Amended Order Per Curiam

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IN THE UNITED STATES COURT OF APPEALS 

~~ 

FOR THE FIFTH CIRCUIT 

  

Nos. 28030 & 28042 

  

UNITED STATES OF AMERICA, 

Be Plaintiff-Appellant, 

Ve 

HINDS COUNTY SCHOOL BOARD 

Defendants-Appellees. 

AND ALL CASES INCLUDED IN ; a 

THE COURT'S ORDER OF 

JULY 3, 1269 AS SUPPLEMENTED 

  

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. . 

  

( AUG 23 r 1969) 

Before BROWN, Chief Judge, THORNBERRY and MORGAN, Circuit Judges. 

PER CURIAM: | 

The United States Attorney General by motion filed 

with this Court on August 21, 1969, with parallel motions 

filed in the District Court for the Southern District of 

Mississippi as of the same date, requests, in effect, that 

this Court modify the mandate and orders heretofore entered, 

and,on the permission of this Court being granted, that the  



: p % 

  

District Court do likewise, to extend the time for filing 

the terminal plans required in our order of July 3, 1969, 

to a date not later than December 1, 1969. 

"Because of the relative shortness of time and 

in order tc permit the appeals to be herrd, Gocidel and 

effective action to be taken by the opening of the school 

term September 1969-70, this Court expedited the initial 

appeal from the decision of the District Court entered in 

May 1969. By letter~directive from the Clerk, dated - 

June 25, 1969, we set the case for oral argument at 9:30 a.m. 

July 2 at New Orleans. 

Paragraph 7 of that letter-directive read as . , 

follows: LAI TH re 

c. To enable the Court to announce a decision as 
CHIR nr rn vrs er cn TY rm an A 5 i Ye eet Smear ; — es rea 

. a SE Salas w vag wil COUT AAdiluLo 

are requested to file in 15 copies a proposed opinion- 
order with definitive time table and provisions on the 
hypothesis that the appeal will be sustained, These 
should be modeled somewhat on the form used by the Court 
in its recent opinions in Mal), et a) v, St, Helena 
Parish School Board, et al, No. 26450, May 28, 1969, 
and Davis, et al v, Board of School Commissioners of 
Mobile County, et al] No. 26886, June 3, 1959, When and 
as additional opinion-orders of this type are issued in 
other school desegregation cases, copies will be imme- 

diately transmitted to all counsel so that the parties 
can make appropriate comments during argument with respect 
to suggested modifications or changes in their proposed 
opinion-orders, 

  

  

    

  

  

The Court hopes that the appellants, private and 

government, can collaborate and submit a mutually agrec- 

able proposed opinion-order and it desires from the 

appellees contrary proposed orders covering separately 

(2) on the hypothesis that the decrees of the District 
Court will be affirmed, and (b) on the hypothesis that 
the appellants' motion and appeals will be sustained for 

reversal, : PoE L
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In response to this request of the Court 

several proposed decrees were supplied by one or more 

of the parties, including a detailed proposed opinion- 

order Submitted by the United States Attorney General 

on the eve of the hearing. As pointed out later, this 

proposed opinion-orxder prescribed a precise timetable. 

on the argument the Court heard from some 

18 counscl over a period of the entire Fs On the fol- 

lowing day, July 3, 1969, the Court handed down its 

opinion-order, which in its opening paragraph stated: 

"As questions of time present such 

urgency as we approach the beginning 

of the new school vent September 

1969-70, the Court requested in 

advance of argument that the parties 

submit proposed opinion-orders modeled 

after some of our recent school 

desegregation cases. We have drawn 

freely upon these proposed opinion-orders." 

: Both the "opinion" portion and, more specifically, 

the "order" portion of the opinion-order of July 3rd (see 

slip opinion p. 16 et seq) was substantially that proposed 

by the United States Attorney oneral in response to the 

Court's invitation (see paragraph 7 of letter-directive above) . 

Except that the Court allowed approximately 10 additional days, 

the timetable schedule fixed by the Court was substantially that 

recommended by the United States Attorney General: 

-S - 

 



  

  

Government Date 

Paragraph Proposed Fixed 

of Order Requirement Date By Court 

: 3 Deadline for Aug. 1 Aug. 11 

Boards to 

file plan 

4 Deadline for Aug. 1 Aug. 11 

presenting 

agreed plans 

to Court 

5 Deadline for Aug. 1 Aug. 11 

HEW filing : 

plan 

6 Deadline for Aug. 13 Aug, 23 

court hearings i 

7 Deadline for “Aug, 15. Avg. 27 

Court approval of 

plans 

\. 

Subsequently, on or 25, 1969, the Court i its own 

motion modified its July 3rd opinion-~order by ember ine 

former paragraph 8 to be number 7 and striking from such order 

paragraphs 5, 6 and 7 to insert in lieu thoveot new paragraphs 

5 and 6 with the following resulting timetable: 

  

  

  

5 Revised 

New ; ned Date fixed 

Paragraph ; Requirement By Court 

5 Deadline for Aug. 11 

HEW filing plan 

5 Deadline for Aug. 21 

filing objections : 

to HEW plan >. 

