Davis v. Mobile County Board of School Commissioners Brief for Appellants

    In the

Htut£& # tate  (Enurt 0! Appeals
F or the F ifth Circuit

No. 22759

B irdie Mae Davis, et al.,

— v .—
Appellants,

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

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

Jack Greenberg 
Derrick A. Bell, Jr.

10 Columbus Circle 
New York, New York

V ernon Z. Crawford 
578 Davis Avenue 
Mobile, Alabama

Clarence E. M oses
1050% Davis Avenue 
Mobile, Alabama

Attorneys for Appellants



INDEX TO BRIEF
PAGE

Statement of the Case ........... ........................................  1
Summary of Previous Litigation ----------------- -----  2

The Board’s Desegregation Plans ....... .... ............ 3

1963- 64 Plan .................-........ ........ -............... 3

1964- 65 Plan ................. -.........-...... -  -...... —- 3

1965- 66 Plan ........ -......... .............. - .............. 6
Analysis of the Board’s Plan ........ ......... ................ 6

Zone Lines ........ ................. -......... ....................  6
Rural Bus Routes ............................................  9
Initial Assignment Option ...............................  9

The Feeder System ................. ................. -   10
The Transfer Procedure ..................... -........... U

Hardships Under the Plan .............................. U

Desegregated Experiences ...................... - ....... 12
Teacher Desegregation ........................ -......... -  13

Inequality in Negro Schools --------- --------------- - 14

The District Court’s Opinion ------- --------------- ----  14

Specifications of Error ------------ ---- ------------ ---- ---------  15

A bgument—

To Insure the Relief to Which Appellants Are 
Entitled Under Brown Will Require a Plan De­
signed to Integrate the Mobile School System .... 16

Relief ............................. -....... -......................................... 28

Conclusion ......... ........... ......... -................................................ - 31



Table of Cases:
page

Acree v. County Board of Education of Richmond
County, Georgia, ------  F. 2 d ------ (5th Cir., No.
22723, June 30, 1965) ........-........ -------- ------- ---- -----

Armstrong v. Board of Education of City of Birming­
ham, 323 F. 2d 333 (5th Cir. 1963) ........ - ........ -2.

Augustus v. Board of Public Instruction, 306 F. 2d 862 
(5th Cir. 1962) ...... ..... ....................... -....... - ...............

Bell v. School City of Gary, Ind., 324 F. 2d 209 (7th
Cir. 1963), cert. den. 377 U. S. 924 ...........................— 17

Board of Public Instruction of Duval County v. 
Braxton, 326 F. 2d 616, 620 (5th Cir. 1964) cert.
den. 377 IT. S. 924 ___ ___~~~...... -...... -......... -......... -  22

Board of School Commissioners of Mobile County v. 
Davis, stay denied 11 L. ed. 2d 26, cert, den., 375
IT. S. 894, pet. for reh. den., 376 U. S. 928 ------- ---- 3,16

Bosun v. Rippy, 285 F. 2d 43, 46 (5th Cir. 1960) -----  20
Briggs v. Elliott, 132 F. Supp. 776, 777 (E. D. S. C.

1955) ................ -...... ...... ......... ....... ..... -..... -.................  2®
Brooks v. County School Board of Arlington, Vir­

ginia, 324 F. 2d 303, 308 (4th Cir. 1963) ......... -.......  17
Brown v. Board of Education, 347 U. S. 483 (1954) —.2, 28

Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963) - -  20 
Clemons v. Board of Education of Hillsborough, 228

F. 2d 853 (6th Cir. 1956) ........................... - ....... - ...  17
Cooper v. Aaron, 358 IT. S. 1 ................. ........ ......—- 2^

Davis v. Board of School Commissioners of Mobile
County, 318 F. 2d 63, 64 (5th Cir. 1963) --------------- 2

Davis v. Board of School Commissioners of Mobile
County, 322 F. 2d 356 (5th Cir. 1963) -............... --- 2

Davis v. Board of School Commissioners of Mobile 
County, 333 F. 2d 53, 55 (5th Cir. 1964) ...........2, 3, 5,17



PAGE
in

Dowell v. Board of Education of the Oklahoma City
Public Schools,------F. Supp.-------  (No. 9452, W. D.
Okla., Sept. 7, 1965) .........................-..... -..........- - .....  29

Downs v. Board of Education of Kansas City, 336
F. 2d 988 (10th Cir. 1964), cert, den., ----- - U. S.
------  (1965) ................ ..............-..........-----................... - 17

Gaines v. Dougherty County Board of Education, 329 
F. 2d 823 (5th Cir. 1964) ........................... - ............... 22

Gaines v. Dougherty County Board of Education, 334 
F. 2d 983 (5th Cir. 1964) ................................... -~19, 28

Goss v. Board of Education of City of Knoxville, 373 
U. S. 683 (1963) ................. -................................ ........  20

Holland v. Board of Public Instruction, 258 F. 2d 730 
(5th Cir. 1958) ........... -.............. -..................... ........... 17

Lockett v. Muscogee County Board of Education, 342 
F. 2d 225, 229 (5th Cir. 1965) ........-................ -20, 22, 28

Northcross v. Board of Education of City of Memphis,
333 F. 2d 661 (6th Cir. 1964) ....................... .............. 17

Price v. Denison Independent School District, ------
F. 2 d ------ (5th Cir., No. 21632, July 2, 1965) .......21, 22,

23, 29

Singleton v. Jackson Municipal Separate School Dis­
trict, ------F. 2 d -------  (5th Cir. No. 22527, June 22,
1965) ....................................... -.................................... -  26

Stell v. Savannah-Chatham County Board of Educa­
tion of Birmingham, 333 F. 2d 55, 65 (5th Cir. 
1964) .............................. ....... ..........-.... - .... -......2, 5, 20, 21

Taylor v. Board of Education of New Rochelle, 191
F. Supp. 181, 192 (S. D. N. Y., 1961), aff’d 294 F. 2d 
36 (2nd Cir. 1961), cert. den. 368 U. S. 940 .............. 17



Isr the

Ittifri* U tate ©our! nf Appeals
F ob the F ifth Circuit

No. 22759

B irdie Mae Davis, et al.,

-v .~

Appellants,

B oard op School Commissioners of Mobile County, et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

Statement o f the Case

This is an appeal from the March 31, 1965 decree of 
Southern District of Alabama District Judge Daniel H. 
Thomas, the effect of which enables the appellee Board of 
School Commissioners of Mobile County to maintain almost 
complete segregation of the 79,000 pupils attending the 
94 schools in its system (R. 29). Despite directions and 
mandates issued by this Court and the United States 
Supreme Court on twelve different occasions during the 
course of the three previous appeals which appellants 
have been required to file since this suit was filed in March 
1963, only 36 Negro pupils were enrolled in white schools 
for the 1965-66 school year. The earlier litigation provides 
a necessary background to this appeal.



