United States v. Jefferson County Board of Education Brief for Intervenors and Motion for Leave to File

    IN  THE

Court at
FOR THE FIFTH  CIRCUIT

No. 23,345
UNITED STATES OF AMERICA,

Appellant-Intervenor,

LINDA STOUT, by her father 
and next friend, BLEVIN STOUT,

Intervenor,
vs.

JEFFERSON COUNTY BOARD OF 
EDUCATION, et al.,

Appellees.

No. 23,335
UNITED STATES OF AMERICA,

Appellant-Intervenor f

DORIS ELAINE BROWN, et at,
Intervenors,

vs.
THE BOARD OF EDUCATION OF 
THE CITY OF BESSEMER, et at,

Appellees.

No. 23,331
UNITED STATES OF AMERICA,

Appellant-Intervenor,
GEORGE ROBERT BOYKINS, et a t,

Intervenors,
vs.

FAIRFIELD BOARD OF EDUCATION, 
et al.,

Appellees.

No. 23,274
UNITED STATES OF AMERICA,

Appellant-Intervenor,
BERYL N. JONES, et a t ,

Intervenors,
vs.

CADDO PARISH SCHOOL BOARD, 
et at.

Appellees.

ON APPEAL PROM THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN DISTRICT 
OP ALABAMA AND WESTERN DISTRICT OP LOUISIANA

BRIEF FOR INTERVENORS AND MOTION FOR LEAVE TO FILE

DAVID H. HOOD
2001 Carolina Avenue 
Bessemer, Alabama

JESSE N. STONE, JR. 
854% Texas Avenue 
Shreveport, Louisiana

A. P. TUREAUD
1821 Orleans Avenue 
New Orleans, Louisiana

SHEILA RUSH JONES 
CONRAD K. HARPER  
FEED WALLACE 
GERALD A. SMITH 

Of Counsel

JACK GREENBERG 
JAMES M. NABRIT, III  
MICHAEL MELTSNER 
NORMAN AMAKER 

10 Columbus Circle 
New York, New York

OSCAR W. ADAMS, JR.
1630 Fourth Avenue North 
Birmingham, Alabama

DEMETRIUS C. NEWTON 
408 North 17th Street 
Birmingham, Alabama

Attorneys for Intervenors



I N D E X

PAGE

Motion for Leave to File Interveners’ Brief or in the 
Alternative to File Brief Amicus Curiae ............... . 1

Statement ........................................................................  3
A. No. 23,345 Jefferson County Board of Educa­

tion .................................-.................................... 3
The Original Desegregation P la n ........ ............  4
The Amended Desegregation Plan ...................  5
General Transfer Procedure ............................. 5
Attendance Zones ..............................................  6
Teacher and Staff Segregation......................... 8
Unequal Negro Schools ...................................  9

B. No. 23,335 Board of Education of The City
of Bessemer ...................................................... 10
Summary of Litigation ............    10
Summary of the Hearings ...............    13
Transfer Procedure Under the Plan .......   14
Comparison of White and Negro Schools .... . 15
Faculty Desegregation .........     18

C. No. 23,331 Fairfield Board of Education..........  19
D. No. 23,274 Caddo Parish School Board ..........  25

Specification of Error ...................    29



l/

y

ii
PAGfi

A r g u m e n t

I. The Plans Approved by the District Courts 
Fall Short of This Court’s Standards With 
Regard Both to Pupil and Teacher Desegre­
gation .............——-............................ ................ 30

II. The Inferiority of Negro Schools (1) Entitles 
Negro Students to a Right of Immediate Trans­
fer In All Grades and (2) Requires the School 
Board to Devise a Plan Which Maximizes 
Desegregation .............................    45

C o n c lu sio n  ....................................................................  48

Certificate of Service...................................................... 49

T able of C ases

Anderson v. Martin, 375 U.S. 399 .................................. 42
Armstrong v. Board of Education of City of Birming­

ham, 323 F.2d 333 (5th Cir. 1964) ........................ . 11
j Armstrong v. Board of Education, Birmingham, Ala.,

333 F.2d 47 (5th Cir. 1964) ......................................   3

Beckett v. School Board of Norfolk, Civ. No. 2214
(E.D. Va.) ............................     40

Boson V. Rippy, 285 P.2d 43 (5th Cir. 1960) ..... ..... . 37
Bradley v. School Board of Richmond, 382 U.S.

103 ........................................................................30,37,41
Brooks V. County School Board of Arlington, Vir­

ginia, 324 F.2d 303 (4th Cir. 1963) ..... ......................  37
Brown V. Board of Education, 347 U.S. 483 (1954) ....25,45

Carr, et al. v. Montgomery Board of Education, Civ.
No. 2072-N (N.D. Ala. March 22, 1966) ..... .......... . 47



lU

PAGE

Dove V. Parham, 282 F.2d 256 (8th Cir. 1960) ..........  37
Dowell V. School Board of Oklahoma City Public 

Schools, 244 F. Supp. 971 (W.D. Okla. 1965) .......38,44

Goss V. Board of Education, 373 U.S. 683 ..................37, 42
Griffin v. County School Board of Prince Edward 

County, 377 U.S. 218 ......................................... ........  37

Houston Independent School District v. Ross, 282 F.2d 
95 (5th Cir. 1960) .....................................................  37

Kemp V. Beasley, 352 F.2d 14 (8th Cir. 1965) ..............  44
Kier v. County School Board of Augusta County, Vir­

ginia, 249 F. Supp. 239 (W.D. Va. 1966) ..............38, 44

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) .. 45

Price V. Denison Independent School District Board 
of Education, 348 F.2d 1010 (5th Cir. 1965) ....3,13, 30, 44 ^

Rogers v. Paul, 382 U.S. 198 ........ ........... ................... 45
Ross V. Dyer, 312 F.2d 191 (5th Cir. 1963) ............... . 37 '

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865 (5th Cir. 1966) .... .....30, 31, 32, 36, 37

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (5th Cir. 1965) ..............3,13,35,44

Sipuel V. Board of Regents, 332 U.S. 631 (1948) ......... . 45
Sweat! v. Painter, 339 U.S. 629 (1950) ......... .......... . 45

United States v. Bossier Parish School Board, 349 
F.2d 1020 (5th Cir. 1965) ............... ........................  28 1/



IV.

S ta tu tes

PAGE

Title VI, Civil Rights Act of 1964 ................................ 42
42 U.S.C. §2000h-2 ............................... ..........................  28
Rule 24, P.R. Civ. P ........................................................  28

O t h e r  A u t h o r it ie s

Opinion of Attorney General of California, 8 Race Rel.
L. Rep. 1303 (1963) ................................................   39

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act 
of 1964

§§181.13 ..................................................................  42
181.13(b) ..........................................    38
181.13(d) ............................................................. 38
181.15 .......  48

Statistical Summary of School Segregation-Desegre­
gation in Southeim and Border States, 15th Revi­
sion, December 1965 (Southern Education Report­
ing Service) ...........................................   41



IN  THE

Court of
FOE THE FIFTH  CIRCUIT

No. 23,345

UNITED STATES OF AMERICA,
Appellant-Intervenor,

LINDA STOUT, by her father 
and next friend, BLEVIN STOUT,

Intervenor,
vs.

JEFFERSON COUNTY BOARD OF 
EDUCATION, et ah,

Appellees.

No. 23,335

UNITED STATES OF AMERICA,
Appellant-Intervenor,

DORIS ELAINE BROWN, et al,
Intervenors,

vs.

THE BOARD OF EDUCATION OP 
THE CITY OP BESSEMER, et a l,

Appellees.

No. 23,331

UNITED STATES OF AMERICA,
Appellant-Intervenor,

GEORGE ROBERT BOYKINS, et al.,
Intervenors,

vs.

FAIRFIELD BOARD OP EDUCATION, 
et al..

Appellees.

No. 23,274

UNITED STATES OP AMERICA,
Appellant-Intervenor,

BERYL N. JONES, et al,
Intervenors,

vs.

CADDO PARISH SCHOOL BOARD, 
et al..

Appellees.

ON APPEAL PEOM THE UNITED STATES DISTRICT COURTS EOR THE NORTHERN DISTRICT 
OF ALABAMA AND WESTERN DISTRICT OP LOUISIANA

Motion for Leave to File Intervenors’ Brief or in 
the Alternative to File Brief Amicus Curiae

April 8, 1966, Negro school children and parents, here­
inafter referred to as intervenors, moved this Court for 
leave to intervene as party-appellants in Stout, et al. v. 
Jefferson County Board of Education, (No. 23,345); Brown, 
et al. v. Board of Education of the City of Bessemer, 
(No. 23,335); Boykins, et al. v. Fairfield Board of Educa-



tion, (No. 23,331); Jones, et al. v. Caddo Parish School 
Board, (No. 23,274); on the ground that as original party- 
plaintiffs in each of these actions they had failed, through 
inadvertence, to file timely notice of appeal, but were 
desirous of making their views known to the Court and 
aiding the Court in adjudication of the serious constitu­
tional questions involving their interests which are raised.

As of April 21, 1966, intervenors have not received 
notice of action by the Court with respect to the motion 
to intervene and have been informed by the Office of the 
Clerk that action by the Court is unlikely before April 25, 
1966, the date on which appellant’s (United States of 
America) brief is due to be filed with the Court. In order 
not to cause delay should the motion to intervene be 
granted, intervenors adopt and incorporate their motion 
to intervene herein, lodge copies of this brief with the 
Clerk, and serve copies upon all counsel prior to learning 
of the disposition of the motion to intervene. Should the 
motion to intervene be denied, Negro school children and 
their parents, original plaintiffs below, respectfully move 
the Court to grant leave to file this brief amicus curiae.

Because of the presence of common questions of law 
and fact, the attached brief combines intervenors’ argu­
ments No. 23,345 (Jefferson); No. 23,335 (Bessemer); 
No. 23,331 (Fairfield); No. 23,274 (Caddo).