5 Deadline for Sept. 1 

Court order 

approving plan 

 



  

Thus it is shown that the timetable adopted was 

substantially that recommended by the United States Attorney 

General to be feasible and appropriate. 

From the numerous other cases referred to in the 

letter-directive, the Court was conscious that precise 

timetables were in order. Conseguently, in the course 

of the arguments heard on July 3, 1269, the Court addressed 

specific questions to all counsel in the case concerning 

the proposed timetables. Questions were specifically 

directed to the Assistant Attorney General appearing on 

behalf of the Government. Without qualification in 

response to precise inquiries he affirmed the Government is 

view that the timetable proposed by the Government was 

reasonable. And.with emphasis on the Attorney General's 

proposed order that HEW should be called in to advise 

with the Boards and .the District Court, he Lia tint 

sufficient resources of the Executive Department would 

be made available to enable the Office of Education of 

the United States Department of Health, Education and 

Welfare to fulfill its role as specified in the order 

proposed by it and actually thereafter entered by the 

Court. 

Except for the entry of the modification order 

on July 25 which moved the deadline for the effective 

date of the plans from August 27 to September 1, 1969, 

 



  

no further action has heen taken by this Court. Likewise, 

until the motion of August 21, 1969, there has been no 

suggestion by the united States Attorney General that 

the times fixed by the Court should be relaxed or extended 

or that such timetable was unattainable. 

The first information that the proposed and 

adopted timetable was not appropriate came on August 

19, 1969 when Judge John R. Brown, Chief Judge and pre- 

siding Judge of this panel, received by safehand courier 

the communication from the Secretary of Health, Education 

and Welfare dated August 19, 1969, which in turn enclosed 

a copy of the Secretary's communication of like date to 

Judges Cox, Russell and Nixon. These matters are. cat 

forth in this Court's order (with Exhibits 1 and 2) of 

August 20, 1969, copies of which are annexed as schedule A. 

communicated to the District Court granted full, leave . .. 

to the District Court to receive, consider and hear the 

Government's motion for extension of time to December 1, 

1969. Upon the hearings to be held after notice to 

counsel representing all parties not later than Monday, 

August 25, it further requested the District Court to make 

its recommendations to the Court of Appeals. The District 

Court is to communicate its recommended decision and 

transmit a copy of the transcript of any evidence to cach 

 



  

of the Judges at his home station. This Court further 

prescribed that in view of the shortness of time, all 

counsel were required to forward directly to their home 

stations any memorandum briefs in support of or opposition 

to. the motion and recommended decision cf the District 

Court so that it would be in the Judge's hands not later 

than 11:00 a.m. Wednesday, August 27. 

Following this the Court has received and con- 

sidered the findings of fact, conclusions of law and 

recommendations of the District Court, the record of the 

hearings, and the briefs and arguments of counsel, pro and 

con. On the basis of the matter set forth herein, the 

Court amends its order further as follows: 

 



  

The order of this Court dated July 3, 1969, as 

anenden by order. entered July 25, 1969 is heral further 
renumbering Paragraph 7 to be Paragraph 9 and by 

amended by/deleting Paragraphs 3, 4, 5, and 6, and the 

following paragraphs are substituted therefor: 

3. The Board, in conjunction with the Office of 

Education, shall develop and present to the District Court 

on or before December 1, 1969, an acceptable plan of 

desegregation. a 

4. If the Office of Education and a school board 

agree upon a plan of AoRoaPonat ins it shall be presented 

to the District Court on or before December 1, 1969.. The * 

Court shall approve such plan, unless within 15 days after 

s1ibhmicgagsion ta +he Conrt any nartioce fila any AhSartiAane Ar 
-— -— - 

proposed amendments thereto alleging that the plan, or any 

part thereof, does not conform to constitutional S4AnactAL. 

5. If no agreement is reached, the Office of 

Education shall present its proposal for a plan for the 

school siemrice to the pistrise Court on or pervs 

December 1, 1969. The parties shall have 15 days from the 

date such a proposed plan is filed with the istrict Court 

to file objections or suggested amendments thereto. The 

District Court shall hold a hearing on the proposed plan 

and any objections and suggested amendments thereto ma 

within 15 days after the time for filing objections has 

expired shall by order approve a plan which shall conform 

to constitutional standards. 
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6. The District Court shall enter Findings of 

Fact and Conclusions of Law regarding the efficacy of any 

plan which is approved or ordered to disestablish the dual 

school system in question. Jurisdiction shall be retained, 

however, under the teaching of Green v. County School Board 

of New Kent County, 1968, 391 U.S.:430, 439, 88 S.Ct. 1689, 

, 20 L.B24.24 716, 724, and Raney v. Board of Education 

of Gould School District 1968, 391 U.S. 443, 44%, 88 &5.Ct. 

1697, .... -, 20 L.Ed. 2d 727, 732,:until it is: clear that oi 

disestablishment has been achieved. 

