculty members of each race
assigned to each school for the current school year,
together with the number of faculty vacancies or
new positions, by school, that have arisen or have
been filled by the school board since the last report;
and
(c) The number of students that have requested
to transfer from the schools they were assigned to,
together with a description of the action taken by
the local school board on such requests and the rea
sons therefor.
5. A report, which must be submitted on or before
June 15 of each year, setting forth the following in
formation with respect to each school system listed
in Section IV of this decree:
The number of choice applications received for
each grade, the number of choices granted and de
nied, and the reasons for all denials.
IX
Interference
The defendant state officials should not interfere with,
— 351—
prevent or obstruct by any means the elimination of racial
discrimination by local school officials in any school system
in the State of Alabama.
428
X
The 1965-1966 Tuition Grant Statute
Title 52, Section 61(8), Code of Alabama (Tuition Grant
Statute, No. 687, approved September 1, 1965), is hereby
declared unconstitutional. The defendant state officials,
their agents, employees, and successors in office shall not
approve or permit the approval or the payment of any
tuition grants or grants-in-aid under the authority of this
law.
It is further Okdered that the United States submit to
this Court within 30 days, and serve upon all parties, a
report informing the Court whether any of the school sys
tems listed in Section IV of this decree have failed, fol
lowing the entry of this Court’s decree, to adopt a satis
factory desegregation plan.
It is further O rdered that the costs of this action be
and they are hereby taxed against the defendant state of
ficials.
It is further Ordered that jurisdiction of this cause be
and it is hereby retained.
Done, this the 22nd day of March, 1967.
R ichard T. R ives
United States Circuit Judge
H. H. Grooms
United States District Judge
F r an k M. J oh nson , J r.
United States District Judge
429
EXHIBIT “A ”
Desegregation Plan
The .............................. Board of Education will take the
following affirmative action to disestablish all state en
forced or encouraged public school segregation and to
eliminate the effects of past state enforced or encouraged
racial discrimination in the operation of the school system:
I
Exercise of Choice
The following provisions will apply to all grades com
mencing with the 1967-68 school year:
A. Who May Exercise Choice. A choice of schools may
be exercised by a parent or other adult person serving as
the student’s parent. A student ma} ̂exercise his own choice
if he (1) is exercising a choice for the ninth or a higher
grade, or (2) has reached the age of fifteen at the time of
the exercise of choice. Such a choice by a student is con
trolling unless a different choice is exercised for him by
his parent or other adult person serving as his parent
during the choice period or at such later time as the stu
dent exercises a choice. Each reference in this plan to
a student’s exercising a choice means the exercise of the
choice, as appropriate, by a parent or such other adult, or
by the student himself.
B. Annual Exercise of Choice. All students, both white
and Negro, will be required to exercise a free choice of
schools annually.
— 352-
430
C. Choice Period. The period for exercising choice will
commence May 1, 1967, and end Jnne 1, 1967, and in sub
sequent years will commence March 1 and end March 31
preceding the school year for which the choice is to be
exercised. No student or prospective student who exer
cises his choice within the choice period will be given any
preference because of the time within the period when
such choice was exercised.
—353—
D. Mandatory Exercise of Choice. A failure to exercise
a choice within the choice period will not preclude any stu
dent from exercising a choice at any time before he com
mences school for the year with respect to which the choice
applies, but such choice may be subordinated to the choices
of students who exercised choice before the expiration of
the choice period. Any student who has not exercised his
choice of school within a week after school opens will be
assigned to the school nearest his home where space is
available under standards for determining available space
which will be applied uniformly throughout the system.
E. Public Notice. On or within a week before the date
the choice period opens, the school board will arrange for
the conspicuous publication of a notice describing the pro
visions of this plan in the newspaper most generally circu
lated in the community. The text of the notice will be
substantially similar to the text of the explanatory letter
sent home to parents. Publication as a legal notice will not
be sufficient. Copies of this notice will also be given at that
time to all radio and television stations serving the com
munity. Copies of this plan will be posted in each school
in the school system and at the office of the Superintendent
of Education.
431
F. Mailing of Explanatory Letters and Choice Forms.
On the first day of the choice period there will be distrib
uted an explanatory letter and a choice form to the parent
(or other adult person acting as parent, if known to the
school board) of each student, together with a return en
velope addressed to the Superintendent. The text for the
explanatory letter and choice form will essentially conform
to the sample letter and choice form appended to this plan.
G. Extra Copies of the Explanatory Letter and Choice
Form. Extra copies of the explanatory letter and choice
form will be freely available to parents, students, prospec
tive students, and the general public at each school in the
— 354-
system and at the office of the Superintendent of Educa
tion during the times of the year when such schools are
usually open.
H. Content of Choice Form. Each choice form will set
forth the name and location of and grades offered at each
school and may require of the person exercising the choice
the name, address, age of student, school and grade cur
rently or most recently attended by the student, the school
chosen, the signature of one parent or other adult person
serving as parent, or where appropriate the signature of
the student, and the identity of the person signing. No
statement of reasons for a particular choice, or any other
information, or any witness or other authentication, will
will be required or requested.
I. Return of Choice Form. At the option of the person
completing the choice form, the choice may be returned
by mail, in person, or by messenger to any school in the
school system or to the office of the Superintendent.
J. Choices Not on Official Form. The exercise of choice
may also be made by the submission in like manner of any
other writing which contains information sufficient to
identify the student and indicates that he has made a
choice of school.
Iv. Choice Forms Binding. When a choice form has
once been submitted and the choice period has expired,
the choice is binding for the entire school year and may
not be changed except in cases of parents making different
choices for their children under the conditions set forth
in paragraph I-A of this plan and in exceptional cases
where, absent the consideration of race, a change is edu
cationally called for or where compelling hardship is shown
by the student.
L. Preference in Assignment. In assigning students to
schools, no preference will be given to any student for prior
attendance at a school and except with the approval of
the State Superintendent of Education in extraordinary
circumstances, no choice will be denied for any reason
other than overcrowding. In case of overcrowding at any
school, preference will be given on the basis of proximity
— 355—
of the school to the homes of the students choosing it,
without regard to race or color. Standards for determin
ing overcrowding will be applied uniformly throughout the
system.
M. Second Choice Where First Choice Is Denied. Any
student whose choice is denied will be promptly notified in
writing and given his choice of any school in the school
system serving his grade level where space is available.
The student will have seven days from the receipt of notice
433
of a denial of first choice in which to exercise a second
choice.
N. Transportation. Where transportation is generally
provided, buses will be routed to the maximum extent fea
sible in light of the geographic distribution of students, so
as to serve each student choosing any school in the system.
Every student choosing the school nearest his residence
must be transported to the school to which he is assigned
under these provisions, whether or not it is his first choice,
if that school is at least two miles from his residence. The
school system will adopt nondiscriminatory bus routes
and criteria governing the availability of bus transporta
tion to students, so that race will not be a basis for as
signing students to school buses and overlapping and
duplicative bus routes based on race will be eliminated.
Prior to the choice period, parents and children will be
advised that such routes and criteria will be adopted, and
substantially prior to the opening of the 1967-68 school
year the parents and children will be notified of the routes
and criteria, in a readily understandable manner.
O. Officials Not to Influence Choice. At no time shall
any official, teacher, or employee of the school system in
fluence any parent, or other adult person serving as a
parent, or any student, in the exercise of a choice or favor
or penalize any persons because of a choice made. If the
school board employs professional guidance counselors,
— 356—
such persons will base their guidance and counseling on the
individual student’s particular personal, academic, and
vocational needs. Such guidance and counseling by teach
ers as well as professional guidance counselors will be
available to all students without regard to race or color.
434
P. Protection of Persons Exercising Choice. Within
their authority, school officials are responsible for the pro
tection of persons exercising rights under or otherwise
affected by this plan. They will, without delay, take ap
propriate action with regard to any student or staff mem
ber who interferes with the successful operation of the
plan. Such interference will include harassment, intimida
tion, threats, hostile words or acts, and similar behavior.
The school board will not publish, allow, or cause to be
published, the names or addresses of pupils exercising
rights or otherwise affected by this plan. If officials of
the school system are not able to provide sufficient protec
tion, they will seek whatever assistance is necessary from
other appropriate officials.
II
Prospective Students
Each prospective new student will be required to exer
cise a choice of schools before or at the time of enroll
ment. Each such student known to the school system will
be furnished a copy of the prescribed letter to parents,
and choice form, by mail or in person, on the date the
choice period opens or as soon thereafter as the school
system learns that he plans to enroll. Where there is no
preregistration procedure for newly entering students,
copies of the choice forms will be available at the office
of the Superintendent and at each school during the time
the school is usually open.
I l l
Services, Facilities, Activities And Programs
No student will be segregated or discriminated against
on account of race or color in any service, facility, activity,
435
or program (including transportation, athletics, or other
extra-curricular activity) that can be conducted or spon-
—357—
sored by or affiliated with the school in which he is en
rolled. A student attending school for the first time on
a desegregated basis will not be subject to any disqualifica
tion or waiting period for participation in activities and
programs, including athletics, which might otherwise apply
because he is a transfer or newly assigned student except
that such transferees shall be subject to longstanding,
nonracially based rules of city, county, or state athletic
associations dealing with the eligibility of transfer students
for athletic contests. All school use or school sponsored
use of athletic fields, meeting rooms, and all other school
related services, facilities, activities, and programs such
as commencement exercises and parent-teacher meetings
which are open to persons other than enrolled students,
will be open to all persons without regard to race or color.
All special educational programs conducted by the school
system will be conducted without regard to race or color.
IV
School Equalization
A. Inferior Schools. In schools heretofore maintained
for Negro students, the school system will take prompt
steps necessary to provide physical facilities, equipment,
courses of instruction, and instructional materials of qual
ity equal to that provided in schools previously maintained
for white persons. Conditions of overcrowding, as de
termined by pupil-teacher ratios and pupil-classroom ratios
will, to the extent feasible, be distributed evenly between
schools formerly maintained for Negro students and those
436
formerly maintained for white students. If for any reason
it is not feasible to improve sufficiently any school formerly
maintained for Negro students, where such improvement
would otherwise be required by this subparagraph, such
school will be closed as soon as possible, and students en
rolled in the school will be reassigned on the basis of
freedom of choice. By October of each year, the school
board will report to the State Superintendent of Educa
tion pupil-teacher ratios, pupil-classroom ratios, and per-
pupil expenditures both as to operating and capital im-
— 358—
provement costs, and will outline the steps to be taken
and the time within which they will accomplish the equaliza
tion of such schools.
B. Remedial Programs. The school system will provide
remedial education programs which permit students at
tending or who have previously attended all-Negro schools
to overcome past inadequacies in their education.
V
School Construction And Consolidation
To the extent consistent with the proper operation of
the school system as a whole, the school board will, in
locating and designing new schools, in expanding existing
facilities, and in consolidating schools, do so with the ob
ject of eradicating past discrimination and of effecting
desegregation. The school board will not build, consoli
date or expand schools based on recommendations of any
state survey conducted prior to March 1967 unless the
state reapproves such building, consolidation or expan
sion. The school board will not fail to consolidate schools
because desegregation would result.
437
VI
Faculty And Staff
A. Faculty Employment and Assignment. Race or
color will not be a factor in the hiring, assignment, reas
signment, promotion, demotion, or dismissal of teachers
and other professional staff members, including student
teachers, except that race will be taken into account for
the purpose of correcting the effect of the past segregated
assignment of teachers in the dual system. Teachers, prin
cipals, and staff members will be assigned to schools so
that the faculty and staff is not composed exclusively of
members of one race. Wherever possible, teachers will be
assigned so that more than one teacher of the minority
race (white or Negro) will be on a desegregated faculty.
The school board will take affirmative steps to accomplish
the desegregation of its school faculties, including substan
tial desegregation of faculties in as many of the schools as
possible for the 1967-68 school year. The objective of the
—3 5 9 -
school system is that the pattern of teacher assignment to
any particular school shall not be identifiable as tailored
for a heavy concentration of either Negro or white pupils
in the school. The school system will accomplish faculty
desegregation in a manner whereby the abilities, experi
ence, specialties, and other qualifications of both white
and Negro teachers in the system will be, insofar as ad
ministratively feasible, distributed evenly among the vari
ous schools of the system.
B. Dismissals. Teachers and other professional staff
members will not be discriminatorily assigned, dismissed,
demoted, or passed over for retention, promotion, or re
438
hiring, on the ground of race or color. In any instance
where one or more teachers or other professional staff
members are to be displaced as a result of desegregation,
no staff vacancy in the school system will be tilled through
recruitment from outside the system unless no such dis
placed staff member is qualified to fill the vacancy. If, as
a result of desegregation, there is to he a reduction in the
total professional staff of the school system, the qiialifica-
tions of all staff members in the system will be evaluated
in selecting the staff member to be released without con
sideration of race or color. A report containing any such
proposed dismissals, and the reasons therefor, shall be
filed with the State Superintendent of Education.
V II
Reports
A. Report on Choice Period. The school system will
file with the State Superintendent of Education on or be
fore June 10 of each year a report tabulating by race the
number of choice applications and transfer applications
received for enrollment in each grade in each school in
the system, and the number of choices and transfers
granted and the number of denials in each grade of each
school. The report will also state any reasons relied upon
in denying choice and shall tabulate, by school and by race
of student, the number of choices and transfers denied for
each such reason.
—360—
B. Report After School Opening. The system will file
with the State Superintendent of Education within 15 days
after the opening of schools for the fall semester of each
year a report setting forth the following information:
439
(1) The name, address, grade, school of choice and
school of present attendance of each student who has
withdrawn or requested withdrawal of his choice of
school or who has transferred after the start of the
school year, together with a description of any action
taken on his request and the reasons therefor.
(2) The number of faculty vacancies, by school,
that have occurred or been filled since the adoption of
this plan or the latest report submitted pursuant to
this subparagraph. This report shall state the race
of the teacher employed to fill each such vacancy and
indicate whether such teacher is newly employed or
was transferred from within the system. The tabula
tion of the number of transfers within the system
shall indicate the schools from which and to which the
transfers were made. The report shall also set forth
the number of faculty members of each race assigned
to each school for the current year.
(3) The number of students by race, in each grade
of each school.
440
EXPLANATORY LETTER
(School System Name and Office Address)
(Date Sent)
Dear Parent:
All grades in onr school system will be desegregated
next school year. Any student who will be entering one
of these grades next year may choose to attend any school
in our system, regardless of whether that school was
formerly all white or all Negro. It does not matter which
school your child is attending this year. You and your
child may select any school you wish.
Every student, white and Negro, must make a choice of
schools. If a child is entering the ninth or higher grade,
or if the child is fifteen years old or older, he may make
the choice himself. Otherwise a parent or other adult serv
ing as parent must sign the choice form. A child enrolling
in the school system for the first time must make a choice
of schools before or at the time of his enrollment.
The form on which the choice should be made is attached
to this letter. It should be completed and returned by June
1, 1967.* You may mail it in the enclosed envelope, or
deliver it by messenger or by hand to any school principal
or to the office of the Superintendent at any time between
May 1 and June 1. No one may require you to return your
choice form before June 1 and no preference is given for
returning the choice form early.
* In subsequent years the dates in both the explanatory letter
and the choice form should be changed to conform to the choice
period.
— 361—
441
Js o principal, teacher or other school official is per
mitted to influence anyone in making a choice or to require
early return of the choice form. No one is permitted to
favor or penalize any student or other person because of a
choice made. A choice once made cannot be changed except
for serious hardship.
— 3 6 2 -
No child will be denied his choice unless for reasons
of overcrowding at the school chosen, in which case children
living nearest the school will have preference.
Transportation will be provided, if reasonably possible,
no matter what school is chosen. The school board is re
routing buses and writing new rules for assigning students
to buses, so that there will be no more overlapping bus
routes and students will be assigned to buses without re
gard to race. (Delete if the school system does not pro
vide transportation.)
Your school board and the school staff will do every
thing we can to see to it that the rights of all students are
protected and that desegregation of our schools is carried
out successfully.
Sincerely,
Superintendent
442
CHOICE FORM
This form is provided for you to choose a school for
your child to attend next school year. You have 30 days
to make your choice. It does not matter which school your
child attended last year, and does not matter whether the
school you choose was formerly a white or a Negro school.
This form must be mailed or brought to the principal of
any school in the system or to the office of the Super
intendent (address), by June 1, 1967. A choice is required
for each child.
Name of child .............................................................................
(Last) (First) (Middle)
- 363-
Address .................................................................
Name of parent or other
adult serving as parent ...................................
I f child is entering first grade, date of birth:
(Month) (Day) (Year)
Grade child is entering ...
School attended last year
443
Choose one of the following schools by marking an X beside
the name.
Grades
Name of school Offered Location
( ) ............................................................................ .....................
( ) (All schools in the district, the grades offered by
( ) each, and the location of each will be listed on the
( ) form prior to its distribution to parents and stu-
( ) dents.)
( ) ................... ............................................................................
Signature
Date
To be filled in by Superintendent:
School assigned
444
Order to Adopt Plan for Desegregation
(Filed June 1,1967)
- 364-
I n th e
UNITED STATES DISTRICT COURT
F oe th e M iddle D istrict of A labama
N orthern D ivision
A rlam Carr, E t A l .,
vs.
Plaintiffs,
M ontgomery Cou nty B oard of E ducation ; James W . R u t
lan d , J r ., F red B ear, George C. S tarke, George A.
D ozier, D r . J . E dward W alker , I sabelle B. T homasson
and D r . R obert P arker, Members of the Montgomery
County Board of Education; and W alter M cK ee, Su
perintendent of Education of Montgomery County,
Defendants,
U nited S tates of A merica,
Amicus Curiae.
DECREE
Upon a hearing pursuant to this Court’s order of April
28, 1967, directing the defendant school system to show
cause why it should not be required to adopt a desegrega
tion plan which conforms with the standards embodied in
United States and Linda Stout, et al. v. Jefferson County
Board of Education, et al., Fifth Circuit No. 23345, Dec.
29, 1966 (adopted with modifications by the Court, sitting
445
en banc, March 29, 1967), and in Exhibit “ A ” attached to
this Court’s decree of March 22,1967, in the case of Anthony
T. Lee, et al. v. Macon County Board of Education, et al.
(Civil Action No. 604-E, three-judge court), it is hereby
Ordered, A djudged and D ecreed that the defendants,
their agents, officers, employees and successors, and all
those in active concert or participation with them, shall
adopt and implement the attached plan for the desegrega
tion of the public school system of Montgomery County,
Alabama. It is further
Ordered that this Court specifically retain jurisdiction
of this cause.
Done, this the 1st day of June, 1967.
F ran k M. J oh nson , Jr.
United States District Judge
446
DESEGREGATION PLAN
The Montgomery County Board of Education will take
the following affirmative action to disestablish all state
enforced or encouraged public school segregation and to
eliminate the effects of past state enforced or encouraged
racial discrimination in the operation of the school system:
I
Exercise Of Choice
The following provisions will apply to all grades com
mencing with the 1967-68 school year:
A. Who May Exercise Choice. A choice of schools may
be exercised by a parent or other adult person serving as
the student’s parent. A student may exercise his own
choice if he (1) is exercising a choice for the ninth or a
higher grade, or (2) has reached the age of fifteen at the
time of the exercise of choice. Such a choice by a student is
controlling unless a different choice is exercised for him
by his parent or other adult person serving as his parent
during the choice period or at such later time as the stu
dent exercises a choice. Each reference in this plan to a
student’s exercising a choice means the exercise of the
choice, as appropriate, by a parent or such other adult,
or by the student himself.
B. Annual Exercise of Choice. All students, both white
and Negro, will be required to exercise a free choice of
schools annually.
C. Choice Period. The period for exercising choice will
commence March 1 and end March 30 preceding the school
- 365-
447
year for which the choice is to be exercised. No student or
prospective student who exercises his choice within the
choice period will he given any preference because of the
time within the period when such choice was exercised.
D. Mandatory Exercise of Choice. A failure to exercise
a choice within the choice period does not preclude any
student from exercising a choice at any time before he com
mences school for the year with respect to which the choice
applies, but such choice may be subordinated to the choice
of students who exercised choice before the expiration of
the choice period. Any student who has not exercised his
choice of school within a week before school opens will be
assigned to the school nearest his home where space is avail
able under standards for determining available space which
will be applied uniformly throughout the system.
— 366—
E. Public Notice. On, or within a week before, the date
the choice period opens, the school board will arrange for
the conspicuous publication of a notice describing the pro
visions of this plan in the newspaper most generally cir
culated in the community. The text of the notice will be
substantially similar to the text of the explanatory letter
sent home to parents. Publication as a legal notice will
not be sufficient. Copies of this notice will also be given
at that time to all radio and television stations serving the
community. Copies of this plan will be posted in each
school in the school system and at the office of the Super
intendent of Education.
F. Distribution of Explanatory Letters and Choice
Forms. On the first day of the choice period there will be
distributed an explanatory letter and a choice form (Ap
448
pendices A and B) to the parent (or other adult person
acting as parent, if known to the school board) of each
student. The distribution of the explanatory letter and
choice form may be either by mail or by handing them to
the student for delivery to the parent, or other adult person
acting as parent. Regardless of the method of distribution,
the affirmative duty of securing a choice form from each
student is upon the defendants. The text for the explana
tory letter and choice form will essentially conform to the
sample letter and choice form appended to this plan. Extra
copies of the explanatory letter and choice form will be
freely available to parents, students, prospective students,
and the general public at each school in the system and at
the office of the Superintendent of Education.
G. Return of Choice Form. At the option of the person
completing the choice form, the choice may be returned by
mail, in person or by messenger to any school in the school
system or to the office of the Superintendent.
H. Choices Not on Official Form. The exercise of choice
may also be made by the submission in like manner of any
other Avriting which contains information sufficient to iden
tify the student and indicates that he has made a choice
of school.
I. Choice Forms Binding. Once a choice form has been
submitted it is binding for the entire school year, and may
not be changed except in cases of parents making different
choices for their children under the conditions set forth
in paragraph I-A of this plan and in cases where, absent
the consideration of race, compelling hardship is shown
by the student.
449
J. Preference in Assignment. In assigning students to
- 3 6 7 -
schools, no preference will be given to any student for
prior attendance at a school and except with the approval
of the Court in extraordinary circumstances no choice will
be denied for any reason other than overcrowding. In case
of overcrowding at any school, preference will be given
on the basis of proximity of the school to the homes of
the students choosing it, without regard to race or color.
Standards for determining overcrowding will be applied
uniformly throughout the system. All existing attendance
areas as defined by district lines and feeder school descrip
tions will be abolished effective 1967.
K. Second Choice Where First Choice Is Denied. Any
student whose choice is denied will be promptly notified
in writing and given his choice of any school in the school
system serving his grade level where space is available.
The student will have seven calendar days from and after
the opening of school in which to exercise a second choice.
L. Transportation. Where transportation is generally
provided, buses will be routed to the maximum extent fea
sible in light of the geographic distribution of students, so
as to serve each student choosing any school in the system.
Every student choosing either the formerly white or the
formerly Negro school nearest his residence must be trans
ported to the school to which he is assigned under these
provisions, whether or not it is his first choice, if that school
is sufficiently distant from his home to make him eligible
for transportation under generally applicable transporta
tion rules. The school system will adopt nondiscriminatory
bus routes and criteria governing the availability of bus
450
transportation to students, so that race will not be a basis
for assigning students to school buses and overlapping
and duplicative bus routes based on race will be eliminated.
Prior to the choice period, parents and children will be
advised that such routes and criteria will be adopted, and
substantially prior to the opening of the 1967-68 school
year the parents and children will be notified of the routes
and criteria, in a readily understandable manner.
M. Officials Not to Influence Choice. At no time shall
any official, teacher, or employee of the school system influ
ence any parent, or other adult person serving as a parent,
or any student, in the exercise of a choice or favor or
penalize any person because of a choice made. After the
expiration of the choice period, the school system will
make all reasonable efforts to obtain a completed choice
form from each student who has not exercised a choice.
I f the school board employs professional guidance coun
selors, such persons will base their guidance and counseling
on the individual student’s particular, personal, academic,
— 368—
and vocational needs. Such guidance counselors will be
available to all students without regard to race or color.
N. Protection of Persons Exercising Choice. Within
their authority, school officials are responsible for the pro
tection of persons exercising rights under or otherwise
affected by this plan. They will, without delay, take ap
propriate action with regard to any student or staff mem
ber who interferes with the successful operation of the
plan. Such interference will include harassment, intimida
tion, threats, hostile words or acts, and similar behavior.
The school board will not publish, allow, or cause to be
451
published, the names or addresses of pupils exercising
rights or otherwise affected by this plan. If officials of the
school system are not able to provide sufficient protection,
they will seek whatever assistance is necessary from other
appropriate officials.
II
Prospective Students
Each prospective new student will be required to exercise
a choice of schools before or at the time of enrollment.
Each such student known to the school system will be
furnished, by mail or in person, a copy of the prescribed
letter to parents and the choice form on the date the
choice period opens, or as soon thereafter as the school
system learns that he plans to enroll. Where there is no
preregistration procedure for newly entering students,
copies of the choice forms will be available at the office of
the Superintendent and at each school during the time the
school is usually open.
I l l
Services, Facilities, Activities and Programs
No student will be segregated or discriminated against
on account of race or color in any service, facility, ac
tivity, or program (including transportation, athletics, or
other extracurricular activity) that may be conducted or
sponsored by or affiliated with the school in which he is
enrolled. A student attending school for the first time on
a desegregated basis will not be subject to any disqualifica
tion or waiting period for participation in activities and
programs, including athletics, which might otherwise apply
because he is a transfer, or newly assigned, student. All
452
school use or school sponsored use of athletic fields, meet
ing rooms, and all other school related services, facilities,
activities, and programs such as commencement exercises
and parent-teacher meetings which are open to persons
other than enrolled students will be open to all persons
without regard to race or color. All special educational
—3 6 9 -
programs conducted by the school system will be conducted
without regard to race or color.
IV
School Equalization
Prior to the commencement of the 1967-68 school year,
the following schools will be discontinued as educational
facilities:
Alice White
Arrington
Big Zion
Tankersley
Chappell Gray
G. W. Trenholm
Lillian Dabney
Lillian Dungee
Waugh
Woodley
Zion Hill
McLean
McLemore
Mt. Zion Road
The Montgomery County Board will design and provide
remedial education programs to eliminate the effects of past
discrimination, particularly, the results of the unequal
and inferior educational opportunities which have been
offered in the past to Negro students in the Montgomery
County school system.
Students displaced as a result of the closing of the above-
listed schools will be assigned to schools, without regard
to race or color, on a freedom of choice basis as described
in this plan.
453
Expansion of existing school plants to accommodate
displaced students will be designed to eliminate the dual
school system. In the remaining schools heretofore main
tained for Negro students, the school system will take
promptly the steps necessary to provide physical facili
ties, equipment, courses of instruction, and instructional
materials of quality equal that provided in schools pre
viously maintained for white persons. Conditions of over
crowding, as determined by pupil-teacher ratios will, to
the extent feasible, be distributed evenly between schools
formerly maintained for Negro students and those for
merly maintained for white students. If for any reason
it is not feasible to improve sufficiently any school for
merly maintained for Negro students, where such improve
ment would otherwise be required by this subparagraph,
such school will be closed as soon as possible, and students
reassigned on the basis of freedom of choice. By October
of each year, the school board will report to the Court
pupil-teacher ratios, pupil-classroom ratios, and
(Copy illegible)
— 370—
V
School Construction and Consolidation
To the extent consistent with the proper operation of the
school system as a whole, the school board will, in locating
and designing new schools, in expanding existing facilities,
and in consolidating schools, do so with the object of erad
icating past discrimination and of effecting desegregation.
The school board will not build, consolidate or expand
schools based on recommendations of any state survey
454
conducted prior to March, 19G7, unless the state reapproves
such building, consolidation or expansion. The school board
will not fail to consolidate schools because desegregation
would result.
VI
Faculty and Staff
A. Faculty Employment and Assignment. Race or color
will not be a factor in the hiring, assignment, reassignment,
promotion, demotion or dismissal of teachers and other
professional staff members, including student teachers, ex
cept that race will be taken into account for the purpose
of counteracting or correcting the effect of the past seg
regated assignment of teachers in the dual system. Teach
ers, principals, and staff members will be assigned to
schools so that the faculty and staff is not composed ex
clusively of members of one race. Wherever possible, teach
ers will be assigned so that more than one teacher of the
minority race (white or Negro) will be on a desegregated
faculty. The school board will take positive and affirma
tive steps to accomplish the desegregation of its school
faculties, including substantial desegregation of faculties
in as many of the schools as possible for the 1967-68 school
year, notwithstanding that teacher contracts for the 1967-
68 or 1968-69 school year have already been signed and
approved. The objective of the school system is that the
pattern of teacher assignment to any particular school shall
not be identifiable as tailored for a heavy concentration of
either Negro or wdiite pupils in the school. The school
system will accomplish faculty desegregation in a manner
whereby the abilities, experience, specialties, and other
qualifications of both white and Negro teachers in the sys
455
tem will be, insofar as administratively feasible, distributed
evenly among the various schools of the system.
B. Dismissals. Teachers and other professional staff
members will not be discriminatorily transferred, dismissed,
demoted, or passed over for retention, probation, or re
hiring on the ground of race or color. In any instance,
— 371—
where one or more teachers or other professional staff
members are to be displaced as a result of desegregation,
no staff vacancy in the school system will be filled through
recruitment from outside the system unless no such dis
placed staff member is qualified to fill the vacancy. If,
as a result of desegregation, there is to be a reduction
in the total professional staff of the school system, the
qualifications of all staff members in the system will be
evaluated in selecting the staff member to be released with
out consideration of race or color. A report containing
any such proposed dismissals, and the reasons therefor,
shall be filed with the Court, and copies served upon op
posing counsel within five (5) days after such dismissal,
demotion, etc., is proposed.
C. Notice to Neic Staff Members. In the recruitment and
employment of teachers and other professional personnel,
all applicants or other prospective employees will be in
formed that Montgomery County operates a racially de
segregated school system and that members of its staff
are subject to assignment in the best interest of the sys
tem and without regard to the race or color of the par
ticular employee.
D. Encouragement of Voluntary Faculty Transfers.
The Superintendent of Schools and his staff will take
456
affirmative steps to solicit and encourage teachers presently
employed to accept transfers to schools in which the ma
jority of the faculty members are of a race different from
that of the teacher to be transferred.
V II
Reports to the Court
A. Report on Choice Period. The defendants shall serve
upon the opposing parties and file with the Court on or
before June 7 each year a report tabulating by race the
number of choice applications and transfer applications
received for enrollment in each grade in each school in the
system, and the number of choices and transfers granted
and the number of denials in each grade of each school.
The report will also state any reasons relied upon in deny
ing choice and shall tabulate, by school and by race of
student, the number of choices and transfers denied for
each such reason.
B. Report on Faculty Assignments. The school officials
will report to the Court by June 15, and each such date
until further order by this Court, the planned assignments
of professional staff to each school for the next school year
by race and grade or, where appropriate, by subject taught
— 372—
or position held and report, as it occurs, any subsequent
change in planned staff assignments affecting staff de
segregation.
C. Report After School Opening. The system will file
with the Court within fifteen (15) days after the opening
of schools for the fall semester of each year a report
setting forth the following information:
457
(1) The name, address, grade, school of choice and
school of present attendance of each student who has
withdrawn or requested withdrawal of his choice of
school or who has transferred after the start of the
school year, together with a description of any action
taken on his request and reasons therefor.
(2) The number of faculty vacancies, by school, that
have occurred or been filled since the adoption of this
plan or the latest report submitted pursuant to this
subparagraph. This report shall state the race of the
teacher employed to fill each such vacancy and indi
cate whether such teacher is newly employed or was
transferred from within the system. The tabulation
of the number of transfers within the system shall
indicate the schools from which and to which the trans
fers were made. The report shall also set forth the
number of faculty members of each race assigned to
each school for the current year.
(3) The number of students, by race, in each grade
of each school.
458
APPENDIX A
E xplanatory L etter
(School System Name and Office Address)
(Date Sent)
Dear Parent:
All grades in onr school system will be desegregated
next school year. Any student who will be entering one of
these grades next year may choose to attend any school
in our system, regardless of whether that school was
formerly all white or all Negro. It does not matter which
school your child is attending this year. You and your child
may select any school you wish.
All students, both white and Negro, must make a choice
of schools. If a child is entering the ninth or higher grade,
or if the child is fifteen years old or older, he may make
the choice himself. Otherwise a parent or other adult serv
ing as parent must sign the choice form. A child enrolling
in the school system for the first time must make a choice
of schools before or at the time of his enrollment.
The form on which the choice should be made is attached
to this letter. It should be completed and returned by
March 31, 1968.* You may mail it, or deliver it by mes
senger or by hand to any school principal, or to the office
of the Superintendent at any time between March 1 and
March 31. No one may require you to return your choice
- 373-
* In subsequent years the dates in both the explanatory letter
and the choice form should be changed to conform to the choice
period.
459
form before March 31 and no preference is given for re
turning the choice form early.
No principal, teacher or other school official is permitted
to influence anyone in making a choice or to require early
return of the choice form. No one is permitted to favor
or penalize any student or other person because of a choice
made. A choice once made cannot be changed except for
serious hardship.
No child will be denied his choice unless for reasons
of overcrowding at the school chosen, in which case children
living nearest the school will have preference.
Transportation will be provided, if reasonably possible,
no matter what school is chosen. The school board is re
routing buses and writing new rules for assigning students
to buses so that there will be no more overlapping bus routes
—374—
and students will be assigned to buses without regard
to race.
Your school board and the school staff will do every
thing we can to see to it that the rights of all students are
protected and that desegregation of our schools is carried
out successfully.
Sincerely,
Superintendent
460
APPENDIX B
Choice F orm
This form is provided for you to choose a school for your
child to attend next school year. You have 30 days to make
your choice. It does not matter which school your child
attended last year, and does not matter whether the school
you choose was formerly a white or a Negro school. This
form must be mailed or brought to the principal of any
school in the system or the office of the Superintendent
(address), by March 31, 1968. A choice is required for
each child.
Name of child .............................................................................
(Last) (First) (Middle)
- 375-
Address ...............................................................
Name of Parent or other
adult serving as parent ..................................
I f child is entering first grade, date of birth:
(Month) (Day) (Year)
Grade child is entering......................................................
School attended last year ................................................
461
Choose one of the following schools by marking
an X beside the name.
Grades
Name of School Offered Location
( ) ........................................................................................................
( ) (All schools in the district, the grades offered by
( ) each, and the location of each will be listed on the
( ) form prior to its distribution to parents and
( ) students.)
( ) ........................................................................................................
Signature
Date
To be filled in by Superintendent:
School assigned
462
- 3 7 6 -
Amicus Curiae Notice of Motion and Motion for
Further Relief
(Filed August 17, 1967)
In th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
T o : T h e A ttorneys of R ecord H erein
P lease take notice th at on , 1967,
at M., or as soon thereafter as counsel may be heard,
in the courtroom of the United States District Court for
the Middle District of Alabama, Federal Courthouse Build
ing, Montgomery, Alabama, the United States, Amicus
Curiae herein, will move the Court for an order further
enjoining the defendants from failing to make additional
assignments and reassignments of faculty members in
the Montgomery County, Alabama, public school system
for the purpose of achieving substantial faculty desegre
gation by the 1967-68 school year and as grounds therefor,
states that:
— 377—
1. On June 1, 1967, the Court entered an order after
hearing on its order to shoiv cause dated April 28, 1967,
which provided, inter alia, for substantial desegregation
of the Montgomery County school system for the 1967-68
school year.
2. On June 15, 1967, the defendants submitted a report
on the anticipated faculty assignments for the 1967-68
463
school year by school and race. That report shows that
of the 804 white teachers assigned for the 1967-68 school
year, 5 are anticipated to be teaching in two Negro high
schools, and that of 554 Negro teachers, 5 are anticipated
to be teaching in two predominantly white high schools.
3. From June 15, 1967 through August 15, 1967, only
three additional faculty assignments have been made which
have the effect of desegregating the faculties in the Mont
gomery County public school system.
4. This motion is based upon the pleadings, evidence
and reports on file in this case and upon evidence to be
adduced at the hearing on this motion.
J o h n D oak
Assistant Attorney General
R euben Obtenbeeg
Attorney
Department of Justice
- 3 7 8 -
Certificate of Service (omitted in printing)
464
Plaintiffs’ Joining in Motion
(Filed August 30,1967)
U. S. DISTRICT COURT
F or M iddle D istrict of A labama
N orth D ivision
—379—
Now comes the Plaintiffs in the above entitled cause and
join with the United States in praying for the relief set
forth in its motion filed on August 17, 1967.
Respectfully submitted,
Gray & S eay
Certificate of Service (omitted in printing)
465
Answer to Motion
(Filed September 1,1967)
In th e
UNITED STATES DISTRICT COURT
F ob th e M iddle D istbict of A labama
N obthebn D ivision
Now comes the Montgomery County Board of Education,
et al., defendants in the above entitled cause, and in response
to the motion for further relief heretofore filed by the
Amicus Curiae, United States of America, respectfully
represents and shows unto the Court as follows:
1. The defendants, pursuant to the order of the Court
dated June 1, 1967, did, on June 15, 1967, file a report with
the Court showing that for the 1967-68 school year the
Montgomery County Board of Education has employed
three white teachers to predominantly Negro Booker Wash
ington High School; two white teachers to the predomi
nantly Negro Carver High School; three Negro teachers to
the predominantly white Lanier High School; and two
Negro teachers to the predominantly white Lee High
School. A copy of this said report is attached hereto and
made a part hereof as “ Exhibit A ” as if set forth fully
herein.
A copy of this said report was served on the United
States of America and on the attorneys for the plaintiff
by mailing a copy of same to them on June 15, 1967, postage
prepaid.
2. These defendants further state to the Court that they
have diligently endeavored to accomplish faculty and staff
desegregation of the Montgomery County School System.
- 380-
466
These defendants aver that in view of all circumstances
—381—
and since the 1967-68 school year is the first year for faculty
and staff desegregation in the County, the report as filed
does show a substantial and good faith compliance with
this Court’s order.
3. These defendants further show that in further efforts
to comply in good faith with the orders of this Court, the
defendants have taken additional positive and affirmative
steps to accomplish desegregation of faculty by employing
three white speech teachers to work in all elementary
schools regardless of race or color. That all substitute
teachers are listed alphabetically regardless of race or
color and these lists will be furnished to all principals of
all schools. The average number of substitute teachers em
ployed in the system on a school day is 31.
4. These defendants aver that they have accomplished
all of the desegregation of faculty as is possible for the
1967-68 school year; that faculty reassignment or re-em
ployment at this time would be impossible, consistent with
the best interests of the education of all of the children of
this County, regardless of race.
5. These defendants aver that neither the United States
of America, Amicus Curiae, nor the plaintiffs, made any
objection to the report heretofore filed on June 15, 1967,
until the date of August 17, 1967, approximately two weeks
prior to the opening of school and two months after said
report was filed. Defendants further aver that students
will commence attendance for the 1967-68 school term on
September 7, 1967, and faculty meetings in the school sys
tem with room assignments and equipment assignments
have already been made.
6. The defendants further aver that the placement of
faculty and the employment of teachers is of the utmost
importance to the school system and that in accomplish
ment of this the most diligent care must be exercised. These
— 3 8 2 -
defendants aver and state to the Court that they have
employed teachers and made assignments, as referred to
hereinabove, in a bona tide effort to comply with the Court
order and to maintain a quality school system in the best
interests of all school children of this County, regardless
of race or color.
W herefore, P remises Considered, these defendants pray
that the Court will dismiss the motion for further relief
or, in the alternative, will deny the relief therein prayed
for.
H ill , R obison, B elser and P helps
Attorneys for the Defendant
Certificate of Service (omitted in printing)
468
EXHIBIT “ A ”
— 383—
Montgomery Public Schools
Teaching Staff Assignments as of June 15, 1967
School Negro W hite Total Grades
Baldwin Jr. High 31 31 7-9
Bear 19 19 1-6
Bellinger Hill 8 8 1-6
Bellinger Jr. High 45 45 1-9
Billingslea 7 7 1-6
Booker Washington
Elem. 17 17 1-6
Booker Washington
Jr. High 30 30 7-9
Booker Washington
Sr. High 32 3 C l) 35 10-12
Capitol Heights
Elem. 17 17 1-6
Capitol Heights
Jr. High 35 35 7-9
Carver Elementary 24 24 1-6
Carver Jr. High 24 24 7-9
Carver Sr. High 53 2 ( * 2 ) 55 10-12
Catoma 9 9 1-6
Chilton 8 8 1-6
Chisholm 25 25 1-6
Cloverdale
Jr. High 36 36 1-9
Daisy Lawrence 28 28 1-6
Dalraida 19 19 1-6
469
School Negro W hite Total Grades
Dannelly 23 23 1-6
Davis 22 22 1-6
Dunbar High 45 45 1-12
Fews 26 26 1-6
Flowers 25 25 1-6
Floyd Jr. High 44 44 1-9
Forest Avenue 11 11 1-6
George Washington
High 46 46 1-12
Goode Street 8 8 1-6
Godwyn Jr. High 42 42 7-9
Hale 20 20 1-6
Harrison 23 23 1-6
Hayneville Road
Jr. High 44 44 1-9
Head 17 17 1-6
Highland Avenue 13 13 1-6
Highland Gardens 23 23 1-6
Houston Hill 15 15 7-9
Johnson 24 24 1-6
Lanier 3 (*3) 102 105 10-12
Lee 2 (*4) 82 84 10-12
Loveless 44 44 1-9
McDavid 22 22 1-6
McIntyre Elem. 30 30 1-6
McIntyre Jr. High 7 7 7-9
MacMillan 13 13 1-6
Madison Park 10 10 1-6
Montgomery
Co. High 19 19 1-12
470
School Negro W hite Total Grades
Morningview 17 17 1-6
Paterson 25 25 1-6
Pendar Street 21 21 1-6
Pike Road 7 7 1-9
Pine Level 3 3 1-6
Pintlala 8 8 1-9
#1 One teacher English, Grades 10 ,11 and 12.
One teacher English, and Social Studies, Grades 10, 11 and 12.
One teacher Commercial Subjects, Grades 10, 11 and 12.
* 2 One teacher Military Science, Grades 10, 11 and 12.
One teacher Social Studies, Grades 10, 11 and 12. *
*3 One teacher Military Science, Grades 10, 11 and 12.
One teacher Commercial Subjects, Grades 10, 11 and 12.
One teacher Heath & Physical Education, Grades 10 ,11 and 12.
*4 One teacher Commercial Subjects, Grades 10, 11 and 12.
2 IL L E G IB L E L IN E S— P L E A S E SU PPLY
471
Notice of Taking Discovery Deposition
(Filed January 30,1968)
— 384-
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
To :
Fred D. Gray, Esq.
34 N. Perry Street
Montgomery, Alabama
Vaughn Hill Robison, Esq.
Hill, Robison, Belser & Phelps
P. 0. Box 901
Montgomery, Alabama
P lease take notice that the United States, amicus curiae
herein, will take the deposition, for the purpose of dis
covery, of Walter T. McKee, Superintendent of Education
for Montgomery County, at 1:30 P.M. January 31, 1968 at
the office of the Montgomery County Board of Education,
305 South Lawrence Street, Montgomery, Alabama. The
deposition will continue from day to day until completed.
—385—
You are invited to attend and cross-examine.
F r an k D . A lle n , Jr .
Attorney
U. S. Dept, of Justice
Certificate of Service (omitted in printing)
472
Fur ther Answer to Motion
(Filed February 1,1968)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
Now comes the Montgomery County Board of Education,
et al., the defendants in the above entitled cause and in fur
ther response to the motion for further relief heretofore
filed on August 17, 1967, by the Amicus Curiae, the United
States of America, respectfully represent and show unto
the Court as follows:
1. That since the filing on September 1, 1967, of the de
fendants’ answer to the said motion for further relief the
defendants have employed seven replacement teachers
which have been assigned to faculties in schools of this
system which are attended by students predominantly of
the opposite race. There is presently a total of thirty-two
faculty employees teaching in schools predominantly of the
opposite race.
2. That substitute teachers of an undetermined number
have been employed during the 1967-68 term to teach in
schools where students of the opposite race are predomi
nant.
3. That Negro student teachers are practice teaching in
the 1967-68 term in schools which are attended predomi
nantly by white students.
— 386-
473
4. These defendants aver that they have accomplished
all of the desegregation of faculty that is possible for the
1967-68 school term; that insofar as possible they will con
tinue in their efforts to further desegregate the faculty;
—387—
that faculty reassignment or re-employment at this time
would be impossible consistent with the best interest of
the education of all of the children of this County regard
less of race; that there are no promotions in any of the
elementary or junior high schools in this system during the
term; that there are no promotions from elementary to
junior high school during a nine month term; that no new
or additional grades are begun in elementary or junior
high schools during a nine month term.
5. These defendants further state to the Court that they
are diligently endeavoring to accomplish further faculty
and staff desegregation in the Montgomery County School
System for the 1968-69 school year; that in the 1968-69
school year there will be further faculty and staff desegre
gation in this County and that they are in good faith com
pliance with this Court’s Order. 6
6. These defendants further aver that the placement of
faculty and the employment of teachers is of the utmost
importance to the school system and that in the accom
plishment of this, the most diligent care must be exercised.
These defendants aver that they have employed teachers
and have made assignments in a bona fide effort to comply
with this Court’s Order to discharge the affirmative duty
placed on them by law to desegregate the faculty of this
school system and to maintain a quality school system in
474
the best interest of all children in this County, regardless
of race or color.
W herefore, these defendants pray that this Court will
dismiss the motion for further relief or, in the alternative
will deny the relief therein prayed for.
H tt.t., R obison, B elser and P helps
Attorneys for Defendants
Certificate of Service (omitted in printing)
- 388-
475
—3 8 9 -
Amicus Curiae Notice of Motion and Motion for
Further Relief
(Filed February 7, 1968)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labam a
N orthern D ivision
To: The Parties and the Attorney of Record for Each
Party
P lease take notice that at a time and place to be set
by the Court, the United States, Amicus Curiae, will move
the Court for an Order enjoining the defendants from:
1. Failing to fill each vacancy hereafter occurring in the
Montgomery County School System with a teacher or
staff member whose race is in the minority at the school
to which he is assigned unless the racial composition of
the faculty and staff at that school no longer contributes
toward identifying the school as being intended for a pre
dominance of one race and unless no qualified teacher of
the minority race is available.
2. Failing to establish a comprehensive program to pro
vide for desegregation of student teachers and substitute
teachers.
—390—
3. Failing to assign faculty and staff to the Jefferson
Davis High School and to the two new elementary schools
so that the faculties and staffs are substantially deseg
476
regated and the schools will not be identifiable as intended
for a preponderance of one race.
4. Failing to take affirmative action to correct the im
pression they have created that the proposed Jefferson
Davis High School is intended predominantly for white
students and failing to schedule athletic contests in such
a way as to disestablish the dual school system.
5. Failing to report to this Court every three months,
the first report to be due April 1, 1968, the steps taken
to comply with the Order of this Court herein sought.
As grounds for the motion, the United States submits:
1. On September 5, 1967, a hearing was had in this
Court on the United States’ Motion for Further Relief.
No ruling pursuant to that hearing has yet been made.
2. Since September 1, 1967, defendants have had 22
vacancies occur in the faculties of the Montgomery County
School System, and 31 new teachers have been hired.
3. Of the 31 new teachers hired since September 1, 1967
school year, seven have been placed in schools where their
race is in the minority.
— 391—
4. During the first grading period, defendants had ap
proximately 150 student teachers working in the Montgom
ery County System, none of whom were assigned to a
position where their race was in the minority. 5
5. For the second grading period, defendants will have
approximately the same number of student teachers as
signed to the various schools in the system. Four Negro
477
student teachers have been assigned to predominantly white
schools.
6. The defendants have not taken adequate steps to
insure that substitute teachers are utilized in a manner
to disestablish the dual school system.
7. A principal, three coaches, and a band director, all
of whom are white, have been assigned to Jefferson Davis
High School, which is still under construction and will be
in operation beginning in the fall of 1968.
8. The defendants and their agents have caused an ath
letic schedule to be prepared for the proposed Jefferson
Davis High School that includes contests only with pre
dominantly white schools. Similarly, they have caused ath
letic schedules to be prepared for other schools in the Mont
gomery system that have predominantly white schools
competing only with other predominantly white schools and
that have predominantly Negro schools competing only
with other predominantly Negro schools.
9. The defendants and their agents have taken other
steps that have caused students and parents who will be
—392—
exercising choice forms to understand that the proposed
Jefferson Davis High School is intended to be predom
inantly white. These steps include contacts for financial
support and the release of publicity about the proposed
school.
10. Defendants anticipate that two new elementary
schools will begin operations in the fall of 1968.
478
11. Unless enjoined by this Court, defendants will con
tinue to assign new teachers, student teachers, and substi
tute teachers on a racially segregated basis and will cause
new schools to be opened in 1968 to perpetuate the dual
school system.
This motion will be based on the pleadings, papers, and
evidence on file in this case, the deposition of Walter T.
McKee, and the testimony and exhibits to be adduced at
the hearing of said motion.
Respectfully submitted,
Charles Quaintance
F rank A llen
Attorneys
Department of Justice
Certificate of Service (omitted in printing)
- 393-
479
Plaintiffs’ Motion
(Filed February 9, 1968)
I n th e
UNITED STATES DISTRICT COURT
F oe th e M iddle D isteict of A labam a
N oethebn D ivision
Now come the Plaintiffs in the above entitled cause and
join with the United States in praying for the relief set
forth in its Motion filed in this Court on February 7, 1968.
The Plaintiffs further move the Court for the following
additional relief:
1. That the Defendants be enjoined from failing and
refusing to provide transportation for students who qualify
therefor to the following proposed new schools :
Jefferson Davis High School,
Southlawn Elementary School, and
Peter Crump Elementary School.
2. That the Defendants be enjoined from transporting
students beyond schools in which their race is a minority
to other more distant schools in which their race is a
majority.
— 394—
Gbay, S eay, L angfobd & P byob
480
Stipulation
(Filed February 17, 1968)
The parties by their attorneys stipulate as follows:
1. Attachment A, which is attached hereto and made a
part hereof, lists the names of persons available for sub
stitute teaching assignments in Montgomery County in
1967-68;
2. Those persons whose names on Attachment A are
preceded by the letter W are white persons; and
3. Those persons whose names on Attachment A are
preceded by the letter N are Negroes.
Executed this 17th day of February, 1968.
J oseph D. P h illips
Attorney for the Defendants
F eed D. Gkay
Attorney for the Plaintiffs
Chakles Quaintance
Attorney for the United States
— 395-
481
— 396—
SUBSTITUTE TEACHER LIST
1967-68
MONTGOMERY PUBLIC SCHOOLS
C i t y and C ou nty
M ontgom ery, Alabama
NAME*
l^ADAIR, B essie P.
TELEPHONE ADDRESS
1131 Magnolia Curve
SCHOOLS, GRADES, COLLEGE
OR SUBJECTS WORK
265-3352 Elem. & J r . High None
UlALLEN, Eva Greer 272-4471 3450 B iltm ore Elem entary 2 y r s .
N bAIDWIN, Emma A. 265-1850 1430 Rushing S t . Elementary 4 y r s .
WBARNES, Marie G. 262-8158 115 A rlin g ton Rd. LANIER on ly 5 y r s .
WBAXTER, V irg in ia L. 265-5621 Maxwell AFB, S oc. S t . , French,
Ex. 3494 311 Center Dr. & Elementary 4 y r s .
bOBEECHER. Peqqy Sudduth 272-5409 615 S ir M ichael Dr. Elementary 4 y r s .
A/BELL. Fannie I d e l l (Ram er-562-3606) Rt. 2 Box 5 9 , Ramer, A la . Elem. 4 y r s .
NBIRCH, A m etta Dabney 265-9327 620 Cedar S t . Elementary 4 y r s .
NBIVINS, L i l l i e Shuford 264-0113 1242 C leveland Ave. Elementary 4 y r s .
\N8CWD0IN, Natala B. 262-7622 904 F elder Upper Elem. & J r . High
S YrS‘
WBUSBY, Anna U. 264-3023 3553 C loverd a le Rd. J r .,S r ..H ig h & Elem. 3£ y r s .
MBYRDSONS, Rosa Lee 265-5971 2552 Airwood Dr. Elementary 4 y r s .
Wcamp, Frances P. 263-6153 2630 N. Fernway RETARDED CHILDREN’ S SCH. 4 y r s .
WCAMPBELL, Rosa L e tt 263-0713 718 S utter S t. Elementary 4 y r s .
WCARROLL, Sara N ell G. 272-3376 3607 W illow Lane Dr. Elementary i-Jr y r s .
N CARTER, B etty J . 262-8533 3041 M ilton Rd. Elem. 8. High (M usic) 4 y r s .
NCARTER, Ruby Lee 265-6829 1013 Pelham S t. Elementary 4 y r s .
^CARTER, S yb il Davis 272-0570 919 Frontenac Court FLOVERS on ly 1 y r .
tVCHACONAS, Georgianna K. 265-5621
Ex. 6498
Q trs . 614-B
Maxwell AFB Elem. & High 2 y r s .
WCHANCEY. Beulah H. (G rady-584-7548) R t. 2 Box 164 Ramer, Pine L evel, 4 y r s .
U)COE, Lucy E. 264-7617
Grady, A la .
3024 Crawford S t.
Goodwyn & Retarded C h ildren s
Elem. & J r . High 1 y r .
COOLEY, Frankie Armstead 264-6249 758 S. H olt 3 t . Elementary 4 y r s .
wCOULTER, F lorence K. 265-7783 958 R id g ecrest S t. Elementary None
HCURLEY, E liza A. J . 263-0408 940 A deline S t . Elementary 4 y r s .
MDALTON, Johnnie Pat 262-4247 1434 C leveland Ave. Elementary 4 y r s .
N DANDY. D olores L. 265-6620 1326 T u tt le Ave. Home E c. & S cien ce 4 y r s .
WDeKING, M arilyn S. 265-0167 3739 S . C ourt S t. ART, S o c . S t . , Spanish »
“JDELLINGER, Mary Melna 272-1471 871 Greg Dr.
E nglish & Elem.
E nglish
4 y r s .
4 y r s .
WDeRAMUS, Evelyn K. 264-9730 521 Japoniea S t . Elementary 2 y r s .
WDERICKSON, M yrtis M. 262-0281 3235 LeBron Elementary 2 y r s .
^DeVANE, H aroll M. 288-9868 R t. 1 Box 1 36 -A S oc. S t . , T yp ing ,
^DIAMOND, Boots C a r ro ll 272-2131
L etohatchec, A la ,
165 Kent S t .
E ng., & Upper Elem,
Elem. & Commerce
4 y r s .