Respectfully submitted,

M ic h a e l  M e l t sn e b

10 Columbus Circle 
New York, New York 

Attorney for Intervenors



BRIEF FOR INTERVENORS

Statement

A. No, 2 3 ,3 4 5  Jefferson County Board o f Education

On June 4, 1965, Linda Stout, by her father and next 
friend Blevin Stout, filed a class action against the Jef­
ferson County, Alabama, Board; of Education and Dr. 
Kermit Johnson, Superintendent (E. 9), seeking deseg­
regation of all schools under the appellees’ control. A 
motion for preliminary injunction was also filed seeking 
complete desegregation either by court order or by a 
desegregation plan (E. 17-19). Appellees filed an answer 
June 22, 1965 (R. 20) and a hearing was held the same 
day (R. 77-149). On June 24, 1965 (R. 23-28), the district 
court ordered appellees to file a desegregation plan parallel­
ing the plan required by this Court in Armstrong v. Board 
of Education, Birmingham, Ala., 333 F.2d 47 (5th Cir. 
1964), not later than June 30, 1965. Appellees filed their 
plan June 30, 1965 (R. 29-37) and objections were filed 
July 9, 1965 (R. 38-40). On July 12, 1965, the United 
States moved to intervene as a party. The motion was 
granted by the district court, and the United States filed 
objections to the plan (R. 41-45). The district court over­
ruled all objections in an opinion filed July 23, 1965 
(R. 52-53).

On August 17, 1965, this Court vacated and remanded 
the district court’s judgment in the light of Singleton v. 
Jachson Municipal Separate School District, 348 F.2d 729 
(5th Cir. 1965), and Price v. Denison Independent School 
District Board of Education, 348 F.2d 1010 (5th Cir. 1965) 
(R. 56-57). On August 20, 1965, the government filed a



motion in the district court for an order in conformity 
with this Court’s mandate (R. 58-59). Appellees filed an 
amendment to their desegregation plan August 27, 1965 
(E. 66-68) and on the same day the district court, over­
ruling objections, required appellees to report on the ob­
jections by December 31, 1965 (R. 70-71). The government 
filed a notice of appeal from the August 27, 1965 order 
of the district court on October 25, 1965 (R. 72). Appellees’ 
counsel filed a statement in the district court December 28, 
1965, noting that without further court order, appellees 
would not report on the objections to the plan because 
of the pending appeal (R. 74-75).

The Jefferson County school system consists of 117 
schools and about 18,000 Negro students and 45,000 whites. 
The system serves all of the territory in Jefferson County 
except the cities of Birmingham, Bessemer, Torrant, 
Mountain Brook, and Fairfield (R. 80). Until the time 
this suit was filed, no desegregation had taken place in 
the school system. The superintendent testified that no 
application for a transfer designed to effect desegregation 
had ever been received by the board (R. 94-95), but he 
later conceded that no notice had ever been given that 
pupils could transfer in order to effect desegregation 
(R. 143).

T he O riginal D esegregation Plan

Appellees’ original desegregation plan provided for 
desegregation of first, ninth, eleventh, and twelfth grades 
for the 1965-66 school year; second, third, eighth and tenth 
grades for 1966-67; and fourth, fifth, sixth and seventh 
grades for 1967-68. Desegregation of ninth, eleventh, and 
twelfth grades in 1965-66 was to be accomplished by



processing of applications requesting transfer from a 
segregated school to one where the transfer will result 
in desegregation. All other students in the ninth, eleventh, 
and twelfth grades were to remain in segregated schools. 
As to first grade, parents were to take their child to the 
segregated school in their vicinity on the first school day. 
At that time, they were to apply for assignment of 
the child to any school and appellees were thereafter to 
rule on the applications. Students whose parents failed 
to make such applications were to be enrolled in the school 
to which they initially reported (R. 31-37). No provision 
was made for admission of named plaintiff to a formerly 
white school.

T he A m ended D esegregation P lan

Appellees filed August 27, 1965, an amended desegrega­
tion plan following this Court’s vacating of the district 
court’s judgment approving the original plan. The amended 
plan simply included the seventh grade among those to 
be desegregated, varied the notice requirements and the 
times for filing applications, and explicitly provided that 
students new to the school system could transfer to the 
school of their choice in the desegregated grades (R. 66-68).

General T ransfer Procedure

The Jefferson County school system has no definite 
attendance zones. In general students go to the nearest 
school serving their race (R. 88, 90). As to transfers 
between segregated schools, no particular time is set 
(R. 93); of the total of 200 transfer requests filed, only 
10 were rejected and of the 15 requests by Negroes, only 
one was rejected (R. 208-10). Under the plan, and in 
accordance to prior transfer procedure, the parents of 
first graders must apply in person at the superintendent’s



6

office to request a transfer. Most transfers are subject 
to the seventeen criteria similar to those found in the 
Alabama Pupil Placement Law, e.g., morals and psycho­
logical state of the child (R. 103-04).

A ttendance Zones

The superintendent testified that g'eographical zoning, 
i.e., assignment of pupil to school nearest his home regard­
less of race, has not been adopted because of its in­
flexibility and the fact that it would mean more segrega­
tion (R. 239-40, 244) in a system having no desegregation 
prior to this action. The superintendent said that geo­
graphic zoning would be “difficult to administer from the 
standpoint of working with the public, having to satisfy 
the parents” (R. 134). He also said g’eographic zoning 
would make student assignment easier but that it would 
not solve the problems of teacher load, building use (R. 
177) and “forcing people to go to school where they prefer 
not to go” (R. 187). The plan does not envisage assigning 
white children to Negro schools (R. 174-75).

The superintendent was disputed regarding his con­
clusions on geographic zoning by appellant’s expert. Dr. 
Myron Lieberman, a professor at Rhode Island College. 
Dr. Lieberman testified (R. 255-66) that the plan failed 
to utilize schools properly, thus Negroes were bussed to 
overcrowded Negro schools when there were much closer 
white schools.  ̂ In this respect, he found the plan wasteful. 
Dr. Lieberman further testified that the plan was deficient 
in not informing the public of which schools were and 
which were not overcrowded. The plan neglected to in­
clude the tenth grade where there is the greatest number

’ The superintendent testified that all students living over two miles 
from their schools were bussed and that bus routes overlapped because of 
segregated passengers (E, 123-24, 127).



of drop-outs in the school system. Other than community 
opposition to desegregation, no justification was offered 
in the plan for limiting the number of grades to be deseg­
regated.

Dr. Lieberman observed that the criteria for transfers 
seemed to be different from the criteria for initial assign­
ment to a school; for such a dilference he saw no educa­
tional justification. None of the 17 criteria similar to those 
of the Alabama Pupil Placement Law would aid an edu­
cational administrator in determining whether a student 
should be allowed to transfer or should be assigned to a 
particular school. The best criteria would be the proximity 
of the pupil to the school. At best, appellees’ plan would 
result, stated Dr. Lieberman, in token desegregation. No 
educational justification existed for the requirement that 
a pupil’s parents attempt to secure transfers in person.

Dr. Lieberman testified that Negro pupils attending 
the following schools, lived, as shown by exhibits, maps 
and enrollment figures, closer to white schools having the 
capacity to absorb them; Sumpter, Johns, Agder, Mc- 
Adory, Shannon, Alliance Elementary, North Collie, Do- 
cena, Cahaha Heights, Eoebuek Plaza and Trafford Ele­
mentary. Dr. Lieberman gave the following examples:

[T]he Negro Muscoda School, has a capacity of 231 
and an enrollment of 311, which means it is 80 students 
over capacity, according to figures given by the Board. 
There are three white schools very close by, Bayview, 
Docena and Mulga and Bayviev/ is 153 under capacity, 
Docena 241 and Mulga White School 260 under.

The Brighton white elementary school is listed as 
having a capacity of 330 students and enrollment of 
64 . . . that means it had a capacity of 266 students. 
In the general area, Wilkes School is listed as having



a capacity of 231 and enrollment of 137. In that area, 
the Negro schools are all over capacity. Eavine has 
a capacity of 198 and enrollment of 266. Brighton 
has a capacity of 330 and enrollment is 543. Pipe 
Shop has a capacity of 363 and an enrollment of 518.

Ketona High School and Springdale both are listed 
as having the same capacity, 528. They are very 
close, practically touching each other on the map . . . 
The Negro school is shown to have an enrollment of 
912, Ketona, and the other school which is supposed 
to have the same capacity, has only 583 students.

Dr. Lieberman emphasized that in a geographical zone 
system a more effective utilization of school buildings 
and buses could be effected. Transfers are allowed for 
legitimate reasons in such a system and that “no over­
whelming reason” exists which would bar the adoption 
of this type of plan in the Jefferson County School System.

T eacher and Staff Segregation

The superintendent revealed that he considered it dif­
ficult for a teacher to teach children of different races 
(R. 190). He believed that a Negro teacher would find 
it more difficult to teach an all-white class than a white 
teacher having an all-Negro class (E. 139; cf. R. 144-45, 
147-48). This belief was based on problems arising from 
the “traditions and practices of our people” (R. 144), 
particularly the reaction of parents (R. 144-45). Ap­
pellees’ plan does not mention faculty desegregation for 
the system’s 2268 teachers, of whom 600 are Negroes 
(R. 118). All Negro teachers have the requisite degrees 
for teacher’s certificates but not all of the white teachers 
are so qualified (R. 119-20). Negro and white supervisory



9

personnel not only have different jurisdictions, they also 
are segregated from each other; thus white personnel 
work at the central staff office and Negroes are in other 
places (R. 122-23).

U nequal Negro Schools

The superintendent testified that although there is only 
one vocational school for white boys, Negro high schools 
have comparable vocational subjects not offered in white 
schools (R. 146). The only high school not accredited by 
the Southern Association is Negro Praco high which the 
superintendent said had not applied for an accreditation 
(R. 220). The Negro Rosedale school has grades 1-12; 
white Shades Valley school has grades 10-12 (R. 221). 
The two schools are about half a mile from each other. 
Rosedale has five or six acres; Shades Valley has about 
twenty acres. Shades Valley has an auditorium, a stadium 
and a separate gymnasium; Rosedale lacks a stadium and 
a gymnasium (221-22, 232)." Although the superintendent 
could name five white schools having summer school ses­
sions, he could not “recall” other schools having such ses­
sions (R. 232). In Negro Docena Junior High School, there 
are pot-bellied stoves rather than central heating and stu­
dents must go a block away to use toilet facilities (R. 233- 
34). Because of alleged “ground absorption”, Negro Gary- 
Ensley Elementary School has outdoor toilet facilities 
(R. 234). The superintendent could not recall a Negro 
school which had a stadium with seats and lights. He stated 
that Negroes have not wanted to play football at night 
(R. 235). Most stadiums and lights, including an $80,000 
stadium at white Berry High School, have been provided, 
according to the superintendent, by citizen efforts (R. 235-

2 By way of contrast to the Eosedale-Shades Valley situation, the super­
intendent testified that Negro Wenonah High School had facilities superior 
to white Lipscomb Junior High School (E. 240-41).



