Proposed Opinion and Order

    (62 
— 

Aercaute d 

[wes < 

  

  

IN THE UNIT TED STATES COURT OF APPEALS 

FOR THE PIFTH CIRCUIT 

  

No. 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve 

HINDS COUNTY SCHOOL BOARD, et al., 

Defendants-Appellees. 

  

AND OTHER CONSOLIDATED CASES 

  

  

  

  
  

On Appeal from the United States District Court for 
the Southern District of Mississippi 

PROPOSED OPINION AND ORDER 

ROBERT E. HAUBERG : JERRIS LEONARD 

United States Attorney Assistant Attorney General 

DAVID L. NORMAN 

  

Deputy Assistant Hinton. General 

DAVID D. GREGORY 

Attorney   

Us S, Department of Justice 
  

Washington, D. C. 20530 
  

  

  

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

No. 

    

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve 

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

  

No. 

  

BUFORD ‘A. LEE, et al., 

Plaintiffs-Appellees, 

Ve. 

UNITED STATES OF AMERICA, 
Defendant-Appellant, 

Ve. 

MILTON EVANS, 
Third Party 
Defendant-Appellee. 

  

No. 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

V. 

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

No. 

   —— 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ye 

NORTH PIKE COUNTY CONSOLIDATED 

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

  

 



No. 

  

     —— 

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve 

NATCHEZ SPECIAL MUNICIPAL SEPARATE 

SCHOOL, DISTRICT, et al., 

| Defendants-Appellees. 
  

No. 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve. 

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

  

No. 

  

JOAN ANDERSON, et al., 
Plaintiffs~-Appellants, 

UNITED STATES OF AMERICA 
Plaintiff-Intervenor-Appellant, 

Ve. 

THE CANTON MUNICIPAL SCHOOL DISTRICT, et al., 
and THE MADISON COUNTY SCHOOL DISTRICT, et al., 

Defendants-Appellees. 

    

No. 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve. 

SOUTH PIKE COUNTY CONSOLIDATED 

SCHOOL, DISTRICT, ef al., 
Defendants-Appellees. 

  

ii 

 



  

No. 

SP ISNT 

BEATRICE ALEXANDER, et al., 
Plaintiffs-Appellants, 

Ve. 

HOLMES COUNTY BOARD OF EDUCATION, et al., 

Defendants-Appellees. 

  

No. 

  

SO A Bh 5 MA 

ROY LEE HARRIS, et al., 
Plaintiffs-Appellants, 

Ve. 

THE YAZOO COUNTY BOARD OF EDUCATION, et al., 
Defendants-Appellees. 

    

  

k 

No. 

JOHN BARNHARDT, et al., 
Plaintiffs-Appellants, 

Ve. 

MERIDIAN SEPARATE SCHOOL DISTRICT, et al., 
Defendants-Appellees. 

  
— - 

4 

  

No. 

UNITED STATES OF AMERICA, 
"Plaintiff-Appellant, 

Ve 

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

  

No. 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve 

NOXUBEE COUNTY SCHOOL DISTRICT, et al., 

Defendants-Appellees. 

  

iis 

 



No. 

    

Sr sa 

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve. 

LAUDERDALE COUNTY SCHOOL DISTRICT, et sl., 
Defendants-Appellees. 
  

No. 

  

DIAN HUDSON, et al., 
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA, 
Plaintiff-Intervenor-Appellant, 

Ve. 

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

  

No. 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve. 

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

  

. No. 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve. 

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

——— a 

iv 

 



No. 

  

  

UNITED STATES OF AMERICA, 
Plaintiff- "Appellant, 

Ve 

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

A —— CARE 

No. 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve. 

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

  

  

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

Ve. 

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

  

No. 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

V. 

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

No. 

      

CHARLES KILLINGSWORTH, et al., 
Plaintiffs- -Appellants, 

Ha 

THE ENTERPRISE CONSOLIDATED SCHOOL DISTRICT 
and QUITMAN CONSOLIDATED SCHOOL DISTRICT, 

Defendants-Appelleecs. 

AEA 

i, 0 

 



  

No. 

a A 

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, ° 

» Vv hi 

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

  

No. 

a. . i: hpi 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve 

PHILADELPHIA MUNICIPAL SEPARATE 

SCHOOL DISTRILT, et al., 
Defendants-Appellees. 

    

No. 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve. 

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

  

 



  

These are twenty-five school desegregation cases 

in a consolidated appeal from an en banc decision of 

he U. S. District Court for the Southern District of 

Mississippi. These cases present a common issue: 

whether the District Court erred in approving the con- : 

tinued use by these school districts of freedom of 

choice plans as a method for the disestablishment of 

the dual school systems. 

The plaintiffs’ pogition is that the District 

Court erred in failing to apply the principles announced 

in recent decisions of the Supreme Court and of this 

Court. 

These ‘same school districts, along with others, 

were before this Court last vear in Adams v. Mathews, 

403 »,24+%181 (5%h Cir., 1968), The cases ware there 

remanded with instructions that the district courts 

determine: 

(1) whether the school ‘board's existing 
plan of. desegregation is adequate "to 
convert [the dual system] to a unitary 
system in which racial discrimination 
“would be eliminated root and branch" and 

(2) whether the proposed changes will 
result in a desegregation vlan that 
"promises realistically to work now." 