4 y r s .
N DUNCOMBE, Juanita D e lo r is 263-2753 628 Woodrow S t . Elementary 4 y r s .
W DUNLAP, Lennie F, 262-5313 154 A rlin g ton Rd. Elementary 2 y r s .
WEICH, Lorah Smith 264-7986 1841 H i l l Hedge Dr. F rench, S pan ., a r t ,
WELROD, Jimmie G. 265-6511 3179 Norman B ride Rd.
E ng., s c i . , Elem.
, E lem entary
4 y r s .
2 y r s .
N EVANS, Janie Hood 264-4972 2661 W. Edgemont Ave, Elementary 4 y r s .
v/FIELDS, Mary 262-0925 3460 W ilm ington R d. E ng., s c i . , commerce,
N FLOWERS, Ethel Myers
WFRASER, Nina Rust
288-4044
264-1804
R t. 1 Box 43
Sprague, A la.
857 P ortland Ave.
w . - r t . , & 2 y r s .
Elem entary $ Yr $.
LANIER & LEE (E n g lish ) 5 y r s .
* In re p o rtin g S u b stitu te T eachers on you r pay r o l l , p le a se use names exafiU tt l i s t e d
above.
482
— 397—
S u b stitu te Teachers
V^GOOCHER, A ll is o n C.
W goRDCN, Sandra H.
KGREEN, E liza beth Pullom
™ GREEN, E rnestin e J .
NGREENE, W ille t ta J .
WGRISWOLD, Deborah A.
wGUEST, Fay Stephenson
WHALL, Ann J .
N HARRIS, Myla S .
U HARRISON, E liza beth
bJ HARRISON, P a tr ic ia Yvonn
w HAWK, Ginger S . (LaPi
V^HEUSTESS, J e s s ie R.
W HICKS, Dorothy C.
WHINCK, Jud ith F.
N HINSON, F loren ce I .
N HOBDLY, L o lia r P earl
W HOLLEY, L u c ile F.
V/WOTTPV H.
N HUDSON, J e ss ie Mae
w HUGHES, L ouise C.
HUGHES, W ertie C.
HUNTER, Ganola N.
v/HYDE, H a rriet H.
JACKSON, L e lia Logan
v^JAMES, Edith B lythe
^JAM ES, Nancy C.
^JENKINS, Corene R.
V /JENNIES, B ettye L.
v/JERNIGAN, Nelda H.
VvOOHNSQN, Ib e r ia P io rce
WJOHNSON, Sarah Jane
WJONES, Dorothy Leona
N JONES, L i l l i e T.ary
^JORDAN, Eunice Syivene
y^LANEY, D orothy Y,
WLEACH, Marybeth Jones
Wi.EE, Bobbie E.
WLINDLEY, E leanor M.
W LINDSEY., Hilda L.
W McATEER, B etty S .
W PcCLURKIN, Alma M.
W kcCORD, Sarah C.
v/ mcCORD, S u sio 3 .
flMcDADE, E liza beth A.
WMcDOTELL, Evelyn G.
N KcGINNIS, Mary L.
W McWHORTER, Margaret P.
vY MARTIN,
/MARTIN. •••v r ...
̂MEADOR w fieiTON,
v/ nnt hu t
- 2 - 1967--68
288-9451 4262 Sunshine D rive S o c ia l S tu dies 4 y rs .
265-9181 2800-A Brewton S t . S o c . S t. & E nglish 4 y rs .
263-0672 720 C larke S t. Elementary 4 y rs .
265-3644 636 Maggie S t . Elementary 4 y rs .
263-1932 3223 Suwanee Dr. Elementary 4 y rs .
265-6546 3219 E. Fernway Dr. CHILDREN'S CENTER 4 yrs .
263-2735 3576 C lov erd a le Rd. Elementary 4 yrs.
272-4475 236 K ie fe r Dr. EAST Montgomery o n ly : 4 y rs .
S .S . , Eng. & Commerce
263-2095 3115 M obile Dr. Elementary 4 y rs .
264-6745 2024 M ill S t . Elementary 4 yrs.
262-0933 742 S . R ip ley S t . Elementary 4 y rs .
i -537-4342) La P in e , A la . MONTG. COUNTY HIGH
& PINT LA LA on ly 2 yrs.
262-2062 1443 Adrian Lane LANIER on ly 5 yrs.
262-1539 36 W. Vandiver Elem. & J r . High 2 yrs.
272-3323 751 N. Georgetown Dr. Elem. 4 yrs.
264-1356 735 Erskine S t . Elementary 4 y rs .
272-7956 R t. 5 ‘ Bex 3 0 3 -Y Elem. & S o c . S t . 4 y*s.
262-0085 11 C ourtland Dr. Elementary 4 yrs.
272-5518 2725 B iltm ore Ave. Elem. 2 yrs.
265-5143 2436 Lower ’ /otumpka Rd,. Elementary 4 yrs.
288-2252 2645 Baldwin Brook Dr. Elem. & High
Eng. & S o c . S t . 2A yrs
262-4379 321 N. C a p ito l Parkway Elementary 2 yrs.
263-5687 3344 Roundtree Rd. Elementary 4 yrs.
265-3693 1827 Norman B ridge Rd. *P. E. & S oc. S t. 4 yrs.
264-0126 1023 E. Washington Elem. & J r . High 4 yrs.
264-6609 2707 Newport Rd. J r . & S r . High 4 yrs.
S oc. S t. 8. Upper Elem
272-1231 3926 Johnstown Dr. LEE HIGH on ly 4 yrs.
269-1141 668 M ill S t . Elementary 4 yrs.
272-6163 3621 P rin cess Ann EAST M ontg.: E ng., 2 yrs.
M usic, T yping, 8. Elem.
262-8974 1875 G i l le s p ie Dr. DANNELLY on ly 2 yrs.
272-0304 R t. 5 Box 283-A HEAD, DALRAIDA, &
FLOWERS 4 yrs.
263-6584 36 H oodall C ir c le RETARDED CHILDREN'S
& CHILDREN’ S CENTER 1 yr .
269-2723 3085 H ighland Ave. Elem. u High 4 yrs.
264-7355 1810 M ichael S t. Elementary 4 yrs.
272-3329 Mt. M eigs, A la. Elem. & J r . High 4 yrs.
272-6789 2737 Sumter Elementary 2 i yrs
262-0154 3742 Narrow Lane Road Upper E lem ., E ng.,
272-4354 4341 Donovan - r .
263-5353 1887 R obison H i l l Rd.
265-4390 3685 Southmont Dr.
288-2453 P rin ce ton Rd.
272-7949 Pike Road, A la .
2 62 - 2471 825 Park Ave.
263 - 3766 59 Garden 3 t .
262-3005 425 Yougono Curve
2 62 - 3614 1831 James Ave.
2 63 - 9059 326 Meehan S t.
272-6644 3769 ''-arcs F erry Rd.
S .S . , Home E c ., French & P.E
Elem. & J r . High 2 yrs.
Elem entary 2 4 yrs
BELLINGRATH, HARRISON,
& DAVIS 2-J- yrs
JOHNSON, BEAR, DANNELLY
& FLOYD 4 yrs.
E ng., French, S pan ,,
S o c . S t . & Elem. 4 yrs.
BELLINGRATH, LANIER &
FLOYD 4
EAST MONTGOMERY Elem. 1
S oc. S t . & Home Ec. 4
EAST MONTGOMERY, LANIER,
& BALDWIN
ENGLISH & MUSIC
EAST MONTGOMERY J r .
yrs.
yr .
yrs.
y r .
yrs.
High & Elem. 3 yrs.
Hilda B. 265-8998 3447 Southvicv.' Ave. Elementary 4 yrs.
Carolyn Baker 288-0195 3210 ’.'ooc'lcv Rd. Elem. & Jr. High 5 yrs.
Virginia Scott 272-701c ? .z . <- ?!.,:• ala. U;:pcr El cm. 3 yrs.
Vi'.* 1 Jo.-.n 2o5--' ' VE 'ji:~ ,v-ru£ Elementary 4 yrs.
, EU»tx?toi H.zicrd 2M-547D 1137 CWt St Elementary 4 y«
eJm Ci 264-0116 2PI6 Spann M*ce
3534 Cambric fti n 2 , 7 *
264-7214 JOHNS OH, t>AH«EUY BEAR
FLGfD 8 FOREST AVt. 4 y^
483
Substitu te Teachers - 3 -
— 39&—
1967-68
v f MIDDLETON, Ethel D.
vV MILLIS, Louise A lston
yYMOODY, Francos Galloway
V^MOORE, E lla Mae
H MOORE, Wilma A.
V'/NESSMITH, Mary R.
W o ’ DONNELL, Bonnie H.
W PALMER, Hazel H,
W PARKER, Mary A.
VnY PARKS, 3arbara H,
PEARSON, Helen Evans
hi PERSON, Susie M.
WPETRANKA, Mary L.
fY PIERCE, Mary L. B.
fJ PORTER, Annie Lee
N PORT IS , C leo D.
W RAWLS, Ruby Tompkins (Rame:
vY raY, G eraldine H,
•Y RELF, Cleona Gray
W RICE, Sue
w RICHARDSON, E liza beth S.
W RICKER, Iva N elle
W ROBERTSON, Sara Booker
N ROSS, L i l l i e B e lle
yVRUSHING, E lise Terry
M SAN’S , Eva
WSAMUELS, V aleria Ward
WSCHAUM, Mary T.
vY SCOTT, B e tt ie H ill
W SMITH, Eugenia
NSMITH, Jean E.
vYSMITH, Judith A.
N SMITH, Mabel W illiam s
YYSMITH, S y lv ia L. (Ramer
WTANKERSLEY, C o rr ie H il l
WTEMPSKE, Mary B ea tr ice
hi THOMAS, Addio L u c i l l e
M i'HOWw, Gurlrudu J.
w VAUGHAN, O liv ia B.
w WAGGONER, N ell H.
W WARNER, Janet
H WASHINGTON, G lover Ivy
H WASHINGTON, N ettie D.
N WEBB, Annie G.
w WEISHEIT, C arolyn A della
w WILFERTH, l/.yldred E.
vY WILLIAMS, G lo r ia Bingham
w WILLIAMS, W ille t t o H.
WILLIAMSON, Margaret R.
** WILSON, Addie Mario
I'J WILSON, L i l l ia n O l iv ia
W WINDSOR, Mary E llon
^JOHNSON. Helen Maxine
H ROBERTSON, gre-vAo. Jovce
265-3671 2722 O xford D rive BEAR & DANNELLY 5 y r s .
272-2642 1215 Noremac Road E lem ., J r . 8. S r . High 4 y r s .
264-5523 2258 Narrow Lane Rd. J r . High A rt & Elem. 3 y r s .
272-1835 3529 D alra ida C ourt EAST MONTGOMERY:
Elem. & High l £ y r s .
265-5129 3311 M obile Dr. Elementary 4 y r s .
265-7823 3011 Boxwood Dr. Eng., S .S . , & French 4 y r s .
264-2990 1823 Palm etto S t. Elementary 2 y r s .
262-7918 2435 LeRuth Ave. DANNELLY, JOHNSON, 2 y r s .
FOREST AVE., MORNINSVIEW
272-4635 46 Marlborough Elem. o r J r . High 2 y r s .
263-2807 2192 Rosemont Dr. J r . High E nglish 4 y r s .
263-2078 3048 T y ler Road Elementary 4 y r s .
262-8729 3359 E. Tuskegee C ir c le Elem. & S o c . S t. 4 y r s .
263-1215 617 Thorn P la ce Elem. & High 4 y r s .
264-0063 3511 M obile Dr. S o c . S t . & Eng. 4 y r s .
263-3609 2745 Vandy Court Elementary 4 y r s .
263-9913 1328 T u tt le S t. S c ie n ce & Math 4 y r s .
r -584-7767) Rt. 1 , Ramer, A la . RAMER & PINE LEVEL None
265-1737 423 Fourth S t . , B oylston CHISHOLM & HIGHLAND GARDENS
263-3561 1037 Oak S tr e e t Elementary 4 y r s .
262-0502 908 C lov erd a le Road J r . High L a tin &
E nglish- & Elem. 2 y r s .
262-3788 3316 Montezuma Rd. Elementary y r s .
288-1528 2034 B everly Dr. Upper Elem. 5 y r s .
272-7686 Pike Road, Alabama Elementary 1£ y r s .
263-6056 1225 Hutchinson S t . Elem entary 4 y r s .
272-5186 3739 H oneysuckle Court S oc . S t . , M usic, Prim ary 2 “
264-1549 1229 H utchinson S t . Elementary 4 y r s .
264-0515 3365 W ilmington Rd. E le . & High 2 y r s .
263-3877 926 C lov erd a le Rd. SOUTH MONTGOMERY 2£ y r s .
265-8485 641 E. F airv iew Ave. Prim ary 4 y r s .
265-5930 3424 Sorflmcrvllle Dr. E l ? - . , Home B e .,
P .E ., & S oc . S t . 2 y r s .
264-6224 814 S . Union S t . Elem. & S oc . S t . 4 y r s .
272-6256 615 Joryne D rive Elem entary 2 y r s .
264-9369 3047 M ilton Rd. Elem entary 4 y r s .
- 562-3515) 2 , Ramer, A la . MONTG. COUNTY HIGH None
s 263-1970 1241 S. H ull S t . SOUTH MONTGOMERY Elem. 3 y r s .
262-4692 2321 W. C lov erd a le Park A lg eb ra , L a tin ,
S o c . S t . & Elem. 4 y r s .
272-1976 3739 Mario Cook Dr. Eiem. & J r . High
s o c ia l s tu d ie s 4 y r s .
264-9890 926 C levelan d Ave. S oc . S t . a E nglish 4 y r s .
2 6 5 -141C 2010 C ouncil St.. F.lom, A Homo He. 4 y r o .
265-1122 615 Hubbard S t . CLOVERDALE on ly 2 y r s .
264-5673 4003 Narrow Lane Road Primary 4 y r s .
264-2663 R t. 2 Box 417 Elementary 2 y r s .
263-9105 661 Emerson S t . Elem entary $ y r s .
264-0302 611 W. D ix ie Dr. Elem entary 4 y r s .
265-0602 566 N. Union C ir c le Elem entary 4 y r s .
265-1117 3515 S. Court S t . BELLIN3RATH a HARRISON 2 y r s .
272-5243 3568 P rin ce George Dr. Elementary 2 y r s .
288-4644 or PINTLALA a MONTGOMERY
288-4655 Sprague, Alabama COUNTY HIGH none
265-1030 460 H eustess S t . P .E ., H i s t . , E ng.,
a Elementary none
262-4055 431 Martha S t. Elem entary 1 y r .
262-8216 1500 S. H a ll S t. Elem entary 4 y r s .
269-4201 1232 Payne S t. E lem entary 4 y r s .
272-2460 3519 D alraida C ourt EAST MONTG. - Elem. 1 y r .
272-3601 2940 B iltirore Eiania-o . 3 y r s .
264-1917 1409-B W\ ic e * S t Ilemervtary q yrs
484
• w A .toW iiH lT i* w w . ' . U / u J
C ity and County
' Montgomery, Alabama
— 399—
S u p e r in t e n d e n t 's O f f i c e Septem ber 1 4 , 1967
SUPPLEMENTARY SUBSTITUTE LIST
To A ll P r in c ip a ls :
P lease add the persons l i s t e d below to your S u b stitu te Teacher L i s t , and l e t me remind
you th a t you are t o c a l l ONLY th ose p eop le whose names are sent t o you frcro t h is o f f i c e I
DO NOT c a l l anyone who i s not on the o f f i c i a l l i s t s sent t o you or about whom you have not
been co n ta cte d by t h i s o f f i c e . S u b s t itu te s are re q u ire d t o have on f i l e in our o f f i c e
h ea lth c e r t i f i c a t e s , t e a c h e r ’ s c e r t i f i c a t e s , ch esr X -ra y s , and s o c ia l s e c u r ity names and
numbers. A ll o f th ese m atters must be c le a re d in t h is o f f i c e b e fo re t h e ir names can be
sen t ou t t o you ; o th e rw ise , co m p lica t io n s a r is e in our o f f i c e as w e ll as the bookkeeping
department a t pay r o l l tim e.
P lea se coop era te w ith us in t h is m atter, and we w i l l t r y t o send ou t supplem entary
s u b s t itu te l i s t s m onthly. I f you know o f anyone who would l ik e t o be p la ce d on the
l i s t , send them t o see me and we w i l l c le a r th ese item s and g e t the names ou t t o you
as soon as p o s s ib le .
S in ce re ly you rs ,
.v. b . G a rrett
WSG/rhd A ss o c ia te S uperintendent
SCHOOLS, GRADES, COLLEGE
.NAME* TELEPHONE ADDRESS OR SUBJECTS WORK
WALLEN, Donna Mai 262-7477 44 Ogden Road L ibrary', Spanish , Eng. 5 yrs.
v /ARCHER, H ellen Cannon 264-3812 1912 Johnson S t . LEE HIGH on ly 3 yrs.
vJBALKEMA, Mary H. 272-3282 330 H il ls id e Rd. J r . & S r. H igh: S c i . ,
Math, & S o c . S t . 4 yrs.
W DENNIS, Lou E llen 263-3961 3469 Warrenton Rd. SOUTH MONTG. ( Prim ary) 3 yrs.
DeVANE, Jo Anne^ 288-9S68 R t. 1 Letohatchee S o . Montg. & County 1 y r .
(H lem ., commerce & Home E c .)
W duNMAN, Francos Stephenson 265-6107 3557 G aylord P I. Elementary 2 yrs.
W GARNER, Jane Helms 265-4122 3412 Richmond Rd. Eng. & S oc . S t . 4 yrs.
W 'G ’JY, Sharon S. 272-5299 801 Joryne Dr. E ng., French, Home Ec,« j
H is t . & A rt 4 yrs.
V7 HUDDLESTON, Grace M. 264-2556 2202 A lle n d a le Rd. E ng., H is t . , o r Elem. 4 yrs.
W JOHNSON, Alva Simpson 265-2793 2728 F isk Rd. SO. MONTG.: Elem. o r 1d i. 2 yrs,
LONG, J o s e f in e Maria 238-5421 1531 Flamingo Lane Elem entary 3 yrs.
v/'f/acMILLAN, Anno Jones 283-4318 2643 O xford Dr. SO. MONTG.s Elem.& Jr . 4 yrs.
W McCRACKEN, Dorothy s . 272-4098 1203 Karc-n Rd. E. M ontg.: E ng., H ist .
& Elem. 4 yrs.
vVMcUMB, Martha L. 262-0108 3199 E. Fernway Dr. Elem entary 2 i yrs.
N MADISON, K atie J . 264-3511 324 S p r in g h il l Ave. Elementary 4 yrs.
N MANSELL, H arnethia Naomia 262-6770 3204 McElvy Elementary 4 yrs.
W MORRISON, E llon Young 265-9685 547 3 . P orry S t. Elem. & J r . High 4 yrs.
W 'MOSS, Judith Ann 264-9821 403 S . Pc-rry S t. Upper Elem entary 4 yrs.
W PELHAM, K i t t io K. 264-3589 1602 S . H ull S t . J r . & S r . Hi & Elem. 4 yrs.
W SPENCER, MaryAnn E leanor 262-7010 or E ng., F rench, &
272-7474 1826 Vaugnn Lane Elem entary 3 yrs.
W WHITFIELD, V ir g in ia Rath 262-2366 2137 Carr.obeli Rd. E ng., S peech , S .S . 4 yrs.
W WKORTON, Jean E l l i o t t 584-7713 Pir.o L e v e l, A la . RAWER & PINE LEVEL 1 yr.
V / WILLIAMSON, Juno Dale 272-4706 1200 C o tto n c e le Rd. J r . H i: Speech & El erri. 2 yrs.
*J V' T.'.CN, Mamie Jo E llin g tor . 285-4382 R t. 1 :.'.iilb rook - yr-*
’ S1LS-: ;ry Jo 2 72 -59c l 3331 A r n c r f iu lc Rd. EAST MONTG. nor*
CH/WSt S o c ia l S o o -a it y ns sc- c f W arilyr> S W i n g o r 1 s t L ist t o . M flR u jN S C M rrr p&t i *
• SOCIAL s e C O p lT / n/AVIES t o b e Used o r pfN) r o ll
- 4 0 0 -
S u p e r in te n d e n t 's O f f i c e
MONTGOMERY PUBLIC SCHOOLS
C i t y and C ou nty
M ontgom ery, Alabama
SUPPLEMENTARY SUBSTITUTE LIST
November 1 , 1967
T o .A ll P r in c ip a ls :
P lease add the persons whose names are l i s t e d below to your S u b stitu te Teacher L is t .
These are t h e ir S o c ia l s e c u r it y Names and are t o be used on your pay r o l l as l i s t e d :
WSG/rhd
NAME
aJbaIDWIN, Ann Sessoms
N BELLAMY, L e t ic ia S.
vVchRISTENBERRY, Mary E.
* / CONNELL, Annie Lee
yfGORDON, Beppy L.
vVJENKINS, Suzy
V '/kILLIAN, Frank, J r .
WLOVAN, Ruth E.
V* LYNCH, Margaret Mathes
* RAGSDALE, C arol Land
RALEY, Mary Dupree
^ROBINSON, Barbara Drum
vS SERWIN, Harlynn M.
W STUART, Lucy
S in ce re ly you rs ,
W. S . G a rre tt
iu .
A ss o c ia te S uperintendent
TELEPHONE ADDRESS SCHOOLS, GRADES,
OR SUBJECTS
COLLEGE
V/ORK
272-5462
265-4975
3531 Milan D rive
1209 Payne S tr e e t
French or English
Home E c ., S c i . , & Elem.
4 yrs
4 "
288-0736
262-8203
288-0747
731 Alamo D rive
714 T errace Ave.
R t. 4 Eox 85
S oc . S tu d ies & Upper Elem.
E nglish & Spanish
Math & Law
4 "
4 "
4 "
288-2767 1204 E. Audubon Rd. LEE ONLY 4 "
272-5635 3043 A sh ley Ave. Mathematics B .S . S. ii .‘.
1037 Grenada Dr. E ng., Spanish , & Elementary
263-6514
272-2455
264-8588
288-4828
272-3352
288-2851
262-2031
3346 Montezuma Rd. Math, S oc . S tu d ie s , & Elem. 4 y r s .
3707 Honeysuckle Court Home E c ., S c i . , S .S . ,
E ng., & Elem. 4 y r s .
22 E. F airview Ave. M usic, Commerce, Elem. BME & MA
Rt. 1 Box 341-D High S ch oo l & Elem. 4 y r s .
117 E. Salem Dr. S c i . , H is to ry & Elem. 4 "
1260 S. H olt S t . Elementary 4 "
1727 B an croft S c i . , S oc. S t. 8. Elem. 4 "
155 N. Haardt Dr. Elementary 4 "
2142 S te l la S t . Elementary 5 ”
542 C layton S t . CHILTON on ly —
3507 P rin ce ton Rd. Eng. & S oc. S t . 4 "
M TALLEY, M issie D o ll . 263-5314
^TUCKER, S h ir le y G a ith er 264-9660
W VARTANIAN, Margaret "ih ite 264-6971
Dorothy Y. Lanev has requ ested th a t she r e c e iv e c a l l s from ju n io r h igh s ch o o ls a s w e ll as
elem entary s c h o o ls .
Lpu E llen Dennis has req u ested th a t she r e c e iv e c a l l s from a l l elem entary s ch o o ls in s te a d
o f be in g l im ite d t o South Montgomery as p re v io u s ly l i s t e d .
NEW ADDRESS & PHONE NO. f o r Edna C. M elton , who i s a lre a d y on the S u b s t itu te L is t .
300 C arol V il la
Phone: 272-0989
PLEASE REMOVE th e fo llo w in g names from your S u b stitu te Teacher L is t s :
ELIZABETH PULLOK GREEN
DE3GR.AH GRISWOLD
.-.ELEN vlJCIhE JOHNSON
ELIZABETH .2.1 ~.Z '.7 .jOHS
486
MONTGOMERY P03LIC SCHGCLS
C ity and County
Montgomery, Alabama
S u p erin ten d en t 's O f f i c e
— 401—
December 1, 1967
SUPPLEMENTARY SUBSTITUTE LIST
To A ll P r in c ip a ls :
P lease add the fo llo w in g persons t o your S u b stitu te Teacher L is t . These are t h e ir
S o c ia l S e cu r ity Names and are t o be used on your pay r o l l as l i s t e d :
S in ce re ly y ou rs ,
'Xlj. ̂ . /\J asiAiJEf
Vi. S. G arrett
i'ISG/rhd A sso c ia te Superintendent
96/DANIELS, Jean L. 264-8880 1424 Deer S tr e e t Elementary 4 yrs.
v /D R Y , C h a rlo tte L ola 264-5839 434 S. Panama S t. Home E c ., S co , & Elem. 4 yrs.
V/HUXFORD, Linda Teague 288-2709 1125 Buckingham Dr. E ng., Home E c ., & Elem. 4 yrs,
W W e , B etty 265-2503 700 T errace Ave. Elem. 8. High 4 yrs,
N PRINCE, Rosa Mae 265-9185 3354 L ove less Curve Elementary 4 yrs,
vV SEXTON, Anna L ouise 265-6818 1931 S p e ig le S t. Elementary 1 y r .
M SHARPE; A lg ia C. 264-3681 2637 VV. Edgemont Elementary 4 yrs,
W TOMLINSON, V irg in ia M. 272-6643 3797 Royal C rest Dr. Elem. & H igh: Eng. & S .S . 4 yrs,
hi WILLIAMS, E liza Larkin 272-0974 4105 B ie n v il le Rd. Elementary 4 yrs,
REMOVE from L is t :
Nancy C. James
IVilda 3 . M alloy
Harnethia Naomia M ansell
C arolyn Eaker M artin
487
— 402—
S up erin ten d en t 's O f f ic e January J , 1967
MONTGOMERY PUBLIC SCHOOLS
C it y and C ou nty
M ontgom ery, Alabama
SUPPLEMENTARY SUBSTITUTE LIST
To a l l P r in c ip a ls :
P lease add the fo llo w in g persons t o your S u b stitu te Teacher L i s t . These are t h e ir
S o c ia l S e cu r ity Names and are t o be used on your pay r o l l as l i s t e d :
WSG/rhd
S in ce re ly you rs ,
u x W *
W. S. G a rre tt
A ss o c ia te Superintendent
WBEAM, Carolyn B. 265-3165 3980 D a llas Dr. S o c . S tu d ie s & Elem. 3 y r s .
W BOZEMAN, Sara C harles 265-4643 1138 R osedale EAST Montgomery - Elem. 4 y r s .
N DAVIS, Arthur M. 263-9346 405 McKinne S t . E ng., French, & S .S . 4 y r s .
V\J DePREIST, Imogene 272-0683 1949 Cottingham D r. Elementary 4 y rs .VV FOSTER, Marcia W. 264-1481 2813 Spann P lace E ng., Commerce, & Elem.
w / GOODWYN, Mary H. 263-7475 2537 McGehee Rd. BEAR SCHOOL ONLY
W JOHNSON, Annie Grace 272-3847 139 H ollid a y Drive Elementary —
KURTZMAN, E laine 272-7490 Gunter A ir F orce Base
Ex. 4146 Q trs . 2 04 -C Math & S oc. S tu d ies 5 y rs ,
W MITCHELL, Sandra F. 272-6049 47 H ollid a y Dr. Elem. & High School 2 yrs.
MORRIS, Barbara G. 272-2601 3538 Wareingwood Home E c ., E ng., H is t . ,
Shorthand, Typing 4 y rs
W RIDOLPHI, E liza b eth H. 263-9021 2256 Rosemont Dr. Elem. (Prim ary) $ y*v
V SEWELL, V irg in ia F. 288-0032 1013 Lynwood Dr. Elem. (Prim ary) 4 yrs
|4 WILLIAMS, L loyd G . , J r. 263-9917 3034 C a ffe y D r ., A pt. K S oc. S t . & E nglish 4 yrs,
REMOVE from l i s t :
Linda Teague Huxford
P a tr ic ia S . Norman
488
— 403—
MONTGOMERY PUBLIC SCHOOLS
City and County
M ontgom ery, Alabama
S u p e r in te n d e n t ’ s O f f i c e F e b ru a ry 1 , 1968
SUPPLEMENTARY SUBSTITUTE LIST
To a l l P r in c ip a ls :
P lease add the fo llo w in g persons t o your S u b st itu te Teacher L is t . These are t h e ir
S o c ia l S e cu r ity Names and are to be used on your pay r o l l as l i s t e d :
IVSG/rhd
S in c e r e ly you rs ,
A sso c ia te Superintendent
W ’ADAMS, L ou ise 265-3031 443 S . Highland Court
WADAMS, P a tr ic ia S. 272-2500 7S5 Duval Dr.
hi ASHLEY, Jo Ann Young 263-9693 705 N. Union C ir c le
BALLARD, Ida T . 265-8127 3238 Hor.tezu.~a Rd.
W BERRY, Linda 262-0668 1500 Gilm er Ave.
CHAPPELL, C harles W ilson 262-2978 1932 James Ave.
W CROSS, W il l ie Hack (M rs .) 272-4593 3542 Wareingwood
W DeBRAY, Jananne Booth 265-4923 3547 Norman B ridge Rd.
W DUFFtY, 3arbara C. 288-46S4 R t. 1 Box 275-3
Elementary
DAVIS SCHOOL
Elementary
Elem & P.E.
Elem.
S oc. S t . , S c i . , Eng.
Elementary
E ng., Speech, S .S . ,
Upper Elem.
Elementary
4 yrs.
4 yrs.
4 yrs
4 yrs.
4 yrs.
i yr.
None
4 yrs.
4 yrs.
W EVANS, V a leria M. 262-8724 R t. 4 Box 8 9 -D
^ FREEMAN, Evergreen ta lk e r 263-5132 1009 Lake S t .
N FULLER, Mary C. 272-7194 R t. 3 Box 426
EAST MONTG., Elem. 8. J r . Hi None
Home Ec. 8. S0c . S t . 4 yrs.
Home Ec. & S o c . S t . 4 yrs.
& Elem.
GRAY, Yvonne S. 288-6172 R t. 1 Box 266 Elem entary None
yV GREENLEE, Ruth T . 265-0867 856 E. Pattoh Ave. Elem. o r High None
W JOHNSON, Nancy M. 263-7322 2 2 -3 Southmont Court Elementary 4 yrs.
W KELLY, Rosa R. 264-5175 121-A E. P atton Ave. SOUTH MONTG.: Primary
W MORRIS, Jane Owen 265-9102 1018 Augusta S t . E ng., Home E c ., 8. Upper Elem. 4
W NORTON, Rebecca Black 262-1820 2543 C o lle g e S t . Elem entary 2 yrs.
W REYNOLDS, J esse P reston 269-4684 3700 M obile Rd. S c i . , speech , Eng.
& S oc. S t . 4 yrs.
M HUSTON, Maxine 264-0525 2620 Rutland S t . C hem istry, b io lo g y ,
8. Math 4 yrs.
W SCHOFIELD, C harles Malcolm 263-•1478 415 Fourth S t. S oc. S t . 8. econom ics 4 yrs.
V/ STANFORD, Brenda L. 263-1883 1704 S . P erry S t. Elem entary 4 yrs.
vg VICKERY, Mary N. H. 263-2905 1704 S . Court S t . Eng. 8. S o c . S t. 4 yrs.
w ft'ATERS, M yrtle E lis e 269-4296 3207 E. Fernway Dr. E lem ., S c i . , E ng., J r . Hi none
t'f WINSTON, Frankie Madison 272-4525 R t. 3 Box 4C4 Elem entary 4 yrs.
CHANGE IN ADDRESS 8. TELEPHONE NO.:
CHRISTENSERRY, Mary E. 3151 W oodfern Dr. New T elephone: 2fr5-5S0e
JIASE REMOVE THE FOLLOWING PERSONS FROM YOUR SUBSTITUTE LIST:
SHARON S . GUY
ANNE JCNcS MacMILLAN
JUDITH ANN KCSS
MAMIE JO ELLINGTON WILSON
489
Memorandum Opinion
(Filed February 24, 1968)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
This cause is now submitted upon the motions of the
United States filed August 17, 1967 and February 7, 1968,
in both of which the United States requested this Court
to require defendants to take further steps designed to
disestablish the dual school system in Montgomery County,
Alabama. Each of these motions seeks further faculty de
segregation and the motion of February 7, 1968, asks this
Court to require defendants to cease operation of their
athletic program on a racially segregated basis and to take
other steps designed to insure that certain new schools
that have been and are being constructed as a part of the
Montgomery County School System are operated on a de
segregated basis. The plaintiffs join the United States
in each of said motions.
This Court conducted a hearing on the Government’s
motion of August 17. 1967, in September, 1967. No formal
findings or conclusions were made at that time by reason
of the fact that the 1967-68 school year had already com
menced, and the matter was therefore held in abeyance.
On February 9, 1968, a hearing was conducted on the Gov
ernment’s second motion and the motion of the plaintiffs
filed the same date wherein the plaintiffs seek more specific
relief concerning transportation to the new schools.
— 404—
490
Upon consideration of the evidence and the several ex
hibits thereto, this Court now makes the appropriate find
ings of fact and conclusions of law, embodying the same in
this memorandum opinion. The original decree requiring
desegregation of the public schools in Montgomery County,
Alabama, was entered by this Court on July 31,1964. After
making appropriate findings and conclusions to the effect
—405—
that the Montgomery County Board of Education was oper
ating a segregated school system based upon race, this
Court entered an injunction that enjoined the defendants
from failing to provide public school education for Negroes,
and other members of their class, in a school or schools
that were not operated on a racially segregated basis, and
from failing to take immediate steps, to be effective for
the school term commencing September, 1964, to desegre
gate the 1st, 10th, 11th and 12th grades in the public
schools of Montgomery County, Alabama. In this decree,
this Court approved a freedom-of-choice plan that had been
proposed by the defendants as a means for discharging the
affirmative duty placed upon them. Brown v. Board of
Education of Topeka, 347 U. S. 483 (1954), and Brown
v. Board of Education of Topeka, 349 U. S. 294 (1955). On
March 22, 1966, this Court by formal order required the
Montgomery County Board of Education to file a more
formal and comprehensive plan for desegregation of the
public school system in Montgomery County. This plan
provided for complete desegregation of the schools for
each grade in each school commencing with the September,
1967 school term; the plan also provided with regard to
services, facilities, activities and programs:
A student shall have full access to all services, facili
ties, activities, and programs (including transporta-
491
tion, athletics, and other extracurricular activities)
that may be conducted or sponsored by, or affiliated
with the schools of the system. A student attending
school for the first time on a desegregated basis may
not be subject to any disqualification or waiting pe
riod for participation in activities and programs, in
cluding athletics, which might otherwise apply because
he is a transfer student.
Further, the plan provided with regard to faculty and
staff:
Race or color will henceforth not be a factor in the
hiring, assignment, reassignment, promotion, demo
tion, or dismissal of teachers and other professional
staff, with the exception that assignments shall be
made in order to eliminate the effects of past dis
crimination. Teachers, principals, and staff members
will be assigned to schools so that the faculty and staff
is not composed of members of one race.
In the recruitment and employment of teachers and
other professional personnel, all applicants or other
prospective employees will be informed that Mont
gomery County operates a racially integrated school
system and that members of its staff are subject to
assignment in the best interest of the system and with
out regard to the race or color of the particular em
ployee.
The Superintendent of Schools and his staff will
take affirmative steps to solicit and encourage teachers
presently employed to accept transfers to schools in
which the majority of the faculty members are of a
race different from that of the teacher to be trans
ferred.
492
- 4 0 6 -
Teachers and other professional staff will not be
dismissed, demoted, or passed over for retention, pro
motion, or rehiring on the ground of race or color. In
any instance, where one or more teachers or other
professional staff members are to be displaced as a
result of desegregation or school closings, they shall
be transferred to any position in the system where
there is a vacancy for which they are qualified.
At the time this Court entered its order in July, 1964,
there were in attendance approximately 15,000 Negro
children and approximately 25,000 white children in the
Montgomery County School System. The system was com
pletely segregated by reason of race. No faculty desegre
gation was ordered until the commencement of the 1967
school year.1 The evidence now presented reflects that dur
ing the current school year the student population con
tinues to be about the same as in 1964 and there are now
approximately 550 Negroes attending, through the free-
dom-of-choice procedure, traditionally white schools. No
white children are attending traditionally Negro schools.
1 The order made and entered in this case on March 22, 1966,
required the Montgomery County Board of Education to com
mence the process of desegregating the faculty and professional
staffs commencing with the school year 1966-67. However, on
August 16, 1966, in the Mobile, Alabama school case of Birdie
Mae Davis, et al. v. Board of School Commissioners of Mobile
County, et al., 364 P. 2d 896, the United States Court of Appeals
for the Fifth Circuit allowed the Mobile, Alabama County Board
of Education until the school year 1967-68 to end its policy of hir
ing and assigning teachers and stall according to race. On August
18, 1966, this Court entered an order reciting, “ Uniformity, as
well as fairness, requires this Court upon its own motion . . . to
amend its order of March 22, 1966, to the extent that the Mont
gomery County School Board of Education he allowed until the
school year of 1967-68 to end this present policy of hiring and
assigning teachers and other school personnel according to race.”
493
As of February 9, 1968, 32 classroom teachers in this sys
tem were teaching pupils in schools that are predominantly
of the opposite race. Defendants employ approximately
550 Negro teachers and approximately 815 white teachers
in the system. Practically all the faculty desegregation in
the system has occurred in the high schools. While there
is some faculty desegregation in the elementary schools
in the system, it is extremely small. There has been very
little, if any, faculty desegregation in the schools located
outside the City of Montgomery.
Since the order of this Court of June 1, 1967, defen
dants have assigned or transferred approximately 75 new
teachers to faculties where their race was in the majority.
Since the opening of school in September, 1967, defen
dants have hired approximately 32 new teachers—26 white
and 6 Negro. Of the 26 new white teachers, only six or
seven have been placed in predominantly Negro schools.
All six Negroes were assigned to predominantly Negro
schools. The evidence further reflects that the defendants
have failed to take any appropriate steps to insure that
- ^ 0 7 -
substitute teachers are placed on a nonracial basis. No
Negro has yet been a substitute teacher in a traditionally
white school in Montgomery County. Negro substitutes
were used over 1,500 times in Negro schools during the
first semester of the 1967-68 school year. During the same
period, white substitute teachers were employed over 2,000
times—only 33 of them in traditionally Negro schools.
There are approximately 162 white substitute teachers and
63 Negro substitute teachers available for use in the Mont
gomery County School System. Twenty-eight of the white
substitute teachers whose names are on this list have,
494
with defendants’ permission, limited themselves to working
only in predominantly white schools.
Defendants have adopted no adequate program for the
assignment of student teachers on a desegregated basis.
None of the approximately 150 student teachers used in
the Montgomery County School System in the fall of 1967
were assigned to schools predominantly of the opposite
race. Four Negro student teachers have very recently
been assigned to predominantly white schools. There has
been no faculty desegregation in the night schools operated
by the Montgomery County School System.
The evidence does not reflect any real administrative
problems involved in immediately desegregating the sub
stitute teachers, the student teachers, the night school
faculties, and in the evolvement of a really legally adequate
program for the substantial desegregation of the faculties
of all schools in the system commencing with the school
year of 1968-69.
The evidence in this case reflects that the athletic pro
grams are an integral part of the operation of the public
schools in the Montgomery County School System. The
Alabama High School Athletic Association is an associa
tion made up of approximately 357 Alabama high schools
traditionally maintained for white students and the Ala
bama Interscholastic Athletic Association is an association
made up only of Alabama high schools traditionally main
tained for Negro students. Each of these athletic associa
tions has adopted rules for the scheduling of athletic con
tests by its members which have the effect of penalizing
member schools if they play athletic contests with schools
predominantly of the opposite race. The manner in which
these associations accomplish this is through the promulga
tion of a rule to the effect that if any member school plays
495
a nonmember school, it is subject to suspension or penalty.
Thus the Montgomery County Board of Education, acting
through its various school principals and coaching staffs,
has allowed its traditionally white schools and its tradi-
— 408—
tionally Negro schools to become members of the white
and Negro associations, respectively, thereby placing them
under the restrictive rules of these associations. Further
more, the evidence reflects that the defendants through
their agents—the principals and coaching staffs—have
adopted a policy of scheduling interscholastic athletic con
tests for its traditionally white schools only with other
traditionally white schools, and for its traditionally Negro
schools, only with other traditionally Negro schools. The
evidence in this case is clear that this manner of operating
the athletic programs has had and continues to have the
effect of influencing the choice of students within the sys
tem.
The evidence further reflects that the defendants have
continued to construct new schools and expand some exist
ing schools; certainly, there is nothing wrong with this ex
cept that the construction of the new schools with proposed
limited capacities geared to the estimated white community
needs and located in predominantly white neighborhoods
and the expansion of the existing schools located in pre
dominantly Negro neighborhoods violate both the spirit
and the letter of the desegregation plan for the Montgomery
County School System. Examples of this are the construc
tion of the Jefferson Davis High School, the Peter Crump
Elementary School and the Southlawn Elementary School
—all in predominantly white neighborhoods—and the ex
pansion of Hayneville Road School and the Carver High
496
School, both in predominantly Negro neighborhoods. The
location of these schools and their proposed capacities cause
the effect of this construction and expansion to perpetuate
the dual school system based upon race in the Montgomery
County School System.
As to transportation, the defendants have failed to elimi
nate the bus routes where there exists overlapping and
duplication based upon race. Thus the defendants have
continued to perpetuate the dual school system through
their transportation system. The defendants in designat
ing three new schools located in predominantly white neigh
borhoods, viz., Jefferson Davis High, Peter Crump Ele
mentary and Southlawn Elementary, as “ nontransported”
schools (schools to which no transportation is provided)
are also attempting to further perpetuate the dual school
system.
One of the most aggravating courses of conduct on the
part of the defendants and their agents and employees re
lates to the new Jefferson Davis High School to be located
in the City of Montgomery and operated commencing with
the school year 1968-69. The defendants in locating this
—4 0 9 -
school placed it in a predominantly white section of Mont
gomery. The evidence reflects that in determining the
capacity of the school they approximated the number of
white students residing in the general vicinity and con
structed the school accordingly; they have adopted a school
name and a school crest that are designed to create the
impression that it is to be a predominantly white school;
they have hired a principal, three coaches and a band di
rector, all of whom are white; they have actively engaged
in a fund-raising campaign for athletic and band programs
497
only through white persons in the community; they have
contacted only predominantly white schools for the sched
uling of athletic events and they have made tentative ar
rangements to join the Alabama High School Athletic As
sociation—the white association. Extensive publicity has
been released concerning the white faculty members and
the football schedule with all white schools. Discussion of
the athletic program has been held by the new school offi
cials only with white athletes. The dissemination of infor
mation about spring football practice in pamphlet form
has been made by the school staff only to white persons.
All of this means that the defendants have failed to dis
charge the affirmative duty the law places upon them to
eliminate the operation of a dual school system. Under
such circumstances this Court considers it necessary and
entii’ely appropriate to establish now more specific require
ments governing minimum amounts of progress in the
future in these several areas. In establishing these rules,
it should be emphasized that strong consideration is given
to the ratio of white to Negro students; however, in view
of the fact that the plaintiffs and the United States have
as of February 21, 1968, filed a motion to supplement the
March 22, 1967, order of the three-judge court in Lee, et al.
v. Macon County Board of Education, et al., 267 F. Supp.
458, in the area of school athletic programs, this Court will
not at this time make any further specific findings, con
clusions or order concerning the dual athletic program
operated by the Montgomery County School System and
will not at this time outline any steps that the defendants
may be required to take in order to eliminate such practice.
This phase of the matter as now presented will be reserved
pending hearing and disposition of the motion in Lee, et al.
498
v. Macon County Board of Education, et al., which is pres
ently scheduled for a hearing March 9, 1968.
The manner in which the defendants have constructed
new schools, the location and proposed capacity of these
- 410-
schools, and the manner in which the defendants have ex
panded Negro schools and the location of these Negro
schools make it clear that the effect of these new construc
tions and the effect of the expansions have been designed to
perpetuate, and have the effect of perpetuating, the dual
school system in the Montgomery County schools. Further
more, the operation of the school bus routes as presently
operated by the defendants continues to violate the Four
teenth Amendment of the Constitution. Because of these
factors this Court is under a duty and an obligation to
outline and specify certain affirmative steps that must be
taken by the defendants to eliminate the dual school sys
tem based upon race and to overcome the effects of certain
efforts that have been made, as above outlined, to perpetu
ate this dual school system.
In implementing the requirements of this Court’s orders
heretofore made in this case and the supplemental require
ments outlined herein and in the attached supplemental de
segregation plan, the Montgomery County School Board,
the individual members thereof, and particularly the princi
pals of the several schools should be guided by three
caveats:
First, the law will not tolerate any further undue delay
in the desegregation of the public school systems. It has
been almost fourteen years since school boards were placed
under an affirmative duty to disestablish their dual school
systems based upon race. Brown v. Board of Education of
Topeka, supra. The Courts have recently—particularly in
499
the Fifth Circuit— emphatically stated that no further de
lays in the desegregation process would be allowed. This
was recognized and reaffirmed by the three-judge court in
Lee v. Macon, supra, in its order of April 15, 1967 (unre
ported), when it was stated:
Further delay in the desegregation of Alabama pub
lic schools is inconsistent with existing law. The Su
preme Court of the United States in Goss v. Board of
Education, 373 U. S. 683 (1963), stated: “Delays in
desegregating schools systems are no longer tolerable.”
See also Calhoun v. Latimer, 377 U. S. 263; Watson v.
City of Memphis, 373 U. S. 526, and Bradley v. School
Board of City of Richmond, 382 U. S. 103 (1965). The
law is clear that state authorities are “duty bound to
devote every effort toward initiating desegregation
and bringing about the elimination of racial discrimi
nation in the public school system.” Cooper v. Aaron,
358 U. S. 1, 7. Following this philosophy, the United
States Court of Appeals for the Fifth Circuit has re
fused to permit delay in this area. Davis v. Board of
School Commissioners of Mobile County, Alabama,
322 F. 2d 356 (1963); Singleton v. Jackson Municipal
Separate School District, 348 F. 2d 729 (1965); United
States v. Wilcox County Board of Education, 366 F.
2d 769 (1966).
Second, in the area of desegregating the faculties and
staffs in the several schools in the system, the defendants
may not justify or excuse any further delay upon the
- 4 1 1 -
ground that some of the teachers are reluctant to teach in
schools predominantly of the opposite race. Again, the
500
controlling legal principle in connection with this phase
of the problem was announced by the three-judge court in
Lee v. Macon, supra, in its order of June 14, 1967 (unre
ported), wherein the Court stated that desegregation of
facilities and staffs must be accomplished “ either by in
ducing voluntary transfers by teachers, the filling of va
cancies, or, if they cannot achieve faculty desegregation by
such means, then by the assignment and transfer of teach
ers from one school to the other.”
Third, that unless the “ freedom-of-choice” plan is more
effectively and less dilatorily used by the defendants in this
case, this Court will have no alternative except to order
some other plan used. Caution in this area of the problem
was expressed by the three-judge court in Lee v. Macon,
supra, in its order of March 22, 1967, when it stated:
Invariably in this area of our country the “ freedom-
of-choice” plan has been chosen by the courts and the
school systems themselves as the method to effectuate
the requirements of the Fourteenth Amendment in the
field of desegregation of public educational facilities.
This is the plan which this Court will require—for the
time being—these defendant officials to implement
throughout the State of Alabama.27 This Court recog
nizes that in the freedom-of-choice plan there are many
administrative complexities. It may be that these ad
ministrative problems will make some other method
advisable in the future. It may well he that the free-
dom-of-choice method of desegregation will not fully
27 The reasons are obvious why school officials have not chosen
other plans such as the “neighborhood school” plan, for under
such a plan white students would be immediately required to
attend Negro schools located in their neighborhoods.
501
and completely disestablish the dual public school sys
tem based upon race.28 However, for the time being,
provided that all of the factors designed to influence
and having the effect of influencing choice be elimi
nated, the freedom-of-choice plan will be put into effect
upon a state-wide basis. It should be emphasized that,
if choice influencing factors are not eliminated, free
dom of choice is a fantasy. A “ freedom-of-choice”
plan ordered by a court or adopted by school authori
ties is not an end in itself; it is but a means to an
end. The plan must operate in such a manner as to
meet the constitutional mandate of the Fourteenth
Amendment. As was stated in the concurring opinion
in Bradley v. School Board, 345 F. 2d 310, 323:
Affirmative action means more than telling those
who have long been deprived of freedom of educa
tional opportunity, “ you now have a choice.” In
many instances the choice will not be meaningful
unless the administrators are willing to bestow ex
tra effort and expense to bring the deprived pupils
up to the level where they can avail themselves of
the choice in fact as well as in theory . . . The
district judge must determine whether the means
exist for the exercise of a choice that is truly free
and not merely pro forma.
28 The United States Supreme Court has not yet ruled on the
freedom-of-choice method of ending racial segregation in the
field of public education. However, Goss v. Board of Educa
tion, 373 U.S. 688 (1963), has been cited as support for such
a plan. See Bradley v. School Board, 345 F . 2d 310, 318 (4th
Cir. 1965).
- 4 1 2 -
Several “ freedom-of-choice” plans for desegregating dual
school systems based upon race have recently been found
502
as “ not operating in a constitutionally acceptable manner.”
Coppedge v. Franklin County Board of Education (E. D.
N. D. Aug. 1967), 273 F. Supp. 289, and Moses v. Washing
ton Parish School Board (E. D. La., Oct. 19, 1967), 276
F. Supp. 834.
In accordance with the foregoing, it is the Order, J udg
m e n t and D ecree of this Court that the defendants, their
agents, officers, employees and successors, and all those in
active concert or participation with them, shall adopt and
implement the attached supplement to the desegregation
plan herein ordered on June 1,1967.
This Court specifically retains jurisdiction of this cause.
Done, this the 24th day of February, 1968.
F rank M. J oh nson , J r.
United States District Judge
503
—413—
SUPPLEMENT TO DESEGKEGATION PLAN
I. Faculty and Staff
A. Statement of Objective.
In achieving the objective of the school system, that the
pattern of teacher assignments to any particular school
shall not be identifiable as tailored for a heavy concen
tration of either Negro or white pupils in the school, the
school board will be guided by the ratio of Negro to white
faculty members in the school system as a whole.
The school board will accomplish faculty desegregation
by hiring and assigning faculty members so that in each
school the ratio of white to Negro faculty members is
substantially the same as it is throughout the system. At
present, the ratio is approximately 3 to 2. This will be
accomplished in accordance with the schedule set out below.
B. Schedule for Faculty Desegregation.
1. 1968-69 . At every school with fewer than 12 teachers,
the board will have at least two full-time teachers whose
race is different from the race of the majority of the faculty
and staff members at the school.
At every school with 12 or more teachers, the race of
at least one of every six faculty and staff members will be
different from the race of the majority of the faculty and
staff members at the school. This Court will reserve, for
the time being, other specific faculty and staff desegregation
requirements for future years.
C. Means of Accomplishment.
If the school board is unable to achieve faculty deseg
regation by inducing voluntary transfers or by filling va
504
cancies, then it will do so by the assignment and transfer
of teachers from one school to another.
D. Substitute Teachers.
Commencing March 1, 1968, the ratio of the number of
days taught by white substitute teachers to the number of
days taught by Negro substitute teachers at each school
during each semester will be substantially the same as the
ratio of white substitute teachers to Negro substitute teach
ers on the list of substitute teachers at the beginning of the
semester.
Commencing with the 1968-69 school year, the board will
not use an individual as a substitute teacher in the Mont
gomery Public Schools if he will consent to substitute only
at predominantly white schools or only at predominantly
Negro schools.
E. Student Teachers.
Commencing March 1, 1968, the ratio of white to Negro
student teachers each semester in each school that uses
student teachers will be substantially the same as the ratio
of white and Negro student teachers throughout the
system.
F. Night Schools.
Commencing June 1, 1968, the ratio of white to Negro
faculty members at each night school will be substantially
the same as the ratio of white to Negro faculty members
thro\ighout the night-school program.
505
II. New Construction
Tlie school board will obtain approval from the State
Superintendent of Education prior to letting contracts for
or proceeding with the construction of any new school or
any additions to an existing school. The State Superin
tendent will, upon receipt of such proposals, take appro
priate action on said proposals as recpiired by the March
22, 1967, decree entered in Lee, et al. v. Macon County
Board of Education, et al., 267 F. Supp. 458, 470-472, 480-
481.
III. Transportation
The school hoard will adopt nondiscriminatory bus routes
and criteria governing the availability of bus transporta
tion to students. Race will not be a basis for assigning
students to school buses, and overlapping and duplicative
bus routes based on race will be eliminated. By June 1,
1968, the school board will file with the Court the criteria
it has adopted and a map or maps of bus routes for the
1968-69 school year. Along with the map, the school board
will file a report indicating for each bus in its system, the
number of students by race that the bus is expected to
transport, the capacity of the bus, the number of miles
the bus is expected to travel one way, and the school or
schools the bus will serve. The board will serve the United
States, as amicus curiae, with copies of the criteria, the
report, and the map or maps. IV.
IV. Jefferson Davis High School,
Peter Crump School, and Southlawn School
The school board will take affirmative action to eradicate
the effect of the efforts it and its employees have made to
506
create the impression throughout the school system that
—415—
Jefferson Davis High School, Peter Crump Elementary
School and Southlawn Elementary School are to be used
primarily by white students. The action will include, but
not be limited to, the following steps:
A. Letter to Eligible Students.
By March 1, 1968, the school board will send to every
student presently enrolled in grades 9, 10 and 11 in the
public schools of Montgomery County a letter such as that
set forth in Attachment A to this supplementary plan. A
copy of the information sheet on choice forms and spring
football practice, such as has heretofore been distributed
to white students and parents, will be enclosed with each
letter addressed to a male student.
B. Visits to Schools.
In the company of either the principal or a coach pre
viously assigned to Jefferson Davis High School, that
school’s new coach will visit each high school and junior
high school in Montgomery. They will inform the male
students in grades 9, 10 and 11 at those schools of the rules
concerning their eligibility to participate in athletics at
Jefferson Davis High School. They will also inform the
athletes when and where spring football practice is to
begin for the new high school and of the procedures they
should follow in order to participate. They will also make
themselves available to answer any questions these stu
dents may have about Jefferson Davis High School.
507
C. Transportation.
The school hoard will, on the choice forms, offer to pro
vide transportation to Jefferson Davis High School, Peter
Crump Elementary School and Southlawn Elementary
School, until further order of this Court. The choice forms
will indicate that transportation is to be provided to those
schools. The school board will provide transportation to
each student who chooses Jefferson Davis High School and
who lives outside the City of Montgomery and more than
two miles from the school and who lives nearer Jefferson
Davis High School than either Lee or Lanier High School,
in the absence of compelling circumstances approved by
the Court on the school board’s motion.