10

36). He did state, however, that the school system gives 
assistance to such efforts by grading the ground and fur­
nishing the light fixtures (R. 236).

In an apjoendix to Intervening Plaintiff’s Exhibit No. 1, 
the government showed that of the 79 white and 32 Negro 
schools listed, 81.3% of the Negro schools and only 54.4% 
of the white schools had a student enrollment above ca­
pacity. This meant that 33.3% of the Negro students or 
4,587 Negroes were enrolled in schools having over capacity 
population, but that only 10.1% of the white students or 
4,125 whites were enrolled in such schools. The govern­
ment also showed that 45.6% of white schools but only 
18.7% of the Negro school enrollments were under capacity 
(R. 203).

B. No. 2 3 ,3 3 5  Board o f E ducation o f T he City o f B essem er

In May 1955, a petition requesting changes in the Bes­
semer school board’s practice of assigning students to 
schools on the basis of race was presented to the Board 
(R. 110-111, 184). No action was taken by the Board to 
desegregate the school system. On March 23, 1965, a sec­
ond petition, signed by Bessemer Negro organizations,’* re­
questing the desegregation of the system was presented to 
the board. No answer had been received by the time the 
complaint was filed (R. 15).

Sum m ary o f L itigation

On May 24, 1965, a complaint was filed by Negro parents 
and pupils residing in Bessemer, against the school author­
ities requesting relief against the school board’s policy of

8 Bessemer Branch of the N.A.A.C.P., Colored Masonic Lodge, Bessemer 
Civil League, Bessemer Voters League, Bessemer Business Professional 
Men and Women (R. 111).



11

maintaining a segregated school system. Plaintiffs specifi­
cally requested, inter alia, to attend the schools closest to 
their homes and to be relieved from transfer criteria not 
required of white pupils seeking assignment or transfer 
(E. 16-17). In the alternative, they requested a plan re­
organizing the dual racial zones into single, nonracial, 
geographic zones for all grades, with students assigned 
to the schools closest to their residence (E. 17).

The answer admitted that the Bessemer school system 
was segregated and that a petition requesting desegrega­
tion had been filed. The board asserted there had been no 
request by a Negro student for a transfer to a white school 
(E. 28). On June 21, 1965, the motion of the United States 
of America to intervene Avas granted (E. 20-21).

At a June 30, 1965 hearing on the request for injunctive 
relief. Judge Seybourn Lynne stated he would require 
prompt submission of a plan rather than grant the specific 
relief requested (E. 90, 128-129). He further stated that 
his order avouH  meet the minimum standards set forth in 
Armstrong v. Board of Education of City of Birmingham, 
323 F.2d 333 (5th Cir., 1964) (E. 179). The order enjoined 
defendants “from requiring segregation of the races at any 
school under their supervision from and after such time as 
may be necessary to make arrangements for admission of 
children to such schools on a racially, non-discriminatory, 
basis” (E. 41). The board was ordered to submit a plan 
which would commence September, 1965 and eventually ap­
ply to all grades and pupils newly entering the system 
(E. 41-42).

The plan filed July 9, 1965 provided for the transfer to 
a school attended by pupils of another race by pupils in 
three grades—4th, 7th, and 10th. Negro children entering 
the first grade were required to report to a Negro elemen-



12

tary school to register. After registering, the parents could 
then apply for transfer to another school. The filan re­
quired that transfer applications be filed by the parents at 
the office of the Superintendent before August 13, 1965. 
For the following year when the plan reached grades 2, 
5, 8, and 11, applications were to be filed between May 1 
and May 15 (B. 43-45). By the 1967-68 school year, students 
in all grades would be eligible to apply for transfer. The 
plan specifically provided for all other students to remain 
in schools to which they were assigned (R. 45-46). All 
applications were to be filed “in accordance with the regula­
tions of the Board” (E. 45). Notice of the time for ap­
plication to transfer was to be published once in a city 
newspaper (R. 46).

Objections to defendants’ plan were filed on July 15, 1965, 
and July 19, 1965, pointing out, inter alia: (a) failure to 
provide for nonracial, initial assignment for students newly 
entering the Bessemer school system, (b) failure to include 
grade 12 to insure Negro students still in school would have 
“some measure of desegregation before graduation”, (c) 
absence of any provision abolishing dual racial zones, (d) 
failure to provide for transfer by Negro students in order 
to obtain a course not offered at a Negro school, (e) ab­
sence of a provision for transfer by Negro students who 
attend educationally inferior schools, (f) failure to provide 
that if the number of students desiring transfers exceeded 
a school’s capacity, assignment would be based on prox­
imity to the school, and (g) failure to provide for the 
desegregation of teachers and supervisory personnel. A 
hearing on the objections to the plan was held on July 29, 
1965 (E. 181). Subsequently, Judge Lynne overruled plain­
tiffs’ objections and approved the plan after modifying it 
to include grade 12 instead of grade 4 for the 1965-66 school



13

year and to require that the notice be published for three 
days instead of one day (E. 64-67). On August 17, 1965, this 
Court vacated the district court’s judgment and remanded 
the case for further consideration in light of Singleton v. 
Jackson Municipal Separate School District, 348 F.2d 729 
(5th Cir., June 22, 1965) and Price v. Denison Independent 
School District, 348 F.2d 1010 (5th Cir., July 2, 1965) (R. 
68-72).

On August 27, 1965, the board filed an amended plan in­
corporating modifications ordered by the district court, by 
adding grade 4 to the three grades to be desegregated for 
1965-66, and extending the deadline until September 1 for 
4th graders desiring transfers. On the same day the court 
approved the amended plan. Noting that objections deal­
ing with initial assignments had merit the court required 
the board to restudy the plan and report its conclusions be­
fore December 31, 1965 (R. 86).

The United States filed notice of appeal on October 25, 
1965 (E. 88).

Sum m ary o f the H earings

Although prior to filing a desegregation plan Bessemer 
school assignments were based on attendance zones, the 
school board submitted and the court approved a desegrega­
tion plan which, according to Dr. Janies 0. Knuckles, the 
superintendent, switched the Bessemer schools to a free­
dom of choice system (R. 237-245). He testified that under 
the new system:

All those who feel . . . that the programs are differ­
ent . . .  or better .. . will have an opportunity to request 
transfer and/or assignment to another school. They 
will not be bound to attend the school nearest to them 
under the freedom of choice program (E. 245).



X4

Dr. Knuckles admitted that under the existing school at­
tendance zone lines, which were in no way changed or abol­
ished under the desegregation plan, white and Negro zones 
overlapped with Negro students sometimes living closer to 
white schools and vice-versa (E. 108-109). Dr. Knuckles 
further testified that to maintain meaningful attendance 
zones all that was required was a map of student residences 
as of a particular date (E. 238-239). While it was more 
burdensome to administer a freedom of choice system than 
to redraw the attendance zones, he and the board were 
willing to undertake the burden (E. 242-249).

In the past, however, school attendance zone lines have 
been changed after the school semester started, even where 
the change involved shifting students from one school to 
another, transferring teachers, setting up makeshift class­
rooms, and closing other classrooms (E. 242-244). To ac­
complish this, the board simply decided what needed to be 
done without a public hearing and attempted to enlist pub­
lic acceptance of the change. Before he could change at­
tendance zones to accomplish desegregation, however, Dr. 
Knuckles stated he would have to consider whether the 
school patrons would willingly accept such a change (E. 
241).

T ransfer Procedure Under the Plan

At the June 30, 1965 hearing on the motion for injunctive 
relief. Dr. Knuckles testified that no desegregation steps 
had been taken except the adoption of a transfer form and 
procedure (E. 153-155, 253-254). That procedure required 
principals to refer any applicants whom they “questioned” 
to the superintendent. The parents of any student thus 
referred was required to apply in person at the superin­
tendent’s office. The application form, which included space



15

for standard test scores, grades, and record of behavior 
and citizenship, would be reviewed by both the superin­
tendent and the board and assignments made in accordance 
with the Pupil Placement Law (R. 253-254). Although Dr. 
Knuckles stated that the new procedure and fonns would 
apply to whites, it became clear at the hearing on objec­
tions that they applied only when a Negro applied to attend 
a white school, or a ŵ hite airplied to attend a Negro school 
(R. 261).

The transfer procedures and policies for non-racial trans­
fers remained unchanged. According to Dr. Knuckles, 
under the regular transfer policy the board attempted to 
accommodate the desires of parents provided no over­
crowding resulted (R. 149). Dr. Knuckles stated transfers 
were initiated by letters or phone calls, that there were no 
fixed times to apply and no fixed criteria other than the 
guidelines enumerated in the Pupil Placement Law (R. 
107). Proximity to the school requested and the child’s 
capacity to learn were considered but no tests were re­
quired (R. 150-153). After one year of operation, 13 Negro 
pupils attended former white schools under the plan. (See 
affidavit attached to memorandum in support of motion to 
consolidate and expedite Nos. 23,173; 23,192; 23,274; 23,- 
331; 23,335; 23,345; and 23,365 filed by the United States 
in this court Ajjril 4, 1966.)

C om parison o f W hite and Negro Schools

Although all Bessemer schools have been accredited by 
the Alabama Department of Education, the only school ac­
credited by the Southern Association is Bessemer High 
School, the white high school (R. 161-163). Accreditation 
by the Southern Association is based upon requirements 
concerning libraries, materials, minimum equipment and



16

laboratory space, and in years past, according to Dr. 
Knuckles, has entitled the graduate of such a high school 
to automatic admittance to many colleges and universities 
(R. 161).