2

Summ ary o f  Previous Litigation

Despite petitions from Negroes in 1955, 1962 (R. 103), 
and efforts by some appellants to obtain desegregated 
transfers in January 1963 (R. 90, 104) the appellee Board 
refused to recognize any duty to comply with the Supreme 
Court’s decision in Brown v. Board of Education, 347 U.S. 
483. The first appeal followed the district court’s refusal 
to either promptly grant or deny appellants’ motion for a 
preliminary injunction. This Court dismissed the appeal 
but noted in doing so that the schools are segregated, 
that the amount of time available for the transition to 
desegregated schools is sharply limited, and that prompt 
action would be necessary. Davis v. Board of School Com­
missioners of Mobile County, 318 F. 2d 63, 64 (5 Cir. 1963).

But despite this admonition, the district judge denied 
injunctive relief for the 1963-64 school year, citing both 
the impossible administrative burden such action would 
impose on the Board and his belief that the problem would 
work itself out without strife if action was not too hastily 
taken. Trial was set for November 14, 1963.1 Again ap­
pellants returned to this Court, which on July 9, 1963, 
granted their request for an injunction pending appeal, 
requiring desegregation to begin in at least one grade 
for the 1963-64 school year. Davis v. Board of School 
Commissioners of Mobile County, 322 F.2d 356 (5th Cir. 
1963), modifying its order on petition for rehearing to 
conform with a similar mandate entered a few days earlier

1 The trial took two days during most of which appellees compiled a 
record intended to justify segregated schools because of asserted in­
tellectual inferiority o f Negro pupils. The district court never entered 
a decision in the case, but the issues were settled by this Court in Stell 
v. Savannah-Chatham County Board of Education, 333 F. 2d 55 (5th 
Cir. 1964), and Armstrong v. Board of Education o f City of Birmingham, 
333 F. 2d 47 (5th Cir. 1964).



3

in Armstrong v. Board of Education of City of Birming­
ham, 323 F.2d 333 (5th Cir. 1963),2

The third appeal was filed following the district court’s 
approval with a few modifications of a desegregation plan 
which, appellants maintained, failed to meet this Court’s 
standards as contained in its July 1963 amended mandate. 
On June 18, 1964, this Court ruled in appellants’ favor on 
the second appeal by vacating the district court’s order 
denying injunctive relief and the third appeal by order­
ing the Board to present forthwith a desegregation plan 
meeting certain definite minimum standards as contained 
in its opinion. Davis v. Board of School Commissioners 
of Mobile County, 333 F.2d 53 (5th Cir. 1964).3

The Board’s D esegregation Plans

1963-64  Plan— Filed August 17, 1963, the Board’s origi­
nal plan limited transfers to high school students in the 
City about to enter their twelfth and final year (R. 4). 
Transfer requests were to be made in writing by July 31, 
1963 (a date already past when the plan was published) 
on forms prescribed and supplied by the Board to parents 
of pupils on request (R. 5, 8-9). All transfer applications 
were judged by pupil placement act criteria including

2 Appellee Board, after unsuccessfully seeking a stay from Judge 
Wisdom of this Court, applied for a stay of the mandate from Supreme 
Court Justice Hugo L. Black pending consideration of a petition for 
writ o f certiorari. The application for a stay was denied by Justice 
Black, Board of School Commissioners of Mobile County v. Davis, 11 
L. ed. 2d 26, and certiorari was denied on October 28, 1963, 375 U. S. 
894. A motion for leave to file a petition for rehearing was denied on 
February 17, 1964, 376 U. S. 928.

3 Appellees’ petition for rehearing was denied by this Court on July 
21, 1964, as was an application for a stay of the mandate, pending ap­
plication to the Supreme Court for a writ of certiorari on August 20, 
1964. A stay was then sought from Justice Black and vrns denied on 
September 3, 1964. The petition for writ of certiorari was denied 
October 12, 1964. 13 L. ed. 2d 49.



4

availability of room in the school, transportation, suit­
ability of curricula, pupil’s interests, reason assigned for 
request by parents, effect of transfer on established or 
proposed programs, adequacy of pupil’s academic prep­
aration, pupil’s scholastic aptitude and relative intelli­
gence, psychological qualifications of pupil, effect of trans­
fer upon academic progress of other students, and on 
prevailing academic standards, possibility of threat of 
friction or disorder among pupils, psychological effect of 
transfer upon other students, possible community breaches 
of peace or ill will, pupil’s home environment, maintenance 
or severance of established social and psychological rela­
tionships with other pupils and teachers, and the pupil’s 
morals, conduct, health and personal standards. In addi­
tion, the Board could consider “other relevant factors” , 
and the transfer applicant was subjected to tests or exam­
inations by the Board, which could also require interviews 
with the parents or the pupil (R. 6-7).

Denial of transfer requests was to be final unless review 
was requested in writing within 10 days of the date when 
notice of the denial was received by mail. In 1963, deci­
sions on transfer applications was to be taken on Sep­
tember 3rd, one day before schools opened. Hearings, 
within 20 days before the Board, required presence of 
parents and pupil, with decisions within another 15 days. 
In addition to overruling or affirming the denial, the plan 
permitted the Board to find the pupil “physically or 
mentally incapacitated” to benefit from further normal 
schooling and could assign the pupil to a special school 
or terminate his enrollment completely (R. 7-8).

Initial assignments for first graders (when the plan 
reached the first grade) and for pupils entering the sys­
tem for the first time (in grades to which the plan had 
become applicable) could “apply for attendance at the



5

school in the district of their residence, or the nearest 
school formerly attended exclusively by their race, at 
their option” (R. 8).

Despite appellants’ objections, the district court on 
August 23, 1963 approved the Board’s plan, modifying it 
only to permit transfer applicants from August 23rd to 
request transfers, and requiring that processing of appli­
cations be completed prior to the opening of school. The 
Board approved 2 of 29 Negro applicants for the 1963-1964 
school year (R. 104).

1964-65 Plan—Despite the minimum standards for de­
segregation plans contained in this Court’s June 18, 1964 
opinions in Davis, Armstrong and St ell, the Board sub­
mitted and the district court approved for the 1964-65 
school year a plan only slightly altered from that in effect 
the year before. This Court’s mandate required desegrega­
tion in grades 1, 10, 11, and 12 for the 1964-65 school 
year, but the Board announced that pupils scheduled to 
enter the first grade had been pre-registered near the end 
of the previous term and that tentative enrollments had 
been developed for both the 1st grade and, following the 
April 1-15 transfer request period, for the 11th and 12th 
grades (E. 10). Evidently for this reason, the Board’s 
plan failed to provide for the reassignment on a desegre­
gated basis of pupils scheduled to enter the 1st grade who 
had already been pre-registered in schools on the basis of 
race, and no further transfer period was provided for 
students entering the 11th and 12th grades. A three-day 
period (August 4-6) was provided for transfer requests 
from 1st and 10th grade pupils in the city schools only. 
The Board limited desegregation in the county schools 
to grades 11 and 12 even though no authorization for such 
limitation was contained in this Court’s June 18, 1964 opin­
ion and a petition for rehearing filed by the Board and



6

containing on pp. 4-5 a specific request for such limitation 
was denied by this Court on July 21, 1964.