D. Honoring Choices.
The school board will honor the choice of each Negro
student who chooses to attend Jefferson Davis High School
during the 1968-69 school year, in the absence of com
pelling circumstances approved by the Court on the school
—4 1 6 -
board’s motion.
Y. Reports
The school board will report to the Court every three
months, beginning March 15,1968, the steps taken to comply
with the desegregation plan ordered into effect June 1,
1967, and with this supplementary plan. Plaintiffs and the
United States will be served with copies of the reports.
A. Reports Previously Ordered.
The school board will include in reports filed each June
15 the “ report on choice period” and “ report on faculty
508
assignments” described in Part VII of the plan ordered
June 1, 1967. The report after school opening, also de
scribed in Part VII of the 1967 order, will become part
of the reports filed each September 15.
B. Faculty.
1. New teachers. Each report filed will list each new
teacher hired during the preceding three months and give
his race and the school to which he is assigned.
2. Substitute teachers. Each report will list the number
of days taught by substitute teachers, by race and by
school, during the preceding three months, with the excep
tion that the report filed March 15, 1968, will give this
information only from the date of the order to which this
supplementary plan is attached.
3. Student teachers. Each report will show by race the
number of student teachers assigned during the preceding
three months to each school having student teachers.
4. Night schools. Commencing June 15,1968, each report
will show by race the number of faculty and staff members
assigned to the night program of each school having a
night program.
C. Transportation.
Each report filed each year on September 15 will show,
for each school bus, the number of students transported
by race, the capacity of the bus, the number of miles it
travels one way, and the school or schools it serves.
D. Jefferson Davis High School and Other New Schools.
The reports of March 15, 1968, June 15, 1968, and Sep
tember 15, 1968 will show the steps (COPY ILLEGIBLE—
PLEASE SUPPLY) to comply with Part V of this sup
plementary plan.
509
ATTACHMENT A
Montgomery Public Schools
^ 17-
Date
Dear Student:
We are sending you this letter to inform you that you
are eligible to attend Jefferson Davis High School if you
choose to do so. The choice period for Montgomery County
schools begins March 1, 1968, and you or your parents will
be receiving a choice form within the next few days.
Jefferson Davis High School is a new school in southeast
Montgomery, to be opened in the fall of 1968. A senior high
school only, it will have grades ten through twelve. Bus
transportation to the school will be available to students
who live outside the City of Montgomery and more than
two miles from the school provided the student exercising
such choice lives nearer Jefferson Davis than either Lee
or Lanier High School.
We are in the process of forming a faculty and staff for
the new school now. It will include a substantial number
of persons of both races.
All students will be welcome to participate in all extra
curricular activities, including athletics and band, on the
same basis and without regard to race. Spring football
practice is scheduled to begin March 4, 1968, at Cloverdale
Junior High School. Two days before that, Saturday,
March 2, at 9:30 a.m., prospective players will be fitted
for equipment at the Cloverdale Community Center in
Montgomery. All athletes who choose to attend Jefferson
510
Davis High School are welcomed to participate. You
should read the enclosed instruction sheet (sent only to
male students) if you are interested.
Enclosure
Sincerely,
Superintendent
Montgomery Public Schools
511
- 4 1 8 -
Writ of Injunction Dated February 24, 1968
In the
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labam a
N orthern D ivision
To the Above-Named Defendants and Each of Them:
T ake notice that you and each of you, your agents,
officers, employees and successors, and all those in active
concert or participation with you, who shall receive notice
of this order, be and you are hereby Ordered and E njoined
as more fully set out in the Memorandum Opinion of this
Honorable Court made and entered in this cause on this
date, a copy of which is herewith served upon each of you.
This writ of injunction is issued in accordance with
said Memorandum Opinion.
W itness my hand and the seal of this Court at Mont
gomery, Alabama, on this the 24th day of February, 1968.
R. C. D obson
Clerk of the United States
District Court for the
Middle District of Alabama
512
Notice of Appeal
(Filed February 27, 1968)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
Notice is hereby given that the Montgomery County
Board of Education, James W. Rutland, Fred Bear, Dr.
J. Edward Walker, Isabelle Thomasson, Dr. Robert Parker
and Walter T. McKee, defendants above named, hereby
appeal to the United States Court of Appeals for the
Fifth Circuit from the injunction and order of the United
States District Court for the middle district of Alabama,
Northern Division, entered in this action on the 24th day
of February, 1968, as fully set forth in the memorandum
opinion of the same date.
D one, this the 27th day of February, 1968.
H ill , R obison, B elser and P helps
Attorneys for Appellant-Defendants
- 419-
513
Bond for Costs on Appeal
(Filed February 28, 1968)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
The defendants, Montgomery County Board of Educa
tion, James W. Rutland, Jr., Fred Bear, Dr. J. Edward
Walker, Isabelle B. Thomasson and Dr. Robert Parker,
Members of the Montgomery County Board of Education
and Walter T. McKee, Superintendent of Education of
Montgomery County, Alabama, as principals, having filed
notice of appeal from the injunction and order of this
Court entered February 24, 1968, to the United States
Court of Appeals for the Fifth Circuit, herewith deposits
in the Registry of the Court the sum of Two Hundred
Fifty Dollars ($250.00), subject to the orders of the Court
for security that said appellants shall prosecute their
said appeal to effect; and that said appellants shall pay
to plaintiffs-appellees all costs if the appeal is dismissed
or the judgment affirmed, or such costs as the Appellate
Court may award if the judgment is modified.
Dated this 28th day of February, 1968.
H ill , R obison, B elser and P helps
Attorneys for Appellants-Defendants
- 420-
514
—4 2 1 -
Motion for Suspension and Stay of Injunction
and Order During Pendency of Appeal
(Filed February 28, 1968)
In th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labam a
N orthern D ivision
Upon the proceedings heretofore had herein, motions,
answers and other papers filed herein, and the affidavit of
V. H. Robison sworn to February 28, 1968, as attached
hereto and made a part hereof, the defendants, Mont
gomery County Board of Education, James W. Rutland,
Jr., Fred Bear, Dr. J. Edward Walker, Isabelle B. Thomas-
son, and Dr. Robert Parker, Members of the Montgomery
County Board of Education, and Walter T. McKee, Super
intendent of Education of Montgomery County, Alabama,
move the Court for an Order suspending the injunction and
order heretofore entered against these defendants, pend
ing the hearing and determination of these defendants’
appeal to the United States Court of Appeals for the
Fifth Circuit from the Order, Judgment and Decree of this
Honorable Court entered February 24, 1968, and for such
other and further relief as to the Court may seem proper.
H ill , R obison, B elser and P helps
Attorneys for Appellants-Defendants
- 4 2 2 -
Certificate of Service (omitted in printing)
515
Affidavit in Support of Motion for
Stay Pending Appeal
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
Before me, Connie J. Knight, this day personally ap
peared V. H. Robison, who is known to me and who, being
by me first dnly sworn, doth depose and say as follows:
1. I am, as the attorney of record for the defendants
Montgomery County Board of Education, James W. Rut
land, Jr., Fred Bear, Dr. J. Edward Walker, Isabelle B.
Thomasson, and Dr. Robert Parker, Members of the Mont
gomery County Board of Education, and Walter T. McKee,
Superintendent of Education of Montgomery County, Ala
bama, fully familiar with the facts and proceedings in this
action. I submit this affidavit in support of the annexed
motion. 2 *
2. The order and injunction as issued by the United
States District Court for the Middle District of Alabama
on February 24,1968 contains far reaching pronouncements
of legal principles heretofore unprecedented in this Dis
trict and this Circuit. These said pronouncements specif
ically include the order and directive to the above-named
defendants to assign and to transfer faculty members,
student teachers and substitute teachers in all schools in
this system or from one school to another, according to a
- 423-
516
fixed ratio based on race. The said order and injunction
—424—
additionally include requirements and directives to these
defendants that they give an affirmative racial preference
to students for school attendance regardless of the prox
imity of the residence of the student to the school involved.
The said order further requires these defendants to
notify all students throughout Montgomery County that
they are eligible to attend the Jefferson Davis High School
when such notice is inconsistent with other provisions of
the said order and inconsistent with prior orders of the
Court.
3. The above provisions of the Court’s order dated Feb
ruary 24, 1968, as well as the compulsory transportation
provisions thereof, the necessity for which not being sup
ported by the evidence or the applicable law, will cause
extensive student and procedural confusion and will dis
rupt orderly school administration in this County, and
would result in students living in close proximity to the
Jefferson Davis High School being subject to denial of
admittance based on race, in preference to a student living
as far as 25 or 30 miles away, and would subject the
student living within 100 yards of the school to have to
travel to another school more than two miles away. 4 *
4. On the 27th day of February, 1968, these defendants
filed their notice of appeal from the said Order of Feb
ruary 24, 1968 to the United States Court of Appeals for
the Fifth Circuit. The usual bond for costs on appeal was
filed on February 28, 1968. A copy of this said notice of
appeal, together with a copy of the said bond for costs on
appeal are attached hereto as Exhibits 1 and 2.
517
5. It is respectfully submitted that during the pendency
of this appeal, the injunctive provisions as set forth above
and as contained in the order of the Court dated Feb
ruary 24, 1968, should be stayed, particularly in light of
the many important legal questions and unresolved issues
therein presented. In deponent’s opinion, the decision as
contained in the said order is in error and is in conflict
with the mandates of the Constitution of the United States,
the Supreme Court of the United States, and the Fifth
- 4 2 5 -
Circuit Court of Appeals. Because of the serious issues and
important questions of law involved in this appeal, these
defendants ought not to be subjected to the drastic effect
of the said injunction pending appeal and ought not to be
subjected pending appeal to the unreasonable adminis
trative burdens resulting from the said injunction. 6
6. It is the opinion of your deponent that to subject this
school system to the provisions of the injunction and order
of the Court dated February 24, 1968, pending appeal,
would result in irreparable injury to the school system of
Montgomery County, even upon a reversal of the order.
W herefore, for all of the foregoing reasons, these de
fendants respectfully pray that the provisions of the in
junction and order of the Court dated February 24, 1968
be stayed during the pendency of this appeal.
V . H . R obison
(Sworn to February 28,1968)
518
- 4 2 6 -
EXHIBIT 1 ANNEXED TO AFFIDAVIT
Notice of Appeal
Notice is hereby given that the Montgomery County
Board of Education, James W. Rutland, Fred Bear, Dr. J.
Edward Walker, Isabelle Thomasson, Dr. Robert Parker
and Walter T. McKee, defendants above named, hereby
appeal to the United States Court of Appeals for the Fifth
Circuit from the injunction and order of the United States
District Court for the middle district of Alabama, North
ern Division, entered in this action on the 24th day of
February, 1968, as fully set forth in the memorandum
opinion of the same date.
D one, this the 27th day of February, 1968.
H ill , R obison, B elser and P helps
Attorneys for Appellant-Defendants
519
- 4 2 7 -
EXHIBIT 2 ANNEXED TO AFFIDAVIT
Bond for Costs on Appeal
The defendants, Montgomery County Board of Educa
tion, James W. Rutland, Jr., Fred Bear, Dr. J. Edward
Walker, Isabelle B. Thomasson and Dr. Robert Parker,
Members of the Montgomery County Board of Education
and Walter T. McKee, Superintendent of Education of
Montgomery County, Alabama, as principals, having filed
notice of appeal from the injunction and order of this
Court entered February 24, 1968, to the United States
Court of Appeals for the Fifth Circuit, herewith deposits
in the Registry of the Court the sum of Two Hundred
Fifty Dollars ($250.00), subject to the orders of the Court
for security that said appellants shall prosecute their said
appeal to effect; and that said appellants shall pay to
plaintiffs-appellees all costs if the appeal is dismissed or
the judgment affirmed, or such costs as the Appellate Court
may award if the judgment is modified.
Dated this 28th day of February, 1968.
H ill , R obison, B elser and P helps
Attorneys for Appellant-Defendants
520
- 428-
Order Amending Order and Injunction of
February 24, 1968
(Filed March 2,1968)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
Upon consideration of the defendants’ motion to stay
the order and injunction made and entered herein on
February 24, 1968, and the arguments in support thereof
and in opposition thereto, it is considered appropriate,
in order to accomplish the intent and purpose of this
Court and in order to clarify the order and injunction
in certain specific respects, to amend the order made and
entered February 24, 1968.
Accordingly, it is Ordered that:
(1) That portion of Part IV, C, reading:
The school board will provide transportation to
each student who chooses Jefferson Davis High
School and who lives outside the City of Mont
gomery and more than two miles from the school
and who lives nearer Jefferson Davis High School
than either Lee or Lanier High School, in the
absence of compelling circumstances approved by
the Court on the school board’s motion,
521
is amended to read:
The school board will provide transportation to
each student who chooses Jefferson Davis High
School and who lives outside the City of Mont
gomery and more than two miles from the school
and wTho lives nearer Jefferson Davis High School
than either Lee, Lanier, or Montgomery County
High School, in the absence of compelling cir
cumstances approved by the Court on the school
board’s motion.
(2) That portion of Part I, D, reading:
Commencing March 1, 1968, the ratio of the num
ber of days taught by white substitute teachers
to the number of days taught by Negro substitute
- 4 2 9 -
teachers at each school during each semester will
be substantially the same as the ratio of white
substitute teachers to Negro substitute teachers
on the list of substitute teachers at the beginning
of the semester,
is amended to read:
Commencing in September, 1968, with the 1968-69
school year, the ratio of the number of days
taught by white substitute teachers to the number
of days taught by Negro substitute teachers at
each school during each semester will be sub
stantially the same as the ratio of white sub
stitute teachers to Negro substitute teachers on
the list of substitute teachers at the beginning
of the semester.
522
(3) That Part I, E, reading:
Commencing March 1, 1968, the ratio of white
to Negro student teachers each semester in each
school that uses student teachers will be sub
stantially the same as the ratio of white and
Negro student teachers throughout the system,
is amended to read:
Commencing in September, 1968, with the 1968-69
school year, the ratio of white to Negro student
teachers each semester in each school that uses
student teachers will be substantially the same
as the ratio of white and Negro student teachers
throughout the system.
(4) That portion of “Attachment A ” to the injunction
wherein it is stated:
We are sending you this letter to inform you
that you are eligible to attend Jefferson Davis
High School if you choose to do so,
is amended to read:
We are sending you this letter to inform you
that you are eligible to choose to attend Jefferson
Davis High School if you desire to do so.
(5) That portion of Part I, B, reading:
(1) 1968 -69 . At every school with fewer than 12
teachers, the board will have at least two full
time teachers whose race is different from the
race of the majority of the faculty and staff
members at the school,
523
is amended to read:
(1) 1968-69 . At every school with fewer than 12
teachers, the board will have at least one full
time teacher whose race is different from the
race of the majority of the faculty and staff
members at the school.
Done, this the 2nd day of March, 1968.
F rank M. Johnson, Jr.
United States District Judge
524
Order
(Filed March 2, 1968)
- 430 -
I n THE
UNITED STATES DISTBICT COUBT
F oe the M iddle District of A labama
N orthern Division
The motion of the Montgomery County Board of Educa
tion filed herein on February 28, 1968, seeking an order
suspending and staying the order and injunction of this
Court made and entered in this case on February 24, 1968,
is now presented. The submission is upon the motion, the
record and the arguments of counsel.
From 1954—when the Supreme Court of the United
States put the Montgomery County School Board and other
school boards throughout this country on notice that they
could not continue under the law to operate a dual school
system based on color—until this Court found it necessary
to enter an order on July 31, 1964, requiring commencement
of the desegregation of the public schools in Montgomery
County, Alabama, the Montgomery County Board of Edu
cation had taken no steps and had made no plans whatso
ever to comply with the law of this land in the area of
school desegregation. Even though ten years had passed
when this matter came on for a hearing in 1964, the Mont
gomery County Board of Education was allowed, by this
Court, to proceed with desegregation gradually, for the
reason that it was realized that desegregation of the public
schools cut across the social fabric of this community and
that there would be both administrative and other prac
525
tical problems for the board to cope with in order to comply
with the law. In the first phase of accomplishing desegre
gation of the public schools—that is, the adoption of a plan,
which has been referred to as “paper compliance”—the
Board of Education proceeded with the minimum required
by the Court, but in a manner that was acceptable. The
—431—
next stage of the desegregation process—the token deseg
regation of the schools and faculty—was also accomplished
by the Board in an acceptable manner. However, we have
reached the point where we must pass “ tokenism,” and
the order that was entered in this case on February 24,1968,
is designed to accomplish this purpose. It was not designed
to and was not intended to accomplish, and, if complied with,
will not require more than the Supreme Court of the
United States and the other appellate courts have held
must be accomplished in order to desegregate a public
school system.
The Board of Education in its motion to suspend and
stay the order of this Court pending appeals—which may
take a year or longer— emphasizes certain particular fea
tures of this Court’s order of February 24, 1968. In some
instances the emphasis is misplaced, and certainly that part
of the motion which states that the February 24, 1968, order
“ contains far reaching pronouncements of legal principles
heretofore unprecedented in this District and this Circuit”
is incorrect—both in law and in fact. The Montgomery
board complains about that part of the order requiring
assignment and transfer of faculty members, student teach
ers and substitute teachers according to a fixed ratio based
on race. While this Court did state in its order of Feb
ruary 24, 1968, that the “ultimate objective” in faculty
desegregation should be, because of the ratio of white to
526
Negro faculty members in the school system, approximately
3 to 2, no schedule was set up to accomplish this “ultimate
objective.” The United States requested that a definite
schedule be outlined for this accomplishment. However,
gradualism has been found to work quite successfully in
the past in this type case and particularly with the Mont
gomery County Board of Education, and gradualism is con
templated by this Court in accomplishing this “ultimate
objective.” What is actually required in the area of faculty
desegregation in the high schools for the 1968-69 school
year is very little—if any—more than the testimony reflects
the school board planned without an additional court order.
For instance, the school board presented testimony by Mr.
Jack D. Rutland, the school principal for the new Jefferson
Davis High School, to the effect that he contemplated hiring
approximately 35 teachers, 7 of whom were to be Negroes.
Thus, what is now ordered in the way of faculty desegrega
tion as far as the Jefferson Davis High School is concerned
is not as much as this Court was led to believe by the board’s
testimony would be accomplished by the board for the 1968-
69 school year without any additional court order. This
also applies to that part of the Court order as now amended
requiring faculty desegregation for the other schools in the
- 4 3 2 -
system. Thus, in the area of faculty desegregation, nothing
more is required of the Montgomery County School Board
by the order of February 24, 1968, than the law requires
as a minimum at this stage of the desegregation process
and very little, if any, is required more than the school
board, by its testimony, advised this Court it was going
to do anyway.
The school board’s complaint that the “ ratio” require
ment is unprecedented is inaccurate. In Board of Educa
527
tion of Oklahoma City Public Schools v. Dowell, 375 F. 2d
158, 164 (10th Cir. 1967), it was observed that:
Among the specific recommendations found in the
report and embraced by the trial court’s order were:
* * *
(4) Desegregation of all faculty personnel so that by
1970 the faculty ratio of whites to non-whites in each
school will be the same as the faculty ratio of whites
to non-whites in the entire school system, subject to
a reasonable tolerance of approximately 10%. [Em
phasis added, footnote omitted.]
The Fifth Circuit has not addressed itself to the means to
be employed to fully achieve faculty desegregation. It has
approved “ racial criteria” in assignments “ in fashioning
an appropriate remedy to undo past discrimination.”
United States v. Jefferson County Board of Education,
372 F. 2d 836, 892 (5th Cir. 1967). The opinion in that case
recognized that requiring a percentage ratio of teachers
in the system was one method of meeting the problem:
We anticipate that when district courts and this Court
have gained more experience with faculty integration,
the Court will be able to set forth standards more spe
cifically than they are set forth in the decrees in the
instant case. 372 F. 2d at 894.
In meeting this problem of faculty desegregation, other
district courts have found it necessary to spell out in spe
cific numbers the degree of faculty desegregation required
where the local school boards have not proceeded with “de
liberate speed.” See Coppedge v. Franklin County Board
of Education, 273 F. Supp. 289 (E.D. N.C. 1967); Kier v.
County School Board, 249 F. Supp. 239 (W.D. Ya. 1966).
528
The school board also complains as to that feature of the
order relating to transportation. The order as now amended
does not require the school board to do anything in the
area of transportation of students that is not already re
quired of practically every school in the State of Alabama
and particularly each of the 99 schools subject to the order
of the three-judge court in Lee v. Macon County Board of
Education, 267 F. Supp. 458. As a matter of fact, that part
of the order of this Court of February 24, 1968, that relates
to transportation is almost a duplicate of what is required
of other schools throughout the State of Alabama in the
area of transportation.
—433—
That particular feature of this Court’s order of February
24, 1968, requiring transportation to the Jefferson Davis
High School only requires transportation on the same basis
that the school board is already providing it to Lee and
Lanier High Schools. As was emphasized in the opinion
and order of February 24, 1968, the Montgomery County
School Board, according to the preponderance of the evi
dence, has set out to continue to operate—other than allow
ing token desegregation—a dual school system based upon
race or color. The evidence clearly reflects that the manner
in which this is to be accomplished is by the construction of
schools with a limited capacity in virtually all-white neigh
borhoods. These capacities are not projected with the com
munity growth in mind. The recent trend by the Montgom
ery board is to limit the capacity of these new schools to
the present student population in these white enclaves. To
perfect this plan, the school board has declared—before
any choices are filed—that no transportation will be pro
vided to the new Jefferson Davis High School, but that
529
transportation will be provided to every other high school
in the county. The announced justification for this is that
the school will be filled to capacity without transporting
any students. Thus, the board will, because of the location
of these new schools (Jefferson Davis, Southlawn Elemen
tary and Peter Crump Elementary), when it refuses to
honor the choices of students who do not live in these
white neighborhoods, be successful in operating exclusively
white schools for white communities. At the same time the
board has been doing this, it has been enlarging, through
expansion programs, the Negro schools; these expansion
programs are based upon the projected student growth.
Through this means, the “ freedom-of-choice plan” will not
accomplish desegregation of the school system in Mont
gomery County, Alabama. If this system is permitted, the
Montgomery board will be using the freedom-of-choice plan
for part of the school system and the neighborhood school
plan for another part of the system. The freedom-of-choice
plan will be operating for schools such as Lee High, Lanier
High, Capitol Heights, Jr. High, Goodwyn Jr. High and
others, and these schools will be desegregated. The Jeffer
son Davis High, Southlawn Elementary and Peter Crump
Elementary Schools will be operated on a segregated basis
—solely for the students residing in these exclusively white
neighborhoods. The law will simply not permit the opera
tion of such a system.
Furthermore, the evidence in this case is clear that the
Jefferson Davis High School has been constructed in an
exclusively white, predominantly high income-tax bracket
community. To allow the Board of Education of Mont
gomery County, Alabama, to succeed in such a plan will
not only be to discriminate against the Negro children who
530
might elect to attend Jefferson Davis High School, but will
also, according to some theories, discriminate against white
children who attend desegregated schools.
This Court has ordered no “busing” of students other
than requiring the Board of Education to provide exactly
the same type transportation and upon exactly the same
basis as that already provided by the board to students
attending Lee and Lanier High Schools.
The last aspect of this Court’s order that the board by
its motion considers innovative to the point that the order
should be stayed pending appeal is that pertaining to honor
ing the choices of Negro students who choose to attend
Jefferson Davis High School during the 1968-69 school year.
As was emphasized in the February 24, 1968, order, the
school board, through its agents and by its own practices,
had set about to create and had created the impression
throughout the system that the new air-conditioned Jeffer
son Davis High School was to be an exclusively white school.
No reasonable conclusion could be reached other than that
this was for the purpose of deterring any Negro student
in the system from choosing the Jefferson Davis school for
the 1968-69 school year. The impression had been created
that the school was not available-—even though the Mont
gomery Board of Education is theoretically operating under
a freedom-of-choice plan—for anyone except the 850 stu
dents of the exclusively white, high-income group that com
prise the community where the new school is located.
Fairness and justice requires that something be done to
counteract this aggravated type of discrimination. The
order emphasizes that this feature is a temporary measure
—presently designed only to operate during the 1968-69
school year. The order further emphasizes that the choices
of Negro students electing to attend Jefferson Davis High
531
School during the 1968-69 school year shall be honored
in the absence of compelling circumstances to be approved
by this Court on the school board’s motion. As to this
feature of the order—as it has throughout this litigation—
reasonableness will govern the Court’s action.
When motions to stay orders and injunctions are filed
by litigants in any type of litigation, normal judicial pro
cedure requires—as was done in this case—that the motion
to stay be presented to the judge entering the order sought
stayed. This invariably places the judge in the position
of being required to review and appraise his own order;
that is the situation now presented. This Court firmly be
lieves that each and every provision and requirement in the
order and injunction made and entered in this case on Feb
ruary 24, 1968, is the minimum the applicable law will
— 435—
allow under the peculiar facts and circumstances presented
and that each and every feature of the order and injunction
entered in this case on February 24, 1968, is not only au
thorized but required by the applicable law. However, it is
not felt that any of the litigants will be prejudiced if cer
tain features of the order to which the Montgomery County
Board of Education most strenuously objects are stayed
for a limited time so as to afford the Board of Education
a reasonable time to secure appellate review of these fea
tures of the order and injunction.
The feature with regard to transportation generally
(which is, as has been emphasized, required of practically
every other school in the State of Alabama), the features
as now amended with regard to the desegregation of the
substitute teacher program, the student teacher program
and the night school program, will not be stayed. These do
not even approach new or novel areas. That part of the
order requiring the approval of the State Superintendent
532
of Education prior to letting new contracts or expanding
existing schools is not novel and will not be stayed. Those
portions regarding reports to this Court are not novel and
are not to he stayed. That provision of the injunction as
now amended relating to faculty and staff set out in Part I,
B, will be stayed for a limited period pending an appeal.
That provision of the order set out in Part IV, C, relating
to transportation to the Jefferson Davis High School, Peter
Crump Elementary School and Southlawn Elementary
School, will be stayed for a limited time pending appeal.
That provision of the order set out in Part IV, D, relating
to the honoring of the choices of Negro students who elect
to attend Jefferson Davis High School during the 1968-69
school year, in the absence of compelling circumstances
approved by the court on the school board’s motion, will be
stayed for a limited time pending appeal. The remainder
of the order, as stated above, will not be stayed.
There is a provision authorizing accelerated appeals
where time is of the essence. This Court considers that
time is of the essence as to these features of the injunction
now being stayed pending this appeal. There is no reason
why the school board, through its attorneys, cannot secure
an accelerated hearing of this matter before a panel of
the United States Court of Appeals for the Fifth Circuit.
In this connection, both the board’s and government’s at
torneys have orally assured this Court that they will seek
to expedite the appeal of this case and will, by reason of
the time limitations involved, request the Court of Appeals
to accelerate the hearing and submission of the case. This
- 4 3 6 -
will enable these features of the order to be reviewed by
the appellate court prior to the commencement of the 1968-
69 school year and will also, in the event one or more of
533
the provisions of the February 24, 1968, order are affirmed,
enable the school board to put them into effect for the
1968-69 school year. This procedure will allow appellate
review of the order before it is scheduled to be effective
and will also keep the Negro plaintiffs from being preju
diced by any further undue delay. In the opinion of this
Court, five months will be ample time to afford the school
board, through its attorneys, an opportunity to secure an
appellate review of these matters. Therefore, a stay order
as to these features herein enumerated will be entered and
the order of this Court of February 24, 1968, as to these
enumerated features will not be effective until August 1,
1968. Unless the school board secures an appellate review
prior to that date, this stay now being entered will expire
on that date. The Clerk of this Court and the official court
reporter for this district stand ready to assist the school
board in the preparation of the record in this case so as
to facilitate the presentation of the matter to the appellate
court.
Accordingly, it is the Order, Judgment and Decree of
this Court that the effective date for complying with, and
making plans to comply with, those provisions in the injunc
tion made and entered herein on February 24, 1968, set
out in Part I, B (faculty desegregation), Part IV, C (trans
portation to Jefferson Davis High School, Peter Crump
Elementary School and Southlawn Elementary School),
and Part IV, D (the honoring of choices of Negro students
who choose to attend Jefferson Davis High School during
the 1968-69 school year) are hereby stayed until August 1,
1968.
Done, this the 2nd day of March, 1968.
F rank M. Johnson, Jr.
United States District Judge
534
—4 3 7 -
Motion for Leave to Amend Notice of Appeal
(Filed March 6,1968)
In the
UNITED STATES DISTRICT COURT
F or the M iddle District of A labama
Northern Division
Come the Montgomery County Board of Education;
James W. Rutland, Jr.; Fred Bear; George A. Dozier;
Dr. J. Edward Walker; Isabelle B. Thomasson and Dr.
Robert Parker, Members of the Board of Education; and
Walter McKee, Superintendent of Education of Mont
gomery County, Alabama, and move this Honorable Court
for leave to amend the notice of appeal heretofore filed
on February 27, 1968, so that said notice of appeal shall
read as follows:
“Notice is hereby given that the Montgomery County
Board of Education; James W. Rutland, Jr.; Fred
Bear; George A. Dozier; Dr. J. Edward W alker; Isa
belle B. Thomasson and Dr. Robert Parker, Members
of the Board of Education; and Walter McKee, Su
perintendent of Education of Montgomery County,
Alabama, appeal to the United States Court of Ap
peals for the Fifth Circuit from the injunction and
order of the United States District Court for the
Middle District of Alabama, Northern Division, en
tered on the 24th day of February, 1968, as fully
set forth in the memorandum opinion of the same
date and as amended on the second day of March,
1968.”
Done, this the 6th day of March, 1968.
H ill, Robison, B elser and Phelps
Attorneys for Defendants
535
- ^ 3 8 -
Order Allowing Amendment of Notice of Appeal
(Filed March 6,1968)
In th e
UNITED STATES DISTRICT COURT
F or the Middle District of A labama
Northern Division
The motion to amend the notice of appeal heretofore
tiled by the defendants having been considered by the
Court, and the Court being of the opinion that the motion
should be granted, it is hereby
Ordered that the motion for leave to amend the notice
of appeal herein filed by the defendants be and the same
is hereby granted.
Done this 6th day of March, 1968.
F rank M. Johnson, Jr.
United States District Judge
536
Amended Notice of Appeal
(Filed March 6,1968)
In the
UNITED STATES DISTRICT COURT
F or the M iddle District of A labama
Northern Division
With leave of the District Court being first had and
obtained, the defendants herein do hereby amend the notice
of appeal heretofore filed herein to read as follows:
“ Notice is hereby given that the Montgomery County
Board of Education; James W. Rutland, Jr.; Fred
Bear; George A. Dozier; Dr. J. Edward Walker; Isa
belle B. Thomasson and Dr. Robert Parker, Members
of the Board of Education; and Walter McKee, Su
perintendent of Education of Montgomery County,
Alabama, appeal to the United States Court of Ap
peals for the Fifth Circuit from the injunction and
order of the United States District Court for the
Middle District of Alabama, Northern Division, en
tered on the 24th day of February, 1968, as fully
set forth in the memorandum opinion of the same
date and as amended on the second day of March,
1968.”
— 439—
H ill, Robison, B elser and Phelps
Attorneys for Defendants
537
— 44a
Defendants’ Statement of Points
(Filed March 6,1968)
In the
UNITED STATES COURT OF APPEALS
F or the F ifth Circuit
No.
Montgomery County B oard of Education; James W . Rut
land, Jr.; F red Bear; D r . J. Edward W alker; Isa
belle B. T homasson; and D r . Robert Parker, Mem
bers of the Montgomery County Board of Education;
and W alter T. McK ee, Superintendent of Education
of Montgomery County, Alabama,
Appellants,
v.
Arlam Carr, J r ., a minor, by A rlam Carr, and Johnnie
Carr, his parents and next friends; Bathsheba L.
Thompson, John W . T hompson, James G. T hompson,
and Phillip L. T hompson, minors, by B ishop S. Thomp
son, S r ., and Lois E. T hompson, their parents and next
friends,
Appellees,
U nited States of A merica,
Amicus Curiae.
The defendant-appellants, Montgomery County Board
of Education, James W. Rutland, Jr., Fred Bear, Dr.
538
J. Edward Walker, Isabelle B. Thomasson, and Dr. Robert
Parker, Members of the Montgomery County Board of
Education, and Walter T. McKee, Superintendent of Edu
cation of Montgomery County, Alabama, state the follow
ing points on which they intend to rely on their appeal
from the order and judgment and decree as amended,
granting an injunction herein:
1. The issuance of the order, judgment and decree as
amended granting the injunction herein was contrary to
the evidence.
2. The issuance of the order, judgment and decree as
amended granting the injunction herein was contrary to
the law.
3. The Court erred in its order and directive that the
Montgomery County Board of Education assign and trans
fer faculty members, student teachers and substitute
teachers throughout all schools in the Montgomery County
School System and from one such school to another, accord
ing to a fixed ratio based on race.
— 441—
4. The order and directive by the Court that the Mont
gomery County Board of Education assign and transfer
faculty members, student teachers and substitute teachers
throughout all schools in the Montgomery County system
according to a fixed ratio based on race is contrary to
the law. 5
5. The Court erred in its order and directive that the
Montgomery County Board of Education give an affirma
tive racial preference to students for attendance in the
539
Jefferson Davis High School regardless of proximity of
the residence of the student to the school involved.
6. The Court erred in its order and directive that the
Montgomery County Board of Education provide trans
portation to Jefferson Davis High School, Peter Crump
Elementary School and Southlawn Elementary School.
7. There is no substantial evidence to support a finding
or holding that these defendant appellants have not at
all times complied with all orders of this Court.
H ill, Robison, B elser and Phelps
Attorneys for Defendant-Appellants
Certificate of Service (omitted in printing).
540
— 4 4 2 -
Comments at Conclusion of Hearing of May 5, 1965
(Filed May 5,1965)
In the
DISTRICT COURT OF THE UNITED STATES
F oe the Middle District of A labama
Northern Division
Civil Action No. 2072-N.
A rlam Carr, Jr., a minor, by A rlam Carr and Johnnie
Carr, his parents and next friends; and Bathsheba L.
T hompson, John W . T hompson, James G. T hompson,
and Phillip L. T hompson, minors, by Bishop S. T homp
son, Sr. and Lois E. T hompson, their parents and next
friends,
vs.
Montgomery County B oard of Education ; James W . Rut
land, Jr., F red Bear, George C. Starke, George A.
Dozier, Dr. J. E dward W alker, Isabelle B. T homasson
and Dr. Robert Parker, Members of the Montgomery
County Board of Education; and W alter McK ee,
Superintendent of Education of Montgomery County.
(The above-styled cause coming on for Hearing Upon Ob
jections to Proposed Desegregation Plan, at Mont
gomery, Alabama, May 5, 1965, before Hon. Frank M.
Johnson, Jr., Judge, a hearing was had, at the con
clusion of which the following was dictated by the
Court:)
541
The Court: All right, Mr. Reporter, will you type this
for the lawyers, please. Particularly Mr. Sutin, as amicus;
I want you to prepare a court order for me along these
lines:
The injunction that was issued by this Court on July 31,
1964, of course, remains in full force and effect, except to
the extent that it may be hereinafter formally modified by
a court order, and what I am saying now is, of course, ten
tative ; it will be formalized by an order to be prepared by
Mr. Sutin along these lines and presented to you gentle
men prior to the date it is to be presented to me, and I
will confer with you at the time it is presented.
Under the plan as adopted pursuant to the order of the
Court of July 31, 1964, as of September, ’64, grades one,
ten, eleven, and twelve were desegregated under this
“ transfer freedom of choice” plan. The Board now pro
poses to the Court that in addition to grades one, ten,
eleven, and twelve, they open and desegregate grades two
—443—
and nine, effective September of this year. This Court is
going to, with some minor modifications, approve this plan
as proposed by the Montgomery Board. One modification
is, in addition to grades two and nine that are to be de
segregated and transfers accepted, effective September,
’65, that the plan include grade seven. That means that as
of September, ’65, the Board proposes to desegregate one,
two, nine, ten, eleven, and twelve; the Court approves
that, and in addition orders that grade seven be desegre
gated.
Now, this “ notice” provision in the plan isn’t approved.
I think the time is too short. There should be a thirty-day
period for these parents to make application for transfer.
542
And notice should be given to all Negro parents of students
in the County System in lay language by letter from the
Board, on or before June 10, as to their right to transfer
as to grades seven, nine through twelve, and one and two.
They should be advised as to their freedom of choice and
their right to apply, in nonlegalistic language. This should
be augmented and supplemented; that is, the letter to be
sent not later than June 10 should be augmented and sup
plemented by two newspaper ads—at least two; you can
use more if you want to—published on June 20 and June
27, or some other dates that may suit the convenience of
the Board, but along about that time. Applications for
transfer should be taken during the thirty-day period, and
not during just a fifteen-day period; applications should
be taken from June 21 through July 20. That will give the
School Board plenty of time. In these notices that are in
the paper and sent out by mail, the parents should be ad
vised as to the school district that they are in, that they
have a preference, if they desire to exercise that prefer
ence by making application for their child or children to
attend schools formerly predominantly attended by mem
bers of the opposite race they can do so.
Now, I understand the objections to applications being
made to the office of the Superintendent of Education, but
I understand the reason for it during this period of transi
tion. I don’t envision that the plan, except during this pe-
—444—
riod of transition, this year and possibly next year, will
authorize that. But I think to require both parties to come
is an onus and undue burden, so the plan should just re
quire one of the parents to make the application.
Mr. Gray: Excuse me, your honor; is that one to physi
cally pick it up and bring it back?
543
The Court: Yes; yes; yes, but not both. And the ap
plication can be made only by one parent, and not by both;
if you run into any trouble like you say you had in one
instance last year, I will resolve it for you.
The order should direct the defendants to report to this
Court on or before August 10, 1965, as to the action taken
on each application for transfer and assignment. The
defendants should be ordered to file their plan for com
pletion of the desegregated system, including abolition of
the dual school or biracial school system, which of course
still exists. I am not naive enough to believe that desegre
gation of certain grades by transfer, such as we are doing
here, is full compliance with what the law eventually en
visions and requires, but I recognize that it is a transition
period, and I think that this is reasonable for the facts
in this case and the circumstances existing in this particu
lar school district at this time. So the Board should file
with the Court its plan for completion of the desegregation
of the dual school and biracial school system on or before
January 14 of 1966.
The amicus, United States, should prepare this order
and present it to me, together with counsel for the plain
tiffs and counsel for the defendants, not later than May 17.
Present it to those attorneys prior to the time, and consult
with them concerning the preparation of it, particularly
the notices, the dates that they are to be given. That means
that the letter notice, then, for the thirty-day period the
Board will be taking applications for transfers should be
sent out not later than June 10; that the newspaper notices
—445—
should be made on or about June 20 and on or about
June 27; that the period for taking applications on the
part of the Board for these transfers to grades seven,
544
nine, ten, eleven, twelve, one, and two should be from
June 21 through July 20; the report to the Court for the
Board on August 10; the complete plan for desegregation
filed on or before January 14, 1966; this order presented
on or before May 17 of this year.
Let me say this; that I recognize the problems that
exist in this particular school district, and I think the plain
tiffs recognize them, and both parties in this law suit have,
up to this point, demonstrated to me an awareness of their
responsibilities, not only to their clients, but to the school
system; and I want to congratulate and compliment both
the plaintiffs and particularly the School Board, Mont
gomery County School Board, for its efforts as demon
strated last fall in complying with the law as that law
was reflected in the order of this Court. If you have any
questions, gentlemen, I will be available.
Mr. Phelps: Judge, could I ask one question at this
time? This is something that we could start work on.
The Court: All right.
Mr. Phelps: Would the court be receptive to the letter
being sent to the parents by the report cards?
The Court: Any way you get it to them; I want Mr.
Sutin to help in the preparation of that letter, to make sure
that it explains exactly what their rights are in nonlegal-
istic terms.
Mr. Phelps: All right, sir.
Mr. Robison: That would be May 27, I believe.
Mr. Walter McKee: 27th or 28th.
The Court: You can accelerate the schedule if you wish,
or if it is convenient, such as getting it to them a little
later, to send the report cards, we will make it convenient,
we will change the dates; sure.
545
Mr. Robison: Save the postage and the other things.
The Court: Absolutely; absolutely. You are going to
- 4 4 6 -
have a problem, now, as to how to advise your first graders,
those coming in the first grade; I take it you have some
method of knowing who they are.
Mr. Robison: No, sir.
Mr. Walter McKee: No, sir.
The Court: Well, you will have to do that, then, strictly
by publication—
Mr. Robison: We have no way of knowing.
The Court: —unless you know of some way to know
who they are. Any other thing you think you might need
to raise at this time?
Mr. Gray: Your honor, it is not on the plan, itself; it
is on the reproduction of one of the Exhibits that we are
supposed to reproduce. I am wondering whether or not—
I am going to have to get them Xeroxed, and I need per
mission from the Court to be able to take them to get them
Xeroxed for that purpose.
The Court: Well, I have no objection to you withdraw
ing them; if counsel wants to go with you, give them notice
as to when you are going to take them so that they can
take them with you, and you can sign them out from the
Clerk. It may be, in view of this action, you will want to
withdraw them and let them stay in custody of Mr. McKee;
I don’t know, that is up to you.
Mr. Gray: Well, your honor, what I think I would like
to do at this time is to withdraw them, with the under
standing that if we need them later, then we could have
copies.
The Court: Why don’t we do it that way?
546
Mr. Robison: That will be agreeable with us.
The Court: Then by agreement, let the Clerk return
them to Mr. McKee, with the understanding that if the
plaintiffs want them back—
Mr. Gray: Yes, sir.
The Court: — then you will make application directly
to the laAvyers, and they will get them to you for copying.
— 447—
Mr. Gray: Thank you.
The Court: All right. All right, gentlemen. Recess court
until further ordered.
C ou rt R e p o r t e r ’s C ertifica te (o m itte d in p r in t in g )
547
- 4 4 8 -
Memorandum Transcript— Hearing of May 25 , 1967
In the
DISTRICT COURT OF THE UNITED STATES
F ob th e M iddle D istrict of A labama
N orthern D ivision
(Hearing in above-styled case having been had at Mont
gomery, Alabama, May 25, 1967, before Hon. Frank M.
Johnson, Jr., Judge, the following comments were made
by the Court at the conclusion of the hearing:)
The Court: All right, gentlemen; I will take this matter,
then, under consideration. And, since there is very little
controversy between you on it, you can expect an order
to be entered substantially like that proposed; there will
be a few changes.
I would like to say this to you here in the presence of
the plaintiffs’ and the Government lawyers; that I am im
pressed that the Montgomery County Superintendent of
Education and members of the Montgomery County School
Board of Education now evidence and have in the past
evidenced a desire and intent to operate a school system
here in Montgomery County as professional educators and
not as politicians. This present attitude is demonstrated
—449—
here at this time; this past conduct on the part of these
officials has, without any doubt, inured to the benefit of
the students, regardless of their race, in Montgomery
County that seek quality education. And I have observed
and I have been impressed that these officials have ac-
548
complished this largely through— or this has been accom
plished largely through their efforts and without any seri
ous discord or disruption as far as any school is concerned.
This, when it is compared with some other similar opera
tions, is a considerable feat, for which this community,
in my judgment, owes these school officials their appre
ciation. It evidences a pattern of professional conduct that
other systems could, for the benefit of their students,
emulate.
I will enter a decree in this case.
Mr. Vaughan H. Robison: Thank you.
C o u rt R e p o r t e r ’s C ertifica te (o m itte d in p r in t in g )
549
^ 52-
Transcript of Hearing— September 5, 1967
I n the
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
Before Hon. Frank M. Johnson, Jr., Judge, at Montgomery,
Alabama, September 5,1967.
A p p e a r a n c e s :
For the Plaintiffs:
Gray & Seay (Fred D. Gray).
For the Defendants:
Hill, Robison, Belser & Phelps
(Vaughan H. Robison and
Joseph D. Phelps).
For the United States:
Reuben Ortenberg and
Alexander Ross.
—453—
(The above case coming on for hearing at Montgomery,
Alabama, September 5, 1967, before Hon. Frank M. John
son, Jr., Judge, the following proceedings were had:)
The Court: Let’s get to this next hearing, this Arlam
Carr and Montgomery County; do you have any evidence
in that case to take this morning? Mr. Gray isn’t here, and
it isn’t set until eleven this morning.
550
Mr. Robison: That’s right, sir; and I understand Mr.
Reuben Ortenberg, from the Department of Justice, is in
that case; having filed a motion, we would like a con
ference with your honor, if the court please, prior to the
eleven o’clock hearing, if agreeable with all counsel and the
Department of Justice.
The Court: All right. Well, why don’t we set that con
ference for ten thirty this morning.
Mr. Robison: Fine.
The Court: You get in touch with Mr. Ortenberg, and
you can get in touch with Mr. Gray, if he represents the
—if he is handling the case for the plaintiffs.
Mr. Solomon S. Seay, Jr.: All right, sir.
The Court: All right; I will just keep these, then, for
the time being. We will recess until further order.
(At which time a recess was had, and at 11:06 a.m., the
case was called and the following proceedings were had:)
The Court: All right; Arlam Carr and others against
Montgomery County Board and others, number 2072-N,
—454—
here on the motion filed for further relief by the United
States and by the plaintiffs. Ready to proceed?
Mr. Ortenberg: Ready, your honor.
Mr. Robison: If the court please, we likewise have a
motion, as your honor knows, before the court asking that
the relief be denied, and as one of the grounds, setting
forth it is not timely filed. The plaintiffs in this case didn’t
even join with the United States of America until the
29th day of August, and the amicus curiae filed it on the
17th day of August, some two months after our report
was filed and approximately two weeks before school
opened. As a matter of fact, today we are having faculty
551
and principal meetings, and we have asked that the motion
be dismissed on that ground.
The Court: Well, if that is to be interpreted as a motion
to dismiss without any hearing, I will deny it; but I will
take in consideration the timing and—when and if I reach
the substance of the matter.
Mr. Eobison: All right, sir.
The Court: Ask your witnesses to come around.
Mr. Ortenberg: Mr. Walter McKee.
The Clerk: Do you have other witnesses?
Mr. Ortenberg: Yes.
The Court: All your witnesses that are going to testify
should be sworn at this time.
Mr. Ortenberg: All persons—Mr. Smith and Mr. Sey-
— 455-
more, Mr. Reed. Mr. Garrett.
The Clerk: All witnesses, please raise your right hand.
You and each of you do solemnly swear that the testimony
you give in this cause to be the truth, the whole truth, and
nothing but the truth, so help you, God.
The Court: All right; you want the rule invoked?
Mr. Ortenberg: Yes, your honor.
The Court: All right.
Marshal: This way, please.
Court Crier: Have to use this other room, that is—
Grand Jury is in there.
Marshal: Go around on that side.
Mr. Robison: You want Mr. Garrett under the rule, Mr.
Ortenberg? He is Assistant-Associate Superintendent.
Mr. Ortenberg: I guess it won’t be necessary.
Mr. Robison: Thank you, sir.
552
W alter M cK ee, a defendant, called as witness by the
United States, having been duly sworn, testified as follows:
Direct Examination by Mr. Ortenberg:
Q. Would you state your name, address, and occupation,
please, sir? A. Walter McKee, Superintendent of Schools,
Montgomery, Alabama.
Q. Mr. McKee, were you served with a subpoena re
quiring you to bring certain documents to—this morning?
— 456—
A. I was.
Q. Do you have those documents with you? A. Yes, sir.
Q. May I have them, please? A. I have—which ones
do you want, now, first?
The Court: Well, I directed those be furnished
sometime ago.
Mr. Kobison: We have, your honor.
The Court: Have you already furnished them?
Mr. Ortenberg: Yes, sir.
The Court: Have you already looked at them?
Mr. Ortenberg: Yes, sir.
The Court: Let’s get them out here on the table
then.
A. There is the letters.
Q. I will just take all of them. A. This is—
The Court: Have they been marked for iden
tification, Mr. Clerk?
The Clerk: No, sir.
Mr. Ortenberg: Your honor, we were in confer
ence until just before the hearing started. Would
553
you mark these Government Exhibit 1 for iden
tification, please?
The Clerk: All of them as one?
Mr. Ortenberg: Yes.
The Clerk: Government Exhibit number 1 for
^ 5 7 -
identification.
The Court: What do they purport to be?
Mr. Ortenberg: Correspondence between the Su
perintendent or—and Associate Superintendent of
Schools and teachers assigned to schools of the—
The Court: Do you have any objection to it?
Mr. Robison: No, sir.
The Court: It will be admitted in evidence, and
I will consider it, in connection with your motion
and your opposition to it.
Q. Mr. McKee—
The Court: Let me see them.
Q. —do you recall how many—how many teachers were
—were tentatively assigned for the 1966-67 school year
to teach in schools in which their race is in the minority?
A. ’67-68 o r ’6—
Q. No, sir; ’66-67? A. My recollection was that there
were five each way.
Q. Pardon me, sir? A. My recollection was it was
four each way—
Q. Four each way? A. —in ’66-67.
Q. And how many are tentatively assigned as regular
classroom teachers, fulltime, for the 1967-68 school year?
A. There were five employed each way, although in case
—458—
of some of them, they have had to have been re-employed,
554
because some have resigned since they were accepted, but
at the present time, there are five each way.
Q. And of the— of the total of ten who were assigned
across racial lines, how many of those had been among
the group that was—that were assigned for the 1966-67
school year? A. Well, originally, there were five; there
were four of the colored teachers and one of the white
teachers; but one of the white teachers has subsequently
resigned.
Q. So that at this present time— A. As of the present
time, there are four colored teachers that were in the
group last year.
Q. So that for the 1967-68 school year, these ten reg
ular classroom teachers include the four of last year plus
six additional teachers that—that you have— A. I be
lieve all six of those are new teachers.
Q. Now, of the—of the— A. Of course, we have the
three speech teachers that we talked about in addition.
Q. Yes, sir; that would be regular classroom teachers
that I am talking about. Now, of the ten teachers who are
assigned across racial lines for the 1967-68 school year,
and who were reported as such on June—in the June 15
report to this court, have any of those resigned? A. Two
or three of the— of the white teachers have, but they have
— 459—
been replaced.
Q. Were they replaced by other white teachers? A.
Yes.
Q. The same number that had been—that had resigned?
A. That’s right; that’s right.
Q. Who was it that decided, Air. AlcKee, that there
should be five teachers crossing over each way? A. Well,
555
we studied the situation very carefully after last year,
and in discussion with other school systems, similar size
and character to ours, and we thought that by and large
the best way to start this thing would be in the senior
high schools, and we made that attempt. We had hoped
to expand it. For instance, we have a vacancy we have
had for three or four weeks at Booker Washington, and
we have offered it to at least a half a dozen or more people,
and some of them will take— they say, “ We will take it,”
then get back and write a letter or call back the next
day, they have talked with their husband, and they won’t
take it; and we have held that open hoping we could ex
pand it some more. But that is the way we are at the
present.
Q. How did you decide on the number, ten? A. Num
ber of—I didn’t know that there was any magic about the
number of ten; we were going to desegregate some facul
ties in the senior high school; in fact, we first thought
about four; then it worked out where we could get five.
I f we could get six or seven—but we have had that terrific
problem of getting the white teachers to accept the posi-
— 460—
tion in the colored schools.
Q. Why is it that it was decided that the faculties, the
desegregation for this year, should only be in high schools?
A. We felt it would work better there; we have tried to
work this segregation problem without any hullabaloo as
they have had in many places; we have tried to honestly
work it smoothly. We felt that there would be less ob
jection in the senior high schools, because one teacher
would not have the pupils as much of the day as they
would in the lower grades. And we felt that if we could
get that accepted—you may not realize it, but even those
556
five teachers, there will be some seven hundred and fifty
white children that will be taught by colored teachers,
plus there will be seven hundred fifty children, just with
those ten teachers, and we have got the problem; all of
those parents, many of these parents say, “Well, it is all
right, just so my child is not in that room.” And we are
going to get the calls and everything that—working to
try to get that child out of their room. Plus we have had
all this other atmosphere that you are familiar with, that
has given some people some hopes.
Q. How many high schools do you have in the Mont
gomery County school system? A. Well, we have four
high schools here in the city.
The Court: All that evidence is before the court,
Mr. Ortenberg; this case has been going on a long
time. We have taken testimony in it. I know the
name of nearly every school in the system.
— 461—
Mr. Ortenberg: Yes, your honor.
Q. Mr. McKee, why was it decided that the faculty de
segregation would take place in only four of the high
schools in the system? A. Because we felt that if we
could protect—if— everything better in the city, better than
we could in the county. The county is pretty sparsely
settled. There is no police force; there is only a few Deputy
Sheriffs to cover the whole county; and we have already
gone into this with all branches of the law enforcement.
We are going to have special protection in every one of
these situations where we have had teachers. Just like
when we started at Lanier with three colored pupils, those
pupils were watched every minute of the day by some
557
body. We are going to have to do the same thing in a
much greater degree with these teachers; we are going
to have to assign our supervisors to spend a large part
of their time, because it is going to—any little instance
that comes up in that classroom is going to be a race
issue, and we are going to have to avoid that, and we
are going to try to do it and do it right.
Q. Are you familiar, Mr. McKee, with the—with the
order of this court of June 1— A. I am very—
Q. —providing for faculty— A. I am very familiar with
it. I know it says that it is our duty to— to integrate the
faculties, and I also further know that under the law, we
- 4 6 2 -
can transfer teachers by Board action, but we know by
experience that malicious transferring of people, when
race is not even a problem, will always create a bad situa
tion.
Q. Are—are you familiar with the fact that the order
of this court does not limit the faculty desegregation to
high school? A. I certainly am, but we were hoping that
by doing it this way and getting it into peaceful operation,
that next year would be a good bit easier; just like this
fall, there will probably be a hundred Negro kids at
Lanier, and I doubt if there will be a ripple because of it;
but three years ago, if a hundred had appeared there, you
would have—the private school system would have opened
up here overnight.
Q. Are you familiar with the number of teachers who
were displaced as a result of the closing of fourteen schools
in the county this year? A. I don’t know, but there wasn’t
any of ours displaced; they are all hired.
558
Q. Excuse me; I don’t mean displaced from the system,
but displaced from the schools that were closed? A. They
are all hired in the system for next year.
Q. And were—what was the race of those teachers?
A. All of them were colored.
Q. Are you familiar with how many there are? A. I
would say there was forty odd—there was fourteen schools,
and they represented from two to three teachers each.
—463—
Q. Which schools are they assigned to? A. Various
schools in the system.
Q. Were they all assigned to Negro schools? A. They
were all assigned to colored schools, because these were
all elementary teachers, and we wanted to make our start
a successful start and make it in high school.
