Davis v. Mobile County Board of School Commissioners Appendix Volume III
Public Court Documents
July 23, 1970
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Brief Collection, LDF Court Filings. Davis v. Mobile County Board of School Commissioners Appendix Volume III, 1970. da9c0610-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/53a971e2-1840-4ce6-ad48-d5bd0b810c4c/davis-v-mobile-county-board-of-school-commissioners-appendix-volume-iii. Accessed April 19, 2025.
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APPENDIX
Volume III — pp. 591a-807a
Supreme Court of the United States
OCTOBER TERM, 1970
No. 436
BIRDIE MAE DAVIS, ET AL., PETITIONERS,
BOARD OF SCHOOL COMMISSIONERS
OF MOBILE COUNTY, ET AL.
CW WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
ACTION ON PETITION FOR WRIT OF CERTIORARI
DEFERRED AUGUST 31, 1970
PETITION FOR WRIT OF CERTIORARI FILED JULY 23, 1970
I N D E X
Volume III
P A G E
Statistical Exhibits Submitted by the United States
to the District Court on January 27, 1970 ........... 591a
District Court Order of January 28, 1970 ............... 602a
District Court Order of January 31, 1970 ............... 603a
District Court Order of February 4, 1970 .............. 610a
Court of Appeals Opinion of February 16, 1970 ....... 611a
District Court Order of February 27, 1970 ............... 616a
District Court Order of March 12, 1970 .............. 617a
District Court Order of March 16, 1970 ............. 619a
Court of Appeals Order of March 25, 1970 ............. 620a
District Court Order of March 31, 1970 .................. 622a
Plaintiff’s Motion to Establish Procedures on Re
mand Filed April 6, 1970 ........................................ 623a
District Court Order of April 14, 1970 .................. 623a
District Court Order of April 14, 1970 .................. 624a
Affidavit of James A. McPherson Filed April 10,
1970 .............................................................................. 625a
11
Attachment A ......................................................... 651a
Attachment B ......................................................... 652a
Attachment C ......................................................... 653a
Attachment D -l ...................................................... 657a
Attachment D-2 ..................................................... 659a
Attachment D-3 ..................................................... 661a
Attachment E ......................................................... 663a
Attachment F ......................................................... 667a
Attachment G ......................................................... 671a
Attachment H ......................................................... 674a
Attachment J ........................................................... 677a
Court of Appeals Opinion of June 8, 1970 ............... 680a
Appendix A ............................................................. 689a
Court of Appeals Judgment of June 8, 1970 ............. . 694a
District Court Order of June 12, 1970 ...................... 695a
Court of Appeals Orders of June 29, 1970 ............... 698a
District Court Order of July 13, 1970 ...................... 699a
Exhibit 4 ................................................................... 701a
District Court Order of July 30, 1970 ...................... 702a
Court of Appeals Opinion of August 4, 1970 ........... 704a
Charts ....................................................................... 709a
PAGE
Projected Enrollment Data for Elementary, Middle
and High Schools Broken Down as to U.S. District
Court Plan Under Order of 7/13/70; Fifth Circuit
Plan; and U.S. District Court Plan under Order
of 7/30/70, Filed August 20, 1970 ............................. 717a
Court of Appeals Opinion of August 28, 1970 ......... 720a
District Court Order of September 4, 1970 ............. 723a
District Court Order of September 4, 1970 ............. 724a
District Court Order of September 14, 1970 ........... 726a
District Court Decree of May 13, 1968 ........................ 728a
School Board’s Eesponse to HEW’s July 1969 Plan,
Filed July 21, 1969 ............ ...................................... 737a
School Board Affidavit, Filed July 29, 1969 ............... 743a
Attachment A ......................................................... 768a
School Board Report to the Court, Filed October 13,
1969 .............................................................................. 770a
School Board Report to the Court, Filed Novem
ber 20, 1969 ............................... 771a
District Court Order of January 22, 1970 ................. 773a
School Board Response to Order, Filed January 30,
1970 ................................. 774a
District Court Order of January 31, 1970 ....... 778a
I l l
PAGE
School Board Report to the Court, Filed Febru
ary 23, 1970 ................................................................. 779a
School Board Report to the Court, Filed Febru
ary 24, 1970 ................................................................. 781a
School Board Affidavit, Filed January 30, 1970 ....... 785a
School Board Motion for Stay, Filed March 17,
1970 ............................................................................... 797a
Exhibit A ................................................................. 801a
School Board Objection to a Portion of the Record,
Filed March 27, 1970 ................................... 803a
District Court Order of August 12, 1970 .................... 804a
District Court Order of August 12, 1970 .................... 806a
Court of Appeals Order of September 18, 1970 ....... 807a
i v
PAGE
PROJECTED ENROLLMENT CHANGES
BETWEEN 1969 AND 1970
ELEMENrARY SCHOOLS
HEW HEW Plan HEW Plan-*--'
School 1969-70 Board Plan Plan B B-Alt. B-l Alt.
South Brookley W 499 502 514 514 224
Cap. 429 (1-6 ) (1-6 ) (1-6 ) (1-6 ) (4-5) (Caldwell 1-3)
N 75 71 72 72 218 Tot. Cap. 1023
Morningside W 740 631 636 636 369
Cap. 561 (1-6 ) (1-5) (1-5) (1-5) (1-2) (Arlington-Council 3-5)
N - 0 0 120 0 222 Tot. Cap. 1584
Williams W 497 571 ' 571 571 303
Cap. 396 (1-6) (1-6 ) (1-6 ) (1-6 ) (3) (Dodge 1-2, Owens 4-6)
N 60 43 43 43 225 Tot. Cap. 2674
Maryvale W 548 478 472 472 380
Cap. 594 (1-6 ) (1-5) (1-5) (1-5) (4-5) (Hall 1-3)
N 55 130 145 15 236 Tot. Cap. 1782
Mertz W 461 496 402 402
Cap. 528 (1-6 ) (1-5) (1-5) (1-5) (3-4) (Westlawn l-2,Lienlcauf 5)
N 0 0 120 0 44 Tot. Cap. 1551
Westlawn W 516 483 495 495 •/fj'
Cap. 528 (1-6 ) (1-6 ) (1-5) (1-5) (1-2 ) (Mertz 3-4,Lienkauf 5)
N 0 0 75 0 Tot. Cap. 1551
1 / Under this plan two or more schools are paired in order to house one group of elementary students. This
column indicates the particular grades suggested for the school, the schools which are to be included in the
pairing, and the total capacity of the buildings. Where more than one school is to be used for the one group
of grades, the school other than the one in the left hand column will not be within parenthesis.
591a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27,-1970
HEW HEW Plan HEW Plan
School 1969-70 Board Plan Plan B B-Alt. B-l Alt.
Woodcock W 239 249 CONVERTED TO MIDDLE SCHOOL AS PART OF EANES
Cap. 594 (1-6 ) (1-5)
N 119 170
Hall W 0 CONVERTED TO 483 483 691
Can. 1188 (1-6 ) MIDDLE SCHOOL (1-5) (1-5) (1-3) (Maryvale 4-5)
N 686 664 664 458 Tot. Cap. 1782
Arlington W 307 - , / 350 350 737
Cap. 462 (1-5) • CLOSE (1-5)— (1-5) (3-5) (Morningside 1-2)
N 237 Council 659 Council 659 437 Tot. Cap. 1584
Council W 0 6 ,,350 350 737
(1-5) (1-5) (l-5)-i/ (1-5) (3-5) (Morningside 1-2)
N 481 525 Arl. 659 659 Arl. 437 Tot. Cap. 1584
Emerson .
(Souths i ae)—4/ w . 4 16 CLOSE 3 CLOSE
Cap. 696 (1-6 ) (1-6 ) (1-5)
N 354 340 518
2/ The total capacity for the Arlington-Council facilities is .1023.
_2/ Ibid.
4,/ The Emerson School building was apparently abandoned sometime during the 1969-70 school year and the children
were moved to the old Southside Junior High School which the Board had closed in 1968 because of its condition.
The capacity figure used for Emerson is the listed capacity for the Southside plant. The capacity of the Emerson
School when it was used was 528.
2 -
592a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27, 1970
School 1969-70 Board Plan
Lienkauf w 268 258
Cap. 495
N
(1-6 )
177
( 1 - 5 )
96
Owens W 0 0
Cap. 1485
N
(1-6 )
1100
(1-6 )
1237
Caldwell W 0 13
Cap. 594
N
(1-6 )
314
(1-6 )
401
Howard W 0 21
Cap. 429 (1-6 ) (1-6 )
Old Shell Road W 249 250
Cap. 495
N
(1-6 )
112
(1-6 )
120
Crichton W 507 518
Cap. 759
N
(1-6 )
237
( 1 - 6 )
243
Stanton Road W 0 14
Cap. 990
N
(1-6 )
977
(1-6 )
1077
Fonvielle W 0 8
Cap. 1155 (1-6 ) (1-6 )
N 1209 1153
HEW HEW Plan
Plan B B-Alt.
273 273
(1-5) (1-5)
165 165
2 2
(1-5) (1-5)
1414 1414
1
CLOSE (1-5)
404
0
CLOSE (1-5)
232 232
(1-5) (1-5)
295 295
438 438
(1-5) (1-5)
348 348
6 6
(1-5) (1-5)
900 900
CONVERTED
TO MIDDLE (1-5)
0
SCHOOL 1000
HEW Plan
B-l Alt.
£73
-4r±tT
(5) (Westlawn 1-2, Mertz 3-4)
(4-6)
-XiO Tot. Cap. 1551
3 .3
484
(Dodge 1-2, Williams
1100 Tot. Cap. 2674
(1-3)
291
(South Brookley
255 Tot. Cap.
4 - 5 )
1023-
CLOSE
(1-3)
312
(Austin 4-5)
178 Tot. Cap. 891
(3-5)
481.
(Shepard 1-2)
241 Tot. Cap. 1287
(3-5)
491
(Dickson 1-2)
491 Tot. Cap. 1717
400
(3-5) (Forest Hill 1-2)
656 Tot. Cap. 1815
593a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27, 1970
HEW HEW Plan HEW PlanSchool 1969-70 Board Plan Plan B B-Alt. B-l Alt.'
Gorgas W 2 8 7 3 449Cap. 850 (1-6 ) (1-6 ) (1-5) (1-5) (1-3) (Orchard 4-5)N 1153 1150 963 963 441 Tot. Cap. 1597
Palmer W 57 60 r ,434 434 634Cap. 594 (1-5) (1-5) (1-5)—5/ (.1-5) (3-5) (Fonde 1-2)N 674 660 Glen. 931 Glen. 931 Glen. 717 Tot. Cap. 2112
Glendale W 508 444 , ,434 434 634Cap. 693 (1-6 ) (1-5) (1_5)J6/ (1-5) (3-5) (Fonde 1-2)N 149 206 Palmer 931 Palmer 931 Palmer 717 Tot. Cap. 2112
Whitley W 0 0 216 216 273Cap. 594 (1-5) (1-5) (1-5) (1-5) (3-5) (Thomas 1-2)N 395 420 481 481 341 Tot. Cap. 891
Brazier W 0 0 10 10 355Cap. 1122 (1-6 ) (1-5) (1-5) (1-5) (3-5) (Ind. Springs 1-2)N 1123 983 1022 1022 812 Tot. Cap. 1551
Grant W 1 15 15 15 197Cap. 1188 (1-5) (1-5) (1-5) (1-5) (3-5) (Eight Mile 1-2)N 1274 1250 1285 1285 1101 Tot. Cap. 1848
Robbins W 6 2 „ ,638 638 800Cap. 825 (1-5) (1-5) (1_5)-Z/ (1-5) (3-5) (Chickasaw 1-2 )N 815 805 Hamilton 855 Hamilton 855 Hamilton 693 Tot. Cap. 2112
5/ The total capacity for the Palmer-Glendale facilities is 1287.
6 / Ibid.
JJ The total capacity for the Robbins-Hamilton facilities is 1485.
4
594a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27, 1970
HEW HEW Plan HEW Plan
School 1969-70 Board Plan Plan B B-Alt. B-1 Alt.
Hamilton W 629 625 ,638 638 800
Cap. 600 (1-6 ) (1-6 ) (1-5)—&/ (1-5) (3-5) (Chickasaw 1-2)
N 0 0 Robbins 855 Robbins 855 Robbins 693 Tot. Cap. 2112
Bienville W 262 300 CONVERTED TO HIGH SCHOOL
Cap. 660 (1-6 ) (1-6 )
N 299 313
Chickasaw W 494 500 473 473 311
Cap. 627 (1-6 ) (1-6 ) (1-5) (1-5) (1-2) (Robbins-Hamilton 3-5)
N 3 .0 100 100 662 Tot. Cap, 2112
Shepard W 409 _9/ 383 410
Cap. 528 (1-6 ) (1-5) (1-5) (1-2) (Crichton 3-5)
N 29 160 43 150 Tot. Cap. 1287
Dodge W 675 565 565 351
Cap. 793 (1-6 ) (1-5) (1-5) (1-2) (Williams 3, Owens 1-2)
N 65 45 45 506 Tot. Cap. 2674
Austin W 396 331 3 3 / 311
Cap. 396 (1-6 ) (1-5) (1-5) (4-5) (Old Shell Road 1-3)
N 22 84 22 139 Tot. Cap. 891
Fonde W 679 605 b o f 405
(1-6 ) (1-5) (1-5) (1-2) (Palmer-Glendale 3-5)
N 11 236 11 450 ' Tot. Cap. 2112
_8/ Ibid.
9 / The Board's plan does not propose any change in the elementary and middle schools located west of 1—65 and
no enrollment projection statistics are available for those schools.
5
595a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27, 1970
School
Dickson
Cap. 742
Orchard
Cap. 792
Will
Cap. 792
Forest Hill
Cap. 660
Whistler
Cap. 726
Thoma s
Cap. 297
Indian Springs
Cap. 429
Eight Mile
Cap. 660
1 9 6 9 - 7 0
w
( 1 - 6 )
835
N 193
W
( 1 - 5 )
754
N 113
W
( 1 - 5 )
657
N 175
W
( 1 - 5 )
560
N 0
W
( 1 - 6 )
227
N 231
W
( 1 - 6 )
222
N 101
W
( 1 - 6 )
520
N • 12
W
( 1 - 8 )
586
N 110
Board Plan
HEW H£iW Fian n£jw rj.ctxi
( 1 - 5 )
(1-5)
(1-5)
(1-5)
(1-5)
(1-5)
(1-6)
(1-6)
Plan B B-Alt. B-1 Alt.
680
(1-5)
680
(1-2)
195
(Stanton Road 3
125 125 534 Tot. Cap.
M i
(1-5) (4-5)
313
(Gorgas 1-3)
125 117 639 Tot. Cap.
678
(1-5)
678 '
(3-5)
397
(Whistler 1-2)
395 355 422 Tot. Cap.
586
(1-5)
586
(1-2 )
204
(Fonvielle 3-5)
3 55 0 334 Tot. Cap.
181
(1-5)
181 (1-2 )
462
(Will 3-5)
205 205 178 Tot. Cap.
180
i (1-5)
180
(1-2)
123
(Whitley 3-5)
95 95 235 Tot. Cap.
535
1 (1-6 )
53 5
(1-2)
190
(Brazier 3-5)
ii 11 221 Tot. Cap.
280
) (1-6 )
280
(1-2)
98
(Grant 3-5)
66 66 250 Tot. Cap.
6
596a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict Court on January 27, 1970
MIDDLE SCHOOLS
HEW HEW Plan HEW PlanSchool 1969-70 Board Plan Plan B B-Alt. B-l Alt.
Rain w 1296 1150 1150 1150 10/Cap. 986 t7-12) (7-12 ) (7-12) (7-12)
Eanes w 966 911 980 .,/980Cap. 1218 (7-9) (6-8 ) (6-8 ) (6-9)^ ___ __
N 134 160 Woodcock 764 Woodcock 764
Woodcock W 980 980Cap. 594 USED AS ELEMENTARY SCHOOL (6-9) (6-9)N Eanes 764 Eanes 764
Craighead W 119 383
Cap. 891 (6-7) (1-5) CONVERTED TO HIGH SCHOOL
N 405 512
Williamson W i USED AS HIGH SCHOOL ONLY
Cap. 1350 (8-1 2) — — ----
N 1143
Hall . W 0 182
Cap. 1188 (1-6 ) (6-8 ) USED AS ELEMENTARY SCHOOL
N 686 573
Dunbar W 2 6 ,1044 1044
Cap. 1131 (7-8) (7-8) (6-9)1^ (6-9)-
N 837 912 Central 1562 1562
10/ Under Plan B-l Alternative the same middle school and high school plans proposed in Plan B or Plan B-
Alternative could be used. If Plan B were used, Toulminville would be substituted for Fonvielle as part of the
Washington-Phillips middle school .facility.
11/ Under Plans B and B-Alternative Eanes would be used with Woodcock as a Middle School. The combined capacities of the two facilities would be 1812.
12/ The total capacity for the Dunbar-Central facilities is 2639.
7
597a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27, 1970
Central
Cap. 1508
S c h o o l
Phillips
Cap. 1073
Washington
Cap. 1043
Fonvielle
Cap. 1155
Toulminville
Cap. 609
Mob. Co. Tr.
Cap. 1305
Prichard
Cap. 609
13/ The total
14/ The total
W
N
USED AS HIGH SCHOOL
1 9 6 9 -7 0 • B oard P lan
HEW
Plan B
HEW Plan
B-Alt.
HEW Plan
B-l Alt.
w
( 7 - 8 )
752
( 7 - 8 )
861 (6_9)i3/ 1040
N 122 171 1562
W
( 7 - 9 )
0
( 7 - 9 )
16
( 6 - 9 )
1040
N 1528 1559 Fon-P'hil. 1562
1044 1044
(6-9) (6-9)
1562 1562
, 1040
1040
(6-9)
W
N
W
N
W
N
W
N
USED AS ELEMENTARY SCHOOL
USED AS HIGH SCHOOL
1040
(6-9)
Phil-Wash.1562
USED AS ELEMENTARY SCHOOL
1040
(6-9)
Fon-Phi1.1562
0
(6-12)
1283
102
(6-12)
1177
(6-7)
432
859
(6-7)
432
859
353
(6-9)
170
340
(6-8 )
167 .
(6-7)
240
410
(6-7)
240
410
capacity for the Phillips-Washington-Fonvielle facilities is 3271.
capacity for the Phillips-Washington-Toulminville facilities is 2725
- 8 -
598a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27, 1970
School 1969-70 Board Plan
Carver w 1 8
Cap- 1023 ( 6 - 7 ) (6-8 )
N 857 867
Trinity Gard. w 0 0
Cap. 899 (7-12) (6-8 )
N 1034 992
Clark w 1089 1242
Cap. 1390 (7-9) (7-9)
N 203 278
Azalea Rd. W 1039
Cap. 1015
N
(7-8)
38
Scarborough W 638
Cap. 1000
N
(6-8 )
77
Hillsdale W 431
Cap. 847
N
(6-8 )
217
HEW
Plan B
HEW Plan HEW Plan
B-Alt. B-l Alt.
CONVERTED TO HIGH SCHOOL
380 380
(6-7)
690
(6-7) --------
690
536
(8 )
948
536
(8 ) --------
948
857
(6-7)
133
857
(6-7) --------
133
855
(6-7)
133
855
(6-7) --------
133
858
(8)
131
858
(a ) ----------------
131
1 vD 1
599a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict C
ourt on January 27, 1970
HIGH SCHOOLS
HEW HEW Plan HEW Plan
School 1969-70 Board Plan Plan B B-Alt. B-l Alt.
Rain W 1296 1150 1150 1150
Cap. 986 (7-12) (7-12) (7-12) (7-12)
N 112 97 97 97
Williamson W 1 762 "Stl 1008 1008
Cap. 1350 (8-1 2) (9-12) (10-12) (10-1 2)
N 1143 474 Craig. 767 Craig. . 767
Central W 0 17 CONVERTED TO MIDDLE SCHOOL
Cap. 1508 (9-12) (9-12)
N 1470 1372
Murphy W 2602 2171 1440 1440
Cap. 2813 (9-12) (9-12) (10-1 2) (10-1 2)
N 239 425 1360 1913
Toulminville W 0 20 0
Cap. 609 (10-1 2) (10-12) (12) CONVERTED TO
N 1135 1145 365 MIDDLE SCHOOL
Blount W 0 22 1908 Vig-BLen- 1908
Cap. 1972 (8-12) (9-12) (9-12) (9-12)
N 1893 1875 Carver 2962 Carver 3516
-raj ,** a?-y/.
15/ The total capacity'for the Vigor-Bienville-Blount-Carver facilities is 5424.
- 10 -
600a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict Court on January 27, 1970
HEW HEW Plan
School 1969-70 Board Plan Plan B B-Alt.
Carver w Vig-Bien 1908 Vig-Bien 1908
Cap. 1023 USED AS MIDDLE SCHOOL (9-12) (9-12)
N Blount 2962 Blount 3516
Vigor w 1504 1296 Blt-Carv 1908 Blt-Carv 1908
Cap. 1769 (10-1 2) (9-12) (9-12) (9-12)
N 195' 468 Bienville 2962 Bienville 3516
Bienville W Blt-Carv 1908 Blt-Carv 1908
Cap. 660 USED AS ELEMENTARY SCHOOL (9-12) (9-12)
N Vigor 2962 Vigor 3516
Mobile Co. Tr. W 0 102
Cap. 1305 (6-12) (6-12) USED .AS MIDDLE SCHOOL ONLY
N 1283 1177
Davidson W 1738 2150 1738 1738
Cap. 1972 (9-12) (9-12) (9-12) (9-12)
N 604 70 604 51
Shaw W 1242 1250 1150 1150
Cap. 1044 (9-12) (9-12) (9-12) (9-12)
N 237 240 471 196
HEW Plan
B-l Alt.
j j i f W ^ ^ ‘( J
601a
Statistical E
xhibits Subm
itted by the U
nited States to
the D
istrict Court on January 27, 1970
602a
To the Board of School Commissioners of Mobile County,
Alabama, and Each Member Thereof:
At pretrial conference in this case held Thursday, Janu
ary 22, 1970, both the Government and the School Board
were requested to submit to the Court at 9 A.M., Tuesday,
January 27, 1970, (yesterday) revision of plans submitted
by the School Board on December 1, 1969, and revision of
plans submitted by Health, Education & Welfare as Plan B
Alternative, on December 1, 1969, in accord with the man
dates of the Supreme Court and the Fifth Circuit Court of
Appeals. The Government submitted such revised plan
at 9 A.M. on Tuesday, January 27, 1970, but the School
Board did not do so, and as of 9 :30 A.M. this date, has not
done so.
The School Board is the most knowledgeable on the sub
ject and upon whom the Court would prefer to seek advice.
The School Board is now Ordered to forthwith submit to
the Court such revised plan.
D one at Mobile, Alabama, this the 28th day of Janu
ary 1970.
D aniel H. T homas
United States District Judge
District Court Order of January 28, 1970
603a
District Court Order of January 31, 1970
This Court entered a decree in this case on August 1,
1969, under which the public school system of Mobile County
opened and operated through the first semester of 1969.
That part of the desegregation plan devised in said order
which was to be implemented in September 1970, was in ac
cord with recommendations of Health, Education and Wel
fare, with alterations or modifications to meet particular
educational principles. This Court’s decision was appealed
and was affirmed by the Fifth Circuit Court of Appeals
sitting en banc on December 1, 1969.
I On January 14, 1970, the Supreme Court of the United
States reversed the Fifth Circuit Court of Appeals^ and
remanded the decision to the Court of Appeals tor fur
ther proceedings consistent with the Supreme Court’s opin
ion. On January 21, 1970, the Court of Appeals issued its
ma.nHate~~to this Court, which in ^ fe c tTtnteOhaFThefe"'
~could~be no~deferral of school desegregation beyond Febru-
ja rv l, 19.70.
Faced with this mammoth task, the Court on its own mo
tion sought the advice and professional assistance of all the
parties. On the afternoon of January 23, 1970, the Court
conducted a pretrial conference with the attorneys repre
senting all of the parties and at such time the Court re
quested attorneys for the school board and the government
to submit a revision of the plans submitted by the school
board on December 1, 1969. The Court realizing its plan
of August 1, 1969, in some respects was still a dual system,
ordered the school board to submit a plan not later than
December 1, 1969, which would disestablish such system,
which plan was to be implemented on September 1, 1970.
604a
The Court also called upon the Government for revision
of the HEW plan which the government thought should be
followed for the remainder of the present school year.
These revised plans were to he furnished to the Court by
9 o’clock A.M. on the 27th day of January. The govern
ment furnished the requested plans. The school board did
not, and by order dated January 28, 1970, at 9:30 A.M., the
school board was ordered to submit such revised plans. As
of this date, they have not done so. The school board and
its staff of administrators and professional educators, who
know the Mobile Public School System best, who have all
the facts and figures which are absolutely necessary for a
meaningful plan, have not assisted or aided the Court
voluntarily. Consequently, the plan which is by this decree
being ordered is not perfect, but the ten day period from
January 21st to February 1st obviously allows inadequate
time to work out an ideally legal and workable plan for
educating approximately 75,000 school children, particu
larly when the change comes in mid-semester. This plan
pleases no one—the parents and students, the school board,
Justice Department, NAACP, nor in fact, this Court. The
Court’s plan closes schools which the school board wants
open. It opens schools which the Justice Department wants
closed. But a decision had to be made and it was the duty
and the responsibility of this Court to make that decision.
The Supreme Court of this country has spoken, and this
Court is bound by its mandate. It is the law. It must he
followed.