In approving this plan, the district court extended the 
transfer period from three to six days and permitted 
county pupils in the 10th, but not the 1st, grade to request 
transfers (R. 15). Publication of the plan’s provisions 
was required for three consecutive days instead of just 
one as proposed by the Board (R. 15-16). Only 16 Negro 
pupils sought transfer to desegregated schools for the 
1964-65 school year. The Board granted seven requests 
and denied nine (R. 21).

1965-66  Plan—Appellants in December 1964, filed a mo­
tion for further relief seeking a desegregation plan for 
the 1965-66 school year that -would effectively desegregate 
the school system (R. 17-20). The Board responded deny­
ing both that their plan which would encompass grades 
1, 2, 9, 10, 11 and 12 for the 1965-66 school year failed to 
meet judicial standards, and that the Supreme Court had 
affirmed “ . . . any ‘right’ to a desegregated education to 
the exclusion of all other proper factors” (R. 22). The 
Board maintained that its plan was being fairly adminis­
tered and sought to be “freed from the constant harass­
ment of annual motions to completely revamp and radically 
alter the administration of a large and complicated sys­
tem” (R. 23). Nevertheless, the court below with minor 
modifications discussed below approved the Board’s plan 
(R. 45).

Analysis o f  the Board’s Plan

Zone Lines—In recent years, Mobile’s neighborhood pat­
terns have become quite strongly segregated (R. I ll ,  113). 
Since elementary school zones have been drawn to main­
tain a homogeneous community, and elementary school 
pupils are initially assigned to schools serving their resi­



7

dential areas, the result is that most Negroes reside in 
zones served by Negro schools (R. 83-84, 145). On this 
point, Superintendent Burns testified:

“Q. I will ask you whether it is generally true that 
the actual make up of the school district tends to 
conform with the race of the school within that dis­
trict? A. Yes, sir.” (R. 65).

The school zones presently in use are, with some excep­
tions, similar to those utilized before this suit was filed. 
At that time, Negro pupils residing within zones served 
by white schools attended Negro schools located outside 
the zones of their residences. For example, the Super­
intendent testified that Negroes residing in the Saraland 
elementary school zone attended the Negro Cleveland ele­
mentary school (R. 59-60). This procedure is still fol­
lowed as to elementary grades three to six not yet in­
cluded within the plan.

Appellees admitted their desire to maintain racially 
homogeneous neighborhoods seeking to justify this by 
explaining the role played by the school as a center of 
community activities. Since community functions are gen­
erally segregated, the Board deems it important to con­
sider community desires in locating or operating a school 
so as to maintain a “ satisfactory relationship with the 
community” (R. 76-77).

But the Board maintained such considerations were only 
one factor utilized in drawing elementary school zone lines 
(R. 83) and maintain that other criteria such as safety 
hazards, natural boundaries and efficient school utilization 
were also considered (R. 75, 83). The elementary zone map 
(R. 253) illustrates however, that maintenance of homo­
geneous racial communities was a prime consideration when



8

the zone lines were drawn, and appears to enjoy a continu­
ing priority notwithstanding the fact that several addi­
tional elementary schools have been constructed since the 
map was prepared (R. 140-44). For example, the Negro 
Warren school zone (located near the center of the max) 
R. 253, at the convergence of sections G and 7) was, until 
this year, divided into two sections by the white Crichton 
school zone (E. 64-65). Testimony indicates that the War­
ren and Crichton school zones have been redrawn with the 
result that some Negroes are now residing within the 
Crichton zone (E. 250), but the white Craighead school zone 
(located at sections K and 14 on the map) continues to be 
split by the Negro Williamson school zone (R. 253), and 
the small Negro Cottage Hill school zone (located at sec­
tions B and 16 on the map) is entirely enclosed within the 
large Shepherd elementary school zone which serves white 
pupils (R. 118, 178). The Superintendent testified that the 
Cottage Hill facility although underutilized with an en­
rollment of only 119 pupils and 4 teachers (R, 179) was 
retained at the request of N egroes living in the community 
(R. 178,184-85).

Appellants’ efforts to obtain detailed information as to 
how many Negro and white pupils resided within each 
elementary school zone were frustrated. First, by the 
Board attorney’s interpretation of interrogatories designed 
to produce this information (R. 147, 231) and later by the 
asserted lack of knowledge of Board witnesses on such 
figures (R. 145, 151, 155-56, 230-31). While the Superin­
tendent contended that there were many zones within which 
both Negroes and whites resided (R. 145, 150-51) he con­
ceded that the zone lines follow racial neighborhoods “to 
a considerable degree” (R. 145), acknowledging again that 
a majority of pupils reside in zones which are either all 
white or all Negro (R. 151).



9

Rural Bus Routes. No school zone lines are drawn by the 
Board for the rural sections of Mobile County (B. 139, 153). 
Instead, bus routes serve neighborhood areas, and since 
neighborhoods, as in the urban areas of the county, tend 
to be structured along separate racial lines, racial patterns 
similar to those identifiable in the urban school zone lines 
are found in the rural bus routes (B. 70, 154).

Initial Assignment Option—If there is room for debate 
as to what percentage of the Board’s elementary school 
zones contain either all Negroes or all whites, there is no 
doubt that all white pupils within the desegrated elemen­
tary grades continue to attend white schools regardless of 
their residence and that virtually all Negro elementary 
pupils attend Negro schools even though a few of them 
may reside in zones serving white schools. The key to the 
continuing segregated patterns at the elementary level is 
found in the provision of the Board’s plan providing an 
option to pupils entering the system at the first grade or 
for the first time in grades being desegregated (B. 8, 273). 
This option enables pupils to choose either the school lo­
cated within the zone where they reside or the nearest 
school previously serving members of their race. Thus, a 
Negro first grade pupil residing within the Negro Cottage 
Hill zone may choose to enter either Cottage Hill or the 
nearest Negro school (B. 148). A Negro child residing 
within the white Austin school zone (B. 64) may choose 
either Austin or the nearest Negro school (B. 149).

To the extent that Board witnesses who maintain there 
were zones in which both Negroes and Whites reside are 
correct, the option provision permits all pupils who other­
wise would be assigned to a school serving mainly the 
opposite race to transfer back to a school where their race 
is in the majority. Apparently, virtually all pupils able to



10

make an effective choice for segregation under this option 
provision have done so (R. 311-12).