Q. How many—how many teachers are starting in the
Montgomery school system in the 1967-68 school year for
the first time? A. New to the system, I would estimate
around a hundred.
Q. And which school levels are these teachers involved
in? A. Well, there are some of all levels.
Q. Elementary, junior high school, and high school? A.
Y es; uh, huh.
Q. And have any of the—these approximately one hun
dred new teachers been—been assigned across racial lines?
A. All—all teachers that have been interviewed, even—that
is on our application—have been asked if they would—
I mean it is on their application and has been discussed—
in most instances even when they went to the colleges to
interview teachers in the spring, our people asked them if
they would; many of them said they wouldn’t ; a few of them
said they would. And those in the high schools, except the
few that have stuck, that said they would, after we have
559
offered them the job, they—in a day or so, they came hack
and said their husband wouldn’t let them or the neighbors
were going to criticize them or so and so, and they just
resigned.
— 46 4 —
Q. Is there a—presently a school construction being con
ducted at the Carver School! A. Yes.
Q. Does that include any classrooms? A. Yes.
Q. How many classrooms? A. Oh, it’s got—four class
rooms are being added to the elementary school, and there
are—there is an auditorium and an R.O.T.C. rifle range and
a band room and a couple of music rooms.
Q. And will the teachers who will fill those four new
classrooms all be Negroes? A. I am not sure whether the
—I am sure some of those white teachers that are assigned
there, probably the R.O.T.C., maybe one other, whatever
departments—I don’t remember what departments they are
in off hand.
Q. Will those classrooms be ready for this school year?
A. I think the four elementary ones will; the others won’t
be ready until a couple of months, I mean maybe longer
than that, one of them.
Q. Will the four elementary— A. Yes; we hope to get
into those.
Q. —classrooms! A. We hope to get into those, but
none—but none of the rural children are there unless they
chose to go there, and I don’t think any of them chose
there.
- 4 6 5 —
Q. You say you hope—you hope to get into those; will
they be ready on Wednesday when school starts? A.
They will be ready, but I don’t—those that are being built
560
in connection with the auditorium, it will be a month or so
before they are ready.
Q. Yes, sir; but the classrooms— A. The four elemen
tary school rooms; yes, sir.
Q. —will they be ready on Wednesday when school
starts? A. Well, they will be ready on Thursday.
Q. Is there any other school construction going on? I
believe there is a new high school being constructed; is that
correct? A. Yes, sir.
Q. When will that high school be complete? A. We hope
to open it a year from now.
Q. A year from now? A. Uh, huh.
Q. Have you made any plans about staffing that school
yet? A. No; except we have selected the principal is all.
Q. When do you anticipate making plans for staffing that
school? A. Oh, after Christmas, sometime in early spring,
usually, when we—.
Q. Now, have you had any—any correspondence from
—from universities and teacher placement organizations
concerning faculty desegregation? A. I don’t recall any
except from the Alabama Teachers’ Association; Mr. Reed,
who is one of the witnesses you summoned here, I think
—466—
sent out a letter to all Superintendents that they would he
glad to help find any Negro teachers that anybody needed
that would go to white—
Q. Did you respond to that letter? A. No; I don’t even
think it called for a response; it was just mimeographed.
I have mine; it was a general letter to all— .
Q. Did you seek the assistance that he offered? A. We
—we could find plenty of Negro teachers to go to white
schools; that is not a problem -with us; I say we can find
colored teachers to go to white schools.
561
Q. Have yon received any other such contacts from—
from other organizations that might be able to provide
white teachers? A. Not that I recall.
Q. Have you had occasion in the past, Mr. McKee, to hire
teachers after the beginning of the school year? A. Oh,
yes; you will have vacancies during the school year.
Q. How much—how much time can elapse after the school
year— or has elapsed after—after the school year has
begun when you have hired a teacher? A. Well, it de
pends on conditions; you will have a death or a teacher gets
pregnant or husband moves out of town. It happens through
the year; it varies. Either we fill it or either use one of
the teachers on the substitute list; a lot of times we just
use a substitute teacher, if it is too close to the end of
the year, to fill out the year.
— 467—
Q. So you have—you have filled the teacher positions as
late as two weeks or two months after school has begun?
A. Oh, yes; yes, we will hire teachers.
Mr. Ortenberg: No more questions of this witness.
The Court: Any questions?
Mr. Robison: Yes, s ir ; if the court please.
Mr. Gray: Excuse me.
Mr. Robison: Yes, sir.
The Court: Just a minute; go ahead, Mr. Gray.
By Mr. Gray:
Q. Mr. McKee, have you employed any teachers since
June 15, the day of this report? A. You mean—yes; we
have employed some teachers since June 15.
Q. Approximately how many teachers have been em
ployed since June 15? A. Oh, I would say thirty, thirty-
562
five; of course, we have had some of those white teachers
that resigned in the colored schools, we have had to re-
employ—I mean employ other people for those places.
Q. Approximately how many Negroes and how many
white are those? A. I don’t have the exact figures; there
will be more—more white than there are Negroes.
Q. Were any of the white teachers employed since the
15th assigned to Negro schools? A. Yes; we have had to
—had several.
Q. Were those replacements for the five, in addition to
—468—
the five? A. Yes; they happened to wind up even. We
were behind the court report, and we caught back up. We
thought we were going to get ahead; then this last person
resigned the other day came to us or came in and said
her husband wouldn’t let her take it, and she had been
teaching in Detroit before this, but her husband wouldn’t
let her take it.
Q. So these were replacements; is that right? A.
Well—
Q. White ones that were assigned? A. Yes; they were
replacements for a vacancy.
Q. And not any in addition to the number. A. We were
trying to get ahead, but we just kind of lost.
Q. Can you tell us, sir, how many white teachers have
been assigned, period, to formerly all-Negro schools, ap
proximately how many white teachers? A. I would say—
not assigned, we have employed them to go there—prob
ably twelve or thirteen, maybe fourteen for those—
Q. And all but the five have refused to go? A. They
have either accepted it and then later wrote a letter of
resignation, or they said, “ I want to talk about it,” and
563
then come back and—the next day or two and sav they
wouldn’t take it.
Q. Now, how many Negro teachers have been assigned
to formerly all-white schools? A. We have hired five
Negroes to teach in former white schools.
— 469—
Q. And all five of those have agreed to go? A. Yes, sir.
Q. Is there any reason, Mr. McKee, why more Negro
teachers can’t be assigned to predominantly white schools?
A. They could be found, but I think if we want to keep—
our teachers now are about in proportion to our pupils,
about fifty-nine forty-one, and the teachers and pupils
both, and I think that if you want to carry this thing out
in an orderly fashion through the years, you would want
to keep them that; you wouldn’t want to have them all
Negro or all white.
Q. So the reason you don’t have more Negro teachers,
even though they are available, is because you can’t get
more white teachers? A. We haven’t been able to; we
have been trying to get some more white teachers to go
in the situation.
Q. Now, let me ask you this, sir; is it your testimony
that contact has been made of every white teacher in the
senior high school department, and no white teacher, other
than those that have already been assigned, will accept
employment in Negro schools? A. In March of this year,
our principals spent a whole meeting on the court order.
They went back to their faculties to work with them to
get anybody that would be willing to accept an assign
ment across lines. I don’t think any came into the office;
maybe one colored teacher. Then on April—or something,
13th, some date—I wrote a letter in which I asked each
principal to read at their faculty meeting that section of
564
the court order that pertained to faculty desegregation,
— 470—
which was the one we were operating under in April,
which is not a great deal different from the one we have
now; and we did not get any response from that, not even
from the Negroes. But we did, in talking with the Negroes
that accepted those assignments, and the whites that ac
cepted those assignments last year, when the Judge re
lieved us of doing that until this year, they all had said
then that they would accept them a year from now; well,
in the case of the white teachers, they had—most of them
had gone, and with the exception of one, I believe, that
we offered her the position; she accepted it, and later
wrote a letter that she was leaving town.
Q. So then do I understand, sir, from your testimony
that there are no white teachers now employed in the sys
tem who would accept employment in Negro schools? A.
They did not—they did not respond to our request.
Q. No individual contact has been made? A. Yes; we
have contact—we contacted two this week, or last week,
or maybe week before last, about this science vacancy we
have at Booker Washington; both of them, after they went
home and came back the next day and declined.
Q. Now, these contacts you are referring to, either you
or Mr. Garrett or some other person in-—under your super
vision made the contact? A. Well, I happened to be in
— 471—
with the group that—that was several of us that talked to
these people.
Q. Now, that is with respect to those two; but— A.
That’s right.
Q. —but individual contact has not been made with the
other hundred— A. No.
565
Q. —white teachers— A. N o; no.
Q. —to see whether they would accept it? A. No, sir.
They have been notified and have had the word, and, of
course, the twelve or thirteen hundred people, that is a
pretty big job of individual contact.
Cross Examination by Mr. Robison:
Q. Mr. McKee, was contact made with them through
the principals of the schools? A. Oh, yes; with—both at
the March principals’ meeting and again at the April, when
the letter addressed to the principals to take it up at their
Monday afternoon faculty meeting with them.
Q. Do you have a copy of that letter with you, Mr.
McKee? A. I have if they didn’t get it with that other.
There it is (presented).
Mr. Robison (to Mr. G ray): That is the one we
showed you back there. Please mark that for iden
tification.
The Clerk: Defendants’ Exhibit number 1 for
identification.
— 472—
Mr. Robison: Defendants’ Exhibit. We would like
to offer that in evidence, if the court please.
The Court: It will be admitted.
Q. In addition to that, was a bulletin sent out to the
teachers and principals sometime in March? A. A—a dis
cussion of—at the March principals’ meeting, and then
when we got no response from that, when each principal
was to read that section of the court order at their next
faculty meeting and urge teachers to—that would be willing
to accept transfer to come in, then we followed it up with
this letter, which was in April.
566
Q. Mr. McKee, do you and the Board of Education
realize that there is an affirmative duty on you, under this
court order, to desegregate substantially the staff of the
Montgomery County system? A. We certainly do realize
it.
Q. Is that a factor in making assignments today with
respect to teachers? A. Yes, because that—we have made
some and with that in mind.
Q. Mr. McKee, is the desegregation of faculty a serious
educational problem, based on your experience? A. I think
it is going to be the most serious problem of the whole
problem in integration, because our people are going to,
in my opinion, rebel in large numbers; they are going to
cause various kinds of problems; and we can’t afford to
— 473-
get into it unless we can adequately protect—because you
have one incident one year, it will take you two or three
years to live it down; and I think that if we had had very
many instances in our student problems, then we would
have had serious problems. Now, in three short years, we
have been able to take a rather small number of Negroes
at Lanier High School, and last year we had some seventy
odd, and we are expecting around a hundred this year.
Q. Did I understand your testimony to be that the ten
teachers which you have now in desegregated schools
would teach approximately fifteen hundred students of the
opposite race? A. That is correct. Because most teachers
in high school will teach from a hundred and fifty to a
hundred and sixty to seventy-five pupils during the day.
Q. Mr. McKee, are you still making efforts to further
desegregate the faculty of this school system? A. Yes, sir.
Q. Is there a vacancy at Booker Washington now for a
teacher? A. There is a vacancy now and has been there
for some three or four weeks, in which we have—
567
Q. Could you have filled that vacancy with a colored
teacher? A. Oh, yes; we could have filled it with a col
ored.
Q. Have you filled that vacancy? A. No, sir.
Q. What efforts, if any, have you made to fill it with a
teacher of the opposite race? A. We have— our person-
— 474—
nel department has talked to everybody that we had an
application for that was eligible. Wre had one person that
had the proper college training, and she accepted it; but
we found that she would have to have gotten an emergency
certificate because of some little course that she didn’t
have in that state that Alabama requires, and, of course,
if you don’t have the exact little courses, you can’t get an
Alabama teacher’s certificate. So we had to deny that to
her because she didn’t—did not have a valid Alabama
certificate, although she has a—is a college graduate and
met the requirements in many—in some other states; I
don t know how many, but at least she was teaching in
another state.
Q. Mr. McKee, in addition to the ten high school faculty
desegregated teaching staffs, do you have other teachers
that will be teaching of the opposite race? A. We have
some speech teachers that will go into every elementary
school, and a few, in a few extreme cases, that will go to
high schools where children that have speech defects and
work with six or eight, and they will work about six weeks,
with part of the day in this school and go to another
school; they will work three or four schools a day.
Q. Mr. McKee, you say there are three speech teachers,
and are they—and they will be working with the elemen
tary grades; is that correct? A. Yes, sir.
568
Q. Do you have a vacancy for a fourth speech teacher?
A. Yes; we could use a fourth one, but—
Q. Do you have a fourth speech teacher? A. We had a
fourth—or rather last year we had three, but we plan
to use four this year. Two of them were white, and one
was colored. The colored teacher has had to resign be
cause of pregnancy, but we hope she will be where she
can come back and take up, because she will come in in
the middle of the year, and it will not disturb anything.
And we plan for these to work in all schools.
Q. Is it anticipated that this colored speech teacher will
be placed in employment of the school system when she
comes off this maternity leave? A. If she wants to.
Q. If she wants to be replaced; and they travel, as I
understand it, from one school to another? A. One school
to the other.
Q. As needed? A. As needed.
Q. Is that correct? A. By the people with speech de
fects.
Q. Mr. McKee, have you made any other plans as far
as desegregation of faculty with your in-service teaching
program? A. Yes, sir; in our in-service teaching pro
gram, we have had for a number of years demonstrations,
— 4:76—
that is, where experienced teachers, say in the third grade,
or English or math or whatever the field might be, teach
a what we call a demonstration lesson; and some fifteen
or twenty teachers will come in to study and evaluate
that lesson. And we plan to have those with white and
colored teachers. Last year we had some in the colored
schools where the white teachers went. This year we plan
to have some in the white schools for the colored teachers.
569
And also, all of our faculty meetings and systemwide
meetings and small group meetings have been completely
desegregated, including our committees.
Q. Do you have certain supervisory personnel, Mr. Mc
Kee, in the system? A. Yes, sir; we have—
Q. How will they be utilized? A. We plan to utilize
them as feasible on a desegregated basis.
Q. Where the staff has been desegregated, will you have
supervisory personnel in those rooms? A. We will have
to in those situations; we are going to have to keep our
supervisors close to that situation for, in my opinion,
several months, because we are going to have a storm of
requests to transfer their child out of that particular room.
Plus the fact there are going to be some incidents; there
are going to be some boys and girls in that room that are
going to want to provoke an incident, and we are going to
have to watch them with everything we have. Not only
us; we are going to have to have the Police Department
—4:77—
and the Sheriff’s Department.
Q. Mr. McKee, after you submitted your report on
June 15 to this court, and prior to the opening of school,
which is Wednesday, I believe, tomorrow, day after to
morrow, what plans, if any, did you make in order to
effect this desegregation of the faculty? A. Well, we had
meetings with all principals involved; we had the Chief
of Police, along with several of his assistants; the Sheriff,
along with his assistants; the Chairman of the Board of
Education; many of our supervisors; our attorneys—had
all met together to go over plans and procedures for the
handling of this situation.
Q. In connection with that, also, have you not gone into
a community relations program with respect to various
organizations— A. Oh, yes; we have—
Q. — in spite of the present situation with regard to
teacher shortage? A. We have carried this into other
organizations and have tried to prepare the way for them.
I might say that in addition to that, that our substitute
list which will go out to all principals tomorrow is just
an alphabetical list of teachers, and it—that are available,
and tells what grades they are available in.
Q. Mr. McKee, have room assignments been made and
equipment assignments been made in the school system?
A. Oh, yes; schedules have been made, and the teachers—
—478—
many of them have been by there beforehand, but out of
town teachers may be there today for the first time, but
they are getting those this morning at the various schools;
they will be there all day.
Q. At the schools right today are principals and facul
ties having meetings? A. All principals and teachers are
to be in their schools today from eight thirty until three
meeting with the assignments and getting their rooms
and equipment and all ready.
Q. Mr. McKee, you stated in reply to a question by the
Government and Mr. Gray that approximately a hundred
new teachers had gone into the system; that is about ten
per cent of the entire student—I mean entire faculty em
ployment of this county, is it not? A. It is not quite ten
per cent.
Q. Not quite ten? A. Our turnover would probably run
ten per cent or less.
Q. Based on your knowledge and experience in other
systems, is ten per cent a very small turnover in a system?
A. From what I read in the literature, it is a very small
turnover.
Q. Do you happen to know what the national average
571
is? A. No, I don’t; I have read somewhere— it seems like
it was somewhere between fifteen or twenty per cent, but
I—
Q. Now, you were asked, Mr. McKee, with respect to
those faculty personnel that were displaced as a result of
—479—
the closing of certain schools under order of this court;
you said they had been reassigned in the system; is that
correct? A. They have been placed; every one of them.
Q. Were they assigned to elementary schools; were
they all elementary teachers? A. They were all assigned
to elementary; one of them we made a principal.
Q. One you made a principal? A. Uh, huh. But he is
principal of an elementary school.
Q. Principal of an elementary school.
Mr. Eohison: I believe that’s all.
The Court: Anything further?
Mr. Ortenberg: Yes, sir; your honor.
Redirect Examination by Mr. Ortenberg:
Q. Mr. McKee, going back now to the teachers; of the—
of the ten reported on June 15 who resigned, do you re
call when it was that they—that they resigned? A. Well,
it would be at different times; some of them may have
resigned before the 15th; some resigned after the 15th.
Q. When were— A. Some of them got to a stage that
they—they verbally accepted the job, as—as I mentioned,
and then went home and came back the next day and said—
they said they wanted to talk it over, and they came back
the next day and said they wouldn’t take it. Of course,
— 480—
there was no written thing on that.
572
Q. When were they replaced? A. Well, at various
times; those minutes that I filed there show, but it has
been, some of them, in the last month, I think, or maybe
less than that that we have just replaced one of them.
Q. Have the resignations been throughout the summer?
A. Yes; at various times.
Q. How many—how many of them actually resigned;
how many of the ten reported on June 15 resigned? A.
Well, I think it was only about two positions that people
resigned; but there were several different people hired
for those two positions. I think three of them have stuck
out all the way through; but if one would resign, we would
hire, maybe, somebody else, and then they would resign.
Q. How soon after one— A. Just as soon as we could
find somebody that agreed to accept it that was capable.
Q. How long did that usually take? A. We may have
an application on file; we try to keep applications on file
for all kinds of places; and, of course, at this time of the
year, they can’t—lots of them that might have taken it
can’t get released from another place. You see, in—in
Alabama a teacher, up forty-five days before school starts,
she can resign anywhere she wants to, even—without even
consulting where she is working, if she wants to ; but then
—481—
if a principal or a Superintendent objects after that forty-
five days, he has the right to go to the State Superin
tendent to cancel her certificate if she is going to teach
in Alabama. So the—you have a lot of applicants that
have accepted jobs and at this time can’t get released;
they could get released the 1st of July.
Q. Now, Mr. McKee, did I understand you to say that
because you have no difficulty in finding Negro teachers,
that once you achieved the level, the number of Negro
573
teachers that you had desired, that you no longer at
tempted to find additional Negro teachers to teach in white
schools? A. We wanted to keep it fairly well in balance,
and we felt that that was in the spirit of the court order.
Q. So once you got five, you didn’t try to get any more?
A. We tried to get this—we still have a vacancy now that
we are trying to fill at Booker Washington; we hope some
body—we may be able to get that filled today.
Mr. Ortenberg: All right; thank you.
Mr. Gray: Like to ask just one question.
By Mr. Gray:
Q. With respect to your new teachers, did you inform
the new teachers that, as a condition of their employment,
they may be assigned to either Negro school or white
school? A. Yes.
Q. And integrated school? A. Yes, and it is also on
the application; but what they will do is they will sign
—482—
and file the application, then when you offer them a job
in that, then they will go home and talk about it and send
in their resignation.
Q. But they did understand that they could be assigned
in schools— A. Yes; it is typed on the application or
mimeographed on the application blank.
Mr. Gray: That’s all.
The Court: All right; call your next one.
Mr. Robison: If the court please, in reply, in
rebuttal, he asked about teachers that had resigned;
we have some letters here.
The Court: I think I understand that situation
pretty well; go ahead if you want to.
574
Recross Examination by Mr. Robison:
Q. Just a minute, Walter; look at these and tell me
what they are, Walter? Are those letters of teachers
that you had assigned— A. Yes, sir.
Q. — to integrate the faculty and they then wrote you
these resignations? A. Yes; most of these are those.
Mr. Eobison: All right, sir. Ask that these be
marked for identification as Defendants’ Exhibit 2.
The Clerk: Defendants’ Exhibit number 2 for
identification.
—483—
The Court: Any objection?
Mr. Gray: No objection.
The Court: They will be admitted.
Mr. Ortenberg: No objection.
The Court: Any other witnesses?
Mr. Eobison: That’s all.
Mr. Ortenberg: No other witnesses, your honor;
no other witnesses.
Mr. Gray: No, sir.
The Court: You have any other testimony?
Mr. Eobison: No, sir.
The Court: All right. You want to be heard in
argument?
Mr. Ortenberg: Your honor, the Government’s
position simply is that—that the school—
The Court: Let me ask you this; how much
teacher desegregation do you have in Mobile?
Mr. Ortenberg: I—I think that—I don’t recall the
exact number, but that is still pending before the
court; I think it is a similar—
0 (0
The Court: Have you had a hearing on your mo
tion to accelerate that down there?
Mr. Ortenberg: There was a full hearing, and
the court entered an order in that case, which I be
lieve did not concern faculty, and it is the matter
of faculty—am I correct?
—484—
Mr. Eoss: (Nodded to indicate affirmative reply)
The Court: Are you having to take that to the
Court of Appeals?
Mr. Ortenberg: I believe so, your honor.
The Court: How about your Birmingham; how
much faculty desegregation do you have up there?
Mr. Ortenberg: We have been unable to deter
mine the exact number, in the report under the
Jefferson County decree for those systems is not—
is not due until September 20.
The Court: Uh, huh.
Mr. Ortenberg: However, we expect that if—that
if—
The Court: That is after you had to take that
one down to New Orleans, too?
Mr. Ortenberg: Yes, sir.
The Court: And that Bessemer and Fairfield the
same?
Mr. Ortenberg: The same—in the same group of
cases.
The Court: And this is one you haven’t had to
take down there—
Mr. Ortenberg: That’s right.
The Court: — and you waited until a week or
ten days before school to file your motion. I just
don’t have much sympathy for you at all in this
576
case. I will hear you in argument, though, if you
want to make it in light of what my attitude is
about it.
— 485—
Mr. Ortenberg: Your Honor, I ’d just like to say
that the reason that the Government waited so long
is that we expected that the school system would
have been—would be making continuous desegregat
ing assignments during the summer, and as soon as
we learned that—that that was not the case—
The Court: You are dealing here with a school
system that you haven’t had to take to your appel
late courts a single time since you started. It is
the only major school system in the State that you
haven’t had to do it on; that they have done what
they have done in good faith, and they have been
ahead of most of your other systems in every field.
Mr. Ortenberg: Your honor, I think there are sys
tems in Alabama which proportionately have done a
lot better than Montgomery.
The Court: Other than Huntsville, where are
they?
Mr. Ortenberg: Well, I—I don’t know them ex
actly, sir, but I think that under the—
The Court: I know ninety-nine of them that
haven’t.
Mr. Ortenberg: I—I just don’t—do you recall any
other places?
(Mr. Ortenberg conferred with Mr. Ross)
Mr. Ortenberg: Mr. Ross tells me that, for ex
ample, Chambers and Butler County— Counties
Of f
haven’t yet, but are scheduled—they are—they are
among the ninety-nine— are scheduled to have
desegregating assignments which would exceed pro-
— 486—
portionately or in actual numbers what the Mont
gomery County— County has done, and we think that
it’s—it’s—it’s a relatively—relatively simple matter
to—to make the assignment. The School Board
recognizes that it can make the assignments, but
it chose to limit the desegregating assignments to
high schools, and it—it chose to desegregate only a
certain—certain number. Now, granted, there have
been some difficulties, but we think the School Board
hasn’t tried hard enough, and it could try and could
make additional assignments for this school year.
Classes haven’t even begun; they won’t begin until
Wednesday, and Mr. McKee testified that—that
they have—they have hired—in the past hired and
assigned teachers to classes after the school year
has begun, and we think that it—that that can be
done now; except instead of hiring from outside the
system, they could be moving teachers around. We
think they have had an opportunity, with a hundred
new—new teachers—approximately a hundred new
teachers for this school year and forty-three teach
ers who were displaced, to desegregate considerable
amount, but that they haven’t taken that opportu
nity, and that the responsibility for doing it this
year under this court’s order of June 1 still rests
with the defendants, and we believe that they can
do it now. Thank you, your honor.
The Court: Any argument?
Mr. Robison: I f the court please, I would like to
briefly say that this school system realizes the af-
578
firmative duty that your order places on them.
They realize that they have the authority and have
-4 8 7 —
made assignments and transfers of teachers. There
was considerable study that went into the desegre
gation of faculty plan for this system, and we have
patterned it, after a fashion, after the pupil de
segregation plan. We have desegregated in high
schools, and we have speech teachers in elementary
schools. We realize that the court order requires
that we exercise every effort to desegregate facul
ties, and we are continuing to do so; witness the
fact that we have a vacancy at Booker T. Washing
ton which we have not filled. We will continue to
try to in good faith carry out the order of this
court. Plans have been made, after our report was
made, for a desegregation of faculty based on what
we proposed June 15. There has been only one
change, and that has been additional three students.
And we feel like that we have substantially com
plied with the court’s order, and that there is a
substantial desegregation of faculty in this system.
The Court: I didn’t mean to cut you off, Mr. Gray.
Mr. Gray: Your honor, there is only one thing I
hope the court will consider, and—and— and—in—in
—in deciding this case, and that is what effect this
court’s decision may have in the other ninety-nine
school systems in Lee v. Macon, and in these sys
tems, the—their report isn’t due until after school
starts.
The Court: Has there been any motion filed in
this case to bring the order entered in this case in
conformity with—excuse me—in conformity with the
579
order entered by the three-judge court in Lee against
Macon ?
— 488—
Mr. Gray: My recollection is we did file such
motion, and we had a hearing on it back in the late
spring or early summer; I think such motion was
filed.
The Court: Was an order entered to that effect?
Mr. Gray: Yes, sir; the current order was an
order after that motion had been made.
The Court: Uh, huh.
Mr. Gray: And I just want the court to con
sider—
The Court: How does Montgomery’s performance
generally correspond to the performance of the
schools in Lee against Macon, with the exception
of some outstanding schools that—how—how—
Mr. Ross: Your honor, I could give you a de
tailed answer to that question if you would like it.
The Court: Of course, I have those statistics in
my office; I could go look it up; but generally, how
does it?
Mr. Ross: Well, your honor, I—I don’t have it
precisely with me at this time; this is based on
informal reports made to us and to the State Super
intendent’s office.
The Court: The only thing I have is what I got
through you all.
Mr. Ross: Yes, sir; well, of the ninety-nine, there
is approximately forty that have plans for a—for
an average of one desegregating teacher per school
in their system.
The Court: Forty?
580
Mr. Ross: That is pretty close to half.
The Court: With one—
Mr. R oss: At least one—
The Court: —per school?
Mr. Ross: —desegregating teacher per school in
the system.
The Court: (Nodded to indicate affirmative re
ply-)
Mr. Ross: There are ten or twelve of those that
have two teachers per system, and beyond the forty,
there is another fifteen or twenty that are pretty
close to one teacher—per school in the system.
The Court: Uh, huh.
Mr. R oss: The Superintendents, by and large,
worked very hard and—in many systems, and have
done what the court decree says, no segregated
faculty at any school, and where possible, more
than one teacher per school.
The Court: Yes.
Mr. R oss: Many have done that. In Montgomery,
obviously it is certainly a lot less than one. It
will be—I guess there will still be over forty schools
in Montgomery County this fall, under present plans,
that do not have any interracial faculty whatsoever,
and I might add that—that the small rural systems
kind of look—keep their eye on what is happening
in the big cities.
The Court: I hope they don’t watch Birmingham
and Mobile too closely.
— 190—
Mr. Ross: And—well, the publicity about Birm
ingham and Mobile has had an adverse effect on
— 489—
581
small county Superintendents wlio were trying to
do what the order says, and they—and they say,
“ What about these people?” AVell, the problem is—
The Court: Of course, that is what I am doing
now.
Mr. Ross: That’s right. AVell, the reports in
those cases—
The Court: In dealing with one of the three or
four metropolitan areas in the State.
Mr. R oss: I think—
The Court: I am pretty sensitive to classifica
tions of schools throughout the State, and I think
the rural schools, those that can be classified as
rural, should be kept going just about the same
pace, with the same performance, and I think that
should be true as far as your metropolitan areas
are concerned, too. It hasn’t been the case.
Mr. Ross: I think we are going to find that the
rural systems are doing better than the city sys
tems.
The Court: I think so. I think so.
Mr. R oss: And I think that the basic problem in
volved in this case, and generally, is to what extent
the burden of teacher desegregation is on the—on
the teachers and to what extent it is on the Super
intendents—
The Court: Well—
Mr. Ross: —as far as—
— 491—
The Court: —I have expressed myself on that
in the three-judge court case upon two or three
occasions: That if you can’t do it by persuasion,
you do it by assignment.
582
Mr. Eoss: Yes, sir.
The Court: That is what the law requires; there
is no question about the law in the case.
Mr. Eoss: Well, the point that myself and Mr.
Ortenberg are making here—and I think the cities—
we may have been late in filing our motion—
The Court: You say they haven’t gone far enough.
Mr. Eoss: — they are the—they are the examples
for these smaller systems, and it is going—it—
it is pretty reasonable for a Superintendent in a
small system at this point to say, “Look what I
have done, I have prepared my community for de
segregating a teacher in every school, and in these
big cities they are not doing the job.”
The Court: Yes. All right, gentlemen.
Mr. Gray: Your honor, just one final thing; and
that is I think—and I realize that this—we are
much further along in this case than we— than they
are in Birmingham and in Mobile, and I think it
is because of the difference in the court; but what
we are concerned about is while we are dealing here
with one school system, I hope we don’t meet what
may happen in this case in ninety-nine other school
systems, and I just hope the court will consider that
in whatever ruling it makes.
—492—
The Court: I didn’t follow you on that; I am
sorry; I didn’t understand what you were talking
about ?
Mr. Gray: "What I was simply saying, your honor,
is that in view of the fact there is a question of
tardiness of the motion, that will not be the ques
tion in the ninety-nine school systems who will be
583
making reports in the next couple of weeks, and
I am just hoping that whatever action the court
takes here will not be used as a precedent in what
the court may do in these other ninety-nine systems
as a guide. What I am really saying is that there
are ten crossovers here in a big metropolitan school
system—
The Court: I understand what you are saying.
Mr. Gray: —and we get to some of these smaller
ones, and I would hate for us to meet the same
problem in one of our other school systems. And
because of the tardiness here, there may be a ques
tion of—of penalizing some other persons who would
normally receive some benefit.
The Court: All right; has the teacher—the State
teacher choice law had any effect in this case?
Mr. Robison: I f the court please, we got a notice
this morning in connection with that, and they
brought it to the office; I have not advised with them
about it. Frankly, at this stage, it’s not affected
Montgomery too much.
The Court: Well, all right, gentlemen.
- 493 -
Court Reporter’s Certificate (omitted in printing)
584
- ^ 9 7 -
Transcript of Hearing— February 9, 1968
In the
UNITED STATES DISTRICT COURT
F oe the M iddle D istrict of A labama
N orthern Division
B e f o r e :
H on. F rank M. Johnson, Jr.,
Judge,
at
Montgomery, Alabama, February 9,1968.
A p p e a r a n c e s :
For the Plaintiffs:
Gray, Seay, L angford & Pryor
(Fred D. Gray and
Solomon S. Seay, Jr.).
For the Defendants:
H ill, Robison, Belser & Phelps
(Vaughan H. Robison and
Joseph D. Phelps).
For the United States:
B en H ardeman,
F rank D. A llen, Jr., and
Charles W . Quaintance.
585
—498—
(The above-styled case coming on for hearing at Mont
gomery, Alabama, February 9, 19C8, before Hon. Frank
M. Johnson, Jr., Judge, the following proceedings were
had:)
The Court: Carr against Montgomery County Board
of Education, Civil Action 2072-N, set for hearing at this
time upon motion of the Lnited States for further relief,
that motion having been joined in by the plaintiffs, and
the motion of the United States for additional further
relief, filed February t, that motion having been also joined
in by the plaintiffs. Movants ready?
Mr. Allen: Yes, your honor; we are ready.
The Court: Plaintiffs ready?
Mr. Gray: Yes, sir; your honor.
The Court: Defendants ready?
Mr. Robison: I f the court please, we have been served
this morning with a motion by the plaintiffs in this case
which goes into an altogether different facet, namely,
transportation. I understood the motion of the United
States this morning was pertaining to faculty and ath
letics. We would move at this time to dismiss or strike
the motion filed by the plaintiffs this morning, in that it
is not timely filed and in that it is not within the scope
of the motion filed by the United States and joined in
by the plaintiffs and in that it fads to state a cause of
action upon which relief can be granted.
The Court: Well, I will deny your motion; if, after we
conclude the hearing today, you, by reason of the late
__4.99__
filing, want additional time to present other testimony
in connection with this facet of the case, I will, of course,
give you an opportunity to do that. I won’t penalize you
because of the late filing.
586
Mr. Eobison: Yes, sir; because we are not prepared at
this time—
The Court: My reason—
Mr. Robison: —to go into the— excuse me.
The Court: It is not entirely foreign to the motions
now pending. It may particularize, and it does, to more
extent or greater extent than the motions now pending,
but it is not foreign to the matters for which this case
was set today. If I read the motion correctly, the hearing
today goes to all facets of the legal duty on the Mont
gomery County Board to substantially desegregate its sys
tem pursuant to the orders that have heretofore been en
tered; and that, of course, includes transportation, and it
refers to all your schools in the system—but, since this is
focused particularly to one school and the transportation
in connection with that school, if you need additional time,
I reiterate, after we conclude the testimony today on this
phase of the matter, I will give you an opportunity to be
heard further on it.
Mr. Eobison: All right, sir.
The Court: But I have read Superintendent McKee’s
deposition that was taken, and this was touched upon in
that deposition on cross examination by Mr. Seay, so he
has had notice, and you all have had notice, that they were
interested in this phase of the case. So I deny your motion
— 500—
to strike and deny your motion to continue this aspect of
the case.
Mr. Robison: All right, sir.
The Court: Call your witnesses around.
Mr. Allen: Your honor, could I ask—we have several
witnesses; I woidd like to put them all under the rule,
if I could.
587
The Court: Call them around first, if you will; we are
going to swear all witnesses at this time.
Marshal: All the witnesses, please come around, all
witnesses who expect to testify.
Mr. Gray: Mr. Scott.
Witness Herman L. Scott: Right here.
Mr. Gray: Mr. Wilson.
Witness W ilson: Right.
Mr. Gray: My witnesses are here.
Mr. Allen: Ours are all here, your honor.
The Court: Your witnesses?
Mr. Robison: Yes, sir.
The Court: All right; swear them.
The Clerk: All witnesses, please raise your right hand.
You and each of you do solemnly swear that the testi
mony you give in this cause to be the truth, the whole
truth, and nothing but the truth, so help you, God.
The Court: All right; let the witnesses go to the witness
- 501-
room, if you will, please.
Marshal: All witnesses, please come this way.
Mr. Robison: If the court please, we would like to have
excused from the rule Mr. Walter McKee, who is a party
to this case, and Mr. Silas Garrett, who is Associate-
Assistant Superintendent.
The Court: They may remain in the court. Your first
witness.
Mr. Allen: Call Mr. McKee. If the court please, I
would like at this time to introduce Mr. McKee’s deposi
tion, discovery deposition, to avoid going into the same
matters he has testified to as U. S. Exhibit number 1.
Mr. Robison: We have no objection.
The Court: It will be admitted.
588
W alter M cK ee, a defendant, having been duly sworn,
testified as follows:
Direct Examination by Mr. Allen:
Q. Will you state your name, please, sir? A. Walter
McKee.
Q. Are you Superintendent of Education of the Mont
gomery County? A. Yes.
Q. How long have you held that position? A. Since
July of 1958.
— 502—
Q. I believe you testified—testified at your deposition
that since September 1, 1967, your system has hired thirty-
one new teachers; is that correct? A. I believe that is
correct ?
Q. And since that same time, twenty-two teachers have
left the system; is that correct? A. I believe that is
correct.
Q. You also mentioned seven of the thirty-one teachers
who were placed in situations where their race was in the
minority? A. That is correct.
Q. Of those seven, two are white teachers who were
assigned to the Paterson School; is that correct? A. I
believe that is correct.
Q. And two white teachers were assigned to Hayneville
Road School? A. Correct.
Q. Now, one was a white teacher who was assigned to
the Goode Street School, or Goode Street School? A.
That is correct.
Q. And Goode Street School actually now has an all
white faculty; isn’t that correct? A. That is correct.
Q. It has— A. However, a majority of the students
are colored.
589
Q. —in excess of fifty per cent of the children are
Negro; is that right? A. More than likely.
—503—
Q. And one of those seven, the only Negro teacher of
those seven, has been assigned as a speech therapist? A.
That is correct.
Q. One of the teachers has been assigned as a—assigned
to Booker Washington; is that correct? A. One, Booker
Washington; yes, I believe that’s right.
Q. I believe you also testified that for the first semester
of 1967-68, you had approximately one hundred fifty stu
dent teachers in your system; is that correct? A. That
is correct.
Q. And none of these were assigned to situations where
their race was in the minority? A. That is correct.
Q. For this semester, you have now assigned four Negro
student teachers to predominantly white schools? A. That
is correct.
Q. How many student teachers do you estimate you
will have throughout the system for this current semester?
A. Well, it would vary, because, as I told you in the deposi
tion, that Auburn is on a quarter system, and they are
not on a semester system, and we will have some from
Auburn and some Troy; I would say we could have as
many as two hundred at one time, but it will vary as one
school’s quarter ends and one’s semester ends.
Q. You say you will have as many as two hundred at
— 504—
one time? A. We could have; yes.
Q. Do you say—that means that the total for the whole
semester would be in excess of two hundred? A. The
Auburn teachers on a quarter system; they are not on a
semester system.
590
Q. I mean your total? A. Somewhere in that neigh
borhood; I wouldn’t know exactly.
Q. The Jefferson Davis High School which is being con
structed on Carter Hill Road, you plan to open this this
coming fall? A. Yes, sir.
Q. Prior to this hearing, when I asked you to mark on
this map which is Plaintiff’s Exhibit 1 to a prior hearing
previously introduced in this case location of the Jeff
Davis High School; is that correct? A. Yes, sir.
Q. Is that this X marked right here I am pointing to?
A. If that is right across from Carter Hill Road Elemen
tary, that is it.
Q. All right; I also asked you to mark the location of
the other high schools in the city of Montgomery, and
are these other X ’s that I am pointing to here those high
schools? A. Yes, sir.
Q. This X located on Court Street is Lanier High
School— A. That is correct.
Q- — correct? This one on Fairview is Carver? A.
Carver.
— 505—
Q. This one is Booker Washington— A. Booker Wash
ington.
Q. —right? And this one? A. Lee.
Q. And you also testified, I believe, on page twenty-five
and twenty-six of your deposition; “About how many teach
ers will you have out there next year,” referring to Jeff
Davis High School— A. Well, is that—
Q. Excuse me, let me finish reading. “Well, of course,
since the school will be operated under a freedom of choice
plan, it would all depend on how many choose it. Now, we
opened a new school several years ago, and it was made
up largely of tenth graders, and most of the eleventh and
591
twelfth graders decided to stay in their old school. This
may be different this year. We have no way of knowing.”
Question, “You won’t really finalize your faculty plans until
after the choice period? Yes, sir. When is the choice
period? In March. It ends the 31st?” Answer, “ The 31st of
March.” Now—now, is that—the inference to be taken
from that that you will assign teachers based on where
the students come from? A. We—
Mr. Robison: I f the court please, we would ob
ject to what the inference to the question is.
The Court: Well, I sustain it to that question; go
— 506—
ahead and ask him what his—what he intends to do.
Mr. Allen: Well—
The Court: That part of his testimony in the
deposition is unclear, very unclear; it is not devel
oped sufficiently.
Q. What—
The Court: You might develop it now, if you
wish.
Q. Where do you intend to get the teachers that you
will assign to Jeff Davis? A. When the choice period is
over on the 31st of March, then the principal, Mr. Rutland,
will notify all of the students that have chosen Jefferson
Davis School to meet—where we haven’t decided—or he
will go to schools where there are large numbers of them
coming from, and they will be given a chance to choose the
subjects that they want to take. Then after they choose
their subjects, you can see how many English teachers you
will need, how many Math teachers, how many Typing
592
teachers, how many of any of the other subjects—Eco
nomics— that you will need, French or whatever we offer;
and, of course, what they choose will be what they will
get.
Q. Then where will you get the teachers to teach those
subjects? A. Well, the teachers will come from the other
four high schools or newly employed people or somebody
moved up from the junior high; we don’t anticipate a
great many more students than we have this year.
Q. What is the relationship between—between the stu-
— 5 0 7 -
dents, or where they come from, and the—and where the
teachers will come from, if any? A. It doesn’t—it doesn’t
make any difference where the students come from under
the court order provided—
The Court: What he is asking you, Mr. McKee,
to use an example, if a thousand of your Lanier
students, through the freedom of choice, elect to
go to your Jefferson Davis School, are you going to
then get the teachers from Lanier that formerly
taught the thousand; that is what he is asking you ?
Witness: Well, we—we just have to work it out.
Some of them might not fit; we might have to trans
fer others; some of them undoubtedly would come
from there or Booker Washington or whichever
other school that—
Q. Teachers are assigned to various schools based on
average daily attendance for the previous year; is that
right? A. Well, in high school, it’s—it’s partly average
daily attendance, and partly by the subjects that is in de
mand in those particular schools.
593
Q. TV ell, there is a relationship between how many
teachers you have at a school and how many students you
have there? A. Oh, sure; sure.
Q. So if—if you have fewer students at Lanier next
Jear than you have this year, you will have fewer teach
ers? A. That is correct.
Q. And, by the same token, if you have the same num-
—508—
bei of students at Booker TV ashington this vear, you will
have approximately the same number of teachers? A.
That would be correct.
The Court: On that point, have you already en
tered into your contract—contracts with your teach
ers for Lanier and Booker Washington next year?
Witness: No, sir; we have sent out notices to find
out which teachers want to come back for next year;
that is as far as we have gone.
The Court: When is your usual period of con
tracting with your teachers?
Witness: We usually— sometime in April we
notify teachers that unless they have been notified
otherwise, they are hired again for next year.
The Court: All right; go ahead, Mr. Allen.
Q. You have already appointed a principal and five
faculty members for Jeff Davis High School; is that cor
rect? A. I believe that is correct.
Q. Are they all white? A. They are all white.
Q. The five faculty members are—in addition to their
teaching duties, will be the coach, two assistant coaches,
a band director, and a principal’s assistant? A. Prin
cipal’s helper; he is not—we are not quite big enough for
594
an assistant principal, but this person will teach and help
- 509-
in the office.
Q. He will help the principal with the administration?
A. Part of the day; yes.
Q. I believe you have also stated previously that it is
not now your current plan to furnish any transportation
to Jeff Davis High School— A. That is correct.
Q. —next year? You also plan to open two elementary
schools next fall? A. That is correct.
The Court: New ones?
Mr. Allen: Yes, sir—
Witness: Yes, sir.
Mr. Allen: —new ones.
Q. Those are—the construction will begin on that
shortly? A. Well, it’s—it is begun on one, and I am pretty
sure it is begun on the other one; the contract has been
signed.
Q. And do you plan to furnish any transportation to
those two new schools? A. No, sir. See, as I testified,
our transportation is for rural children, not in the city
area.
Q. Well, do you now furnish transportation for rural
students into the city to the other schools? A. Yes; we
have been in some certain city schools, not all of them.
Q. You furnish transportation to Lee, Lanier, Booker
— 510—
Washington, and Carver? A. That is correct.
The Court: Within the city?
Witness: No; it is from the county. Now, there
may be a few in certain areas that have been re-
595
cently taken in if it hasn’t been changed; but, by and
large, it is the rural children. We have about only
about eight thousand of our children are trans
ported.
The Court: Now, one of—go ahead.
The Clerk: Government’s Exhibits 2 through 32
marked for identification.
The Court: 2 through what?
The Clerk: 32.
Q. I will hand you folders marked as Government’s Ex
hibits 2 through 32, and ask you if you will identify those,
please, sir? A. Well, I believe they are the folders that
you copied of the teachers that have been hired since the
opening of school.
Q. All right. A. And incidentally, Mr. Garrett hired
another one yesterday who is a colored teacher going to__
I mean a white teacher going to a colored school.
Q. Which school is that? A. I— I can’t say for sure;
it is Paterson—no, it is—is it Paterson?
The Court: Fews.
A. Fews—Fews Elementary.
—511—
Mr. Allen: I offer Government’s Exhibits 2
through 32.
Mr. Robison: We have no objection. They are
copies; those are the copies of the records which you
got that deposition from?
Mr. Allen: That’s right.
The Court: They will be admitted.
The Clerk: Government Exhibit number 33 for
identification.
596
Q. I will hand you a bundle of documents marked as
Government’s Exhibit 33, ask you if you will identify these,
please, sir? A. Those are the weekly reports made by
our schools and up through—they did not include last
week, because they were not quite all in, but it is the week
before.
Q. Are these regular business reports? A. No; they
are regular weekly attendance reports.
Q. And they are submitted to you by the principal of
each school? A. That is correct.
Q. Do those records show the number of substitute and
the names of substitute teachers which have been used
for the week that the report covers? A. At the bottom
of the report, it says, “Name of teacher, number of days,
cause of absence, name of substitute employed,” and it
shows the number of days she taught.
Mr. Allen: I would like to offer U.S. Exhibit 33
into evidence, and we have agreed with Mr. Robison
— 512—
that we will copy these and substitute copies so
that they can keep their records.
Mr. Robison: We have no objection.
The Court: They will be admitted.
The Clerk: Government Exhibit 34-A and 34-B,
35-A and 35-B, 36, and 37 marked for identification.
Q. I show you two documents marked as Government’s
Exhibit 34-A and 34-B, and ask you if you would identify
those, please, sir? A. Well, this is the 1965 and ’66 list of
substitute teachers.
Q. Are there two lists? A. Yes.
Q. Does one list contain all Negro names? A. Yes.
597
Q. And the other all white names? A. And the court
a year ago said that we did not have to desegregate the
faculty for that year; we separated the lists as we had
been doing in the past.
Q. Could you tell us which is the Negro and which is
the white? A. Well, I am sure this is the colored, be
cause—
Q. Indicating 34-B? A. Yes.
Q. How can you tell that is the Negro? A. I am guess
ing by some of these streets.
Q. And— A. This is the white.
Q. —34-A would be the whites.
—512(a)—
Mr. Allen: I offer Government’s Exhibit 34-A
and B into evidence.
The Court: If I understand it, A is your list of
white substitute teachers; B is your list of Negro
substitute teachers; is that right?
Witness: That is correct.
The Court: All right; for ’65-66?
Mr. Allen: Yes, your honor.
The Court: All right. It will be admitted.
Q. Now, I will show you documents marked as Govern
ment’s Exhibit 35-A and 35-B, and ask you to identify
those. A. That is the substitute teachers’ list for last
year or the ’66-67.
Q. Now, there are— there are two lists there, also? A.
There are two lists, because this was the year, really, that
we got the order; that—we had been making them two
in the past.
Q. Now, which is—these also all one—all Negro names
598
on one and all white on the other? A. That is correct.
As far as I know, it is.
Q. And which is which? A. This is the white, and this
is colored.
Q. You have indicated white as 34-A ; is that correct?
A. Well, whatever this one is.
Q. This one; all right. A. All right.
Q. And 34-B is the Negro list? A. That’s right.
—513—
Mr. Allen: We offer these into evidence.
The Clerk: 35, I believe.
The Court: It will be admitted.
Mr. Allen: I beg your pardon, those—that’s right;
35-A and 35-B.
Q. Now, I show you Government’s Exhibit 36 for iden
tification, and ask you to identify that? A. This is the
complete list of substitute teachers for ’67-68.
Q. That is the one— A. Giving the telephone numbers,
street address, what their subject preference is, and the
number of years they have been to college.
Q. This is the one that is currently being used? A.
That is the one in use.
Mr. Allen: I would like to offer this into evi
dence.
Mr. Robison: We have no objection.
The Court: It will be admitted.
Q. Now, I will show you Government’s Exhibit 37 for
identification, and ask you if you have seen that before?
A. That is not ours; I have seen a State Department
Directory; that is not—
599
Q. Well, can you identify that? A. Well, it says, “ Edu
cational Directory for 1966-67, authorized by State Board
of Education.”
Mr. Allen: I would like to offer this into evidence.
—514—
Mr. Robison: If the court please, we would ob
ject to the introduction of that unless he can further
show that it is pertinent to this case or Mr. McKee
has a copy of it or that it—
Mr. Allen: Your honor, the purpose of this is it
lists in there high schools by race, and we want to
for purposes of our—part of our case pertains
to scheduling, we will have to identify the high
schools.
The Court: Well, is there any question about it
being official publication of the State of Alabama
Department of Education?
Mr. Robison: I don’t know, sir.
The Court: Well, do you state that it is?
Witness: Yes, sir; that is—I think that is the
directory.
Q. Is it—
Mr. Robison: We have no objection, then.
Witness: Well, it lists Board members, super
intendents, and principals, and people at State De
partment, but we have nothing to do with publish
ing that.
The Court: All right; it will be admitted, then.
Mr. Allen: I have no further questions of this
witness, your honor.
The Court: Plaintiffs?
600
By Mr. Gray:
Q. Mr. McKee, I think you testified with respect to the
fact that the three other high schools in the city provides
—515—
transportation for rural children; is that right? A. I
believe it was four.
Q. Four others. May I direct your attention toward
the Lee High School, which is in the eastern part of the
city of Montgomery; is that correct? A. That is correct.
Q. Now, basically, what rural children transportation
would be afforded to these children? A. From the Atlanta
Highway around to the Wetumpka—Lower Wetumpka
Road.
Q. And what general area would, say, Lanier High
School, that is on Court Street, that— A. From the At
lanta Highway around to the bridge on the River going
to Birmingham, within, say, eight or ten miles out in the
country.
Q. Say from the Atlanta Highway North? A. Well,
clear around to the River bridge going to Birmingham.
Q. Or South from the Atlanta Highway? A. Well, you
would come around Montgomery; the Atlanta Highway is
the dividing line between the transportation.
Q. So then we will say students in the Southeast sec
tion of Montgomery who live in the rural, would they be
transported to Lanier, or would they be transported to
Lee? A. Well, it would—they would be transported—it
depends on which school they chose; if they chose—they
would be transported to either Lanier or Carver—
—516—
Q. Now, do— A. —depending on their choice. Depend
ing on their choice.
601
Q. Does the Board of Education provide transportation
to the students who, say, choose Lanier: Let’s take a
Negro student who lives down the Woodley Road; now,
does the Board of Education provide transportation for
that child to go to Lanier High School? A. If he chooses
it. If he chooses it.
Q. It does provide it? A. Yes, sir.
Q. Does it provide transportation for them to go to
Lanier—I mean Lee High School? A. No.
Q. All right. Now, do you recall a conversation with
some representatives during last fall with respect to pro
viding transportation to—to Lanier High School from the
Woodley Road area, and they were advised that the only
transportation available in that area was transportation
either to Carver High School or to Booker Washington
High School? A. No, sir; I don’t remember that.
Q. Do you have or is any transportation provided down
the Woodley Road area to Negro students at all so far as
Lee or Lanier are concerned? A. On the Woodley Road
down to a certain distance, they have a chance to go or
choose, and the buses go to Lee—I mean to Lanier or
Carver.
—517—
Q. Now, I think, Doctor, at the time the choice forms
were sent out, it indicated on the forms which schools
had transportation provided? A. It had an asterisk by
the schools that had transportation provided.
Q. And is it your testimony, sir, that on those forms
that were given to Negro children in the Woodley Road
area, there was an asterisk indicating that they could have
selected Lanier High School or Lee High School? A. No;
it was—well, it—it showed both of them, but if they had
602
chosen Lee, we would have sent them a letter that from
that area buses do not run to Lee High School, but there
would be buses to Lanier or Carver.
Q. And you are sure that the asterisk was there for
Lanier as well as Carver? A. Oh, yes; we have got some
that are transported to Lanier.
Q. Now, let me ask you further with respect to trans
portation, and I want to direct your attention again to
this area in the Southeast part of the city; now, students
who live down the Woodley Road, Narrow Lane Road—
there are some Negroes who live in this area; is that right?
A. Yes, sir.
Q. And there are some of both elementary and high
school age? A. And junior high.
—518—
Q. And junior high. A. (Nodded to indicate affirmative
reply)
Q. Now, let me ask you about transportation on the
elementary level; do those students in that area—they
were indicated on the form; what schools did it indicate
transportation would be provided for them? A. In that
area?
Q. Yes, sir? A. Goode Street and Hayneville Road, it
had— of course, the form has all of them that have—but
if there had been any question, those were the two that
that would serve.
Q. Yes, sir; transportation was provided. A. That’s
right.
Q. Now, this area down here, you have some on five or
six miles, southeastern part; now, where is the Hayneville
Road Junior High School or Hayneville Road Elementary?
A. Well, it is on the By-Pass right near the Reconsign
ment Point.
G03
Q. But that is—actually, it is in the western, is it not—
the western part of the city? A. Well—
Q. You mind, sir, coming around showing us where
Hayneville Road Elementary School is? A. There it is.
That is the Reconsignment Point.
Q. Here is the By-Pass. A. Right along in here.
Q. All right. Jsow, if you will, just stay here just a
- 5 1 9 -
moment, sir. M ill you make a mark about where on
Hayneville Road is it? A. I can’t find the Reconsignment
Point; it is almost—
The Court: You will have to speak out so the
reporter can hear you.
A. I said right across the street from the Reconsignment
Point; I don’t see that marked on here.
Q. This is the Western By-Pass right here, and Hayne
ville Road. A. I believe—where is—
Q. And here is the Hayneville Road. A. Fairview com
ing out.
Q. Mobile Road. A. Right here; it would be somewhere
right along in here, I guess.
Q. Would you put a large mark and circle it; that is
the Hayneville Road School. One other thing before you
go back, if you will. Now, show us the general area where
these Negro children live who must go to Hayneville Road
School, east or west, for transportation in the southeastern
part of the city. A. Any student that lives between the
Atlanta Highway—wherever the Atlanta Highway is—
Q. That would be here. A. All right; on this side of
the Atlanta Highway around on the periphery outside, he
604
would be transported to Goode Street or Hayneville Eoad
if they choose the transportation.
