The State of Washington v. Muhammad Shabazz Farrakhan Brief in Opposition to Certiorari

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 28637

GEORGE ROBERT BOYKINS, as next 
friend of TYWANNA FAYE BOYKINS, 
et al.,

plaintiffs-Appellants, 
UNITED STATES OF AMERICA, et al.,

plainti ff-Intervenor,
v s .

FAIRFIELD BOARD OF EDUCATION, et al.,
Defendants-Appellees.

Appeal From The United States District Court for the 
______________Northern District of Alabama__________

BRIEF FOR APPELLANTS

JACK GREENBERG 
NORMAN C. AMAKER 
NORMAN J. CHACHKIN 10 Columbus Circle 

Suite 2030New York, New York 10019
DEMETRIUS C. NEWTON 408 North 17th Street 

Birmingham, Alabama



I N D E X

PAGE

ISSUES PRESENTED FOR REVIEW................................
STATEMENT.............. ..................... ..............
ARGUMENT

I The Plan Approved Below Is Totally Inadequate
To Convert The Fairfield Schools into A unitary 
Non~Racial System............................

II Alexander v. Holmes County Board of Education
Requires That Fairfield Integrate Its 
Existing Facilities Now........................

CONCLUSION o o 13



Table of Cases
Page

Adams v. Mathews, 403 F.2d 181 (5th Cir. 1363) . • 7
Alexander v. Holmes County Bd. of Educ., ___U.S. ___, 90 S. Ct. 29 (1969)..............  1, 8, 11, 12
Boykins v. Fairfield Bd. of Educ., 396 F .2d

11 (5th Cir. 1968) ........................  2
Brice v. Landis, Civ. No. 51805 (N„D. Cal.,

Aug. 8, 1969).............................. 11
Charles v. Ascension Parish School Bd., No.

23673 (5th Cir., Dec. 11, 1969)............  12
Felder v. Harnett County Bd. of Educ., 409

F. 2d 1070 (4th Cir. 1969)..................  11
Graves v. Walton County Bd. of Educ., 403

F. 2d 189 (5th Cir. 1968) ..................  7
Green v. County School Bd. of New Kent County,

391 U.S. 430 (1968)........................  1. 7
Hall v. St. Helena Parish School Bd., No.26450 (5th Cir., May 28, 1969).............  7
Henry v. Clarksdale Municipal Separate SchoolDistrict, 409 F.2d 682 (5th Cir. 1969) . . .  7, 9, 10
Singleton v. Jackson Municipal Separate School

Dist., No. 26285 (5th Cir., Dec. 1, 1969) . . 2, 12
United States v. Board of Educ. of Bessemer,

396 F. 2d 44 (5th Cir. 1363)................  2
United States v. Board of Educ. of Bessemer,

No. 26583 (5th Cir., July 1, 1 9 6 9 ) ........  2
United States v. Choctaw County Bd. of Educ.,

No. 27297 (5th Cir., June 26, 1969)........  11
United States v. Greenwood Municipal

Separate School Dist., 406 F.2d 1086
(5th Cir. 1969)............................  9, 10

United States v. Hinds County School Bd., No.
28030 (5th Cir., Nov. 7, 1969) ............  11-12



Table of Casas 'continued)
Page

United States v. Indianola Municipal Separate
School Dist., 410 F.2d 626 (5th Cir. 1969) . 9

United States v. Jefferson County Bd. of Educ.,
372 F.2d 836 (1966), aff'd en banc, 380 
F.2d 385 (5th Cir.), cert, denied sub nom.
Caddo Parish School Bd. v. United States,
389 U.S. 840 (1967)........................  2

United States v. Jefferson County Bd. of Educ.,
No. 27444 (5th Cir., June 26, 1969)........  2

iii



ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred in approving a school 
desegregation plan which (a) retained free choice for high school 
and junior high school grades, although under free choice no white 
student had ever chosen to attend the black high school or junior 
high school; (b) zoned four elementary schools along racial 
residential boundary lines without regard to the promotion of 
desegregation, although the natural result of this zoning was to 
preserve an all-white and an all—black elementary school; and
(c) proposed no alternative assignment methods until such time as 
anticipated construction of new junior-senior high school 
facilities on a site not yet owned by the school district was 
completed, estimated to be no sooner than the 1971—72 school year.