The Feeder System. High school assignments are con­
trolled basically by a system of feeder schools, by which 
several elementary schools in an area send their graduat­
ing students to a particular junior high school, and one or 
more junior high schools feed their graduates to a senior 
high school (R. 254-63). The feeder system, originally con­
structed on a segregated basis, has never been reorganized, 
nor does the Board have any definite plans to do so (R. 138- 
39, 236-37). As a result, not only are all pupils assigned 
from elementary to junior high and from junior to senior 
high school on a segregated basis, but high school pupils, 
including some of the appellants, seeking to obtain a deseg­
regated education, have found it next to impossible to 
determine the white school to which they should apply for 
transfer. Thus, prior to the 1964-65 school year four of the 
nine students whose transfer applications were denied were 
informed by the Board that they did not reside in one of 
the attendance areas served by the school to which they 
sought transfer (R. 271-72). Indeed, the Assistant Super­
intendent indicated that had appellant Birdie Mae Davis, 
whose request for a transfer to the Murphy School was 
granted, chosen another school, say Davidson, her transfer 
request would have been denied (R. 241-42).

Appellants and others seeking transfer have never been 
informed as to which school they should apply for admis­
sion (R. 177), a shortcoming understandable in the light 
of testimony by both the Superintendent and his assistant, 
neither of whom was able to state how the determination 
was made as to which white school a Negro student should 
apply (R. 173-77). Apparently, judgments are made on a 
case-to-case basis although such information was not made



11

available to transfer applicants whose applications to the 
“wrong” school had been denied.

The Transfer Procedure. Board transfer procedures are 
strict and are strictly adhered to. For the 1963-64 school 
year, 25 to 30 pupils sought desegregated educations at 
varying periods during the year (R. 210), but the Board 
considered only the four applications received during the 
five day period permitted for transfer requests in the 
district court’s order (R. 270). For the 1964-65 school 
year, the Board plan required all transfer applications 
to be filed between April 1-15 for grades 11 and 12 (R. 4). 
After this Court’s opinion of June 18, 1964, requiring 
desegregation of grades 1 and 10, the Board provided 
three days (R. 12) (extended to six days by the district 
court) to receive transfer applications, but limited those 
to pupils in either grades 1 and 10. The three pupils 
seeking transfer during this period in grades 11 and 12 
were turned down (R. 271-72).

Transfer application forms were almost as difficult to 
obtain as the transfers themselves. For the 1964-65 school 
year, a parent had to appear in person at the school board 
office, obtain a transfer application form (R. 319), take 
it home, complete it and obtain the signatures of both 
parents, and then return the form to the Board (R. 5). 
This requirement (eliminated for the 65-66 applications 
by the district court order (R. 45-46) permitting the forms 
to be returned to the school board offices by mail or other 
convenient method) caused great inconvenience to parents 
seeking to comply, including in one case travel of approxi­
mately 60 miles (R. 109-10). The Board sought to meet 
this complaint by extracting from the witness the fact 
that the distance traveled was over good roads (R. 115).

Hardships Under the Plan. John LeFlore, a Negro ac­
tive in civil rights in the Mobile area for over 35 years



12

(R. 102), testified that fear of loss of job, violence and 
other reprisals from a community that clearly did not 
favor such desegregation, was a more important factor 
than inconvenience in understanding why so few Negro 
parents had applied for transfers (R. 105-06). Both he 
and Algea Bolton, the father of one of the minor appel­
lants, reported that they had gone door to door in Negro 
communities explaining to parents their rights under the 
desegregation order (R. 94, 97, 107-09), but that prior to 
the 1964-65 school year, fewer Negro children were willing 
to transfer because of instances of violence which caused 
many to advise that they were afraid to attend mixed 
schools (R. 107). Mr. LeFlore testified:

“We found that there was a growing interest on the 
part of the Negroes for desegregation, although it 
was not manifested in the number we were able to 
get to attend schools other than Negro schools, be­
cause, as we pointed out, apparently there was a fear 
that developed on the part of one parent or another 
or upon the part of the student, which served as a 
handicap to the desegregation effort” (R. 109).

Efforts to interest Negro parents in applying for trans­
fers to white schools, according to Mr. LeFlore, were 
further handicapped by the apparent inconsistency of 
Board policy. Thus Negroes whose children had been 
bussed miles past available white schools in order to reach 
Negro schools were denied transfers to those schools when 
new schools for Negroes were built closer to their homes 
(R. 117-18).

Desegregated Experiences

Two Negro girls who had obtained transfers in the 12th 
grade to a formerly all-white school testified that the



13

work was harder and called for more study (R. 123-124, 
133), that there was much more equipment, and that the 
equipment was more quickly obtained upon order (R. 125- 
132). In comparing their progress with their former class­
mates from the predominantly Negro schools, they con­
sidered themselves “much more advanced in all subjects” 
(R. 113, 124). They were harassed considerably by white 
students and some teachers (R. 122, 126, 128-32), and 
unable to use public transportation because of the danger 
(R. 106, 113). One of the students, appellant Birdie Mae 
Davis, testified that they were treated better by those 
students with whom they attended classes, but met con­
stant expressions of hostility from those with whom they 
had no classroom contact (R. 130).

She expressed the view that such treatment results from 
fear on the part of the white students that the bjegioes 
will do better than they (R. 129-30), adding that condi­
tions would improve if there were more Negroes attend­
ing the white school (R. 133). She has made efforts to 
communicate the advantages of a desegregated education 
to other Negro students, indicating that this is necessary:

“ . . . because most of the children I talk to have the 
idea that they are afraid to go, because of the things 
that they [the white students] do, but I try to tel] 
them that it is not as hard as it really seems, because 
once you get used to it you can take it” (R. lo3-34).

Teacher Desegregation

Teacher and personnel desegregation has not been at­
tempted, according to the Board Superintendent because of 
difficulties flowing from the delicate relationship between 
parents, teachers, and students (R. 201). There are no 
differences in the educational qualifications of white and



14

Negro teachers (R. 78), but there is a separate Negro 
official in charge of coordinating instruction for Negro 
schools (R. 86). The Superintendent commented that dif­
ferences in socio-economic backgrounds between Negroes 
and whites are reflected in the habits and abilities of the 
students and this may account for any difference in teach­
ing levels in Negro and white schools (R. 204-205).

Inequality in Negro Schools

Of the 75 nonstandard courses, such as shorthand, Latin, 
industrial arts, and journalism, offered by Mobile public 
schools, 45 are not offered at any Negro school. Eight other 
courses generally available at white schools are offered at 
only a few Negro schools (R. 322), and while 17 schools 
have classes for “exceptional” (handicapped or retarded) 
children, 14 of the total are white schools (R. 169). Super­
intendent Burns testified that certain courses were offered 
only at predominantly white schools because of the prefer­
ence of the students (R, 203). He also assigned the differ­
ences between predominantly Negro and predominantly 
white schools to the disparity in conditions and opportu­
nities which had been prevalent in the past. He considered 
most important the difference in the backgrounds of the 
students and their parents (R. 206). He admitted that most 
Negro schools were smaller than white schools, that only 
larger schools could feasibly offer the special courses, and 
that as a rule school systems tend to move toward larger 
units (R. 179).