Q. Now, would those children—would you show us where
— 520—
Goode Street is? A. It is—right in here; right there.
Q. If you will, make a mark and circle a large— A.
(Witness marked map)
Q. Circle that. A. (Witness marked map)
Q. Thank you. Approximately how many schools would
an average Negro child who lives on the either south
eastern or south— southern part of the city have to pass
in order to get to the Hayneville Eoad School? A. Well,
it would depend on which way he went; if he went—if he
went around that By-Pass, I believe Harrison would be
the only one he would pass.
Q. Let’s go back to my example of down the Woodley
Eoad. A. Well, I presume he would come up to the Wood-
ley Eoad, to the By-Pass, and go right around, that would
be about the best way.
Q. You have already got an elementary— A. Got
Harrison.
Q. —already on Woodley Eoad— A. Have Harrison.
Q. Do you have an elementary school already on the
Woodley Eoad? A. Not yet, no; we are going to build
one out that way.
Q. Where is Bear School? A. Bear School is on the
McGehee Eoad, right off the McGehee Eoad; I have for
gotten the name of the street in front of it, but it is right
there at the intersection of the McGehee Eoad and
— 521—
Woodley Eoad; I think there is a church, and they have
the school.
605
Q. It is just about on the Woodley Road, isn’t it? A.
Well, it is on the Woodley Road, but it is a long ways
from the edge of town.
Q. But it is south of the Southern By-Pass some four
or five blocks; is that correct; on the Woodley Road? A.
It is north of it—
Q. It is north? A. —toward town.
Q. North of it. Isn’t there an elementary school on the
Woodley Road that’s south of the Southern By-Pass? A.
Not on the Woodley Road.
Q. It is one on the McGehee Road? A. No; McGehee
Road ends up there about the Montgomery Fair.
Q. Now, where is the proposed new elementary school
to be built? A. It is in Spring Valley.
Q. And is that on the—approximately where would that
be on this map? If you will, come and show us? This is
the Woodley Road here. A. It is right along about just
this side of Baldwin Slough.
Q. All right; make a little mark, if you will, Mr.— so
that is the proposed new elementary school. And this ele
mentary school is near a great deal—quite a few Negroes
who live further down the Woodley Road and further
down Narrow Lane Road? A. Yes; it is nearer to some
Negroes and white people that live down that road.
— 522—
Q. All right; and you are saying that no transportation
will be provided for these students, even though they live
farther than two miles from this elementary school? A.
This will only be a very small elementary school; we are
constructing twelve or thirteen rooms, and it is built
largely for— oh, it will be plenty of people within two miles
of it.
Q. As a matter of fact, there is a new white subdivision
606
where that school is going np, isn’t it? A. It is a new
subdivision.
Q. And is there any logical reason why the school can
not be built large enough to accommodate these other stu
dents who live in the same general area? A. I am sure
there will be colored students, plenty of colored students
within two miles of that school.
Q. But I am saying, is there any basic reason, Dr.
McKee, why that school could not be constructed large
enough to facilitate children who live two or three miles
further and who must now ride some ten to twenty miles
a day to get to a school? A. Well, I doubt if there is
any riding twenty; there might be some riding ten. Of
course, money is always a problem; if you had enough
money, you could build schools anywhere you want.
Q. That’s right; as a matter of fact you are building
and adding to—to the McIntyre Elementary School, aren’t
you? A. We have built a junior high there.
— 523—
Q. Built a junior high there; that is in a Negro pocket
on the west side of town? A. We built it because the
Government requested us; they were fixing to build this
Gibbs Housing Project, and we had to write that letter
that we would have enough schools that serve in that area.
Q. Yes, sir. A. And we have finished the building and
operating the school this year.
Q. As a matter of fact, there has been additions that
this Board has made to the Hayneville Road School since
this court order has been in effect, hasn’t it? A. Yes;
we have—we had permission from this court to build some
rooms at Hayneville Road.
Q. And it is these Negro children who is going to pass
by this new school to go to Hayneville Road in order to
607
have transportation, isn’t it? A. There will also be some
white children that will pass by, too, if they want to ride
the bus.
Q. So then there is nothing that the— if the Board
wanted to, it could make this school large enough to
facilitate the elementary school kids in that area, couldn’t
they? A. I don’t think it would be big enough by next
faU.
Q. Now, let me ask you this, sir; the high school stu
dents in this area, transportation is provided for them at
Carver and Booker Washington; is that right? A. Trans-
—524—
portation is provided for them at Carver and Lanier,
Booker Washington when you get to the Atlanta Highway,
when you get to—
Q. Yes, sir; let me direct your attention, now, to the
new high school. And I think you testified that at all of
the other high schools in the city, transportation is pro
vided; is that right? A. That is correct.
Q. What was the criteria used by the Board in deter
mining to provide transportation at these other high
schools? A. It has been the policy of the Board for twenty
years; when we first—Montgomery began growing that
we left our transported schools where they were, and we
knew that in the areas that were growing, that those
schools would fill up with people that lived right around
the school, and we have continued to transport; we have
been transporting to Capitol Heights Elementary, to Goode
Street, and Booker Washington Elementary, and now
Hayneville Road; we used to could handle them at Carver
until Carver got so big, and we had to build another build
ing, and we have been doing that for years. And Pender
Street is another school that has transported elementary
children.
608
Q. All right; now, you have had and there is now going
up at the Carver High School additional classroom facili
ties; is that right? A. There is an auditorium and a band
room and a room for the R.O.T.C. and I believe a choral
room.
—525—
Q. Is there any real basic reason, sir, why this Board
cannot provide transportation to students who qualify for
it to this new high school? A. We feel that we have
decide—that we would transport to the ones that we have
been transporting to.
Q. Now, won’t that—won’t the effect of this be that
many Negroes who don’t live in the direct area of a school,
but who live nearer that school, and doesn’t it mean that
you won’t provide transportation for them, and they will
have to go a long way— A. Well—
Q. —in order to get it? A. Well, as I interpret the
court order, under the freedom of choice, if a—and I have
the feeling there will be a large number of people choosing
this as a new school, they would be turned away because
of distance.
Q. Now, that wouldn’t eliminate the problem so far as
transportation is concerned? A. Well, I mean, what I am
saying is, if the school was full at the end of March, then
we have got to notify those that live the furthest away
from the school, and that would be the ones—the trans
ported people would be the ones.
Q. Is that why you are saying the Board decided not
to have any transportation here? A. That is why the
administration has decided; yes.
Q. Describe for the court, if you will, the general area
where this—where this new high school is being built?
609
— 526—
A. Well, it is being built on Carter Hill Road between the
old Green Lantern, or the Green Lantern Branch of the
Union Bank and Trust Company, and Masonic Home.
Q. Is this a fastlv growing area, populationwise ? A.
Very fast.
Q. And isn’t it right in the middle of a very gross white
population area? A. It is in the middle of a fast growing
area.
Q. White people are the only ones live there except a
little pocket of Negroes who—who—there are two or
three houses right at the Masonic building and the Vaughn
Road; there are very few Negroes out in that area; isn’t
that right? A. I don’t know of very many; no.
Q. Sir? But I don’t know when there will be some.
Q. And the nearest Negro families, except for this little
pocket that is right at the Carter Hill Road, Vaughn Road,
railroad and the church, there would be these Negroes
that live down the Vaughn Road, Woodley Road, Nar
row Lane Road, and this rural area to the east of Mont
gomery? A. Well, I would think that those in the Carter
Hill area, on the Carter Hill Road area, would be nearer
than that,
Q. What you mean— A. I mean—
— 527—
Q. —the area near— A. —the area in the Carter Hill
Road where the Negroes are moving in and across Carter
Hill and all in that area, there are some of them that would
be closer.
Q. You are talking about the area of Carter Hill Road
right around at the back of Alabama State College? A.
That’s right; and there is a good bit of movement there,
colored people in the former white area.
610
Q. As a matter of fact, the area where this new high
school is being built is a pretty—really, it is more the
upper echelon than the lower income group of people that
live out there? A. I see some pretty big houses out there—
Q. Yes, sir. A. —and there are some that is not so big.
Q. Now, let’s talk for a moment, if you will, sir, about
your other elementary schools. A. All right.
Q. And where is this other elementary school that is
to be built? A. It is at Southlawn out in—on beyond the
Mobile—intersection of Mobile Highway and the—and
the—it is right in here.
Q. It is on the southern part of the city toward the
west; is that right? A. Well, the south; it is south.
Q. South? A. I guess it would be a little bit west; yeah.
— 528—
Q. Now, is that in a new white subdivision? A. It is
in a new subdivision; I don’t know the composition of it
altogether.
Q. And aren’t there a substantial number of Negroes
who live, say, more than two miles south of— of this new
school down Highway 31? A. Yes.
Q. Going toward Hope Hull? A. That’s right.
Q. And you have a—a densely populated Negro area in
there? A. Of course, on that area, they have the choice
of Pintlala or Hayneville Road.
Q. Now, do they have transportation to either of those?
A. Transportation to Pintlala and Hayneville Hoad down
the Mobile Road after—beyond this subdivision, after you
get a few miles beyond that.
Q. No transportation is being provided at this particular
school? A. Transportation this year provided to Pintlala
and to Hayneville Road.
Q. Tell us, sir, has the Board actually revised its whole
611
transportation system so as to eliminate the dual system
and to eliminate the overlapping of routes as this court
directed in its order this summer? A. This Board—I
mean we have had to change bus routes from time to
time.
—529—
Q. I am not asking you that, sir; I am asking you
whether or not now, as result of this court order, all of
the overlapping where you had wdiite buses going to pre
dominantly white schools and vice versa, has all that been
eliminated? A. I couldn’t say that all of it has; we—
our buses, as we pointed out, serve these various schools,
and they take the people that choose those schools.
Q. Now, do you understand it to be the responsibility
of the Board to completely revise the transportational sys
tem from a dual system to a unitarial system? A. We—
we do it in the sense that—now, our schools are not sit
ting side by side that they go to. For instance, the example
I just gave you, Pintlala and Havneville Road, the buses
that have the children that want to go to Pintlala, white
or colored, go to Pintlala. The ones who want to go to
Havneville Road go to Havneville Road.
Q. Who in your office is responsible for the formation
of and the outlining of routes to be sure that this court
order has been carried out? A. The principal—the prin
cipal of the school is first, and then we have a Mr. Harris
who is supervisor of transportation and Mr. Kirby who
is the assistant superintendent in charge of transporta
tion.
Q. Has the principal, say, of Carver High School and
the principal of Lanier High School gotten together and
decided on how to— A. No.
612
Q. —have a transportation system so there will be no
duplication? A. No; we have not done that, because you
could not make a bus route— if you tried to get a bus into
Lanier driveway and then go over and get into the Carver
driveway, you would have children leaving home an hour
earlier. We try to fix it where a bus will have to serve only
one school if possible.
Q. So then actually, a—when—when it is left up to the
principal to decide, he would be unable, really, to do it,
because he isn’t aware of what the other school does? A.
Well, we know the impossibility of getting in these drive-
Avays, especially on rainy days, of these large schools, and
we try to eliminate at all times where possible—
Q. Has the Board designated any particular person in
your office and said, “The court has directed us to desegre
gate our school system, and I Avould like for you to see this
is done” ; has any such responsibilities been delegated to
any particular person? A. We ha\̂ e tried to operate our
buses in a Avay that we would ser\Te the people to the best
advantage and eliminated duplicate—we had very feAv
duplicate routes, anyway.
Q. Then do I understand, sir, from Avhat you are say
ing, nobody has been assigned that responsibility? A.
Yes, we have all read the court order; we haAre the court
order and have studied it, and we have tried to carry it
out to the best of our ability.
—531—
Q. I understand that, but no one has been given the
specific responsibility? A. Not by the Board, because
the court has already given the order.
Q. Well, I am saying, has any administrative assistant
been assigned the responsibility? A. We have a—dis
— 530—
613
cussed it among the ones that handle transportation; yes,
we discussed it.
Q. Let me be sure I understand your testimony, sir;
is it your testimony that there is now no duplication and
overlapping? A. Yes, there would be some; but, as I
pointed out, so many of our schools are completely dif
ferent, I mean not—they are not sitting side by side.
Q. Do you know whether or not—have you recommended
to the Board that one way to accomplish desegregation of
transportation would be to appoint someone responsible
for seeing that this phase of the court order is carried out;
have you made that recommendation? A. I haven’t made
that recommendation; it is in the court order; we handle
it just like we have been handling it—I mean in our sys
tem. And yes, s ir ; our transportation man works with us,
and we have many bus routes, buses that are integrated.
Q. In other words— A. In fact, we have one—we have
had delegations call the Board and everything that got
more Negroes on it and everything than it has whites,
and we have had some problems on that bus.
Q. Now, let me direct your attention a few moments to
— 532—
your athletic program. A. (Nodded to indicate affirma
tive reply)
Q. What has the Board done toward desegregating the
athletic program in the Montgomery County school sys
tem? A. The Board has let any child that is in a school go
out for any type of athletics that he desires.
Q. That is within a school? A. That’s right.
Q. Now, will you tell us whether or not there are in
fact two athletic associations, one that is membership by
the predominantly white schools, and the other member
ship by the predominantly Negro schools? A. I think
614
that is correct; I couldn’t tell you the names of but one of
them, hut I think that is correct.
Q. Now, what has the Board done toward doing away
with this dual athletic system? A. We have nothing to
do with the athletic system, except our schools belong to
it; we—we are— the Board does not control the Alabama
High School Athletic Association or the one for the colored
schools.
Q. Who makes up—but each of your schools—let’s take
the high schools; each of the high schools are members of
the association; is that right? A. As far as I know, they
are; we don’t—
— 533—
Q. Each— A. That is handled by the principal of the
school, but—I think all of them are, but I couldn’t be
positive.
Q. And all the white ones are members of the white
association? A. I know that the white ones are members
of the white association; I think that the colored are mem
bers of their association.
Q. And has the Board—and are the principals of the
schools members of the association? A. The coaches are;
I don’t—I am not sure about whether the principals are;
I know the coach would be a member.
Q. Now, has the Board given instruction to the prin
cipals of the schools or the coaches and directed them to
take some steps toward desegregating or toward merging
these two athletic associations? A. No; no, we felt that
that is not in our field.
Q. Do you, as superintendent, and as you interpret this
court’s order, does the athletic—is the athletic program
included as one of the items to be— A. It is, as I under
stand it, within that school, which we have carried out.
615
Q. You mean within the individual school? A. We
have had Negroes to go out for football at Lanier.
Q. But you don’t understand, or do you understand, the
court order to mean that it goes further than once you get
into school being able to participate in all of the activities ?
A. Well, we—we allow them to participate in all the ac-
— 534—
tivities of that school—
Q. Tell me, sir— A. —and we had—we had one game
this year when there was six members of the colored race
on an opposing team from Tuscaloosa that we played.
Q. Now, that school that you played was a school—
predominantly white school? A. I don’t know; that foot
ball team at that moment was predominantly colored.
Q. What school was it? A. Tuscaloosa.
Q. Sir? A. Tuscaloosa High School.
Q. You are familiar with Tuscaloosa High School, aren’t
you? A. Yes, sir.
Q. And you know that that is a predominantly white
school? A. It has rather sizable number of Negroes.
Q. What— A. I would imagine more white; sure.
Q. Let me ask you, has Lanier, to your knowledge, ever
played Carver? A. No; they haven’t played Carver.
Q. Has Lanier played Lee? A. Yes.
Q. Has Lee played Carver? A. No.
— 535—
Q. Is there any plan, so far as you know, for Lee to
play Carver? A. Not that I know of.
Q. Or Lee to play Jeff Davis? A. Not that I know of.
Q. Aren’t you, or are you, familiar with the fact that
the coach, the newly appointed coach, of Jeff Davis has
indicated in the next couple of years they will probably
play Lanier and Lee? A. I saw that in the paper; yes.
616
Q. That’s right; did yon—have you seen that they will
also play Carver and Booker Washington! A. I haven’t
seen that.
Q. Now, let me ask you this; I believe, sir, you testified
that the five persons who have been employed to go to the
new school, Book—I mean Jefferson Davis High School,
are all white persons; is that correct! A. That is correct.
Q. Now, did they, all except one, I think that was the
band—proposed band director, did they all come from
schools that were predominantly white schools! A. Yes.
Q. Has the Board considered employing any Negro at
any—in any administrative position at Jefferson Davis
High School! A. There won’t be but one administrative
position.
Q. Well, administrative or semi-administrative! A.
Well, teachers; we are going to have plenty of teachers
there.
— 536—
Q. You saying you are going to have plenty of Negro
teachers at Jefferson Davis High School! A. Yes, sir;
we are going to have some Negro teachers; we have been
planning that all along.
Q. Plenty of them! A. We are going to have some.
Q. In your opinion, how many Negro teachers do you
contemplate having at this school! A. I would say around
seven.
Q. Seven out of probably forty, I think in your deposi
tion— A. Well, that would be the most, if it—if it—it
is somewhere between thirty and forty, I would say.
Q. Now, approximately how many of these seven are
going to be floating teachers! A. I don’t know that; we
may not have any floating teachers—by floating teacher,
I don’t know what you mean. What we mean is a teacher
617
that doesn’t have a permanent room ; she teaches in this
room when this teacher has an off period, and she moves
to the next room when the next teacher has an off period;
there may be some of those, but it won’t be necessarily
whether it be colored or white.
Q. No, I was thinking about something like your speech
therapist in your elementary school, they teach here and
then they go to the other school. A. No; there won’t be
any of this.
— 537—
Q. I think in your deposition, sir, you mentioned that
the funds for the athletic program of all schools, includ
ing the new school, must be raised; is that correct; and
it is not provided by the Board! A. That applies to
new and old.
Q. Yes, sir. Do you know what steps has been made
toward raising funds for the band uniform and—and the
athletic equipment for Jefferson Davis High School! A.
I know nothing except what I have read in the paper, be
cause that is a matter we leave in the hands of the prin
cipals or the band director and the coaches, and either
through gate receipts and borrowing the money and pay
ing it back later.
Q. Are you familiar with a meeting of persons from
Montgomery at the Governor’s House Motel where they
met for the purpose of raising some funds for the new
school! A. First I knew of it, I read it in the paper.
Q. It has been called to your attention! A. I saw it
in the paper; yes.
Q. Do you know whether any Negroes were invited to
that meeting! A. I could not say; I was not there.
Q. Do you know whether—has there not been additional
meetings of interested residents who have been notified
G18
and advised about meetings of the new Jefferson Davis
High School? A. I am sure they have; there usually al
ways is when we open a new school, they will get up money
for things that the Board can’t provide.
—538—
Q. Do you know whether any of these persons or any
Negroes have been contacted or invited to participate?
A. I do not know.
Q. Did you, in giving your instructions to your new
principal, tell him that, “ The school is going to be open,
and all of your planning phases, we would like for all
members of the community to be a part of it, including
Negroes” ; did you so advise him? A. We advised him
and gave him—he has a copy of the court order that this—
and we told him at this time that this faculty would be
integrated.
Q. I am not asking you, sir, about the faculty; I am
asking you whether you informed the coach—I mean the—
A. We told him that his student body would be made up
of freedom of choice and that he would know about it at
the end of March.
Q. But did you inform him that in the planning stage
where you were going to the people of the community, to
invite some Negroes, too, to participate in the planning?
A. I am sure that he—we—we left that up to him; we
do not instruct him.
Q. You didn’t give him any instructions about it? A.
No, sir.
Q. All right; let’s talk a moment, sir, about your coach.
At the time you employed the coach for the new school,
did you advise him that he should consider playing some
formerly all Negro schools? A. No, sir.
619
— 539—
Q. Did you advise him that if he saw fit, so far as try
ing to get Ms team together, to—to consider Negroes? A.
You mean Negro schools or Negro players?
Q. Negro players. A. We told him he would—anybody
that went to Jefferson Davis School would—could go out
for football.
Q. I am saying, did you particularly say anything to
him about the racial problem because this is a problem?
A. Well, he has been at Lanier; he knows all that this—
he has been at Lanier, the new coach has been right there
at Lanier during all this time.
Q. You saying you didn’t tell him anything about it?
A. We also told him that we could not solicit any players
to exercise the freedom of choice and gave him a copy of
the court order, that particular section about no official
will have any influence on the choice a student makes in
the schools they attend.
Q. Are you, sir, familiar with what has been reported
in the newspaper that the city of Montgomery has been
divided into three zones so far as eligibility of athletes
going to Jefferson Davis? A. I have not heard that at all.
Q. Did you—you didn’t read that in the paper? A. If
I did, the paper was in error, if it was in the paper; I did
not read it, but if it was in the paper, it was in error.
— 540—
Q. Do you recall anything at all or have you discussed
anything at all about the eligibility— A. Yes.
Q. —of— of— of—of—of students who will attend Jeffer
son Davis High School so far as being on the team is
concerned? A. Yes; we have discussed that.
Q. You discussed that? A. (Nodded to indicate affirma
tive reply)
620
Q. And wasn’t something said in that discussion that
if the students who were going to Jefferson Davis lived
in a certain area—and there are zones of this—that was
nearest to Jefferson Davis High School— A. It is not
a zone.
Q. Well, let’s—let’s call it whatever you want; there
was some geographical area that if the student lives in
that area and wanted to go to Jefferson Davis, then he
would he eligible to play on the team the first year ? A.
According to the Alabama High School Athletic Associa
tion, if he had attended Lee or Lanier, which are members
of that association, he could not play at the new school
the next year unless he lived closer to the new school than
he did to the one that he was presently attending.
The Court: You mean the Alabama Athletic
Association has the right to determine who is eligi
ble to participate in school activities—
— 541-
Witness : They have the right—
The Court: —in the Montgomery schools'?
Witness: They have the right in the athletics.
The Court: Who gives them that right?
Witness: Well, of course, it is a body of coaches,
and I am not sure whether the principals are mem
bers. They say you got to make a certain grade to
play; if you make under a certain grade, you can’t
play. I f you are over a certain age, you can’t play,
or if you—we had down at Earner this year, our—
that team had a bad year up until this year, and
it won nearly all the games, but they got thrown
out because they played a boy that has been play
ing five years, and they can’t play him but four
years. That is the land of regulations they have.
621
The Court: How do they penalize the school that
doesn’t adhere to their rules?
Witness: Well, they forfeit all their games.
The Court: Throw you out of the association,
and they won’t let you play any other team that
belongs to the association; isn’t that it?
Witness: I believe that is correct; yes, sir.
The Court: Well, maybe they ought to be a party
in this lawsuit.
Mr. Gray: Yes, sir.
The Court: If they have that much authority over
the operation of the schools in the athletic program.
—5 4 2 -
Witness: Now, in this matter, we had explained—
The Court: I gather it is authority that is just
granted to them by the schools, themselves, though.
Maybe they shouldn’t have any standing in the law
suit at all. I don’t know. That just seems like it
flies in the face of certain provisions in this court
order for these schools to continue to belong to an
association that is organized and operated strictly
according to racial lines and the schools get penal
ized for playing schools that don’t belong to an
association that is predominantly of the same race;
and at this point, I hold the school authorities
responsible for seeing that it doesn’t happen. I will
go into that more in the order that I enter in the
case.
Q. Do you know, sir, when this regulation was passed
by the Athletic Association? I am sure it would have to
have been passed after there was some question about the
membership of the new schools in the association. A. As
622
1 understand their rule prior to this was that if you
started in a high school in a city, then you had to play
out your eligibility in that high school, and, of course,
there is always a lot of problems, pressure, about one
group trying to get the boy to leave this high school and
go to the other one. Of course, I know that is what they
are trying to attempt; they are not trying to work on
this other, I don’t think, but in this particular case, I think
they had maybe one other opening school, and they had
an old rule that if he lived in that district, you could go
—543—
there, but now, they just—they made that rule, I think it
was a month or so ago; I am not sure exactly how long.
Q. Now, let me ask this; is the Jefferson Davis High
School already a member of the association! A. It is my
understanding it is not.
Q. It is not a member; but it is governed by its rules
and regulations? A. It is—it has—they have discussed
being a member, and am sure they plan to be a member.
The Court: Of the white or Negro?
Witness: The Alabama—it is the white.
The Court: Well, why did they select the white
before the students selected the school?
Witness: Well, they haven’t actually selected it
yet.
The Court: That brings me to another question;
why do you select all white coaches before the stu
dents select the school?
Witness: Well, as was mentioned, one of the
hardest jobs that we have in athletics is to raise
the money to keep it going. We felt first that Mr.
Livings who had coached on the Lanier staff for a
good many years—
623
The Court: Why didn’t you select a Negro assist
ant coach or maybe two?
Witness: We felt, Judge, that in this transition,
we tried to work on this thing—
— 544—
The Court: I have gone along with this transition
business for a good long while, but we have passed
the transition period.
Witness: I understand that, but we felt that
it would be better not to have them on athletics to
start with and that we would—we plan to put—
The Court: This is not a new school system; this
is just an addition to an existing school system that
has been under an injunction for several years—
Witness: Yes, sir.
The Court: —to eliminate the dual school sys
tem. I am concerned about the conduct of the Board
in permitting this to happen while they are under
a court injunction.
Witness: Well, Judge, I—if I may say this,
we have had a—a lot of problems we have had.
Now, there is about thirty-two that have crossed
over. We have had to put real close supervision;
we had police protection for several weeks; we have
gone in there and watched it, and we plan to start
next year to desegregate all of the faculties in the
city.
The Court: W7e are going to do that.
Witness: We want to do it peaceably, and I know
you want it done that way, and where it will not
be—
The Court: We are going further than that, I
think, Mr. McKee. We are going to desegregate
624
some athletic programs, too, if they continue. Let’s
go ahead.
— 545—
Mr. Gray: We have no further questions.
The Court: Go ahead.
Cross Examination by Mr. Robison:
Q. Mr. McKee, in connection with this Athletic Associa
tion, is that association, as you understand it, similar to,
say, the Southeastern Conference, requirement to be a
member of the Southeastern Conference or the Atlantic
Coast Conference, the Pacific Coast Conference, or any
other— Southwest Conference, or any other football con
ference? A. It is similar to that; I don’t know its—all
their rules, but they—they have rules of eligibility and
grades and how many players you can have and various
things of that type.
Q. Do you know what the constitution or the by-laws of
that association consists o f ; you are not familiar with that,
are you? A. No, sir; I am not.
Q. Is it your understanding that if a school is to play
other teams that are in the conference, they must belong
to that conference? A. That is my understanding.
The Court: Where do they get—where do they
get the authority to enforce this rule?
Mr. Robison: If the court please, I am not famil
iar with the constitution and by-laws, but I guess it
would be similar to Southeastern Conference, just
like Georgia Tech withdrew from that and don’t
belong to it; if they don’t abide by those conference
- 546-
rules, then they withdraw from that association.
625
They set up, as has been said, certain rules and
regulations with respect to eligibility of the indivi
dual players to play. It is my understanding, and
we have only had an opportunity to briefly look into
this, but it is my understanding, also, that there is
no race restrictions within the association, of either
association.
The Court: Well, why have rules ?
Mr. Robison: The question?
The Court: Why have two associations if there
is not—
Mr. Robison: Well, that, sir, I am not prepared,
as I say, to answer those questions.
The Court: I suppose we will have someone here
from that association?
Mr. Gray: Executive Secretary is here, your
honor.
Mr. Robison: Of both of those associations, if
the court please.
The Court: All right; go ahead.
Q. Mr. McKee, insofar as recruiting players at the
Jefferson Davis High School or at any oher high school
in the system, do you know of any recruiting that goes
on to influence the choice of a student with respect to the
attendance at a school to play football there? A. I do
not knoAv of any, and, of course, our people know that it
is a violation both of the court order and of—a violation
of the—either of the associations; I think both associations
- 547-
have the same rue in there about recruiting.
Q. To your knowledge, has any assignments or designa
tion been made of any students to attend the new high
626
school, either by the principal or you or any official of
the school system? A. No, sir.
Q. Is Lee and Lanier and Booker Washington, Carver,
and all the schools that are in the Montgomery County
system, they are under this court order, of course, are they
not? A. Sure.
Q. And they are playing football at the present time?
A. Yes, sir; they play in the fall.
Q. Sir? A. In the fall.
Q. In the fall; all right. Now, Mr. McKee, I want to
talk about transportation just a moment. Is transporta
tion available in a given area for a child to have an op
portunity to attend—any given area to attend a school
either predominently white or predominently colored? A.
In the county; yes.
Q. In the county in any given area? A. That is correct.
Q. By choice, a child may be transported to a school of
either race if they live within a given area? A. That is
correct.
— 548—
Q. All right, sir. Now, in sending out the choice forms,
did you designate last year the schools that were being
transported or area that were transported? A. We had
an asterisk by all schools where there was any transporta
tion from certain areas of the county, I believe is what
the footnote says—
The Court: Let me interrupt you here: Now, on
the new school, the Jefferson Davis School, will
that also apply; will you give them an opportunity,
say from Booker Washington to the Jefferson Davis
School?
Witness: We had not planned to have any trans
portation at Jefferson Davis.
627
The Court: Well, do you have transportation at
Lanier and Carver?
Witness: At Lanier and Carver.
The Court: And you have it at Washington and
Lee?
Witness: No, sir; we have it at Lanier.
The Court: Why haven’t you planned to have it
at Jeff Davis?
Witness: We had found that if you are going to
try to go to four or five or six different schools, you
are going to have the kids up so early in the morn
ing to get there— they have to get up early enough
as it is. At Lanier, we have this Vocational Agri
culture unit which we figure a lot of the rural chil
dren want access to and have chosen because it is
there; it is the only one I know of that is in a city.
—549—
Q. In setting up your transportation, Mr. McKee, have
you done it in mind so as to permit any— still any child
in the county exercising a freedom of choice, to be able
to go to a school minority— of a minority race ? A. That
is correct; and also, if he furnished his own transporta
tion, he had the right to choose any other school if there
was space available.
Q. What is the two-mile requirement with respect to
transportation? A. The State will not reimburse you, or
they don’t pay it all, but they pay part of the cost of
transportation for pupils that live over two miles from a
school.
Q. Do you provide any transportation in the city of
Montgomery? A. There might be some in the fringes or
certain areas that at one time was out of the county and
m the city, there might be in—little bit in certain edges,
but basically, not any to amount to anything.
628
Q. And the two-mile area, if a child is within two miles
of any given school, there is no allowance for transpor
tation— A. That is correct.
Q. —is that correct? A. That is correct. In other
wrords, if wre were a separate city and county school sys
tem, like Jefferson County in Birmingham, we wouldn’t
have any buses. We would just have Montgomery city
system. I don’t think any of the city systems in Alabama
- 5 5 0 -
have any buses, but we happen to be a combination, so
we do for the county what the county school system would
do, and try to do for the city what they do.
Q. In deciding which schools will be transported and
which ones will not be a transported school, what factors
do you take into consideration? A. Well, of course, we
had taken into consideration space, and when possible, it’s
_ w e — we have had Capitol Heights Elementary for a
good many years, it has been a transported school; High
land Gardens is a transported school, and Goode Street.
The Court: Are your four high schools trans
ported schools?
Witness: Yes, sir.
The Court: What would it require you to do if—
if the court ordered you to provide transportation
to Jefferson Davis on the same basis as you pro
vided it for your four existing high schools?
Witness: Well, it would mean, Judge, that a bus
coming up the Wetumpka Highway, if—from that
area would be very hard to get over there. It
wouldn’t present as much of a problem for the
Carver or the Lanier thing, but it would present
a problem of having another school to serve, taking
629
part of them into one and then going on to another
one.
The Court: Go ahead.
Witness: And getting tied up in all that traffic,
— 551—
and it is terriffic.
The Court: Go ahead. Go ahead.
Mr. Robison: Excuse me.
Q. You do not propose to transport any whites or colored
or any children at all to the new school under the present
plan? A. That is correct.
Q. By comparison, what is the size of the new school
at Jefferson Davis as compared with Lee or Lanier? A.
Well, the new school, as it is at present, about somewhere
between eight hundred and a thousand, depending on the
subjects that they chose.
Q. And as compared with Lanier and Lee, would it be
much smaller or comparable— A. Much, much smaller.
Q. —to it? Now, in determining—after the freedom of
choice period, in determining the eligibility for attendance
to the Jefferson Davis High School or Lee or Lanier or
Booker Washington or any others, if there is an over
crowded condition, what is the only criteria that you use?
A. When it is an overcrowded condition—
Q. Yes, sir. A. —is distance.
Q. Distance would be the only factor that you would use?
A. Now, there is another point that I did not bring about
the transportation; we have the feeling that there is going
— 552—
to be more space, and there are more white children in
volved, there are many more white children in that area
being transported than there are colored children, and
630
that Lanier will more than likely have the space than would
Jefferson Davis.
Q. Than would Jefferson Davis. A. See, it is a modern
area which is pretty heavily populated with white people.
Q. Now, explain to me that, Mr. McKee, as to what you
anticipate insofar as white vacancies or white children that
will be transported to Lanier? A. Well, at present, there
is some three hundred and fifty or more children trans
ported to Lanier.
Q. And do you anticipate, with the opening of the new
school, that it would affect materially the transported chil
dren to Lee or Lanier—I mean to Lanier? A. My—my
honest opinion is that they would be caught in being turned
down when you apply the court order that says those
that live the furthest away.
Q. Who would be caught, Mr.— A. All the bus chil
dren if we were to send some bus children to Jeff Davis,
because they would be the furthest away.
Q. They would be the furthest away. A. And I—
The Court: That is assuming that you have
enough choices—
- 553-
Witness : Yes.
The Court: — to overcrowd that school?
Witness: I have a feeling with the new school
there is going to be some choices—I mean going to
be some people from all over town.
Q. Mr. McKee, in connection with choosing a new school,
is the fact that it is a new school a faculty—a factor that
would affect choices by anybody in the system to go to that
school? A. I would think so. Especially tenth grade; it
631
is going to have a great effect on them; I am expecting a
much larger tenth grade than any of the rest of them. A
few seniors may stay where they are, but I am expecting
a heavy enrollment in the tenth and eleventh grade.
Q. Now, Mr. McKee, in paragraph four of the motion
that the Government has tiled, this statement is made;
“During the first grading period, defendants had approxi
mately a hundred and fifty student teachers working in the
Montgomery County system, none of whom were assigned
to a position where their race -was in a minority.” Do you
have any grading periods in—in student teachers? A.
Well, that depends on the college that they attend; I pre
sume they are talking about the time that they were
there. Now, Alabama State is on a semester system, and
they have some student teachers the first semester and
some the second semester. Auburn is on a quarter system;
they have some the first—fall quarter, the winter quarter,
and the spring quarter. Troy is on a quarter system.
— 554 —
Huntingdon is on the semester system. And, of course,
we are doing this to help the colleges out. We would just
as soon not have any student teachers, and sometimes we
get so provoked with it that we think maybe we will quit
fooling with it. But we know teachers have got to be
trained, but it is a voluntary act on our part that we do,
and we thought that starting off this fall, we had our hands
full with the faculty changes, and then we started this
modest change in student teachers; this second semester,
we will probably—I don’t know, we haven’t seen the list
yet, I haven’t, it may be in—but we will have some Auburn
students coming in in the spring, we may transfer some
of those.
Q. At this particular time, Mr. McKee, in the school
system recruiting of teachers and in selection of the faculty,
632
is this a very critical and crucial time in the school sys
tem’s life to establish a— selected faculties? A. This is—
this is a very critical time, because so many of our teachers
that know today that they are going to resign, but they
won’t tell us, both races, and we can get better teachers
right now than we could any other time, but if we don’t
have vacancies, we can’t go out and hire a six thousand
dollar teacher when you don’t have a vacancy, so it is im
portant now that—any vacancy that we do have that we
be able to till it. Now, we are having a—still having—we
have gotten a few more than I thought we would have
been able to have gotten when we were in court before,
—5 5 5 -
white teachers to accept assignments in colored schools.
Q. Mr. McKee, are you also at this time visiting various
colleges that—teachers’ colleges and the universities of the
State in an effort to screen teachers or to select teach
ers? A. In this area; we don’t go up in North Alabama,
but in this area; yes.
Q. And is that going on at the present time? A. That
is going on at the present time.
Q. Mr. McKee, have you canvassed your teachers at this
time to determine as best you can whether or not they in
tend to remain with the system? A. They have been sent
a slip to sign; I believe it is to come back next week some
time; some of them are already, but I think they have
until the end of next week to make up their mind.
Q. As to whether or not they intend to remain with the
system or to leave the system? A. That’s right; and if
they say they are not, of course, we immediately try to
fill that place. If they say they are not sure, you can’t do
anything about it until they get sure.
Q. On September 22, a report was made to this court
633
showing the faculty assignments at that time. Since then,
since the filing of that report, what additional faculty de
segregation has taken place? A. Well, at Lanier, the two
student teachers have been added; at Lee, two student
teachers have been added; and at Loveless, we have three
- 5 5 6 -
white teachers—in fact, we hired four, but one of them
quit, one of the white quit, and we replaced with a white,
so actually, we have three there now, but we actually hired
four teachers in that process to go to colored school. We
have two white teachers at Paterson, and, of course, we
have one more at Goode Street, and at Mac—it was really
two more, because in our report to the court, we failed
to count the principal which we had been counting in the
others, and at McIntyre Junior High, we had two, but
they were in there, I believe, when the court was there,
Hayneville Road, one; and we have added a colored speech
therapist that works in all schools, and then Mr. Garrett
hired a white teacher to fill a place at Fews yesterday.
Q. And Fews is a—predominantly a colored school? A.
Yes, sir. What we are—we have been working ever since
school started that any vacancy that we had in the colored
school, we have tried to fill it with a white teacher, and we
have succeeded in every case except one. We was not able
to fill that one. Then next year, we felt that we would
start in the white school.
Q. What plans do you have insofar as desegregation of
faculty is concerned in the next September system—semes
ter? A. We plan to desegregate the faculties at all schools
in the city. We did not—have not tried to put any colored
teachers further in the white schools this spring, because
we felt, c o m m u n i t y w i s e , i t would be better to do that all
at one time, that is, where every school—every white—
634
former white school would have a colored teacher in it;
— 557—
then the community wouldn’t say we did this to them—
did this to us and didn’t do it to them. We plan to start
that; as soon as we get that, we plan to go around and
just keep on until we get to where we have substantially
desegregated faculties. We—we want to do it very care
fully; we want those people in both races that transfer
supervised very closely. Our supervisors are asked to stop
by and visit those many times more than they do the other
situation; they may not even be visited in that school; I
have done it myself—if I pass one of these schools where
we had faculty integration, I will go in there and watch
in on those two rooms. We have tried to be so careful,
that we not have an incident that cause a blowup here in
Montgomery. Our school system is too important to us;
it is too important to Montgomery. And we think that we
are going to get this thing desegregated, and we are going
to do it peaceably and keep our school system.
Q. Do you have any plans insofar as further faculty de
segregation of the high schools? A. Yes; we plan to put
others at high schools as vacancies and change arise. An
other thing that we have done this year that I think has
had a great effect and will help us in the future, we have
had for a number of years what we call observation lessons
where outstanding teachers will teach a lesson and other
third grade teachers or other sixth grade teachers or other
science teachers will come. This year, we have had those
- 558-
in both former white schools and in the colored schools.
They have— sometimes they would have been taught by a
colored teacher, sometimes by a white teacher. The audi
ence or the teachers visiting these observations would be
635
made up approximately fifty—or sixty-forty or fifty-fifty,
somewhere in that neighborhood, there would be some of
both races; then at the end of the lesson, they would meet
together and discuss the good points and the bad points of
the lesson. And that was done integrated.
Q. Is that what you would refer to as an in-service pro
gram or instructional meeting? A. That is part of our
in-service program; yes.
Q. Part of your instructional meetings? A. And we
especially anxious to have some of our new teachers at
that, because that gives them a chance to see a master
teacher at work.
Q. With respect to the administrative council, what ac
tion has been taken by this Board? A. It has been com
pletely desegregated.
Q. And what is the administrative council? A. It is
when matters come up that meetings of principals, super
visors, and superintendents have to be held, it is held.
We hold them either at Houston Hill School or at Lee
High School.
Q. Is Houston Hill predominantly colored? A. Yes; it
is.
Q. And Lanier predominantly white? A. Well, it is
- 559-
Lee High School.
Q. Lee predominently white? A. (Nodded to indicate
affirmative reply).
Q. And those meetings are held at those two schools?
A. (Nodded to indicate affirmative reply).
Q. What about your teacher institutes, Mr. McKee? A.
They were completely desegregated.
Q. They have been completely desegregated? A. Mem
bers of both races taking part on the programs of the
institute.
636
Q. Do you interview the teachers, Mr. McKee, or is
that largely done by your associate? A. That is largely
done by Mr. Garrett.
Q. Have you and Mr. Garrett discussed what would be
said to these teachers that were being interviewed for em
ployment with respect to the type of school system being
operated in Montgomery? A. Yes, they have, and it is
printed on the application blank, plus they are asked the
additional question if they would accept a job, and Mr.
Garrett has had the experience of some of them saying
they would, and then when you offered them the job, they
would say, “Well, I will let you know tomorrow,” and they
would go home, maybe talk to their husband, and some
other people, and come back and say, “ I can’t take it.”
Q. Have you all taken affirmative action to encourage
faculty desegregation and, in the interviewing of pros-
— 560—
pective teachers, to encourage them to take assignments
in schools where the opposite race is a majority? A. We
have, and Mr. Garrett reports to me that in their visits
to two of the colleges, they have some students that say
that they will accept this, and we are going to certainly give
them a chance to see if they meant it.
Q. What changes have been made to desegregate the
student training program since the court order?
The Court: May I ask at this point, has your
faculty assignment been on the basis of whether the
teachers would agree to it or not up to this point?
AVitness: Up to this point, and we hope, Judge,
that we can keep it that way, because regardless, if
it wasn’t a racial problem, when you make some
body change to go somewhere to work that he is
637
not happy about, he is not going to do a very good
job.
The Court: Have you read the orders—
Witness: Yes, sir.
The Court: —the courts have entered in these
other cases that say that—
Witness: Yes, sir.
The Court: —that you cannot rely on voluntari
ness, it must be by assignment to accomplish the
purpose of faculty desegregation?
Witness: I have read it, but I don’t believe that
that would keep the teacher from quitting.
— 561—
The Court: Well, if your teacher is not willing to
teach in any school, and he is prejudiced to that
point, you don’t want that teacher in the system, do
you, you are operating?
Witness: "We have so many; we have so many.
The Court: Maybe this would be a good oppor
tunity to get rid of them. Let’s go ahead; let’s go
ahead.
Q. Mr. McKee, do you realize that the Board has the
authority to assign a teacher to any school? A. We have
the authority to assign them; yes.
Q. You also, as the Judge has asked you, realize that the
assignments under the court order can be made irrespec
tive of the desire of the teacher to teach in that school? A.
That is correct; but I would hate for my child to be in a
room with a teacher that did not want to be in that school.
Q. In the canvassing of your present teachers or in the
interviews with present teachers and with the prospective
new teachers, have you tried to determine which ones,
638
though they might not desire it, would accept a transfer?
A. Yes; we have tried to determine that.
Q. Mr. McKee, have you solicited any funds or any per
sonnel to raise funds in connection with the opening of the
new school—high school? A. We have—we have hired the
people, but we have not given them direction; they know
that—they have been told that there would be no Board
of Education funds for athletic equipment, band uniforms,
— 562—
and things of that type; there would be funds for library
hooks, there would be funds for desks and teaching ma
terials of that type.
Q. Does the Board of Education provide any funds for
football uniforms or football equipment or basketball equip
ment or band equipment? A. No. That—those are what
we call extracurricular activities; no child has to partici
pate in them; it is purely a voluntary program.
Q. Mr. McKee, do you realize that under this court order,
you have an affirmative duty to take positive action to de
segregate not only the school students, but the faculty? A.
Yes, sir.
Q. Have you attempted to carry out that order as best
you were able and maintain a school system? A. We cer
tainly have.
Q. Will you continue— A. We will continue—
Q- — to be—continue to be aware of that affirmative duty
and take further positive action to desegregate the staff,
faculty, and student body? A. We certainly will.
Mr. Robison: I believe that’s all.
The Court: Redirect, Mr. Allen?
Mr. Allen: Just a few questions.
639
Redirect Examination by Mr. Allen:
Q. You testified that all the schools—all of the high
schools in the city are presently member—members of the
—one of the two Athletic Associations; is that right? A.
I think they are; yeah.
Q. And all the white schools are members of the white
Athletic Association, and all the Negro schools are mem
bers of the Negro; is that correct? A. I think that is
correct, yes, sir.
Q. And you have always permitted this? A. Yes; we
have permitted it.
Q. Have you taken any steps to change it? A. No; I
didn’t—I didn’t interpret the court order as about the
Athletic Association.
Q. Now, you leave the scheduling of athletic contests up
to the individual schools; is that right? A. Usually, it is
—it is a mutual thing between the two schools that are
going to play each other.
Q. Right; and the people who actually arrange the sched
ules are the principals and/or the coach? A. That is cor
rect.
Q. Right; and they are employees of your school system?
A. That is correct.
Q. Now, just one thing about this two-mile rule; I be-
— 564—
lieve the minimum program rules of the State of Alabama
provide you with transportation money for those pupils
who are transported, who are actually transported, who
live a—greater than two miles from the school; is that
correct? A. That is correct. I believe.
Q. It is not based on whether they live in or out of the
— 563—
640
city; you get the money if they— A. Yes; but the point I
made earlier, they don’t give us enough money, so we don’t
feel that we can do it except in the rural area.
Q. Right; but it is— A. We could get some money to
ward it if we—but we wouldn’t get all of it.
Q. Right; but they would count a student as a trans
ported student— A. Two miles is all it says in there.
Q. That’s right; even if he lived within the city? A.
That is correct.
Q. Okay. A. But the Montgomery system could not af
ford to transport it on that kind of a basis—
Q. No. A. —not forty thousand kids.
Q. Does the Montgomery County system— A. Not that
many would be two miles.
Q. Does the Montgomery County system operate solely
— 565—
with the minimum program funds? A. Well, we—we have
several mills of property tax and one cent gasoline tax,
and we get some federal funds; much of it is earmarked
for special programs.
Q. But you do put a substantial portion of local funds
into the school system? A. Well, I won’t say substantial
what we put, I guess about twenty-five—twenty or twenty-
five per cent, we don’t—we ought to have a lot more local
funds than we have, but the last two elections, we tried
to get the people to vote more taxes, and we were not
successful.
Q. Do you hire teachers in excess of those allotted to you
by the minimum program? A. A few; yes.
Q. Now, you testified that Jeff Davis would be probably
much smaller than Lee and Lanier; would it also—what
would the size be with relationship to Booker and Wash
641
ington—Washington and Carver? A. Carver is larger,
and Booker Washington would probably—Booker Washing
ton running around eight, eight fifty, nine; Carver is thir
teen or fourteen hundred at the present time.
Q. Are the four existing high schools in the city now
overcrowded by your standards? A. Yes; I would like to
have a little more space in all four of them.
Q. What was the reason for building additions to Carver
— 566-
High School, rather than making a larger school at Jeff
Davis? A. The main reason there, we were building an
auditorium which we had not—and we were building an
auditorium, and while we were building the auditorium,
it has a band room, and when we were approved for the
R.O.T.C. unit, we put the riflle range and the R.O.T.C.
room under the stage, it was a very convenient place to
put it, and I believe there is a choral room, so actually,
there is not much more teaching room there.
Q. Didn’t you testify at your deposition that these addi
tions out there, although they were not classrooms per se,
would give you a—would be— A. Oh, yes.
Q. —give you a lot more room? A. You take the space
where you were that you have—
Q. Right. A. —but the space in one or two of those
places where they were, like at Lanier and at Carver, there
is not a very good space, so that probably would he used
for something else now than teaching.
Q. Just one other thing about the grading period; you
do have a grading—in other words, your school system?
A. Yeah; we send report cards out every six weeks.
Q. And you also have two principal grading systems,
one semester—first semester and the second semester? A.
642
Well, it doesn’t—really doesn’t mean mnch; we give ont
report cards every six weeks.
— 567—
Q. When you testified at your deposition that you had
about a hundred and fifty student teachers during the first
grading period or the first semester, what does first semes
ter mean, your first semester? A. The student teachers
go by what their colleges had; Alabama State goes on
semesters, and they will send us some student teachers
at the beginning of their second semester. Auburn will
send us student teachers at the end or the beginning of
each of their new quarters, which may be even in the
middle of a grading period of ours. Troy does the same
thing. Huntingdon has semesters. Now, Huntingdon
semester may be at a different date than Alabama State.
Q. Well, I understand that; but I am trying to establish
measurement; when we say a hundred and fifty student
teachers during a semester, we are talking about your
semester, not the college’s semester; now, is that—is that
correct? A. Well, we have four, and I would think it
would—there would be somewhere—I just don’t know for
sure how many there would be during this last semester,
because Auburn hasn’t sent theirs in for the last quarter,
see, theirs haven’t come in yet.
Q. Who is in charge of getting out the publicity for the
new Jeff Davis High School? A. Nobody; they— the
papers have been calling us; they want publicity on any
kind of new school here; they just run us crazy asking when
we are going to announce the coaches, when we are going
— 568—
to announce the school zones; we told the papers we did
not have any school zones, we had freedom of choice; and
643
just about every day they call up, “ When you going to
do this?”—write a story of Jeff Davis. I see you have two
or three in there.
Q. Do they get their stories from you or— A. They get
some; not the one about the thing—about the Governor’s
House. They got a little information from me one time
about when they had a picture of the building, but as far
as the athletic program and that, they have not called me
on that.
Mr. Allen: I have no further questions.
The Court: Mr. Gray?
By Mr. Gray:
Q. I think, sir, you mentioned that about the choice forms
and on these choice forms there was indication about
transportation; do you have available a copy of the choice
form for the school year ’67-68? A. No; I was not asked
to bring one; I don’t have it.
Q. You don’t—you don’t have one? A. It is just an
alphabetical list of the schools and the address of the
schools, with an asterisk by any that have transportation
from certain areas of the county.
Q. Could you make a copy available for us ? A. Oh, sure;
we got plenty of them.
Mr. Gray: I think it would help the court, your
- 5 6 9 -
honor, with leave of the court.
Witness: We have not made one for next year—
Mr. Gray: I understand.
Witness: —but we got one of last year’s.
Mr. Gray: So that the record would be clear
644
exactly what it provides, I think if the court had a
copy of the choice form for last year, it would help.
Witness: It is patterned right after the form of
the court.
The Court: All right; if there isn’t one now avail
able, you may obtain one during the noon recess;
that will be all right.
Witness: All right.
Mr. Gray: All right, sir; and we would like to at
that time introduce it.
The Court: Go ahead.
Q. At the present time, are there any Negro teachers
teaching on the elementary level in formerly white schools?
A. No; we—we only desegregated the four senior high
schools, started in the high schools, and then, as I said
earlier, we started desegregating in the colored elementary
schools, because we were able to find some white teachers
that would take it; we have not found any serious objec
tion from the colored communities. We have decided we
would wait until next fall to start the desegregation of the
rest of the city schools, and we could do all of it at once.
— 571—
Q. And no Negro junior high school teachers in former
white schools ? A. Nothing but the two senior high schools.
Q. Now, you testified about the observation schools that
you had; now, were there any Negro teachers conducting
observations in white elementary, junior high schools? A.
No, they do their teaching of their own children, and the
people come to visit them; I was at Carver this week when
they had a demonstration there of a science demonstra
tion— see, they are teaching their own children.
Q. Oh, and the teachers come in? A. The teachers come
and visit.
645
Q. Now, have Negro teachers been invited to white ele
mentary schools? A. Yes, sir; yes, sir; every one we have
ever had, high schools, junior high, senior high, have been
approximately fifty-fifty, sixty-forty, white and colored
teachers—
Q. All right. A. —and approximately the same num
ber of colored teachers have taught demonstrations as white
teachers.
Q. I think one final question, sir; how was the name,
Jefferson Davis, selected for the new high school? A. All
—every request that I had—the only two requests that we
had for names—and there was only one other one, the
other one was Hank Williams, only two, everybody agreed
Hank Williams—in fact, some of the kids nicknamed it the
— 571-
Green Lantern High School—
Q. I have no— A. — only official requests we had were
those two.
Q. Who made the requests; are you saying this just was
a community request? A. Well, we had letters and we had
telephone calls and things like that.
Mr. Gray: I have no further questions.
A. Just individuals; it wasn’t any groups that I know of.
The Court: Mr. Robison ?
Mr. Robison: We have no further.
The Court: Do you have anything further?
Mr. Allen: No, your honor.
The Court: What is the—what is your student
population this year in your Montgomery system,
Mr. McKee?
646
Witness: Approximately forty thousand, not
quite.
The Court: And what percentage of that is
Negro?
Witness: About sixty-forty. However, this year,
Judge, we have lost four hundred students, and usu
ally we have been gaining from four to six hundred
each year. I think there was some dropoff because
of not knowing about assignments of faculty.
The Court: All right.
Mr. Gray: Just one other thing, your honor, if
I may inquire, it will just take me one or two ques
tions.
By Mr. Gray:
Q. You have a night educational program, don’t you?
— 572—
A. Yes.
Q. At Lanier, Carver, Booker Washington— A. And
Lee.
Q. —and Lee? Now, are there any Negro teachers teach
ing at the predominantly white schools at night? A. I
don’t believe there are.
Q. And are any— A. There might have been one quar
ter, I am not sure, I don’t—
Q. —any white teachers teaching at night at your pre
dominantly Negro schools? A. There could have been; I
am not sure—
Mr. Gray: That’s all.
A. —but it is open to anybody, and they have—all the
students have been fully integrated.
647
Q. I was talking about faculty? A. I don’t think there
has.
Q. So nothing has been done to desegregate the faculty
in your night schools, and these are special federal pro
grams, are they not? A. Yes; but—
Q. With special— A. — they have been made up largely
of the faculty within that school.
Mr. Gray: I have no further questions.
The Court: Anything else from this -witness?
Mr. Allen: Your Honor, I have no further ques-
—573—
tions, but I would like to state Mr. Robison has
agreed that we will keep the record open to fur
nishing—so that we can furnish any additional docu
ments which we need to identify the race of the sub
stitute teachers listed on Exhibit, 33, which is the
principals’ weekly reports.
The Court: How long have you gentlemen agreed
to keep the record open?
Mr. Robison: I f the court please, it was at his
request yesterday, rather than make the copies, he
served this on us, I believe, around three o’clock,
wasn’t it, Quaintance? And at that time, he wanted
permission—as far as we are concerned, it is all
right to make copies of these records; we have no
objection to that. We just want our original records
back.
