Alabama v. United States Brief for Appellants

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

NO. 30287

STATE OF ALABAMA, et al.,
Appellants,

versus

UNITED STATES OF AMERICA, et al„
Appellees.

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

WILLIAM J. BAXLEY
Attorney General of Alabama

GORDON MADISON 
Assistant Attorney General 
of Alabama

Office of Attorney General 
250 Administrative Building 
64 North Union Street 
Montgomery, Alabama 36104

JOSEPH D. PHELPS 
Special Assistant Attorney 
General of Alabama 
36 South Perry Street 
Montgomery, Alabama 36104

Attorneys for Appellants



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I N D E X

Page

Statement of Issues Presented ............................... .................1

Statement of the Case ...... ........,....... ........................................2

The Act Involved......... ........ .........I......... ........... .......................-3

Argument ......... .................................................. -................. ,,....4

Conclusion ............................ f  — ,....................................... 7

Certificate of Service ............. .... ,.... ..... ,.......8



II

TABLE OF CASES

Page

Carr v. Montgomery County Board of Education,
February 25, 1970, Civil Action No. 2072-N .................. 6

Clark v. Board of Education of Little Rock School
District, 426 F. 2d 1035 (8th Cir. 1970) ......... ............... 6

Green v. County School Board of New Kent County,
391 U. S. 430 ... ............... ........................... ................... ...... 6

Jackson v. Choate, 404 F. 2d 910 ............................................ 2

Kemp v. Beasley, 423 F. 2d 851 (8th Cir. 1970) ....................6

New York Times Co. v. Connor, 291 F. 2d 492 ......................4

Reynolds v. Sims, 377 U. S. 533 .............................................. 4

Sugg v. Hendrix, 142 F. 2d 740 ..............................................A

S T A T U T E S

Acts of Alabama:
Act No. 1, Special Session, 1970 .1, 2, 3, 4, 5, 6



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT 

NO. 30287

STATE OF ALABAMA, et al.,
Appellants,

versus

UNITED STATES OF AMERICA, et aL,
Appellees.

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

STATEMENT OF ISSUES PRESENTED

1. Whether or not the District Court erred in its 
ruling that appellants’ claim fails to present a substantial fed­
eral question.

2. The error of the District Court in ruling that Sec­
tion 2 of Act No. 1, Special Session of the Alabama Legisla­
ture, 1970, is unconstitutional and void.

3. The error of the District Court in dismissing appel­
lants’ action.



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STATEMENT OF THE CASE

The State of Alabama and the State’s Attorney Gen­
eral, appellants, hereinafter referred to as the State, filed 
suit against the United States and certain officers of the 
United States and certain individuals, appellees, who were 
plaintiffs in another action, all hereinafter referred to as 
the United States.

The action was filed in the District Court for the South­
ern District of Alabama seeking by declaratory judgment to 
determine the constitutionality of Act No. 1, Special Session 
of the Alabama Legislature, 1970.

The complaint prayed for certain incidental relief by 
way of injunction and otherwise (App. p. 1, 4).

The United States moved to dismiss the action (App. p. 
14).

A Threee-Judge Court was convened and ruled that the 
State’s claim did not present a substantial federal question 
in that the claim had been foreclosed by prior decisions of 
the United States Supreme Court (App. p. 8, 53).

In reaching the above conclusion, the Three-Judge Court 
considered the merits of appellants’ claim under Jackson v. 
Choate, 404 F. 2d 910, and ruled that Section 2 of said Act 
No. 1 was unconstitutional as being in violation of the Fed­
eral Constitution.

The case was remanded to a single Judge who dismissed 
the action for the reasons stated by the Three-Judge Panel of 
which he was a member. The other two Judges joined in the 
order of dismissal (App. p. 64).



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The State appealed to the United States Supreme Court 
and to this Court. The matter on motion was held in abey­
ance in this Court until the Supreme Court of the United 
States ruled on the pending appeal to that Court (App. p. 
65).

The Supreme Court has rejected the appeal for lack of 
jurisdiction; hence the prosecution of the appeal to this 
Court.

THE ACT INVOLVED

Act No. 1, Special Session of the 1970 Alabama Legisla­
ture is as follows:

“AN ACT
“TO PREVENT DISCRIMINATION ON ACCOUNT 
OF RACE, COLOR, CREED OR NATIONAL ORIGIN 
IN CONNECTION WITH THE EDUCATION OF THE 
CHILDREN OF THE STATE OF ALABAMA.

“Be it Enacted by the Legislature of Alabama:

“Section 1. No person shall be refused admission into or 
be excluded from any public school in the State of Ala­
bama on account of race, creed, color or national origin.

“Section 2. No student shall be assigned or compelled 
to attend any school on account of race, creed, color or 
national origin, or for the purpose of achieving equality 
in attendance or increased attendance or reduced attend­
ance, at any school, of persons of one or more particular 
races, creeds, colors or national origins; and no school dis­
trict, school zone or attendance unit, by whatever name 
known, shall be established, re-organized or maintained



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for any such purpose, provided that nothing contained in 
this section shall prevent the assignment of a pupil in the 
manner requested or authorized by his parents or guar­
dian, and further provided that nothing in this section 
shall be deemed to affect, in any way, the right of a 
religious or denominational educationa linstitution to 
select its pupils exclusively or primarily from members 
of such religion or denomination or from giving prefer­
ence to such selection to such members or to make such 
selection to its pupils as is calculated to promote the re­
ligious principle for which it is established.