The District Court’s Opinion

With the exception of altering the requirement that 
parents must both request the form at the Board offices and 
return the completed form in person so that the completed 
form could be returned by mail or other convenient method,



15

striking as improper transfer criteria concerning the psy­
chological qualifications and effects of the pupil and his 
classmates, the possibility or threat of friction or disorder 
in the school or community, and requiring additional notice 
to parents as to their rights under the plan (R. 45-47). 
The lower court approved the plan as “constitutional” and 
deemed its administration “non-diseriminatory” (R. 46).

Specifications of Error

1. The lower court erred in failing either to require the 
Mobile County School Commissioners to make initial as­
signments in accordance with zone lines and other criteria 
not based on race, or to allow all pupils, regardless of race, 
the choice of enrolling in the nearest desegregated school 
until capacity is reached.

2. The lower court erred in failing to require the Board 
to conform its plan to the standards concerning transfer, 
notice and other particulars established by this Court in 
its decision of June 18, 1964, and in subsequent applicable 
opinions.

3. The lower court erred in failing to require the Board 
to present a plan which, based on a consideration of all 
legally relevant factors, was fairly capable of disestablish­
ing the segregated school system maintained by the Board 
and providing within the time permitted in current inter­
pretations of the Supreme Court’s “all deliberate speed” 
standard, the integrated school system to which appellants 
and their class are constitutionally entitled.



16

A R G U M E N T

To Insure the Relief to Which Appellants Are En­
titled Under Brown Will Require a Plan Designed to 
Integrate the Mobile School System.

Supreme Court Justice Hugo Black reviewing a motion 
for stay filed by the Board in August 1963, wrote that the 
record “ . . . fails to show the Mobile board has made a 
single move of any kind looking towards a constitutional 
public school system.” Board of School Commissioners of 
Mobile County v. Davis, 11 L. ed. 2d 26, 28 (1963). Appel­
lants submit that despite the subsequent orders issued by 
the district court and this Court, and notwithstanding the 
token desegregation that has resulted under the Board’s 
reluctantly produced plan with its amendments, additions, 
deletions and supplements, the conclusion of Justice Black 
is as accurate today as it was more than two years ago.

A review of the Board plan which the court below ap­
proved as “constitutional” and “non-discriminatory” reveals 
at least a dozen clear violations of the minimum standards 
for desegregation plans required by this Court:

1. The assignment of pupils in accordance with elemen­
tary school zone lines drawn so as to conform to racial 
neighborhoods (R. 65) effectively maintain race as the basis 
of initial assignment. While Mobile has few integrated 
communities (R. I l l ) ,  the Board has relied on the most 
flagrant kinds of gerrymandering which include enclosing 
a school zone in a Negro neighborhood entirely within the 
boundaries of a white school zone (R. 178) and dividing a 
school zone into two sections in order to contain all of one 
racial population within one school (R. 64-65). As a result 
of such zoning policies, Board officials concede that a great 
majority of school zones contain either all Negro pupils or 
all white pupils (R. 151), and while maintaining that there 
were zones which contain both Negroes and whites (R. 145,



17

150-51), were able to cite only a few such instances even 
in the face of both testimony showing Negroes are consis­
tently assigned to Negro schools located further from their 
homes than white schools (R. 117-18), and tables of ele­
mentary school enrollments for the 1964-65 school year 
showing only Negroes in Negro schools and only white 
pupils in white schools (R. 311-12).

School zone lines drawn to conform to racial neighbor­
hoods were early condemned by this Court in Holland v. 
Board of Public Instruction, 258 F. 2d 730 (5th Cir. 1958). 
See also, Brooks v. County School Board of Arlington, 
Virginia, 324 F. 2d 303, 308 (4th Cir. 1963); Northeross v. 
Board of Education of City of Memphis, 333 F. 2d 661 (6th 
Cir. 1964); Clemons v. Board of Education of Hillsborough, 
228 F. 2d 853 (6th Cir. 1956); Taylor v. Board of Education 
of New Rochelle, 191 F. Supp. 181, 192 (S. D. N. Y., 1961), 
affirmed 294 F. 2d 36 (2nd Cir. 1961), cert, den., 368 U. S. 
940; cf. Downs v. Board of Education of Kansas City, 336
F. 2d 988 (10th Cir. 1964), cert, den., —— U. S. ----- - (1965);
Bell v. School City of Gary, Ind., 324 F. 2d 209 (7th Cir. 
1963), cert, den., 377 U. S. 924.

For the last few years, the Board has been on the verge 
of adopting completely revised zone lines. Based on the 
Record in appeal No. 20657, this Court noted the Superin­
tendent’s testimony at trial held in November, 1963, that 
most dual zones had been redrawn, and “that a major re- 
evaluation and redraft of the school districts was in 
progress, or about to commence, which would eliminate even 
those few dual districts that existed.” Based on this state­
ment, the Court concluded appellants’ objections to this 
aspect of the plan were more of letter than substance. 
Davis v. Board of School Commissioners of Mobile County, 
333 F. 2d 53, 55 (5th Cir. 1964).

But in responding to plaintiffs’ interrogatories in Janu­
ary 1965, the Board reported that the revision of the at­



18

tendance areas was still in the planning and development 
stage, although it was expected to be submitted for Board 
approval in February 1965 (R, 273). Testimony at the 
hearing, concluded March 5, 1965, indicated that only a few 
zones have been redrawn (R. 250), but the expected com­
plete revision was frequently cited to explain why many 
zones remained unchanged (R. 140, 154-56, 222-24).4

4 While the Board promised to provide appellants with the revised 
attendance areas upon publication (R. 273), they have not done so to 
date. Moreover, appellants’ attorneys are advised that several Negroes 
were denied admission to desegregated schools for the 1965-66 school 
year because they did not reside in zones served by white schools. At 
least one of these parents, Mrs. Gwendolyn Jones, 343 N. Ozark Street, 
Whistler, Alabama, wrote the Board on April 23, 1965, protesting their 
refusal to enroll her son, Brian Jones, in the white Whistler School. 
Following is Mrs. Jones’ affidavit recording her efforts to obtain a de­
segregated education for her son in 1965:

State of A labama )
County of Mobile )

Before me the undersigned authority personally came and ap­
peared and after being by me first duly sworn deposes and says:

My name is Mrs. Gwendolyn Jones. I live at 343 N. Ozark Ave­
nue, Whistler, Alabama. I am 25 years of age.

On April 22, 1965, about 1 :00 p.m., I went to the Whistler Ele­
mentary School, white, to pre-register my son, Brian Jones.

After arriving at the school, I entered a class room where other 
parents, all white, were registering their children. Three white 
women and one white man were registering the children.

I was given some papers to fill out. After I had finished with 
the papers, they asked about the birth certificate. Two of the 
ladies said that the birth certificate was not the right color. They 
gave it to the man and he said that it was in order. The man then 
went and pulled out a map and said that I was not in the district 
for my son to attend the Whistler Elementary School. I then left 
the campus of the school.