2. Whether Alexander v. Holmes County Bd„ of F.duc., ____U.S.
_____, go S.Ct. 29 (1969) requires that the necessary steps for
effective desegregation of all schools utilizing existing facilities 
be taken immediately.

Statement
This is an appeal from the district court's approval of a 

so-called "compulsory integration plan" (A. 3) submitted by 
appellees after a hearing on a Motion for Further Relief pursuant 
to the teachings of Green v. County School Bd. of New Kent County^



1/391 U.S. 430 (1968). initially, the district court entered a
2/decree (A. 1-2) July 25, 1969 requiring the preparation of a new 

plan of desegregation for the Fairfield public schools. Although 
the decree did not specifically so state, its implication was that 
freedom of choice in this school district had not disestablished 
the dual school system. 3/

Nevertheless, the plan submitted by appellees (A. 3-4.1) 
proposed an indefinite retention of free choice in the junior high 
schools and high schools and the zoning of the system's four

The instant case was one of those decided with United States 
v. Jefferson County Bd. of Bduc., 372 836 (1966) aff'den banc, 380". '385 (5th cTrTT, cert, denied sub nom. Caddo 
parish School Bd. v. United States, 389 U.S. 840 (1967).
Cases involving its sister school districts, Jefferson County 
and Bessemer, have already proceeded to review by this Court 
on four occasions subsequent to Green, sub nom.• United States 
Vo Board of Bduc. of Bessemer, 396 F„2d 44 (5th Crr., 1968); 
United States v. Jefferson County Bd. of Ed\ic., No. 27444 
75th Cir., June 26, 1969); United States v. Boattl cf Educ. of 
Bessemer, No. 26583 (5tli Cir., July 1, 1969); and^Srngleton v. 
Jackson Municipal Separate School Diet., No. 26285 (5th Car., 
Dec.*1, 1969). Fairfield has not been before the Court on 
these issues because of collateral proceedings. See Boykins v. 
Fairfield Bd. of Educ,, 3 0 0. F»2d H  (5th cir* 1968); and see, A. 90-92 (copies" of the docket entries relating to the 
various collateral proceedings).

Citations are to the Appendix (A.) or Supplemental Appendix 
(S.A.) which is bound together with, but following, the 
regular Appendix.

3/ With the complicity of the Office of Education, Department 
of Health, Education and Welfare.

-  2



elementary schools with a proviso for mandatory assignment only of 
black students to vacant spaces in "white" elementary schools, not 
to exceed 2C% of enrollment.

Retention of freedom of choice in the upper grades was 
justified because:

The Fairfield Board is giving consideration 
to the construction of a new junior-senior 
high school complex to accommodate all of the students in the Fairfield System on the junior 
and senior high school level. Specifically, 
the Board has under consideration a site for 
construction of this facility and is moving 
toward finalizing these plans.

(A. 15} [emphasis supplied]. At the hearing it was revealed that
purchase negotiations for the possible site of this new educational
complex had not even been completed (A. 99-101); that if such
negotiations were favorably concluded by January 15, 1970 (see
A. 101), the new facility could not be ready to receive students
for some eighteen months (A. 102). Despite this, Fairfield had
given "no favorable considerations" to plans which would utilize
existing buildings to accomplish desegregation (A. 103). The
district's only other purported justification for retaining free
choice was to avoid two reassignments of students:

If the new complex is attained, as 
expected, in the immediate future, 
any steps now taken would have to 
be changed and the unrest incident 
thereto would be aggravated. (A. 15).

As to the elementary school zones, these were drawn with a 
number of factors in mind (A. 16-17), including topographical and 
political boundaries, compactness of zones and convenience.

3



Promotion of desegregation was not a factor in the construction of
zones. (ibid).