Mr. Quaintance: Your honor, if it please the court,
we had subpoenaed the application forms for sub
stitute teachers, and Mr. Robison said that was a
burden; I said if the court would agree, and if they
would agree, we would agree not to require them to
648
answer that subpoena as far as those applications
were concerned, because we might be able to estab
lish race from these—from the substitute teacher
lists from the prior years, and that was the extent
of our agreement.
Mr. Eobison: We will be glad to make them avail
able to him for copying.
The Court: All right; not less than ten days from
today.
— 574—
Mr. Allen: Yes, your honor.
The Court: If you are going to do it.
Mr. Allen: It will be less than that.
The Court: Anything else from this witness!
Mr. Allen: No.
The Court: All right, Mr. Lassiter; let’s take a ten
minute recess, please.
(At which time, 11:18 a.m., a recess was had until
11:27 a.m., at which time the hearing continued)
The Court: All right, Mr. Allen; call your next
witness, please.
Mr. Allen: Mr. Garrett, W. S. Garrett.
W illiam S. Garrett, witness for the United States, hav
ing been duly sworn, testified as follows :
Direct Examination by Mr. Allen:
Q. Would you state your name, please, sir? A. William
S. Garrett.
Q. What is your occupation? A. I am associate super
intendent of the Montgomery Public Schools.
649
Q. Would you describe generally your duties as asso
ciate superintendent?
The Court: We have already taken all that evi
dence ; I am familiar with that.
— 575—
Q. Do you interview or do most of the interviews for
teachers, new teachers, who are hired? A. Yes, sir.
Q. Do you ask them whether or not they would be willing
to accept assignment to a position where their race is in
the minority? A. For the last year and a half or so; yes.
Most of them, I wouldn’t say one hundred per cent, hut
the large majority of them, we d o ; yes.
Q. You don’t ask all of them? A. Well, I would—I
couldn’t say that out of seeing fifteen hundred people,
maybe, that I asked every last one of them that, but it is
my intention to ask them that during the course of the
interview, and we usually try to make notes on the ap
plication, their reaction.
Q. I will show you Government—a document marked as
Government’s Exhibit 2, the application for Edith Spring
Marks, it states on there, “ Would not accept integrated
faculty” ? A. Right.
Q. Did you write that on there? A. Yes, sir.
Q. Do you write something similar to that on each ap
plication? A. I try to do it ; yes.
Q. Xow, Government’s Exhibit— A. Now, in some
cases, where, for instance, we have gone to colleges to
contact these people, that would have been—that answer or
—576—
that reaction would have been written on a sheet of paper
in a notebook rather than on the application, because we
give them the application at that time to send in later.
650
So I wouldn’t say that it is written on every application,
but we try to get a reaction from every applicant; yes.
Q. If the applicant says no, they would not accept, what
do you do then ? A. What do I do ?
Q. Right; what do you do with them? A. Well, some
times I place them, sometimes I don’t.
Q. Now, Government’s Exhibit 2 through 32 that we
have previously identified are teachers which have been
hired since— A. Right.
Q. — September 1; and did you interview each one of
those teachers? A. Yes.
Q. And of those who said that they would not accept
a desegregated assignment, you did not place them in a—
in a desegregated situation? A. That is correct.
Q. All right. A. Because these were new people, they
applied for a job ; they don’t have to accept a job. We are
in the market competing with other school systems for
teachers; if we hired only those that said, “ I will accept
a desegregated situation,” then at this particular moment,
we would soon he out of business.
—577—
Q. At the time you hired these thirty-one teachers, you
had other applications on file, did you not? A. Right; they
were considered among others; yes.
Q. About how many other applications did you have on
file? A. Oh, of teachers that are actually available, I
couldn’t say.
Q. Well, could you give an estimate? A. Well, maybe
as many as fifty or seventy-five, but not necessarily in par
ticular subject matter area or specialty that was needed.
Q. All right. A. We might have, say, a surplus of art
teachers, three or four or five, six art teachers and no
vacancies, and might have one science opening and not have
but one teacher that is qualified.
651
Q. Now, you were present at the taking of Dr. McKee’s
deposition, were you not? A. Yes, sir.
Q. And at that time, we brought together a group of
applications for students—or for teachers who had applied
to your system since September 1— A. Right.
Q. —who were not hired— A. (Nodded to indicate af
firmative reply)
Q. —and you had—did you compile—count those and
compile those ? A. There was somebody in the office did it ;
I don’t remember precisely how many there were; I am
sure it is in the deposition, probably, but as I pointed out,
— 578-
most of those are for teachers who will be available next
year, not now, not this year.
Q. And this fifty or so that you just mentioned, that
is in addition to those, are people in addition to those who
applied for a position next year; is that right? A. Well,
if you are talking about total teacher applications, I imagine
that we have maybe from fifty to seventy-five who would
actually be qualified and be currently available. Now, they
might be perfectly available next year, but I can’t hire them
today if I need them if they are not going to be available
until next year; many of these people are teaching in other
school systems.
Q. But you had those available at the time you hired
these thirty-one teachers? A. Well, I had them—the ap
plications ; they were not necessarily all available is what
I am trying to get over to you. Most of them were not
available, of the ones you looked at, as I pointed out, most
of them were not finishing college until May of ’68, and
consequently would not be available to teach until next fall.
Q. Did you interview Mrs. Louise E. Jackson? A. Yes,
sir.
652
Q. I will hand you document marked as Government’s
Exhibit 29; did you write this on it? A. I certainly did,
and that is one of the reasons I selected her; I think she
will make an excellent prospect next year to desegregate
—579—
a school with, and that is what I have in mind—
Q. She— A. —to transfer her to a white school, pre
viously white school.
Q. She is a Negro teacher— A. Yes, sir.
Q. —and she, this year, Avas assigned to Booker Wash
ington? A. Bight.
Q. Which is an all Negro school? A. Right; and as Mr.
McKee has already testified, we were not attempting, this
school year, to get into the area of assigning colored ele
mentary teachers into previously white elementary schools,
because Ave wanted to do it all in one fell swoop next fall.
The Court: You categorize elementary school one
to nine or one through nine ?
Witness: One to six.
The Court: One through six?
Witness: Yes, sir.
The Court: And then the junior high—
Witness: Is seven to nine, and senior high, ten to
twelve.
The Court: All right.
Q. I will noAv show you document previously identified
as Government’s Exhibit 36, substitute teacher list. A.
Yes, sir; now, this is this year’s substitute teacher list
— 580—
which, Judge, is alphabetized without regard to race. I
could not, for the life of me, determine who is Avhite and
653
who is colored. We interview these people; if they appear
to—that they are available and would make good substi
tute teachers, I send them in to my secretary, she has the
health certificates and the other red tape connected with
employment done, and they are placed on a master list
and sent out to the principal. From time to time, additional
lists are sent out in the same category alphabetized without
regard to race.
Q. I will direct your attention to this notation by the
name of Nina Rust Fraser, it says, “ Lanier and Lee” ; what
does that mean? A. Now, we—you will run across that
in many cases. We have some teachers, substitute teach
ers, who, because of transportation, lack of transportation
rather, family circumstances, sometimes small children, that
will limit themselves to two or three surrounding schools,
that is their only interest, that is the only place that they
would be willing to teach. Therefore, we put that on there.
Here is one up here that says, “ Retarded Children School” ;
this lady is interested in substituting and will not substi
tute anywhere except for the retarded school.
Q. That recpiires some kind of special training, doesn’t
it? A. She has had the—Mrs. Camp is—has a—I believe
a retarded child or related closely to a retarded—
Q. How about this one that says, “ Flowers only” ; does
that mean she will only accept— A. That is the only ele-
—581—
mentary school she will go to, is Flowers only. Of course,
that limits the number of times she will be used. She
might not be used hardly any because of that, but she may
not have a car at all, but she could help at that one school
and can’t help at any others; that is really not any regard
to race.
Q. Do you see any reason why a teacher should be al
lowed to limit herself to, say, Lee and Lanier and not teach
654
at Carver? A. Yes, sir. Just like following your reason,
I could see a lot of good reasons why this person ought
to be allowed to limit herself to the retarded school only.
Now, understand this; these are people who more or less
volunteer to come in and serve as substitutes. We need
them. And we take them for whatever number of schools
they can teach or for whatever number of days they can
help us with; they don’t have to help us at all.
Q. Have you given the principals any instructions as to
calling teachers on a desegregated or nonracial basis? A.
We handed them this list in an integrated meeting when all
the principals and supervisors were available. If we didn’t
actually give them the list at that time, we called it to their
attention that it was coming out, and we told them that
they were free to use anybody on that list that they could
get to come on a given day. Now, a lot of times, a principal
will call three or four different teachers on that list before
they will get one whose family situation or whose bridge
- 582-
game schedule or whose beauty parlor schedule or club
meeting schedule will permit them to work that day.
Q. Is that all the instructions you gave them, that they
were free to use whoever they wanted to use? A. Right.
There it is with as much qualification as we know how
to put on a small sheet like that, and they were told to use
any and everybody on there that they cared to use or that
they could get. Many times not a question of what they
care to use, but a question of who they can get that is
available.
Q. What efforts did you make to insure that the princi
pals were not discriminating in who they called? A. I
cannot—and I just say this now—monitor fifty something
schools and fifty something principals to see who they are
655
calling for substitute work. These emergencies come up
oftentimes at seven forty-five to eight o’clock in the morn
ing; the teacher gets up in the morning, she thinks, “Well,
I will go to school today.” She gets dressed, and maybe
she’s got intestinal flu or something; at the very last min
ute they will call. The principals struggle to get anybody
there on time, and I cannot and don’t attempt to try to
monitor this thing. Now, I have—just in routine visits
around the schools, I have observed some teachers of the
opposite race teaching or doing substitute teacher work,
so there has been some of it going on.
Q. Do you have access to the principals’ weekly report
that gives the name of the substitute teachers for that week
— 583—
on it? A. I could get them; yes.
Q. Do you ever make spot checks to see if there is any
pattern on that particular person? A. No, I have not; I
have many other duties other than this, and I have a small
amount of help, just one secretary. Public school funds are
limited, and we just do the best we can do, and I have made
no attempt to try to monitor or enforce or to try to do this
substitute calling, myself. It can’t be done; too big a scale.
Q. Prior to the 1967-68 school year, what was your pro
cedure with regard to placing of student teachers? A. I
don’t have anything to do with that.
Q. You don’t have anything to do with it? A. No, sir.
Q. Beginning the fall of 1967, you didn’t help in placing
student teachers ? A. No, sir.
Q. How many teachers ultimately do you estimate will
be assigned to the Jeff Davis School for 1967-68 school
year? A. For this coming year?
Q. Yes, sir. A. Well, that is anybody’s guess. Depend
ing on who chooses—how many chooses—whether or not—
656
but I would say that I would certainly hope that not more
than eight hundred choose; that would be an optimum num
ber to open up school with. And consequently, you can
- 5 8 4 -
divide twenty-five into that; that is the present pupil-
teacher ratio for senior high school pupils; that would give
you the number of teachers. What—that would be forty,
wouldn’t it, if there were that many pupils? Now, this is
rough; you have got to give or take a few teachers.
Q. How many teachers do you estimate you will have in
minority situations this coming year? A. For the school
system?
Q. Right; regular classroom teachers ? A. Well, we have
about thirty-five now. We are going to attempt— our plan
is to try to get at least one into every junior high and
every elementary, and then start—once we accomplish that,
start around with the second one and the third one and so
on, rather than to have three in one school and none in
another.
Q. Well, based on your— A. Roughly speaking, a mini
mum of—with thirty-five already there, we have fifty
schools or thereabouts; I would say about a hundred or
better.
Q. Based on your— A. I think that is practical; I be
lieve we can accomplish that.
Q. Based on your prior experience in hiring new teachers
and placing new teachers, how many teachers do you esti
mate that you will hire who will be new to the system this
fall? A. Well, now, of course, that varies from year to
year. It will depend on the number of resignations, num-
— 585—
ber of deaths, the number of retirements.
Q. Well, how many did you hire last year, approximately?
A. I would assume maybe a hundred.
657
Q. You will hire about a hundred new teachers this fall?
A. Now, that—I don’t—by new, you mean replacements, I
assume—
Q. Yes, sir? A. —new to us, but not added positions,
but replacements?
Q. Yes, sir; right? A. I would say between now and
next fall, perhaps a hundred.
The Court: And does that include the— the new
teachers, too, or just replacements?
Witness: No, sir; I think that would be every
body, Judge.
The Court: All right.
Witness: We are not growing in pupil-teacher—
in overall numbers of pupils in our school system
as we once were; a few years back, it took fifty addi
tional teachers in addition to replacements for us to
stay staffed, but that situation has stopped; we have
leveled off, so it will be mostly replacements.
Q. As part of your duties, have you been given the re
sponsibility, primarily, of carrying out faculty desegrega
tion? A. Well, the superintendent has delegated the rec
ommending of the best faculty members that I can come
by, and desegregation is a large—our faculty is a large
part of my responsibilities; not the only one, but that has
— 586—
been discussed and—with the Board and with the superin
tendent, and we have a plan to accomplish this, have been
working on it all the year.
Q. Well, under your plan, when do you estimate that
faculty desegregation will be finally accomplished in terms
of the objective of the court order removing— A. Well,
658
now, that is something I don’t know, because I don’t know
what the objectives of the court order are. That has never
been laid down in any percentage fashion that I know of.
It says that you will have reasonable desegregation of
faculty and that you will strive toward having each faculty
not recognizable as being staffed for a particular race.
That is what I get out of it.
Q. Well, let— A. So I—I can’t—this court order is in
fairly general terms; I can’t answer that question.
Q. Well, you made the statement about having schools
staffed so that they will not be recognizable as for a par
ticular race; when do you expect that that will be accom
plished? A. Well, that would depend on what the Board’s
definition of that is, of the court’s definition of that.
Q. Do you have a definition of that? A. Not at this
point; we have discussed that many times, and I do not
have a definition of—of what that would mean.
Q. No one has told you, given you a definition in terms
of mechanics, in terms of numbers, none of your superiors?
— 587—
A. No; as far as I know, no other school personnel man
in America has. I have talked to many of them. What we
are striving to do is to make progress and keep going and
hope that somewhere along the line we will have achieved
the—what the court has in mind. But if you will look at
that court order, you will see it doesn’t lay down the precise
terms exactly what that means; it is a broad definition.
Mr. Allen: I have no further questions, your
honor of this witness.
Mr. Gray: Mr. Garrett—
The Court: The court order requires at least one
teacher or not less than two teachers in every school
in your system—
659
Witness: (Nodded to indicate affirmative reply.)
The Court: — of a race opposite that of the ma
jority of the students, doesn’t it?
Witness: Yes, sir.
The Court: That is pretty precise, isn’t it?
Witness: Oh, yes, sir; but he was asking me about
the ultimate, I thought.
The Court: All right; let’s go ahead.
By Mr. Gray:
Q. Tour honor—I mean Mr. Garrett, with respect to—
you have heard testimony here this morning from Mr.
McKee to the effect that there has been no attempt to have
Negro teachers on the elementary school level in formerly
- 5 8 8 -
white schools? A. Y es; yes.
Q. Now, was—is there and did you follow this rule, too,
with respect to substitute teachers? A. No; we just pub
lished a list on substitute teachers and sent them out to
all principals.
Q. No communication was— A. They were told they
were free to use anybody on this list.
The Court: I don’t believe that is sufficient at that
point; I believe you had a duty and obligation, Mr.
McKee and Mr. Garrett, to tell those principals that
they are not to hire substitute teachers on the basis
of race and not— and if you tell them they are free
to hire anybody they want to, that is not sufficient; it
is just not adequate at a ll; they are to select them
without regard to race or color, and you are under
a duty to tell them that, and you are under a duty to
see they do it. So just to tell them they can hire any
660
body they want to is not sufficient at all; that is not
compliance with the order. Let’s go ahead; that is
just a minor point in this thing, but it’s—it is some
thing that the order requires you to do, and it is evi
dent that you are not doing it.
Witness: May I—
The Court: Sure.
Witness: —make a comment? I don’t know the
race of these people on this list, and I don’t hardly
see how a principal could. That was why I told them
that. I mean, I thought we had a list that was fairly
foolproof as to determining who was who.
— 589—
The Court: Well, I haven’t examined your list,
but I just heard you identify it. You give their ad
dresses, don’t you?
Witness: Yes, s ir ; but—
The Court: And you give other identifying data
on that list, don’t you?
Witness: Like what?
The Court: Well, I don’t know; I haven’t seen it
yet, but I just heard you identify it.
Witness: All in the world it has is a name and
address and the number of years that they attended
college, so they would know whether they were a
college graduate or so on, and then the subject mat
ter, area in which we think they are the most pro
ficient.
The Court: Well, I take it all of your principals
have, through the years, had experience in hiring
substitute teachers ?
Witness: Calling them.
661
The Court: Sure.
Witness: We do the hiring.
The Court: And they know, when they are called,
if they have had experience in hiring them before,
why they are calling, don’t they?
Witness: Well, now, the list changes from year
to year.
The Court: I know, but if you have Jane Doe and
—590—
Sarah Roe on there, and they have been substituting
for several years, they know when they call Jane
and Sarah who they are?
Witness: Oh,yeah.
The Court: Well then, you can’t tell them they
can call anybody they want to ; you have to tell them
they must call without regard to racial considera
tions; that is the point I am making.
Witness: Sure.
The Court: It just violates the court order. Let’s
go ahead. That is a minor point in this entire pic
ture, but—
Mr. Cray: Yes, sir.
Q. One other minor area. A. All right.
Q. Mr. Garrett, I think you indicated that you do make
notations on the application as to whether or not they will
accept integrated situations; if they will, you assign them
there. Now, I call your attention to the bottom— A. No,
sir.
Q. —to the bottom of the first page of your— A. I
didn’t say that; I didn’t testify to that.
Q. Oh, I— A. I said I made a notation as to whether
they would or would not at this moment accept a desegre
gated situation.
662
Q. All right.
The Court: Said he did that on most of them.
Witness: That’s right.
—591—
Q. Then— A. But I don’t necessarily hire them for
that, because I may not have an opening at that point.
Q. I understand. There is a provision on your application
which says at the bottom of the page, “ Pursuant to federal
court orders, you are hereby notified that the Montgomery
County School— Schools operate on a racially desegregated
basis, and the members of its statf are subject to assignment
in the best interests of the school system without regard
to race or color of a particular employee” ; in view of this
statement on your application, what then is the purpose
for you going into this question of race with them? A.
For the simple fact that we, of course, have been trying to
actually promote with each person that we interview the
idea of accepting an assignment in a minority situation.
Q. So it really serves no useful purpose, if you don’t
abide by it? A. Yes, sir; it serves a very useful purpose,
because it helps us in planning. I have had some applicants
—well, some that I interviewed last week—that said, “Well,
I would have no religious or moral or any other reasons for
not accepting an assignment in a previously colored school,
but I would prefer not to do it my first year”—
Q. Does— A. —“that I have got so many adjustments
— 592—
to make.” All right; I try to make a note of that, because
I assume we are going to be in this for a good while. I make
a note of that so that I will have that person tagged maybe
for year after next. This is a continuous thing.
663
Q. Does that provision on the application mean what it
says ? A. Down at the bottom ?
Q. Yes, sir? A. We have legal authority—that has been
testified to before; I -would assume that we have legal au
thority to just up and transfer a teacher regardless of hex-
wishes.
Q. I was talking about new employee, a new teacher, that
is what we are talking about on the application? A. Well,
now, a new teacher has to accept whatever you are going
to offer her.
Q. That’s right. A. Right.
Q. And if she accepts what you offer when you have
that statement on it, then it means by filing the application
she or he is available to go anywhere you send them? A.
No, sir.
The Court: You are getting off into an area of
argument.
Mr. Gray: No, sir; I am through, your honor.
Witness: No, sir; that is not what it means.
The Court: All right, Mr. Robison.
—593—
Cross Examination by Mr. Robison:
Q. Mr. Garrett, did you notify the principals of all the
schools that race was not to be a factor in selecting substi
tute teachers? A. Yes, sir; I am positive we made that
statement—
Q. Did you— A. —but—
Q. —at teachers’ meetings and other meetings— A.
Other times.
Q. —notify the faculty or the principals that race was
not to be a factor in the selection of substitute teachers;
664
the principals, were they notified of that? A. As they
call—
Q. As they call them? A. Yes; and not only that, we
have discussed and furnished them with a copy of the
court order.
Q. You have given to each principal a copy of the court
order and then have instructed them that in the selection
of substitute teachers, race was not to be a factor? A. Yes,
sir.
Q. As a matter of fact, from your observations in visit
ing certain schools in this system, have you seen substitute
teachers of a minority race teaching in schools where the
pupils were of a majority, opposite race? A. Yes, sir.
—594—
Q. In the preparation of your last substitute list, Mr.
Garrett, did you purposely leave off the school of graduation
of these substitute teachers so that that would not be a
means of identifying them as one race or another? A.
Yes, sir; we did that.
Q. In the present substitute list that you are using this
year, is the only information on there the name, address,
telephone number, the graduate—the educational qualifica
tions, and any preference that they might have as far as
schools are concerned? A. Subject matter area at their
grade levels that we think they are proficient in and a few
limitations that they, themselves, can’t help, but in certain
number of schools because of family situation, transporta
tion, and so on.
Q. In the addresses that are located—show the location
of some of these teachers, is it impossible to determine
from the address the race of the substitute teacher? A.
Well, definitely, there are many streets in Montgomery that
one part of it there are white residents, and a few blocks
665
later, there are colored residents. There are many of
them that are across the street from each other. I, myself
—and I have been in this business a long time—could not—
and I would—am under oath—I could not go down that list
and pick out a white and colored teacher to save my life.
Q. That is all of them; is that correct! A. I could pick
—595—
out some, I think; yes, sir; but I certainly couldn’t pick
them all out.
Q. All right. Now, in the substitute list as it is com
piled, are there carry-overs from year to year on the sub
stitute teachers’ list, or are new names added from time
to time! A. About the middle of July, we call everybody
that is on the present list and ask them if they would like
to serve again. Some say no; some say yes. Those that
say no are stricken o ff ; those that say yes, we fill out the
additional information, health certificate, and all that, and
we alphabetize that list along with the new ones that are
interested and put out another list for the following year.
Q. Mr. Garrett, it has been—or you have been shown an
application of a teacher that is presently employed where
they say they will not accept assignment in a school of the
opposite race; at the present time, do you have, to your
knowledge, several teachers in this system that have said
they would not at this time accept employment in a school
where the children are of a race predominantly opposite
from theirs, who have stated that after their first year or
two years teaching in this system, would be willing to trans
fer! A. Yes, sir.
Q. Do you have, in the course of your planning for fur
ther faculty desegregation in Montgomery, have those stu
dents— or those teachers with that information available
to you for transfers at a later date! A. Yes, sir.
666
— 596—
Q. Is it your plan and the plan of the Board of Educa
tion that every school in this system in the city at this
time would have a desegregated faculty of one or more
teachers commencing in the September term? A. Yes, sir.
Q. Is it also in your planning that the number of teachers
in the high schools—that the desegregation in the number
of the teachers in the high school will be increased begin
ning in the fall term next year? A. Yes, sir.
Q. How do you plan, Mr. Garrett, and in your planning
with Mr. McKee and the Board, to increase the number of
teachers teaching in schools where the children are pre
dominantly of the opposite race? A. Well, we have—we
think, have done a good bit of groundwork, background
work, this year by bringing teachers of the opposite race
together, sometimes in a previously colored school, some
times in a previously white school, in the observation les
sons and in discussion. We plan and are hopeful that we
will have a number of summer institutes this summer where
teachers of all the races will be together working in this
institute for the improvement of certain areas of instruc
tion, both technique and content of the curriculum. Now,
—597—
that is background-creating climate that we think will be
very helpful. During the course of all of my interviews
with college graduates, fresh college graduates—and we
go to Alabama State and Alabama College and Troy and
Huntingdon and so on and have a—spend the day and
interview prospective teachers—in the course of that, we
discuss very frankly with every one of them the fact that
we are attempting to desegregate faculty in the Mont
gomery public school system, and we encourage them to
agree to accept an assignment where a majority of the
667
children are—teachers are of another race, and what I
have observed has been very encouraging to me. I have
been to two colleges thus far, and, while the number that
agreed that they would like to have—like to try that has
not been as many as I wish it were, it has been rather
encouraging.
The Court: What you are saying is that you don’t
find the extent of prejudice in the younger new grad
uates—
Witness: Yes, sir.
The Court: —that you do in the old ones?
Witness: Right.
The Court: All right; I understand.
Witness: While we are talking informally—
Mr. Robison: This is not very informal, Mr.
Garrett.
Witness: Well, if I might say to the Judge, often
times a little bit of maturity, though, makes them
much more adaptable in actually accomplishing it
and carrying it out in a successful manner; I don’t
- 598-
mean too much maturity, but a reasonable amount of
experience, teaching experience, is real helpful in
carrying out an assignment in a minority school.
Q. At the present time, is—at the moment, is this a
crucial time with respect to the employment of faculty for
this system— A. Yes, sir.
Q. —into next year ? A. Yes.
The Court: My understanding, now, you are going
to have this next year teachers of the minority race
in every school in your system ?
668
Witness: As far as humanly possible.
The Court: And how many do you expect to have
in your—in your elementary schools, a minimum
per school?
Witness: Two, at least.
The Court: And how many in your junior high,
your minimum?
Witness: Tw o; maybe more.
The Court: All right.
Witness: Depending on what we come—
The Court: Now, let’s go to percentages; what
percentage do you expect to have in your high
schools ?
Witness: I just don’t know. We haven’t actually
discussed that up to this point. I—I couldn’t say.
The Court: Well, your race—your student popu-
—599—
lation is sixty-forty?
Witness: Yes, sir.
The Court: Ultimately, that will be your optimum
if you are going to eliminate the racial character
istics of your school through faculty—
Witness: (Nodded to indicate affirmative reply)
The Court: —wouldn’t it? It would have to be.
Q. At—
Mr. Robison: Excuse me, your honor.
The Court: (Nodded to indicate affirmative reply)
Q. At the present time, the faculty— ratio of students in
this system is approximately sixty-forty at the present time,
is it not? A. Yes, sir; it is awful close to it.
669
Q. Do yon understand, Mr. Garrett, that you are under
the affirmative duty to desegregate the faculty of this school
system under this court order, that you have an affirmative
duty to desegregate faculty in the Montgomery County
school system? A. Yes, sir; along with whatever author
ity I have delegated in these matters by the Board of
Education and the superintendent.
Q. Do you state to the court that, within the authority
which you have as associate superintendent of education,
that you will discharge that affirmative duty that is on
you to desegregate the staff of this system in line with
the preparation that you have already made? A. Yes, sir;
— 600—
we have been working diligently toward it.
Mr. Robison: I believe that’s all.
Redirect Examination by Mr. Allen •
Q. Mr. Garrett, I believe you testified when I was ex
amining you that you wrere going to have at least—at least
one in each school, or am I wrong on that? A. I said
we would try to start with one in every elementary school
and then come back around with two, and if we were
successful, maybe three; I don’t have any preconceived
notion about maximums, but I would rather have these
distributed rather than to have three, say, in one school
and none in another.
The Court: I understand that.
A. That is what we are after, I mean—
Q. Now, as to these substitute teachers you said you
have seen, how many have you seen? A. Well, now, I don’t
670
visit in the schools as much as some of our people; I don’t
—I don’t—frankly don’t have the time. I used to be able
to visit more than I have this year. But I have seen sev
eral, I would say four or five, and I have heard reports,
though, from other school personnel that have seen others
that I didn’t see, so I would assume there has been some
going on.
Q. Do you have any way of knowing— A. I don’t know
how many; I wouldn’t—I don’t have any way in the world
to know.
— 601—
Q. Do you have any way of knowing whether these re
ports that you have heard are the same teachers that you
saw, yourself? A. I don’t think so, because in some cases,
it would be in a different school and on a different day
from when I saw them, but I would assume it was a dif
ferent case.
Q. Tour or five is what you have seen? A. Yes; but I
haven’t visited the schools this year; I want to hasten to
point that out.
Mr. Allen: That’s all, your honor.
The Court: Mr. Gray?
By Mr. Gray:
Q. I think you said, Mr. Garrett, that at present, your
teacher ratio is sixty-forty; you mean sixty per cent white
and forty per cent Negro; right? A. (Nodded to indicate
affirmative reply)
Q. Now, is it the intention of the Board to have this
type of ratio in each school? A. I just do not know. We
have not discussed things that far; we are trying to meet
immediate goals.
671
The Court: Anything else from this witness?
Mr. Allen: I have nothing further, your honor.
The Court: Mr. Eobison?
Recross Examination by Mr. Robison:
Q. Mr. McKee, in the selection of substitute teachers or
- 6 0 2 -
in the employment of teachers, is the particular qualifica
tion of that teacher insofar as her ability or her ability
to teach Spanish or a particular subject—
The Court: I will take judicial notice of that.
Mr. Eobison: All right.
The Court: Anything else?
Mr. Eobison: That’s all.
The Court: Do you have anything else from this
witness?
Mr. Allen: No, your honor.
The Court: All right. Let’s recess until one thirty,
Mr. Lassiter.
(At which time, 12:06 p.m., a recess was had until
1:30 p.m., at which time the hearing continued)
The Court: Your next witness, Mr. Allen.
Mr. Allen: Call Mr. Jack Eutland.
Witness Jack Eutland: Yes, sir.
672
J ack R utland , witness for the United States, having
been duly sworn, testified as follows:
Direct Examination by Mr. Allen:
Q. Would you state your name, please, sir? A. Jack
Kutland.
Q. What is your occupation? A. I am a junior high
—6 0 3 -
school principal.
Q. Have you accepted an assignment as principal to the
Jeff Davis High School which will be opened next fall?
A. Yes; I have.
Q. When did you first—when did you accept that assign
ment? A. About August, was a year ago.
Q. Were you approached by personnel from the Mont
gomery County Board of Education to accept this position ?
A. Yes; I was.
Q. You didn’t ask them for the position; they came and
asked you; is that correct? A. That is correct, sir.
Q. Have you been consulted about the assignment of
additional personnel at Jeff Davis High School this fall?
A. We have talked generally.
Q. Well, thus—so far, you have assigned a principal's
assistant; isn’t that correct? A. Sir, assignments are
made through our Board of Education, superintendent;
I do not have jurisdiction there.
Q. Did anyone from the Board of Education talk to you
about the assignment of a principal’s assistant, a coach,
two assistant coaches, and a band director? A. Yes, sir;
we talked.
Q. Did you make recommendations? A. Yes; I did.
673
— 604—
Q. Were the people who you recommended appointed?
A. I believe most of them were or I agreed to it.
Q. Did you discuss other people as possible—possibly
filling these positions? A. Yes, sir; we did.
Q. Were they all white? A. I believe, thus far; yes, sir.
Q. Have you made any efforts to compile a list of teach
ers to recommend for appointment or assignment to Jeff
Davis High School next fall? A. Yes, sir; I have in a
general way; I have thought about good teachers from all
over the system from every area.
Mr. Allen: I would like the Clerk to mark this as
Government’s Exhibit next in line.
The Clerk: Government Exhibit number 38 for
identification.
Q. I will show you a document which has been marked
as Government’s Exhibit 38, and ask you if you would iden
tify that, please, sir? A. Those are my notes concerning
teacher prospects, some of whom I would like to get if I
can talk my associate superintendent into it. As I stated,
that is not my responsibility, but I do try to get the best.
The Court: Your associate superintendent—
Witness: Mr. Silas Garrett, Judge.
The Court: —who is that? Did I understand you
— 605—
to say they had an associate principal?
Mr. Allen: Well, I understood that they have—
there will be a principal’s assistant or someone or
an administrative assistant who will also teach this
—coming from your school; isn’t that correct?
674
Witness: That is correct; we call them principal’s
helper, and he will teach and help in the office some.
The Court: Has that position been filled?
Witness: Yes, sir.
The Court: Three assistant coaches been filled?
Witness: Two assistant coaches, sir.
The Court: (Nodded to indicate affirmative reply)
Q. And one head coach— A. That is correct.
Q. —is that correct?
Mr. Allen: I would like to offer this document
into evidence as Government’s Exhibit—
Mr. Robison: We have no objection.
The Court: It will be admitted.
Mr. Allen: — 38.
Q. Approximately how many—
The Court: Let me see it.
Q. —Negro teachers have you actually talked to about—
A. I have talked to no teachers, Negro or white.
Q. Is it part of your responsibility as the new principal
— 606—
of Jeff Davis High School to organize the extracurricular
program for the school? A. Yes, sir; that is true.
Q. And what have you done to—thus far, to organize
this program? A. I have accepted the aid of about five
businessmen who have come to me from time to time since
I have been nominated and who have told me that they
would like to help me get started; they understand this is
the system in Montgomery County. The School Board,
of course, provides the instructional material and equips
675
the building, but extracurricular activities or programs are
handled by subscription from the public.
Q. Is Mr. Tranum Fitzpatrick the chairman of this—of
this group? A. Yes; he is.
Q. Did he organize and conduct a meeting at—in the
last week— A. Yes, sir.
Q. —in order— A. Yes, sir.
Q. Where was that meeting held? A. The Governor’s
House Motel.
Q. About how many people were there? A. About
seventy-five.
Q. Were any Negroes there? A. No, sir.
Q. Are there any Negroes in your group of businessmen
who are helping to organize the extracurricular program?
— 607—
A. No, sir; we didn’t have any to volunteer, but we were
looking for help from all quarters.
Q. What have you done to find Negroes? Negroes—
A. I have done nothing to find Negro or white; they have
come to me.
Q. How far have you gone in toward raising money for
extracurricular activities? A. You mean how much money,
sir?
Q. Well, how much equipment have you bought? A. I
do—I cannot answer that; we have ordered some equip
ment for spring training; my coach has ordered some
equipment; I do not have a tally on that.
Q. Have you already purchased the football equipment?
A. Some of it.
Q. You have already selected the football uniforms?
A. That is correct, sir.
Q. Have you already selected the band uniforms? A.
Yes, sir.
676
Q. Who did the selection? A. The coach helped me with
the football, and the band, I did mostly on my own; of
course, I had some— some advice from several people. I
had this uniform on a mannequin in my home, and several
people saw it and liked it and accepted it.
Q. All right; did any Negroes see it and accept it and
like it? A. They have had an opportunity to see it in
yesterday’s paper and also on television several times;
I am sure they did.
— 608—
Mr. Allen: I would like to mark this as Govern
ment’s Exhibit 39.
The Clerk: Government’s Exhibit 39.
Q. I will show you document which has been marked as
Government’s Exhibit 39, and ask you if you would iden
tify that, please, sir? A. In what manner, sir?
Q. You just mentioned a picture in the newspaper; is this
the picture that appeared in the newspaper? A. Yes, sir.
Q. How did that picture happen— strike that. Is that
you in the picture in the center? A. Yes, sir; that is
correct.
Q. How did this picture happen to be made and placed in
—in the newspaper? A. On one day this week, Mr. Sam
Adams, who is a news writer for the Advertiser-Journal,
a local newspaper, called me at my school, Goodwyn Junior
High School, and asked me if I would have such a picture
made.
Q. Where did you get the students who are modeling
these uniforms? A. I called a colleague who is a junior
high school principal; I did this because I did not want
6 7 7
to in any way influence—abiding by the court order, I
didn’t want to influence a child in any way to choose my
school, so I did not—have not ever seen those two boys
before that day.
Q. Well, the principal you called was the principal of
— 609—
Cloverdale Junior High School— A. That is correct, sir.
Q. —which is a predominantly white school? A. I be
lieve that is true, sir.
Mr. Allen: I would like to offer this into evidence
as Government’s Exhibit.
Mr. Kobison: I have no objection.
The Court: It will be admitted. Why didn’t you
get one Negro and one white student for that?
Witness: Judge, I didn’t select them, myself, so I
don’t—
The Court: Well, you used them—
Witness: Yes, sir.
The Court: —and you got the man that did select
them?
Witness: Yes, sir.
The Court: Why didn’t you get one of each if you
didn’t intend to create the impression it was going
to be a white school? Let’s just get right down to
the nub of the thing; why didn’t you get one of each
if you didn’t intend to create the impression it was
going to be a white—
Witness: I didn’t do it to create an impression at
all.
The Court: Of course, that has that effect, doesn’t
it?
678
Witness: That is one interpretation, sir; it is.
The Court: Sure. Sure it is, where you are go
ing through a period of trying to desegregate a
previously dual school system, where you estab
lish a new school in the system—
Witness: Yes, sir.
The Court: —immediately before your freedom
of choice period—
Witness: Yes, sir.
The Court: —that is an obvious effect, isn’t it?
Witness: That is the Judge’s interpretation, sir.
The Court: What is yours?
Witness: My interpretation is I am trying to
abide by the court order; I would assume that be
cause the school, located geographically where it is,
probably predominantly of the white race.
The Court: You understand we don’t have geo
graphical school districts here—
Witness: No, sir, not—
The Court: —yet. Yet. I call your attention to
this copy of Franklin County Board of Education
in North Carolina case where Judge Butler wrote
this opinion—I think it is excellent law—where he
ruled with the Board of Education for two or three
years on freedom of choice and kept having things
like this, and they never did do anything; he just
put them strictly on the geographical basis on the
theory that freedom of choice didn’t work. And it
looks like that is where we are headed here in Mont-
— 611—
gomery if we don’t stop stuff like this. Go ahead.
- 610 -
679
Q. Referring to the picture that was just identified,
it states in the outline under the picture that the students
from Cloverdale Elementary will be eligible for—to attend
the Jeff Davis High School; where did the reporter get
that information? A. I don’t know, sir.
Q. Did you tell him— A. Of course, if I may add, sir,
that all junior high school students in Montgomery will
be eligible under the freedom of choice.
Q. Did you tell the reporter that, that all— A. No,
sir; I didn’t tell him that.
Q. There have been other—there has been other pub
licity surrounding the opening of the Jeff Davis High
School; isn’t that correct? A. Yes, sir.
Q. Have you talked with the newspaper reporters on
other occasions about Jeff Davis High School? A. Yes,
sir; I have. I gave an interview, and you have that in
formation, I believe with Mr. Massey and my material.
Mr. Allen: I would like to mark this as Govern
ment’s Exhibit.
The Clerk: Government’s Exhibit number 40 for
identification.
Q. I will show you the newspaper clipping marked as
Government’s Exhibit 40, and ask you if that is the clipping
— 612—
which you were just referring to? A. No, it is not; the
clipping I am referring to has a picture of the school
under construction; it has a by-line of Massey, I believe,
sir.
Q. Well, is—was this newspaper—particular newspaper
clipping—strike that. Was this story made up as a re
sult of an interview with you? A. I don’t believe so. I
680
believe that is—as it says here that I was making a speech
before a civic club, and I think he picked it up from there,
sir.
Q. When was this speech that you gave to the Mont
gomery Rotary Club? A. Sir, I don’t recall that.
Q. Approximately? A. Three weeks ago.
Q. Was Billy Livings, the assistant coach, present there?
A. Yes; I believe he was.
Q. Did he also speak? A. I believe we had a question
and answer period, and I believe he answered the ques
tions.
Q. Did either you or Mr. Livings say that most of the
football players from Lee and Lanier High may join the
Davis team if they reside near the new school? A. I
don’t believe we did, sir. I f we were—we were probably
misquoted; I can’t tell until the freedom of choice who
will come from where.
— 613—
Mr. Allen: I would like to offer this as Govern
ment’s Exhibit 40.
Mr. Robison: I f the Court please, we would ob
ject to the introduction of that; it has not been prop
erly identified nor is it shown that it reflects his com
ments.
The Court: I sustain it; I sustain objection.
Q. Is part of your duties as new principal making up
the athletic schedules for the coming year? A. Yes, sir.
Q. Have you made up the athletic schedules for— say the
football schedule? A. I have for football.
Q. Have you worked on the basketball schedule? A.
No; I have not.
681
Q. Is anyone else working on the basketball schedule?
A. Yes, sir; assistant coach Charles Lee is doing that.
Q. Did you make most of the contacts to make up the
football schedule for this fall? A. Yes; I did.
Q. You scheduled ten games; is that correct? A. That
is correct.
Q. And these are all with traditionally white schools?
A. All of them, I assume, would be integrated schools un
der the court order.
Mr. Allen: I would like to mark this.
— 614—
The Clerk: Government’s Exhibit number 41.
Q. I will show you the document marked as Government’s
Exhibit 41, and ask you if you will identify that? A. That
—that is correct; that is our football schedule.
Q. Is Montgomery County High traditionally a white
school? A. Yes, sir; I believe it is predominantly white.
Q. Are any of these other teams, any of these schools on
here, not traditionally white ? A. I would not think so ; I do
not know what their enrollment would be; I would think
that they would be predominantly white.
Q. Well, I didn’t say predominantly; I said traditionally
white schools? A. I do not know the answer to that.
Mr. Allen: Well, I would like to offer this as Gov
ernment’s Exhibit 40.
Mr. Robison: We have no objection.
The Court: It will be admitted.
Q. Did you contact the administrators of schools in addi
tion to those and attempt to set up your football schedule?
682
A. Yes, sir; I contacted several administrators, and some
I was able to schedule and some not.
Mr. Allen: I would like to mark this as Govern
ment’s Exhibit.
The Clerk: Government’s Exhibit number 42.
Mr. Allen: 42.
— 615—
The Court: Has your school joined the Alabama
Athletic Association ?
Witness: No, s ir ; not yet.
The Court: Have you made arrangements to do
so?
Witness: We have not formally applied, but we
have—
The Court: How do you know what teams to
schedule if you haven’t made arrangements to do so?
Witness: I selected schools from the list of the
Alabama High School Athletic Association.
The Court: All right; that is what I want to know.
Q. I would like you to look at the document marked as
Government’s Exhibit 42, and tell us what that is? A. I
have never seen it before in my life, sir.
Mr. Phelps: That is your basketball coach.
Witness: That is my basketball coach’s informa
tion.
Mr. Allen: I beg the court’s pardon.
Witness: He put his in my file as we were going
out to lunch, and, of course, it is all together.
Mr. Allen: I will identify this with the next wit
ness, your honor.
683
The Court: All right; let’s get along.
Mr. Allen: I would like to mark this.
The Clerk: Government’s Exhibit number 43.
Mr. Allen: I believe you better make them A, B,
and C; there are three papers there.
— 616—
The Clerk: Government’s Exhibits 43-A, B, and C.
Q. I will show you Government’s Exhibit 43-C, and ask
you what that is? A. This is stationery that is drawn up
by the steering committee listed here; these are the people
who are raising extracurricular funds for Jefferson Davis
High School.
Q. These are the people listed along the letterhead here?
A. Yes, sir.
Q. I believe you already said that those are all white?
A. Yes, sir; that is correct.
Q. Or did you— okay. And I would like to show you
Government’s Exhibit 43-B, and ask you if you can iden
tify that? A. That is a brochure drawn up by this com
mittee to present to donators, which includes the proposed
budget, of course.
Q. What is this on the front, this first page? A. This is
a proposed crest drawn up by a ring company; that would
go on the rings or stationery or what-not; it is a symbol
we use. We do not have a mascot yet; the children are
going to select that. We needed something to be flashing;
that is what that is.
Q. Who designed this? A. This particular drawing
here?
Q. Yes, sir? A. I imagine an artist from Josten Ring
Company.
684
Q. Well, I show you Government’s Exhibit 43-A, and
ask you if you identify that? A. That is a letter to me
—617—
from Mr. Milo B. Howard, Jr., who is director of the De
partment of Archives and History, in which I, I believe
by telephone conversation, asked him if he had materials
on Jefferson Davis. I became interested in Jefferson Davis
when I was named principal of Jefferson Davis High
School and began reading about Jefferson Davis, and that
is what that is.
Q. Did he send you information that could be used in
making up this design? A. Yes; I believe the Confederate
Seal was also included in that letter described which has
a picture of George Washington on a horse on it, by the
way.
Mr. Allen: I would like to offer these as Govern
ment’s Exhibits 43-A, B, and C.
The Court: It will be admitted.
Q. Is transportation provided to the Goodwyn School?
A. Yes, sir; from certain areas.
Q. From what areas? A. These areas are designated in
the court order; I believe you would describe it as Chis
holm area, Boylston area, North Montgomery, Atlanta
Highway, Bell Hoad, North Montgomery.
Q. Is there any reason that you can see, based on your
experience in supervising transportation at Goodwyn, why
transportation should not be provided to the Jeff Davis
School? A. I don’t think that that would be a decision
made at my echelon of experience.
— 618—
Q. Well, the question is, is there any reason— A. Sir,
I don’t believe I could intelligently answer that; I don’t
know all the implications.
685
Q. Well, as principal of Goodwyn, you are in charge of
transportation there? A. Yes, sir.
Q. Do you anticipate any problems at Jeff Davis that
would be different from the problems that you would have
in transportation at Goodwyn? A. Oh, no; those of us who
have been in transportation know that you have problems
always with transportation, but they are all of the normal
nature.
Q. Are they going to be different at Jeff Davis? A. Sir,
I couldn’t answer that, not having any experience in that
area.
The Court: Wasting a lot of time, Mr. Allen; let’s
get along.
Q. Do you anticipate hiring another secretary at your—
at Jeff Davis next fall? A. This would depend on enroll
ment.
Q. Have you already made contacts with prospective
secretaries? In— A. I have talked to one secretary, the
one I have had for seven years.
Q. How about others to fill an additional secretary job?
— 619—
A. No, sir; I haven’t. I haven’t made any contacts; I have
several letters of application, and I only talked to those
people and answered questions who asked me questions.
Q. Do you know whether those people that you have had
contact with are all white? A. No, sir; I do not know;
some of them have written me, and I do not know.
Mr. Allen: I have no further questions, your
honor.
The Court: All right; Mr. Gray, Mr. Seay?
686
By Mr. Gray:
Q. Mr. Rutland, in—just so I am sure I understand, in
preparation of your athletic schedules— A. Yes, sir.
Q. — all of them— A. (Nodded to indicate affirmative
reply)
Q. —both football and basketball— A. (Nodded to indi
cate affirmative reply)
Q. —you made most of the contacts; is that correct?
A. In future years, I assume that the coach will make the
contact, Mr. Gray. This year, since I had no one but myself,
I did it.
Q. Now, did all the people you contacted—were they
white or colored? A. The people I contacted were white
people.
Q. All right. Now, with respect to approximately how
many chibs or social groups, et cetera, have you talked
— 620—
with about this—about Jefferson Davis High School? A.
Approximately how many?
Q. Yes, sir? A. Approximately six or eight, seven—
six or seven.
Q. Six or seven? A. (Nodded to indicate affirmative
reply)
Q. And have all of these people you have talked with,
have they been white or colored? A. That is correct; those
are the ones who invited m e; I speak where I am invited;
yes, sir.
Q. Now, have you taken the initiative in—in—in prepa
ration for the opening of this school, have you taken the
initiative to contact anybody about anything concerning
the school? A. I would—I—I don’t recall specifically con
tacting anyone about anything; in general way, of course,
6S7
I have had conversations with many people about opening
of the school.
Q. Have you contacted any Negroes at all, either princi
pals of schools, teachers in schools, or anyone else concern
ing any plans or asking them for suggestions or letting
them know that you would like their assistance so far as
Negroes are concerned? A. The only Avay there is on com
mittee work, and in the committees on which I have worked,
of course, I have colleagues who are Negroes, and I have
talked to them in a general way, but not specifically about
Jefferson Davis; no.
Q. So you haven’t talked to any Negroes at all about
—621—
Jefferson Davis? A. That is correct.
Q. Now, are you familiar with the proposed eligibility of
football players at Jefferson Davis for this fall? A. Yes;
I am.
Q. What rule and regulation has been adopted so far as
who will be eligible? A. Those people who have estab
lished eligibility at the Lee and Lanier High School and
who live closer to Jefferson Davis High School will be
eligible to attend Jefferson Davis High School.
Q. Now, who passed that rule and regulation and adopted
—who adopted that regulation ? A. That rule was adopted
jointly, I think between myself and the superintendents
and Mr. Bubba Scott of the Athletic Association.
The Court: Only Lee and Lanier High School?
Witness: Well, Judge, under the court order, of
course, anyone who is going from a—from one school
desegregated for the first time, of course, would be
eligible, so it wouldn’t be any need to include other
688
high schools in Montgomery. If I interpret the court
order correctly, sir.
The Court: Let me hear that rule again?
Witness: The eligibility rule is that if a student
has established eligibility in Lee or Lanier High
School, if he lives closer to Jefferson Davis High
School, he would be eligible to participate in ath
letics.
The Court: Is that white or Negro in Lee or
Lanier ?
- 622-
Witness: Yes, sir; I don’t think there is any dis
tinction.
The Court: All right; go ahead. Would he be
eligible to participate the first year in athletics at
Jefferson Davis?
Witness: Yes, sir.
The Court: All right. What if he is from Carver
or Earner or—
Witness: I believe, under the court order, if he
were in one of those schools, sir, he would he eli
gible, as the court order states, because he would
be going into— into a desegregated situation for the
first time, and he would he eligible. That is my
interpretation of the court order, sir. That is why
Lee and Lanier—
The Court: I think that is a proper interpreta
tion. The court order doesn’t state that, but I think
that is—that is a valid interpretation of the order,
that you cannot deny eligibility to— to one going to
a school of the opposite race for the first year.
Witness: That is my understanding, sir.
689
The Court: I think that is right. But if you had
Negroes at Lanier or/and Lee, I don’t see why you
just restrict it; that is to keep them from pirating
players from—
Witness: That is correct; we have overzealous
parents of course, Judge.
The Court: I understand, I understand; go ahead.
—623—
I think that is a proper interpretation of the order
as I have given it to Mr. Scott. It is not spelled out
in the order by a long shot, but I did tell Mr. Scott,
and this is for the record, and I guess this is where
this comes from; I told Mr. Scott they could not
deny eligibility to Negroes that elected through free
dom of choice to go to a former white school, even
the first year. I guess that is where that rule came
from; go ahead.
Q. May I show you Government’s Exhibit 43-B, and you
say this is the proposed—what is it? A. Crest; that goes
on a class ring and so forth.
Q. Now, did you supply to the company that designed
that crest the information that is contained on it? A. No;
I asked them to design a crest, and their company, which
is in Owatonna, Minnesota, came up with this crest.
Q. You—did you send them any information at all? A.
I sent them a copy of the Confederate Seal.
Q. All right; did you also send them a copy of the Con
federate flag? A. No, sir; I think there are plenty of those
available throughout the country right now.
Q. Now, Jefferson Davis High School, the proposed crest
has on it a Confederate Seal; is that right? A. Yes, sir.
690
Q. Which has, “ The Confederate States of America”—
A. Eight.
Q. —and above that, it has a Confederate flag? A.
— 624—
That’s right.
Q. Sir, couldn’t that be interpreted by Negroes as being
designed to discourage them from attending that school?
Mr. Eobison: If the court please, we object to the
form of that question.
The Court: I sustain it.
Mr. Gray: We have no further questions.
The Court: Mr. Eobison, Mr. Phelps?
Mr. Eobison: Yes, sir.
Cross Examination by Mr. Robison:
Q. Mr. Eutland, you have been asked about the court
order and your interpretation of that order; do you recall,
in a discussion on yesterday when we were talking about
this court order, having been read a portion of the existing
court order— A. Yes, sir.
Q. —“A student attending school for the first time on a
desegregated basis will not be subject to disqualification
or waiting period for participation in activities and pro
grams, including athletics” ; do you—has that been read to
you? A. Yes, sir; that was—
Q. All right, sir. Now, Mr. Eutland, what are your quali
fications as a teacher or principal of this school? A. I hold
a Master’s degree in the school administration from the
University of Alabama. I have been elementary principal
— 625—
for six years; I have been a junior high school principal
for ten years; and I organized Goodwyn Junior High
School ten years ago Avith five hundred students.
691
Q. You have been with this system approximately twenty
years; is that your testimony? A. About nineteen years;
yes, sir.
Q. And you have been a teacher and a principal in this
system? A. That is correct, sir.
Q. You organized one of the junior high schools, one of
the larger junior high schools in this system; is that cor
rect, sir? A. Yes, sir.
Q. You were contacted, then, by Mr. McKee and Mr.
Garrett with respect to becoming principal of the Jefferson
Davis High School; is that right? A. Yes, sir; yes, sir.
Q. You have been asked regarding a clerk that you have
out there, or helper that you have out there at the present
time; is that person also going to be a teacher? A. Yes,
sir.
Q. You have, also, a coach, two assistant coaches; is that
correct, sir? A. Yes, sir.
Q. And the band leader? A. Yes, sir.
Q. Is there any other staff at Jefferson Davis High
- 6 2 6 -
School or faculty members that you know have been em
ployed? A. That’s all.
Q. Now, you have been questioned regarding—and I be
lieve that it’s Government’s Exhibit—let me have that sheet
of paper there, please— Government’s Exhibit 38, Mr. Rut
land, is that a list of teachers that you have given consid
eration to for employment at Jefferson Davis? A. In my
own mind, sir.
Q. Do you have the final say-so, or do you have the final
word, with respect to employment of teachers in your
school? A. No, sir.
Q. As a matter of fact, since you have been principal at
the present school, have teachers been employed and sent
692
there that you had no knowledge of or any dealings with
prior to their assignment? A. That is correct; this has
happened.
Q. On this proposed list of teachers that you have given
consideration to, are there any teachers there of the colored
race? A. Yes, sir.
Q. Approximately how many do you have on that list
who are of the Negro race? A. Six or seven, I don’t re
member.
Q. And how many is the total number you have on that
list? A. I do not know that.
Q. Would you mind counting them, Mr. Rutland? A.
— 627—
Thirty-one, I believe, sir.
Q. Thirty-one? A. Yes.
Q. Where, Mr. Rutland, did you get those names; how
did you compile that list of names? A. From word of
mouth, teachers of mine who had been to observation meet
ings which we hold where we observe good teachers, and
we send other teachers into certain schools, and my teachers
have come hack and told me that they saw a certain teacher
doing a real fine job and that they—I put them on my list.
I am looking for good teachers.
Q. That is vour teachers at Goodwyn— A. Yes, sir.
Q. —is that correct, sir? A. Yes, sir.
Q. Have been to schools that are—faculty is predomi
nantly of the opposite race and have came back and told
you of such and such a teacher that is a good one— A.
Yes, sir.
Q. — that is of the opposite race in instances— A. Yes,
sir.
Q. —is that correct, sir? A. Yes, sir.
693
Q. Where they have been to those schools for teacher
observation courses; is that correct, sir? A. Yes, sir; yes,
- 6 2 8 -
sir; that’s right.
Q. Is athletics or band a part of the curriculum of any
school that you know of? A. It is extracurricular, sir.
Q. Is it a part of the required curriculum of a school?
A. No, sir; it is not required.
The Court: Well, let’s get on; do you consider it
essential to the operation of the high school in Mont
gomery, Alabama, on competitive basis with Lee and
Lanier?