My son must go to the Martha Thomas Elementary School, Negro, 
which is about two miles from my home. I only live about three 
blocks from the Whistler Elementary School.

I am hopeful that something may be done to prevent the enforce­
ment of this ridiculous and discriminatory assignment of my child.

/ s /  Mbs. Gwendolyn J ones 
Mbs. Gwendolyn J ones

Subscribed and sworn to before me 
this 27th day of April 1965.



19

2. Pupils in rural sections of Mobile County are effec­
tively retained in segregated schools by bus routes which 
serve neighborhoods generally defined by race (R. 70, 154). 
The Board has not provided pupils in such rural areas with 
any information as to how they can obtain initial assign­
ment to desegregated schools. Their continued assignment 
in accordance with segregated bus routes is no less a vio­
lation of standards set by this Court than is the maintenance 
of urban zone lines based on race.

3. The assignment of high school pupils in accordance 
with segregated feeder lines (R. 138-39, 336-37), clearly 
violates both the general requirements to terminate racial 
criteria in assignments and specifically violates standards 
set by this Court requiring either that pupils be permitted 
to choose the nearest Negro or white school, or that they 
be assigned to the nearest school to their residence without 
reference to race or color. Gaines v. Dougherty County 
Board of Education, 334 P. 2d 983 (5th Cir. 1964). Such 
standards may not be met by granting transfers to pupils 
residing in formerly dual zones (R. 37, 151), particularly 
when such policy is not contained in the Board’s plan, was 
said to have been applied to students whose transfer re­
quests were granted (R. 224), and was not applied in at 
least two cases where the white school was overcrowded 
(R. 271-72), even though overflow white pupils within the 
zone were transported to another white school (R. 158-60).

4. The option to attend either the elementary school 
serving the zone of the pupils’ residence, or the school 
formerly serving members of the pupils’ race (R. 8) can 
serve only to maintain segregation providing as it does a 
choice between two Negro or two white schools for virtually 
all pupils, and enabling only an effective choice of a seg­
regated school for the few students who reside in school 
zones in which the opposite race predominates. This Court



20

condemned such one way transfer options in Bosun v. Rippy, 
285 F. 2d 43, 46 (5th Cir. 1960), for reasons little different 
than those used by the Supreme Court in voiding a similar 
provision in Goss v. Board of Education of the City of 
Knoxville, 373 U. S. 683.

5. The right to transfer from schools to which pupils 
are initially assigned by race is severely hampered by the 
transfer criteria included in the Board’s plan. Applica­
tion of any of the myriad of these standards (R. 5-6) to 
transfer requests filed by Negro pupils seeking admis­
sion to white schools is invalid under the decisions of this 
Court when white pupils may gain admission to such 
schools merely by showing up when school opens (R. 193, 
215), or even weeks after school has begun (R. 284-86).

6. The Board’s requirement that transfer applications 
can be obtained only at the School Board offices by parents, 
constitutes an onerous requirement which effectively lim­
its desegregation. While the district court eliminated the 
further Board requirement that parents must personally 
return the transfer applications to the Board office, the 
failure of the Board to permit Negro parents to request 
transfers to obtain a desegregated education for their 
children on the same basis by which parents are able to 
obtain transfers for change of residence, i.e., by bringing 
the child to the school on opening day (R. 193, 215) vio­
lates standards set by this Court in Lockett v. Board of 
Education of Muscogee County, 342 F.2d 225, 229 (5th 
Cir. 1965); Calhoun v. Latimer, 321 F.2d 302 (5th Cir. 
1963); Stell v. Savannah-Chatham Board of Education, 
333 F.2d 55, 65 (5th Cir. 1964).

7. For the same reason, the Board’s requirement that 
pupils seeking desegregated transfers must apply during 
a two week period from April 1 to April 15 constitutes an 
“onerous requirement” in the light of uncontradicted testi­



21

mony that Negro parents, upon whom the Board’s plan 
places the major burden for any desegregation that occurs, 
are handicapped by the early transfer period (R. 107). 
While the Board maintains that planning for the forth­
coming school year requires the early date, the number 
of persons seeking desegregated transfers has been small 
in relation to the 500 transfer requests for reasons other 
than desegregation, and far smaller than the two to four 
thousand pupils who each year are permitted to change 
schools by the Board when they change residences (R. 215, 
192-93).

8. Transfer criteria utilized by the Board include stand­
ards subjecting pupils seeking desegregated assignments 
to the possibility of tests (R. 5-6) and evaluation of achieve­
ment records (R. 6-7) not required students assigned to 
schools on the basis of race, and exposes them to at least 
the threat that the Board may conclude the applicant 
physically or mentally incapacitated to benefit from further 
normal schooling, a determination that could terminate 
the pupils’ enrollment at any school (R. 7-8).

9. The small number of applicants seeking admission to
desegregated schools, due appellants submit, to the rigidity 
of the Board’s assignment and transfer policies, justifies 
departure from the minimum standards set by this Court 
for stair-step desegregation in Stell v. Savannah-Chatham 
Board of Education, 333 F. 2d 55 (5th Cir. 1964), and 
acceleration to enable pupils in all twelve grades to obtain 
such transfers by the 1966-67 school year as authorized 
by the federal standards adopted in Price v. Denison In­
dependent School District, ------ F. 2d ------  5th Cir. No.
21632, July 2, 1965).

10. Students entering the system for the first time are 
not permitted to enroll in desegregated schools under the 
Board’s plan unless they are eligible to attend grades



22

already desegregated (R. 4). This Court, for several years 
has required that students coming new to the system must 
not be required to enter a segregated school. Lockett v. 
Board of Education of Muscogee County, supra, at 228; 
Augustus v. Board of Public Instruction of Escambia 
County, Florida, 306 F. 2d 862 (5th Cir. 1962).

11. The Board’s plan fails to contain a provision 
enabling Negro students to obtain transfers to desegre­
gated schools in order to obtain courses not available at 
the schools where they were initially assigned, as required 
by this Court. Acree v. County Board of Education of
Richmond County, Georgia,------F. 2 d -------  (5th Cir. No.
22723, June 30, 1965); Price v. Denison Independent School
District, ------ F. 2d ------  (5th Cir., No. 21632, July 2,
1965) (App. §V , E4a(4)) ; Gaines v. Dougherty County 
Board of Education, 329 F. 2d 823 (5th Cir. 1964). Such 
a provision is particularly needed in appellees’ school sys­
tem in which 75 special courses are offered, 45 of which 
are available only in white schools (R. 322-25). The 
Board contention that no requests for transfer to obtain 
special courses have been received is less than adequate 
in the absence of some notice that such requests would 
be honored.