Dr. Knuckles admitted that many more electives are of­
fered at Bessemer High School than at the Negro high 
schools, including Latin, Spanish, and Journalism (R. 167- 
168, 227-229). Dr. Knuckles explained that such courses 
were available as a result of community pressure and stu­
dent demand (R. 166-167, 176). However, two Negro stu­
dents stated that they and others had requested second 
year French at Carver High School but it was not made 
available (R. 229, 234). Another Negro student attending 
Carver High School testified that he wanted to attend 
Bessemer in order to take courses unavailable at the Negro 
school (R. 223). The Carver students also testified that 
they conducted very few experiments in chemistry and 
physics (R. 227-228), with one student testifying that only 
the students who purchased their own materials conducted 
experiments (R. 235). The pupil-teacher ratio at Bessemer 
High School was 19.08 while at Carver and Abrams, the 
ratio was 25 plus. The Negro ratio includes vocational 
teachers (R. 162-163). Only the white schools operated 
on the 6-3-3 system with junior high schools bridging the 
gap between elementary and secondary schools, although 
the system improves educational opportunities (R. 145).

At the hearing on the objections to the plan, Mr. Wil­
liam L. Stormer, of the United States Office of Education, 
Department of Health, Education, and Welfare, an expert"

 ̂Mr, Stormer spent 2% years working with the Department of Health, 
Education and Welfare evaluating and estimating the need for school 
facilities throughoixt the nation. He received his Master’s Degree in 1954, 
at the University of Wyoming. During 1957-58 he was associated with 
Ohio State University Plant Division, and from 1959 until taking the job



17

in evaluating and estimating the need for school facilities 
throughout the country, testified that all four white ele­
mentary schools in Bessemer ranked higher than the four 
Negro schools with one exception, and that both Negro 
high schools were lower than the white high school. In 
making his evaluation, Mr. Stormer considered school site, 
building structure, classrooms, special instructional space, 
and the general use of facilities. He testified that the 
Negro Abrams School, the newest building housing Negro 
students, showed signs of structural deterioration and was 
questionably located. He also found Abrams science and 
storage facilities questionable, and science classroom space 
limited (R. 194-195).

Dr. Knuckles also admitted that railroad tracks bordered 
five of the six Negro schools (E. 138) and that only Negro 
students were taught in frame buildings (R. 115). On 
the basis of photographs offered into evidence (R. 138), 
he also testified that the auditorium at Abrams High 
School is partitioned into 8 sections and used for classes. 
The partitions go % of the way to the ceilings and lighting 
is supplied by bare globes suspended from the ceiling. 
He admitted that more adequate lighting was needed, 
that paint was peeling “pretty badly” from the building, 
and that the windows badly needed repair (R. 139-140). 
A photograph showed rainstained cardboards in some of 
the broken windows.

Other photographs showed the Carver High School site, 
with two wooden frame buildings used for classrooms, 
illuminated by single light bulbs hanging from drop-cords, 
and heated by coal stoves located in each room. Although

with the United States, he was Director o£ School Plant Planning- and 
Studies for the State Department of Education for West Virginia. He is 
a member of the National Council of School Housing Construction (E. 
188-190).



18

Dr. Knuckles testified that it was the janitor’s respon­
sibility to refuel the stoves (E. 141, 142-143), Morris 
Thomas, a Negro student attending Carver High School, 
testified that the students fired the stoves (R. 219-221). 
Another student stated that a classroom was partitioned 
into two sections (R. 224). Dr. Knuckles admitted that 
neither of the frame buildings on the Carver site provided 
adequate classroom facilities. Carver also is immediately 
adjacent to an automobile junk yard (R. 143).

Photographs of Dunbar, a Negro elementary school, 
showed many broken windows and considerable broken 
glass around the building (R. 136-137). Dr. Knuckles 
stated that the School Board planned to remodel Dunbar 
although the money was not yet available and there would 
be no renovation by Pall 1965 (R. 137-138).

Faculty D esegregation

Dr. Knuckles testified that all Negro teachers in the 
Bessemer school system met the minimum requirements of 
the board but no steps had been taken to desegregate 
teaching staff and other supervisory personnel because 
of “community pressure” and “the desire on the part of 
the teacher” (R. 120-123). Also, nothing had been done 
to desegregate a system-wide monthly teachers general 
meeting (R. 249-251).

The only Negro in a supervisory capacity other than 
the principals of the Negro schools is Walter Branch, 
Director of Educational Services for the four largest Ne­
gro schools, who had held the position “only a few months” 
as of the hearing on injunctive relief. Although the board 
has a central office, Mr. Branch’s office is located at Abrams 
High School, a Negro school. Dr. Knuckles testified that 
no Negroes held clerical positions at the board’s central 
office in Bessemer (R. 116-118).



19

C. No. 2 3 ,3 3 1  Fairfield Board o f Education

The board maintains nine public schools in the City 
of Fairfield, Alabama which serviced a total school-age 
population of 3,095 children during the 1964-65 school term 
(Intervenor’s Exhibit No. 3). Of this number 2273 were 
Negro and 1822 were white (Ibid). By long term policy 
and practice, the board segregates Negro school children 
from white school children through the use of dual school 
attendance areas or zones.

The white schools in the City of Fairfield are organized 
on a 6-3-3 plan i.e. the first six grades being contained 
in one elementary school; the seventh, eighth, and ninth 
grades being contained in a junior high school; and the 
tenth, eleventh, and twelfth grades in a senior high school 
(R. 87, 96, 189-190). The 6-3-3 system is thought to be 
the most educationally sound school-organization plan by 
the school authorities of the State of Alabama and the 
City of Fairfield (R. 87, 96). The Negro schools are not 
organized on a 6-3-3 plan (R. 87, 96, 189-190). The schools 
serving Negro children are Englewood Elementary School 
(grades 1-8); Robinson Elementary School (grades 1-6); 
Interurban Heights Junior High School (grades 7 & 8); 
and Industrial High School (grades 9-12). (Intervenor’s 
Exhibit No. 3).

The teacher-pupil ratios for the 1964-65 school term at 
the various schools were these:

Grades 1-6
Negro White
Robinson 34/Teaeher Forest Hills 26/Teacher
Englewood 25/Teacher Donald 26/Teacher



20

Grades 7-9

Interurban 35/Teacher Fairfield Junior High 
28/Teacher

Grades 10-12
Industrial High 29/Teacher Fairfield 20/Teaeher 

(Computed from Intervenor’s Exhibits No. 3)

The plant facilities provided for the Negro children are 
greatly inferior to those provided for white students. The 
buildings are in disrepair (R. 217-218, 207-210); the 
lavatory facilities are unusable, in part, or otherwise of 
inferior quality or condition (B. 108-109 and Defendant’s 
Exhibits 7 & 8). The eating facilities are infested with 
vermin (R. 164-167, 218) and there is little if any recrea­
tional areas provided around the Negro schools while 
each white school is provided with ample grounds (B. 91- 
93, 97, 98, 210, 211, 212, 218). The per pupil values of 
the plant facilities of the Fairfield School System are 
these:
White Negro
Donald Elementary $ 753 Robinson Elementary $ 258
Forest Hills Englewood

Elementary 920 Elementary 492
Glen Oaks

Elementary 817
Fairfield Junior Interurban

High 699 Junior High 130
Fairfield High 2,476 Industrial High 1,525

(Computed from Defendant’s Exhibit No. 11)



21

Numerous courses which are offered to the white students 
in the junior and senior high schools are not offered to 
the Negro students in comparable grades in the various 
Negro schools (R. 90, 131-132, 215, 201). Guidance coun­
selors are provided for the white students at Fairfield 
High School and none are provided for the Negro students 
at Industrial High School. (Intervenor’s Exhibit No. 3).

In 1954 Negro parents petitioned the board to desegre­
gate the schools (R. 125-127, 220-223). Again in May, 
1965 Negro parents petitioned for desegregation (R. 125- 
127, 220-223). The board did not respond to either peti­
tion (R. 125-127, 220-223).

On July 21, 1965 Negro parents and school children 
brought suit against the board asking for a preliminary 
and permanent injunction against continuing segregation 
of the schools and teaching staffs (R. 14-23). On July 30, 
1965 the United States moved to intervene as a party 
and requested that the Fairfield school system be deseg­
regated (R. 24-29). On August 12, 1965 the board filed its 
answer admitting that Negro children are assigned to 
Negro schools and white children to white schools and 
that extra-curricular activities of the school are segregated 
by race (R. 30-33, see R. 31).

The cause came on for a hearing in the United States 
District Court for the Northern District of Alabama, South­
ern Division, on August 16, 1965 (R. 75). At that time, by 
agreement of the parties, the motion of the United States 
to intervene was accepted and the hearings were stipulated 
to stand as basis for a permanent injunction (R. 76). The 
district court found that there was an illegally segregated 
system in Fairfield and ordered the board to submit a plan 
during the two days next following August 16, 1965 (R. 84). 
The court then adjourned the hearing to August 20, 1965



22

at which time the plan and objections to it could be con­
sidered.

On August 17,1965, the board filed a Plan for Desegrega­
tion of Fairfield School System (R. 48), which provided in 
part that

(1) Negro children in the 9th, 11th, and 12th grades 
would be permitted to apply for transfers which transfers 
would “be processed and determined by the board pursuant 
to its regulations . . . ” (R. 49).

(2) Negro children entering the 1st grade would be as­
signed to Negro schools, but if both parents accompany 
the child and sign an application on the first day of school, 
the child would be permitted to apply to a white school 
(R. 50, 151-155).

(3) Applications to be acted upon for the 1965-66 term 
had to be filed at the office of the board between 8 :00 A.M. 
and 4:30 P.M. on August 30, 1965 (R. 50, 151).

(4) During the 1966-67 terms, the 2nd, 3rd, 8th and 10th 
grades would be desegregated. During the 1967-68 terms 
the remaining 4th, 5th, 6th and 7th grades would be deseg­
regated. Applications by students entering desegregated 
grades would be accepted from the period of May 1 through 
May 15 preceding the September school term opening for 
the desegregated grades (R, 50-51).

(5) Unless Negro students applied for and obtained 
transfer, they would be assigned to Negro schools (R. 51).

(6) The Board would publish in a newspaper of general 
circulation the provisions of the plan on three occasions 
prior to August 30, 1965 (R. 51).



23

On August 18, 1965 and on August 19, 1965 tliG Nogro 
plaintitfs and the United States respectively filed objec­
tions to the plan (E. 34, 38).