The revised HEW plan which the government submitted
to the Court would require no busing of students, but ex
District Court Order of January 31, 1970
605a
tensive pairing of several schools. An alternate plan sub
mitted by HEW and upon which the plaintiffs insist, would
require the busing of children from areas of the city to a
different and unfamiliar area as well as the pairing of many
schools. The distance between some of the schools by vehic
ular traffic would be approximately fifteen miles. The
government plan and the HEW plan would materially
change the grade structure for approximately thirty-four
schools, and in some instances, would completely change
each school’s identity. The government asked the Court
to close many of the high schools which are attended by
90% or more of Negro pupils, among them, Central High
and Mobile County Training. This I am unwilling to do
as I think it would be unfair to the Negro population of this
city. Many of them have graduated from one or more of
these schools. They take pride in them. In many areas,
including sports, there is much rivalry between these
schools and I do not think the traditions which they have
created over the years should be destroyed.
Under one of the HEW plans it would have necessitated
a child in the Austin area to attend Austin in the fifth
grade and from the sixth through ninth grades he would
have to change three times, namely, to Phillips, Washington
and Toulminville, and in the tenth grade to Murphy, thus
attending five different schools in six years. Under one
of the HEW plans of pairing schools, a child would have
gone to Dodge in the first and second grades, Williams in
the third grade, and Owens in the fourth, fifth and sixth
grades. The distance from Dodge to Williams is approxi
mately 8.6 miles and from Williams to Owens approxi
mately 7.4 miles and from Dodge to Owens, approximately
11.4 miles.
District Court Order of January 31, 1970
606a
Admittedly these material changes in grade structures
and in identity, and the pairing of schools and the neces
sity of busing great distances, are motivated for the sole
purpose of achieving racial balance. In this Court’s opin
ion, the Supreme Court has not held that such drastic tech
niques are mandatory for the sole purpose of achieving
racial balance. By the same token, the Court is of the opin
ion that such techniques in certain instances, must be
utilized to remove the effect of the dual school system.
Therefore, it was necessary to change the grade structure
on a limited basis and in one instance, the identity of a
school. These alterations were not motivated to achieve
racial balance, but to desegregate the public school system.
I have said many times that the best thing that could
happen would be for this litigation to come to an end. This
is true. But I am unwilling to disregard all common sense
and all thoughts of sound education, simply to achieve
racial balance in all schools. I do not believe the law re
quires it. And this litigation will continue to be stirred
as long as adequate funds are provided for those who want
litigation, for the sake of litigation, without regard to the
rights of the children and parents involved.
The Court has attempted as nearly as possible to com
ply with the mandate of the Appellate Courts and yet leave
it humanly and educationally possible to operate the
schools. Laboring under the handicap of time, the Court
has accomplished what it finds to be the plan most workable
under the circumstances, both from an educational and im-
plemental point of view.
Therefore, is it Ordered, adjudged and decreed by the
Court that the area attendance desegregation plan sub
District Court Order of January 31, 1970
607a
mitted by the school board on December 1, 1969, for those
school zones lying East of 1-65, with one exception set out
below, is hereby adopted and put into effect as of February
1, 1970, with the following exceptions:
Elementary Schools East oe 1-65
1. The Emerson Elementary School serving Grades 1-6
shall be closed. Those students who attend Emerson will
now attend Council or Leinkauf Elementary Schools, as il
lustrated by the map attached hereto and identified as
Exhibit “A ” . Those sixth grade students now attending
Emerson shall be enrolled at Hall Junior High School. The
placement of the Emerson students in other area attendance
zones are reflected by modification of the Council-Leinkauf
area attendance zones.
Middle Schools E ast of 1-65
2. The Hall area attendance zone shall be increased to
relieve the overcrowding situation at Dunbar Junior High
and to include those sixth grade students who previously
attended Emerson or Old Shell Road. The area attendance
zones for Washington Junior High, Phillips Junior High,
Mae Eanes Junior High, and Dunbar Junior High, have all
been altered to achieve a desegregated school system, as
reflected by area attendance zone map attached hereto and
identified as Exhibit “ B ” .
H igh Schools East of 1-65
3. Trinity Gardens School is hereby changed to a mid
dle school serving Grades 6-8. The high school students
District Court Order o f January 31, 1970
608a
who previously attended Trinity Gardens shall attend
Blount High School.
Murphy High School area attendance zone has been in
creased to achieve desegregated school system and to
eliminate the overcrowded enrollment at Toulminville High
School, as reflected by area attendance zone map attached
hereto and identified as Exhibit “ C” .
It is F urther ordered, adjudged and decreed by the
Court that those graduating high school seniors who are not
presently attending the high school which serves their area
under the Court’s plan submitted this date, shall be al
lowed to remain in the high school which they presently
attend for the remainder of the 1969-70 school year.
However, since the identity of the Trinity Gardens school
has been changed from a high school to a school serving
the middle grades, the seniors at Trinity Gardens shall
now be attending Blount High School. Under the circum
stances, the Court authorizes the Board, faculty, and the
students themselves, in instituting this plan, to maintain
the identity of the Trinity Gardens seniors as a unit by
whatever proper programs they deem necessary at Blount
High School.
Schools Lying W est of 1-65
4. The Davidson High School attendance area is hereby
enlarged to include those students who previously attended
Murphy High School under the area attendance zone lying
West of 1-65 as illustrated by Exhibit “ C” attached hereto.
It is F urther ordered, adjudged and decreed that the
area attendance zones lying West of 1-65 as decreed by
District Court Order of January 31, 1970
609a
this Court on August 1, 1969, with the one exception above
noted, shall remain in effect.
Paragraph VII of the Court’s order of August 1, 1969,
pertaining to faculty is incorporated in its entirety in this
order and should be implemented forthwith.
The Board shall publish or cause to have published in
the local newspaper, the complete text of this decree and
the maps attached, not later than Wednesday, February 4,
1970. In addition, the school board shall post or cause
to be posted, in a conspicuous place in each school in the
system in which this decree changes area attendance zones
from that established in the August 1, 1969, decree, and
at the offices of the school board.
The Court finds that this decree disestablishes the opera
tion of a dual school system in Mobile County and estab
lishes a unitary system.
This plan shall be implemented forthwith.
D one at Mobile, Alabama, this the 31st day o f Janu
ary 1970.
District Court Order of January 31, 1970
D an iel H . T homas
United States District Judge
[Maps omitted—see original record]
610a
In the Court’s order of January 31, 1970, the majority to
minority transfer policy, as set out in the Opinion of the
Fifth Circuit Court of Appeals dated December 1,1969, was
inadvertently omitted.
Now therefore, the order of this Court entered in this
cause on January 31, 1970, is amended by adding thereto
the following:
The School Board shall permit a student attending a
school in which his race is in the majority to choose to
attend another school where space is available, and where
his race is in the minority.
D one at Mobile, Alabama, this the 4th day of February
1970.
District Court Order of February 4, 1970
D an iel H . T homas
United States District Judge
611a
Before
T u ttle , W isdom and Goldberg,
Circuit Judges
G oldberg, Circuit Judge:
For almost a decade there have been judicial efforts to
desegregate the schools of Mobile County, Alabama. We
do not tarry now to count the many appeals to this court
in furtherance of this hope, for we are concerned today
with only a single recent episode in this almost Homeric
odyssey. We wonder when the epilogue will be written.
The latest episode is this appeal by David L. Jacobs, Bill
Rosser, and the American Friends Service Committee from
a preliminary injunction issued by the United States Dis
trict Court for the Southern District of Alabama. The in
junction grew out of a series of demonstrations in April
and May of 1969 in support of school desegregation and
other civil rights objectives in Mobile County. According
to the school board’s affidavits—which are contradicted by
appellants’ affidavits—these demonstrations led to absen
teeism on the part of some students and resulted in sub
stantial disruption of the educational program in some
schools.
On May 8, 1969, the Board of School Commissioners of
Mobile County filed a petition in the district court, asking
that appellants and others be made parties to the ongoing
school desegregation proceeding, claiming that they were
responsible for organizing and directing the demonstra
tions. In its petition the school board asked that these
Court of Appeals Opinion of February 16, 1970
612a
parties be enjoined from engaging in activities designed to
dissuade students from attending school or to disrupt the
school board’s operation of the Mobile County schools. The
district court entered an order making appellants and
others named by the petition parties to the proceedings and
scheduled for May 12,1969, a hearing on the school board’s
petition for an injunction. The court also directed that
testimony would be by affidavit only.
When the hearing was convened on May 12, appellants
filed a motion to dismiss the petition and another motion
asking that any hearing include oral testimony or depo
sitions. The court denied the latter motion, but did not then
rule on the motion to dismiss. In response to a request by
appellants for additional time to prepare, the court con
tinued the proceedings until the next day.
When the hearing reconvened on May 13, appellants filed
a supplement to their motion to dismiss and again noted
their objection to proceeding by affidavit only. The court
summarily denied the motion to dismiss and reiterated its
previous ruling that the proceedings would be by affidavit
only. During these proceedings on May 13 all parties sub
mitted their testimony by affidavit, and the court took the
matter under advisement, allowing the parties one addi
tional day for the submission of counter affidavits.
On May 16, 1969, the district court issued a preliminary
injunction by which the appellants were
“enjoined and restrained from obstructing and prevent
ing or attempting to obstruct and prevent, the attend
ance in classes of students and faculty members by
inducement, encouragement, assistance, intimidation,
Court of Appeals Opinion of February 16, 1970
613a
or other activities which seek to dissuade students
and faculty members from attending classes, or seeks
[sic] to disrupt in any way, the operation of the Mobile
County Public School System.”
This injunction was not accompanied by any findings of
fact or conclusions of law.
After the issuance of the injunction appellants filed a
motion in the district court requesting a stay of the injunc
tion. This motion was denied by the district court. Appel
lants then sought from this court a stay of the injunction
pending appeal. On May 22, 1969, this court issued an
order granting the stay “ except as to picketing activity on
school property.” Appellants now seek complete dissolu
tion of the injunction; the school board seeks to uphold the
full sweep of the injunction as originally issued by the
district court.
In their attack on the injunction appellants raise several
issues concerning the constitutionality of the injunction
and the procedural fairness of the proceedings below. We
are unable to decide these issues because of the incomplete
and inconclusive state of the record. Since the trial court
failed to give us the benefit of findings of fact and con
clusions of law, we have before us only the numerous affi
davits introduced by the parties.
[1, 2] In failing to make findings and conclusions the
trial court violated Eule 52(a) of the Federal Rules of Civil
Procedure. Rule 52(a) provides in pertinent part that
“ [i]n all actions tried upon the facts without a jury or with
an advisory jury, the court shall find the facts specially and
state separately its conclusions of law thereon, * * * and in
granting or refusing interlocutory injunctions the court
Court of Appeals Opinion of February 16, 1970
614a
shall similarly set forth the findings of facts and con
clusions of law which constitute the grounds of its action.”
It is well established that a district court issuing a pre
liminary injunction must comply with the provisions of this
rule. Carey v. Carter, 1965, 120 U.S.App.D.C. 182, 344
F.2d 567; Chas. Pfizer & Co. v. Zenith Laboratories, Inc.,
3 Cir. 1964, 339 F.2d 429; Carpenters’ District Council v.
Cicci, 6 Cir. 1958, 261 F.2d 5; Bowles v. Bussell Packing
Co., 7 Cir. 1944, 140 F. 2d 354; 2B Barron & Holtzoff, Fed
eral Practice and Procedure §1126 (1961). In the words of
the Supreme Court, a full and fair compliance with Buie
52(a) “ is of the highest importance to a proper review of
the action of a court in granting or refusing a preliminary
injunction.” Mayo v. Lakeland Highlands Canning Co.,
1940, 309 U.S. 310, 316, 60 S.Ct. 517, 520, 84 L.Ed. 774, 779;
see Featherstone v. Barash, 10 Cir. 1965, 345 F.2d 246, 249-
250. Consequently, “ [wjhere the trial court fails to make
findings, or to find on a material issue, and an appeal is
taken, the appellate court will normally vacate the judg
ment and remand the action for appropriate findings to he
made.” 5 Moore’s Federal Practice j[52.06[2], at 2718 (2d
ed. 1969); see, e. g., Chas. Pfizer & Co. v. Zenith Labora
tories, Inc., supra.
[3, 4] We recognize that compliance with Buie 52(a) is
not a jurisdictional requirement for appeal; an appellate
court may decide the merits of an appeal in the absence
of fact findings in the rare case in which “ a full under
standing of the issues [can] be reached without the aid of
findings.” Hrbain v. Knapp Brothers Manufacturing Co.,
6 Cir. 1954, 217 F.2d 810, 816, cert, denied, 349 U.S. 930,
75 S.Ct. 772, 99 L.Ed. 1260; accord, Huard-Steinheiser, Inc.
Court of Appeals Opinion of February 16, 1970
615a
v. Henry, 6 Cir. 1960, 280 F.2d 79, 84; Featherstone v.
Barash, supra, 345 F.2d at 250-251; Hurwitz v. Hurwitz,
1943, 78 U.S. App.D.C. 66, 136 F.2d, 796, 799, 148 A.L.E.
226; see Mongiello Bros. Coal Corp. v. Honghtaling Prop
erties, Inc., 5 Cir. 1962, 309 F.2d 925, 929-930. We state
most emphatically, however, that the present case is not
one of those unusual cases in which the absence of fact
findings can be overlooked by the appellate court. In this
case we cannot possibly reach “ a full understanding of the
issues” in the absence of findings by the trial court.
It is an understatement to say that the facts in this case
are hotly disputed. The parties by their affidavits present
sharply different versions of the factual context in which
the injunction was issued. On the basis of these conflicting
affidavits it is utterly impossible to ascertain in more than
the most general way such basic factual data as the nature
of the demonstrations which led to the issuance of the
injunction, the role played by the appellants in these dem
onstrations, and the effect of these demonstrations on the
school system. The un-illuminating state of the present
record totally precludes meaningful appellate review of the
issues presented by the issuance of the district court’s in
junctive order.
The order of the district court granting the preliminary
injunction is vacated, and the cause is remanded.
Court of Appeals Opinion of February 16, 1970
616a
District Court Order of February 27 , 1970
Motion to require service of desegregation plan filed on
January 2, 1970 by plaintiffs is Granted.
617a
The Board of School Commissioners of Mobile County,
Alabama, petitioned this Court on February 18, 1970,
March 2, 1970, and March 10, 1970, to modify its order of
January 31, 1970, in the above-styled cause.
Now after careful consideration thereof, it is Ordered,
A djudged and D ecreed by this Court that the order o f Jan
uary 31, 1970, is hereby amended to include the following:
1. The attendance zone boundary line between Westlawn
Elementary School and Mertz Elementary School shall be
located as was designated by this Court in its Order of
August 1, 1969.
2. The School Board shall continue to maintain a sixth
grade at Mertz Elementary School for the remainder of this
school year and the sixth grade students of Mertz who
were reassigned to Mae Eanes Junior High School by the
January 31, 1970, Order shall be permitted to remain at
Mertz for this school year.
3. The School Board shall continue to maintain a sixth
grade at Morningside Elementary School for the remainder
of this school year and the sixth grade students of Morning-
side who were reassigned to Mae Eanes by the January 31,
1970, Order shall be permitted to remain at Morningside
for this school year.
4. The Board shall maintain at Trinity Gardens School
for the remainder of this school year only, a twelfth grade
program, and the twelfth grade students of Trinity Gar-
District Court Order of March 12, 1970
618a
District Court Order of March 12, 1970
dens who were reassigned to Blonnt High School by the
January 31, 1970, Order shall be permitted to remain and
graduate from Trinity Gardens.
5. The Board shall continue to maintain a ninth grade
at Mae Eanes Junior High School and the ninth grade stu
dents of Mae Eanes who were reassigned to Murphy High
School and Williamson High School by the January 31,
1970, Order shall he permitted to remain at Mae Eanes
School for this school year only.
D one at M obile, Alabama, this the 12th day o f March
1970.
D aniel H. T homas
United States District Judge
619a
On January 14, 1970, the Supreme Court of the United
States reversed this ease and the Fifth Circuit on January
21st, ordered this Court to enter its plan for implementa
tion on February 1, 1970. This Court entered its decree on
January 31,1970, and ordered that it be implemented forth
with. The Board of School Commissioners announced that
it would be implemented on March 16, 1970, today.
The Legislature of Alabama passed the Freedom of
Choice Bill on the 4th day of March 1970. The School
Board then passed a resolution to the effect that it would
not follow this Court’s decree but would continue to oper
ate as it has heretofore.
In 1809, Chief Justice Marshall said: “If the legislators
of the several states may, at will, annul the judgments of
the Courts of the United States, and destroy the rights ac
quired under those judgments, the Constitution itself be
comes a solumn mockery; and the nation is deprived of the
means of enforcing its laws by the instrumentality of its
own tribunals.”
The School Board is required to follow the order of this
Court of January 31, 1970, as amended, and if the same is
not followed within three days from this date, a fine of
$1,000 per day is hereby assessed for each such day, against
each member of the Board of School Commissioners.
The plaintiffs in this case, on the 10th day of March
1970, filed a petition requesting this Court to declare the
Freedom of Choice Act of the Legislature of the State of
Alabama unconstitutional. This case is not the proper ve
hicle in which to test the constitutionality of said Act. The
said petition is therefore dismissed.
D one at Mobile, Alabama, this the 16th day o f March
1970.
District Court Order of March 16, 1970
D aniel H . T homas
United States District Judge
620a
B y th e C ourt :—
In order that this court might undertake to decide
blether the Mobile' 'County School System~as a whole has
^eerTconverted into a unitary school system, it is neces
sary that this court be supplied with additional informa
tion. Therefore, pursuant to the authority contained in 28
USCA § 2106, the district court is directed to supplement
its findings of fact in the within matter by filing the
following:
(1) a table showing the school population, by race, as of
the present time in each elementary, junior high, senior
high, and special school in the system;
(2) a table showing the projected school population, by
race, of each school in the system under (a) the school
board plan submitted December 1, 1969, (b) tbe orlrimd
HEW plan, and (c) HEW plan B-alternative;
(3) a table showing the instructional positions, by race,
as of the present time in each school in the system;
(4) information describing the transportation system
employed by the Mobile County schools so that this court
might determine whether it is operated on a non-segre-
gated and otherwise non-discriminatory basis;
(5) information as to whether there exists a biracial ad
visory committee to the school board, and if not whether
Negroes are represented on the school board;
(6) information regarding whether all extracurricular
activities, including sports, are being operated on a non-
segregated basis throughout the system;
Court of Appeals Order of March 25 , 1970
621a
Court of Appeals Order of March 25, 1970
(7) information regarding whether all facilities are be
ing operated on a non-segregated basis;
(8) whether the school board has complied with the re
quirement announced in Singleton v. Jackson Municipal
Separate School District, 5 Cir., 1969,------F.2d — (con
solidated cases en banc) [Nos. 26285 et al, slip opinion
dated December 1, 1969] that all school construction, school
consolidation and site selection (including the location of
temporary classrooms) in the system be done in a manner
which will prevent the recurrence of the dual school struc
ture by taking into consideration residential housing
patterns;
(9) information as to whether there exists a majority
to minority transfer policy. If so, describe.
These findings of fact should be filed with this court with
in 20 days from the date hereof. Jurisdiction of this ap
peal is retained in this court during the limited remand for
the purposes herein stated.
R emanded f o r fu rth er proceed in gs consistent herew ith.
622a
Pursuant to Order of the United States Fifth Circuit
Court of Appeals dated March 25, 1970, received by the
Clerk of this court March 30, 1970, the Board of School
Commissioners of Mobile County is ordered and directed
to furnish the court the information set out in said order
in paragraphs (1), (2), (3), (4), (5), (6), (7), (8), and
(9) not later than April 10, 1970, at 3:00 p.m. Said infor
mation is to he furnished in affidavit form.
Done at Mobile, Alabama, this the 31st day of March,
1970.
District Court Order of March 31, 1970
D aniel H. T homas
Chief Judge
623a
Plaintiffs’ Motion to Establish Procedures on Remand
Filed April 6, 1970
Plaintiffs, Birdie Mae Davis, et al., move this Court for
an order establishing the following procedures on remand:
1. The School Board shall be required to file by April 7,
1970 proposed findings of fact on each matter delineated
in the Fifth Circuit’s order of March 25, 1970.
2. The Court shall hear evidence and arguments in re
spect to the findings required by the remand on April 14,
District Court Order of April 14, 1970
1. Motion to establish procedures on remand, filed by
plaintiffs, Birdie Mae Davis, et al. on April 6, 1970, D enied .
624a
In response to Order of the United States Fifth Circuit
Court of Appeals dated March 25, 1970, and received by the
Clerk of this court on March 30, 1970, this Court entered
an order on March 31, 1970, directing the Board of School
Commissioners of Mobile County to furnish the Court in
formation as requested in the March 25th Order of the
Fifth Circuit Court of Appeals. In response, the School
Board filed on April 10, 1970, an Affidavit of James A. Mc
Pherson, together with exhibits attached thereto, purport
ing to give the information requested by the Order of the
Court of Appeals dated March 25, 1970.
✓ '-'■'''The Court adopts as its finding of fact the statistical in-
( formation furnished by said exhibits. The Court believes
I that the general information furnished therein, excluding
1 self-serving declarations and speculative opinions, is cor
rect and furnishes the information requested by the Court
of Appeals in its Order of March 25, 1970. Said affidavit
and attachments are submitted herewith in accordance with
said Order.
D one at Mobile, Alabama, this the 14th day o f April 1970.
D aniel H . T homas
United States District Judge
District Court Order of April 14, 1970
625a
S tate of A labama
Cou nty of M obile
Personally appeared before me the undersigned author
ity in and for said county and said state, J ames A. M cP her
son, who being by me first duly sworn, did make affidavit
and say:
My name is J ames A. M cP herson . My address is 103
Baratara Drive, Chickasaw, Alabama. I am 43 years old.
I am Associate Superintendent of the Mobile County Ala
bama Public School System. As such I hold the number
two administrative position in the school system, ranking
immediately below the Superintendent. Prior to assuming
this position I was an Assistant Superintendent, in charge
of the Division of Pupil Personnel and Special Services.
I have also had a number of years experience in the system
in other capacities, such as teacher and principal. As Asso
ciate Superintendent I have had the primary administra
tive responsibility of working with the desegregation proc
ess that has been in progress in the school system since
1963. I have testified in the United States District Court,
Southern District of Alabama, on a number of occasions in
connection with the continuing litigation there concerning
this desegregation process. I have been called to testify at
various times by both the plaintiffs and the defendant
School Board, as well as by the United States Department
of Justice. My personal and professional qualifications ap
pear fully in the record from these past occasions, conse
quently, I will not set them out again here.
Affidavit of James A. McPherson,
Filed on April 10, 1970
626a
This affidavit is made specifically for the purpose of sub
mission to the United States District Court, Southern Dis
trict of Alabama, in response to and compliance with the
Order of that Court dated March 31, 1970. I make this
affidavit based in part upon information of which I have
personal knowledge and based in part upon information
and reports given me, at my request, by other members of
the professional staff of the School Board and other agents,
servants or employees of the School Board, upon whom I
normally rely for information and reports in the regular
course of business.
(1) In response to question number (1) of the Order I
make the following comments:
The total desegregation plan for the whole system, now
in full implementation, assigns every student in the system
to a school on the basis of a unitary system of geographic
attendance zones drawn by the District Court itself, either
upon the specific recommendation of H.E.W. consultants,
or upon the basis of the Court’s knowledge and reconcili
ation of information submitted to it by the professional
staff of the School Board, and recommendations made by
the H.E.W. consultants, NAACP attorneys, Justice Depart
ment Attorneys and the School Board.
On August 1, 1969 the District Court entered a Decree
which set out a desegregation plan that fully desegregated
all of the school system except that part of the system lying
East of Interstate Highway 65. Attached hereto, labeled
Attachment A, is an enrollment report setting out by race
the number of students actually enrolled in each school in
the system except those lying East of Interstate Highway
Affidavit of James A. McPherson,
Filed on April 10, 1970
627a
65, as of September 26, 1969, as a result of implementation
of this August 1, 1969 Decree.
This Decree of the District Court was reviewed by the
Court of Appeals and affirmed. This Decree and the de
segregation plan it sets out have been fully implemented in
good faith throughout the 1969-70 school year.
Also attached hereto, labeled Attachment B, is a further
enrollment report setting out by race the number of stu
dents actually enrolled in every school in the system, as of
September 26, 1969, as a result of implementation of the
August 1, 1969 Decree. We do not have, subsequent to this
September 26, 1969 report of enrollment, any comprehen
sive report of enrollment figures showing the actual enroll
ment, by race, of every school in the system.
On January 31, 1970 the District Court entered another
Decree that set out a further desegregation plan covering
only that part of the system lying East of Interstate High
way 65. This Decree fully desegregated that part of the
school system; and, according to the Court, when taken with
the earlier decree of August 1, fully desegregated the entire
school system. This Decree and the desegregation plan it
sets out has also been fully implemented in good faith, since
March 20, 1970.
Attached hereto, labeled Attachment C, is a report cover
ing just those schools affected by the January 31, 1970
Decree (being all of the schools lying East of Interstate
Highway 65, as well as one high school, Davidson, lying
West of Interstate Highway 65, which was also affected),
setting out the number of students by race that were as
signed to each school East of Interstate Highway 65 on
March 20, 1970 as a result of and on the basis of the plan
set out in the January 31, 1970 Decree.