12. The Board not only fails to provide for teacher 
desegregation in its plan, but contends that assignment of 
teachers on a non-racial basis would create serious prob­
lems connected with race, both in the classroom and the 
community (R. 200-01). While this Court had not reversed 
district courts who failed to require teacher desegregation 
at the time the Board’s plan was approved, there has 
never been doubt in this Circuit that teacher desegrega­
tion is an appropriate and necessary component of the 
relief required by the Brown decision (Board of Public 
Instruction of Duval County v. Braxton, 326 F. 2d 616



23

(5th Cir. 1964), cert, denied 377 U. S. 924), and resistance 
to any aspect of school desegregation based on fear and 
community opposition has never been condoned. Cooper 
v. Aaron, 358 U. S. 1. In adopting as its minimum stand­
ards for desegregation plans, the Guidelines published by 
the United States Department of Health, Education, and 
Welfare, see Price v. Denison Independent School District, 
supra, the question of whether teacher desegregation would 
be included as a part of this Court’s minimum standards 
was removed from the area of debate.

Appellants do not here complain about mere technical 
violations of abstract principles. The invalid provisions 
of the Board’s plan reviewed above serve to bar an ascer­
tainable number of appellants and other Negroes from 
enjoying their constitutional right to complete their pub­
lic school education in desegregated schools, and the plan’s 
complexity, contradictions combined with the Board’s arbi­
trary method of administration doubtless discouraged many 
others from even applying.

During the 1963-64 school year when the Board finally 
was required by court order to produce a desegregation 
plan on August 19, 1963 (R. 1), the transfer period dead­
line previously set for July 31 (R. 8-9), was not altered 
until the district court specifically required the Board to 
accept transfer requests for a five day period (R. 99, 
Appeal No. 20657). No further consideration was given 
to the 25 or 30 applications filed earlier in the year and 
denied (R. 104). Two Negro students wTere admitted to 
one high school and were subjected to harassment and 
threats throughout the school year (R. 106).

During the 1964-65 school year, the Board received ap­
plications for transfer to desegregated schools from only 
16 Negro pupils (R. 270-72). But despite the small nurn-



24

ber of applicants, the Board granted only seven transfers 
and denied nine.

Four Negroes were turned down because they did not 
reside in the attendance area served by the school to 
which they sought transfer (R. 271), even though (1) the 
Board’s pupil transfer form indicated that any school 
could be requested (R. 319), (2) Board personnel from 
whom parents had to both obtain and submit the forms 
in person (R. 5), failed to advise them that their request 
must be made to a particular school, and (3) neither the 
Superintendent, nor his assistant in charge of transfer 
procedures, was able or even willing (R. 221) to provide 
information as to which schools Negro high school pupils 
seeking desegregated educations should apply.

Three applications of pupils in the 11th or 12th grade 
were denied because filed during the 6 day transfer period 
in August required by district court order. Notwith­
standing both the express wording and clear intention of 
this Court’s June 18, 1964 opinions, the Board took the 
position that the additional transfer period would be lim­
ited to pupils in the first and 10th grade because pupils 
in the 11th and 12th grades had been given the April 1-15 
period in which to apply for transfer (R. 107).

Finally two transfer applications were denied because, 
according to the Board, facilities at the Adelia Williams 
High School where transfer had been sought were already 
beyond capacity and children were being transported 
from the Williams School because of this condition (R. 
271-272). Despite letters from the parents of both trans­
fer applicants specifically requesting transfer to either of 
two other high schools, which letters clearly show that 
the parents’ primary desire was to obtain transfers to 
desegregated schools rather than any particular school



25

(R. 313, 316), the Board took no further action on the 
transfer requests.

But a better understanding of the difficulties the Board’s 
plan posed for Negro parents will be found by tracing 
the efforts appellant Algea Bolton made to enroll his 
daughter May Wornie in a desegregated school. Early in 
1963, appellant sought to obtain a transfer for his daugh­
ter from the Negro St. Elmo High School located 17 miles 
from her home (R. 93) to the white Baker High School, 
4 miles away. The Negro high school principal refused 
the transfer. Subsequently, Bolton’s daughter attempted 
to enroll at the Baker School but was turned down by the 
school principal. A further letter to the Assistant Super­
intendent was also denied. The Superintendent testified 
that over-crowded conditions at Baker prompted denial 
(R. 81), but conceded that white pupils seeking admission 
at Baker were assigned to another white school (R. 82).

Mr. Bolton’s experiences were set forth in the com­
plaint of this case in which he and his daughter became 
plaintiffs. During the transfer period for the 1964-65 
school year, in April 1964, appellant Bolton requested a 
transfer for his daughter to Davidson School (R. 91-92). 
Unaware that the transfer application had to be signed 
by both parents, Mr. Bolton was required to make two 
trips to the Board’s offices located 10 miles from his home, 
a total of 40 miles (R. 92). The transfer request was 
subsequently denied and the Board advised him that he 
did not reside in one of the attendance areas served by 
the Davidson School (R. 271). For the 1964-65 school 
year, May Wornie Bolton was assigned to the just com­
pleted all Negro Hillsdale Heights High School located 
quite close to her home (R. 93). Mr. Bolton again applied 
for a transfer to the Davidson school for the 1965-66 
school year (R. 94). The transfer request was denied.



26

This was the Bolton girl’s last chance. She is enrolled in 
the Hillsdale Heights School for her senior year (E. 74, 
95) and is scheduled to graduate in June 1966. Thus, May 
Wornie Bolton who entered the segregated Mobile public 
schools only a few months after the Supreme Court’s 
historic school desegregation decision in 1954 will gradu­
ate without having ever enjoyed the rights it was intended 
to confer, and this despite the courage and perseverance 
exhibited by both she and her father. Is it any wonder 
that a majority of Negro parents in Mobile reach the 
conclusion that their children can receive an education in 
a segregated school no different than that offered the 
Bolton child and with far less effort, expense, worry and 
risk?

The Bolton’s experience is not unique, nor unfortunately 
is the record in this case. This Court has reviewed the 
Bolton-type experience and the Birdie Mae Davis-type 
record on many occasions during the years since 1955. In­
deed, appellants suggest that it was after reviewing the 
quite similar record in the Jackson, Mississippi school case 
that this Court, while granting an injunction pending that 
case’s third appeal in two years, decided in retrospect that 
“the second Brown opinion clearly imposes on public school 
authorities the duty to provide an integrated school sys­
tem,” and concluded that Judge Parker’s frequently quoted 
dictum (“The Constitution,. . . does not require integration. 
It merely forbids discrimination.” ) must be laid to rest. 
Singleton v. Jackson Municipal Separate School District, 
------ F. 2d ------  (5th Cir. June 22, 1965).

The Board’s contrary position as to its obligations to 
appellants and their class under Brown provides a major 
clue to what to date has been the utter failure of school 
desegregation in Mobile. Their pleadings deny that Negroes 
have a “ right” to a desegregated education to the exclusion



27

of other proper factors (R. 22), and at the hearing, the 
Board’s attorney strenuously denied that the court orders 
in this case provided Negro pupils assigned by segregated 
feeder lines to Negro schools with a right to choose white 
schools (R. 163, 174). In the same vein, the Superintendent 
repeatedly sidestepped direct questions as to whether new 
elementary zones (R. 84, 273), would be drawn with a con­
scientious effort to alter the uniracial characteristics of 
present zones (E. 154-56), and his assistant blithely an­
nounced that assignment of high school pupils by segregated 
feeder system would continue (E. 236-37).