Several qualifications must be considered in evaluating the 
elementary school zoning: First, the Board reserved the right to 
change or modify zones without first seeking the approval of the 
district court (A. 18). Second, "hardship" or "capacity" transfers 
were to be granted by the Superintendent without limitation to 
"majority-to—minority" transfers (Ibid). Third, although each of 
the elementary schools was zoned, one portion of the district was 
designated an "option zone," whose resident students would continue 
to have freedom of choice (A. 21-22). Finally, superimposed upon 
the* zoning plan was the statement that the Glen Oaks and Forest 
Hills [all-white during 1968-69] elementary schools will have not 
less than 20% Negro students in attendance subject to capacity 
limitations in the separate schools." (A. 22).

All of these items were given concrete meaning at the hearing. 
The zones themselves were drawn in a manner that would reduce, 
not increase, desegregation. Donald Elementary School, the only 
integrated elementary school under freedom of choice, would have
less than a hundred (A. 141, 144), as contrasted to 167 (A. 24)

4/Negro students in 1969-70; Glen Oaks and Forest Hills elementary

The mandatory assignment of Negro students to vacant spaces 
at the school brought the total to 146 Negro students. See 
SoA. at p. 2.

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school zones contained no Negro residents (A. 143, 144). The
"option zone" where free choice was to be in effect is a majo y 
black area (A. 146). The transfer provisions would very lxkely 
be given a rather broad reading (A. 163-63). And finally, the 
provision for mandatory assignment of Negro students to wh_te 
schools to a 20% level (made necessary because the zoning inhibited 
not promoted, desegregation) was dependent upon the existence of
sufficient capacity at those schools (A. 127).

At the hearing held on the first school day of the term, the 
Superintendent did not know how many Negro students could be so 
assigned (A. 129) or how many attended the white schools (A. 147). 
The district's October 22, 1969 Report (S.A. at p. 2) shows that 
assignments of Negro students to the white schools were made 
according to the plan. However, Robinson Elementary, interurban 
Heights Junior High and Oliver High Schools continue to enroll 
only black students. These three schools enroll 1,442 (or 76.2%) 
of the 1,893 black students in the Fairfield system.

Although the numbers of Negro and white faculty and staff 
members in the Fairfield school system are about equal (S.A. at 
p. 2), the Board proposed in its plan only to assign mo-e^than 
one teacher of the minority race" to each faculty (A. 19). The

1/ The Board took the position that its staffs 3 "had 
integrated (A. 10. 19) and noted"placed Negroes in supervisory positions o* focf-f'pdo?all!" <L 10). However, the Superrntendent testrfred 
. farina ^hat these Negro "supervisors iA. i-saj

?urSdic??on oveJr only the a?l-Negro Robinson Elementary 
School (A. 148-49).

5



district court apparently found this insufficient, at least as to 
Interurban Heights Junior High School and Oliver High School, but 
required no corrective action other than the filing of a plan by 
January 15, 1970 to increase assignments of white teachers to these 
schools (A. 78-79).

The October report filed by the Board (S.A. p. 2) reveals that 
each school is still racially identifiable by faculty composition.

Finally, extracurricular activities remain basically segregated. 
Although Negro students attending white schools may participate in 
such activities, there is no athletic or other competition between 
the black and white schools in the system (A. 135-36) .

The district court approved the Board's plan, holding that 
"when the proposed plan is duly impl.emented the dual school system 
in the city of Fairfield, Alabama, will be abolished consistent 
with constitutional requirements insofar as it is feasible and 
practical to do so." (A. 79). Notice of Appeal was filed 
September 12, 1969 (A. 169).

ARGUMENT
I

The Plan Approved Below 
Is Totally inadequate To 
Convert The Fairfield 
Schools Into A Unitary 
Non-Racial System

A. Continued Free Choice In High Schools and Junior High 
Schools Cannot Be Justified.

-  6



The Superintendent as much as admitted that freedom of choice 
would not work in Fairfield when he said that other alternatives 
(using existing buildings) to effectively desegregate had been 
considered and rejected (A. 103). Although free choice has been 
a vehicle permitting Negro students to attend white schools, it has 
been a dismal failure as far as implementing a unitary school 
system is concerned. No white student in Fairfield has ever chosen 
to attend a Negro school. Thus, if high school and junior high 
school freedom of choice is continued for another year or another 
decade, the only predictable result is the continuation of Oliver
High School and interurban Heights Junior High School as all-Negro

6/schools.- They are all-Negro schools in 1969-70 under freedom of 
choice. (S.A. at p. 2).