Pursuant to an order of the court the board filed an 
Amended Plan for Desegregation of Fairfield School Sys­
tem (R. 59). This plan provided that (1) Negro students 
in the 7th, 8th, 10th and 12th would be allowed to apply for 
transfer to white schools if their applications were sub­
mitted to the board on or before August 30, 1965, the ap­
plications to be processed by the board “pursuant to its 
regulations” (R. 60). (2) Negro children entering the 1st 
grade must attend a Negro school unless the parents of the 
child on the first day of school apply for his assignment 
at a white school (R. 61). (3) Applications of Negro chil­
dren for admission to white schools or white children to 
biegro schools are to be reviewed by the Superintendent 
“pursuant to the regulations of the board” (R. 61), (No 
similar process is required for applications of Negroes for 
transfer to Negro schools or white children to white schools.) 
(4) During the entire month of May 1966 applications by 
Negro children for transfer to white schools in the 2nd, 3rd, 
9th, and 11th grades for the 1966-67 school term will be 
accepted. (No time limit was provided by which Negro stu­
dents must be informed of whether their application has 
been accepted. No provision is made for publication of no­
tice prior to May of 1966) (R. 61-62 and 157-158). (5) 
During May of 1967 applications by Negro students for 
transfer to the remaining segregated 4th, 5th, and 6th 
grades will be accepted by the board for the 1967-68 school 
term. (No time limit is provided by which these Negro stu­
dents must be informed of whether their application is ac­
cepted. No provision is made for publication of notice prior 
to May of 1967) (E. 62 and 157-158). (6) Except for those 
students applying for and receiving transfer, the schools



24

within the Fairfield system will remain segregated. (7) 
One notice of the plan is to be published for three days 
prior to August 30, 1965 (R. 63).

By Order of August 23, 1965, the District Court over­
ruled the objections of the Negro plaintiffs and the United 
States and approved the amended plan of the board (E. 65). 
By opinion and decree of September 8, 1965 the court 
formalized its finding of a racially segregated school sys­
tem in the City of Fairfield and ordered the desegregation 
of that system jjursuant to the amended plan (R. 67-72).

These objections were in part, that the plan (1) sub­
jected Negro children to a screening process before allow­
ing them to transfer (R. 34, see 145, 147-151); (2) made 
no provision for the desegregation of bus transport to and 
from the schools (R. 35); (3) continued the dual zoning 
system (R. 35); (4) excluded six of the minor plaintiffs 
(R. 36); (5) failed to give sufficient notice (R. 36); and (6) 
did not provide for the enrollment of Negro children in 
wdiite schools offering courses which are not available in 
Negro schools (R. 39).

On August 20, 1965 the court considered the objections 
raised by the Negro plaintiffs and the United States (R. 
84). The United States sought to show that the inferior 
condition of the Negro schools should have some effect 
upon the rate of desegregation and the provisions of the 
plan submitted by the board but the district court held this 
evidence to be irrelevant (R. 169-170).

On October 22, 1965, the United States filed a Notice of 
Appeal from the order of the district court overruling its 
objections and approving the plan of the Fairfield Board of 
Education (R. 73).



25

D. No. 2 3 ,2 7 4  Caddo Parish  School Board

As of the May 4,1965 filing of the Complaint in this case, 
the Caddo Parish School Board operated and maintained 
a system of public schools in which students, teachers, and 
other personnel were assigned on the basis of their race 
(R. 74-81, 91-92). No Negro child attended any school in 
which white children were in attendance; no Negro teacher 
was employed at any school at which white children were 
in attendance (R. 74-75). Negro supervisors within the sys­
tem were charged with resjjonsibility only for Negro schools 
(R. 106). Athletic facilities and bus transportation were 
segregated (R. 107-08, 110-12). Racial separation within 
the system was maintained through the use of dual at­
tendance zones (R. 69, 81).

After the decision of the United States Supreme Court 
in Brown v. Board of Education, 347 U.S. 483, the parish 
school board made no etfort whatsoever to end the practice 
of racial segregation in the schools under its jurisdiction 
(R. 87). The board was of the opinion that it had no d u t^  
or responsibility to end racial discrimination in its schools 
until, and only to the extent that, it was ordered to do so 
by a court of the United States (R. 87-89).

There are approximately 72 schools under the jurisdic­
tion of the board (R. 191). Attending these schools are 
approximately 55,000 children of whom 24,000 are Negroes 
(R. 191, 189). There are 3,700 employees of the Parish 
School Board (R. 191) and of these, 2,200 are teachers 
(R. 191). — —^  /V ___ - W

By letter of March 23, 1965, Negro school children and 
their parents, by their attorney, notified the President of 
the board that they and other Negro children within the 
Parish desired to attend the public schools of the Parish 
without discrimination on the basis of their race (R. 60).



26

The board did not resijond to the request of these Negro 
children and their parents (E. 73), and complaint was filed 
in the United States District Court for the Western District 
of Louisiana, May 4, 1965 (R. 10). Suit was brought on 
behalf of the named Negro school children and on behalf 
of the other Negro children in Caddo Parish who were sim­
ilarly segregated and discriminated against by the parish 
school board (E. 3) and the complaint asked that the board 
be enjoined from (1) continuing to operate a compulsory 
biracial school system, (2) assigning students initially on 
a racial basis, (3) assigning teachers, principals and other 
professional personnel on the basis of race, and (4) requir­
ing or supporting segregated athletic and other extra­
curricular activities (R. 7-10).

The board filed answer to the complaint on May 24, 1965 
(R. 11) and hearing was held June 14, 1965, on the motion 
of the schoolchildren and their parents for preliminary 
injunction (R. 63). By agreement of the parties, the evi­
dence adduced served as basis for final adjudication on the 
merits (R. 117). On June 14, 1965, the district court found 
that the school board had operated a compulsory biracial 
system and had thereby violated the rights of Negro school 
children. The court enjoined the board from continuing 
and maintaining a racially segregated school system and 
ordered the board to submit a plan to desegregate the 
schools of the parish (E. 133-36). The board submitted 
a desegregation plan on July 7, 1965 (R. 138-50). Objec­
tions were filed July 21, 1965 (R. 158-60) and hearing was 
held on the objections August 3, 1965 (R. 161 et seq.).

As a result of the hearing, the plan was approved, as 
modified, and incorporated into an Order On Plan for 
Desegregation handed down by the District Court Au­
gust 3, 1965 (R. 291-98). The Order provided for the



27

1965-66 term (1) that all initial assigiiTnents of school 
children, both those entering the first grade and those 
presently enrolled from prior years, would “be considered 
adequate” subject only to certain transfer provisions (R. 
291-95); (2) Negro children coming into the first grade
and those graduating(mto^the twelfth grade could apply 
for transfer to white schools if they applied within a 
five-day period extending from August 9, 1965 through 
August 13, 1965 and if their applications met transfer 
criteria (R. 292-94) such as available space,® age of the 
pupil as compared with ages of pupils already attending 
the school to which transfer is requested, availability of 
desired courses of instruction, and an aptitude test (R. 
147, 243-48) which is part of “the procedures pertaining 
to transfers currently in general use by the Caddo Parish 
School Board” (R. 292). In addition, the Board was 
granted the right to reassign a transfer applicant to a 
“comparable” school nearer his residence.® Students en­
tering the parish would be initially assigned to formerly 
all-white or all-Negro schools (R. 177-78, 295). The order 
did not provide for assignment of named plaintiffs to 
white schools.

v / '

The order further provided that for the 1966-67 term, 
students in the first, second, eleventh, and twelfth grades 
would be free to choose whatever school they wished to i 
attend, subject to the power of the Board to assign the 
student to a “comparable” school closer to the student’s

 ̂All schools in the Parish are overcrowded (E. 258-59).
® There was much testimony to the effect that Negro and white schools 

^■Eere_uniformIy equal and comparabje_ (E. 62, 9l7''27^J~ana~EBlI'‘a]ror'
VI ̂  O *1̂1 TT o il  VK10 TTT 1*1 T +0 « ..a*.......! ^  ^  _ .T T . "i” I • 1

n
^  ___ J  ^  ^ ............ - T  LJ I u  J  C l x i lA  V l K l l /  <111 111

nearlyldrfKe’ white chi'raJBjr'TroinTEe rural area of Caddo Parish were 
bussed into Shreveport from as much as 19 miles av/ay. Eural NegTo '̂ 
children were provided with three Negro high schools located at various 
points about the county closer to their residence than the Shreveport] 1 /  •
schools (E. 274-75). '—b*



28

'■vV ^

residence (R. 296). The order specified that the desegrega­
tion be completed for all grades by the 1968-69 school term 
(R. 296).

August 18, 1965, Negro school children moved the Dis­
trict Court to vacate and reconsider its order and decree 
of August 3, 1965 in light of the decision of this Court in 
the case of United States v. Bossier Parish School Board, 
349 F.2d 1020(2) (5th Cir. August 17, 1965) (R. 300). On 
August 20, 1965, the District Court granted the motion 

aj^^and ordered (1) desegregation of grades two and eleven, 
in addition to grades one and twelve, during the 1965-66 
term and (2) shortened the desegregation period by one 
year so that all grades would he covered by the choice 
plan by the 1967-68 term (R. 303-04).

The plan approved by the District Court has been in 
operation for nearly an entire school term. Of the 24,467 
(R. 78) Negro children attending public schools in Caddo 
Parish (of whom approximately 1,720 are entering first- 
graders) only one Negro child has been admitted to a 
formerly white school. (See the affidavit attached to the 
memorandum in support of motion to consolidate and 
expedite. Nos. 23,173; 23,192; 23,274; 23,331; 23,335; 

j 23,345; and 23,365 filed by the United States in this Court 
I April 4, 1966.)
‘ July 19, 1965, the United States sought leave to inter­
vene as of right as party plaintiff (pursuant to 42 U.S.C. 
§2000h-2 and Rule 24, P.R. Civ. P.) and to file objections 
to the desegregation plan submitted by the Board. At the 
August 3, 1965 hearing on the plan, the district court 
denied the motion to intervene (R. 166) on October 4, 1965, 
the United States filed notice of appeal to this court from 
the order denying intervention (R. 305).

4  H



29

Specification o f Error

The district courts erred in:
, a

1. Refusing to find that the school hoards, having es- 
iS tablished and maintained racially segregated school sys­

tems, are constitutionally obligated to submit desegregm’ 
tion plans which, in fact, completely disestablish spgrpgarpd

^ a^ rn s^ n d ''e rad icate Negro and white__schoo]s.