Witness: Yes, sir.
The Court: All right.
Q. How is such activities financed? A. Activities of this
kind are financed by moneys raised by citizens, civic clubs,
possibly governmental agencies who make donations.
Q. Is that also true of Lee and Lanier? A. Yes, sir;
that is true of all high schools, I suppose.
Q. And is that also— is it also true that basketball, foot
ball, and band is an extracurricular activity at Lee and
Lanier? A. Yes, sir.
Q. Have you contacted any individual or any group, civic
club, or association on your own to solicit funds or ask
assistance for the financing of the extracurricular activities
at Goodwyn—at Jefferson Davis High School? A. No, sir;
I have not.
— 629—
Q. Have you contacted any individual with respect to
setting up meetings or any civic club or group to set up
694
meetings to help finance it? A. No, sir; I have not con
tacted anyone.
Q. You have been asked about a meeting that was held
at the Governor’s House Motel; did you set that meeting
up? A. No, sir; I did not.
Q. Do you recall or do you know who did set it up? A.
Mr. Tranum Fitzpatrick, who is chairman of the steering
committee of Jeff Davis High School activities committee.
Q. Did you have anything to do with the setting up of
the Jefferson Davis High School activities committee; did
you solicit this organization to be set up? A. Yes; I did.
Ultimately, as a result of their volunteering to help me.
Q. As a result of their volunteering to help you? A.
(Nodded to indicate affirmative reply)
Q. This Jefferson Davis High School activities commit
tee was set up? A. That is correct.
Q. You were issued a subpoena duces tecum here and
brought certain clippings? A. Yes, sir.
The Clerk: Defendants’ Exhibit number 1, 2, De
fendants’ number 3, Defendants’ number 4, Defen
dants’ number 5.
Q. Did you, Mr. Rutland, make a statement here with
- 6 3 0 -
respect to a nicknaming of the school? A. Yes, sir; I be
lieve so.
Q. Do you know who wrote this article? A. No; I do
not.
Q. All right. Did you grant any interview by—to a Mr.
Walter Massey? A. Yes; I did.
Q. Do you recall when that interview was? A. No, sir.
On January 18, 1968.
695
Mr. Robison: We woxild like to offer that in evi
dence.
Mr. Allen: No objection, your honor.
The Court: What number is it?
Mr. Robison: Plaintiffs’—Defendants’ Exhibit
number 2.
The Court: It will be admitted.
Q. Did you grant an interview to a Mr. Travis Wolfe?
A. No, sir; I did not.
Q. Did you grant an interview to a Mr. Gene Diefendorf ?
A. Diefendorf; no, sir.
Q. Did you grant an interview to Miss Judith Helms?
A. No, sir.
Mr. Robison: We are not offering those.
Q. In the interviews that you have given and the speeches
that you have made, have you stated in there that this
school would be opened on a freedom of choice basis? A.
That is correct, sir.
— 631—
Q. Is it your understanding that your students will come
there based on a freedom of choice? A. Yes, sir.
Q. You have been asked about the selection of a crest
and colors and so forth of the school? A. Yes, sir.
Q. Is it necessary that the selection be made at this time
and a determination be made of the crest and so forth of
the school? A. No, sir; I might point out, sir, if I may,
this is not an official crest of the school at this point.
Q. It is not an official crest? A. That’s right.
Q. The colors that you have, have they been made official
yet? A. Yes, sir.
696
Q. You have been asked about certain uniforms that have
been ordered for both the football and the band; have they
—have you got funds on hand to pay for those now, Mr.
Rutland? A. I do not.
Q. The athletic equipment and the band uniforms that
have been selected by you, who was with you in the making
of that choice, or who determined that choice? A. Coach
Bill Livings was in on the choice of the football uniform.
Q. All right, sir. A. On the band uniform, no one, sir;
I did this, myself.
Q. Why did you have to select these uniforms at this
— 6 3 2 -
time? A. Uniforms have to be selected at this time in
order to get delivery by fall.
Q. For the football season in the fall? A. Yes, sir.
Q. You stated on direct examination that you were not
a member at this time of the Alabama High School Athletic
Association; is that correct, sir? A. That is correct, sir.
Q. Have you an application form for membership ? A. I
believe I do.
Q. Do you know what the requirement is for membership
in that association? A. Yes, sir; I believe I do. I believe
the requirement is that a school must be accredited by the
State Department of Education.
Q. That the school must be accredited by the State De
partment of Education? A. Yes, sir; I believe that is true.
Q. Is the Jefferson Davis High School accredited at this
time by the State Department of Education? A. On a
tentative basis, I am sure, only if Ave meet certain stand
ards when we open school.
Q. That was my question; when is it final; when will it
be finally determined whether or not you are accredited by
697
the State of Alabama? A. After we have had an eval
uation.
— 633—
Q. Would that be at the time you open? A. I believe
at the time I open, that the State Department will give
us accreditation on the basis that we have at that time
met the standards and that we will agree to an evalua
tion and go through all the necessary steps to permanently
be accredited.
Q. But you cannot adjoin—you cannot join the Alabama
Athletic Association until you have been accredited by
the State of Alabama; is that correct, sir? A. That is
my understanding, sir.
Q. Now, the teams that you have scheduled, are they
teams of the Alabama Athletic Association? A. Yes, sir.
Q. If you are not a member of the Alabama Athletic
Association, can you play any teams that are members
of the Alabama Athletic Association? If you do not be
long to the Alabama Athletic Association, can you play
any teams that are members of the Alabama—
The Court: Sure, if they are willing to play him,
but if they are members and they play him, they are
subject to be kicked out; that is the way I understand
the rule; they can’t punish him if he plays them.
If he can get them to play him, all right; but the
Alabama Athletic Association has a rule, if I under
stand it correctly, that if one member team plays
a team that is not a member, then they get put out.
Is that the way you understand it?
Witness: I am not firm on that, Judge; I just
don’t know.
698
— 634—
The Court: All right; don’t we have the rules of
the Alabama Athletic Association here?
Mr. Robison: Sir?
The Court: Don’t we have the rules of the Ala
bama Athletic Association here?
Mr. Gray: We have a handbook here, your honor.
The Court: Don’t they have that rule in them?
Mr. Gray: I am not sure; I just got it this morn
ing.
The Court: All right; I guess Mr. Scott is here,
isn’t he?
Mr. Gray: Yes, sir; he is here.
The Court: All right. No member team can play
a non-member team?
Mr. Phelps: I f the non-member team is qualified,
as I understand, to become a member.
The Court: Well, they may do that?
Mr. Robison: Yes.
Witness: That is correct there, I know.
The Court: They may do that; this is the manner
in which they have exercised control.
Q. Mr. Rutland, so far as you know, are those teams
that you have scheduled to play on your football sched
ule desegregated schools ? A. Yes, s ir ; I assume they are,
since they are schools of Alabama and since most of us,
all of us, are under the—a court order of some kind.
— 635—
Q. On last year, did you see the Lanier-Tuscaloosa High
School game? A. No, sir; I did not.
Q. You did not. Did you see the Lee and Tuscaloosa
High game? A. I believe I did, sir; I saw so many foot
ball games, I can’t remember.
699
Q. Do you remember that game in which at that time
the football team of Tuscaloosa High was predominantly
of the Negro race? A. Yes, sir.
Q. Mr. Rutland, do you understand that, as principal
of the Jefferson Davis High School, that you are under
a court order to take affirmative action and to encourage
desegregation of the student body and the faculty? A.
Yes, sir; I understand that.
Q. Will you do that to the best of your ability? A. Yes,
sir; I will.
Q. Have you, in any way, attempted to influence the
choice of any student in the Montgomery County system
to come to your school? A. No, sir.
Mr. Robison: I believe that’s all.
The Court: Redirect, Mr. Allen?
By Mr. Allen:
Q. In connection with your athletic program at Jeff
Davis, you plan to have spring football practice? A. Yes;
we do.
— 636—
Q. When will that start? A. March 2.
Mr. Allen: I would like to mark this as Govern
ment’s Exhibit.
The Clerk: Government Exhibit number 44.
The Court: I f the choice period runs from March
1 to March 31—
Mr. Allen: Yes, sir; that is correct.
The Court: —how do you start a spring practice
March 2?
700
Witness: We are going to ask football players to
commit themselves on March 1, to bring the choice
sheet back to us.
The Court: How are you going to do that?
Witness: Well, we are going to ask them to bring
it back, and I believe those who are interested in
spring training and football—
The Court: You are going to circularize the foot
ball players at Lee and Lanier?
Witness: They will go to every student in Mont
gomery County.
The Court: Every student?
Witness: Yes, sir; every— choice form will go to
every student in Montgomery County on March 1.
The Court: How you going to get the football
players to bring them back in on the 1st of March?
- 6 3 7 -
Witness : We have had this in the paper, and we
will have other advertisements of this, so every
child in Montgomery will have an opportunity to
make his choice, and if he is eligible to play he can
play.
The Court: Go ahead.
Q. I would like for you to identify Government’s Ex
hibit 44, please, sir? A. This is a mimeographed sheet
drawn up by coach Bill Livings—
The Court: What number is it?
A. — describing spring training, I believe—
The Clerk: 44.
701
A. —spring training at Cloverdale School.
Q. Was—who circulated this? A. That has not been
circulated generally. This, I believe, has been in the paper.
Q. You mean this particular thing was printed in the
paper? A. No; that—information from that particular
thing, not that particular thing.
Q. Well, why was it printed up? A. I don’t have any
idea why we printed that up.
Q. Well, who has seen this? A. I believe this was
handed out at the meeting we had at the Governor’s House
for the gentlemen who were helping raise money to try to
get them to realize that we needed to get on with it by
March 1.
— 638—
Q. And I believe you already testified that there were
only white people at that meeting.
Mr. Allen: I would like to offer this in evidence
as Government’s Exhibit 44.
The Court: It will be admitted.
Mr. Allen: I have no further questions, your
honor.
The Court: Who selected Cloverdale Community
Center as being the place that the players that want
to play at Jeff Davis are to report and get meas
ured for uniforms?
Witness: I did.
Mr. Gray: Your honor, I just have a couple of
questions.
By Mr. Gray:
Q. I think you said this crest is not official; is that
correct? A. That’s right.
Q. Is it on the band uniforms? A. No; it is not.
702
Q. Is it on the football uniforms? A. No; it is not.
Mr. Gray: That’s all.
Recross Examination by Mr. Robison:
Q. Mr. Rutland, did you invite anyone to the meeting
at the Governor’s House? A. No; I did not.
— 639—
Q. Why did you select or why was the site of Cloverdale
School selected as a place for this practice? A. Clover-
dale people volunteered the services of their facilities and
their field at this time, and it was nearby the Jefferson
Davis High School.
Q. Is it in the vicinity of where your Jefferson Davis
High School would be; was that the reason for it, prox
imity? A. It is probably the closest junior high to this
field, and in the event we would have our field developed
in time, we could move over easily, you see, from there.
Our field is under development at this time.
Q. In the last Government’s Exhibit, you require or you
ask in there for both the parent and the student to exercise
their selection of a choice; why did you do that? A. We
did that—of course, as you know, the court order says that,
I believe, a child fifteen years old may make a choice, but
we did this there again to keep down any recruiting or any
wish-washing and changing; we want the child to make the
commitment as far as athletics is concerned so he would
not have a tendency to go back to one of the other schools;
if he makes his commitment with us, we feel that he ought
to stay there.
Q. So you have asked both the parent and the child—
A. That’s right.
703
Q. —to exercise their choice! A. That’s right; that’s
right; sometimes it gets tough the first two or three days,
— 640—
and they want to change; we want to make sure that once
they make their choice, they stick with it.
Mr. Robison: I believe that’s all.
The Court: Anything else from this witness!
Mr. Allen: No, your honor.
The Court: All right; call your next one, please.
Mr. Allen: Call Jimmy Hughes.
W alter J ames H ughes , Jr., witness for the United States,
having been duly sworn, testified as follows:
Direct Examination by Mr. Allen:
Q. What is your occupation! A. Student at Lanier
High School.
Q. Which one! A. Student at Lanier High School.
Q. Lanier! A. (Nodded to indicate affirmative reply)
Q. What grade are you in! A. Tenth.
Q. Where did you go to junior high! A. Bellingrath
Junior High School.
Q. You play football, or did you play football at Lanier!
A. Yes, sir.
— 641—
Q. Did you play football at Bellingrath! A. Yes, sir.
Q. Have you also played basketball at both of these
schools! A. Yes, sir.
Q. In that connection, have you become acquainted with
Mr. Charles Lee and Mr. Billy Livings— A. Yes, sir.
704
Q. —coaches? Mr. Lee is the coach at Bellingrath; is
that right? A. Yes, sir.
Q. Have you had occasion to talk to either of these men
about the new Jefferson Davis High School? A. I have.
Q. Would you tell us what conversations you had with
coach Lee? A. I have only talked to coach Lee one time,
and that was on my own accord; I went to see—visit his
wife, who was in the hospital at the time she had her first
child, and I asked him how things were going at the new
school, and—I mean at—at Bellingrath, and I asked him
what the colors were going to be for the new school, and
he told me, and that was about the extent of our conversa
tion. That is the only conversation I have had with him.
Q. How did you know that he was going to be at the new
school? A. It was announced in the paper.
Q. What conversation have you had with coach Livings?
A. I have had three conversations about the new school
with coach Livings. The first one was very brief; I just
asked him what his—what they were going to do over there
— 642—
and tried to find out some information about when spring
training and when other facilities would start there, and,
of course, at that time, he didn’t know. It was just after
he had been announced, and so he told me to ask him later
if I still wanted to know or something, and I waited.
Q. Did you ask him later about spring training? A. I
did; I came to him during study hall one afternoon and
asked him when spring training would start, where it would
be held, and he had—he told me, and then I asked him
what—let’s see, would we have practice on a—during A.E.A.
holidays, and he stated that he didn’t think so, he really
didn’t know.
705
Q. Was anyone with you when you asked him about
spring training? A. No, sir; I was by myself.
Q. Have you talked to other students at Lanier about
spring training or about Jeff Davis generally? A. Noth
ing other than between ourselves, like something as to the
nature, “Are you going to Jeff Davis,” and the general
reply would be, “ I wouldn’t know” ; that is about the extent
of it. Nobody has talked much about it.
Q. Have you discussed this with any Negro students?
A. No.
Q. In all your athletic experience at Bellingrath and at
Lanier, have you ever played an opposing team from the
traditionally Negro school? A. I don’t think so.
—643—
Q. At Lanier, have you ever had a sub—a Negro substi
tute teacher? A. No, sir.
Q. Have you ever had a Negro teacher? A. No, sir.
Mr. Allen: That’s all the questions I have—I beg
your pardon ; just a minute.
Q. Did you have an occasion to make up a play book
of football plays for coach Livings? A. I had the occa
sion to write some plays down for coach Livings; yes. It
was in study hall one afternoon, and I went down to ask
him about whether—it was something concerning the school
library at Lanier, and I happened to see several pieces of
paper on his desk, and they had football formations on
them, and I assumed he was working on them, and I asked
him what they were, and he told me they were some of
the formations that he thought they would use in the basic
offense of the new school, and then he said, “ Would you
like to look at them,” and I said, “Yes, sir; if you don’t
706
mind.” And he said, “ That will be quite all right,” and so
I looked at them a few minutes, and I was looking at them,
and I jotted down a few plays on each formation that I
had known and had come in—you know, contact with. And
I suppose I wrote down about six or eight or so for each
formation.
Q. You learned these football plays when you were with
coach Lee at Bellingrath? A. Most of them; yes, sir; but
a few of them I did learn at Lanier.
—644—
Mr. Allen: That’s all, your honor.
Mr. Gray: No questions, your honor.
Cross Examination by Mr. Phelps:
Q. Walter, have you decided where you are going to
school next year? A. I have not made a definite decision;
I would like to go to Jeff Davis, but I haven’t made my
final decision yet.
Q. You are still considering? A. Yes, sir.
Q. Now, Mr. Allen asked you about did you have a
colored teacher at Lanier; you have been interested in
athletics at both Lanier and your junior high school? A.
Yes, sir.
Q. Do you know a colored—any colored teachers; have
you worked with any colored teachers out at Lanier? A.
Yes, sir; there is coach Harris, who is P.E. teacher at
Lanier; I have become acquaintance with him several
times; he is a very nice person, and he works with—he
doesn’t work with the athletes directly, but on occasion,
when some of the coaches are not able to come in and
speak with us, then he will come by and keep us in—you
know, our order, especially the first two or three days of
70 7
school, he was an important person, you know, in that
aspect.
Q. All right; you have worked quite a bit with coach
Harris'? A. Well, not quite a bit, but I have come in
direct contact with him.
— 645—
Q. All right. Now, have you seen any—any substitute
teachers or other colored teachers out there? A. I have
seen one substitute teacher or teacher who was colored, and
that is the only one I can say that I have seen.
Q. Besides coach Harris? A. Yes, sir.
Q. All right. Walter, you have got a subpoena to come
to court today? A. Yes, sir.
Q. When did you get that subpoena? A. Last night
about nine thirty or so.
Q. Did Mr. Quaintance, who sits here, give it to you? A.
Yes, sir.
Q. Where—where was it served on you? A. At—in my
living room.
Q. Did you get any advance notice about that? A. No,
sir.
Mr. Phelps: I believe that’s all.
The Court: Anything else from this witness?
Mr. Allen: That’s all, your honor.
The Court: Witness is excused. You may go,
young man. He can go. Call your next one.
Mr. Allen: Mr. Charles Lee.
708
—646—
Charles L ee, witness for the United States, having been
duly sworn, testified as follows:
Direct Examination by Mr. Allen:
Q. State your name, please, sir? A. Charles Lee.
Q. What is your occupation? A. I am presently em
ployed as teacher in physical education at Bellingrath
Junior High School.
Q. At Bellingrath, you also coach? A. That is correct.
Q. Basketball? A. Basketball, football, track, all var
sity sports.
Q. In your football experience, how many Negro athletes
have you had? A. We have had one to come out for foot
ball.
Q. When was that? A. This past fall.
Q. Is that the only Negro athlete that you have actually
worked with? A. In physical education, we have many
colored athletes, colored boys.
Q. You are speaking of physical education classes then?
A. As working with these boys as athletes in physical edu
cation; outside of school, only one boy has come out.
Q. Have you accepted an assignment to the Jeff Davis
- 6 4 7 -
High School next year as assistant coach? A. That is
correct.
Q. You are employed by the Montgomery County school
system? A. That is correct.
Q. Has it been part of your duties at Bellingrath to
make up—I beg your pardon; has it been part of your
duties to make up a basketball schedule for the new Jeff
Davis High School? A. Yes.
709
Q. Have you contacted authorities at other schools to
make up this schedule ? A. I have contacted other schools.
Q. I will show you a document marked as Goveimment’s
Exhibit 42, and ask you if you will identify that, please,
sir? A. This is a list of coaches, the name of the school,
and the town which they are located at, which I have sent
out letters to as feelers for basketball schedule.
Q. Are all those traditional white schools? A. As far
as I know, all of these schools are integrated schools.
Q. Are they traditional white schools? A. I would as
sume that, in years past, they have been.
Mr. Allen: I would like to offer this as Govern
ment’s Exhibit 42.
The Court: 42 will be admitted.
Q. Where did you obtain the names of schools to con
tact? A. When I first began to make up a list of names,
— 648—
it was from coaches that I was acquainted with; second
of all, from schools that I was familiar with as far as their
athletic program is concerned, and schools which were close
to Montgomery that I was familiar with, because we, being
a new school, are faced with a problem of proximity, and
we must try to play schools around close so that we won’t
have a great deal of traveling expenses.
Q. Did you have a list of schools from which you could
select? A. The Alabama High School Association has a
directory, and from this directory, the schools that are
members of the association, each school is listed, the town
in which it is located, the classification of school, the dis
trict that it is in, and the coaches on that staff.
Q. Is that the association that Bellingrath is in? A. It
is actually an Alabama High School Association; junior
710
high schools can he a part of the High School Association,
although they don’t—they do not share in the overall high
school set-up.
Q. Well, is it the association that the traditional white
schools in Montgomery are in, Lee and Lanier? A. Lee
and Lanier are in this association.
Q. Do you have any Negro teachers at Bellingrath? A.
No.
Q. Have you seen any Negro substitute teachers there
this year? A. I have not seen any, but I am not always
in the school.
Q. Have you had occasion to discuss the Jeff Davis High
- 6 4 9 -
School’s athletic program with any students? A. Yes.
Q. About how many? A. It would be hard to determine,
because of the many questions that have come up by dif
ferent students at different times that they have asked
me, primarily after the article came out in the paper sev
eral weeks ago as explaining the eligibility as to whether
they would be eligible to attend or not.
Q. Now, this article in the paper explained the eligibility;
is that an explanation which was given pertaining to stu
dents who are coming from Lee and Lanier schools? A.
It—as well as I can remember, it explained that any ninth
grade student in Montgomery County was eligible to come
and be athletically eligible, and as far as high school was
concerned, that they were to live closer to Jefferson Davis
than they did to Lee or Lanier.
Q. Have you talked to any Negro students about the
athletic program at Jeff Davis? A. I have had no Negro
students to ask me of the program. I have not—in other
words, they have not asked me just like the white students
have, and so this is the only contact that I have had with
them.
711
Q. Has any provision been made, to your knowledge,
for furnishing this kind of information to students at
Carver and Washington and the traditionally Negro junior
- 6 5 0 -
high schools ? A. The information as it first came out was
in the Journal.
Q. All right; then you testified that when that informa
tion came out, several white students came and asked you
questions about it! A. That is correct; students at our
school.
Q. Who would answer those questions for Negro stu
dents? A. Anyone that they asked, I suppose.
Q. Has any provision been made to—for you to have
any contact with students at traditional schools—tradi
tionally Negro schools? A. Would you repeat the ques
tion?
Q. Has any provision been made for you to have any
contact with students at traditional Negro schools? A.
There have been no provisions made for me as a coach
or any other coach to contact any students at any schools.
Q. Is there any reason, that you can think of, why Jeffer
son Davis shouldn’t play Carver and Booker Washington
in athletic contests ? A. I don’t know that I can adequately
answer that question; I might answer it by saying this;
that when I, as a coach, or any coach sets out to draw up
a schedule or set up a schedule for his teams, a great
many things are taken into consideration— sportsmanship,
closeness, and working relations with that school.
Q. Wouldn’t Carver and Booker Washington fit into
those categories, closeness? A. Closeness, they would.
The level at which we, as a new school, are forced to com-
— 651—
pete with, we certainly, as we start out, cannot take on the
larger schools. I think this would eliminate a great many
712
schools in the Montgomery system; we could not compete
with the Montgomery public schools, any of the Montgom
ery public schools, because of the size of their schools and
the size of our school. And then we look for it as to what
would be the most beneficial for our ball team.
Mr. Allen: That’s all the questions I have, your
honor.
By Mr. Gray:
Q. Coach, are you familiar with Saint Jude High School!
A. I think so ; it is located on Fairview Avenue.
Q. Yes, sir; across the street from Carver! A. Yes.
Q. Is it a predominantly Negro or white school? A. As
far as I know, it is predominantly Negro.
Q. And it is a smaller school than Carver or Booker
Washington, isn’t it? A. I don’t have any idea about the
size.
Q. Did you consider the possibility of getting a game
with Saint Jude? A. No; I did not.
Q. You didn’t; and I notice on your schedule, you are
playing Catholic High School? A. No; this is a possible.
— 652—
Q. It is a possibility? A. Right.
Q. You—have you considered the possibility at Saint
Jude—to play Saint Jude? A. No; I did not.
Q. I also see you have a possibility on your schedule of
Montgomery Academy and Alabama Christian High
School? A. That is correct.
Q. Did you consider Alabama State Laboratory High
School? A. No; I did not.
Q. Are you familiar with Alabama State Laboratory
High School? A. No; I am not.
713
Q. Have you done anything to familiarize yourself
with any of the Negro schools in this area that your team
could play? A. As I stated before, when I began to make
this list up, my first consideration was for people that I
knew, and, in answer to your question, no.
Q. And you don’t know any Negroes who are employed
in the school system and who are coaches, et cetera, do
you? A. I do know some that are employed in the school
system.
Q. Do you know the various junior high school coaches
in Montgomery, the Montgomery school system? A. No;
I do not.
Q. The white ones? A. Yes.
— 653—
Q. Do you know the Negro junior high school coaches
in the system? A. No.
Q. So really, you have no knowledge at all of the Negroes
in the educational field in the Montgomery area? A. Very
little.
Q. And you didn’t make any effort at all in working out
your schedule to find out anything about these persons
or these schools? A. No.
Mr. Gray: That’s all.
The Court: Mr. Robison, Mr. Phelps?
Cross Examination by Mr. Robison:
Q. Do—does the same rules with respect to scheduling
basketball apply as does to football insofar as scheduling
teams in the Alabama Athletic Association—High School
Athletic Association? A. When, several weeks ago, as I
began to draw up or began to form a—this letter, one of
the first things that I did was to contact Mr. Scott, who
714
is head of the Alabama High School Association, to ask
if we would be eligible for the Alabama High School As
sociation, and he said that if we were accredited, that we
would be eligible, and it had been my understanding that
we would be accredited. And so, along these lines then, I
began to look at the schools in—that I knew through vari
ous contacts that the other Montgomery schools, Lee and
Lanier, had had good relationships primarily in years
before.
— 654—
Mr. Robison: That’s all.
The Court: Anything further from this witness?
Mr. Allen: No, your honor.
The Court: You want to excuse this witness?
Mr. Gray: I just have one question.
Redirect Examination by Mr. Gray:
Q. Is it then your testimony that the reason you didn’t
consider Negroes is because the Negro schools were not
on the list of the Alabama High School Athletic Associa
tion’s directory? A. I did not; I do not know if there are
any Negro schools in there, because for this reason; I
assume that all of us are integrated schools, first of all,
and then there are a great many schools in the directory
that I did not contact.
Q. So then your basis, really, was personal knowledge
and not the schools that were contained in the directory
of the Alabama State Association? A. Personal knowl
edge is correct.
Mr. Gray: All right.
Mr. Robison: That’s all.
The Court: You want to excuse this witness?
Mr. Allen: Yes, your honor.
The Court: Any reason to keep this witness?
Mr. Allen: Beg your pardon?
The Court: Any reason to keep this witness?
—655—
Mr. Allen: No, your honor.
The Court: Call the next one, please.
Mr. Allen: That is all the witnesses we have,
your honor.
The Court: The Government rests here. Any
further evidence? All right; Plaintiffs.
Mr. Gray: Mr. Scott.
The Court: Let’s take a ten minute recess, Mr.— .
(At which time, 2 :49 p.m., a recess was had until
2:58 p.m., at which time the hearing continued.)
The Court: All right; your next witness.
Mr. Gray: Mr. Scott.
The Court: First witness for the Plaintiffs, I be
lieve.
N o t e : For testimony of H erm an L. S cott, witness for
the Plaintiffs, see excerpt transcript filed Febru
ary 27, 1968.
The Court: Case is with the Defendants.
Mr. Robison: We would like to call Mr. Walter
McKee.
716
W alter M cK ee, a Defendant, having been duly sworn,
testified as follows:
— 656—
Direct Examination by Mr. Robison:
Q. Mr. McKee, you were asked earlier this morning con
cerning transportation to the new school; how many stu
dents are transported to Lanier? A. At the present time,
there is four hundred and thirty—approximately four hun
dred thirty-nine transported to Lanier.
Q. How many to Carver? A. Two hundred ninety-five.
Q. How many to Lee? A. T wto hundred—three fifty.
Q. And how many to Booker Washington? A. A hun
dred and thirty-two.
Q. How is it determined whether a school will be a
transported or— school or not; how do you determine
whether or not to designate a school as a transported school
or not? A. Well, the big thing is, of course, where a
school is most likely to have space, back in the days when
they had districts, that was the sole factor, and the geo
graphical—geography of the town is another thing that
is involved. Now, as I pointed out this morning, the Lower
Wetumpka Road, the Wetumpka Highway, and the Atlanta
Highway are the areas, and those roads that branch off,
that is transported to Booker Washington and Lee High
School. Then, coming on around the Vaughn Road to Wood-
ley Road, the McGehee Road, the Narrow Lane Road, and
Norman Bridge Road, the Mobile Highway, the Selma
Highway, and the Birmingham Highway, those are the
- 6 5 7 -
areas in which students had a choice to go to either Lanier
or Carver and will be furnished transportation.
717
Q. In the designation of a—of an area as transported
or in the designation of transported schools, that is, schools
to which they are transported, is that based on any ratio
factor? A. Not other than to give the opportunity of
those living out of the city a chance to ride a school bus
to a school of their choice which would be of one race or
the other.
Q. So in designating a transported school or a trans
ported area, race is considered a factor so as to permit any
child residing in that area, they can be transported either
to a predominantly white or a predominantly colored school,
depending on their choice— A. That is correct.
Q. —is that your testimony? A. That is correct. Now,
I might point out that we have some fifty odd schools, and
practically all of them are in town, and we only have trans
portation to six or eight, something like that. For instance,
in the junior high field, we have transportation to about
five of them.
Q. Why don’t you designate all schools as a transported
school? A. That would be a physical impossibility to bring
your buses in, say, from the Vaughn Road or in from the
Wetumpka Highway and go to three or four different
junior highs or to two or three or four senior highs; that
would just be a physical impossibility without the children
— 658—
having to get up real early in the morning.
Q. So you designate certain areas that buses run over
to transport students to a particular school designated as
a transported school, and in that area, they have a choice
to go to either a predominantly white or a predominantly
colored school? A. That is correct.
Q. Now, based on your study and your experience, Mr.
McKee, with respect to transportation of this system, and
71S
particularly transportation under the court order, do you
have an opinion as to whether or not it would be feasibly
possible to transport children to the new school? A. It
would certainly not be feasibly possible to transport all of
them. It would—the—it would—the space situation there,
in my opinion, is going to be very crowded. And, of course,
if you put the seven hundred children, roughly, that are
now being transported to Carver and to Lanier, your school
would be full, practically.
Q. Of transported children? A. That is correct.
Q. Well, would—is it your opinion, based on your study,
that there will be sufficient students in the area of the new
school so that the present capacity will be filled? A. I—
I think there will. I checked on some figures on that during
the lunch hour, and I found that the new school is three
and seventy-five hundredths miles from Lanier High School
— 659—
as the crow flies, from the map, of course; some students
will come from there. It is a little over two miles from
Lee High School; and just a little bit over three miles from
Booker Washington. And, of course, those schools—there
would be children in the edges of the districts from all
three of those that would be closer to the new high school
than would—they would be to the other one.
Q. With respect to the Peter Crump School and the
Southlawn, new schools, have you formulated any opinion
as to the feasibility of transporting students to those
schools? A. We felt that we could not transport students
to that school at this time, because we had space in other
schools that had been built; we did not have the funds
to build rooms except for those that would be more or
less in walking distance of those schools.
719
Q. Are the decisions which you have reached with re
spect to your proposal on transportation administrative
decisions based on the feasibility studies that you have
made and not based on a race factor? A. That is correct.
Mr. Robison: I believe that’s all.
The Court: Cross.
Mr. Allen: I have no questions, your honor.
Cross Examination by Mr. Gray:
Q. I think, sir, you said that what the Board has done,
— 660—
so far as the children in the rural is concerned, is to
provide transportation going to a predominantly colored
school and a predominantly white school so they can make
their choice ? A. That is correct.
Q. Now, with respect to—back to my area around Wood-
ley Road where these Negro children have a choice either
to Hayneville Road or Goode Street? A. That is correct.
Q. Goode Street now is a predominantly Negro school,
isn’t it? A. That is correct.
Q. And Hayneville Road school is a predominantly Negro
school? A. That is correct.
Q. So now the only transportation in that area that is
available for these children now are to be predominantly
Negro schools? A. Either the white children or the col
ored children.
Q. That is the situation, isn’t it? A. I said for the white
children or the colored children.
Q. So then there is no transportation available to an
integrated school or to one of the predominantly other
race? A. We are seriously considering that for the next
year since wTe have space now at Harrison School on the
720
By-Pass, which I referred to, that we may designate that
as one of the transported schools in that area, Harrison
School and Hayneville Road.
Q. Isn’t it a fact, Mr. McKee, all this points np the fact
that what the Board really needs to do is to completely
— 661—
revamp its transportation system on a nonracial basis!
A. I think it is as far as it can possibly b e ; any child in
the county has a choice to go to any school he Avants to ; he
has a choice to go to schools— or transportation, if he is
transported, to either a predominantly white or colored
school. I don’t see how that could be made any fairer, and
I don’t know of a single child in the county that has been
turned down to go to—to any of these transported schools,
because I don’t believe any of those are frozen.
Q. Of course, if you restrict the number of schools where
transportation is available, their choice is automatically re
stricted, isn’t it! A. It is restricted not as far as race is
concerned.
Q. Well, I mean the effect of it is a restriction! A. I
wouldn’t—I wouldn’t say as far as race is concerned.
Mr. Gray: I have no further questions.
The Court: Mr. Robison!
Redirect Examination by Mr. Robison:
Q. If you don’t restrict it to certain schools or number,
it would be impossible to conduct a transportation system?
A. It would be impossible, because A v e could not run a bus
—the bus coming from—from the Woodley Road could not
possibly go to eight or ten different schools to leave three
children here, go over here and leave four, cross OAmr here
721
—662—
and leave five, and get in all that trouble; children out the
Woodley Road would be getting up at three o’clock in the
morning.
Q. Mr. McKee, the white children that are living on the
Woodley Road, where the choice is between Goode Street
and Hayneville Road, as it now stands, if they, the white
children, want bus transportation, they would be going to
a school and are going to a school which is predominantly
of a race other than their own; isn’t that a fact? A. That
is correct.
Mr. Robison: All right, sir; I have no further
cpiestions.
Mr. Allen: I have no questions, your honor.
The Court: All right.
Mr. Gray: Nothing further.
Mr. Robison: We have no further questions.
The Court: Next witness.
Mr. Robison: We would like to call Mr. Tom
McGregor, reporter. Mr. McGregor. He hasn’t been
sworn, if the court please. And would like to also
say to the court that he has been sitting here during
this.
The Court: I will let him testify.
Mr. Robison: Thank you, sir. You haven’t been
sworn, have you, Tom?
Witness Jim McGregor: Jim.
Mr. Robison: I mean Jim.
— 6 6 3 -
Witness Jim McGregor: No, sir.
The Clerk: Do you solemnly swear that the testi
mony you give in this cause to be the truth, the
whole truth, and nothing but the truth, so help
you, God?
Witness Jim McGregor: I do.
J im M cGregor, witness for the Defendants, having been
duly sworn, testified as follows:
Direct Examination by Mr. Robison:
Q. State your name, please, sir? A. Jim McGregor.
Q. And by whom are you employed? A. Montgomery
Advertiser.
Q. How long have you been employed? A. Three years.
Q. Did you make the first contact with Mr. McKee or
the Board of Education with regard to inquiring about
the new high school? A. I think I did one of the first
stories that was done about the new high school, because
I had—if I can explain, I would—had been covering a
court case that had been in State Circuit Court concerning
money that was going to be available for this new school,
and I covered a School Board meeting, I think, right after
the whole thing had been straightened out in State Court,
and the School Board knew they were going to get the
— 664—
money for the new school, and the School Board took some
action saying that the new school was definitely going to
be built, and I did a story at that time.
Q. That was the State Court action with reference to
the wage scale— A. Yes, sir.
Q. — requirement to be put in the contract? A. (Nodded
to indicate affirmative reply)
Q. And when that cleared and the money became avail
able, you attended a meeting; at that meeting, did you
723
have any conversation with Mr. McKee regarding this
school and what type of school it would be? A. Yes, sir;
I think I talked to him. I— I talked to him immediately
after the meeting; I think I went to his office in the Board
of Education.
Q. What statement did he make to you, if any, with
respect to the race factor of this school or what it was
designed to be? Insofar as race is concerned? A. The
best I can remember, we—we talked about how many class
rooms—
Mr. Gray: Your honor, we are going to object
to this as self-serving.
The Court: I will permit it.
Mr. Gray: All right.
Q. What statement did he make? A. At one point in
the conversation, he made it clear to me, and the best I
— 665—
remember, he specifically requested that it be made clear
that this school, like all the other schools, were under the
freedom of choice plan under court order.
Mr. Robison: I believe that’s all.
The Court: Cross.
Mr. Allen: Can I see those newspaper—the news
paper clippings?
Cross Examination by Mr. Allen:
Q. I would like to show you a document which has been
marked as Defendants’ Exhibit 4, and ask you did you
write that story? A. No, sir.
Q. You didn’t? A. No, sir.
724
Q. Did you cover any of the meetings that were held by
the committee organized to raise funds for the new high
school? A. No, sir.
Q. You didn’t. Have you talked to Mr. Jack Rutland
at all about the new school? A. No, sir.
Q. Have you talked to any of the officials who will be
assigned to the new school next year? A. No, sir. Except
—well, just Board of Education; I have on occasion, four
or five occasions, the last two or three years, I have
covered Board of Education meetings and just reported
— 666—
what went on in the meeting, but—
Q. How many contacts did you have with the Board of
Education, please, sir? A. I would say I covered three or
four meetings last fall. They usually meet about once a
month, and I have covered maybe three meetings last fall.
Another reporter and I at the paper sort of split it one
of us cover one time.
Q. Are these all pertaining to the new Jeff Davis High
School? A. No, sir.
Q. How many contacts pertaining to that school? A.
This is the only—the meeting I testified earlier about is
the only one I can think it was specifically much talk was
about the new Jeff Davis High School.
Q. And how many articles did you write about the new
Jeff Davis High School? A. I think the one I referred to,
and I don’t remember the exact day I wrote it, but I think
that was the only one I wrote that really pertained to the
Jeff Davis High School.
Q. When did that appear? A. It was either late sum
mer or early fa ll; I don’t know the date; the best of my
remembrance and recollection, it was.
Q. Did you put anything in that article about who would
725
be going to that school, what students? A. (Shook head
to indicate negative reply)
—667—
Q. You didn’t? A. My only reference— and I am—and
I am sure I quoted Mr. McKee—is saying that it would
be freedom of choice. I made no reference to area or what
area of the city they would come from or anything.
The Court: Mr. Gray?
Mr. Gray: No questions.
The Court: Mr. Robison?
Mr. Robison: We have no further questions.
The Court: All right.
Mr. Robison: Thank you, sir.
The Court: Step down.
Mr. Robison: Defendants rest, if the court please.
The Court: Case back with the Government.
Mr. Allen: No rebuttal, your honor.
The Court: All right.
Mr. Gray: No rebuttal.
The Court: How long you want to file your brief ?
Mr. Allen: If we could have ten days, your honor.
The Court: All right. That will make it by the
—by the 19th, February 19. Will that be enough
time for you all, Mr. Robison?
Mr. Phelps: Yes, sir.
Mr. Robison: All right, sir.
The Court: I need to get an order out sufficiently
prior to this next—to this freedom of choice period
— 668—
here. That should be the latest.
Mr. Allen: We would like to submit a proposed
order, if that—the court would—
726
The Court: Yes; that will be all right. You may,
also. We will recess until further order.
Court Reporter’s Certificate (omitted in printing)
— 673—
(N o t e : This transcript is an excerpt transcript contain
ing the testimony of H erman L. S cott as given
in hearing in above case on February 9, 1968,
and of his testimony only.)
H erm an L. S cott, witness for the Plaintiffs, having been
duly sworn, testified as follows:
Direct Examination by Mr. Gray:
Q. State your name, please? A. Herman L. Scott.
Q. Your occupation, Mr. Scott? A. Executive Secretary
of the Alabama High School Athletic Association.
Q. How long have you held that position? A. Almost
two years.
Q. Tell us, sir, what is the Alabama High School Athletic
Association? A. The Alabama High School Athletic As
sociation is an organization made up by its member schools
for the purpose of regulating athletics in those schools.
Q. "What connection, if any, does that association have
with the State of Alabama? A. None.
— 674—
Q. Where your offices are located? A. In the State Office
Building.
Q. And does the Association pay rent for those facilities?
A. The State Board of Education has granted the Alabama
High School Athletic Association office space since it was
started and employed a fulltime secretary.
Q. Now, your secretary—
727
The Court: You mean the State employs the sec
retary?
Witness: No—excuse me; the State Department
of Education.
Q. The State Department of Education supplies your
association with office space? A. Yes.
Q. And supplies your association with a fulltime paid
secretary? A. No.
Q. Correct me then? A. Our association pays all of its
employees from its own revenue income.
Q. I thought I understood you to say something about
a secretary? A. I am the Executive Secretary.
Q. And who pays you? A. The Association.
Q. Now, does the State of Alabama pay anyone else
connected with your association? A. It pays no one.
— 675—
Q. Did you make a statement, sir, initially about a secre
tary or something that— A. If I did—
Q. —it supplied? A. I f I did, it was in error.
Q. Okay. Now, what about—you said the Association
consists of its member schools— A. Right.
Q. —is that correct? A. Right.
Q. What are the qualifications for membership in your
association? A. That a school be accredited by the State
Department of Education; that its principal make applica
tion to its Central Board of Control; and that this member
ship be accepted by the Central Board of Control.
Q. Now, approximately how many members have you
throughout the State? Member schools? A. Three hun
dred and sixty-seven.
Q. And how many of those are Negro? A. None.
728
Q. Have there ever been any Negro schools a member of
the Association? A. Not to my knowledge.
Q. How long have you been connected with the Associa-
ation? A. As Executive Secretary?
— 676—
Q. Yes, sir? A. Almost two years.
Q. And in any other capacity? A. That is the only time
under fulltime—in a fulltime capacity. I coached in one of
the high schools in the State for fourteen years, hut that is
not in an official capacity with the Association.
Q. All right; now, at any time, did the Alabama High
School Athletic Association have racial restrictions against
Negro members? A. Not to my knowledge.
Q. Have you ever had any Negro members? A. Have
we ever had any Negro members?
Q. Any Negro school members? A. Not to my knowl
edge.
Q. Has the Association—are Negro schools eligible for
membership? A. Yes.
Q. Has the Association made known to these Negro
schools that they are—that they will be considered for
membership? A. It hasn’t been asked.
Q. And have you volunteered this information? A. No.
Q. Has there been any discussion between your associ
ation and— strike that. Do you know whether or not there
is another athletic association in the State? A. Yes.
—677—
Q. What is the name of it? A. Alabama Interscholastic
Athletic Association.
Q. And what association—is that the association for
Negro schools? A. That is my understanding.
Q. Is there any working relationship existing between
the Alabama High School Athletic Association and the
729
Alabama Interscholastic Athletic Association? A. They
are both independent organizations. Up until this year, the
Alabama High School Athletic Association conducted some
of the officials’ clinics for the Alabama Interscholastic Ath
letic Association.
Q. Has there been any consideration of merger between
the two organizations? A. No.
Q. Do you foresee any difficulty in merging these two
athletic associations? A. I see no necessity of it.
Q. Do you see any necessity for the existence of the two
organizations? A. Well, each school has its own oppor
tunity to join the association that it chooses; and in years
past, those schools have chosen to join the respective as
sociations as far as I know.
Q. Well, now, actually, Mr. Scott, in years past, isn’t it
a fact that the Alabama High School Athletic Association
wouldn’t accept Negro schools before the court order? Isn’t
that a fact; if one had applied, they wouldn’t be accepted in
membership? A. I don’t know.
— 678—
Q. As—in addition to your membership, so far as schools
are concerned, do you have any individual members; that
is, are school principals members, and are coaches mem
bers, also? A. It is an organization made up of institu
tional membership.
Q. And if an institution becomes a member, does that
mean the coach and the principal of that school is also a
member? A. The principal is held responsible for the
action of his school, but the institution maintains the mem
bership.
Q. Well, now— A. It is not—it is not an organization
of individual memberships.
730
Q. But, now, how is the— A. We have an auxiliary of
the coaches’ association, which is an auxiliary of the Ala
bama High School Athletic Association; it is called the
Alabama High School Coaches’ Association.
Q. Now, that is an auxiliary or subsidiary of the Ala
bama High School Athletic Association? A. Right; right.
Q. Now, tell me, do you know whether or not the State
of Alabama State Department of Education provides the
Alabama Interscholastic Athletic Association with office
space as they do your association? A. It is my understand
ing that their offices are at Alabama State.
Q. Alabama State— A. College.
Q. — College? Now, how is the voting done; is each
school given a vote, or just what happens? A. Each school
— 679—
has one vote.
Q. One vote; and that vote is exercised by the coach or
by the principal? A. By the principal as head of the
school; he may designate this power to the coach or some
other faculty member.
Q. Now, is there any geographical regions of your as
sociations—of your association? A. Geographical regions ?
Q. Regions or zones or areas? A. It takes in those
schools in the State of Alabama.
Q. What I am asking is whether or not the State is in
turn divided into six zones? A. Various districts?
Q. All right? A. Athletic districts; eight in the State.
Q. Eight athletic districts; and what district is the Mont
gomery School System in? A. Third.
Q. Does your association sets up rules and regulations
with respect to athletic contests in the various schools?
A. That is true.
731
Q. What are these rules so far as eligibility is concerned?
A. Our eligibility rules deal with the age of a student, his
academic achievement, the number of semesters that he
has been in school, and the transfer group.
— 680—
Q. What control, if any, does your association have over
its members so far as playing teams who are not members
of your association ? A. WTe state in our rules that a school
may not play a school that is not a member of the Associa
tion if that school is eligible for membership in the Asso
ciation.
Q. And you say the only criteria for membership in the
Association is that the school be accredited by the State of
Alabama; is that right? A. And that its principal files
application for membership.
Q. All right. So now, if we take an example of Carver
High School, here in the City, that is accredited, if Lanier
High School as one of your members were to play Carver
High School, what action, if any, could your association
take against Lanier? A. If one of our schools plays any
school that is not a member of the Association, but is quali
fied to be a member of the Association and through their
own choosing is not one, then that school may be disciplined
for this action; it may be fined, it may be put on probation,
it could be suspended from the Association.
Q. Now, has your association or has any of the school
principals or school superintendents—
The Court: The effect of this rule, then, is that
no white—that no school that is a member—that any
school that is a member of your association that
plays a Negro school is subject to be suspended or
fined?
732
Witness: It has nothing to do with race, Judge,
at all.
— 681—
The Court: No; but you don’t have any Negro
schools that belong—
Witness: No.
The Court: — so the effect of it, then, if any mem
ber school of your association plays a Negro school
in the State, they are subject to be disciplined or
fined?
Witness: That presently is not a member of our
association if that school is eligible for membership.
The Court: You say they are eligible?
Witness: If they are eligible; yes, sir.
The Court: You say the Negro schools are eli
gible ?
Witness: If they are accredited, they are eligible;
yes, sir.
The Court: Yes; I understand.
Q. Now, correct me if I am wrong; I think you said that
they must be accredited, and they must be voted on by your
Central— A. Central Board accepts their application.
Q. All right; now, who is the Central Board? A. The
Central Board is made up of one representative from the
eight athletic districts making an eight-man Board.
Q. And actually, each one of these eight persons ulti
mately represents a school or is from a school? A. He
represents his district, but he is from a school; yes.
Q. That’s right. A. He is a school person; he is either
a principal, a teacher, or a coach in the school.
733
— 682—
Q. Now, in deciding upon or in acting upon membership,
is it more or less customary, if the school is accredited, is
it more or less routine for the governing body to act favor
ably on an application? A. To my knowledge, we have
never denied one.
Q. Never denied one? A. (Nodded to indicate affirma
tive reply)
Q. Now, has there been any discussion in any of your
meetings with respect to accepting Negroes, Negro schools
or predominantly Negro schools into membership? A. Has
there been any discussion of it ?
Q. Yes, sir? A. Well, I am sure that we have all dis
cussed Negro schools since the court order came into effect,
and this has been discussed from time to time.
Q. Has any action been taken? A. No action.
Q. As Executive Secretary—I think that is your title—
A. Right.
Q. —have you made any recommendations to your gov
erning body as to what action should be taken? A. We
have had no cause to.
Q. You do not consider the fact that you still have two
dual athletic systems in the State, there is no cause for it?
A. I consider the fact that we have not had a membership
— 683—
submitted and no reason to take action.
Q. I show you, sir—
The Clerk: Plaintiffs’ Exhibit number 1 for iden
tification.
Q. I show you Plaintiffs’ Exhibit 1 for identification;
will you identify this for us, please? A. This is a Hand
734
book of the Alabama High School Athletic Association
which lists in it the constitution and bylaws of the Asso
ciation.
Q. And that is the Association we have been talking
about? A. Yes, sir.
Mr. Gray: We offer that in evidence as Plaintiffs’
Exhibit 1.
Q. Now—
The Court: It will be admitted.
Q. —will you tell me, sir; is that document, Plaintiffs’
Exhibit 1, published by the Alabama State Department of
Education? A. It is listed as a publication of the Alabama
State Department of Education; I cannot speak prior to
my becoming Executive Secretary, but since I have been
Executive Secretary, the Alabama Athletic Association has
paid for that publication. It also lists in the front of it the
organization for health, physical education, and recreation
in the State.
The Court: The State Board pay for it, or who
pays for it?
Witness: We pay, or the Alabama High School
— 684—
Athletic Association, since I have been there, Judge.
Q. But it is considered an official publication of the State
Board of Education? A. That’s right.
Mr. Gray: I believe that’s all.
The Court: For the Government?
735
By Mr. Allen:
Q. Just one question; does anyone from your association
actually participate in the scheduling of athletic contests
between the different schools? A. That is left up entirely
to the schools.
Q. That is done by the authorities at the school, itself?
A. Right.
Mr. Allen: That’s all.
The Court: All right.
Cross Examination by Mr. Robison:
Q. Mr. Scott, what is the purpose of your organization?
A. The purpose of the Alabama High School Athletic Asso
ciation is to regulate and to control athletics in its member
schools.
Q. Is it comparable to the Southeastern Conference and
the Atlantic Coast Conferences and other conferences that
are controlled by the associations? A. This is the type
organization it is. These conferences, of course, are known
throughout the Nation in colleges; in high schools; various
- 6 8 5 -
national organizations, such as the N.C. double A., the
N.A.I.A., are in the various regions of the country, such
as Southeastern Conference, such as the Atlantic Coast
Conference, as the Big Ten, the Pacific Coast Conferences,
and things of that nature.
Q. What—how long—what was the history for the for
mation of this organization? A. I guess really we might
can go hack many, many years ago when in athletics there
was an awful lot of trouble, and I guess it goes hack to
the game of football, itself, which in the days of Teddy
736
Roosevelt and during his administration there was a con
gressional investigation committee formed to investigate
football as it was being played in the colleges of the Nation.
The reason for this was because of the old flying wedge
that was being used by football teams at that time and the
fact that so many people were being injured or killed with
the old flying wedge, so they set up a congressional inves
tigation committee, and as the story goes, football was
about to be banned from these institutions by the Congress
of the United States, and they called Knute Rockne, who
was then coach at Notre Dame, to testify before the com
mittee or to tell something about football, and in essence,
what Coach Rockne told them was that there had to be
some type of activity in the schools of the Nation that
would give every red-blooded American boy the oppor
tunity to go out and to compete in some type of combative
sport where there was contact, that this was an innate
— 686-
desire in people to— and particularly young people—to
strike back, to want to strike hack, and if it was not given
some avenue of escape through some type of organization,
it would manifest itself in the back alleys of the cities and
towns of the Nation with knives and blackjacks and brass
knucks and this type— and this type thing. So the com
mittee made the recommendation that a body be formed
to draw up rules whereby that this game could be played.
And in essence, this was the beginning of the N.C. double
A., the National Collegiate Athletic Association, which con
trols the athletics in the colleges and universities of the
Nation, of the land, today. And all of these other organi
zations had their beginnings in their regions and in their
states from the same—from this same cause. In essence,
the reason that the Alabama High School Athletic Asso
737
ciation was formed in the State of Alabama was so that
the people that were representing the schools would he
true students. Years ago, they brought them out of the
coal mines, they brought them from the saw mill, and they
brought them off the farm.
The Court: I believe that is enough of that; let’s
get along.
Mr. Robison: All right, sir.
Q. What activities do you conduct or is under the spon
sorship of your association with respect to coaches and so
forth for the conference? A. What activities?
— 687—
Q. Yes, sir? A. We conduct the All Star football games
Avhich are played at the University of Alabama each fall.
We also conduct, in connection with the University of Ala
bama, a coaches’ clinic held at the University in the fall.
Q. Do you also conduct schools with respect to referees
and officials for the games? A. We carry on an officials’
training program.
Q. Is race a factor in membership in your association?
A. No, sir.
Q. What— state to me again, what is the only require
ment for membership in your association? A. That a
school he accredited by the State Department of Educa
tion; that its principal submit an application to the Cen
tral Board of Control; and that the Board give this
application due consideration.
Q. Have you ever denied any application that has been
filed with your association where the student body was
predominantly of the Negro race? A. To my knowledge;
no.
738
Q. The requirement of your association, as I understand
it, is that if a member school plays a school which is not
a member or an application has not been filed for member
ship, then disciplinary action can be taken against that
school? A. Only— only if this school is eligible for mem
bership; if it is an unaccredited high school in the State,
then, of course, the schools may play them at their own risk.
— 688—
Q. You were asked about the Alabama Interscholastic
Athletic Association; are you familiar wth that associa
tion? A. Only that it is a comparable organization to the
Alabama High School Athletic Association.
Q. Does it have the same rules and regulations, to your
knowledge, with respect to member teams that the Ala
bama Athletic Association has? A. Basically, their rules
and regulations were copied from ours.
Q. Their rules and regulations were copied from yours,
basically? A. Yes, sir.
Q. So if a member of that association, that is, the Ala
bama Interscholastic Athletic Association, plays a school
that is not a member of that association or is not eligible
for membership with an application pending, then they can
take disciplinary action against their member school; is
that true? A. To my knowledge; that is true.
Q. You were asked if this was an official publication of
the State Board of Education; I ask you, is that an official
publication or an authorized publication by the State
Board, and if so, what is in it—what is the difference? A.
This is authorized by the State Board of Education, a pub
lication authorized by the State Board, meaning that it is
published and sent out to all of the schools in the State of
Alabama which are members of the Alabama High School
Athletic Association or any schools which have the organi
739
zation of health, physical education, and recreation in it.
— 689—
Q. Does the State Board of Education have anything to
do with the approval of these rules and regulations? A.
Not to my knowledge.
The Court: Why does it take the authority of the
State Board of Education to send this out; you say
they authorize you to do it?
Witness: The organization of health, physical
education, and recreation, Judge, is worked through
the State Department of Education in the Division
of Secondary Schools headed up by Dr. Blair. Mr.
Charlie Stapp is in charge of that program, and
athletics have always been a natural outgrowth of
the physical education program in the schools.