The district court apparently treated the issue solely as one 
of timing and permitted the continuation of free choice un--il new 
construction was completed in order to avoid reassignments of 
students. Such a delay, based on an entirely conjectural building 
program on a site not yet purchased by the district and requiring 
monies from a bond issue not yet proposed (A. 104), cannot be 
squared with the requirement in Green v. County School Bd., 391 
U.S. 430 (1963) that an acceptable plan must offer realistic 
premise of converting to a unitary school system immediately upon 
its implementation, not two years later. (This was the minimum

6/ see Adams v. Mathews, 403 F.2d 181 (5th Cir., 1968); Graves
v. Walton County"Bd. of Ecluc., 403 F.2d 189 (5th Cir., 1968); 
Henry v. Clarksdale Municipal Separate School Dist., 409 F.2d 
682 (5th cTr7T969) ; Hall v. St. Helena parish School Bd. ,
No. 26450 (5th Cir., May 28, 1969).

7



estimate for the completion of construction) (A. 102). The timing 
question has now been resolved and the constitutional mandate of
immediacy underscored-Alexander v. Holmes County Bd. of Educ., ___
U.S.____, 90 S.Ct. 29 (1969).

The district court should have required immediate implementa­
tion of some plan other than freedom of choice at the high schocl-

Vjunior high level. The availability of other alternatives is 
unquestionable. There is one black and one white school on each 
grade level, located in a district roughly rectangular, one mile by 
three miles. Elementary school zone lines drawn parallel to the 
longer dimension of the district, €̂ .c[., Birwood Avenue, separate 
white and Negro neighborhoods (A. 20-21, 112). Thus, a north-south
zoning of high schools and junior high schools seems likely to

8/integrate all schools. The other rather obvious alternative which 
suggests itself is pairing. In any event, it is clear that free 
choice will net do the job.

2/

y

The acquiescense of HEW to continued free choice is not 
the sine qua non of its constitutionality.

The district points (A. 156) to the existence of only two 
crossings of the u„S. Steel Railroad line, which runs on a 
north-south axis. However, two crossings within the one-mile 
north-south dimension of the entire district seems neither 
a nmeasurable nor burdensome.

h i£

8



B. The Elementary School Zones perpetuate Segregation 
In Violation of this Court's Decisions.

Appellants find the district court's approval of the 
elementary school zone lines entirely without rational support in 
light of this Court's decisions in United States v. Greenwood 
Municipal Separate School Dist., 406 F.2d 1086 (5th Cir. 1969);

v» Clarksdale Municipal Separate School Dist., 409 F.2d 682 
(5th Cir. 1969); and United States v. Indianola Municipal Separate 
School Dist,, 410 F.2d 626 (5th Cir. 1969). The record is crystal 
clear that the zone lines were not drawn so as to promote integra­
tion. See A. 16-17. The zone boundaries separate Negro and white 
residential areas (A. 112, 145) and result in all-Negro or all-white
zones (A. 141-42, 144, S.A. at p. 2). Glen Oaks and Forest Hills2/zones contain only white students (Ibid); Robinson only Negroes 
(S.A, at p. 2).

The defects of the zoning are mads apparent by the proposal
to mardatorily assign Negro students from other zones into the

10/
Forest Hills and Glen oaks schools. Under strict zoning, only

Negroes attend these schools pursuant to the mandatory 
assignment feature of the plan approved by the district 
court. See infra.

This feature was included in the plan despite the fact 
that by assigning Negro students outside their zones, the 
Board disregards the convenience and traffic factors which 
originally led to the establishment of those zones.

2/

W

-  9 -



Donald Elementary would be integrated, and there would be on the
whole leas integration in the system than under freedom of choice
(A. 141, 144) . This Court said in United States v. Gr^nwqod
Mrniei.pal Separate School Dist., supra, 406 F»2d at 1093,

Geographic zoning, like any other attendance plan adopted by a school 
board in this Circuit, is acceptable 
only if it tends to disestablish rather than reinforce the dual system 
of segregated schools.