2. Approving the so-called free choice provisions con­
tained in the plans over objections that such provisions 
failed to disestablish racial segregation and despite undis- 
putable evidence that:

a. Approval of the plans retains(yirtuallj^ intact Negro 
and white schools;

b. The alleged free choice provisions are in reality
transfer schemes perpetuating dual zone lines; ^

c. The plans fail to permit students new to the school 
systems to exercise free choice regardless of the grades 
affected by the plans;

d. The plans fail to provide for desegregation of facili­
ties such as bus transportation;

e. The plans fail to provide notice of their provisions 
other than in newspapers of general circulation;

;■ f̂  -tnxeept in Caddo Parish! The plans  ̂ f^ilJ^-^rcmde ^  
for the upgrading c^liegrm-sdinOlFso^tTrTnake^tr^sfers \ 

' a--realisthrx5onsideration for all pupils;
g. The plans fail to provide for alternative assignment 

criteria where facts reveal such criteria would lead to 
significant desegregation.



30

3. Approving gradual so-called free choice desegrega­
tion plans despite the absence of valid administrative 
factorsjustifying such delay knd (except in Caddo EaxSET'N 

^desp ite  the fact th a t i^ ^  educational facilitie^ r e  cleaxly 
inferior.

4. Refusing to find that staff desegregation is a pre­
requisite for etfective school desegregation requiring the 
immediate submission of specific plans providing for both 
(a) nonracial hiring and assignment of staff personnel 
and (b) assignment of staff personnel based on race in 
order to correct the past effects of segregation and dis­
crimination.

A R G U M E N T

V /

V
V'

I.
The Plans Approved by the District Courts Fall Short

of This Court’s Standards With Regard Both to Pupil 
and Teacher Desegregation.

In Price v. Denison Independent School District, 348 
F.2d 1010 (5th Cir. 1965), this Court adopted the United 
States Office of Education’s Statement of Policies for 
School Desegregation under Title VI of the Civil Rights 
Act of 1964 (April 1965) as its minimum desegregation 
standards. In March 1966, a Revised Statement of Policies 
for School Desegregation was issued, which revised state­
ment is no less appropriate to current school desegrega­
tion questions than was the statement issued in April 1965. 
See Bradley v. School Board of Richmond, 382 U.S. 103 
and Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865 (5th Cir. 1966).



31

A.
The Tnim'mnTn standards for school desegregation plans 

were set out in extenso in Singleton v. Jachson Municipal 
Separate School District, 355 F.2d 865, 870-71 (5th Cir. 
1966). Those standards briefly are as follows:

1. All grades must he desegregated by September 1967;

2. Individuals in segregated grades are permitted to 
transfer to schools from which they were originally ex­
cluded or would have been excluded because of their race;

3. Services, programs and activities, including buses, 
shall be available without discrimination on the basis of 
race;

4. An adequate start must be made toward elimination 
of race as a basis for staff employment so that school sys­
tems will be totally desegregated by September 1967;

5. Proper notice, including use of newspapers, radio 
and television facilities, must be given to children and their 
parents of the desegregation plan;

6. Dual geographic zones must be abolished as a basis 
for assignment;

7. Additional choices of schools must be made available 
where the first choice is unavailable.

The plans in these cases fail to meet these criteria. Al­
though every plan provides for complete pupil desegTega- 
tion by September, 1967, no plan permits individuals in 
segregated grades to transfer to schools from which they 
were originally excluded or would have been excluded be­
cause of their race. Thus the Jefferson County plan makes



32

no provision, other than for grades desegregated by the 
plan, for immediate transfers in cases where initial assign­
ment is based on race. The Bessemer plan specifically 
provides that all students are to remain in their assigned 
schools unless their grades are desegregated under the 
plan. The Fairfield plan makes no mention of a pupil’s 
right to transfer from a segregated grade which is not 
desegregated under the plan. 1 Under the Caddo parish 
plan, no provision is made for" transfers other than in 
grades assertedly desegregated under the plan. In addi­
tion, Negro children moving to Caddo Parish during the 
school year can only attend Negro schools. All of the 
plans are, therefore, deficient under Rogers v. Paul, 382 
U.S. 198; Singleton v. Jackson Muniqj^l Separate School 
District, 355 F.2d 865 (5th Cir. 1966).\

None of the plans provides for desegregation of services, 
programs, and activities, such as bus transportation. For 
example, the Jefferson County plan is silent on the ques­
tion of bus transportation even though the superintendent 
testified that bus routes overlapped because of passenger 
segregation. Bessemer’s pupils needing bus transportation 
receive the school board’s aid in obtaining reduced fares 
on buses not operated by the board. The Fairfield plan 
does not mention bus desegregation. j^ d d o  Parish’s bus 
transportation is racially segregated and the plan was 
silent as to measures corrective of this condition.)

None of the plans provide for proper notice to children 
and parents of their contents. The second Singleton 
case found notice adequate where radio and television 
facilities were used in addition to newspaper announce­
ments. The Jefferson County plan specifies only that news­
paper announcements would be made. The Bessemer plan 
provides for one newspaper announcement. Thq,,Fairfield 
plan requires only newspaper announcements. pile Caddo



33

Parish original plan provided for newspaper announce­
ments in 1965-66 and for individual notices to parents via 
their children’s report cards for later school years. The 
district court’s order in the Caddo Parish case, however, 
made effective most of the original plan with the notable 
exception of the notice provisions.]

All of the plans give insufficient time to pupils and their 
parents desiring to implement the desegregation formulae. 
The Jefferson County plan provided for three regularly 
spaced newspaper announcements of the plan between 
July 22 and August 9, 1965. Transfer requests in the 
ninth, eleventh and twelfth grades were to be filed with 
the school board on or before August 9, 1965; transfer 
requests for the seventh grade were to be filed on or before 
September 1, 1965, following three newspaper announce­
ments between August 27, and 31, 1965 (E. 31, 33-34, 53, 
67-68). Transfer requests for students entering the school 
system for the first time are to be filed the first day of 
school in segregated schools (R. 31-33, 67-68). For school 
years subsequent to September, 1965, three newspaper 
notices published some time in April each year are sup­
posed to alert pupils and parents to file transfer applica­
tions between May 1-15, 1966 or May 1-15, 1967 (R. 33-34, 
68).

The Bessemer plan merely provided for a single news­
paper announcement between July 9, 1965 and August 13, 
1965. Parents of children in grades four, seven and ten 
desiring transfers were required to file an application on 
or before Augnst 13, 1965. Parents of first grade children 
could apply for transfers on the first day of school. For 
school years after September, 1965, notice of the time 
(May 1-15) for filing applications to transfer is to be pub­
lished only once at an unspecified date in a city newspaper.



34

In Fairfield, the plan’s provisions were to be published 
in a newspaper three times between August 23 and August 
30, 1965, and applications for transfers were to be filed 
for the seventh, eighth, tenth and twelfth grades on or 
before August 30, 1965. Students enrolling in the first 
grade were to report to the nearest segregated school on 
the first day of school (September 1, 1965) and apply for 
transfers. For school years after September, 1965, appli­
cations must be filed for desegregated grades in May, 1966 
or May, 1967, but the plan does not provide for notice in 
any respect after August, 1965.
\^ n  Caddo Parish, the plan’s provisions were to be pub­
lished three consecutive days not later than Augnist 5, 
1965. Applications for transfers in the first and twelfth 
grades were to be filed August 9 through August 13, 1965. 
Notice of desegregation in the second and eleventh grades 
was to he published in a newspaper August 20, 21 and 22, 
1965. From August 23 to August 25, 1965, applications 
for transfer were to be made at the school board. For 
school years after September 1965, the original Caddo 
Parish plan provided that six months after the beginning 
of the school year, a letter would be sent via each pupil 
to his home specifying the plan’s provisions and giving 
each parent thirty days to file an application. The plan 
ordered by the district court omitted these provisions and 
provided'ToF’ no notlceof the plan after September, 1965.

None of the plans abolishes dual geographic zones for 
purposes of pupil assignment. The Jefferson County plan 
is quite explicit in providing that pupils may transfer from 
the school to which they are initially assigned on a racial 
basis to another school. The Bessemer plan also permits 
merely a transfer, after initial assignment to a segregated 
school, to effect desegregation. The Fairfield plan likewise 
permits only transfers from segregated schools to effect de-



35

segregation. \The Caddo Parish plan not only contains simi­
lar transfer p?imsions after an initial racial assignment to 
a segregated scho.aLhnt also attaches such additional cri- 

'teria as the passing of an aptitude test. Thus all plans 
perpetuate dual racial zones and permit transfers between 
them under the guise of “freedom of choice.”

None of the plans specifies that additional choices of 
schools are available where a pupil’s first choice is not. 
The Jelferson County plan is silent on the question of 
additional choices. Equally silent on this question are the 
plans in Bessemer, Fairfield, and Caddo Parish.

This Court has now clearly held that school boards 
operating a dual system are required by the Constitution, 
not merely to eliminate the formal application of racial 
criteria to school administration, but must by affirmative 
action seek the complete disestablishment of segregation 
in the public schools. Singleton v. Jackson Municipal Sep­
arate School District, 348 P.2d 729 (5th Cir. 1965), 355 P.2d 
865 (5th Cir. 1966). As succinctly stated in the first Single- 
ton case, “ . . . the second Brown opinion clearly imposes 
on public school authorities the duty to provide an inte­
grated school system.” 348 F.2d at 730 n. 5.

None of the plans effectively desegregates its pupil 
population. Thus, in Jefferson County, only twenty-four 
Negroes have been admitted during the 1965-66 school 
year to formerly all-white schools, in a student popula­
tion of 18,000 Negroes and 45,000 whites.’ In the Jefferson 
County case, an expert testified that “the best criteria for 
effecting desegregation would be the proximity of the pupil

’ Affidavit of St. John Barrett, attached to the Motion to Consolidate 
and Expedite Appeals (in Nos. 23173, 23192, 23274, 23331, 23335, 23345, 
and 23365) filed by the United States in this Court April 4, 1966 [herein­
after cited as Barrett].