403 F.2d at 188. In determining whether freedom of choice 

would be acceptable, the following standards were to he 

applied: 

 



  

If in a school district there are 
il legro schools or only a 

small a fg of Negroes enrolled in 

1s, or no substantial 
integration of faculties and school 
activities then, as a matter of law, 
the existing plan fails to meet 
constitut ional standards as estab- 

lished in Green 

In all pertinent respects, the facts in these cases 

are similar. No white students has ever attended any 

traditionally Negro school in any of the school districts. 

Every district thus continues to operate and maintain its 

all-Negro schools. The record suggests that the dual 

character of these schools can more effectively be 

eliminated by alternative methods of desegregation, such 

as zoning and pairing. 

Not only has there been no cross-over of white 

students to Negro schools, but only a all fraction Of 

Negro students have enrolled in the white schools. The 

highest percentage is in the Enterprise Consolidated 

School District, which has 16 percent of its Regro 

students enrolled in white schools-—a degree of desegre- 

gation held to be inadequate in Green v. County School 

Board, 391%. 0. S. 430 (19488), The statistics in the 

remaining districts range from a high of 10.6 percent 

in Forrest County to a low of 0.0 percent in Neshoba 

and Lincoln Counties. Schodl Sctivities also continue 

. 

to be segregated; in none of the districts do white and 

 



  

Negro schools compete in athletics or any other 

type of school-related endeavors. 

These facts indicate that these cases fall squarely 

4 the Supreme Court in Green and within the decisions of 

its companion cases and the decisions of this Court 

See United States v. Greenwood Municipal Separate School 
  a ———— A SP NSS 

District, 406 ¥.24 1086 (5th Cir. 1982); Henry v, Cla 1 rks 

  

ale Municipal Beparate School Dis vict, No. .23,255{5%h 

Cir., March 6, 1969); United States v. Indianola Municipal 
  

Separate School District, Ho. 25,055 (5th Cir., April 11, 

1969) ; Anthony v. Marshall County Board of Education,     

No, 26,432 (5th Civ. , Aoril 15, 1869); Hall v. St. Belena 

Parish School Board, No. 26,450 {5th Ciy., Yay 28, 1962); 
  

Davis v. Board of School Commissioners of obile County, 
  

No. 26,886 (5th Cir., June 3, 1969) United States v. 

~
e
 

Jefferson County Board of Education, No. 27,444 {(5Lh 
  

Cir., June 26, 19463), The proper conclusion to be drawn 
i i 

‘from these facts is clear from the mandate of Adams V. 

Ma ‘thews 17 Sapra: "as .a matter of law, the existing plan 

fails to meet constitutional standards as established in 

Green.” 

-— 3 -~ 

 



  

We hold that these school districts will no 

longer be able to rely on freedom of choice as the 

method for disestablishing their dual school sys— 

tems. 

This may mean that the tasks for the courts 

will become more difficult. The District Court 

itself has stated that it "does not possess any of 

the training or skill or experience or facilities 

to operate any kind of schools; and unhesitatingly 

admits to its utter incompetence to exercise or 

exert any helpful power or authority in that area." 

And this Court has observed that judges "are not 

educators or school administrators." United States 
  

v. Jefferson County Board of Education, supra at 
    

855. Accordingly, we deem it appropriate for the 

Court to require these school boards to enlist the 

assistance of experts in education as well as 

desegregation; and to require the school boards to 

cooperate with them in the disestablishment of their 

dual school systems. 

ith respect to faculty desegregation, little 

progress has been made. ~feven school districts have 

less than one full-time teacher per school assigned 

wll ee 

 



  

across racial lines. In the remaining systems, 

fewer than 10 percent of the full-time faculties 

teach in schools in which their race is in the 

minority. Faculties must be integrated, and it 

is appropriate to require that "in each school 

the ratio of white to Negro faculty members is 

substantially the same as it is throughout the 

system." United States v. Montgomery County Board 
    

  

  

Of Fducation, No, 798, at 8 (Sup. Ct., June 2,.1989), 

Minimum standards should be established for making 

substantial progress toward this goal in 1969 and 

finishing the job by 1970. United States v. Board 
  

of Education of the City of Bessemer. 396 F.2d 44 
  

{5th Cir. 19068). 

The order of the District Court in each case 

is reversed and the cases are remanded to the 

District Court with the following direction: 

l. These cases shall receive the highest 

Priority. 

2. The District Court shall forthwith reguest 

that educators from the Office of Education of the 

United States Department of Hzalth, Education and 

-5. 

 



  

Welfare collaborate with the defendant school boards 

in the preparation of plans to disestablish the dual 

school systems in question. The disestablishment 

plans shall be directed to Ss tudent and faculty 

assignment, all facilities, all athletic and other 

school activities, and all school location and construc 

tion activities. The District Court shall further 

require the school boards to make available to the 

Office of Biucation or its designees all requested 

information relating to the operation of the school 

systems. 

3. The board, in conjunction with the Office 

of Education, shall develop and present to the District 

Court before August 1, 1969, an acceptable plan of 

desegregation. 

4. If the Office of Education and a school 

board agree upon a plan of desegregation, it shall 

be presented to the District Court on or before 

August 1, 1969. The court shall approve such plan 

for implementation commencing with the 1969 school 

year, unless within seven days after submission to 

the court any party files any objection or proposed 

amendment thereto alleging that the plan, or any 

part thereof, does not conform to constitutional 

standards.