But the district court approved the elementary zone lines, 
the initial assignment options, and the general transfer 
procedures as non-discriminatory (R. 28-31). Despite the 
Superintendent’s admission of widespread use of long­
distance busing such as that used to transport Negro high 
school students from the Hillsdale area 34 miles each day 
past white schools to the St. Elmo School (E. 156-57), and 
the effect of the option plan, the only worthwhile use of 
which enabled pupils to choose segregated schools when 
the school to which thejr otherwise would be assigned were 
populated by pupils of the opposite race, the court below 
found the Board was adhering to a longstanding practice 
of “neighborhood school organization” (R. 29). The court 
noting Board denial of more than half of 500 pupils seeking 
transfers for reasons not connected with desegregation, 
concluded that denial of nine of sixteen Negroes seeking 
transfers under the Board’s desegregation plan was a “nor­
mal proportion of denials” (R. 30), and in similar fashion, 
found no fault with Board procedures and policies, all of 
which are contrary to the standards set by this and other 
federal courts.

As with the Board perhaps the real basis for the errors 
in the district court’s ruling is its use of fallacious stan­



dards. The court quoted from Briggs v. Elliott, supra, and 
its progeny (R. 35-40), and tested the Board’s actions hy 
these early opinions, ignoring the more recent and, appel­
lants submit, more enlightened standards contained in 
Lockett v. Board of Education of Muscogee County, supra; 
Gaines v. Dougherty County Board of Education, supra, 
and the Supreme Court decisions upon which these deci­
sions rely.

Relief

For appellant Mae Wornie Bolton and a great number 
of other Negro pupils there can be no effective reversal of 
the district court’s approval of the Board’s plan. Their 
opportunity to obtain the educational and psychological 
benefits of a desegregated public school education to which 
they were constitutionally entitled are forever lost. The 
immeasurable value of competing in the same classroom 
with white children experienced by Birdie Mae Davis and 
Rosetta Gamble are lost as well. They are lost despite the 
Supreme Court’s decision in Brown written more than 11 
years ago, and lost despite the many decisions by this Court 
intended to secure the rights established in 1954. The cou­
rageous efforts of a civil rights worker like John LeFlore 
and determined parents like appellant Algea Bolton are 
simply not enough to break through the maze of adminis­
trative barriers erected by the Board.

Indeed, in Mobile, as in Atlanta, New Orleans, Houston, 
Dallas and other large urban centers, the school systems 
are too complex and the quality of legal skill available to 
school boards too high to effect meaningful school deseg­
regation without constant litigation, during most of which 
the school board assignment and transfer policies remain 
at least one full step ahead of the Negro plaintiffs’ efforts 
to contest them in court.



29

This Court thus may invalidate the appellee Board plan, 
provisions of which obviously are contrary to established 
standards, but such relief will not cure harm already done 
under the plan nor, based on its past record, will the Board 
lack the ingenuity to replace the stricken policies with new 
procedures equally effective, probably more sophisticated, 
and likely to result in far more litigation than desegre­
gation.

Thus the issues presented in this the fourth appeal of 
this case in three years raise the further issue as to what 
form of relief is necessary to bring about effective school 
desegregation in large school systems such as Mobile.

Perhaps eventually procedures in enforcing Title VI of 
the 1964 Civil Bights Act will enable federal courts to dele­
gate such problems to technical agencies qualified to handle 
them in expert fashion. But at present the Office of Edu­
cation is too small and too overburdened to undertake such 
a task. For the present, appellants suggest the gap be 
filled by a procedure adopted by District Judge Luther 
Bohanon in the Oklahoma City school desegregation case. 
Seeing the need for a detailed desegregation plan and fail­
ing in efforts to get the school board to prepare such a 
plan, Judge Bohanon permitted plaintiffs to suggest names 
of well-qualified educators who, after a hearing on their 
qualifications, were appointed by the court to conduct an 
objective, impartial survey of the Oklahoma City School 
system and prepare a report containing educationally sound 
recommendations as to how the school system could be 
effectively desegregated. A report was prepared and, after 
a further hearing, at which time the educational experts 
were closely examined by both school board attorneys and 
the court, their report was adopted and the board ordered 
to submit a desegregation plan incorporating recommenda­
tions in the report. Dowell v. Board of Education of the



30

Oklahoma City Public Schools, ------ F, S u pp .------ (No.
9452, W. D. Okla., Sept. 7, 1965).

School officials may and probably will oppose the rec­
ommendations contained in the report (the Oklahoma 
City School Board on September 20, 1965 appealed Judge 
Bohanon’s decision), and not every district court will ap­
prove the recommendations made, but at the least, the 
procedure followed in Oklahoma City will enable this 
Court to review on appeal plans designed by well-qualified 
experts in the field to eliminate school segregation. This, 
appellants submit, will be a worthwhile and hopefully 
beneficial change from the constant parade of schemes 
designated as “desegregation plans” but actually intended 
to maintain segregation for as long as possible.

Appellants realize their suggestion for relief places on 
them at least a share of the burden of desegregating the 
public schools which the Supreme Court in Brown placed 
on school boards. But the burden assumed does not ma­
terially increase the burden of continuous litigation with 
which appellants have already been burdened for so long 
with so little result.

CONCLUSION

W herefore, for all the foregoing reasons, appellants 
submit that the order of the court below approving the 
Board’s desegregation plan be reversed with instructions 
to require the Board to prepare for the 1966-67 school 
year an interim freedom of choice plan for all twelve 
grades with criteria at least as broad as those contained 
in the H.E.W. Guidelines adopted by this Court in Price
v. Denison Independent School District, ------ F. 2d ------
(5th Cir. 1965). This plan shall remain in effect while 
qualified educational experts sleeted by appellants and



31

approved by the district court conduct an objective, im­
partial survey of the school system and prepare a report 
containing recommendations for the elimination of racial 
segregation. If after hearing these recommendations are 
found to be educationally sound and administratively 
feasible, the court shall order the board to incorporate 
them in a final desegregation plan.

Respectfully submitted,

Jack Greenberg

Derrick A. Bell, Jr.
10 Columbus Circle 
New York, New York

V ernon Z. Crawford 
578 Davis Avenue 
Mobile, Alabama

Clarence E. M oses

1050% Davis Avenue 
Mobile, Alabama

Attorneys for Appellants



32

Certificate of Service

This is to certify that the undersigned, one of appel­
lants’ attorneys, on this date, September 27, 1965, has 
served two copies of the foregoing Brief for Appellants 
on George F. Wood, Esq., 510 Van Antwerp Building, 
Mobile, Alabama, by mailing same to the above address 
by United States air mail, postage prepaid.

Attorney for Appellants



MEIIEN PRESS INC, —  N. Y. C. an.