36

to the school.” He went into some detail to show that many 
Negro schools were situated so that they were farther 
away from their pupils than were white schools and that 
the best way to effect desegregation was by a geographical 

;/ijfeone system based on nonracial assignment. This Court
I i^noted in the second Singleton case, 355 F.2d at 871. that a
I I  ffeedum—of'^oice plan is an acceptable method provided 
HI dual zones are eliminated. No such abolition has taken

place in Jefferson County, thus making its plan essentially 
a transfer scheme rather than a freedom of choice plan. 
Since the goal of any school plan must be desegregation, 
a so-called freedom of choice plan is contrary to this re­
quirement where it does not in fact lead to desegregation 
and where it conflicts with a procedure which would so lead, 
ie., geographic attendance zones. It is not here urged that 
freedom of choice is necessarily an unworkable plan, but 
that where freedom of choice fails to accomplish the goal 
of desegregation, other methods must be found to attain 
the goal. In the case of Jefferson County, the method would 
be geographic attendance zones.

In Bessemer, only thirteen Negroes have been admitted 
to formerly all-white schools during the 1965-66 school year 
in a school system having a student enrollment of 2,920 
whites and 5,284 Negroes. In Fairfield, only thirty-one 
Negroes have been admitted during the 1965-66 school year 
to formerly all-white schools in a school system having 
1,779 whites and 2,159 Negroes.! In Caddo Parish, just one 
Negro has been admitted to amm’merly all-white school 
in a school system having 30,680 whites and 24,467 
Negroes^These statistics demonstrate for Bessemer, Fair- 
field anS^Caddo Parish the same conclusion as was made 
in Jefferson County, namely, that the so-called freedom

* Barrett.



37

of choice plans have not worked and that either exten­
sive revision is needed, or another method of desegre­
gation should be adopted, such as geographic non-racial 
zoning. This Court and other courts have frequently held 
that if the application of educational principles and theories 
result in the preservation of an existing system of imposed 
segregation, the necessity of vindicating constitutional 
rights will prevent their use. Dove v. Parham, 282 F.2d 
256 (8th Cir. 1960); Ross v. Dyer, 312 F.2d 191, 196 (5th 
Cir. 1963) and Brooks v. County School Board of Arlington, 
Virginia, 324 F.2d 303, 308 (4th Cir. 1963).

The district courts’ acceptance of these plans reflects a 
failure to grasp the considered principle that schemes 
which technically approve desegregation but retain the 
school system in its dual form must be struck down. Goss 
V. Board of Education, 373 U.S. 683; Griffin v. County 
School Board of Prince Edward County, 377 U.S. 218; 
Boson V. Rippy, 285 F.2d 43 (5th Cir. 1960) and Houston 
Independent School District v. Ross, 282 F.2d 95 (5th Cir. 
1960).

B.

No plan in any of the district courts made provision for 
staff desegregation. Failure of the district courts to order 
an adequate start towards the elimination of teacher and 
other staff segregation is in direct conflict with holdings 
of the Supreme Court and this Court. Bradley v. School 
Board of Richmond, 382 U.S. 103; Singleton v. Jackson 
Municipal Separate School District, 355 F.2d 865, 870 (5th 
Cir. 1966).

Prompt faculty desegregation is also required by revised 
school desegregation guidelines, issued by the United 
States Office of Education, which make each school system 
responsible for correcting the effects of all past discrim-



38

n

o\

inatory teacher assignment practices and call for “signifi­
cant progress” toward teacher desegregation in the 1966-67 
school year. Thus, new assignments must be made on a 
nonracial basis “ . . . except to correct the effects of past 
discriminatory assignments.” Revised Statement of Pol­
icies For School Desegregation (March 1966), <̂ 181.13(b). 
The ijattern of past assignments must be altered so that 
schools are not identifiable as intended for students of a 
particular race and so that faculty of a particular race 
are not concentrated in schools where students are all or 
p^onderantly  of that race. Supra at Sec. 181.13(d).

-f" In view of the desired goal of desegregation, whether by 
free choice or unitary geographic zoning, it is imperative 
that the school systems here discussed be required promptly 

^ to  adopt effective faculty desegregation plans. See Dowell 
V. School Board of Oklahoma City Public Schools, 244 F. 
Supp. 971 (W.D. Okla. 1965), on appeal to the 9th Circuit, 
No. 8523; and Kier v. County School Board of Augusta 
County, 249 F. Supp. 239 (W.D. Va. 1966).

^  In the Oklahoma City case, the court, adopting the rec-
^  ommendations of educational experts retained with the

court’s approval by plaintiffs to study the system and 
prepare an integration report, set a goal of 1970̂  by which 
time there should be “ . . . the same approximate per­
centage of nonwhite teachers in each school as there now 
is in the system. . . . ” The 1970 date was keyed to per- 

p C sonnel turnover figures indicating that approximately 15% 
of the total faculty is replaced each year, and permits the 
accomplishment of faculty integration by rejjlacements to 
the faculty as well as by transfers. 244 F. Supp. at 977-78.

In the Augusta County case, the district court noting the 
small number of Negro teachers in the system, ordered 
faculty desegregation to be completed by the 1966-67 school

A

dD



39

term. Referring to the Oklahoma City case, supra, the 
court said:

Insofar as possible, the percentage of Negro teachers 
in each school in the system should approximate the 
percentage of Negro teachers in the entire system for 
the 1965-66 school session. Such a guideline can not 
be rigorously adhered to, of course, but the existence 
of some standard is necessary in order for the Court 
to evaluate the sufficiency of the steps taken by the 
school authorities pursuant to the Court’s order. 249 
F. Supp. at 247.

The court acknowledged that the standard for teacher 
assignments is race-conscious, but justified such relief as 
necessary to correct discrimination practiced in the past. 
Quoting from a 1963 opinion on the subject by the Attorney 
General of California, 8 Race Rel. L. Rep. 1303 (1963), 
the court held that:

Clearly, defendants may consider race in disestab­
lishing their segregated schools without violating the 
Fourteenth Amendment’s equal protection clause. The 
admonition of the first Mr. Justice Harlan in his dis­
senting opinion in Plessy v. Ferguson, 163 U.S. 537, 
559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) that ‘Our Con­
stitution is color-blind’ was directed against the ‘sepa­
rate but equal’ doctrine, and its rejection in Brown 
V . Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 
L.Ed. 873, was an explicit recognition that separate 
educational facilities are inherently unequal, and did 
not convert Justice Harlan’s metaphor into constitu­
tional dogma barring affirmative action to accomplish 
the purposes of the Fourteenth Amendment. Thus, 
racial classifications which effect invidious discrimina-



40

tion are forbidden but may be upheld if deemed neces­
sary to accomplish an overriding governmental pur­
pose.

Recently, in Beckett v. School Board of Norfolk, Civ. 
No. 2214 (E.D. Va.) where the faculty is 40% Negro, a 
district court entered a consent order on March 17, 1966 
approving a plan submitted by the Board containing pro­
visions for teacher desegregation which in addition to 
recognizing its obligation to take all reasonable steps to 
eliminate existing racial segregation of faculty that has 
resulted from the past operation of a dual school system 
based upon race or color, committed the Board, inter alia, 
to the following:

The Superintendent of Schools and his staff will take 
affirmative steps to solicit and encourage teachers 
presently employed in the System to accept transfers 
to schools in which the majority of the faculty mem­
bers are of a race different from that of the teacher 
to be transferred. Such transfers will be made by 
the Superintendent and his staff in all cases in which 
the teachers are qualified and suitable, apart from 
race or color, for the positions to which they are to 
be transferred.

In filling faculty vacancies which occur prior to the 
opening of each school year, presently employed 
teachers of the race opposite the race that is in the 
majority in the faculty at the school where the vacancy 
exists at the time of the vacancy will be preferred in 
filling such a vacancy. Any such vacancy will be 
filled by a teacher whose race is the same as the race 
of the majority on the faculty only if no qualified 
and suitable teacher of the opposite race is available 
for transfer from within the System.



41

Newly employed teachers will be assigned to schools 
without reg'ard to their race or color, provided, that 
if there is more than one newly employed teacher who 
is qualified and suitable for a particular position and 
the race of one of these teachers is different from 
the race of the majority of the teachers on the faculty 
where the vacancy exists, such teacher will be assigned 
to the vacancy in preference to one whose race is the 
same.®

An effective faculty desegregation plan must establish 
specific goals to be achieved by affirmative policies ad­
ministered with regard to a definite time schedule. The 
plans in the Oklahoma City, Augusta County and Norfolk 
cases supra, meet these criteria. The school systems here 
discussed for valid constitutional and educational reasons 
should be required to submit faculty desegregation plans 
patterned after those in the Oklahoma City, Augusta 
County and Norfolk cases.

In all four cases, a total of 69 Negroes have been ad­
mitted to formerly all-white schools, thus resulting in one­
way desegregation, i.e., Negro pupils leaving their all- 
Negro schools with all-Negro faculties and student bodies 
intact.̂ ® It is obvious that if this pattern is continued 
without corresponding integration of Negro faculty per­
sonnel, not only will meaningful pupil desegregation be­
come impossible, but Negro teachers will be gradually

® A similar plan was approved on March 30, 1966, by the district court 
in Bradley v. School Board of City of Bichmond, Civ. No. 3353 (E.D. 
Va.), where about 50% of the teachers are Negro.

See comprehensive statistics published by the Southern Education 
Reporting Service in its periodic “Statistical Summary of School Segre­
gation-Desegregation in Southern and Border States”, 15th Revision, 
December 1965, passim.



42

siphoned out of the system, and efforts to achieve faculty 
desegregation will no longer he difficult, but impossible.

Faculty segregation impedes the progress of pupil de­
segregation. Where, as here, students and parents are 
given a choice of schools by exercising rights granted 
under so-called freedom of choice plans, faculty segrega­
tion influences a racially-based choice. Arrangements which 
work to promote segregation and hamper desegregation 
are not to be tolerated in desegregation plans. Goss v. 
Board of Education, 373 U.S. 683. Faculty segregation 
influences a racially-based choice as surely as the law re­
quiring racial designations on ballots which was invali­
dated in Anderson v. Martin, 375 U.S. 399.

The United States Office of Education has noted the 
negative consequences of pupil desegregation without con­
current faculty desegregation. Thus, in further implement­
ing Title VI of the Civil Rights Act of 1964 (42 U.S.C.A. 
2000d) the Office of Education in its March, 1966 Revised 
Statement of Policies requires school districts submitting 
plans for desegregation to comply with the following 
policies:

§181.13 Faculty and Staff
(a) Desegregation of Staff. The racial composition 

of the professional staff of a school system, and of 
the schools in the system, must he considered in 
determining whether students are subjected to dis­
crimination in educational programs. Each school sys­
tem is responsible for correcting the effects of all past 
discriminatory practices in the assignment of teachers 
and other professional staff.