Affidavit of James A. McPherson,
Filed on April 10, 1970
628a
There are no comprehensive official enrollment figures ac
curately showing actual enrollment in these schools East of
Interstate Highway 65, since implementation of the Janu
ary 31, 1970 Decree began. We took hurried enrollment
samplings by telephone over a period of several days from
March 20 through March 26, to get a general running pic
ture of the extent of resistance to and avoidance of our
efforts to implement the January 31 Decree; but we know
that these figures are incorrect and do not accurately re
flect either the number of students by race now enrolled in
these schools, nor the number of students by race assigned
to the schools by the desegregation plan contained in the
Decree. Attached hereto, labeled Attachments Dl, D2 and
D3, are copies of these enrollment samplings for March 20-
23, March 25 and March 30 respectively.
Upon comparison the various attachments do not coincide.
There were obviously more students assigned across racial
lines by the January 31, 1970 Decree—that is, negroes as
signed to traditionally white schools and vice-versa (At
tachment C),—than were in attendance across racial lines
when the enrollment samplings were made after implemen
tation of the Decree (Attachments Dl, D2 and D3). The
difference between the two results from a number of factors.
First, on March 20-30 when the enrollment counts were
made, many students, particularly white students assigned
to predominantly negro schools, were engaged in a boycott
of those schools, some apparently permanently and other
apparently temporarily in a show of anger and protest over
their forced reassignment during the middle of a semester.
More significantly however, many of the white students
in the system involuntarily assigned to predominantly
Affidavit of James A. McPherson,
Filed on April 10, 1970
629a
negro schools have simply refused to accept the assign
ments. This resulted not only with implementation of the
January 31, 1970 Decree, but the August 1, 1969 Decree as
well. They have done so in a variety of ways; some have
moved their residences to another attendance zone; other
have obtained transfers under the transfer provisions set
out in the plan; many have moved completely out of the
system; several thousand have enrolled in private schools;
and hundreds of others have apparently just dropped out
of school altogether.
The School Board has in good faith made the assignment
of students required by the Court Ordered desegregation
plan, and has refused to assign students in a manner con
trary to the Court’s Orders. The failure of these students
to attend school as assigned is essentially beyond the con
trol of the School Board; and illustrates somewhat the in
herent futility of large scale forced integration.
If we must play the numbers game, it is manifest that
the constitutional sufficiency of the desegregation plan
should be measured by the number of students it assigns
across racial lines, rather than by the number of students
who actually enroll and attend, greatly diminished from
the number assigned by various devices beyond the control
of the School Board, or even the effective control of the
Court.
(2) Because of the length of the answer to question num
ber (2), I have deferred the answer and have included it
at the end of this affidavit immediately after the answer to
question number (9).
(3) In response to question number (3) of the Order I
make the following comments:
Affidavit of James A. McPherson,
Filed on April 10, 1970
630a
Attached hereto, labeled Attachment E, is a table show
ing the instructional positions, by race in each school in
the system, as of April 7, 1970.
Every school in the system has a bi-racial faculty. It
should be noted that there are negro principals in charge of
predominantly white faculties; and negro principals in
charge of predominantly white student bodies. It should
also be noted that there are white principals in charge of
predominantly negro faculties; and white principals in
charge of predominantly negro student bodies.
Your attention is also directed to the previous report on
faculty filed in the District Court at the direction of the
Court on November 26, 1970, which showed an integrated
faculty in every school at that time also.
(4) In response question number (4) of the Order I make
the following comments:
Mobile is a combined city-county school system, with
many rural schools. Thus, in the traditional manner of
rural schools systems in this state, there are a substantial
number of school buses operated by the School Board to
transport students in the rural areas of the county to these
rural schools. A few buses have also been used to provide
transportation for a small number of students residing in
remote outlying areas of the city.
This transportation system is operated on a non-
segregated and non-diseriminatory basis in every respect.
Boutes are arranged without regard to race; students are
not assigned to busses on a racial basis; nor are they segre
gated within the buses. The same quality and extent of
Affidavit of James A. McPherson,
Filed on April 10, 1970
631a
service is provided to all areas of the county without ref
erence to the race of the students living in the areas.
Drivers are selected on the basis of character, perform
ance, ability to handle the bus, and location of their home
in relation to the beginning of the bus route.
At one time the Board operated a dual transportation
system, with overlapping bus routes. Each bus carried stu
dents of only one race to one school or another, based upon
race. This is no longer the case.
The once dual aspect of the system no longer exists.
Schools in the rural part of the system serve specific geo
graphic attendance zones, drawn by HEW experts and ap
proved by both the District Court, and on review, the Court
of Appeals; every zone is bi-racial and every school is inte
grated. School buses are routed in such a manner as to
transport all students in each attendance zone to the school
serving the zone. These routes are drawn without regard
to race, they do not overlap, and each bus picks up and
transports every student on its route regardless of the race
of the student.
(5) In response to question number (5) of the Order
I make the following comments:
There is no “ bi-racial advisory committee to the School
Board” , as such. However, the Board draws assistance
from numerous bi-racial groups.
From time to time the School Board has authorized the
creation of advisory committees. The persons approved
by the Board for membership on such committees have
been those who possessed the highest qualifications to ren
der meritorious service without regard to race. Although
Affidavit of James A. McPherson,
Filed on April 10, 1970
632a
the Board has not activated an advisory bi-racial committee,
members of its Staff from time to time, with Board ap
proval, have participated in activities sponsored by ad
visory bi-racial committees in the community, thus meeting
the needs for communications between white and black
citizens in the community.
The Board holds two regular meetings each month, the
fiist on the second Wednesday and the second on the fourth
Wednesday. All fourth Wednesday meetings are open to
delegations. Both black and white citizens alike avail them
selves of the opportunity to communicate directly with the
Board in such meetings. In addition, leaders of citizens
in their respective communities from time to time direct
communications to the Superintendent in which they ex
press their concerns, make recommendations and make re
quests for extended services in their local schools. These
communications are made an integral part of regular Board
Agendas along with background reports furnished by Staff
members. As justified by circumstances, the Board enters
into confeiences with committees of black and white citi
zens preliminary to taking formal action in official Board
Meetings. It is the practice of the Superintendent and all
central office Staff members to meet with committees, black
and white parents, representing the several school com
munities in Mobile County to exchange information and
ideas which are mutually helpful in improving public edu
cation in Mobile County. Such conferences serve a wide
variety of needs. Many important problems are resolved
in such conferences, thus reducing the number of confer
ences in which Board members are expected to participate.
Attached hereto, labeled Attachment J, is a copy of a
School Board policy entitled “Parent and Student Griev-
Affidavit of James A. McPherson,
Filed on April 10, 1970
633a
anees.” This policy reflects the philosophy of the Board
and the philosophy of its Administrative Staff. This pol
icy endorses and encourages the democratic involvement
of all parents and students in making public education what
it ought to be.
There are no negro members of the School Board, how
ever the Board has no control over this. By law, the mem
bers of the Board are elected by the citizens of the County
in a general election, in the same manner as all other public
office holders in the state. There is no racial restriction
upon who may offer for election to the Board. Negroes
have offered themselves as candidates for election to the
Board on more than one occasion, and one is running in
the Democratic Primary at this time, but as yet none have
been elected.
(6) In response to question number (6) of the Order
I make the following comments:
All extracurricular activities, including sports, over
which the School Board has control, are being operated
on a non-segregated basis throughout the system.
All athletic teams at every school are open to every stu
dent, regardless of race. Participation by minority race
students, particularly by negro students at traditionally
white schools, has been substantial. For example, several
predominantly white high schools this year fielded bi-racial
basketball teams with more negro players than white.
There is also cross scheduling between traditionally
negro schools and traditionally white schools in all major
sports, i.e., football, basketball, baseball and track, during
regular season play; and all tournament and play-off com
petitions are open to and regularly participated in by all
Affidavit of James A. McPherson,
Filed on April 10, 1970
634a
schools on the same basis, without regard to the former
or current racial composition of the schools. Again, basket
ball is an example. Historically, there had been two district
or regional play-off tournaments, one for traditionally
negro schools and another for traditionally white schools.
Now, and for the past two years, there is only one tourna
ment for all teams, and all schools participate.
The same situation pertains to all other extra-curricular
activities over which the School Board has control, such
as bands and other musical groups, R.O.T.C. units, speech
and other academically related competitions, school related
social events, parent related activities such as Parent,
Teacher Associations and spectator events.
(7) In response to question number (7) of the Order
I make the following comments:
All facilities are being operated on a non-segregated
basis.
There is no separation of students within individual
schools by race, by sex, by class, by tracts, or on any basis,
other than of course the normal division of students into
grades.
All facilities are made available to all schools in the
system without regard to the present or past racial com
position of the schools.
Within each individual school of the system, all facilities
are made available to all students, regardless of race, on
an equal basis.
This includes not only facilities in the strict sense, such
as restrooms, lunch rooms, class rooms, laboratories, gym
nasiums, libraries, playing fields, and etc.; but also, all
services, activities and programs such as bands, orchestras,
Affidavit of James A. McPherson,
Piled on April 10, 1970
635a
choral groups, clubs, counseling services, student govern
ments, honor societies, publication staffs, intramural sports,
assemblies, class elections and honors, parties and social
activities; and every other facility, activity and program
of every school.
It is also significant that no services, facilities, activities
or programs have been changed, curtailed or limited due
to the race of students; and no special waiting periods or
other qualifying factors or circumstances have been at
tached as a qualification to participation, due to the race
of any student.
All schools are treated equally, without regard to past
or present racial composition of the school, with regard
to the allocation of instructional materials, athletic equip
ment, facilities, equipment, furnishings, supplies, textbooks
and allocated funds; and courses of instruction are offered
on the same basis.
The statements above not only reflect the current situa
tion, but are accurately reflective of the situation since
1967.
Not only are all facilities, services, activities and pro
grams available to every student without regard to race,
and operated on a non-segregated basis, but actual par
ticipation by minority race students is substantial. This
progress is a compliment to both the white and negro stu
dents who engage in the various activities and programs
and to the teachers and administrators responsible for the
organization and supervision of these activities and pro
grams. The progress has been so great that there is now
no apparent evidence that any minority race student is
excluded from any service, facility, program or activity,
Affidavit of James A. McPherson,
Filed on April 10, 1970
636a
except on the basis of his or her ability to meet the normal
criteria established for participation by anyone.
It is not only the increase in the number of negro stu
dents now participating in activities in traditionally white
schools that is significant, but the degree to which the
white students have accepted the negro students into such
activities.
(8) In response to question number (8) of the Order
I make the following comments:
Yes, the School Board is in compliance with this re
quirement.
Regarding construction and site selection, because of
the uncertainty surrounding what will be required of a
school board from time to time during the desegregation
process, the Board’s building program has been at a total
standstill for over two years. No schools have been con
structed and no school sites selected during this time. The
last schools constructed in the system were Dodge and
Adams in 1967 and Grand Bay in 1968. Dodge and Adams
opened their doors for the first time in September 1967,
both as fully integrated schools. The current enrollment
at Dodge is 65 negro and 675 white. The current enroll
ment at Adams is 311 negro and 686 white. Grand Bay
first opened in September 1968. The current enrollment
at Grand Bay is 146 negro and 630 white.
Regarding school consolidation, there have been a num
ber of consolidations, some proposed voluntarily by the
School Board and some required by the District Court,
within the past three years. Each has resulted in a sig
nificant increase in the extent of integration. Some of
these are:
Affidavit of James A. McPherson,
Filed on April 10, 1970
637a
1. Closing of the all negro Emerson Elementary School
and distribution of its students to adjacent schools, one
of which is traditionally negro and one traditionally white.
2. Closing of the all negro Robert Thompson School
and consolidation of its students into the otherwise all
white Wilmer School.
3. Closing of the all negro Cottage Hill Elementary
School and the distribution of its students to the otherwise
white Fonde, Shepard and Dodge Elementary Schools.
4. Consolidation of the all white Citronelle and all negro
Rosa Lott Schools, resulting in the following current en
rollments : Citronelle, 800 white and 400 negro; Rosa Lott,
465 white and 145 negro.
5. Conversion of the all white Augusta Evans School
to a school for special students that has a current enroll
ment of 54 white and 87 negro, and a faculty of 8 negro
and 8 white.
6. Closing of the traditionally white Arlington Elemen
tary School and the distribution of its students to sur
rounding schools, some of which are predominantly white,
and some of which are predominantly negro.
7. Closing of the all negro Warren Elementary School
and distribution of its students to the predominantly white
Crichton Elementary School and other schools, predomi
nantly negro.
8. Closing of the all negro Barney School resulting in
distribution of its students to surrounding schools, some
predominantly white and some predominantly negro.
Affidavit of James A. McPherson,
Filed on April 10, 1970
638a
9. Consolidation of the all negro Belsaw and the all
white Mount Vernon Schools, resulting in integration of
both schools.
10. Consolidation of the all negro St. Elnio and all white
Theodore Schools, resulting in the following current en
rollments: St. Elmo 436 white, 54 negro; Theodore 1466
white and 335 negro.
11. Consolidation of the all negro Burroughs, all negro
Dixon and all negro Dawes Union Schools with the all
white Griggs and all white Davis Schools, resulting in :
(a) Closing of the all negro Dawes Union School
(b) Integration of the other four schools producing the
following current enrollments:
Burroughs — 192 white, 290 negro;
Griggs — 865 white, 41 negro;
Davis — 591 white, 178 negro;
Dixon — 249 white, 189 negro.
Regarding the location of temporary or portable class
rooms, the Board follows a policy of locating these solely
on the basis of and for the purpose of providing the facili
ties necessary to accommodate the students assigned to
the various schools by the terms of the various orders of
the District Court itself.
(9) In response to question number (9) of the Order
I make the following comments:
By Order dated February 4, 1970, the District Court
directed the School Board to put into operation a majority
Affidavit of James A. McPherson,
Filed on April 10, 1970
639a
to minority transfer policy, whereby any student attending
a school in which his race is in the majority can, for that
reason alone, transfer to another school where his race is
in the minority, space being available.
On February 5, 1970 the School Board authorized and
instructed the Superintendent and Staff to comply fully
with this Order as well as the .District Court Decree of
January 31,1970 that it amended. Based upon this instruc
tion the Superintendent and Staff have included the ma
jority to minority transfer provision as a part of the over
all transfer policy, all the rest of which was specified by
previous court orders.
This entire transfer policy, including the majority to
minority transfer provision, is applied uniformly through
out the system.
(2) In response to question number (2) of the Order
I make the following comments:
(a) As required by question 2 (a), I have attached
hereto, labeled Attachment F, a statistical table setting out
by race the anticipated enrollment at every school affected
by the recommended plan submitted by the School Board
on December 1, 1969. This plan concerned only the schools
lying east of Interstate Highway 65; consequently, the sta
tistical table covers only those schools, plus Davidson High
School which lies west of Interstate Highway 65, but was
also affected.
(b) Answering question 2 (b), I refer now to the orig
inal HEW recommended plan filed in the District Court
in July 1969.
Affidavit of James A. McPherson,
Filed on April 10, 1970
640a
The District Court Decree of August 1, 1969 set out a
desegregation plan which essentially adopted this HEW
recommended plan in all of the schools of the system, except
those lying east of Interstate Highway 65; and this court
ordered plan has been implemented in good faith during
the 1969-70 school year, fully desegregating all of the sys
tem except that part east of Interstate Highway 65.
With reference to this original HEW plan as it concerns
the area now in controversy, i.e., that part of the system and
the schools lying east of Interstate Highway 65, I would
make the following observations and comments.
The original HEW plan, as it relates to the schools east
of Interstate Highway 65 reappears identically as Plan B
submitted by HEW to the District Court on December 1,
1969. Attached hereto, labeled Attachment G, is the sup
porting statistical table taken directly from the HEW re
port filed in the District Court. This table was not pre
pared by our professional personnel; it was lifted in-toto
from the HEW report. I cannot confirm the accuracy of
this table, statistically or otherwise. Indeed, examination
of the table, as well as the recommended plan it relates to,
by our professional staff indicates that it is substantially
inaccurate; and further indicates that because of this in
accuracy, any desegregation plan based upon it would be
essentially impossible of implementation to begin wi th.
The statistical data upon which the plan is based is out
dated and inaccurate. The original statistical data was
gathered and compiled in September 1968. It is now totally
inaccurate. Spot checks made of this statistical infor
mation, after the HEW plan was filed on December 1, 1969,
to determine its accuracy and relevancy indicate that in
Affidavit of James A. McPherson,
Filed on April 10, 1970
641a
a number of instances such figures as the total number of
students living in a given area (an attendance zone, or a
part of an attendance zone), or the ratio of black students
to white or vice versa, are in error by as much as 50%.
In addition to this basic inaccuracy due to obsolescence,
HEW apparently made a number of errors in working with
the basic statistical data in preparation of its Plans. One
example should suffice. The HEW Plan B, according to
HEW figures (Attachment G) contemplates an enrollment
of 550 at Prichard Junior High School which has a capacity
of 609; whereas accurate current statistics indicate that in
the zone Plan B would assign to the school there are actu
ally 1421 students who must attend the school. This means
that in Plan B HEW has actually assigned 1421 students
to a school with a capacity of 609. There are other similar
examples. Such an arrangement is simply impossible of
implementation.
The plan contemplates, and therefore would require, the
utilization of a substantial amount of transportation or
bussing, beyond the capacity and capability of the school
system’s transportation system.
The plan contemplates the closing and non-operation of
certain school facilities. The inaccurate statistics on which
HEW bases these steps perhaps may indicate such action
is justified, but accurate current statistics and projections
for the future indicate that these steps cannot be taken.
The plan, as a consequence of its author’s total lack of
any knowledge of virtually all practical functional factors
about the school system and the City of Mobile, is based
upon the assignment of many children to schools where
they simply cannot as a practical matter attend because
Affidavit of James A. McPherson,
Filed on April 10, 1970
642a
they simply cannot get to the schools. I have reference to
such factors as accessibility; traffic flow patterns; the
routes of city and other commercial bus transportation;
safety hazards such as railroad tracks, major thorough
fares, business and industrial areas, narrow streets without
sidewalks, and other dangerous areas; and absolute bar
riers such as rivers, streams and interstate highways with
only limited crossing places.
In addition to those factors above which make the HEW
Plan B simply functionally unworkable, there are many
features of the plan which, while workable after a fashion,
are educationally unsound. Some of these features are:
Grade Structure in the junior high and senior high
schools is totally unstable. There are eight different struc
tures: 6-9, 7-8, 6-7, 8 only, 7-12, 9-12, 10-12, and 12 only.
Within these structures are seven two grade schools and
three schools of only one grade each. Such an arrangement
is so totally unsound from an educational standpoint that
it is inconceivable anyone could recommend it unless they
were doing so under the necessity of achieving some spe
cific result at the expense of normal sound educational
practice.
Several school plants are designated for a use for which
they were not constructed and to which they cannot be
satisfactorily adopted; such as using the elementary school
buildings for junior high schools (Woodcock, Fonville) and
high schools (Bienville, Craighead) junior high school
buildings for senior high schools (Carver) and senior high
school building's for junior high schools (Mobile County
Training School, Central).
Affidavit of James A. McPherson,
Piled on April 10, 1970
643a
The plan calls for the creation of several so called school
complexes, by grouping two, three or even fonr separate
schools together, even though physically they may be
widely separated, and treating them as one large school.
For example: (a) the Vigor, Blount, Carver, Bienville
High School Complex; (b) the Phillips, Washington, Fon-
ville Junior High School Complex; (c) the Eanes, Wood
cock Junior High School Complex and (d) the Williamson,
Craighead High School Complex. These complexes present
many administrative difficulties and other serious problems
such as unadaptability of facilities (using Craighead Ele
mentary School as half of a high school complex) and the
simple inability of students to get to the schools to which
they are assigned.
The plan makes the implementation of adequate cur
riculum impossible in a number of schools; makes it impos
sible to conduct many extra curricular activities; and de
stroys the very important factor of student and parent
identification with the neighborhood school as a center of
activity. The plan virtually destroys the neighborhood
school concept.
The Plan requires the cross town bussing of many ele
mentary school students thereby forcing the very young
children to attend schools far removed from their own
neighborhoods, in unfamiliar surroundings where they in
evitably experience insecurity.
The basic killing defect in the original HEW proposal,
as brought forward in HEW Plan B on December 1, 1969,
is the fact that it is simply statistically inaccurate to the
extent that it could not be implemented.
Affidavit of James A. McPherson,
Filed on April 10, 1970
644a
(c) In answer to question 2 (c), I refer now to HEW
Plan B-Alternative filed in the District Court on December
1, 1969. This plan also concerns only the schools lying east
of Interstate Highway 65. Attached hereto, labeled At
tachment H, is the supporting statistical table taken di
rectly from the HEW report filed in the court. This table
was not prepared by our professional personnel; it was
lifted in-toto from the HEW report. I cannot confirm the
accuracy of this table, statistically or otherwise. Indeed,
examination of the table, as well as the recommended plan
it relates to, by our professional staff indicates that it is
substantially inaccurate; and further indicates that any
desegregation plan based upon it would be essentially im
possible of implementation to begin with.
Plan B-Alternative generally contains the same defects
and is subject to the same criticisms as Plan B previously
referred to. In addition, upon close examination of the
statistical data set out in the plan and a comparison of this
data with accurate current data, it is immediately apparent
that the statistical data is so grossly inaccurate as to make
the plan totally unworkable. These examples will suffice to
illustrate the point.
The junior high and senior high zones set up by Plan
B-Alternative are the same zones as were recommended
by HEW in its previous report of July, 1969, and are
reflected in maps attached to that report. The statistical
data set out by HEW in Plan B-Alternative, (Attachment
H) as well as on the corresponding maps, indicates a total
of 1744 students in the zone drawn for Eanes-Woodcock
Junior High School Complex (grades 6-9). On the other
hand, a current analysis by our pupil personnel division
Affidavit of James A. McPherson,
Filed on April 10, 1970
645a
indicates there are actually approximately 2693 students in
the zone in grades 6-9. This is an error of over 900 students
in the HEW figures. Consider this in light of the fact that
the normal capacity of the school is 1760 students and the
fatal absurdity of the HEW error becomes apparent.
In a similar manner, the HEW statistics in Plan E-Al
ternative (Attachment H) indicate a total of 1291 students
in the Mobile County Training School zone, (in grades 6-7).
Whereas, a current statistical analysis indicates that there
are actually only approximately 362 such students in the
zone. This is an error of over 900 students.
In a similar manner Plan B-Alternative purports by the
HEW statistics (Attachment H) to assign 2602 students
to the Phillips-Washington-Fonville Complex; whereas, in
the zone drawn in the plan there are actually approximately
3253 students who must attend the complex. This is an
error of over 650 students.
In a similar manner Plan B-Alternative purports by the
HEW statistics (Attachment H) to assign 2606 students
to the Dunbar-Central Complex, while in actuality there are
only 2214 students in the zone drawn in the plan; an error
of almost 400 students. These same errors are also found
in Plan B, as well as in Plan B-Alternative. Because of
these gross statistical errors, Plan B-Alternative simply
could not be implemented.
I would direct the following comments to both HEW
Plan B and HEW Plan B-Alternative.
The original HEW Report was hurriedly prepared by
one Dr. Joe Hall, who had no prior contact with or knowl
edge of Mobile or the Mobile County Public School System.
Between June 16, 1969 when he first established a working
Affidavit of James A. McPherson,
Filed on April 10, 1970
646a
relationship with me, and July 7,1969 when the Report was
filed with the court (a total of 21 days) he prepared the
original Report of 109 pages. Well over half of these pages
were devoted to a detailed discussion of typical “ Chamber
of Commerce” information, totally irrelevant to desegre
gation of the school system. For example, the report ex
plains that among Mobile’s major industries are cement,
naval stores, ship repair, etc; and its modern ocean ter
minal can handle 32 vessels simultaneously; and in 1965
unemployment in Mobile County totaled 4.3 per cent of the
civilian “ at place” labor force; and on and on it goes with
reams of worthless information.
Dr. Hall’s testimony was taken by deposition at which
time he revealed that the actual desegregation Plan con
tained in the Report was prepared not by himself, but by
one Dr. Stolee of Miami, Florida and one Dr. Weinkoff
of South Carolina; both of whom had never been to Mobile
before; both of whom had no prior contact with or infor
mation about Mobile or its school system; both of whom
arrived in Mobile one day and departed the next, and pre
pared the plan during the short time of less than 48 hours.
In view of these circumstances it is not surprising that the
plan contains numerous statistical inaccuracies and other
practical impossibilities.
The HEW Report on December 1, setting out both Plan
B and Plan B-Alternative was prepared by one Ernest S.
Bunch, who styles himself Acting Senior Program Officer,
Equal Educational Opportunities. I talked with Mr. Bunch
on several occasions although he never asked me for infor
mation, advice or assistance. My first contact with Mr.
Bunch was on November 17, 1969 very shortly after his
arrival in Mobile. Prior to coming to Mobile on that occa
Affidavit of James A. McPherson,
Filed on April 10, 1970
647a
sion lie had no prior contact with Mobile or the Mobile
County Public School System.
Based upon my discussions with Mr. Bunch and my sub
sequent review of the HEW Plan he prepared I am con
vinced beyond any doubt that he had only a very super
ficial knowledge of Mobile and the Mobile County Public
School System. He obviously has no knowledge whatsoever
of many, many factors, the thorough knowledge of which
would be essential to anyone who would attempt to for
mulate a comprehensive plan or system of student assign
ment with the object and expectation that it should be
educationally sound, administratively feasible or, indeed,
practically workable. As a result, the HEW Plan of De
cember 1 that he has formulated, is in its entirety, as well
as in its various parts or segments, educationally unsound,
administratively infeasible and simply will not work. It
disregards and will be detrimental to the best interests of
the children concerned, black and white alike, and would
be destructive to the school system.