The Court: Considered—
Witness: Physical education is a required course
in the school; athletics, of course, is an extracur
ricular activity carrying no credit or no require
ment to it, and the rules and regulations and guide
lines of health, physical education is in that book
along with the rules and regulations of athletics, in
that athletics are a natural outgrowth of the physical
education program.
The Court: All right; let’s get along.
Q. Are the member schools in your association desegre
gated? A. Yes, sir.
Q. Do you recall the game played here in Montgomery
at which time Tuscaloosa had predominantly a Negro team
— 690—
on the field playing either Lee or Lanier? A. It had six
at one time out there, the best that I remember.
740
Mr. Robison: I believe that’s all.
The Court: Mr. Allen?
Redirect Examination by Mr. Allen:
Q. You mentioned that you conduct coaches’ clinics; have
there ever been any Negroes at those coaches’ clinics? A.
Yes, sir.
Q. How many and when? A. I couldn’t say exactly how
many; I have been going to those clinics for seventeen—
eighteen years, and to my knowledge, they have always
been in attendance; some have always been there.
Mr. Allen: All right; that’s all.
Mr. Gray: We have no further questions.
Mr. Robison: Like to ask you one further ques
tion.
Recross Examination by Mr. Robison:
Q. What is the purpose of the rule prohibiting a member
school in your association from playing a non-member
school of your association; is it race? A. No, sir; the
purpose of that rule is that all schools will play by the
same rules; in other words, that the age of the students
will be the same, that the academic requirements will be
the same, that the number of semesters spent in school
will be the same, and that the transfer rule would apply
— 691—
the same way, that they all play equally as far as those
students who represent them on the field are concerned
according to the eligibility requirements.
The Court: Does the Interscholastic Association,
the Negro association, have the same rule?
741
Witness: To my knowledge, they do, Judge.
The Court: All right.
Witness: Or similar rules.
The Court: All right. Anything else?
Mr. Allen: Nothing further.
The Court: Let me ask you a question or two.
Have you conferred with Rutland and Livings on the
eligibility of the players over there the first year
for the Jeff Davis School?
Witness: Only these students, Judge, which might
transfer.
The Court: Have you conferred with them on that
problem ?
Witness: With the County Board of Education
and these principals of the Montgomery city schools.
The Court: Have you conferred with the new
principal of the Jeff Davis School and the new coach
at the Jeff Davis School on the eligibility of their
players this first year?
Witness: For those that transfer from Lee or
Lanier; yes, sir.
The Court: And what did you all determine on
that?
— 6 9 2 -
Witness: We set up a rule whereby that those
students who are presently enrolled in Lee or Lanier
could transfer to the new school provided that they
live closer to the new school than they do to the
school they are now attending. Ordinarily, these
students would be ineligible to transfer from one
school to another, that is, transfer their athletic
eligibility.
The Court: And play the first year?
742
Witness: And play the first year.
The Court: And what did you determine as far as
Negro athletes were concerned1?
Witness: The court order takes precedence there
in that if a student is transferring for the first time
on a desegregated basis, that he is ruled eligible
to participate in that school, because the Board of
Education transferred him over there.
The Court: He doesn’t have any waiting period;
the Negro transferring doesn’t have any waiting pe
riod?
Witness: This has been the ruling we have gone
along with in our association.
The Court: That’s right; that is set out, of course,
in the court order.
Witness: That’s right; that is why these other
students were not considered, and only those schools
— those students from Lee and Lanier.
The Court: Yes. Do you know who was instru
mental in the publicity that leaves the impression
— 693—
that only athletes transferring that live close to
the Jeff Davis School will be eligible to play? Here
is one by Walter Massey that says that; I just
wondered if you knew who was responsible for that
interpretation of the rule?
Witness: No, sir; this is the first time I have seen
this article, Judge.
The Court: Uh, huh.
Witness: Of •;course, it is general knowledge,
and—
The Court: Would you say it was general knowl
edge that Negro athletes had a right to transfer
743
from publicity like that? If they didn’t live near
that school?
Witness: I don’t know how this might he inter
preted.
The Court: How do you interpret it along that
line?
Witness: Well, I thought it was common knowl
edge that—
The Court: How do you interpret that along that
line?
(Witness examined Exhibit.)
The Court: Pretty difficult to interpret, isn’t it?
Witness: Well, Judge—
The Court: So as—
Witness: —in my—in my opinion, all school peo
ple know about the court order.
The Court: What we are interested in is students
that may want to transfer and not school people
that have studied this court order and talked with
the Judges and the lawyers about it.
Witness: Yes, sir; of course, we don’t have any-
— 694—
thing to do with what they publish and how it is
published.
The Court: I don’t guess I am concerned in this
case with the zones that you all may have agreed on
as far as your transferrers from Lee and Lanier,
from your white schools; I wouldn’t think the court
would be concerned with that; that just has to do
with—I understand you have established some
zones?
Witness: Yes, sir; just for eligibility purposes.
74 4
The Court: That just has to do with your white
athletes—
Witness: That’s right.
The Court: —that are transferring?
Witness: That’s right; that is why we said Lee
and Lanier.
The Court: All right. That’s all I want to ask him.
Mr. Gray: I have no further questions. Plaintiffs
rest.
The Court: All right. You want to excuse this wit
ness?
Mr. Robison: Yes, sir.
The Court: You are excused.
Witness: Thank you.
(End of testimony of Herman L. Scott)
- 6 9 5 -
Court Reporter’s Certificate (omitted in printing)
745
Order Granting Expedited Hearing
(Filed March 12, 1968)
- 698-
In the
UNITED STATES COURT OF APPEALS
F oe the F ifth Circuit
No. 25865
M ontgomery County B oard of Education, et al.,
— versus—
Appellants,
Art,am Carr, Jr., a minor, by A rlam Carr, and Johnnie
Carr, his parents and next friends, et al.,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
B e f o r e :
Brown, Chief Judge, and
A insworth and Godbold, Circuit Judges.
B y the Court :
It is ordered that the joint motion of the parties filed
in the captioned cause for an expedited hearing and sub
mission of the appeal on the original record and on type
written briefs be hereby Granted, provided two (2) extra,
746
xeroxed copies of the original record are prepared after
the record has been appropriately indexed, numbered and
certified by the Clerk of the District Court, and are fur
nished by appellants for the use and convenience of the
Court.
Four (4) legible xeroxed copies of the typewritten briefs
prepared in the form required by this Court’s Rule 26
may be filed and exchanged by all parties by not later than
April 23, 1968, with appellants’ xeroxed brief to be filed
and served on all opposing parties by April 5, and with
appellees’ brief to be filed by not later than April 25. The
Clerk is authorized to calendar this case for hearing at the
earliest practicable date consistent with other require
ments of the docket.
- 6 9 9 -
District Court Clerk’s Certificate of Completeness of
Record, Dated March 20, 1968 (omitted in printing)
747
- 7 0 0 -
Notice o f Cross Appeal by Am icus Curiae
(Filed April 11, 1968)
I n th e
UNITED STATES DISTRICT COURT
F or th e M iddle D istrict of A labama
N orthern D ivision
Civil Action No. 2072-N
A rlam Carr, et al.,
Plaintiffs,
U nited S tates of A merica,
Amicus Curiae,
— v.—
M ontgomery Cou nty B oard of E ducation, et al.,
Defendants.
Notice is hereby given that the United States, amicus
curiae herein, hereby cross-appeals to the United States
Court of Appeals for the Fifth Circuit from the Orders
of the United States District Court for the Middle District
of Alabama, Northern Division, entered February 24, 1968
and March 2, 1968, which denied the requested relief that
the faculties of all new schools in Montgomery County be
fully desegregated.
748
— 701—
To allow sufficient time for the parties to reply prior
to the argument now set for May 6, 1968, in Atlanta,
Georgia, the United States will file one principal brief as
appellee and cross-appellant on April 15, 1968.
F ran k D . A lle n , J r .
Attorney
U. S. Department of Justice
—7 0 2 -
Certificate of Service (omitted in printing)
749
Argument and Submission
- 703-
Extract from the Minutes of May 6,1968
No. 25865
U nited S tates of A merica,
versus
M ontgomery County B oard of E ducation, et al.
On this day this cause was called, and after argument
by Nathan Lewin, Attorney, Department of Justice, for
appellant, and V. H. Robison, Esq., and Joseph Phelps,
Esq., for appellees, was submitted to the Court.
750
— 704—
Opinion and Judgment
Dated August 1, 1968
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
N o . 2 5 8 6 5
MONTGOMERY COUNTY BOARD OF EDUCATION,
ET AL,
Appellants,
versus
ARLAM CARR, JR., a minor, by ARLAM CARR,
and JOHNNIE CARR, his parents and next friends,
ET AL,
Appellees.
UNITED STATES OF AMERICA,
versus
Appellant,
MONTGOMERY COUNTY BOARD OF EDUCATION,
ET AL,
Appellees.
A p p e a ls fr o m th e U n ited S ta tes D istric t C ou rt fo r th e
M id d le D istric t o f A la b a m a
(August 1, 1968)
B efore G E W IN and T H O R N B E R R Y , Circuit Judges,
and E L L IO T T , D istrict Judge.
751
GEWIN, Circuit Judge: The United States and ap
pellees filed motions in the United States District Court
for the Middle District of Alabama on August 17, 1967,
and February 7, 1968, requesting the district court to
require appellants to take further steps to eliminate
the dual school system in Montgomery County, Ala
bama. Hearings were held on September 5, 1967 and
February 9, 1968. The district court entered its order
on February 24, 1968, amended March 2, 1968, granting
specific relief in the areas of faculty desegregation,
student teacher and substitute teacher desegregation,
school construction, student transportation, and stu
dent choices regarding newly constructed schools. This
appeal followed. We affirm the order of the district
court as hereinafter modified.
We see no need to recite the history of the school
board’s efforts to com ply with the constitutional man
date to desegregate its public schools. However, we
note that progress has been made and that the school
board has been complimented on its good faith efforts.
We do not wish unduly to emphasize or de-emphasize
good faith on the part of this particular board of educa
tion, but we do take note of the fact that this is the very
first time it has been before this court. This case does
not bear the “ many service stripes” mentioned in
United States v. Board of Educ. of Bessemer, 5 Cir.
1968, ____ F.2d ____ [Nos. 25809, 25810, 25811, June 3,
1968], See also Davis v. Board of School Com m ’rs of
Mobile, 393 F.2d 690 (5 Cir. 1968).’ In our view, good
— 705—
’ In D avis, the court mentioned the fact that the case involving
Moibile schools had been before the Fifth Circuit five times
since 1963. 393 F.2d at 691 n.l.
752
faith conduct on the part of any litigant in any court,
especially a court of equity and, m ore particularly, in
the sensitive area of desegregation, is a vital element
for appropriate consideration. Our feeling with respect
to good faith is buttressed by the recent decision of
the Supreme Court in Green v. School Bd. of New
K en t,____ U.S______ , 20 L.Ed.2d 716 (1968).2 Some five
times, during the period from 1964 to 1967, the district
court publicly complimented the M ontgomery County
School Board on its efforts toward achieving desegre
gation.3
- 706-
zThere is no universal answer to com plex problems of desegrega
tion; there is obviously no one plan that will do the job in
every case. The matter must be assessed in light o f the circu m
stances p resen t and the options available in each instance. It is
incumbent upon the school board to establish that its proposed
plan promises meaningful and immediate progress toward dis
establishing state-imposed segregation. It is incumbent upon
the district court to weigh that claim in light of the facts at
hand* 1 and in light of any alternatives which may be shown as
feasible and m ore promising in their effectiveness. Where the
court finds the board to be acting in good faith and the pro
posed plan to have real prospects for dismantling the sitate-
iimposed dual system “ at the earliest practicable date,” then
the plan may be said to. provide effective relief. Of course,
where other, more promising courses of action are open to
the board, they may indicate a lack o f good faith ; and at the
least it places a heavy burden upon the board to explain its
preference for an apparently less effective method'. 20 L.Ed.2d
at 724 (emphasis added).
sAt the conclusion of a hearing on May 25, 1967, the court made
the following statement from the bench:
I would like to say this to you here in the presence of
the plaintiffs and the Government lawyers; that I am
impressed that the Montgomery County Superintendent
of Education and members o f the Montgomery County
School Board of Education now evidence and have in
the past evidenced a desire and intent to operate a
school system here in Montgomery County as profes-
753
It is not necessary to discuss all of the provisions of
the district court’s order. Appellants challenge that
portion of the order which directs them (1) to assign
and transfer faculty members, student teachers, and
substitute teachers throughout all schools in the sys
tem and from one school to another according to a fixed
mathematical ratio based on race, and (2) to give af
firm ative preference to Negro students who choose to
attend a newly constructed high school. That part of
the court’s order challenged on appeal is set forth
below:
— 707—
sional educators and not as politicians. This present atti
tude is demonstrated here at this time; this past con
duct on the part of these officials has, without any
doubt, inured to the benefit of the students regardless of
their race, in Montgomery County that seek quality
education. And I have observed and I have been im
pressed that these officials have accomplished this
largely through — or this has been accomplished
largely through their efforts and without any serious
discord1 or disruption as far as any school is concerned.
This, when it is compared with some other similar
operations is a considerable feat, for which this com
munity, in my judgment, owes these school officials
their appreciation. It evidences a pattern of professional
conduct that other systems could, for the benefit of
their students, emulate.
Again on September 5, 1967, at the conclusion of a hearing
which apparently formed a partial basis for the order now
under consideration, the court stated from the bench:
You are dealing here with a school system that you
haven’t had to take to your appellate courts a single
time since you started. It is the only major school sys
tem in the State that you haven’t had to do it on; that
they have done what they have done in good faith, and
they had been ahead of most of your other systems in
every field.
754
I. F A C U L T Y A N D S T A F F
A. S ta tem en t of O b je c tiv e .
In achieving the objective of the school sys
tem , that the pattern of teacher assignm ents to
any particular school shall not be identifiable
as tailored for a heavy concentration of either
N egro or white pupils in the school, the school
board will be guided by the ratio of N egro to
white faculty m em bers in the school system as
a whole.
The school board will accom plish faculty de
segregation by hiring and assigning faculty
m em bers so that in each school the ratio of
white to N egro faculty m em bers is substan
tially the sam e as it is throughout the system .
A t present, the ratio is approxim ately 3 to 2.
This will be accom plished in accordance with
the schedule set out below.
B. S ch ed u le fo r F a cu lty D eseg reg a tio n .
1. 1968-69. A t every school with few er than
12 teachers, the board will have at least one
full-tim e teacher whose race is different from
the race of the m ajority of the faculty and staff
m em bers at the school.
A t every school with 12 or m ore teachers, the
race of at least one of every six faculty and
staff m em bers will be different from the race
of the m ajority of the faculty and staff m e m
bers at the school. This Court will reserve, for
— 708—
755
the time being, other specific faculty and staff
desegregation requirements for future years.
C. Means of Accomplishment.
If the school board is unable to achieve
faculty desegregation by inducing voluntary
transfers or by filling vacancies, then it will
do so by the assignment and transfer of teach
ers from one school to another.
D. Substitute Teachers.
Commencing in September, 1968, with the
1968-69 school year, the ratio of the number
of days taught by white substitute teachers
to the number of days taught by Negro sub
stitute teachers at each school during each
semester will be substantially the same as the
ratio of white substitute teachers to Negro
substitute teachers on the list of substitute
teachers at the beginning of the semester.
Commencing with the 1968-69 school year,
the board will not use an individual as a sub
stitute teacher in the Montgomery Public
Schools if he will consent to substitute only at
predominantly white schools or only at pre
dominantly Negro schools.
E. Student Teachers.
Commencing in September, 1968, with the
1968-69 school year, the ratio of white to Negro
student teachers each semester in each school
that uses student teachers will be substan-
756
tially the same as the ratio of white and Negro
student teachers throughout the system.
F. Night Schools.
Commencing June 1, 1968, the ratio of white
to Negro faculty m embers at each night school
will be substantially the same as the ratio of
white to Negro faculty m em bers throughout
the night-school program.
IV. JEFFERSON DAVIS HIGH SCHOOL,
PE TER CRUMP SCHOOL, AND SO U r^
LAWN SCHOOL
D. Honoring Choices.
The school board will honor the choices of
each Negro student who chooses to attend
Jefferson Davis High School during the 1968-
69 school year, in the absence of compelling
circum stances approved by the Court on the
school board’s motion.
The district court denied appellees’ request that the
ratio of white to Negro faculty m em bers in new
schools be approximately three to two in their first
year of operation. Appellees have cross-appealed on
this issue.
— 710—
I
ASSIGNMENT OF TEACHERS
It is clear from the record and briefs that appellants
fully recognize that they have the affirm ative duty to
757
desegregate the faculties throughout their entire school
system. They have been striving to carry out this duty
by seeking and encouraging voluntary transfers of
teachers and by requesting new teachers to accept
positions in schools where their race is in the minority.
Appellants further recognize that they have the legal
right to com pel faculty assignment if voluntary place
ment is not effective.4 However, appellants object to
the district court’s order requiring assignment of
teachers on the ground that such is not in keeping with
sound and quality school administration. We quote
from appellants’ brief:
In Beckett v. School Board of City of Norfolk.
Virginia, 269 F. Supp. 118, at page 139 (E.D. Va.
May, 1967) the Court stated, in considering
faculty desegregation:
However, in line with the most re
cent Wheeler case [Wheeler v. Dur
ham City Board of Education, 363 F.2d
738], the School Board has not adopted
— 711—
^Although appellants consistently argue for voluntary assignment
of teachers and staff and contend that “ sound and quality
school administration” favors voluntary assignment, the fol
lowing statement from appellants’ brief shows clearly that
they recognize their obligation:
These appellants fully recognize that they have the
affirmative duty to desegregate the faculty throughout
this school system to the end that “ the pattern of teacher
assignment to any particular school shall not be identi
fied as tailored for a heavy concentration of either
Negro or white pupils in the schools.” (R.p.370 and
U .S. v . J efferson C ou n ty B oard o f Education, 372 F.2d
836; aff’d en banc, 380 F.2d 385) The appellant recog
nizes further that they have the legal right to compel
faculty assignment if voluntary placement is not ef
fective.
758
the tactic of compelling a teacher to
transfer. Moreover, such a practice
would not he in accord with sound edu
cational principles. (Emphasis sup
plied)
The question of whether a school board is obligated
to assign teachers to schools where their race is in
the minority when efforts to persuade teachers volun
tarily to accept such positions fail, has recently been
before this court. United States v. Board of Educ. of
Bessemer, supra. That opinion answers the above ques
tion with an emphatic yes. We quote:
The School Boards do not meet their duty
by soliciting volunteers. For the fact remains
that the “ responsibility for faculty desegre
gation, just as the responsibility of student de
segregation, lies ultimately with the board, not
the teachers.” Davis v. Board of School Com
missioners of Mobile County, 5 Cir. 1968, 393
F.2d 690. So there will be no mistake about it
we spell out that Jefferson stands for the prop
osition that there is an affirmative duty on
the part of the School Boards to do everything
— the word is everything — within their power
to meet the decree-im posed complete de
segregation of faculties. It is not, it cannot be,
left to the voluntariness of teacher applicants
or transfers.
We therefore find no error in the court’s order requir
ing the assignment of teachers since efforts to achieve
faculty desegregation by voluntary means have failed.
— 712—
759
— 713—
II
FIXED MATHEMATICAL RATIO
Appellants strenuously object to the imposition of the
mathematical ratios contained in the district court’s
order. They contend that such ratios are arbitrary and
unwarranted in view of their extensive plans to de
segregate their faculties, their showing of good faith,
and the overall achievement of progress in the area.
In addition, appellants submit that a fixed ratio does
not take into consideration the availability of teaching
personnel or the com plexity of school administration,
and that it ignores the goal of quality education and
other similar factors which are inevitably involved in
the operation of a school system.
After extensive hearings, the court below found that
desegregation of faculties in the M ontgomery County
school system was lagging and that appellants had
failed to com ply with earlier orders of the court requir
ing full faculty desegregation. In order to rem edy the
lack of faculty integration, the court imposed specific
targets for the school year 1968-69 and, m ore specifical
ly, delineated what would be required for satisfactory
com pliance. Thus, under the district court’s order for
the school year 1968-69, most schools in Montgomery
County must have roughly one-sixth of the faculty and
staff o f a race different from that of the other five-
sixths. The school board will have achieved full com
pliance when the ratio of white to Negro teachers is
three to two in each school. At the outset we note that
760
the testimony of school officials indicates a need for
specific directives in the instant case.5
— 714—
5The following is an excerpt of the testimony of Associate Super
intendent W. S. Garrett:
Q. As part of your duties, have you been given the re
sponsibility, primarily, of carrying out faculty de
segregation?
A. Well, the superintendent has delegated the recom
mending of the best faculty members that I can come
by, and desegregation is a large — our faculty is a
large part of my responsibilities; not the only one,
but that has been discussed and — with the Board
and with the superintendent, and we have a plan to
accomplish this, have been working on it all year.
Q. Well, under your plan, when do you estimate that
faculty desegregation will be finally accomplished
in terms of the objective of the court order remov
ing —
A. Well, now, that is something I don’t know, because
I don’t know what the objectives o f the court order
are. That has never been laid down in any percentage
fashion that I know of. It says that you will have rea
sonable desegregation of faculty and that you will
strive toward having each faculty not recognizable
as being staffed for a particular race. That is what I
get out of it.
Q. Well, let —
A. So I — I can’t — this court order is in fairly
general terms; I can’t answer that question.
Q. Well, you made the statement about having schools
staffed so that they will not be recognizable as for
a particular race; when do you expect that that will be
accomplished?
A. Well, that would depend on what the Board’s defi
nition of that is, the court’s definition of that.
Q. Do you have a definition of that?
A. Not at this point; we have discussed that many times,
and I do not have a definition of — of what that
would mean.
Q. No one has told you, given you a definition in terms
of mechanics, in terms of numbers, none of your
superiors?
A. No, as far as I know, no other school personnel man
761
In United States v. Jefferson County Board of Educ.,
372 F.2d 836 (5 Cir. 1966), aff’ d en banc, 380 F.2d 385 (5
Cir. 1967), cert, denied, 389 U.S. 840 (1967), we dealt with
faculty desegregation. Following Jefferson the ques
tion of faculty desegregation has recently been before
this court on at least three separate occasions. Stell v.
Board of Educ. of Savannah, 387 F.2d 486 (5 Cir. 1967);
Davis v. Board of School Comm ’rs of Mobile, supra;
and United States v. Board of Educ. of Bessemer, supra.
We have continued to emphasize the responsibility of
school boards in achieving effective faculty desegre
gation. We have emphasized the desirability of their
doing so because of their expertise in the field of edu
cation. Nevertheless, we have made it clear that it is
the duty of district courts to require specific target
dates and accomplishments in order to ensure full
com pliance with all deliberate speed. Moreover, it is
clear from recent decisions of the Supreme Court that
the type of plan under which school boards should op
erate is a plan which works. Green v. County Bd. of
New Kent, supra; Monroe v. Board of Com m ’rs of
Jackson ,____ U.S______ , 20 L.Ed. 2d 733 (1968); Raney v.
Board of Educ. of G ould,____ U .S ._____ , 20 L.Ed.2d 727
(1968).6
- 715-
in America has. I have talked to many of them. What
we are striving to do is to make progress and keep
going and hope that somewhere along the line we
will have achieved the — what the court has in
mind. But if you will look at that court order, you
will see it doesn’t lay down the precise terms ex
actly what that means; it is a broad definition.
®In both G reen and M on roe faculty integration was an issue be
fore the district courts and the courts of appeals. The Supreme
Court made no pronouncement with respect to faculty inte
gration but apparently left that decision to the district courts
762
Immediately following the Brown decisions,7 em
phasis was placed on the desegregation of schools from
the point of view of the students. Faculty and staff de
segregation are more recent. While it is obvious that
we cannot tolerate the delay which has been ex
perienced with respect to the desegregation of stu
dents, the decisions, in dealing with faculty and staff,
have indicated “the likelihood of some lessons being
learned from experimentation.”8 In the case sub judice,
the district court concluded that M ontgomery County
had not fully complied with its orders to effectuate
desegregation of faculty, that the plan under which the
school board had sought to integrate the faculty was
— 716—
involved under the remand orders of the Courts of Appeals
in the two cases. The following is from the G reen decision:
The Court of Appeals for the Fourth Circuit, en banc,
382 F.2d 326, 338, affirmed the District Court’s approval
of the “ freedom -of-choice” provisions of the plan but
remanded the case to the District Court for entry of
an order regarding faculty “ which is much more specific
and more comprehensive” and which would incorporate
in addition to a “minimal, objective time table”
some of the faculty provisions o f the decree entered
by the Court of Appeals for the Fifth Circuit in United
States v. Jefferson County Board of Education, 372 F.2d
836, aff’d en banc, 380 F.2d 385 (1967).
20 L.Ed. at 722.
In M on roe the Supreme Court stated:
The Court of Appeals for the Sixth Circuit affirmed
except on an issue of faculty desegregation, as to which
the case was remanded for further proceedings.
20 L.Ed.2d at 738.
In R an ey the Court stated: “ Faculties and staff were and
are segregated.” 20 L.Ed.2d at 730. Faculty segregation or in
tegration is not mentioned further in the opinion.
7Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954), and
Brown v. Board o f Educ. of Topeka, 349 U.S. 294 (1955).
8S ee United States v. Board of Educ. of Bessemer, supra; U nited
States v. Jefferson County Bd. of Educ., supra at 894.
763
not adequate, and, therefore, that another m ore spe
cific plan was necessary.
It is our conclusion that the standards fixed by courts
with respect to faculty desegregation cannot be totally
inflexible. In none of the three recent cases cited above,
Stell, Davis, and Bessemer, has this court required
faculty integration according to a numerical or racial
percentage ratio. On the contrary, we have declined
“ to enhance Jefferson’s demands.”9 We do not intimate
.that there must always be a slavish and unswerving
adherence to the precise requirements of Jefferson,
but generally we have avidly em braced the idea of
circuit-wide uniformity and have declined “to tinker
with the model decree.” 10 As a matter of fact, after the
decision of the district court in this case, we have
actually rejected the idea of requiring mathematical
or racial percentage ratios in dealing with faculty and
staff. We quote from the Bessemer decision:
— 717—
aS ee United States v. Board of Educ. o f Bessemer, supra.
i°A s we pointed out in United States v. Board of Educ. of Besse ̂
mer, supra:
We must steel ourselves against the importunities to
import inequality by judicial modifications to meet
some supposed need of a locality. One immediate con
sequence of such a practice would be to encourage
others to try their hand. And soon w e’d be back in the
school business again — a role for which we sire not
equipped or competent toi handle. The efforts to reduce
the demands of Jefferson we’ve resisted so far. S ee,
e.g ., Barnhardt v . M eridian M unicipal Separate School
D ist., 5 Cir. 1968, ------------ F.2d — .— -— [No. 25083,
April 24, 1968]; G aines v . D ou gh erty C ou n ty B oard o f
Education, 5 Cir. 1968,-------------F .2 d -------------- [No. 25776,
March 14, 1968]; S tell v . Board o f Public Education fo r
the C ity o f Savannah , 5 Cir. 1967, 387 F.2d 486 [No.
23724, December 4, 1967],
764
We are requested to do both too much and
too little. The school boards with a sincerity of
counsel we do not question, urge us, in effect,
to do nothing specific either in terms of target
dates or racial percentage ratios, or both. The
government, on the other hand, proposes that
we direct the entry of a proposed sweeping,
detailed decree which it frankly acknowl
edges adds to and extends Jefferson. We think
neither alternative is wise.
We stated further:
Even though Jefferson was more equivocal on
faculty integration and expressed the likeli
hood of some lessons to be learned from ex
perimentation, we think we should apply an
even hand to deny requests to enhance Jeffer
son’s demands.
The decree under review states that schools with
twelve or more faculty m em bers must begin the school
year 1968-69 with at least one of every six faculty and
staff m em bers being of a different race from the
m ajority. Because of the difficulties inherent in achiev
ing a precise five-to-one ratio, this part of the district
court’s order should be interpreted to mean substan
tially or approximately five to one. The decree is m odi
fied to this extent in order to allow a degree of flexibili
ty in the application of the 1968-69 interim require
ments.
— 718—
765
Additionally, whether the school board is in full
com pliance should not be decided solely by whether
it has achieved the requisite numerical ratios.” The
assignment of faculty and other staff to particular
schools need not m irror the total faculty of the entire
system as related to race or color. There must be a
good faith and effective beginning and a good faith
and effective effort to achieve faculty and staff de
segregation for the entire system. Although a ratio of
substantially or approximately five to one is a good
beginning, we cannot say that a ratio of substantially
three to two, simply because it m irrors the racial bal
ance of the entire faculty, must be achieved as a final
objective.'2 Consideration must be given to the avail- *
— 719—
* 'Various district courts have entered orders that contain specific
standards and at least one appellate court has approved such
an order. Coppedge v. Franklin County Bd. o f Educ., 273 F.
Supp. 289 (E.D.N.C. 1967); Kier v. County School Bd. of Au
gusta, 249 F. Supp. 239 (W.D.Va. 1966); Board of Educ. of
Oklahoma City v. Dowell, 375 F.2d 158 (10 Cir. 1967). Also,
though the Eighth Circuit refrained from imposing an exact
formula in Kelley v. Altheimer, 378 F.2d. 483 (1967), it
specifically called the district court’s attention to percentage
formulas set by other district courts.
' 2After the decision in Kelley v. Altheimer, supra note 11, the
Eighth Circuit decided the case of Yarbrough v. Hulbert-West
Memphis School Bist., 380 F.2d 962 (8 Cir. 1967). In Y arbrou gh
that circuit rejected the idea of a mathematical formula and
a fixed timetable and placed this interpretation upon its prior
decision in A lth eim er :
We say in passing that this panel does not regard
A lth eim er as imposing any rigid mathematical formula
which, in certain situations, could itself be arbitrary
and without educational significance. We regard that
case as one requiring a reluctant school board to get
on with its task of achieving faculty and staff desegre
gation and assignment to comport with equitable and
constitutional requirements divorced from racial con
766
ability of teaching personnel, sound school adminis
trative procedure, and other important factors. Con
sequently, under the facts and in the circumstances of
this case, the order will be modified accordingly and
the numerical ratios set forth in the district court’s
order and decree will be eliminated. This modification
does not affect the five-to-one interim ratio for the
school year 1968-69 as hereinabove modified.
Nothing we say in this opinion shall be construed to
mean that we authorize, permit, approve or condone
the consideration of race or color as a factor in the
'employment, assignment, reassignment, promotion,
demotion or dismissal of full-time teachers, substitute
teachers, student teachers or other professional staff
m em bers except to the extent that the same may be
taken into account for the purpose of counteracting or
correcting the effects of racial segregation in any dual
school system. Any conduct by any school board which
is based on racial discrimination is unauthorized, dis
approved and will not be tolerated. It is hoped and
believed that experience will teach effective ways and
means of achieving an ideal racial balance. School
boards must not use excuses to delay the achievement
of full faculty and staff desegregation. They have the
responsibility and should exercise the ingenuity to
achieve a proper racial balance. We have repeatedly
asserted that school boards are better equipped to
achieve these aims than are the courts; but, if they
- 720-
siderations. Numbers and percentages per se are not
the ultimate answer but, up to a point, they touch
upon realities. This, we think, is the significance of
A lth eim er .
767
fail or refuse to act, they should now fully realize that
the courts will require action.
I l l
J E F F E R S O N D A V IS H IG H SCHOOL
F rom the evidence presented the district court
found that the newly constructed Jefferson D avis High
School, scheduled to com m ence operations by the 1968
school year, further perpetuated the dual school sys
tem . M ore specifically, the court found that the loca
tion of the school in a substantially all-white neighbor
hood, the enrollm ent capacity of the school, the publici
ty surrounding the recruitm ent of white personnel, and
the scheduling of athletic events established the new
high school, from its very inception, as a “ white”
school. Indeed, the court found that the conduct of the
school board relating to the new high school was “m ost
aggravating.” In order to com bat the actions of school
authorities and to eradicate the im pression that the
new air-conditioned Jefferson D avis High School was
to be an exclusively white school, the district court
decreed that the school board will honor the choice of
each N egro student who chooses to attend Jefferson
High during the 1968-69 school year.
Appellants contend that requiring affirm ative racial
preference to be given to Negro students for attend
ance in the Jefferson D avis High School is unw ar
ranted. They subm it that the school board did not plan
the new high school exclusively for white children.
They state in their brief that the school board’s cur
rent plans call for the em ploym ent of seven Negro
— 721-
768
teachers in the school. Further, they point to the fact
that the school will open on a “ freedom of choice”
basis. To date 150 Negro students have chosen to attend
the high school which has a capacity of 967 students.
Appellants state to the court in their brief that these
Negro choices will be honored in accordance with the
provisions of the school board’s plan.
We have examined the record and conclude that the
findings of the district court that various actions on
the part of appellants created the impression that the
Jefferson Davis High School was intended to serve a
predominately white student body is supported by
som e evidence. We conclude that the district court’s
decree was designed to overcom e the impact of the
school board’s discriminatory conduct as found to ex
ist by the court. The decree requires the school board
to honor the choice of each Negro student “ in the ab
sence of compelling circum stances approved by the
court on the School Board’s motion.” We cannot be
certain as to the court’s intended meaning of the term
“ compelling circum stances.” We interpret the term
to em brace those reasons which are inherent in and
are supported by proper standards of sound school ad
ministrative procedure, giving due consideration to all
factors and circum stances which are proper to be
considered in passing upon such choices.
IV
FACULTY RATIOS IN NEWLY CONSTRUCTED
SCHOOLS
— 722-
Appellees contend that the district court committed
769
error in not requiring im m ediate com pliance with the
three-to-two ratio in schools which will com m ence op
eration in 1968. They submit that there would be few er
adm inistrative problem s if com plete faculty desegre
gation were achieved at the inception of a new school.
How ever, in the court’s order of M arch 2, 1968, it spoke
approvingly of perm itting the school board to achieve
the ultim ate objective of a com pletely desegregated
school system gradu ally. The court stated that grad
ualism had been found to work quite successfully in
the past and that gradualism was contem plated by the
court in accom plishing the ultim ate objective. W e
cannot say that the court’s decision to refrain from re
quiring full faculty integration in new schools is erron
eous.
The order of the district court is affirm ed as herein
modified. The Clerk is directed to issue the m andate
forthwith.
A F F IR M E D A S M O D IF IE D .
T H O R N B E R R Y , Circuit Judge, concurs except as to
the m odifications of num erical ratios and reserves the
right to dissent as to such m odifications at a later date.
- 723-
770
JUDGMENT
This cause came on to be heard on the transcript of the
record from the United States District Court for the Mid
dle District of Alabama, and was argued by counsel;
On Consideration W hereof, It is now here ordered and
adjudged by this Court that the order of the District Court
appealed from is modified, in accordance with the opinion
of this Court, and as modified, said order be, and the same
is hereby, affirmed. The Clerk is directed to issue the man
date forthwith;
It is further ordered and adjudged that the appellants,
Montgomery County Board of Education, and others, be
condemned to pay two-thirds of the costs in this Court,
and appellees, United States of America, and others, be
condemned to pay one-third of said costs for all of which
execution may be issued out of the said District Court.
— 724—
August 1,1968
T hornberry, Circuit Judge, concurs except as to the modi
fications of numerical ratios and reserves the right to dis
sent as to such modifications at a later date.
Issued as Mandate: Aug 11968
-725-792—
Petition’s for Rehearing En Banc (omitted in printing)
771
— 793—
Dissenting Opinion of Thornberry, C.J.,
Dated October 21 , 1968
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
N o . 2 5 8 6 5
MONTGOMERY COUNTY BOARD OF EDUCATION,
ET AL,
Appellants,
versus
ARLAM CARR, JR., a minor, by ARLAM CARR,
and JOHNNIE CARR, his parents and next friends,
ET AL,
Appellees.
UNITED STATES OF AMERICA,
Appellant,
versus
MONTGOMERY COUNTY BOARD OF EDUCATION,
ET AL,
Appellees.
Appeals from the United States District Court for the
Middle District of Alabama
(October 21, 1968)
772
Before GEWIN and THORNBERRY, Circuit Judges,
and ELLIOTT, District Judge.
THORNBERRY, Circuit Judge, dissenting:
The imposition of a specific ratio for each school as
the ultimate objective of faculty integration is a new
step for this Circuit, but it represents the considered
judgment of a district judge who was familiar with
the Montgomery schools, had heard testimony, and
was making an honest effort to advance the conver
sion to a unitary racially nondiscriminatory system
as required by the Constitution. Having found the ob
jections to this part of the decree rather unpersuasive,1
I would affirm the district court. To the extent that
the m ajority have entered modifications, I respect
fully and in all deference dissent.
— 794—
'The school beard acknowledges that it must desegregate faculty so
that no school is identifiable as being tailored for a heavy con
centration of Negro or white students, but says that specific
ratios are not required by the cases and would be achieved at
the cost of quality education. Also, it is predicted that there
will be a general exodus of teachers to other parts of the state.
The latter point seems to assume that which is not the case,
namely, that school boards in other parts Gf the state are not
obligated to integrate the faculty of each school. As I try
to show by this dissent, nothing in the cases precludes numeri
cal ratios. Indeed, the cases require district courts to devise
specific provisions to implement the general requirements of
J efferson . The final argument that quality education w ill be
sacrificed seems to be based more on speculation than evi
dence. I would point out that the district court’s order requires
by way of a final objective that the ratio of white to Negro
teachers in each school be “ substantially the same as it is
throughout the system.” Once the job has been largely ac
complished, i.e., once the three-to-two ratio has been ap
proached in each school, I think the language of the decree
leaves room for flexibility based on administrative necessity.
773
In Jefferson County, this Court stated the im por
tance of faculty integration as forcefully as our lan
guage permits:
Yet until school authorities recognize and car
ry out their affirmative duty to integrate fa
culties as well as facilities, there is not the
slightes' possibility of their ever establishing
an operative nondiscriminatory school system.
372 F.2d at 892. The general obligations of local boards
were articulated, but the formulation of more specific
provisions, i.e., provisions that would ultimately get
the job done, was left to the boards and district courts:
It is essential that school officials (1) cease
practicing racial discrimination in the hiring
and assignment of new faculty m em bers and
(2.) take affirmative programm atic steps to
correct existing effects of past racial assign
ment. If these two requirements are prescrib
ed, the district court should be able to add
specifics to m eet the particular situation the
case presents. (Emphasis added)
372 F.2d at 893. In this case, the district judge saw in
the record a lack of progress in the crucial area of
faculty integration2 and a need for specific directions.
His solution was to set a three-to-two ratio as the
ultimate objective for each school, and I see no basis
in the record or the cases for modifying his determina
tion. To be sure, he was experimenting, but I believe
- 795-
zThe latest figures indicate that 39 of 1,365 teachers in the system
are teaching in schools of the opposite race.
774
this to be experimentation within the spirit of J e ffe r
son C ou n ty.
I do not regard U nited S ta tes v . B oa rd of E d u ca tion
of B e s s e m e r as good authority for eliminating the
numerical ratios. While language in that opinion sug
gests the Court was not disposed to deviate in either
direction from the J efferso n decree, it must be rem em
bered that the district judge had not directed the
board to go beyond the stage of allowing voluntary
transfers of teachers willing to teach in schools of the
opposite race. Being unfamiliar with the school sys
tem and having before it a record over a year old,
the appellate court could do no more than impose the
J effe r so n decree with emphasis on the point that the
school board must reassign teachers if the desired re
sults are not achieved through voluntary transfers.
Unlike a district judge who has detailed first-hand
knowledge of schools and school officials in his area,
our Court simply is not equipped at this time to de
termine specific objectives. Where a district Judge
has formulated specific provisions on the basis of a
record, it is contrary to our decisions to eliminate
them in favor of m ore general provisions. As stated
by this Court in a civil rights case of another kind, a
district court “ has not m erely the power but the duty
to render a decree which will so far as possible elimi
nate the discriminatory effects of the past as well as
bar like discrimination in the future.” P u llu m v.
G r e e n e , 5th Cir. 1968, ____ F.2d ____ [No. 25389, June
18, 1968], quoting from L ou isia n a v . U n ited S ta tes , 380
U.S. 145 at 154, 85 S.Ct. 817 at 822.
— 796—
775
- 7 9 7 -
Opinion on Petitions for Rehearing En Banc
Dated November 1, 1968
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
N o . 2.5 8 6 5
MONTGOMERY COUNTY BOARD OF EDUCATION,
ET AL,
versus
Appellants,
ARLAM CARR, JR., a minor, by ARLAM CARR, and
JOHNNIE CARR, his parents and next friends, ET AL,
Appellees.
UNITED STATES OF AMERICA,
versus
Appellant,
MONTGOMERY COUNTY BOARD OF EDUCATION,
ET AL,
Appellees.
Appeals from the United States District Court for the
Middle District of Alabama.
ON PETITIONS FOR REHEARING EN BANC
(Novem ber 1, 1968)
776
Before GEWIN and THORNBERRY, Circuit Judges,
and ELLIOTT, District Judge.
PE R CURIAM: The Petitions for Rehearing are DE
NIED and the Court having been polled at the re
quest of one of the m embers of the Court and a m ajori
ty of the Circuit Judges who are in regular active
service not having voted in favor of it, (Rule 35 Fed
eral Rules of Appellate Procedure; Local Fifth Circuit
Rule 12) the Petitions for Rehearing En Banc are also
DENIED.
Before BROWN, Chief Judge, WISDOM, GEWIN,
BELLV THORNBERRY, COLEMAN/’ GOLDBERG,
AINSWORTH, *GODBOLD,'> DYER, SIMPSON, CLAY
TON* and MORGAN, Circuit Judges*
BROWN, Chief Judge, with whom WISDOM, THORN-
BERRY, GOLDBERG, and SIMPSON, Circuit Judges
join, dissenting:
I dissent from the denial of the rehearing en banc.
In pursuing the ideal of Circuit-wide uniformity
which is enhanced by tinkering as little as possible
“ with the m odel decree” of Jefferson I and II' as was
— 798—
•Judge Clayton did not participate in the vote on rehearing en banc
due to illness.
’ United States v. Jefferson County Board of Educ., 5 Cir., 1966,
372 F.2d 836 (Jefferson I) a ff’d en banc, 5 Cir., 1967, 380 F.2d
385 (Jefferson II), cert, denied sub n om ., Caddo Parish School
Bd. v. United States, 1967, 389 U.S. 840, -------- S.Ct. -------- ,
-------- L .Ed.2d----------
777
so recently reiterated in Bessemer,z the panel decision
mistakenly concludes that Bessemer holds that Jeffer
son and the model decree forbid the District Judge
from fixing numerical-percentage ratios of teacher
\
integration. The mistake is unfortunate because in the
name of uniformity it begets disparity, not just Cir
cuit-wide, but within the single state of Alabama.
Certainly Jefferson lays no such restraint on the
District Judges who are on the firing line — just the
opposite was declared. “ We anticipate that when dis
trict courts and this Court have gained more experi
ence with faculty integration, the Court will be able to
set forth standards more specifically than they are set
forth in the decrees in the instant cases. * * * [T]he
district court should be able to add specifics to meet
the particular situation the case presents.” Jefferson
I, 372 F.2d at 893-94.
Any such prohibition would be out of character
with the dominant theme so simply expressed and
which has now both weathered the storm of certiorari
and enjoys the judicial compliment of acceptance.
For we there declared, “ The. only school desegregation
plan that meets constitutional standards is one that
works.” Jefferson I, 372 F.2d at 847.* 3
— 799—
zUnited States v. Board of Educ. of Bessemer, 5 Cir., 1968, —
F .2d -------- , [No. 25809, June 3, 1968],
3Different only in phrasing was this statement:
“As the Constitution dictates, the proof of the pud
ding is in the eating: the proof of a school board’s com
pliance with constitutional standards is the result— the
performance. Has the operation of the promised plan
actually eliminated segregated and token-desegregated
schools and achieved substantial integration?” 372 F.2d
at 894.
778
And in May 1968 — two months before Carr — that
is exactly what the Supreme Court said in Green:*
“ The burden on a school board today is to com e for
ward with a plan that promises realistically to work,
and promises realistically to work now.” ------- U.S. at
, 88 S.Ct. at , 20 L.Ed.2d at 724.
Unfortunately, if not tragically, the panel’s decision
recognizes that the School Board’s indefinite plan will
not work. “At the outset we note that the testimony of
school officials indicates a need for specific directives
in the instant case.” * 5 As corroboration of this candid
confession the Court then footnotes (n. 5) extensive
testimony of a responsible m em ber of the school board.
Superintendent Garrett explicitly states that he does
not even know what the objectives of the earlier Dis
trict Court order are, when faculty desegregation will
be complete, and that he and the Board have been un
able to arrive at a workable definition of the model
decree’s standard of a “ faculty not recognizable as
being staffed for a particular race.”
Specifics are needed. Specifics are needed by the
•school administrators. Specifics are needed by the
Negroes who have waited these 14 years for “ a bona
fide unitary system where schools are not white schools
or Negro schools — just schools” 6 — and who must
now wait for an undefined time for the tell-tale mark
— 800—
4Green v. County School Bd. of New Kent County, Va., May 27,
1968, __ -__ U.S. ______ , 88 S.Ct. 1689, 20 L.Ed 2d 727.
sMontgoirnery Bd. of Educ. v. Carr, 5 Cir., 1968, -------F.2d— ,
_____ [No. 25865, August 1. 1968, slip opinion at 10-11],
6jefferson I, supra, 372 F.2d at 890.
779
of segregated faculties to pass away. Specifics are
needed by children, Negro and white alike, who are
entitled to witness, feel, and participate in the con
tinuing lesson of a constitutional order that is color
free.
— 801—
Specifics — imperatively needed — are not forbidden
by Bessemer.
The language the Court there used7 was geared very
carefully to that case. The decree proposed by the
Government had never been submitted to the District
Judge. It was a decree for us as a Court of Appeals to
enter as a binding mandate on the District Judge.
Worse, it was a decree constructed on assumed racial
statistics and ratios for application over a period of
three years in no way covered or substantiated by a
record which was then over a year old and stale, if not
silent, on what had been happening.
But it is a mistake to think that this was an acquies
cence in the Board’s suggestion that it all be left as it
had been in the past — and now seems to be left for
Montgomery — to the good faith efforts of the school
board.
7“We are requested to do both too much and too little. The school
boards * * * urge us, in effect, to do nothing specific either
in terms o f target dates or racial percentage ratios, or both.
The government, on the other hand, proposes that we direct
the entry of a proposed sweeping, detailed decree which it
frankly acknowledges, adds to and extends J efferson .” Bes
semer, supra , -------- F.2d at -------- [No. 25809, June 3, 1968, slip
opinion at 11],
780
But we did do four things. The first was to rule out
the voluntary approach. The second was to fix an im
mediate target date, for the School Board to report
specifically what it had done and would do for the
school year 1968-69. The third was to fix the date —
implicit in Jefferson — for full compliance, as the be
ginning of the school year 1970-71. Fourth, we declared
that since Negroes were not to be required to wait
until “ C-day” — 1970-71, to see the evidence of com
pliance, we sounded in the plainest of words that
specifics were now the order of the day. Specifics in
June-August for the school year 1968-69. More so,
specifics for the succeeding year 1969-70, leading to the
clim ax of September 1970.8
Loath as Judges are to articulate constitutional
goals or actions in the oft-disparaged m echanical
terms of arithmetic, this is an area where it is not the
spirit, but the bodies which count. Any less inevitably
leaves perform ance to good faith. Good faith is, of
course, needed. But good faith is not, and cannot be,
the standard. Now, and each term, each school year
it com es down to figures. The result is in figures. If
the result is satisfactory it is because of numbers, not
— 802—
s “This leaves the problem cf the ultimate ‘C Day.’ We think it en
tirely consistent with J efferson to say that full compliance
should be reached by the opening of the school year 1970-71.
But since that is just two school years away and neither the
Court nor the Negro plaintiffs should have to run the risk of
an announced failure on the eve of school opening in 1970-71
it is perfectly evident that the District Judge in the forthcom
ing June-August proceedings must exact or impose specific
targets. That will be repeated, only more so, as time marches
on into 1969, then into 1969-1970.” Bessemer, supra, -------- F.2d
at -------- [No. 25809, June 3, 1968, slip opinion at 16].
781
the effort or subjective motivation. If the result is un
satisfactory it is likewise because of numbers. The
numbers — i.e. the numerical percentage ratios —
need to be fixed. Once fixed, the Court can always de
termine whether a good faith effort o f com pliance has
been made. But good faith there is relevant to com
pliance, not as an element in fixing the standard.
The statistics in this record are abundant and
graphic. Without passing judgment on motives or per
form ance the figures of February 1968 either undis
puted or found by the Court show that integration of
the student body under the freedom of choice plan has
been slight.9 Faculty integration reveals a similar lack
of numerical progress much of which, the District
Judge expressly finds, is a result for which the Board
must bear the full responsibility.10
— 803—
®The District Court found that of 25,000 white children and 15,000
Negro children, there were approximately 550 Negro children
attending traditionally white schools. No white children were
attending traditionally Negro schools. These facts, as to which
there is no substantial contradiction, as well as the facts and
quotations in n.10 are from the Memorandum Opinion of the
United States District Court for the Middle District of Ala
bama, filed February 24, 1968.
'°The teacher force comprised approximately 550 Negro teachers
and 815 white teachers. Only 32 classroom teachers in the sys
tem were teaching pupils in schools that were predominantly
o f the opposite race. “ Practically all the faculty desegregation
in the system has occurred in the high schools. While there
is some faculty desegregation in the elementary schools in the
system, it is extremely small. There has been very little, if any,
faculty desegregation in the schools located outside the City
on Montgomery.” Of the 26 white teachers hired since Septem
ber 1967, only 6 or 7 have been placed in predominantly Negro
schools. A ll six Negro teachers hired since that date were as
signed to predominantly Negro schools. “ The evidence further
reflects that the defendants have failed to take any appropriate
782
After extensive hearings, the District Court, dis
satisfied with this lack of demonstrable accom plish
ment, imposed specific targets for the school year
1968-69 and m ore specifically, delineated what would
be required for satisfactory com pliance in order to
achieve full faculty integration. The system-wide ratio
of white to Negro faculty m em bers is approximately
3 to 2. To attain schools unidentifiable as to race the
Judge laid down the standard of a system-wide facul
ty ratio of 3 to 2. For the school year 1968-69 the Court
set an interim com pliance ratio of 5 to 1. In addition,
the District Court imposed for the 1968-69 school year,
the system-wide 3 to 2 faculty ratio for use in assign
ing substitute teachers, student teachers, and night
school faculty m em bers (using the night school facul
ty ratio).
— 804—
steps to insure that substitute teachers are placed on a non-
racial basis. No Negro has yet been a substitute teacher in a
traditionally white school in Montgomery County.” During the
1967-68 school year, white substitute teachers were employed
over 2,000 times— only 33 o f them in traditionally Negro
schools. “Defendants have adopted no adequate program for
the assignment of student teachers on a desegregated basis.
None of the approximately 150 students teachers used in the
Montgomery County School System in the fall of 1967 were
assigned to schools predominantly of the opposite race. Four
Negro student teachers have very recently been assigned to
predominantly white schools. There has been no faculty de
segregation in the night schools, operated by the Montgomery
County School System.” Moreover, on findings, not here chal
lenged, the record failed to show any excuse for this lack of
tangible accomplishment. “The evidence does not reflect any
real administrative problems involved in immediately desegre
gating the substitute teachers, the student teachers, the night
school faculties, and in the evolvement of a really legally ade
quate program for the substantial desegregation of the facul
ties of all schools in the system commencing with the school
year of 1968-69.” See n. 9 supra.
783
But much of this was, I fear, undone by the panel.
Recognizing in so many words the necessity for “ spec
ific directives in the instant case” the Court’s opinion
does not afford that guidance and, worse, makes dras
tic alterations in the Trial Judge’s record-based, care
fully constructed program. Although the change in
the formulation of the 1968-69 ratio of 5 to 1" m ay be
slight in operative effect it does not stand alone. Com
pletely eliminated is the 1968-69 ratio of 3 to 2 for sub
stitute, student, and night school teachers. More signi
ficant is the complete elimination of the 3 to 2 ratio as
the Jefferson goal of a school “ unidentifiable as to
race.” Indeed, it is rejected for all time under the
vague notions12 which permit subjective discrimina
tion of the kind so characteristic of the regional glacial
m ovement toward integration. Right along with this
is the failure, either on original disposition or now in
response to an express request n the motion for re
hearing, that full compliance be required by the open
ing of the school year 1970-71 as fixed by “ C day” in
Bessemer.
— 805—
>>“Because of the difficulties inherent in achieving a precise five-
to-one ratio, this part of the district court’s order should be in
terpreted to mean substantially or approxim ately five to one.
The decree is modified to this extent in order to allow a degree
of flexibility in the application of the 1968-69 interim require
ments.” Carr, supra, -------- F.2d at -------- [No. 25865, August 1,
1968, slip opinion at 15).
'2 “Although a ratio of substantially or approximately five to one
is a good beginning, we cannot say that a ratio of substantially
three to two, simply because it mirrors the racial balance of
the entire faculty, must be achieved as a final objective. Con
sideration must be given to the availability of teaching per
sonnel, sound school administrative procedure, and other im
portant factors.” Carr, supra, -------- F.2d at _____ [No. 25865,
August 8, 1968, slip opinion at 16-17],
784
Within scarcely 90 miles that separates the Birming
ham area from Montgomery there are two separate
standards and, perhaps, two separate hopes.
We owe both to those to be com m anded by, and those
who enjoy the benefit of, court direction, an obligation
to speak with a single voice. Whatever might be the
ultimate views on the merits, law and all suffer when
the Court, from “ an inability to muster a m ajority,’ ” 3
cannot make up its institutional mind.
DYER, Circuit Judge:
I join in dissenting to the denial of a rehearing en
banc.
— 806—
isCarter v. United States, 5 Cir., 1963, 325 F.2d 697, 707 (en banc)
(dissenting opinion), cert, denied, 1964, 377 U.S. 9 4 6 ,-------- S.Ct.
_____ , 12 L.Ed. 2d 308.
785
- 8 0 7 -
Clerk’s Certification as to Record, Dated November 25,
1968 (omitted in printing)
-8 0 8 -
Order Granting Certiorari
I n the
SUPREME COURT OF THE UNITED STATES
October Term, 1968
U nited States of A merica,
Petitioner,
Montgomery County Board of Education, et al.
and
A rlam Carr, Jr., et al.,
Petitioners,
v.
Montgomery County Board of E ducation, et al.
The petitions for writs of certiorari are granted. The
cases are consolidated and a total of two hours is allotted
for oral argument.
March 3, 1969
RECORD PRESS, INC. — 95 Morton Slreet — New York, N. Y. 10014 — (212) 243-5775
<*§§&*> 38