7. By October. 1, 1959 he Board of Trustees in 

conjunction with the Office of Education shall develop a, 

program to prepare Sts Faculty and staff for the conversion 

from the dual to the unitary system. The Office of 

Education shall report to the Court on October 1, 1969 

with respect to this program. If the Board fails Sl aes 

a program, the Office of Education shall submit a program 

which the Court may approve unless meritorious objections 

supported by afEianviy or other SooumenLuey evidence are 

made by any party. 

8. The Board shall not let any new contracts for 

the construction of any new facilities nor materially alter 

any existing facilities until a terminal plan has been 

approved by the Court, except with the prior agreement of 

all parties or by order of the Court upon motion and hearing. 

The Board shall present its proposals to the parties and seek 

their consent at least 15 days prior to moving for Court approval. 

 



  

SECOND: 

  

It is a condition of this extension of time that 

the plan as submitted and the plan as finally approved shall 

require significant action toward disestablishment of the 

dual school systems during the school year September 1969- 

June 1970. 

In all other respects the order cof this Court of 

July 3, 1969, as amended July 25, 1969, remains in full 

force and effect. 

—- YO 

 



  

-.. 

' IN THE UNITED STATES COURT OF APPEALS 

FOR TIlE FIFTH CIRCUIT 

  
- 

Nos. 28030 & 28042 

  

UNITED STATES OF AMERICA, 

Plaintifi-Appellant, 

Ve. 

HINDS COUNTY SCHOOL BOARD 

= pe Senden Appel leds. 

AND ALL CASES INCLUDED 53 

THE COURT'S ORDER OF 

JULY 3, 1969 AS SUPPLEMENTED 

* 

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APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI °: : 

  

fo + 1389) 

Before PROV, Chief Sudse, THORNBERRY and MORGAN, Circuit Judges. 

PER CURIAM: | 

On August 19, 1969, Judge John R. Brown 

received by safehand SE wrlor the attached communication 

of August 19, 1969 (marked Exhibit 1) from the Secretary 

of Health, Education and Welfare which in turn enclosed 

a copy of his communication of like date to Judges Cox, 

Russcll and Nixon gi Exhibit 2). Presumably this 

was delivered directly to the Judges concerned because 

Se HED! F~ A 
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the orders of this Court and the District Court pursuant 

thereto call upon the Department of Health, Education and 

Welfare to take certain action. 

As the timetable heretofore fixed was substantially 

that recommended by the United States Attorney General in 

response to the request made by this Court to all parties 

prior to the argument of this case in July 1969, the Court, 

being of the opinion that it was essential to know at the 

earliest time the position of the .parties as expressed in 

due order through their respective counsel, made inquiry 

» 

of the Department of Justice.’ The Court was informed that 

motions were in the course of preparation for immediate 

Filing in the Disilrict Court 

in the Court of Appeals sccking the entry of orders granting 

the sugnotied extension to December 1, 1969. 

The Court has taken no action other than to 

record these facts. 

ENTER: August 20, 1969. 

 



lA ‘oo i : 

i 3, 5 CE SECRETARY OF HEALTH, coven) AND WELFARE 

  

      

Lia Fox : WASHINGION. D.'C. 20201 
Lh = : ws 

. 

I 

August 19, 1969 

Dear Judge Brown: 

Enclosed is a copy of a letter which I have addressed 

: to, and delivered to, Judges Cox, Russell, and Nixon 

by special courier. I have directed that -the special 

courier deliver this copy to you at or nearly at the 

same time. wi 

| Sincerely, 

J 

Honorable John R. Brown 

Chief Judge, U. S. Court 
of Appeals, Fifth Circuit 

i f1uus LULL, 1CAAdD 

Enclosure 

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a ks, RL : i 3 i TARY OF HEALTH, CROUCAT oye WELFARE 
Ca ve ly 
Ns "lg WASHINGTON, D.C. 20201 

  

pony Judge Coss 

  

In accorlonca with the United States Court of 
: wroadls for the BLES Hyomt, experts Iman the Office of 
: Ldacation in i ny won of Tealth, Fracati cn, and Volfare 

Jas, havo axelo od end filed torminal 2 m3 to disestablish hoe 
TP r.. NOPE 2 JR od al et oid rv cual sohiool © Ballons an 33 Mhsainaiyol school glsixictk casas. 

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our Covanimant charged with the ultimots resoonsilxility for 
the education of 12 poople of our Matic. 

In this sane can city, ard bearing in mind the great trust 
reposod in me, togothor with the ultimate responsibility for 
the education of Ce poonlo of cur Nation, I aa qgrovoly 
conorvned that the tire itn =d for the & svelorent tof these 
tenmadnal plans has been mach too stort for oki cducntors of 
tie OZfic of IXucation to dovelop tein rinal Plans which can 
Lo oplasmtaed this year. The aduinistr ative and logistical 
Adifficultins vhich mst bo OROZUnd and ret in the terribly 

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IDENTICAL LETTER SENT THIS IATE TO: Honorable Don M. Russell, Jre 

Judge, U. S. District Court 
of the Southern District 

  Honorable Walter L. Nixon 

: Juude, Ue Oo IIL a hin 

of the Southern District 

Gulfport, Mississippi 

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