The HEW Plan is really four different plans which Mr.
Bunch labeled Plan A, Plan B, Plan B-AUernative, and
Plan B-I-Alternative. Neither of the four plans is based
upon original information, study, statistics or research,
because Mr. Bunch made no study, conducted no research
and gathered no statistics or information. This in fact is
conceded in the explanatory preface contained in the plan
itself. All Mr. Bunch did was to take statistical data from
the previous HEW report of July 1969, and then rear
ranged schools and students by juggling statistics in sev
eral different ways to come up with his various alternative
Plans.
Affidavit of James A. McPherson,
Filed on April 10, 1970
648a
A further important factor not accounted for in the
HEW plans, and apparently not even considered, is the
financial factor. Implementation of the HEW plans would
result in the following costs and expenses to the school
system, according to a study made by the professional per
sonnel of the Business Affairs Division:
1. Cost of additions to and conversion of school plant
facilities in order to meet changes of use and changes of
enrollment required in the HEW plans, $10,495,200.00.
2. Loss of value of buildings and sites to be closed and
abandoned, or at least not used, according to requirements
of the HEW plans, $2,145,900.00.
3. Acquisition cost of new busses in order to meet the
additional transportation required by the various HEW
plans:
Plan B — $321,457.37 (59 busses)
Plan B-Alternative — $206,932.74 (38 busses)
4. Recurring yearly expense, for operating each year the
additional busses required to meet the additional trans
portation required by the various HEW Plans:
Plan B — $ 92,700.80 (59 busses)
Plan B-Alternative — $ 59,705.60 (38 busses)
The school system simply does not have the capability of
meeting these increased costs and expenses, whether it be
a matter of immediate or future cash outlay, or the absorp
tion of loss due to the closing of facilities.
The HEW plans apparently make no provision what
soever for special classes to accommodate the several hun
Affidavit of James A. McPherson,
Filed on April 10, 1970
649a
dred exceptional (slow, retarded, handicapped, etc.) stu
dents in the system who require special classes, teachers,
and arrangements. This is most unfortunate.
The HEW plans are totally devoid of any consideration
for the future. As far as I have been able to determine
from examination and study of the HEW plans, the ser
vices of the Mobile Housing Board and the City Planning
Commission were not utilized or considered in developing
either of the three alternative plans. The original source
material from which the plans were developed was pre
pared by HEW representative I)r. Joe Hall in connection
with his previous report of July 1969. In his deposition
testimony Dr. Hall admitted that these agencies were not
consulted. As a result, expected residential growth in the
area in question is not allowed for in the HEW plans; on
the contrary, rather than allowing for anticipated growth,
the HEW plans would unwisely close schools in this area.
After a close and careful study of Plan B and Plan B-
Alternative, it is my firm opinion that both of these plans
as submitted to the court are educationally unsound and
administratively infeasible; and that they are based upon
statistical data which is to a large extent inaccurate, or at
least inaccurately stated in the plans, so that the plans are
incapable of effective implementation.
Dated at Mobile, Alabama on the 10th day of April, 1970.
,/s/ J ames A. M cP herson
James A. McPherson
Subscribed and sworn to before me on the 10th day of
April, 1970.
Affidavit of James A. McPherson,
Piled on April 10, 1970
/ s / E loise W. H arrison
Notary Public
650a
ATTACHMENT A
Affidavit of James A. McPherson,
Filed on April 10, 1970
(See opposite) ISP
651a
Affidavit of James A. McPherson,
Filed on April 10, 1970
ATTACHMENT A
ENROLLMENT REPORT
MOBILE COUNTY PUBLIC SCHOOLS
(Actual Net Enrollment - Sept. 26, 1969)
ALL SCHOOLS EXCEPT THOSE REFERRED TO IN THE
AUG. 1, 1969 COURT ORDER AS BEING EAST OF INTERSTATE-65
STUDENTS
SCHOOLS GRADE WHITE NEGRO TOTAL
Adams 1- 7, 686 311 997
Alba 1-12 1514 194 1708
Austin 1- 6 396 22 418
Azalea Road 7- 8 1039 38 1077
Baker 1-12 969 97 1066
Belsaw 6- 8 21 207 228
Burroughs 1- 6 192 290 482
Calcedeaver 1- 6 159 159
Child Guidance SPEC. 64 20 84
Citronelle 6-12 800 400 1200
Davis 1- 6 591 178 769
Dickson 1- 6 835 193 1028
Dixon 1-.6 249 189 438
Dodge 1- 6 675 65 740
Eight Mile 1- 8 586 110 696
Evans SPEC. 54 87 141
Fonde 1- 6 679 11 690
Forest Hill 1- 5 560 560
Grand Bay 1- 6 630 146 776
Griggs 1- 6 865 41 906
Hillsdale 6- 8 431 217 648
Hollinger’s Island 1- 6 394 2 396
Indian Springs 1- 6 520 12 532
Le s 1- 5 469 119 588
652a
Affidavit of Janies A. McPherson,
Filed on April 10, 1970
STUDENTS
SCHOOLS GRADE WHITE NEGRO TOTAL
Lott 1-.. 5 465 145 610
Mobile County High 7-12 * 602 251 853
Mount Vernon 1- 5 84 358 442
Orchard 1- 5 754 113 867
Saint Elmo '7- 8 436 54 490
Saraland 1- 5 661 33 694
Satsuma 8-12 1150 267 1417
Scarborough 6- 8 638 77 715
Semmes. 1- 8 988 25 1013
Shaw 9-12 1242 237 1479
Shepard. 1- 6 409 29 438
Tanner Williams 1-6 340 9 349
Theodore 7-12 1466 335 1801
Thomas 1- 6 222 101 323
Whistler 1- 6 227 231 458
Will 1- 5 657 ' 175 832
Wilmer 1- 6 333 59 392
[Attachment B Omitted-Same as School Board Report
Filed November 26, 1869, supra, p. 518a.]
653a
Affidavit of James A. McPherson,
Filed on April 10, 1970
ATTACHMENT C
ENROLLMENT REPORT
MOBILE COUNTY PUBLIC SCHOOLS
ESTIMATED ASSIGNMENT OF STUDENTS AS OF JAN. 31, 1970
LIST OF SCHOOLS AFFECTED BY THE DISTRICT COURT ORDER. OF JAN. 31, 1970
(Those schools lying East: of Interstate-65 plus Davidson
which lies West of Interstate-65 but was also affected.)
_________ STUDENTS__________
SCHOOLS_______________________ GRADE WHITE______NEGRO_______ TOTAL
Bienville 1- 6 . 288 313 601
Blount 9-12 8 1935 1943
Brazier 1- 5 955 955
Brookley 1- 6 . 484 76 560
Caldwell 1- 6 20 390 410
Carver 6- 8 - 1 899 900
Central 9-12 1233 1233
Chickasaw 1- 6 495 . 3 498
Clark 7- 9 1080 290 1370
Council . 1- 5 2 548 550
Craighead 1- 5 290 . 569 859
Crichton 1- 6 457 240 697
Davidson 9-12 2296 72 2368
Dunbar 7- 8 5 738 743
Eanes 6- 8 953 252 1205
Fonvielle 1- 6 4 1163 1167
Glendale 1- 5 385 192 577
Gorges 1- 6 4 1168 1172
Grant 1- 5 1231 1231
Hall 6- 8 180 838 1018
HaiT.il ton 1- 6 622 622
Howard 1- 6 12 432 444
Leinkauf 1- 5 224 235 459
654a
Affidavit of James A. McPherson,
Filed on April 10, 1970
- 2 -
STUDENTSSCHOOLS GRADE WHITE NEGRO TOTAL
Maryvale l-_ 5 453 171 624
Mertz 1- 5 450 450
Mobile County Training 6-12 57 1125 1182
Morningside 1- 5 631 631
Murphy 9-12 2356 516 2872
Old Shell Road 1- 6 267 106 373
Owens 1- 6 1121 1121
Palmer 1- 5 66 600 . 666
Phillips 7- 8 691 179 870
Prichard 6- 8 299 201 500
Rain 7-12 1089 112 1201
Robbins 1- 5 859 859
Stanton Road 1- 6 6 976 982
Toulminville 10-12 1125 1125
Trinity Gardens 6- 8 879 879
Vigor 9-12 1447 439 1886
Washington 7- 9 1463 1463
Westlawn 1- 6 451 451
Whitley 1- 5 383 383
Williams 1- 6 554 60 614
Williamson 9-12 605 408 1013
1- 5 193 186 ■ 379Woodcock
655a
—3—
United States District Court for the Southern District
of Alabama on March 12, 1970 ordered some additional
changes that will affect the Estimated Enrollments as of
January 31, 1970. These changes and results are as follows:
1. The attendance zone boundary line between Westlawn
and Mertz Elementary Schools was relocated back on
the same streets as ordered by the Court on August 1,
1969.
As a result of this change, Westlawn increased by ap
proximately 90 white students and decreased Mertz by
approximately 70 white students and Mae Eanes by
approximately 20 white students.
2. Mertz Elementary School will maintain a sixth grade
for the remainder of the 1969-70 school year.
As a result of this change, Mertz increased by approxi
mately 73 white students and decreased Eanes by ap
proximately 73 white students.
3. Morningside Elementary School will maintain a sixth
grade for the remainder of the 1969-70 school year.
As a result of this change, Morningside increased by
approximately 121 white students and decreased Eanes
by approximately 121 white students.
4. Trinity Gardens School will maintain a twelfth grade
for the remainder of the 1969-70 school year.
Affidavit of James A. McPherson,
Filed on April 10, 1970
656a
As a result of this change, Trinity Gardens increased
by approximately 117 Negro students and I llount de
creased by approximately 117 Negro students.
5. Mae Eanes Middle School will maintain a ninth grade
for the remainder of the 1969-70 school year.
As a result of this change, Mae Eanes increased by
approximately 28 Negro students and 239 white stu
dents. Murphy High School decreased by approximately
3 Negro students and 16 white students. Williamson
High School decreased by approximately 25 Negro stu
dents and 123 white students.
Affidavit of James A. McPherson,
Filed on April 10, 1970
All graduating seniors were permitted to continue to at
tend the school where they had been enrolled for the
remainder of the 1969-70 school year. A substantial number
of senior students would have been assigned across racial
lines on March 20, 1970 except for this immunity granted
by Court Order. This immunity will no longer be in effect
after the end of this school year.
657a
Affidavit of James A. McPherson,
Filed on April 10, 1970
ATTACHMENT DA
MARCH 20 MARCH 23 - TOTAL
SCHOOLS TOTAL NEGRO. WHITE TOTAL
Bienville 621 329 300 629Blount 1741 1748 17483razier 799 808 808
Brookley 580 79 501 580
Caldwell 381 375 20 395
Carver 863 920 920
Central 1240 1254 1254Chickasaw 500 500 500
Clark 1356 267 1071 1338Council 532 543 2 545Craighead 836 560 286 846
Crichton 714 260 460 720
Davidson 2415 73 2363 2436D ur.b a r 805 806 4 810
Eanes 1265 283 994 1277Fonvielle 1179 1179 3 1182
Glendale 583 188 402 590
Gorgas 1171 1171 2 1173Grant 1272 1275 1 1276Hall 869 817 137 954
Hamilton 582 586 586
Howard 404 410 8 418Leinkauf 421 279 176 455Maryvale 640 167 479 646Mertz 437 438 438
Mobile County Trng. 1184 1188 2 1190
Morningside 748 749 749Murphy 2682 490 2247 2737Old Shell Road 373 110 269 379Owens 1308 1328 1328
Palmer 678 610 65 675Phillips 885 176 710 886
Prichard 514 209 308 517
Rain 1218 116 1106 1222
Robbins 847 841 9 850
Shaw 1400 220 1179 1399
Stanton Road 987 984 1 985
Toulminville 1091 1097 1097
Trinity Gardens 946 964 964
Vigor 1934 480 1474 1954
Washington 1452 1462 1462
Westlawn 508 507 507
Whitley 386 388 388
Williams 616 56 562 618
Wil1Lamson 727 625 90 '715
Woodcock 386 203 191 394
NUMBER OF
NON-CONFORMISTS
15
3
TOTALS 43076 25538 18202 2443740
658a
Affidavit of James A. McPherson,
Filed on April 10, 1970
KOMBSR 0 ? STUDENTS WHO HAVE KOT REPORTED TO ASSMN
B ienville - 1
Clark - 7
Davidson - 11
Prichard - 1
Williamson - 200
Woodcock - 1
(March 23)
(March 23)
(March 23)
(March 23)
(March 23)
(March 23)
ED SCHOOL
659a
ATTACHMENT D-2
Affidavit of James A. McPherson,
Filed on April 10, 1970
ENROLLMENT MARCH 25, 1970
N W T
Bienville 329 300 629
Blount 1755 1755
Brazier 941 941
Brookley 79 501 580
Caldwell 376 20 396
Carver 896 1 897
Central 1268 1268
Chickasaw 498 498
Clark 276 1073 1379
Council 548 2 550
Craighead 594 270 864
Crichton 262 463 745
Davidson 74 2377 2451
Dunbar 812 4 816
Eanes 287 990 1277
Fonvielle 1174 3 1177
Glendale 189 404 593
Gorgas 1172 2 1174
Grant 1274 1 1275
Hall 792 179 971
Hamilton 592 592
Howard 410 4 414
Leinkauf 281 183 464
Maryvale 170 476 646
Mertz 438 438
660a
Affidavit of James A. McPherson,
Filed on April 10, 1970
N W T
Mobile Co. Trng. 1188 2 1190
Morningside 750 750
Murphy 509 2278 2787
Old Shell Eoad 119 269 388
Owens 1341 1341
Palmer 613 70 683
Phillips 176 708 884
Prichard 210 311 521
Rain 116 1122 1238
Robbins 841 9 850
Shaw 220 1181 1401
Stanton Road 984 1 985
Toulminville 1099 1099
Trinity Grdns. 972 972
Vigor 473 1470 1943
Washington 1465 1465
Westlawn 507 507
Whitley 388 388
Williams 47 572 619
Williamson 612 68 680
Woodcock 204 191 395
661a
ATTACHMENT D-3
Affidavit of James A. McPherson,
Filed on April 10, 1970
ENROLLMENT—MARCH 30, 1970
N W T
Bienville 332 292 624
Blount 1761 1761
Brazier 945 945
Brookley 79 501 580
Caldwell 376 20 396
Carver 911 1 912
Central 1280 1280
Chickasaw 498 498
Clark 272 1072 1344
Council 547 2 549
Craighead 576 280 856
Crichton 262 458 720
Davidson 74 2383 2457
Dunbar 812 4 816
Eanes 282 993 1275
Fonvielle 1125 3 1128
Glendale 189 409 598
Gorgas 1172 2 1174
Grant 1274 1 1275
Hall 780 152 932
Hamilton 592 592
Howard 410 3 413
Leinkauf 280 185 465
Maryvale 172 480 652
Mertz 438 438
662a
Affidavit of James A. McPherson,
Filed on April 10, 1970
N W T
Mobile Co. Trng. 1192 2 1194
Morningside 751 751
Murphy 513 2300 2813
Old Shell Ed. 112 282 394
Owens 1343 1343
Palmer 613 72 685
Phillips 176 711 887
Prichard 211 310 521
Eain 116 1125 1241
Bobbins 837 9 846
Shaw 220 1182 1402
Stanton Ed. 987 987
Toulminville 1101 1101
Trinity Gdns. 986 986
Vigor 474 1480 1954
Washington 1461 1461
Westlawn 507 507
Whitley 388 388
Williams 47 572 619
Williamson 618 65 683
Woodcock 206 180 386
25,562 18,317 43,879
663a
Affidavit of James A. McPherson,
Filed on April 10, 1970
ATTACHMENT E
COUNTY PUBLIC SCHOOLS - INSTRUCTIONAL POSITIONS TV RAGS AS OF AVRlu 7,_19
Total
School. Principal Asst. Princ ipal Teachers Profes s ional
W_ N-W W N-W W_ N-W A N-W
Adams 1 1 ' 21 16 22 17
Alba 1 1 54 11 56 11
Austin 1 10 3 11 3
Azalea Road 1 ■ 1 36 5 38 5
Baker 1 1 37 4 39 4
BeIsaw 1 2 7 2 8
Bienville 1 11 7 12 7
Blount 1 1 8 69' 8 71
Brazier • 1 4 25 4 26
Brookley 1 15 3 16 3
Burroughs 1 10 6 10 7
Caicedcaver 1 3 2 4 2
Caldwell 1 3 11 3 C-4i—4....
Carver 1 1 2 34 2 36
Central 1 1 5 50 5 52
Chickasaw 1 11 3 12 3
Child Guidance 15 2 15 2
Citronelle 1 1 33 16 35 16
Clark 1 1 45 5 47 5
Council 1 3 11 3 12
Craighead 1 14 12 15 12
Crichton 1 19 4 20 4
Davidson , 1 2 87 10 90 10
Davis 1 20 4 21 4
Dauphin Island 2 2
Dickson 1 23 8 24 8
N-W - Non White
Pago 1
COUNTY HJilLIC SCHOOLS - IKSTlliUi .iOSAl, i.OGli'j-ONS EY HACK AS OF APRIL y
664a
Affidavit of James A. McPherson,
Filed on April 10, 1970
Total
School P rin cip a l A sst. P rin cipal Teachers Profes £• ional
W_ N-W W N-W W_ N-W W N-W
Dixon 1 8 _ i ____ 8 _ £ ___
Dodge i 17 4 18 4
Dunbar i i 2 31 2 33
Panes 1 1 35 7 37 7
Eight Kile 1 20 5 21 5
Evans 1 8 8 9 3
Fonde 1 18 2 19 2
Fonvielle i 1 37 ■J 38
Forest H ill 1 14 3 15 3
Glendale i 13 4 14 4
Gorgas 1 1 33 1 34
Grand Bay 1 19 5 20 5
Grant i 3 37 3 38
Griggs i 21 5 22 5
Hall 1 i 12 16 13 17
Hamilton 1 15 4 16 4
Hillsdale i 1 16 11 17 ±2
Bollingers Island i 9 3 10 3
Howard i 1 12 1 13
Indian Springs i 14 2 15 2
Lee i 16 2 ’ 17 2
Leink&uf i 9 4 10 u
Lott 1 12 8 12 9
Maryvale i 12 8 13 8
Xertz 1 12 2 13 2
Mobile County High i 1 27 5 29 5
W -- White
N-W = Non White
Key: Pago 2
665a
Affidavit o f James A. McPherson,
Piled on April 10, 1970
KOMLE COUNTY PUBLIC SCHOOLS - INSTRUCTIONAL POSITIONS BY RACE AS OF ArRILj_^_1970
Total
School Principal Asst. Principal Teachers Professional
W_ N-W W N-W W_ N-W W N-W
Mobile County Training 1 1 6 46 6 48
Montgomery 1 1 30 4 32 4
Morningside 1 20 2 21 2
Mt. Vernon 1 5 8 6 8
Murphy 1 3 102 12 106 12
Old Shell 1 9 2 10 2
Orchard 1 21 5 22 5
Owens 1 2 39 2 40
Palmer 1 1 20 1 21
Phillips 1 1 34 3 35 4
Prichard ‘ 1 1 16 6 17 7
Ra in 1 1 45 7 47 7
Robbins 1 2 23 2 24
Saraland 1 19 2 20 2
Satsuma 1 1 45 11 47 11
Scarborough 1 1 27 3 29 3
S amines 1 1 33 4 35 4
Shaw 1 1 • 53 5 55 5
Shepard 1 ■ 12 2 13 2
Stanton Road 1 . 2 27 . 2 N> CO
St. Elmo 1 1 11 9 12 10
Tanner-W i11i am s 1 8 3 9 3
Theodore 1 1 65 6 67 6
Thomas 1 7 3 8 3
Toulminville 1 1 6 37 6 39
Trinity Gardens 1 1 J 3 36 3 38
Key: W = White ' Page 3
666a
Affidavit of James A. McPherson,
Filed on April 10, 1970
’MOBILE' COUNTY PUBLIC SCHOOLS - INSTRUCTIONAL POSITION'S BY RACE AS OF APRIL 7, 1970
Total
School Principal Asst. Principal Teachers Professional
W | N-W W N-W W_ N-W W N-W
Vigor 1 1 62 19 64 19
Washington 1 1 2 54 2 56
Westlawn 1 13 3 14 3
Whistler 1 13 5 14 5
Whitley 1 3 10 3 11
Will 1 19 6 20 6
Williams 1 14 4 15 4
Williamson 1 1 5 34 ' 6 35
Wilmer 1 10 3 11 3
Woodcock 1 7 5 8 5
. TOTALS 58 28 24 ii 15 6 0 10 59 16 4 2 1C9S
Key: W = White Page U
i
667a
Affidavit of James A. McPherson,
Filed on April 10, 1970
ATTACHMENT F
STATISTICAL TABLE FOR PROPOSED
ELEMENTARY ATTENDANCE AREAS EAST OF 1-65
(Esc. Student Population ox
METROPOLITAN
the Area)
SCHOOL GRADE N W T
Chickasaw i - 6 500 500
Hamilton 1 - 6 625 625
Eienville 1 - 6 313 300 . 613
Glendale 1 - 5 206 444 650
Whitley 1 - 5 421 421
Palmer 1 - 5 660 60 720
Robbins 1 - 5 805 2 807
Grant 1 - 5 1250- 15 1265
Brazier 1 - 5 983 983
Gorgas X - 6 1150 8 1158
Stanton Road 1 - 6 1077 14 1091
Fonvielle 1 - 6 1153 8 1161
Old Shell Road 1 - 6 120 250 370
Crichton 1 - 6 243 513 761
Westlawn 1 - 6 483 483
Owens 1 - 6 1237 1237
Caldwell i - 6 401 13 414
Howard 1 - 6 465 21 486
Emerson 1 - 6 340 16 356
Council i - 5 525 6 531
Leinkauf i - 5 96 258 354
Craighead 1 - 5 512 383 895
Hall SEE1 MIDDLE SCHOOLS
Woodcock 1 - 5 170 249 439
Arlington - - - - - - -
Maryvale 1 - 5 130 478 608
M ertz 5 496 496
668a
Affidavit of James A. McPherson,
Filed on April 10, 1970
STATISTICAL TABLE FOR PROPOSED
ELEMENTARY ATTENDANCE AREAS EAST OF 1-65
(Est. Student Papulation of the Area)
METROPOLITAN
S C H O O L G R A D E N w T
Morningside 1 - 5 631 631
Williams 1 -6 43 571 614
Brookley 1 -6 71 502 ■ 573
669a
Affidavit of James A. McPherson,
Filed on April 10, 1970
STATISTICAL TABLE For PROPOSED
KIDDLE SCHOOL ATTENDANCE AREAS EAST OF 1-65
(Est. Student Population of the Area)
METROPOLITAN
SCHOOL GRADE N W T
Clark 7 - 9 278 1242 1520
Trinity Gardens 6 - 8 992 992
Carver 6 - 8 867 8 • 875
Prichard 6 - 8 167 340 507
Mobile County Training 6 - 8 543 3 546
Washington 7 - 9 1559 16 1575
Dunbar 7 - 8 912 6 918
Eanes 6 - 8 160 911 1 0 7 1
Hall 6 - 8 573 182 755
Phillips 7 - 8 171 861 1032
Rain 7 - 8 38 415 453
670a
Affidavit of James A. McPherson,
Filed on April 10, 1970
STATISTICAL, TABLE rOR PROPOSED
SENIOR HIGH ATTENDANCE AREAS
(Est. Student Population of the Area)
METROPOLITAN
SCHOOL GRADE N w T
Vigor 9-12 468 1296 1764
Blount 9-12 . 1875 22 1897
Mobile County Training 9-12 634 99 - 733
Central 9-12 1372 17 1389
Toulminville 10-12 1145 20 1165
Murphy 9-12 425 2171 2596
Williamson 9-12 474 762 1236
Rain 9-12 59 735 794
Shaw 9-12 240 1250 1490
Davidson 9-12 70 2150 2220
671a
Affidavit of James A. McPherson,
Filed on April 10, 1970
ATTACHMENT G
HEW PLAN - ORIGINAL
Information taken from a report
f i le d with the Court by HEW O ffic ia ls
Elementary
Grade
S t
White
u d e n t s
Negro Total
South Brookley 1 -6 514 72 586
Morningside 1 -6 756 0 756
V. iilaams 1 -6 513 43 556
Maryvale 1 -6 588 30 618
Aeraz 1 -6 482 0 482
Westlawn 1 -6 595 0 595
iCCCCOCk 1 -6 380 80 460
1-6 3 701 704
Arlington 1-5 384 153 537
nrG~.'v-n 1-5 0 560 560
Emerson 1-6 3 518 521
Leinkauf 1-6 323 125 448
Owens 1-6 0 1254 1254
Caldwell 1-6 1 401 402
Howard 1-6 0 465 465
Old Shell Road 1-6 282 130 412
Crichton 1-6 520 253 773
Stanton Road 1-6 3 1077 1080
Fonvielle 1-6 0 1191 1191
1-6 1 1138 1139
Palmer 1-5 52 688 740
Glendale 1-6 549 172 721
Whitley 1-5 0 421 421
Brazier 1-6 0 1197 1197
1-5 3 1300 1303
Robbins 1-5 2 805 807
Bienville 1-6 336 313 649
Hamilton 1-6 643 0 643
Chickasaw 1-6 0. 563 563
Shepard 1-6 453 45 496
672a
Affidavit of James A. McPherson,
Filed on April 10, 1970
Elementary S t u d e n t s
Schools Grade White Negro Total
Dodge 1-6 678 54 732
Fonde 1-6 715 11 726
Austin 1-6 391 22 413
Dickson 1-6 772 1 773
Hillsdale 1-6 0 586 586
Orchard 1-5 759 2 761
W ill 1-5 678 0 678
Forest H ill 1-5 ■ 604 0 604
Whistler 1-6 251 247 498
Thomas 1-6 210 114 324
Indian Springs 1-6 535 n 546
Eight Mile 1-6 344 78 422
HEW PLAN - ORIGINAL
Junior or Middle S t u d e n t s
Schools Grade White Negro Total
Rain 7-8 415 38 453
Eanes 7-9 982 57 1039
Craighead 6-7 153 394 547
P hillips 7-8 838 113 951
Dunbar 7-8 5 928 933
Washington 7-9 0 1493 1493
Mobile County Training 6-8 0 568 568
Prichard 6-9 387 163 550
Carver 6-7 0 881 881
Trinity Gardens 7-8 0 420 420
Clark 7-9 1317 239 1556
Azalea Road 7-8 1044 40 1084
Hillsdale 7-9 0 225 225
Scarborough 6-8 1039 1 1040
Eight Mile 7-8 206 30 236
673a
Affidavit of James A. McPherson,
Filed on April 10, 1970
HEW PLAN - ORIGINAL
Senior High
Grade White
S t u d e n t s
Negro Total
Rain 9-12 760 49 809
VJiiiiams on 3-12 3 1131 1134
Kurpny 9-12 2707 147 2854
9-12 0 1614 1614
T oulrrinville 10-12 0 1107 1107
Mobile County Training 9-12 0 710 710
Blount 3-12 ■ 0 1394 1894
Vigor 10-12 1564 109 1673
Trinity Gardens 9-12 0 637 637
Davidson 9-12 2289 66 2355
Shaw 9-12 1136 196 1332
674a
Affidavit of James A. McPherson,
Filed on April 10, 1970
ATTACHMENT H
HEW PUN - B - ALTERNATIVE
Information taken from a report
f i le d with the Court by HEW O ffic ia ls
Elementary S t u d e n t s
Schools Grade White Negro Total
South Brookley 1-6 514 72 536
Morningside 1-5 756 0 756
Williams 1-6 571 43 614
Maryvale 1-5 588 30 613
Mertz 1-5 482 0 432
Westlawn 1-5 595 0 595
Woodcock See Junior High Schools
Hall 1-5 483 664 H i?