Section 3. The provisions of this Act are serverable. if 
any part of the Act is declared invalid or unconstitutional, 
such declaration shall not affect the part which remains.

“Section U- All laws and parts of laws in conflict here­
with are hereby repealed.

“Section 5. This Act shall become effective upon its 
passage and approved by the Governor, or upon its other­
wise becoming law.

“Approved March 4, 1970.”

ARGUMENT

A State statute shall not be struck down if the statute 
reasonably can be interpreted so as not to conflict with the 
Federal Constitution. New York Times Co. v. Connor, 291 F. 
2d 492; Reynolds v. Sims, 377 U. S. 533.

The above Act No. 1, set forth herein, must, if possible, 
be interpreted as being constitutional. Sugg v. Hendrix, 142 
F. 2d 740.



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These are well settled and important principles of law 
applicable to the present statute under consideration.

It is a matter of common and judicial knowledge that 
when the above Act was passed every public school system in 
Alabama was under a court order expressly and specifically 
directing the establishment of a unitary school system. These 
cases involve each of the State’s 119 public school districts.

We turn then to the Title of Act No. 1, supra. It pro­
vides :

“An Act to prevent discrimination on account of race, 
color, creed or national origin in connection with the 
education of the children of the State of Alabama.”

Section 1 of the Act provides:

“No person shall be refused admission into or be excluded 
from any public school in the State of Alabama on ac­
count of race, creed, color or national origin.”

Every part of the Act must be construed and applied as 
provided in the title to prevent discrimination on account of 
race or color and not as being in direct conflict with valid de­
segregation plans approved and ordered by federal courts 
throughout Alabama.

Section VII of the complaint avers that the defendant, 
Robert H. Finch, as Secretary of Health, Education, and Wel­
fare, has in the past, and is now, submitting desegregation 
plans which go far beyond the requirements of the United 
States Constitution (App. p. 3).

The defendant Secretary was insisting that racial bal­
ance and/or student ratios are constitutionally required to



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desegregate the public schools throughout the State (See 
opinion of District Court in Carr v. Montgomery County Board 
of Education, February 25, 1970, Civil Action No. 2072-N), 
wherein the court stated “Plaintiffs’ objections and the few 
proposals made by the Office of Education, Department of 
Health, Education, and Welfare that differs from the plan 
as proposed by the Montgomery County Board of Education 
appear to be based upon a theory that racial balance and/or 
student ratios as opposed to the complete disestablishment of 
a dual school system is required by law.”

Racial balance and/or student ratios are not required. 
Kemp v. Beasley, 42B F. 2d 851 (8th Cir. 1970); Clark v. 
Board of Education of Little Rock School District, 426 F. 2d 
1035 (8th Cir. 1970).

Boards of education are required to have unitary school 
systems only. Green v. County School Board of New Kent 
County, 391 U. S. 430.

The Legislature of Alabama has a right to legislate in 
those areas where unitary systems exist and in those areas 
where courts and others are requiring of school boards more 
than the United States Constitution requires.

Where there is no longer any state-imposed dual system 
of public schools remaining, freedom of choice being enjoyed 
by all pupils regardless of race, color, religion, or national 
origin, the mandates of the United States Constitution, the 
Civil Rights Acts and the decision in Green have been met.

No difficulty is presented in this case as to Section 2 
of Act No. 1, supra, if it be construed to apply only where 
dual school systems no longer exist and to decrees of the



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courts which exceed constitutional requirements. It should 
be so construed.

CONCLUSION

The District Court of Three Judges erred in its opinion 
that no substantial federal question is presented, and the One- 
Judge District Court erred in following the opinion and in 
dismissing appellants’ action. The case should be reversed.

Respectfully- submitted,

WILLIAM J. BAXLEY
Attorney General of Alabama

GORDON MADISON 
Assistant Attorney General 
of Alabama

JOSEPH D. PHELPS 
Special Assistant Attorney 
General of Alabama

Attorneys for Appellants



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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the forego­
ing brief upon the following attorneys for appellees by placing 
same in the United States n^aHjpostage prepaid and air­
mail where necessary, on this '■’̂ #T,>May of March, 1971:

Honorable Charles S. White- 
Spunner

United States Attorney 
311 Federal Building 
Mobile, Alabama 36602

Honorable Jerris Leonard 
Assistant Attorney General 
U. S. Department of Justice 
Washington, D. C. 20530

Honorable Sara J. Beery
Attorney
U. S. Department of Justice 
Washington, D. C. 20530

Honorable Vernon Z. Crawford 
Attorney at Law 
1407 Davis Avenue 
Mobile, Alabama

Honorable Jack Greeenberg 
Attorney at Law 
10 Columbus Circle 
New York, New York 10019



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Honorable John N. Mitchell 
U. S. Attorney General 
Department of Justice 
Washington, D. C. 20530

Assistant Attorney General 
of Alabama