And in Kenrv v. clarksdale Municipal Aeparat^Sch^lJ^sJ^, supra, 
406 f .2d at 607-8 , the Court spoke in language totally applicable
to this case:

The basic criteria the school board 
used [in drawing zone lines] in this 
case were rational. . . But there is 
a sixth basic criterion the Board did 
not use: promotion of desegregation.

in the light of these precedents, the district court should have
rejected the Board's zoning proposal.

C. Neither the Free Choice Nor the Zoning provisions of 
the Plan are Saved by the Feature Providing for Mandatory
Assignment of Negro Students.

The rigors of continued free choice in Fairfield, which
produced all-black schools arid minimal integration (for a system 
where 53% of the students are black) in the white schools (A. 24), 
and of the Board's zoning policies, were sought to be instigated by 
the inclusion in the plan of a provision requiring the assignment 
of Negro students across zone lines to vacant spaces in white

10



schools. This provision does not cure the other defects of the 
plan for several reasons.

First, the assignment is of Negro students only, thus putting 
the entire burden of producing what desegregation there is upon 
Negro students. See Brice v. Landis, Civil No. 51805 (N„D. Cal., 
Aug. 3, 1969), slip opinion at pp. 6-7; Felder v. Harnett_ County 
Bd, of Educ,,, 409 F. 2d 1070, 1075 (4th C.ir. 1969).

Second, this aspect of the plan deals only with integration 
at the white schools, and does nothing to end the segregated 
character of Robinson, Oliver or Interurban Heights schools.

Finally, the achievement of a 20% Negro student body at four 
white schools represents, in reality, the kind of tokenism and 
gradualism this Court condemned in United States v. Choctaw County 
F.d. of Educ., No. 27297 (5th Cir., June 26, 1969), slip opinion at
p. 6:

As a matter of law, there must be 
student desegregation now, not 
10 per cent in I9G8-69, 20 per 
cent in 1969-70, and so on until 
desegregation eventually is effected.

II
Alexander v. Holmes County 
Board”*o f dueation Requires That F~air field" Integrate 
Its Existing Facilities Now

Vl otWe need .new do more than cite the Supreme Court decision m  
Alexander v. Holmes County Board of Education, supra and this 
Court's implementation of that decision in United States v. Hinds

11



County School Board* No. 28030 (5th Cir., November 7, 1969) to 
astablish the proposition that integration of the Fairfield public 
schools must occur now and not at some date in the future when new 
construction has been completed.

Appellants are aware, however, that this court has recently 
established a new summary procedure to dispose of school 
desegregation cases subsequent to its en banc decision in Singleton 
v. Jackson Municipal Separate School District, No. 26285 (5th Cir. 
December 1, 1969). See, £.£. # Charles v. Ascension parish School 
Board, No. 28573 (5th Cir. December 11, 1969).

The deficiencies in the plan approved below which appellants 
have already pointed out violate not only the decisions cited in 
this brief but also the principles expressed in Singleton. For 
that reason appellants believe that Singleton requires a reversal 
in this case with directions to HEW to draw a complete unitary 
system plan rather than an interim plan„ Appellants would not, 
however, be satisfied with a remand according to the time schedule 
set forth in Singleton. We believe that Alexander requires 
implementation of a unitary system plan as soon as it is formulated 
and in no event later than the second semester of the present 
school year.

We are aware that the Court is likely to simply reverse and 
remand for compliance with Alexander and Singleton. We respectfully 
urge that if the court is inclined to do so, it include the

12



observation that should the time schedule of Singleton be rejected 
and accelerated by the Supreme Court of the United States, that 
such accelerated time schedule as is prescribed by the Supreme 
Court shall be implemented in this case as well.

Conclusion
For all of the above reasons appellants respectfully pray 

that this case be reversed and remanded for implementation of a 
unitary system no later than the second semester of the present 
school year and for compliance in other respects with the 
decision in Singleton.

Respectfully submitted,

JACK GREENBERG 
NORMAN C. AMAKER NORMAN J. CHACHKIN 10 Columbus Circle 

Suite 2030New York, New York 10019
DEMETRIUS C. NEWTON 408 North 17th Street 

Birmingham, Alabama

13