Arlington
Council 1-5 350 659 1009
Emerson 1-5 3 518 521
Leinkauf 1-5 273 165 438
Owens 1-5 2 1414 I 4I 6
Caldwell 1-5 1 401 402
Howard 1-5 0 465 465
Old Shell Road 1-5 232 295 527
Crichton 1-5 438 348 786
Stanton Road 1-5 6 900 906
Fonvielle .1-5 0 1000 1000
Gorgas
Palmer
1-5 3 963 966
Glendale^ 1-5 434 931 1365
Whitley 1-5 216 481 697
Brazier 1-5 10 1022 1032
Grant 1-5 15 1285 1300
Robbins /
Hamilton^ 1-5 638 855 1493
Bienville See Vigor - B ien ville , Carver, Blount — High School
Chickasaw 1-5 473 100 573
Shepard 453 43 496
675a
Affidavit of Jamies A. McPherson,
Piled on April 10, 1970
Elementary
Schools Grade
S t
White
u d e n t s
Negro Total
Dodge 1-5 565 45 610
Fonde 1-5 715 n 726
Austin 1-5 391 22 413
Dickson 1-5 680 125 805
Hillsdale See Junior High Schools
Orichard 1-5 759 117 876
W ill 1-5 678 0 678
Forest H ill ' 1-5 604 0 604
Whistler 1-5 181 205 386
Thomas - 1-5 180 95 275
Indian Springs 1-6 535 11 546
Eight Mile 1-6 280 66 346
HEW PUN - B - ALTERNATIVE
Junior or Middle S t » d e n t s
Schools Grade White Negro Total
Rain 7-s 415 38 453
Eane s-W oodc oc k 6 -9 980 764 1744
Craighead See Senior High Schools
Phillips
Washington > 6 -9 1040 1562 2602
T oulminville )
Dunbar **)
Central ) 6 -9 1044 1562 2606
Washington See Above
Mobile County Training 6 -7 432 859 1291
Prichard 6 -7 240 410 650
Carver See Vigor - B ienville, Carver, Blount — High
Trinity Gardens 6 -7 380 690 1070
Clark 8 536 948 1479
Azalea Road 6-7 857 133 990
Hillsdale 8 858 131 989
Scarborough 6-7 855 133 9S8
Eight Kile 7 -8 270 42 312
676a
Affidavit of James A. McPherson,
Filed on April 10, 1970
HEW PLAN - B -- ALTERNATIVE
Senior High S t u d e n t s
Schools Grade White Negro
'Rain 9-12 735 59 794
Williamson-Craighead 10-12 1008 767 1775
Murphy 10-12 1440 1913 3353
Central See Junior High Schools
T oulminville See Junior High Schools
Mobile County Training See Junior High Schools
31o'ont —
Vigor 9-12 1908 3516 5424
T rin ity Gardens See Junior High Schools
Davidson 9-12 1738 51 1789
Snaw 9-12 1150 196 1346
677a
ATTACHMENT J
PARENT AND STUDENT GRIEVANCES
Mobile Public Schools
August 27, 1969
1. Channels of communication shall be established and
maintained by local school principals to facilitate the
appropriate involvement of pupils enrolled in senior
high schools and in junior high or middle schools in
the development and the improvement of public educa
tion; said involvement to include the opportunity for
students to share with professional personnel informa
tion, concerns and suggestions concerning their educa
tional opportunities.
2. Principals, with the assistance of professional personnel
working under their supervision, shall formulate pro
cedures to achieve this objective. Said procedures shall
be made known in appropriate ways to students, to
professional personnel and to parents of students en
rolled ; and a copy of said procedures shall be filed with
the Assistant Superintendent in Charge of Administra
tion.
3. Individual students who are displeased with action
taken by their teachers may take their problems to their
principals. If individual students are dissatisfied with
action taken by their principals, they may take their
problems to their parents or their guardians; then
parents or guardians who wish to do so may take their
children’s problems to local school principals. If parents
or guardians are displeased with decisions rendered
Affidavit of James A. McPherson,
Filed on April 10, 1970
678a
and with action taken by school principals, they may
take their problems to the Assistant Superintendent in
Charge of Administration of Local Schools. If parents
or guardians are displeased with decisions rendered
and with action taken by the Assistant Superintendent
in Charge of Administration, they may take their prob
lems to the Superintendent who, in turn, will appro
priately involve the Associate Superintendent as a basis
for rendering decisions and for taking corrective action
as justified by circumstances. Parents or guardians
who are dissatisfied with decisions rendered and with
corrective action taken by the Superintendent may then
submit in writing background reports on their problems
to the Superintendent to be made a part of a regular
School Board Agenda. If parents or guardians do not
wish to submit written reports on their problems, they
may appear at a Board Meeting on regular delegation
days and present their unresolved problems to the Board
in conformity with the Board’s policy dealing with
delegations.
4. Groups of students who have grievances, who have con
cerns about their educational opportunities, and who
wish to make suggestions on ways of improving their
educational opportunities, may share their concerns and
their suggestions with their Student Council. If the
Student Council feels that oral and/or written reports
submitted deal with matters of general concern to stu
dents and merit the consideration of the principal, then
appropriate officers of the Student Council may confer
with their principal on matters of concern. If the Stu
dent Council is dissatisfied with decisons rendered by
Affidavit of James A. McPherson,
Filed on April 10, 1970
679a
the principal or with corrective action taken, it may
then submit a written report on student grievances to
the Executive Committee of the PTA. If the Executive
Committee of the PTA feels that the expressed views
and concerns of students merit more consideration than
that given by the principal, said committee may then
confer with local school principal about problems and
issues reported by the Student Council. If the Student
Council is dissatisfied with action take by the PTA Ex
ecutive Committee, it may submit a report in writing to
the Superintendent, setting forth its concerns, its griev
ances, and its suggestions, sending copies of said re
port to the principal and to the President of the PTA.
The Superintendent, in turn, shall furnish copies of said
report to members of the Administrative Staff and to
members of the School Board.
5. Preliminary to taking action on written reports sub
mitted by the Student Council, the Superintendent shall
seek background reports on student’s expressed con
cerns and suggestions from the local school principal
and from the President of the local school PTA.
6. If a Student Council is displeased with action taken by
the Superintendent, it may request the Superintendent
to arrange a conference with the Board. The Board, in
turn, on the basis of written reports submitted by the
Student Council, by the school principal, by the Presi
dent of the PTA and by the Superintendent shall decide
whether or not a request for a conference will be
granted. If such a request is granted, the principal
and members of the Executive Board of the PTA shall
be invited to attend.
Affidavit of James A. McPherson,
Filed on April 10, 1970
680a
Before B ell , A in sw orth , and G odbold, Circuit Judges.
B ell , Circuit Judge: We consider again the effort to
convert the Mobile County School System from dual to
unitary status. This is the ninth appeal of the matter
to this court.1 The system is now operating on a student
assignment system fashioned by the district court after
considering a school board plan of assignment, three sepa
rate HEW plans, and one plan submitted by the Depart
ment of Justice.
In Singleton v. Jackson Municipal Separate School Dis
trict, supra, fn. (1), we approved the student assignment
plan of the Mobile County system then in effect for all
schools located west of Interstate Highway 65. This appeal
basically complains only of the student assignments in
the schools located east of 1-65. However, in an effort
finally to adjudicate the status of this system from the
standpoint of all of the essentials required to convert a
dual school system into a unitary school system, we have
obtained supplemental findings of fact from the district
court. See Ellis v. The Board of Public Instruction of
Orange County, Florida, 5 Cir., 1970,------ F .2d -------- [No.
29,124, slip opinion dated February 17, 1970]; Mannings v.
1 Singleton v. Jackson Municipal Separate School District, 5 Cir.,
1969, 419 F.2d 1211 (en banc consideration of Mobile case and 12
additional school desegregation cases) ; Davis v. Board of School
Commissioners of Mobile County, Ala., 5 Cir., 1969, 414 F.2d 609;
Davis v. Board of School Commissioners of Mobile County, Ala., 5
Cir., 1968, 393 F.2d 690; Davis v. Board of School Commissioners of
Mobile County, Ala., 5 Cir., 1966, 364 F.2d 896; Davis v. Board of
School Commissioners of Mobile County, Ala., 5 Cir., 1964, 333
F.2d 53; Davis v. Board of School Commissioners of Mobile County,
Ala., 5 Cir., 1963, 322 F.2d 356; Davis v. Board of School Com
missioners of Mobile County, Ala., 5 Cir., 1963, 318 F.2d 63; Davis
v. Board of School Commissioners of Mobile County, Ala., 5 Cir.,
1970, 422 F.2d 1139.
Court of Appeals Opinion of June 8 , 1970
681a
Court of Appeals Opinion of June 8, 1970
The Board of Public Instruction of Hillsborough County,
Florida, 5 Cir., ------ F.2d ------ [No. 28,643, slip opinion
dated May , 1970], as examples of the same approach.
In Ellis v. Orange County and in Mannings v. Hillsbor
ough County, we adverted to the school desegregation re
quirements set out in Alexander v. Holmes County Board
of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.id 19;
Green v. County School Board of Hew Kent County, 1968,
391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, and the de
cision of this court in Singleton v. Jackson Municipal Sepa
rate School District, supra. In Ellis v. Orange County,
we said:
“ . . . In Green v. County School Board of New Kent
County, . . . the mechanics of what must he done to
bring about a unitary system were outlined. They were
stated in terms of eliminating the racial identification
of the schools in a dual system in six particulars: com
position of student bodies, faculty, staff, transporta
tion, extracurricular activities, and facilities. . . . It
~was suclTdual systems, organized and operated by the
states acting through local school boards and school
officials, which were held unconstitutional in Brown v.
Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873 (Brown I), and which were ordered
abolished in Brown v. Board of Education, 1955, 349
U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II).
“ In Green the court spoke in terms of the whole
system—of converting to a unitary, nonracial school
system from a dual system. Then, in Alexander v.
Holmes County Board of Education, . . . the court
pointed to the end to be achieved. The result, if a con-
682a
stitutionally acceptable system may be said to exist,
must be that the school system no longer operates as
a dual system based on race or color but as a ‘unitary
school . . . [system] within which no person is to be
effectively excluded from any school because of race
or color.’ . . . ” ------ F.2d at p . ------- .
We thus proceed to a determination of the status of the
Mobile system with respect to each of the six essential
elements which go to disestablish a dual school system.2
We find the system deficient in student assignment in cer
tain schools and also in faculty and staff assignment.
The Mobile system covers the whole of Mobile County
including the City of Mobile. The county is quite large in
area, embracing 1,222 square miles. There are a total of
96 schools in the system in 91 buildings, and the 96 schools
consist of senior high, junior high, and elementary schools
plus one special school. Some of the buildings house sepa
rate elementary or junior high or high schools; others
house combinations of these. There were 73,504 students
in the system as of September 26, 1969. This total breaks
down into 42,620 or 58 per cent white students, 30,884 or
42 per cent Negro students. Under the present plan 18,623
or 60 per cent of the Negro students in the system are as-
2 Under the stringent requirements of Alexander v. Holmes
County Board of Education, supra, which this court has carried
out in United States v. Hinds County School Board, 5 Cir., 1969, 417
F.2d 852 [Nos. 28030, 28042, Nov. 7, 1969], this court has judicially
determined that the ordinary procedures for appellate review in
school segregation cases have to be suitably adapted to assure that
each system, whose case is before us, “begin immediately to operate
as unitary school systems.” Upon consideration of the record, the
court has proceeded to dispose of this case as an extraordinary
matter. Rule 2, FRAP.
Court of Appeals Opinion of June 8, 1970
683a
signed to schools having all or virtually all Negro student
bodies. These Negro students are housed in 12 elementary,
'3' junior high schools, 1 combination junior-senior high,
and 3 senior high schools. |
F aculty and Staff
The faculty and stall desegregation standard enunciated
in Singleton v. Jackson, supra, requires assignment on a
basis whereunder the ratio of Negro to white teachers and
staff members in each school is substantially the same as
each such ratio is to teachers and staff in the entire school
system. The faculty ratio for the system is approximately
60 per cent white and 40 per cent Negro. As of April 7,
1970, there were 1,642 white faculty members and 1,098
Negro members or a total of 2,740. We have no information
on staff ratios.
The Mobile County school system has almost totally
failed to comply with the faculty ratio requirement al
though ordered to do so by the district court on August
1, 1969. Only a few schools approach the 60-40 faculty
ratio. The district court is directed to require strict com
pliance with the Singleton v. Jackson rule for faculty and
staff on or before July 1, 1970.
Transportation, Facilities and
E xtracurricular A ctivities
In the 1967-68 school term, 207 school buses transported
22,094 students daily. The facts disclose that school buses
are used in all rural areas of the county and in the outlying
areas of metropolitan Mobile and that they are operated
on a non-segregated, non-discriminatory basis. The facts
Court of Appeals Opinion o f June 8, 1970
684a
also demonstrate that all extracurricular activities and
facilities are operated on the same basis. Indeed, there is
no complaint regarding transportation, facilities and extra
curricular activities. The district court is directed to enter
an order requiring the continued desegregation of facilities
and extracurricular activities and to include the require
ments of Singleton v. Jackson, supra, as to transportation,
school construction and school site selection as a part of the
order.
Student A ssignment
We have examined each of the plans presented to the
district court in an effort to determine which would go
further toward eliminating all Negro or virtually all Negro
student body schools while at the same time maintaining
the neighborhood school concept of the school system. Un
like Orange County {Ellis v. Orange County, supra),
Mobile does not purport to use The strict neighborhood 'as7
signment system. It employs zones based on discretionary
“zone lines; fnrthat^sense it is like the Hillsborough County
system {Mannings v. Hillsborough County, supra), and the
situation, as in Hillsborough, can be greatly improved by
pairing some schools located in close proximity to each
other. See the description of neighborhood pairing used
in Mannings v. Hillsborough County. The situation can
also be improved by recasting the grade structure in some
of the buildings but, at the same time, maintaining the
neighborhood school concept.
The plan submitted by the Department of Justice on
January 27, 1970, contemplates both pairing and the re
casting of grades. It produces a result of 9 all or virtually
all Negro student body elementary schools instead of 12
Court of Appeals Opinion of June 8, 1970
685a
as at present, and 1 senior high school of the same type
instead of 7 junior and senior high schools as at present.
Instead of 60 per cent of the Negro students being as-
signed to such schools, the result under the Department of
Justice plan would be 28 per cent (8,515 students instead of
aJfenH~^iTTntegr^ed_
"schooTat*some time during his education career under the
Department of Justice plan.
"~ % F reiu T T tF B el^ ^ this plan proves an obvi
ous fact. Ordinarily, it is easier to desegregate high and
junior high schools than elementary schools. This is due
to the difference in the size of the schools. Elementary
schools are generally smaller and thus they receive students
from a more restricted area. On the other hand, high and
junior high schools, with their large student capacities, en
compass larger areas and, more likely, areas containing
diverse racial groups.
We conclude that the Department of Justice plan, as
hereinafter modified, must be invoked. By way of modi
fication, it will be necessary to desegregate the one all
Negro high school—Toulminville. It appears from maps
of record that the zone line between Murphy high and Toul
minville high can be redrawn so as to include some of the
students living in the area of the Crichton elementary
school. Some of these students appear to reside nearer
Toulminville than Murphy. In addition, the Department of
Justice plan must be modified to close the Emerson ele
mentary school (soon to be eliminated in an urban renewal
project). This school would have an all Negro student body
under the Justice Department plan. The 450 students who
would be assigned to Emerson are to be assigned as fol
lows : 200 to Council, 200 to Caldwell, and 50 to Lienkauf.
Court of Appeals Opinion of June 8, 1970
Court of Appeals Opinion of June 8, 1970
This will leave only 8 all Negro student body schools
(all elementary), with 25 per cent of the Negro students
assigned thereto (7,725 instead of 18,628), and every Negro
child in the Mobile system will attend school in a desegre
gated junior high and high school on a neighborhood basis.3
Attached as Appendix A is a chart depicting student
body composition by school and race under the present
district court plan and the Department of Justice plan
of January 27, 1970.4 The district court is directed to im-
3 The Department of Justice plan coupled with the Toulminville
and Emerson feature seems superior to the HEW plans. Any one
of the plans, HEW or Department of Justice as modified, would
lead to a unitary system. .The original HEW plan (Plan B), filed
on July 10, 1969, principlJly~utilized zoning, but also proposed
^"Transporting approximately 2,000 Negro students irom the heavy
Negro concentration in~easternTTobile to preiSomlnajItly white
schools m the western and southern part of Mobile. IT did not
contemplate transporting white students in exchange. This plan
would retain 6 all Negro schools serving 5,949 Negro students, or
per cent of the total Negro students in the system. HEW Plan
alternative, filed December 1, 1969, employed contiguous zoning as
well as contiguous pairing. The plan contemplated no transpor
tation of students. It would leave 9 all Negro schools serving 7,971
students, or 26 per cent of the total. HEW Plan B-l-alternative,
filed DecemTierT, 1969, was limited to elementary schools and incor
porated Plan B-alternative for junior and senior high schools. The
lan involves non-contiguous pairing of each all Negro school in
eastern Mobile with a predominantly white school in western or
southern Mobile (across the system). The plan calls for cross
transportation of both whites and Negroes. There would be no all
Negro schools under this plan. This non-neighborhood plan is
'A‘ euphemistically referred to in plaintiff’s brief as a “ Shared Neigh
borhood Plan.”
4 The defendants warn that the figures used by the Department
of Justice and HEW are inaccurate. This may be true but the
defendants, the only parties in possession of current and accurate
information, have offered no help. This lack of cooperajjan. _aad
generally unsatisfactory condition, erSUled' by defendants, should
be terminated at once by the district court. Such errors in informa
tion as do exist may be corrected and the situation adjusted accord
ingly by the district court.
687a
plement the Department of Justice plan on or before July
1, 1970 together with the Toulminville-Murphy and Emer
son changes above described.
From the standpoint of demography, a majority of the
Negro population in the Mobile school system is situated
in a concentrated area within the City of Mobile to the east
of Highway 1-65. The all Negro student body schools which
will be left after the implementation of the Department
of Justice plan as modified, are the result of neighborhood
patterns. This condition can be further alleviated through
a majority to minority transfer policy and through the
functioning of a bi-racial committee. The student assign
ments in the school system depend on zone lines which are
drawn on a discretionary basis and therefore may be sub
ject, in some instances, to abuse and in others, to improve
ment. The proper administration of zone lines depends
upon good faith in establishing and maintaining the lines
as well as continuing supervision over them.
The district court is directed to see that a bi-racial com
mittee of the type described in Ellis v. Orange County,
supra, is established. See Singleton v. Jackson Municipal
Separate School District, 5 Cir., 1970,------F.2d — [No.
29226, slip opinion dated May , 1970]. In addition, the
district court is directed to require the majority to minority
transfer rule of Ellis v. Orange County. All transferring
students must be given transportation if they desire it and
the transferee is to be given priority for space.
The district judge is also directed to require that the
bi-racial committee serve in an advisory capacity to the
school board in the areas of the operation of the majority
to minority transfer rule, the promulgation and mainte
nance of zone lines, and in school site location. As we said
Court of Appeals Opinion o f June 8, 1970
688a
in Ellis vs. Orange County, with respect to eliminating all
Negro student body schools:
“ . . . The majority to minority transfer provision
under the leadership of the bi-racial committee is a
tool to alleviate these conditions now. Site location,
also under the guidance of the bi-racial committee, will
guarantee elimination in the future. In addition, open
housing, Title VIII, Civil Rights Act of 1968, 42 USCA,
§ 3601, et seq., Jones v. Mayer, 1968, 392 U.S. 409, 88
S.Ct. 2186, 20 L.Ed.2d 1189, will serve to prevent neigh
borhood entrapment.”
Deficiencies to B e R emedied
We conclude that three of the six elements that go to
make up a unitary system have been accomplished in
Mobile County : transportation, extracurricular activities,
and facilities. The remaining deficiencies in faculty and
staff desegregation and in student assignment must be
remedied on or before July 1, 1970 on the basis heretofore
stated. All other direction herein given to the district
court must also be accomplished not later than July 1,
1970.
Once done, and when the district court, by the standards
herein stated, has made its own conclusion as to the system
being unitary, the district court must retain jurisdiction for
a reasonable time to insure that the system is operated in a
constitutional manner. As the Supreme Court said in
Green, “ . . . whatever plan is adopted will require evalua
tion in practice, and the court should retain jurisdiction
until it is clear that the state-imposed segregation has been
completely removed.” 391 U.S. at 439.
Reversed and Remanded with direction.
Court of Appeals Opinion of June 8, 1970
APPENDIX “A ”
COMPARISON OF DEPARTMENT OF JUSTICE
PLAN WITH DISTRICT COURT PLAN
Projected, Enrollment
Under Zone Lines Of- Assignments Under
fered by the 17. S. on District Court Plan
1/27/70 of 1/31/70
ELEM ENTARY SCHOOLS
SCHOOL GRADES WHITE
South Brookley 1-6 502
Morningside 1-5 631
Williams 1-6 571
Maryvale 1-5 414
Mertz 1-5 498
Craighead 1-5 347
Arlington 1-5 160
Council 1-5 4
^Emerson 1-5 0
Lienkauf 1-5 273
Woodcock 1-5 424
NEGRO GRADES WHITE NEGRO
71 1-6 484 76
0 1-5 751 0
43 1-6 554 60
117 1-5 453 171
104 1-5 453 0
489 1-5 290 569
170 - closed -
391 1-5 2 548
450 - closed -
165 1-5 224 235
167 1-5 193 186
C
ourt of A
ppeals O
pinion of June 8, 1970
Projected Enrollment Assignments Under
Under Zone Lines Of- District Court Plan
fered by the U. S. on of 1/31/70
1/27/70
ELEM ENTARY SCHOOLS — cont.
SCHOOL GRADES WHITE NEGRO GRADES WHITE NEGRO
Westlawn 1-5 532 0 1-6 541 0
Crichton 1-5 438 348 1-6 457 240
Old Shell Road 1-5 232 295 1-6 267 106
Caldwell 1-5 0 350 1-6 20 390
Howard - closed - 1-6 12 432
Owens 1-5 2 1414 1-6 0 1121
Fonvielle 1-5 0 1000 1-6 4 1163
Stanton Road 1-5 6 900 1-6 6 976
Gorgas 1-5 7 963 1-6 4 1168
Brazier 1-5 10 1022 1-5 0 955
Grant 1-5 15 1285 1-5 0 1231
Palmer/Glendale 1-5 434 931 1-5 66 600
Glendale/Palm er 1-5 434 931 1-5 385 192
Whitley 1-5 216 481 1-5 0 383
Robbins/Hamilton 1-5 638 855 1-5 0 859
C
ourt of A
ppeals O
pinion of June 8, 1970
Projected Enrollment
Under Zone Lines Of- Assignm ents Under
ELEM ENTARY SCHOOLS
SCHOOL
Hamilton/Robbins
Cihickasaw
WEST OF 1-65
Whistler
Thomas
Indian Springs
Eight Mile
Shepard
Dodge
Austin
Fonde
Dickson
Orchard
Will
Forest Hill
fered by the U.