(b) New Assignments. Race, color, or national 
origin may not be a factor in the hiring or assign-



43

ment to schools or within schools of teachers and 
other professional staff, including student teachers and 
staff serving two or more schools, except to correct the 
effects of past discriminatory assignments.

(d) Past Assignments. The pattern of assignment
of teachers and other professional ^taff among the 

"vaiiuas schl)dts~of~ar~system may not be such that 
schools are identifiable as intended for students of 
a particular race, color, or national origin, or such 
that teachers or other professional staff of a particular 
race are concentrated in those schools where all, or 
the majority, of the students are of that race. Each 
"School system nas a positi^ duty to make staff as­
signments and reassignments necessary to eliminate 
past discriminatory assignment patterns. Staff de­
segregation for the 1966-67 school year must include 
significant progress beyond what was accomplished 
for the 1965-66 school year in the desegregation of 
teachers assigned to schools on a regular full-time 
basis. Patterns of staff assignment to initiate staff 
desegregation might include, for example: (1) Some 
desegregation of professional staff in each school in 
the system, (2) the assignment of a significant portion 
of the professional staff of each race to particular 
schools in the system where their race is a minority 
and where special staff training programs are estab­
lished to help with the process of staff desegregation, 
(3) the assignment of a significant portion of the staff 
on a desegregated basis to those schools in which the 
student body is desegregated, (4) the reassignment 
of the staff of schools being closed to other schools in 
the system where their race is a minority, or (5) an



44

alternative pattern of assignment whicli will make 
comparable progress in bringing about staff desegre­
gation successfully.

These Office of Education standards for faculty desegre­
gation are entitled to great weight. See Singleton v. 
Jachson Municipal Separate School District, 348 F.2d 729, 
731 (5th Cir. 1965); Price v. Denison Independent School 
District Board of Education, 348 F.2d 1010, 1013 (5th Cir. 
1965); Kemp v. Beasley, 352 F.2d 14, 18-19 (8th Cir. 1965). 
Significantly, at least two district courts had fashioned 
orders before the Office of Education adopted its Revised 
Statement which complement the new regulations. Dowell 
V. School Board of Oklahoma City Public Schools, 244 F. 
Supp. 971, 977-8 (W.D. Okla. 1965) (appeal pending), and 
Kier v. County School Board of Augusta County, Virginia, 
249 F. Supp. 239, 247 (W.D. Va. 1966). Both courts re­
quired plans under which the percentage of Negro teachers 
assigned to each school would result in an equal distri­
bution of Negro teachers throughout the system. This or 
similar relief is necessary to eliminate the problem of 
faculty segregation in Jefferson County, Bessemer, Fair- 
field and Caddo Parish. The appellees should be required 
to submit an administrative plan for faculty desegregation 
in accord with such definitive guidelines.



45

II.
The Inferiority of Negro Schools (1 )  Entitles Negro 

Students to a Right of Immediate Transfer In All Grades 
and (2 )  Requires the School Board to Devise a Plan 
Which Maximizes Desegregation.

Well before Brown v. Board of Education, 347 U.S. 483 
(1954) it was clear that disparities in educational facilities 
required immediate desegregation. Cf. Missouri ex rel 
Gaines v. Canada, 305 U.S. 337 (1938), Sipuel v. Board of 
Regents, 332 U.S. 631 (1948), Sweatt v. Painter, 339 U.S. 
629 (1950). Recently in Rogers v. Paid, 382 U.S. 198, 199, 
200 (1965) the Supreme Court held that pending the com­
plete desegregation of Fort Smith, Arkansas high schools, 
Negro students enrolled at schools with less extensive cur­
ricula were entitled to “immediate transfer to the high 
school that has the most extensive curricula and from 
which they are excluded because of their race”.

In the Bessemer case, not only did Negro students with 
first-hand knowledge describe the unavailability of facili­
ties, resources and courses at Negro schools (R. 218-235), 
but Superintendent Knuckles similarly testified that there 
were more electives at white Bessemer High School, the 
only school accredited by the Southern Association, and 
that the Negro schools were, in the main, poorly heated, 
poorly illuminated, neglected wooden structures (R. 138-40). 
Mr. William Stormer, an expert in evaluating school facil­
ities, testified that with one exception, the Bessemer Negro 
schools were inferior to the white schools in terms of 
location, buildings, classroom facilities and classroom con­
ditions (R. 191-192). Similarly in the Jefferson case, only 
the Negro high school was not accredited by the Southern 
Association (R. 220) and only Negro schools had pot­
bellied stoves and outdoor toilet facilities (R. 232, 234).

J



46

The testimony showed Negro schools more overcrowded 
than whites and lacking well equipped football stadiums 
and summer school sessions (E. 232, 235). In Fairfield, 
testimony revealed many more electives available at white 
hig’h schools and the more crowded character of Negro 
schools (R. 90, 131-132, 215).

On the basis of evidence in all three cases, plaintiffs were 
clearly entitled to a plan which included the right of im­
mediate transfer out of an inferior Negro school. The 
failure of the courts to so order condemns Negro students 
in the four grades unaffected by the desegregation plan 
until 1967-68 to at least another year at clearly inferior 
schools.

However, even if all students in the four grades still 
segregated were granted a right of immediate transfer, 
it is probable that only token desegregation would occur. 
The inferiority of Negro schools turns freedom of choice, 
the desegregation process approved in Bessemer, Jefferson 
County and Fairfield, into a one-way process. White stu­
dents could hardly be expected to abandon the superior 
facilities and instructions available at white schools by 
transferring to Negro schools. Thus, Negro students’ right 
to transfer under the freedom of choice plans is circum­
scribed by the amount of space available at white schools. 
Even where provision is made to resolve such overcrowd­
ing by giving priority to the student residing closest to 
the school, freedom of choice plans impose upon Negro 
students and their parents the additional burden of in­
itiating the desegregation process.

In recognizing the Negro students’ right not to be re­
stricted to inferior schools, quite apart from their right 
to a desegregated education, the Supreme Court clearly 
intended school boards to devise plans which maximized 
the extent of desegregation. In Bessemer, however, al-



47

though there was evidence of considerable residential inte­
gration and the administrative feasibility of redrawing 
school attendance zones to achieve desegregation, the school 
board undertook the admittedly more burdensome freedom 
of choice process under which a mere 13 ISlegro students 
transferred during the 1965-1966 school year. Similarly, 
in Jefferson County where only 24 Negro students trans­
ferred, appellant’s expert. Dr. Myron Lieberman, testified 
that school buses and buildings would be better utilized 
under a geographic attendance zone plan and that there 
was no overwhelming reason not to adopt such a plan 
(R. 264). Although a school board is entitled to devise a 
desegregation plan which is geared to the special circum­
stances of a particular school system, a school board can­
not select a desegregation process which plainly restricts 
the amount of desegregation that will occur.

Until Negro schools are brought up to par with white 
schools and freedom of choice becomes meaningful to both 
white and Negro students, a school board is obligated to 
take further steps to maximize desegregation. Indeed, just 
recently, unequal Negro schools were closed in three Ala­
bama counties to protect Negro students’ right to an equal 
as well as a desegregated education. In Carr, et al v. Mont­
gomery Board of Education, N.D. Ala., #2072-N, March 
22, 1966 Judge Johnson’s order further required:

The Montgomery County Board will design and pro­
vide remedial educational 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.
Expansion of existing school plants to accommodate 
displaced students will be designed to eliminate the 
dual school system. (Emphasis added.)



48

Similarly, the revised Health, Education and Welfare 
school desegregation gnidelines now require that “inade­
quate” Negro schools he discontinued. §181.15 Eevised 
Statement of Policies for School Desegregation Plans Un­
der Title VI of the Civil Eights Act of 1964.

CONCLUSION

W h e r e fo r e , in te r v e n o r s  p r a y  th a t  th e  ju d g m e n ts  in  each  
case  be  re v e rs e d .

Eespeetfully submitted.
J ack  G reen berg

J a m es  M. N abrit , III
M ic h a e l  M e ltsn er
N orm an  C. A m a k er  

10 Columbus Circle 
New York, New York

Oscar W. A dams, J r.
1630 Fourth Avenue North 
Birmingham, Alabama

D e m e t r iu s  C. N ew ton  
408 North 17th Street 
Birmingham, Alabama

D avid H . H ood
2001 Carolina Avenue 
Bessemer, Alabama

J esse  N. S t o n e , J r .
854% Texas Avenue 
Shreveport, Louisiana

A. P. T ureaud
1821 Orleans Avenue 
New Orleans, Louisiana

Attorneys for Intervenors
S h e il a  E u s h  J o nes  
C onrad K. H arper  
F red W allace

Of Counsel



49

Certificate of Service

This is to certify that a copy of the foregoing consoli­
dated brief and motion for leave to file has been served 
on each of the attorneys for appellees and the United 
States as listed below, by being deposited in United States 
mail, air mail, postage prepaid, on this 22nd day of April, 
1966:
Hon. John A. Richardson 
District Attorney 
1st Judicial District 
Caddo Parish Courthouse 
Shreveport, Louisiana

Hon. William P. Schuler 
Assistant Attorney General 
201 Trist Building 
Arabi, Louisiana

Mr. J. Bennett Johnston, Jr. 
930 Giddens Lane Building 
Shreveport, Louisiana

Mr. Macon Weaver 
United States Attorney 
Federal Building 
Birmingham, Alabama

Mr. Maurice F. Bishop 
Bishop & Carlton 
325-29 Frank Nelson Building 
Birmingham, Alabama

Mr. Reid B. Barnes 
Lange, Simpson, Robinson & 

Somerville
317 North 20th Street 
Birmingham, Alabama

Hon. Jack P. F. Gremillion 
Attorney General 
State Capitol 
Baton Rouge, Louisiana

Mr. David L. Norman 
Department of Justice 
Washington, D.C.

Mr. Edward L. Shaheen 
United States Attorney 
Federal Building 
Shreveport, Louisiana

Mr. J. Howard MoBniry 
McEniry, McEniry & McEniry 
1721 4th Avenue North 
Bessemer, Alabama

Attorneys for Intervenors



■’■-sA

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