1/27/70
S. on District Court
of 1/31/70
Plan
‘ — cont.
GRADES WHITE NEGRO GRADES WHITE NEGRO
1-5 638 855 1-6 622 0
1-5 473 100 1-6 495 3
1-5 181 205 1-6 227 231
1-5 180 95 1-6 222 101
1-5 535 11 1-6 520 12
1-6 280 66 1-8 586 110
1-6 409 29 1-6 409 29
1-6 675 65 1-6 675 65
1-6 396 22 1-6 396 22
1-6 679 11 1-6 679 11
1-6 835 193 1-6 835 193
1-5 754 113 1-5 754 113
1-5 657 175 1-5 657 175
1-5 560 0 1-5 560 0
C
ourt of A
ppeals O
pinion of June 8, 1970
Projected Enrollment
Under Zone
fered by the
1/27/70
MIDDLE SCHOOLS
SCHOOL GRADES WHITE
Rain 7-12 1150
Eanes/Hall 6-9 1292
Hall/Eanes 6-9 1292
Phillips/W ashington 6-9 1170
Washington/Phillips 6-9 1170
Dunbar 6-9 181
Central 6-9 468
Mobile Co. Training 6-7 432
Prichard 6-7 240
Trinity Gardens 6-7 380
Clark 8 536
WEST OF 1-65
Azalea Road 7-8 1039
Scarbrough 6-8 638
Hillsdale 6-8 431
Lines Of- Assignments Under
U. S. on District Court Plan
of 1/31/70
NEGRO GRADES WHITE NEGRO
97 7-12 1089 112
977 ( 6-8 978 280
977 6-8 180 838
1716:| . 7-8 691 179
1716 ; LO ji, 7-9 0 1463
985' 7-8 5 738
1206 h 5l o 9-12 0 1233
859 \ (&h 6-12 57 1125
410 S Cl?* 6-8 299 201
690 HU. 6-8 0 996
948 U 'l ?. 7-9 1080 290
38 i p 7-8 1039 38
77 n f i 6-8 638 77
217 6-8 431 217
C
ourt of A
ppeals O
pinion of June 8, 1970
Projected Enrollment
Under Zones Lines Of- Assignments Under
fered by the U. S. on District Court Plan
1/27/70 of 1/31/70 * **
HIGH SCHOOLS
SCHOOL GRADES WHITE
Rain 7-12 1150
Williamson 10-12 880
Murphy 10-12 1643
**Toulminville 10-12 9
Blount/Carver 9-12 854
Carver/Blount 9-12 854
Vigor/Bienville 9-12 1134
Bienvil’le/V igor 9-12 1134
NEGRO GRADES WHITE NEGRO
97 7-12 1089 112
471 9-12 472 383
1761 9-12 2340 513
740 10-12 0 1125
1846 9-12 8 1818
1546 6-8 1 899
1211 9-12 1447 439
1211 1-6 288 313
72 9-12 2296 72
240 9-12 1242 237
WEST OF 1-65
Davidson 9-12 2302
Sihaw 9-12 1250
* An optional provision of the Department of Justice plan called for closing all Negro Emerson elemen
tary school and assigning its 450 students to six non-contiguous schools: Maryvale, Woodcock, West-
lawn, Fonde, Morningside, and Lienkauf. This option is eliminated. As modified by the court, the stu
dents who would attend Emerson will, instead, attend Council, Caldwell and Lienkauf. Council will
have 4 white and 591 Negro students, Caldwell will have 550 Negro students, and Lienkauf will have
273 white and 215 Negro students.
** To be rezoned and integrated (see modification in text).
C
ourt of A
ppeals O
pinion of June 8, 1970
694a
B e fo re B ell , A in sw orth and Godbold, Circuit Judges.
J udgment
This cause came on to be heard on the transcript of the
record from the United States District Court for the South
ern District of Alabama, and was taken under submission
by the Court upon the record and briefs on file;
On consideration whereof, It is now here ordered and
adjudged by this Court that the judgment of the said Dis
trict Court in this cause be, and the same is hereby, re
versed; and that this cause be, and the same is hereby re
manded with direction to the said District Court in accord
ance with the opinion of this Court.
It is further ordered that defendants-appellees-cross ap
pellants and intervenor-appellees pay the costs on appeal
to be taxed by the Clerk of this Court.
Court of Appeals Judgment of June 8, 1970
June 8, 1970
Issued as Mandate: Jun 8 1970
695a
Pursuant to the mandate of the Fifth Circuit Court of
Appeals dated June 8, 1970, and received by this court on
June 10, 1970, which reverses and remands with directions,
this Court’s desegregation plan for the Mobile County
Public School System of January 31, 1970, and after con
sideration of such mandate, it is hereby Ordered, adjudged
and decreed by the Court that the defendants, Mobile
County School Board, implement the desegregation of the
Mobile County Public School System on or before July 1,
1970, as follows:
Student A ssignment
It is Ordered that those area attendance zones offered
by the United States Justice Department on January 27,
1970, be assigned as the school zones under which the
public school system will operate beginning with the 1970
Fall semester until further orders of this Court. The
school board is directed to begin preparation and imple
mentation of such area school zones immediately with the
following exceptions: Toulminville High School attendance
zone area and the Emerson Elementary School area shall
be drawn by the Court and the Court shall submit this
order within the immediate future. The school board is
directed to furnish to the Court on Tuesday, June 16, 1970,
the pupil population data for the Emerson Elementary
and Toulminville High School attendance area including
grade attendance and enrollment. Other than the above
referenced attendance areas, the Justice Department at
tendance zones as drafted on January 27, 1970, shall be
implemented as drafted.
District Court Order of June 12, 1970
696a
Faculty and Staff Desegregation
On or before July 1, 1970, the principals, teachers,
teacher-aides and other staff who work directly with chil
dren at a school shall be so assigned that in no case will
the racial composition of a staff indicate that a school is
intended for Negro students or white students. Under the
present faculty employment the racial composition of Mo
bile County School system is approximately 60% white
and 40% Negro; therefore, in accordance with the above
stated policy it shall be necessary for the school faculty
assignments to be made on a 60% white and 40% Negro
basis. Beginning the 1970 Fall semester, the school board
shall assign the staff described above so that the ratio of
Negro to white teachers in each school, and the ratio of
other staff in each, are substantially the same as each such
ratio is to the teachers and other staff respectively, in
the entire school system.
The school district shall, to the extent necessary to carry
out this desegregation plan, direct members of its staff as
a condition of continued employment to accept new assign
ments.
Paragraph 7 of this Court’s decree entered on August 1,
1969, pertaining to faculty reduction, vacancies and demo
tion are incorporated herein and shall remain in full force
and effect.
Majority to Minority Transfer P olicy
The school board shall permit a student attending a
school in which his race is in the majority to choose to
attend another school where his race is in the minority
District Court Order of June 12, 1970
697a
and all such transferring students must be given trans
portation to their chosen school if they desire it and the
transferee is to be given priority for space.
Transportation, E xtra Curricular A ctivities
and Facilities
The School Board is directed to continue to operate
transportation, extra curricular activities and school facili
ties on a non-discriminatory basis in accordance with the
past orders of this Court.
By supplemental order to be entered within the immedi
ate future the Court shall direct that there be established
a biracial committee serving in an advisory capacity to the
school board in the following areas of the public school
system operations: (1) Application of majority to minor
ity transfer rule; (2) promulgation and maintenance of
area within zone lines; (3) school site location.
B one this the 12th day of June 1970.
D aniel H . T homas,
United States District Judge.
District Court Order of June 12, 1970
698a
Court of Appeals Orders of June 29 , 1970
B e fo re B ell , A insworth, and G odbold, Circuit Judges.
It is ordered that appellees’ motion for leave to file peti
tion for rehearing ont of time and leave to file petition
for rehearing in excess of 10 pages bnt not to exceed 20
pages is hereby Granted.
It is Ordered that the petition for rehearing filed in the
above entitled and numbered cause be, and the same is
hereby
Denied.
699a
The Order of this Court, entered in this case on Jane 12,
1970, is amended in the following respect:
Pursuant to Footnote “4” of the ox>inion of the Fifth
Circuit Court of Appeals in this case, entered on June 8,
1970, the area attendance zones for the 1969-70 school
year are amended as shown by the maps hereto attached
marked Exhibit “ 1” , “2” , and “ 3” for the elementary school,
middle school and high schools respectively, which said
maps show the area attendance zone for each school and
the grade structure for each school.
Exhibit “4” attached hereto shows the feeder pattern
for the entire school district. The facility heretofore known
as the Gorgas School is closed and the students heretofore
attending Gorgas are assigned to Fonville. In all other
respects the Order of June 12, 1970, remains in full force
and effect.
Done this, the 13th day of July, 1970.
Daniel H. T homas,
United States District Judge.
District Court Order of July 13, 1970
[Maps omitted—see original record]
700a
District Court Order of July 13, 1970
(See opposite) ESP
701a
E x h i b i t “ 4 ”
Feeder pattern
Elementary Middle High
District Court Order of July 13, 1970
Crichton..........................................
Austin............................................. ............. Scarborough................................ ....... Davidson
Forest H il l ......................................
Orchard ..................................... .............Scarborough................................ ....... Shaw
........... . Hillsdale..................................... ___ Shaw
Williams.................- .......................
South Brookley.............................
Momingside...................................
___ B . C . Rain
. . . . .
Craighead....................................... ........Williamson
Council................ - ............... ......... .............H a ll.............................................. . . . . . Williamson
Caldwell— ...................................
Woodcock * *.................................... ............. Central____________ _______ ___ Murphy
Thomas..................- .......................
Whistler............- .............. - ............
Bobbins (Northern)...... ..............
jT r in ity Gardens....................... ........Blount
Chickasaw Southern).................. ............. C la rk.......... .................................
Robbins (Southern).....................
Chickasaw (Northern)....... .........
______ C la rk ....................................—
CllcuJalc (Western)............................... ............ ..................... ..................................
........Vigor
Palmer (E astern )........................
Whitley........... ................
Glendale (Eastern).......................
............. Eight Mile..................................
........Vigor
Indian Springs (Eastern)------------ .............Eight M ile .............................. - ........Blount
‘ Students In the eastern section of the Orchard Elementary attendance area w ill attend Scar
borough Jr. H igh. These in the western and southern sections w i 1 attend Hillsdale.
? With some exceptions (see maps) students in the southeast section of the Owens Elementary
attendance area w ill attend Dunbar Middle School.
* S udents in the eastern section of the Woodcock Elementary attendance area w ill attend Dunbar
Mldc le School.
702a
Since the Court’s order of July 13th fixing attendance
area zones, the Court has detected areas which necessitate
changes being made. In one particular area, namely, Dodge
School, under the order of the 13th, children in Grades 1-6
were assigned to the Dickson School who had previously
been assigned to Dodge School. Both schools are predomi
nantly white and the children involved are predominantly
white. In order for these children to get to Dickson some
would have to travel 9.7 miles and the closest of this group
would have to travel five or six miles. In order to get to
Dodge School the most these children would have to travel
is not more than two to two and one-half miles. Under
the Court’s order of the 13th, Dodge School would be sub
stantially under capacity, and Dickson, slightly under capac
ity. Consequently, the northern boundary of the Dodge
School attendance zone and the southern boundary of the
Dickson School attendance zone are moved northward as
shown on the amended Elementary Attendance Zone map
hereto attached.
In the July 13th area attendance zone map, the northern
boundary of Westlawn was at Emogene Street, which would
necessitate the children in Grades 1-5 to attend Crichton
School. In order to reach Crichton, it would necessitate
crossing dangerous thoroughfares and to travel a much
greater distance than if they were to attend Westlawn.
Consequently, the southern boundary of the Crichton at
tendance zone is moved northward from Emogene to
Dauphin Street.
Since the July 13th order, the School Board has sug
gested certain changes. All of these the Court has seri
District Court Order of July 30, 1970
ously considered and feels that some changes should be
made. While some of these suggested changes, to a slight
extent, disrupt feeder patterns which the Court had estab
lished, nevertheless, in most instances they assign children
closer to their home and make travel less difficult. Conse
quently, the Court alters its area attendance zones filed
with its July 13, 1970, order as shown by maps hereto
attached. These changes in the Court’s opinion have no
racial significance, but bring about a substantial improve
ment over the plan filed on the 13th.
D one at Mobile, Alabama, this the 30th day of July 1970.
Daniel H. T homas
United States District Judge
District Court Order of July 30, 1970
[Maps omitted—-see original record]
704a
Before Bell, A insworth, and Godbold, Circuit Judges.
Bell, Circuit Judge: We consider again the Mobile
School case. This time it comes to ns on a motion for
injunctive relief pending application for certiorari; or in
the alternative, that we vacate the order of the district
court entered on July 13, 1970 in implementation of our
decision of June 8,1970 as to student assignment. We deny
injunctive relief and modify the order of July 13, 1970. In
addition, we require that a biracial advisory committee to
the school board be established forthwith.1
It will be necessary to review the action in the district
court since the issuance of the mandate of this court pur
suant to our decision of June 8, 1970. The appeal which
gave rise to that decision came to us in the posture of the
Mobile school system being operated in an unconstitutional
manner with respect to faculty and staff as well as student
assignment. We reversed with direction. The direction
was to order that the faculty and staff ratio which was
decreed in Singleton v. Jackson, 5 Cir., 1969, 419 F.2d 1211
(en banc consideration of Mobile and 12 additional school
desegregation cases), be effected throughout the system.
We also directed that the majority to minority transfer
provision of Ellis v. The Board of Public Instruction of
Orange County, Florida, 5 Cir., 1970, -— - F .2 d ------ [No.
29,124, slip opinion dated February 17, 1970], be required.
Court of Appeals Opinion of August 4 , 1970
’■ 'We treat this motion as a part of the previous appeal since the
relief sought goes to the efficacy of the mandate of this court. For
such purposes and so that our previous mandate may be amended,
the mandate of the court is recalled.
705a
Court of Appeals Opinion of August 4, 1970
The district court carried out this direction explicitly in an
order dated June 12, 1970.
We also directed that a bi-racial committee be established
to advise with the school board, and that stated duties be
assigned the bi-racial committee. The district court stated
in the order of June 12, 1970 that a supplemental order
would be entered to effectuate this direction. Appellants
state that the bi-racial committee has not been established.
With respect to the student assignment plan as revised
by the district court in its order of July 13,1970, some back
ground is necessary. The case_eame to us with 60 per cent
or 18,623 of the total of 30,884 Negro sfadent^asiigned'~to
19 aI1 Negro or virtually all Negro studentl )o d ^ (A ^ o l^
We studied the several proposed stxidenFassrgnmenFpIanT
in the record on appeal and concluded that the Department
of Justice plan would disestablish the dual school system
if modified in some particulars. Under that plan, as modi
fied p£jaa»AhaJ\iabiLe school system would open in Sep
tember 1970 with no all Negro or virtaailylill Xegro high
WfT'imor high schook jndwvdflrmitylJandS^^
j^hooLs- The nrimber dUKegro students attendinglhesfTaTr
Negro or virtually all Negro student body schools was "ro-
duced from 18,623 to 7,725 or 25 per cent~of the total, and~
these in grammar schooIF~anly. E N e i^ N e g r^ ^
receive an in tegra le tT ^ and high school edu
cation.
In addition to directing that the district court draw a new
zone line so as to desegregate Toulminville High School
(all Negro), we recognized the possibility of the figures on
which we relied being inaccurate. In footnote 4 we said:
“ The defendants warn that the figures used by the
Department of Justice and HEW are inaccurate. This
may be true but the defendants, the only parties in
possession of current and accurate information, have
offered no help. This lack of cooperation and generally
unsatisfactory condition, created by defendants, should
be terminated at once by the district court. Such errors
in information as do exist may he corrected and the
situation adjusted accordingly by the district court.”
It developed on remand that there were inaccuracies.
For example, according to the order of the district court
dated July 13, 1970 (chart attached to order showing racial
composition and capacity of schools, reproduced infra), our
plan made no provision for the 6th grade children in the
Indian Springs school. Our plan, which was based on the
plans of record, was also in error in some instances as to
school capacity, i.e., the schools would not accommodate
the numbers contemplated. In this connection we assigned
2,886 students to Phillips Junior High which has a per
manent capacity of 980. There were other such errors but
not of this magnitude. We knew that some of the schools
had portable class rooms but the record did not disclose
the number.
At any rate, our view was and is that the exigencies of
the situation required that this court promulgate a plan of
student assignment meeting constitutional standards for
immediate implementation rather than to continue the hack
ing and filling which is inherent in the appellate and
remand process, and which had been demonstrated by the
many previous appeals of this matter including two during
Court of Appeals Opinion o f August 4, 1970
707a
the 1969-70 school term. We consider school desegregation
cases as presenting important public questions deserving
of decision and facilitation in the most expeditious manner
within the limits of due process and judicial propriety.
It was never our thought, although appellants seem to
think otherwise, that the district court was stripped of its
discretion to adjust the assignment plan to the end of mak
ing it workable. The district court could not, of course,
make changes which would diminish the plan from the
standpoint of constitutionality nor diminish the extent of
the desegregation required by this court.
Indeed, immediately upon receipt of our decision, the
defendant school board moved for rehearing on the ground
that it was not possible to implement the plan of the deci
sion, pointing to several errors. The motion was denied,
the court being of the opinion that such problems or errors
as might exist in the plan were for adjustment by the dis
trict court.
We turn then to the plan as revised by the district court
to determine if the revisions amount to an improper de
parture from our decision. As stated, the plan of this court
left 8 all Negro or virtually all Negro schools (all elemen-
tary), with 25 percent of the Negro student population
assigned to them. The district court reduced the number
of such schools to 7, with a total of 6,085 students or 19
per cent of the Negro student population assigned to them.
One of these, the Council school, which is considered by us
as virtually all Negro, is to have 40 white students as
signed along with 427 Negro students whereas in our plan
only 4 whites were to be so assigned.
Court of Appeals Opinion o f August 4, 1970
708a
Court of Appeals Opinion of August 4, 1970
The district court proceeded from the standpoint of the
zoning of the whole district. We considered only that por
tion of the system east of Highway 1-65 except where nec
essary to go to the west to aid in reducing the number of
all Negro schools. The problem was that a majority of the
Negro population was concentrated within the city to the
east of 1-65. In revising our plan, the district court final
ized the zoning for the entire system including elementary,
junior high and high schools. The feeder system outlined
in its order of July 13, 1970 is based on the school zone
lines and is nothing more. It is in no way a departure from
the applicable zones.
The differences between the plan contained in our June
8, 1970 opinion and the revised district court plan are re
flected in the following charts which are a part of the order
of the district court of July 13, 1970:
HIGH SCHOOL
TOTAL
U. S. DISTRICT FIFTH CIRCUIT UNDER
COURT PLAN PLAN DISTRICT
COURT
NAME OF SCHOOL GRADE WHITE NEGRO WHITE NEGRO PLAN
Rain 7-12 1143 112 1150 97 1255
Williamson 10-12 824 491 880 471 1315
Murphy 10-12 1300 1027 1643 1761 2327
Toulminville 10-12 247 420 9 740 667
Blount-Carver 9-12 1022 1693 854 1846 2715
Vigor-Bienville 9-12 1000 1425 1134 1211 2425
Shaw 9-12 1312 237 1250 240 1549
Davidson 9-12 2201 80 2302 72 2281
PERMA
NENT
CAPAC
ITY
868
1305
2813
609
2697
2204
1015
1943
C
ourt of A
ppeals O
pinion of A
ugust 4, 1970
MIDDLE SCHOOL
TOTAL
V. s. DISTRICT FIFTH CIRCUIT UNDER PERMA
NAME OF SCHOOL GRADE
COURT PLAN
WHITE NEGRO WHITE
PLAN
NEGRO
DISTRICT
COURT
PLAN
NENT
CAPAC
ITY
B. C. Rain 7-12 1143 112 1150 97 1255 868
Banes 6-9 770 220 1292 977 990 1148
Hall 6-9 336 910 1292 977 1246 1224
Dunbar 6-9 170 770 181 985 947 1064
Central 6-9 387 1164 468 1260 1551 1508
Washington 6-9 748 709 1170 1716 1457 1015
Phillips 6-9 417 695 1170 1716 1112 980
Trinity Gardens 6-8 320 540 380 690 861 868
Prichard 6-8 220 458 240 410 678 615
Mobile County
Training 6-8 333 885 432 859 1218 1232
Clark 6-8 703 846 536 948 1549 1392
Scarborough 6-8 884 11 638 77 895 896
Hillsdale 6-8 451 210 431 217 661 784
Azalea Road 7-8 996 38 1039 38 1034 986
Eight Mile* 1-8 549 110 280* 66* 659 598
*District Court plan grade structure is 1-8 and the Fifth Circuit’s Plan grade struc
ture is 1-6.
C
ourt , of A
ppeals O
pinion of A
ugust 4, 1970
ELEMENTARY SCHOOL
TOTAL
U. S. DISTRICT FIFTH CIRCUIT UNDER PERMA-
COURT PLAN PLAN DISTRICT NENT
COURT CAPAC-
NAME OF SCHOOL GRADE WHITE NEGRO WHITE NEGRO PLAN ITY
South Brookley 1-6 490 71 502 71 561 408
Williams 1-6 561 45 571 43 606 408
Morningside 1-5 672 0 631 0 672 544
Maryvale 1-5 402 257 441 117 659 544
Craighead 1-5 300 506 347 489 806 850
Council 1-5 40 427 4 391 467 544
Arlington 1-5 163 178 160 170 341 476
Caldwell 1-5 87 431 0 350 518 510
Leinkauf 1-5 118 393 273 165 511 442
Owens 1-5 2 1300 2 1414 1302 1428
Old Shell Road 1-5 482 7 332 295 489 476
Woodcock 1-5 255 0 424 167 255 570
Mertz 1-5 415 110 498 104 525 510
Fonville 1-5 37 787 0 1000 824 1088
Westlawn 1-5 384 0 532 0 384 510
C
ourt of A
ppeals O
pinion of A
ugust 4, 1970
ELEM ENTARY SCHOOL (Continued)
U. S. DISTRICT
COURT PLAN
NAME OF SCHOOL GRADE WHITE NEGRO
Crichton 1-5 379 329
Stanton Road 1-5 5 826
Frazier 1-5 0 1120
Grant 1-5 30 850
Glendale 1-5 65 480
Palmer 1-5 235 435
Whitley 1-5 261 314
Robbins*** 1-5 0 775
Hamilton*** 1-5 630 15
Thomas 1-5 180 95
Whistler 1-5 181 205
Chickasaw 1-5 443 0
Eight Mile* 1-8 549 110
Indian Springs** 1-6 445 15
Orchard 1-5 714 161
TOTAL
FIFTH CIRCUIT UNDER PERMA
PLAN DISTRICT NENT o
COURT CAPAC ©
WHITE NEGRO PLAN ITY
438 348 708 714 ©
6 900 831 1020 k
10 1022 1120 1156 a
15 1285 880 1122 ©
C o
434 931 545 884 o
§ #434 931 670 568
216 481 655 578 ©*
$
638 855 775 850 ©
638 855 645 646 k
180 95 275 272
181 205 386 510 C o
473 100 443 612
280 66* 659 598 K l
Co
535 11 460 408 ©>
754 113 875 816
ELEMENTARY SCHOOL (Continued)
TOTAL
U. S. DISTRICT FIFTH CIRCUIT UNDER PERMA-
COURT PLAN PLAN DISTRICT NENT
NAME OF SCHOOL GRADE WHITE NEGRO WHITE NEGRO
COURT
PLAN
CAPAC
ITY
Forest Hill 1-5 624 0 560 0 624 578
Will 1-5 534 299 657 175 833 816
Austin 1-5 488 10 396 22 498 408
Dickson 1-6 726 5 835 193 731 782
Fonde 1-6 773 13 679 11 786 850
Shepard 1-6 415 29 409 29 444 544
Dodge 1-6 503 50 675 65 553 816
Corgas C L O S E D
* District Court plan grade structure is 1-8 and the Fifth Circuit plan is grade struc
ture 1-6.
** Fifth Circuit plan made no provision for 6th grade at Indian Springs.
***These schools will be integrated by pairing, (discussed hereinafter)
C
ourt of A
ppeals O
pinion of A
ugust 4, 1970
714 a
We approve the plan as revised by the district court with
one exception. The plan of this court required the pairing
of Palmer and Glendale, Robbins and Hamilton, and Eanes
and Hall. The latter two are junior high schools. The dis
trict court plan eliminates this pairing requirement. This
is proper except as to Robbins and Hamilton. These schools
are contiguous; Robbins continues with an all Negro stu
dent body while Hamilton is predominantly white. The
district court is directed to amend its plan so as to pair
these two schools.jJThis will reduce the number of all Negro
student body schools to 6 with a total of 5.310 or 17 per
cent of the totaTNegro student population assigned to such
schoolsjjThus it is that with this modification"of the"district
court plan, the revised plan achieves an improved result.
We are left with the feeling that this case would not
again be here if the revisions had been considered by a
bi-raeial advisory committee. We directed in our decision
of June 8, 1970 that the promulgation and maintenance of
zone lines be a matter, among others, for consideration by
the bi-racial committee.
The motion of appellants for an order that the district
court be required forthwith to carry out our direction to
establish a bi-racial committee is granted.
The motion of appellants to vacate the order of July 13,
1970 of the district court is denied subject however to it
being amended as stated herein by pairing Robbins and
Hamilton.
The motion to implement the student assignment plan
set out in our decision of June 8, 1970 is denied in light
of the fact that we have now approved an improved plan
Court, of Appeals Opinion of August 4, 1970
715a
which the district court is directed to effectuate upon re
ceipt of the mandate of this court.
The motion to retain jurisdiction in this court with the
district court to be used as a special master, cf. Alexander
v. Holmes County, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d
19; United States v. Hinds County, 5 Cir., 1969, 417 F.2d
852, is denied. Such a procedure seems unnecessary in view
of the expedited appellate procedures now applicable in
this circuit. See Singleton v. Jackson, supra, 419 F.2d at
1222, and the procedure outlined in footnote 2 to our deci
sion in this matter of June 8, 1970.
This opinion and order amends and supplements our
decision and order of June 8, 1970, and together, they shall
be considered the final order on this appeal for mandate
and certiorari purposes.
Meanwhile, the district court is to proceed to carry out
the mandate of this court to the end of converting the dual
school system of Mobile County into a unitary system as
directed notwithstanding any application for certiorari.
Court of Appeals Opinion of August 4, 1970
716a
Projected Enrollment Data for Elementary, Middle and
High Schools Broken Down as to U. S. District Court
Plan Under Order of 7 /1 3 /7 0 ; Fifth Circuit Plan;
and U. S. District Court Plan Under Order of 7 /3 0 /7 0 ,
Filed August 20, 1970
(See opposite) SKr1
Projected Enrollment Bata for Elementary, Middle and
High Schools Broken Down as to V. S. District Court
Plan Under Order of 7/13/70; Fifth Circuit Plan;
and U. S. District Court Plan Under Order of
7/30/70, Filed August 20, 1970
ELEMENTARY SCHOOLS
717a
7 /1 3 /7 0 |7/30/70
U.'S. DISTRICT | FIFTH CIRCUIT j U .S. DIST.
COURT PLAN PLAN •COURT PLAN
I
NAME OF SCHOOL GRADE WHITE NEGRO !j WHITE NEGRO WHITE NEGRO
South Brookley 1 -6 490 71 j 502 71
Williams 1 -6 561 45 j 571 43
Morningside 1-5 672 0 ! 631 0
Maryvale 1-5 402 257 441 117
Craighead 1-5 300 506 i 347 - 489 290 521
Council 1-5 40 427 ] 4 391 ‘ 2 560
Arlington 1-5 163 178 i 160 170 CLOSi:d
Caldwell 1-5 87 431 1 0 350 15 455
Leinkauf 1-5 118 393 273 165 210 170
Owens 1-5 2 1300 2 1414 1 1242
Old Shell Road 1-5 482 7 1 332 295
Woodcock 1-5 255 0 ! 424 167 200 134
Mertz 1-5 415 . 110 ' 498 104
Fonville 1-5 37 787 ; 0 1000 23 920
Westlawn 1-5 384 0 532 0 486 0
Crichton 1-5 379 329 438' 348 390 220
Stanton Road 1-5 5 826 6 900 4 916
Frazier 1-5 0 1120 10 1022
Grant 1-5 30 850 ' 15 1285 11 955
Glendale 1-5 65 480 434 931 208 554
Palmer 1-5 235 435 434 931 56 546
Whitley 1-5 261 314 216 481 270 352
Robbins 1-5 0 775 638 855
Hamilton 1-5 630 15 638 855 578 17
Thomas 1-5 180 95 180 95
Whistler 1-5 i 181 205 181 205 169 20C
Chickasaw 1-5 i 443 0 473 100
Bight Mile* 1 -8 | 549 110 230 66
Indian Springs" 1 -6 j 445 15 535 11
Orchard 1-5 • 1 714 161 754 113 756 117
Forest Hill 1-5 | 624 0 560 0 519 0
Hall 1-5 : 534 299 657 175 647 175
Austin 1-5 j 488 10 396 22 397 20
Dickson 1 -6 1 726 5 835 193 618 193
Fonde 1 -6 ; 773 13 679 11 760 12
Shepard 1 -6 ; 415 29 409 29 415 29
Dodge 1 -6 1 503 50 675 ! 65 666 66
Gorgas C L 0 £j E D
♦ D is tr ic t Court p lan grade s tr u c tu r e i s 1 -8 and F i f t h C ir c u it p lan i s
grade s tr u c tu r e 1 -6 . " ' F s
* * F if t h C ir c u it p la n made no p r o v is io n f o r 6th grade a t In d ian S p rin g s
Projected Enrollment Bata for Elementary, Middle and
High- Schools Broken Down as to U. S. District Court
Plan Under Order of 7/13/70; Fifth Circuit Plan;
and U. S. District Court. Plan Under Order of
7/30/70, Filed August 20, 1970
718 a
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7 /1 3 /7 0 7 /3 0 /7 0
U .S . D i s t r i c t F i f t h C ir c u it U. S. D i s t r i c t
C ourt Plan . Plan Court Plan
NAME OF SCHOOL
■l
GRADE WHITE NEGRO WHITE NEGRO WHITE NEGRO
IB. C. Rain 7-12 1143 112 , 1150 97 !1
jEanes 6 -9 770 220 : 1292 977 ;
2 Ha 11
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6 -9 336 910 1292 977 440 490
1Dunbar 6 -9 170 770 j ; i 8 i 985 133
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922 |
i•^Central 6 -9 387 1164 j 468 1260 241 1389
^Washington 6 -9 748 7 0 9 ! ; 1170 1716
(P h il l ip s 6 -9 417 . 695 ! j 1170 1716
^ T rin ity Gardens 6 -8 320 540 ji
1
! 3801 690 ■ 125 747
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jP rich ard 6 -8 220 458 ; j 240 410
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]Mob i 1 e County [
■(Training 6 -8 333 885 : : 432 859 | f
jc la rk 6 -8 703 846 : 536 948 : 746 855 :
•Scarborough 6 -8 884 11 ; ; 638 77 1
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H il ls d a le 6 -8 451 2 1 0 ;■ 431 217 ,
/ i z a le a Road 7 -8 996 38 i : 1039 38 i
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1 -8 549
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p la n grade s tr u c tu r e i s 1 -6 .
:he F i f t h C i r c u i t ’ s
1
Projected Enrollment Data for Elementary, Middle and
High Schools Broken Down as to U. S. District Court
Plan Under Order of 7/13/70; Fifth Circuit Plan;
and U. S. District Court Plan Under Order of
7/30/70, Filed August 20, 1970
HIGH SCHOOLS
719a
7 /1 3 /7 0 j 7/30/70
;U.S. DISTRICT ' FIFTH CIRCUIT U.S. DISTRICT
j COURT PLAN PLAN .COURT .PLAN
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; name o f s c h o o l GRADE j | WHITE NEGRO • WHITE! NEGRO
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7-12 j j 1143 112
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1150 97
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1■Williamson 1 0 -1 2 ' j 824 491 : 880 1315
5
iurphy 1 0-12
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; 1300 1027 1643 1761
Toulminville 1 0 -12 ! 247 420 j 9 740
||lount 9-12 ; : 1022 1693 : 854 1846 784 2050
Vigor 9-12 ! 1000 1425 1134 1211 j 12 38 1 1095
| j
Shaw > 9-12 j : 1312 237 1250 240 I
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Davidson : 9-12 j
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720a
Before
B ell , A in sw o rth , and G o d b o l d ,
Circuit Judges.
Court of Appeals Opinion of August 28, 1970
By the Court:
This court mandated a plan of pupil assignment for the
Mobile school district in its order of June 8, 1970. This
plan was modified by the district court in its order dated
July 13, 1970. The district court further modified the plan
in an order dated July 30, 1970. On August 4, 1970, we
substantially affirmed the modifications made in the assign
ment plan by the July 13, 1970 order of the district court.
We did not have the changes embraced in the July 30, 1970
order before us at the time. Plaintiffs-appellants have now
appealed from the July 30, 1970 order.
The July 30, 1970 order makes changes in the attendance
zones of 32 separate schools. Some of the changes had no
effect from the standpoint of desegregation. Others dimin
ished the degree of desegregation accomplished in ffimpnor'
orders of this court and the district court. Most of the
changes can be affirmed on the basis of efficient school ad
ministration and because there is no claim of a racially
discriminatory purpose. It is clear that some of the other
changes cannot be affirmed and that time is of the essence
in resolving the controversy which has arisen over the July
30, 1970 changes in light of the short time before school
is to commence in Mobile.
The court has considered the motion for summary re
versal, the memoranda in support of and opposition there-
721a
to, and in addition, a pre-hearing conference with counsel
has been conducted by Judge Bell for the court pursuant
to Rule 33, FRAP. After due consideration, the appeal is
terminated on the following basis:
(1) The middle school and high school zone lines shall
be the same as those set forth in the July 13, 1970 order
of the district court.
(2) The elementary school zones shall be modified as
follows:
(a) Palmer and Glendale schools shall be paired.
(b) Council and Leinkauf schools shall be paired.
(c) The area of the Whitley zone as described in
the July 30, 1970 order of the district court that lies
west of Wilson Avenue shall become a part of the
Chicasaw zone.
(d) The area in the Westlawn zone as described in
the July 30, 1970 order of the district court that lies
north of Dauphin Street shall become part of the Old
Shell Road school zone.
(3) Counsel for the school board agrees with counsel for
plaintiffs-appellants that they will confer and make facts
available regarding desegregation of the school system
staffs.
(4) Students who refuse to attend the schools to which
they are assigned by the school board under the order of
the district court shall not be permitted to participate in
Court of Appeals Opinion of August 28,1970
722a
any school activities, including the taking of examinations
and shall not receive grades or credit.
(5) Henceforth, any time the school board desires to
have changes in zone lines made, it shall give reasonable
notice to the parties.
The order of the district court of July 30, 1970 is in all
other respects A ffirmed.
It I s So Ordered.
Court of Appeals Opinion of August 28,1970
723a
On the 1st day of September 1970, the Board of School
Commissioners of Mobile County, presented to the Court
six (6) petitions seeking modification of the mandates of
the Fifth Circuit Court of Appeals and of this Court in
the following areas:
(1) Petition seeking to continue the operation of the
sixth grade at the Westlawn School.
(2) Petition seeking to continue the operation of the
sixth grade at the Morningside School.
(3) Petition requesting that the boundary line between
the Mertz zone and the Morningside zone be redrawn.
(4) Petition seeking to assign students in grades 7-9
who live in the Mertz Elementary zone to Eanes Junior
High School instead of Washington Junior High School.
(5) Petition seeking to continue the operation of the
sixth grade at the Mertz School.
(6) Petition seeking re-establishment of the Arlington
Elementary School and zone.
The Court studied and considered these petitions and
also had them reviewed by the Bi-Racial Committee. Now
therefore, after study and after having received the report
of the Bi-Racial Committee, the Court is of the opinion
that said petitions should be and are hereby Denied.
Done at Mobile, Alabama, this the 4th day of September
1970.
District Court Order of September 4, 1970
D a n i e l H. T h o m a s
United States District Judge
724a
Pursuant to the Opinions of the Fifth Circuit Court of
Appeals dated August 4, 1970, and August 28, 1970, the
School Board is directed, commencing with the school term
1970-71, to operate the middle and high schools pursuant
to the attendance zones set forth in the decree of this Court
of July 13, 1970, and shall operate the elementary schools
pursuant to zones established by this Court in its Order
of July 30, 1970, with the following modifications:
(a) Palmer and Glendale Schools shall be paired.
(b) Council and Leinkauf Schools shall be paired.
(c) Robbins and Hamilton Schools shall be paired.
(d) The area of the Whitley zone as described in the
July 30, 1970, Order of this Court, which lies West of
Wilson Avenue shall become a part of the Chickasaw zone.
(e) The area in the Westlawn Zone as described in the
July 30, 1970, Order of this Court that lies North-of
Dauphin Street shall become part of the Old Shell Road
School zone.
Students who refuse to attend the schools to which they
are assigned by the School Board under this order shall
not be permitted to participate in any school activities,
including taking of examinations and shall not receive
grades or credit and shall not be enrolled in any school
in the system except the one serving the zone in which the
student legally resides or to which the student has been
District Court Order of September 4, 1970
725a
officially transferred, and shall not be furnished textbooks
or supplies by the School Board.
D one at Mobile, Alabama, this the 4th day of September
1970.
District Court Order of September 4, 1970
Daniel H. T homas
United States District Judge
726a
This Court having, on September 4,1970, issued an Order
in this cause concerning, among other things, the respon
sibility of the defendant Board of School Commissioners
with regard to students attending schools other than the
one serving appropriate grades in the zone in which the
students legally reside or to which the students have been
officially transferred, and having considered the Motion of
the United States for injunctive relief and clarification of
this Court’s September 4 Order.
H ereby orders that the defendant Board of School Com
missioners, its members, successors in office, agents, offi
cers, employees, and all persons in active concert or par
ticipation with them be, and hereby are enjoined from
implementing or enforcing any policy which will frustrate
the previous Orders of this Court, and are enjoined from
failing to delete from their policies such language as tends
to frustrate the previous Orders of this Court.
I t I s F urther Ordered, as a clarification of the previous
Order of this Court on September 4, 1970, that the defen
dant Board of School Commissioners, its members, suc
cessors in office, agents, officers, employees, and all persons
in active concert or participation with them be, and hereby
are enjoined from offering or affording any privileges to
students attending any public school in Mobile County
other than the one serving the appropriate grades in the
zone in which the student legally resides or to which the
student has been officially transferred, which may cause
these students to remain away from their appropriate
District Court Order of September 14, 1970
727a
school or which would encourage them to attend any other
public school in Mobile County other than the school serv
ing the appropriate grades in the zone in which the student
legally resides or to which the student has been officially
transferred; and further are specifically enjoined from pro
viding or allowing to be provided space, facilities or equip
ment in the Mobile County public schools for the instruc
tion of students at any school other than the school serving
the appropriate grades in the zone in which the student
legally resides or to which the student has been officially
transferred.
I t I s F urther Ordered that the defendant Board of
School Commissioners shall immediately instruct all of its
agents, officers, and employees of the contents of this Order
and shall immediately deliver copies of this Order to the
principal at each school in the Mobile County public school
system, at the same time notifying the principals of the
fact that as agents and employees of the defendant Board
of School Commissioners they are bound by the terms of
this Order.
I t Is F urther Ordered that the defendant Board of
School Commissioners report to this Court by 4 :00 P.M. on
Thursday, September 17, 1970, that the terms of this Order
have been complied with.
D one at Mobile, Alabama, this the 14th day o f September,
1970.
District Court Order of September 14, 1970
D a n i e l H. T h o m a s
United States District Judge
728a
Pursuant to the opinion and mandate entered by the
Fifth Circuit Court of Appeals on March 12, 1968, re
versing this court’s previous order and remanding the
same to this court, the Court enters the following decree
and judgment:
It is Ordered, A djudged and Decreed that the appellees,
their agents, officers, employees and successors and all
those in active concert and participation with them be
and they are permanently enjoined from discriminating
on the basis of race or color in the operation of the Mobile
school system. As set out more particularly in the body
of the decree, they shall take affirmative action to dises
tablish all school segregation and to eliminate the effects
of the dual school system. As stated in the opinion of the
Court of Appeals, the primary concern is that attendance-
zone lines be drawn on a nonracial basis. To this end the
board will conduct a survey as more specifically described
in Section IY herein.
District Court Decree of May 13, 1968
I .
Student A ssignment
A. The appellees shall, to the extent feasible, make
assignments of students and draw attendance area lines
in such a way as to eliminate the effects of past racial
decisions in assigning students, drawing attendance lines,
and constructing school buildings.
B. Appellees shall arrange for the conspicuous publica
tion of an announcement, giving detailed information as
729a
to the name and location of schools to which students have
been assigned for the coming school year pursuant to the
desegregation plan, in the newspapers most generally cir
culated in the community between March 1 and March 31
of each year. Publication as a legal notice is not sufficient.
Whenever any revision of attendance zones is proposed,
appellees shall similarly arrange for the conspicuous pub
lication of an announcement at least 30 days before any
change is to become effective, naming each to be affected
and describing the proposed new zones. Copies of all ma
terial published hereunder must also be given at that time
to all television and radio stations serving the community.
Copies of this notice and decree shall be posted in each
school in the school system and at the office of the Super
intendent of Education.
C. A street or road map showing the boundaries of,
and the school serving, each attendance zone and a chart
showing feeder patterns must be freely available for public
inspection at the office of the Superintendent. Each school
in the system must have freely available for public inspec
tion a map showing the boundaries of its attendance area,
and a chart showing its feeder pattern. A copy of this map
and chart shall be given to the Parent Teachers Association
at each school.
D. After the attendance areas are redrawn to achieve
the desegregation of the system as provided in section IV
of this decree, all students will be required to attend the
school serving their zone, absent some compelling nonracial
reason.
District Court Decree of May 13, 1968
730a
Construction
To the extent consistent with the proper operation of
the school system as a whole, the school board will, in
locating and designing new schools, in expanding existing
facilities, and in consolidating schools, do so with the object
of eradicating past discrimination and of effecting desegre
gation. The school board will not fail to consolidate schools
because desegregation would result.
Until such time as the Court approves a plan based on
the survey conducted pursuant to section IV herein, con
struction shall be suspended for all planned building proj
ects at which actual construction has not been commenced.
Leave to proceed with particular construction projects
may be obtained prior to the completion of the survey
upon a showing by the appellees to the Court, that particu
lar building projects will not have the effect of perpetuating
racial segregation.
District Court Decree of May 13, 1968
II.
III.
F aculty and Staff A ssignments
A. Faculty Employment. Race or color shall not be
a factor in the hiring, assignment, reassignment, promo
tion, demotion, or dismissal of teachers and other profes
sional staff members, including student teachers, except
that race may be taken into account for the purpose of
counteracting or correcting the effect of the segregated
assignment of faculty and staff in the dual system. Teach-
731a
ers, principals, and staff members shall be assigned to
schools so that the faculty and staff is not composed
exclusively of members of one race. Wherever possible,
teachers shall be assigned so that more than one teacher
of the minority race (white or Negro) shall be on the de
segregated faculty. The Board will continue positive and
affirmative steps to accomplish the desegregation of its
school faculties and to achieve substantial desegregation
of faculties in its schools for the 1968-69 school year not
withstanding teacher contracts for 1968-69 may have al
ready been signed and approved. The tenure of teachers
in the system shall not be used as an excuse for failure to
comply with this provision. The appellees shall establish
as an objective that the pattern of teacher assignment to
any particular school not be identifiable as tailored for a
heavy concentration of either Negro or white pupils in
school.
B. Dismissals. Teachers and other professional staff
members may not be diseriminatorily assigned, dismissed,
demoted, or passed over for retention, promotion, or re-
hiring, on the ground of race or color. In any instance
where one or more teachers or other professional staff
members are to be displaced as a result of desegregation,
no staff vacancy in the school system shall be filled through
recruitment from outside the system unless no such dis
placed staff member is qualified to fill the vacancy. If, as
a result of desegregation, there is to be a reduction in
the total professional staff of the school system, the quali
fications of all staff members in the system shall be evalu
ated in selecting the staff member to be released without
consideration of race or color. A report containing any
District Court Decree of May 13, 1968
732a
such proposed dismissals, and the reasons therefor, shall
be filed with the clerk of the Court, serving copies upon
opposing counsel, within five (5) days after such dismissal,
demotion, etc., as proposed.
C. Past Assignments. The appellees shall take steps
to assign and reassign teachers and other professional staff
members to eliminate the effects of the dual school system.
IY.
Survey
The appellees shall conduct a survey of their school
system and report to the Court, by June 1, 1968, unless
otherwise specified hereinbelow, the results of such survey,
and shall specifically report as follows:
A. The appellees shall prepare a map for each school
showing the location, by race and grade, of each student
in the school system during the 1967-68 school year. Ap
pellees will be permitted to consolidate the survey infor
mation on two maps—one to cover the urban area and the
other the rural area—so long as the information is reported
on the consolidated maps in a clear and comprehensible
manner. However, the survey must designate students
by grade.
B. Recommendations for redrawing attendance zone
lines to achieve desegregation of the schools.
C. Recommendations for the reorganization of the
“ feeder” system consistent with the objective of achieving
desegregation, to be submitted by August 1, 1968.
District Court Decree of May 13, 1968
733a
D. A description of each school in the school system to
include:
1. The size of each site and whether it is suitable
for permanent use, suitable for temporary use, or
should be abandoned;
2. The number of buildings on each site and as to
each, whether it is suitable for permanent use, suitable
for temporary use or should be abandoned;
3. The standards and criteria used to determine
whether buildings and sites are suitable for permanent
use, suitable for temporary use, or should be aban
doned ;
4. The number of regular, special and portable class
rooms at each school building and the number of square
feet in each such classroom;
5. Recommendations for the future use (including
grades to be accommodated) of each school building
and site for the next ten years, including the need for
additional classrooms and the information upon which
such recommendations are based, to be submitted by
August 1, 1968.
E. A property inventory to include:
1. A list of all sites currently owned;
2. A list of all sites which the appellees have present
plans to acquire and the size and intended use of such
sites;
3. The basis for selection of all sites listed under
numbers 1 and 2.
District Court Decree of May 13, 1968
734a
F. The status of construction of each school building
currently under construction and the status of planning
for the use of sites currently owned.
Gl. A forecast of enrollment at each school for the next
ten years and the information upon which such forecast
shall be based, to be submitted by December 1, 1968.
V.
Services, F acilities, A ctivities and Programs
No student shall be segregated or discriminated against
on account of race or color in any service, facility, activity,
or program (including transportation, athletics, or other
extra-curricular activity) that may be conducted or spon
sored by the school in which he is enrolled. A student
attending school for the first time on a desegregated basis
may not be subject to any disqualification or waiting period
for participation in activities and programs, including ath
letics, which might otherwise apply because he is a transfer
or newly assigned student except that such transferees
shall be subject to longstanding, nonracially based rules of
city, county or state athletic associations dealing with the
eligibility of transfer students for athletic contests. All
school use or school-sponsored use of athletic fields, meet
ing rooms, and all other school related services, facilities,
activities, and programs such as commencement exercises
and parent-teacher meetings which are open to persons
other than enrolled students, shall be open to all persons
without regard to race or color. All special educational
District Court Decree of May 13, 1968
735a
programs conducted by the appellees shall be conducted
without regard to race or color. Athletic meets and com
petitions and other activities in which several schools par
ticipate shall be arranged so that formerly white and for
merly Negro schools participate together.
VI.
R epobts
A. On June 10, of each year beginning in 1968, appellees
will submit a report to the Court, and serve copies on
opposing counsel, showing the number of persons, by school,
grade (where appropriate), and race they anticipate will
be employed for the fall semester. Within one week after
the day classes begin for the fall semester in 1968 and each
succeeding year appellees will submit a report to the Court,
and serve a copy on opposing counsel, showing the number
of teachers actually working at each school by grade (where
appropriate) and race. In 1968, a date later than June 10
may be appropriate because of the survey.
B. On the same dates set forth in VI (A) above, reports
will be submitted to the Court, and a copy served on op
posing counsel, showing the number of students by school,
grade, and race, expected and actually enrolled at the
schools in Mobile County.
C. Within one week after the opening of each school
year, appellees shall submit a report to the Court and
serve copies on opposing counsel, showing the number of
faculty vacancies, by school, that have occurred or been
District Court Decree of May 13, 1968
736a
filled by the appellees since the order of this Court or
the latest report submitted pursuant to this sub-paragraph.
This report shall state the race of the teacher employed to
fill each such vacancy and indicate whether such teacher
is newly employed or was transferred from within the
system. The tabulation of the number of transfers within
the system shall indicate the schools from which and to
which the transfers were made. The report shall also set
forth the number of faculty members of each race assigned
to each school for the current year.
Done at Mobile, Alabama this 13th day of May, 1968.
(Signed) Daniel H. T homas
Chief Judge.
District Court Decree of May 13, 1968
737a
Comes now the Board of School Commissioners of Mo
bile County, et al., and, in accordance with the provisions
of the decree and mandate of the Fifth Circuit Court of
Appeals filed in this cause on June 3, 1969/, files objections
and suggested amendments to the proposed plan of deseg
regation heretofore filed in this cause by the Office of Edu
cation of the Department of Health, Education and
Welfare.
School Board’s Response to HEW’s July 1969 Plan,
Filed July 21, 1969
Suggested A mendments
The defendants, after careful study, find that the pro
posed plan submitted to the Court by H.E.W. is, in its
entirety, and when broken down into segments, in each
major segment thereof, educationally unsound, adminis
tratively impractical and unfeasible and carries within its
provisions and potential effect the basis for incalculable
harm and probable destruction of the Mobile County Pub
lic School System. As suggested amendments to this plan,
therefore, the defendants can only recommend that this
plan he deleted and disregarded entirely and that in its
place the District Court consider as a plan for the opera
tion, and desegregation, of the Mobile County Public School
System commencing with the school year 1969-70, either
one of the two alternative methods of student assignment
set out hereafter:
(1) As a first alternative it is recommended that the
District Court enter an order requiring the operation
of the school system for the 1969-70 school year on the
same basis as the 1968-69 school year;
738a
(2) As a second alternative, the defendants recom
mend that the District Court enter an order requiring
the operation of the school system for the 1969-70
school year on the basis of a system of complete free
choice of schools by all students, consistent with the
basic principles of freedom of choice as previously
set out by the Fifth Circuit Court of Appeals in
United States v. Jefferson County Board of Education,
and any later refinements of the freedom of choice
method of student assignment which the Court may
wish to apply.
With reference to the matter of the employment and as
signment of faculty, staff, and other personnel, it is the
position of the defendants that these matters were not at
issue in the most recent previous hearing in the District
Court, and were therefore not before the Court of Appeals
in the appeal out of which the June 3, 1969 mandate and
judgment of the Court of Appeals arose, and therefore
did not require nor permit of consideration and recom
mendation by H.E.W. It is the defendants’ recommenda
tion, therefore, that this portion of the H.E.W. report sub
mitted to the District Court be deleted and disregarded
entirely.
School Board’s Response to HEW’s July 1969 Plan,
Filed July 21, 1969
Objections
The plan submitted to the District Court by H.E.W. is
defective in that:
(1) It is incapable of effective and proper adminis
tration;
739a
(2) It is educationally unsound;
(3) It is not in the best interest of the school system;
(4) It is not consistent with the best interest of a ma
jority of the citizens of the county, negro or white;
(5) It is not consistent with the best interest of a ma
jority of the students in the system, negro or white;
(6) If implemented, it will do substantial harm to the
school system;
(7) If implemented, it will likely result in destruction,
in whole or in part, of public education in the county;
(8) To comply fully with provisions of the plan would
require an initial increased expenditure of capital out
lay funds in an amount of approximately $13,000,-
000.00; and this money is not available;
(9) It requires, further, an increased expenditure of
approximately $600,000.00 in operating expenses for
the 1969-70 school year; and this money also is not
available.
(10) It recommends the closing and abandonment of
a number of schools in the metropolitan portion of the
system; this is undesirable because it results in :
(a) The loss of use of adequate school facilities
(b) Cross-town bussing of large groups of students
(c) overcrowding of other school facilities
(d) destruction of neighborhood schools
School Board’s Response to HEW’s July 1969 Plan,
Filed July 21, 1969
740a
(e) forcing young children to attend schools far re
moved from their own neighborhoods
(11) It recommends the crosstown busing of large
groups of students; this is undesirable because it re
sults in:
(a) drastically increased expense
(b) overcrowding of some school facilities
(c) destructions of neighborhood schools
(d) forcing young children to attend schools far re
moved from their own neighborhoods
(e) destruction of the ability and desire of students
and parents to develop needed support for neighbor
hood schools
(12) Destroys articulation;
(13) Requires the closing of permanent facilities in
favor of the housing of students in temporary portable
facilities;
(14) Departs from any concept of organized grade
structure resulting in haphazard grade structures and
in some instances One Grade schools;
(15) Creates so-called school complexes, which are in
fact not complexes and therefore impose insurmount
able administrative problems;
(16) Results in a total breakdown of the neighborhood
school concept in disregard of natural barriers and
School Board’s Response to EEW ’s July 1969 Plan,
Filed July 21, 1969
741a
hazards, safety factors, convenience and other tradi
tional educational concepts;
(17) Requires the use of various school plants in a
manner for which they were not planned nor con
structed ;
(18) Creates completely absurd and gerrymandered
school districts with reference to size, safety factors,
accessibility, etc.;
(19) Requires a total and complete reorganization of
the school system immediately in advance of the begin
ning of the school year;
(20) Destroys the possibility of conducting many
extracurricular activities;
(21) Fails to make any provision for the needs of spe
cial education students;
(22) Makes the implementation of an adequate cur
riculum impossible in many schools ;
(23) Results in attendance area lines drawn on a racial
basis rather than a non-racial basis;
(24) With reference to student assignment the pro
posed plan is based entirely on statistics which have
been found to be inaccurate in many instances;
(25) The plan includes recommendations with refer
ence to faculty, and this was not a proper function of
H.E.W.
(26) Includes no provision for transfer for good cause.
School Board’s Response to IIEW’s July 1969 Plan,
Filed July 21, 1969
742a
(27) Recommends procedures and actions in direct
contravention of the expressed will of the Congress of
the United States.
The plan submitted by H.E.W. is defective in a number
of other particulars which, for lack of time to prepare ap
propriate objections, are not stated here, but will be sub
mitted to the Court in due course.
School Board’s Response to HEW’s July 1969 Plan,
Filed July 21, 1969
743a
F or the A ssistance and Information of the Court
To the Honorable Daniel II. Thomas, Chief .Judge of Said
Court:
Comes now the Defendant, The Board of School Com
missioners, et al., and for the information and assistance
of the Court, files the affidavit of James A. McPherson
attached hereto, which contains information relevant to
the matters now under consideration by the Court in con
nection with this cause.
School Board Affidavit, Filed July 29, 1969
A ffidavit
State of A labama )
County of Mobile )
Personally appeared before me the undersigned author
ity, in and for said county, in said state, James A.
McP herson, who being by me first duly sworn, did depose
and say:
My name is James A. McPherson. My address is 103
Baratara Drive, Chickasaw, Alabama. I am 43 years old.
I am Associate Superintendent of the Mobile County Ala
bama Public School System. As such I am the number
two man in line of authority among the professional ad
ministrative personnel of the system, ranking behind only
the Superintendent. I am thoroughly and intimately famil
iar with the school system and its administration and
operation, including the desegregation process and court
744a
litigation in connection therewith. I make this affidavit in
connection with this litigation, and for the purpose of sub
mission to the United States District Court, Southern Dis
trict of Alabama. I have testified in that Court on a
number of occasions in the past in connection with this
litigation. My personal history, educational background,
experience, and professional background are before the
Court as testimony in the record in previous hearings in
this case, consequently I will not recount them here.
Following a mandate and order of the United States
Fifth Circuit Court of Appeals entered in the pending
Mobile County School litigation on June 3, 1969, I was
assigned by the Superintendent the primary responsibility
of working with officials of the Office of Education of the
United States Department of Health, Education and Wel
fare (which I will hereinafter refer to as H.E.W.) in the
efforts of the Board of School Commissioners of Mobile
County and the Mobile County Public School System to
comply fully with this mandate and order. We were told
by the School Board’s Attorney that the District Court
on June 4, 1969 contacted H.E.W., and that we should
expect to hear from them at any time. In conference with
the School Board and the Superintendent, and various
other members of the staff, I was instructed to receive the
agents or employees of H.E.W. courteously, to cooperate
with them fully, to make available to them any informa
tion they should request, and to make every effort to arrive
at some mutually satisfactory agreement with them with
reference to a plan of desegregation to be recommended
to the District Court, in compliance with the provisions of
School Board Affidavit, Filed July 29, 1969
745a
the Court Order. At this point I wish to say that I con
scientiously endeavored to comply with these instructions
to the fullest extent.
Our first contact from H.E.W., notwithstanding the fact
that they had been contacted by the District Court on June
4, was June 11, 1969 when I received a telephone call from
Dr. Joe Hall who advised me that he was Director of the
U.S. Office of Education, Mobile County Desegregation
Study, and that he had been assigned to develop a new
desegregation plan for the Mobile School System.
Following initial telephone contact from Dr. Hall, he
came to my office on the afternoon of June 11, and we con
ferred at some length. We discussed the most recent Court
Order and I spent considerable time explaining the details
to him since he indicated that he had not had an oppor
tunity to study it carefully. I then gave him an historical
background report on the course of litigation up through
the most recent order. I reviewed the elementary and
junior high attendance area maps which were in use last
year (the 1968-69 school year) with him, and he stated
that they looked pretty good to him as presently drawn.
We then reviewed an outline of a report that he was
expected to develop and submit to Mr. J. J. Jordan of the
Atlanta Office of H.E.W. He discussed with me the types
of information he would request and we agreed that he
would provide me, by memo, all requests for information.
I noted immediately that this outline called for a report
on staff and faculty desegregation and I informed Dr. Hall
that the Court Order and the litigation out of which it
arose did not concern itself with staff and faculty de
segregation in any manner. He expressed surprise to find
School Board Affidavit, Filed July 29, 1969
746a
that an item had been included in the outline which was
not included in the Court Order.
During the course of the conference, Dr. Hall indicated
that he would be agreeable to include in the plan a transfer
policy providing for transfers for any good cause, non-
racial in character. He also stated that he believed it im
possible in a large metropolitan area such as Mobile County
to develop geographic attendance zones without operating
some all black and some all white schools. He stated that
he was opposed to the busing of students for the purpose
of achieving desegregation, and that he believed the best
solution or best method of achieving desegregation was to
arrange schools where there would be virtually all predomi
nantly white schools with negro students in the minority.
During the course of the conference, Dr. Hall stated to
me that it would be impossible for H.E.W. to come in and
do a proper job of evaluating the school system and de
veloping a desegregation plan within the time allowed by
the Court Decree. He also expressed to me his further
opinion that not only did the judgment of the Court not
allow sufficient time for them to properly develop a new
plan, but that it provided insufficient time for the staff of
the school system to prepare for implementation and ad
ministration of any new plan that might be approved, and
that the Court should not have entered an Order requiring
such broad and sweeping changes in the school system’s
desegregation plan so near the commencement of a new
school year.
Following the June 11 conference there was no further
direct contact with H.E.W. until June 20; however, by
School Board Affidavit, Filed July 29, 1969
747a
correspondence with Dr. Hall, a working relationship was
finally established by approximately June 16.
On June 20, 1969, there was a further conference with
Dr. Hall attended by myself and several members of our
staff. The purpose of the meeting was to present to Dr.
Hall information that had been developed by the staff con
cerning desegregation of the rural portion of the system.
I advised Dr. Hall that it was still the firm opinion of the
staff and the school board that some sort of freedom of
choice plan or option plan would be by far the best method
under which schools in the rural portion of the system
could be operated successfully and at the same time, de
segregated. At the same time however, I went further and
discussed with Dr. Hall details of the work that had been
done by the staff towards developing a plan based upon
geographic attendance areas. This plan indicated exten
sive integration and would have resulted in every school
in the rural portion of the system being a bi-racial school,
except one. During the presentation Dr. Hall raised per
tinent questions and responses were made by various mem
bers of the staff. Upon conclusion of the presentation Dr.
Hall seemed generally to be in agreement with what had
been presented. Ultimately Dr. Hall stated that he would
assume responsibility to speak for the Office of Education
and the Department of H.E.W. in accepting all of the plan
except one small portion dealing with the one non bi-racial
school, and that he would have to check with his bosses on
that question.
Dr. Hall then brought up the problem of including in his
report a section regarding the terrific imposition placed
School Board Affidavit, Filed July 29, 1969
748a
upon school systems which are asked to administer new
organizational plans approved by the Court only a short
time before the opening of a given school term. I encour
aged this idea and pointed out, among other things, that
members of the staff and/or the school board would ordi
narily meet with members of the local school communities
before making any drastic changes which would affect that
community, but that the position imposed upon the board
and staff by the current Court Order precludes such action.
At the end of the conference a further conference was
scheduled for June 25.
On June 25, the further conference was held at the School
Board Offices, attended by Dr. Hall, Mr. J. J. Jordan of the
Atlanta Office of the Office of Education, H.E.W., and sev
eral members of the staff. The discussion began with con
sideration of the problem involving the one school in the
rural portion of the system that had presented a problem
in the previous discussion, and Dr. Hall indicated that he
could not accept any recommendation which included this
school as an all negro school. He went further to say he
did not feel that it was absolutely necessary to eliminate
every all negro school, but that in this particular case since
he felt it could be done easily, then it would have to be done.
At this point I think it pertinent to note some observa
tions of Dr. Hall’s behavior. During the times when we
were dealing together without the presence of Mr. Jordan,
Dr. Hall was quite agreeable, cooperative, and seemed dis
posed towards seeking to reach some compromise agree
ment on most of the points in contention. In the presence
of Mr. Jordan however, he presented an entirely different
School Board, Affidavit, Filed July 29, 1969
749a
countenance, was stern, disagreeable, and showed no in
clination to try to compromise at all.
Continuing the conference, further discussion was held
and it became apparent that the H.E.W. people themselves
had done nothing towards the actual development of a de
segregation plan, but had been almost entirely engaged in
the development of information which was later put forth
in the first four chapters of their Report to the Court. I
reminded Dr. Hall and Mr. Jordan of the necessity of sub
mitting any agreed plan to the Court, by July 3, and again
called to Dr. Hall’s attention, as I had done before, that I
had plans which would take me out of the city beginning
June 28 (Saturday), and strongly urged them to make
every effort to have their work completed in time for re
view at a further conference on Friday, June 27.
At this point I brought up the subject of money which
would be needed to pay administrators and other staff per
sonnel to come back to work before their contracts com
menced in mid August, in order to prepare for implemen
tation of the new plan. Because of budget limitations the
board is not in position to supply money for this purpose.
I advised them that I had written to the Office of Education
in Atlanta concerning the possibility of funds to fill this
gap and had been informed that no funds were available.
Mr. Jordan stated that possibly some money for this pur
pose may be available, but he could give no assurance of
this. As of this date we have not been able to arrange for
any such funds. Dr. Hall raised the question of whether or
not money would be available to purchase buses if the plan
which will eventually be ordered implied the necessity for
School Board Affidavit, Filed July 29, 1969
750a
a substantial increase in the amount of busing in the system.
I advised Dr. Hall that we had no money available for such
purpose and Mr. Jordan advised that no money would be
available from the Office of Education.
We then turned to a consideration of steps to be taken in
the metropolitan or city portion of the system. I advised
Mr. Jordan and Dr. Hall of the following things.
I advised them that the board and staff are not opposed
to integration of the school system, but that we want to
operate the system in a way that is educationally sound,
administratively practical, and is fair to all of the students;
that we do not want to return to the point to where we will
be operating the system on a racial basis. Dr. Hall seemed
to concur in this idea generally.
I advised them that in our opinion, generally, school chil
dren, and particularly elementary children, should be left
in a school which is geographically near their home and to
which they have access with the least amount of danger
from traffic and other hazards. I then pointed out that
there will inevitably be many school districts which when
serving the children of the area or community, will be
almost entirely white or entirely negro; and that no amount
of gerrymandering of lines would produce a higher degree
of integration without resorting to a massive transporta
tion program, to which we are basically opposed. I then
pointed out that zones have to be drawn in such a way that
school population would relate to facilities which are avail
able and that all zones are interrelated both horizontally
and vertically. Reference was had further to the need of
relating attendance areas to traffic patterns and existing
School Board Affidavit, Filed July 29, 1969
751a
city bus transportation routes and numerous other factors
affecting the arrangement of attendance areas. I also pre
sented strongly the need to take into account the needs of
special education students, and some reasonable transfer
provision non-racial in character.
The conference concluded with arrangements to meet in
conference again on Friday, June 27. Dr. Hall mentioned
that two additional people, whom he referred to as experts
in drawing attendance lines, would attend the Friday con
ference with them. With this the conference was concluded.
The following day, June 26, I was advised by Dr. Hall
that he and the H.E.W. people would have to cancel the
conference scheduled for Friday, June 27. He gave no ex
planation. At a later time, when I had occasion to attend
the taking of the sworn deposition of Dr. Hall in the office
of the School Board Attorney on July 15, 1969, I found the
reason why it was necessary for Dr. Hall to cancel the con
ference. Dr. Hall stated in response to questions by the
School Board Attorney that the decision with reference to
the details of the desegregation plan, and the arrangement
of attendance areas contained in the H.E.W. recommenda
tions was a cooperative undertaking among Dr. Hall, Mr.
J. J. Jordan, and the two so called experts, a Dr. Weincoff
and a Dr. Stolee; that Dr. Weincoff did not arrive in Mobile
until Thursday afternoon (June 26) and Dr. Stolee did not
arrive until Thursday night (June 26); and that all of this
work was done by the four of them Thursday night, Friday
and Friday night (June 27).
During the course of his deposition testimony Dr. Hall
also revealed that after this work was done on Thursday
School Board Affidavit, Filed July 29, 1969
752a
and Friday he went to New Orleans to meet with Dr.
Gregory Anrig, who was Mr. Jordan’s superior in Wash
ington, and who had to review the work, and that this was
done in New Orleans on June 29.
A further conference was arranged in the School Board
Offices for Tuesday, July 1. The conference was attended
by Dr. Hall, Mr. Jordan, myself, Dr. Cranford Burns and
other members of the staff. The purpose of the conference
was to give the H.E.W. people an opportunity to present
their plans for the school system. This was done by Mr.
Jordan and he pointed out that two consultants were used
in the drawing of the district lines, but he refused to iden
tify them. Later during the course of the deposition previ
ously referred to I found out that it was Dr. Stolee and
Dr. Weineoff.
Upon viewing the plan I immediately raised questions
concerning the number of schools being closed, the apparent
mass transportation being required, the use of facilities for
purposes for which they were not designed, and the creation
of so called complexes which immediately appeared to me
to be unworkable. Mr. Jordan responded by saying that
their plan would call for a rather extensive program of
renovation and substantial busing. He also indicated that
he did not know if the busing would be legal, and that if
not the plan would have to be reworked.
Mr. Jordan then stated that he felt sure the professional
staff of the Mobile School System could devise a better plan
than the one that he had proposed, but that what he had
seen so far was not satisfactory and he felt it the responsi
bility of H.E.W. to make some kind of proposal at least as
a point of departure. I pointed out to Dr. Hall and Mr.
School Board Affidavit, Filed July 29, 1969
753a
Jordan that the H.E.W. plan as presented was totally and
completely unacceptable in whole and in part to the pro
fessional staff and no doubt the school board would feel
the same. Mr. Jordan responded by saying that the board
had nothing to gain by accepting this plan because the
Court will order a plan anyway. Dr. Hall commented that
at first glance, the overall plan may not be very appealing
but that with study and reflection the plan “grows on you” .
In concluding the conference I asked for copies of the
maps and other material prepared by H.E.W. and they
declined to give me copies of the same. Copies were ob
tained later on when the H.E.W. report and recommenda
tions were filed with the Court.
Ultimately no overall agreement was reached between
H.E.W. and the School Board on a desegregation plan to
be filed with the Court. Thereafter, H.E.W. filed its rec
ommended plan in the Court, and a copy has been delivered
to me. I have reviewed the same and find that it is essen
tially the same plan they had presented to me in conference as
a suggested compromise. It appears from this that what
they presented to us as a proposed compromise was not
really an effort to compromise but a presentation of their
recommendations which they sought to have the School
Board agree upon, lacking in which they intended to file
the same with the Court as their recommendations all
along.
I have now carefully and thoroughly reviewed the pro
posed desegregation plan and other materials submitted
to the Court by H.E.W. I have been asked by the School
Board Attorney to provide an evaluation of this material,
and I am setting out such an evaluation hereafter.
School Board Affidavit, Filed July 29, 1969
754a
My evaluation of the recommendations submitted by
H.E.W. to the District Court is that as a whole they are
totally and completely unsound educationally, and they are
incapable of effective and proper administration. It is my
opinion that the implementation of this plan of operation
of the school system would not be in the best interest of
the school system, would not be consistent with the best
interest of a majority of the citizens of the county, negro
or white, and would not be consistent with the best interest
of a majority of the students in the school system, negro
or white. It is my further opinion that if these recom
mendations should be accepted and ordered for implemen
tation as the method of operation of the Mobile County
Public School System, it would do substantial harm to the
school system; and I see within these recommendations the
foundation for the likely destruction, in whole or in part,
of public education in the county.
By educationally unsound, I simply mean that the recom
mendations contain many proposals and procedures which
are not based upon sound educational policy. The plan is
literally filled with examples of this but one striking exam
ple will suffice at this point. Hillsdale Heights School is
proposed as a one grade school, to house only eighth grade
students from almost the entire western section of the city
of Mobile. Such a proposal is so totally unsound from an
educational standpoint that it is inconceivable anyone could
recommend such a procedure, unless they were doing so
under the necessity of achieving some specific result at the
expense of normal sound educational practice.
By stating that the recommended plan is incapable of
effective and proper administration, I simply mean that
School Board Affidavit, Filed July 29, 1969
755a
as a professional school administrator with substantial ex
perience in this school system, I do not feel that the plan
recommended by H.E.W. could be effectively administered;
because of the numerous departures from sound educa
tional practice as well as because of the numerous depar
tures from sound administrative procedure and because of
numerous apparent inaccuracies in the statistical data that
forms the basis for the recommendations.
The desegregation plan contained in the H.E.W. recom
mendations is obviously a hastily contrived hodgepodge
prepared by someone who has no real familiarity with the
subject with which he was dealing, and designed for the
specific purpose of obtaining a maximum placement of
negro students in schools with white students and vice
versa, while totally subordinating and in many eases com
pletely ignoring all other relevant factors except the as
sumption, to which I do not subscribe, that the mere physi
cal placing of negro children and white children in school
together will improve the quality of education for all, irre
spective of all other factors.
This is my general criticism of the H.E.W. recommen
dations. I will now point out a number of specific criticisms
all of which fit together, along with many others which I
will not comment upon because of limitations of time and
space, to form my general opinion that the plan as a whole,
and in each major segment thereof, is educationally un
sound and totally incapable of effective and proper admin
istration. First, I will outline these criticisms without
lengthy explanation; then I will come back and comment
in more detail.
School Board Affidavit, Filed July 29, 1969
756a
1. The H.E.W. recommendations require financial
expenditures quite in excess of the capabilities of the
school system, in order to meet their requirements with
reference to busing of students and other aspects of
the recommendations.
2. The H.E.W. recommendations require the closing
and abolishment of a number of schools in the city por
tion of the school system resulting in : the loss of use
of adequate school facilities while at the same time
overcrowding other school facilities, crosstown busing
of large groups of students thereby forcing young chil
dren to attend schools far removed from their neigh
borhoods, the dissipation of the neighborhood school
concept with reference to the schools affected.
3. With reference to the crosstown busing of large
groups of students in the city portion of the system,
the H.E.W. recommendations result in: drastically
increased expense, the overcrowding of some school
facilities, the forcing of young children to attend
schools far removed from their own neighborhoods, the
dissipation of the neighborhood school concept, and the
lessening of the desire and ability of students and par
ents to develop essential support for neighborhood
schools as a center of the community.
4. The H.E.W. recommendations depart from any
reasonable concept of organized grade structure, re
sulting in haphazard grade structure and in some in
stances one grade schools.
School Board Affidavit, Filed July 29, 1969
757a
5. The ELE.W. recommendations create so called
school complexes, which are in fact not complexes and
impose insurmountable administrative problems.
6. The H.E.W. recommendations are based upon
and require substantial gerrymandering and create
completely absurd school attendance areas with ap
parent total disregard for safety factors, accessibility,
transportation routes, manageability, and many other
factors normally taken into account in the creation of
school attendance areas.
7. The H.E.W. recommendations result in a total
rejection of the neighborhood school concept, in dis
regard of all traditional educational principles which
go with the neighborhood school concept.
8. The H.E.W. recommendations require the use of
many school plants in a manner for which they were
not planned, designed and constructed.
9. The H.E.W. recommendations make the imple
mentation of an adequate curriculum impossible in
many schools; particularly the one grade schools cre
ated thereby.
10. The H.E.W. recommendations obviously result
in attendance area lines drawn on a racial basis rather
than a non-racial basis.
11. Under the H.E.W. recommendations the possi
bility of conducting many extracurricular activities is
destroyed or substantially weakened.
School Board Affidavit, Filed July 29, 1969
758a
12. The H.E.W. recommendations fail to make any
provision whatsoever for the needs of special education
students.
13. The H.E.W. recommendations make no provision
for transfer for good cause, non-racial in character.
14. With reference to student assignment the
H.E.W. recommendations are based entirely on sta
tistics which we have found, upon cross checking, to
be inaccurate from the standpoint of the matching of
students with facilities. This presents a critical admin
istrative impossibility.
Purely from the practical standpoint, I disagree with the
recommendations because to fully implement them would
require an initial increased expenditure of capital outlay
funds for renovation, addition and conversion of school
facilities to meet the usage proposed by the plan, in an
amount approximating $12,575,200.00; realizing that this
money is not available and will not be available in the fore
seeable future; and the recommendations make no pro
vision for this monetary deficiency.
Along the same line, the H.E.W. recommendations call
for the closing of a number of schools in the city portion
of the system and the housing of these students at schools
far removed from their places of residence, and calls for
the accomplishment of this by mass transportation of these
students. To implement the H.E.W. recommendations
would require the acquisition of an operation of eighty-four
new busses in the city portion of the school system. Initial
acquisition costs would be $457,672.30 and operational cost
School Board Affidavit, Filed July 29, 1969
759a
for one year would be $131,980.80 for a total expense for
the coming year of $589,653.12, and a recurring yearly ex
pense each year thereafter of $131,980.80. In addition the
H.E.W. proposal would necessitate the acquisition of an
additional ten busses for use in the rural portion of the
system for an additional expense the coming year of
$70,196.30 and a recurring additional operating expense
each year of $15,712.00. As with the expense of addition,
renovation and conversion previously referred to, the
H.E.W. recommendations, while necessitating such ex
pense, make no provision for the money to cover the ex
pense other than suggesting that which we know to be
available from the State Department of Education, which
would cover only a minute portion of this total cost. I spe
cifically inquired of the H.E.W. people about Federal finan
cial assistance in this regard and was advised that there
would be none.
In a like manner, there would be a loss in money value
of over $4,000,000.00 to the school system as a result of the
closing of the six schools (Toulminville, Calcedeaver, How
ard, Caldwell, Emerson and Calvert) as recommended by
the H.E.W. proposal.
I have attached hereto, marked Attachment A, infor
mation prepared by our staff setting out these figures in
somewhat more detail.
I disagree with the H.E.W. recommendations because
they require the closing of neighborhood schools in favor
of busing these students across town, great distances. This
is particularly undesirable in this instance because a sub
stantial number of the children affected are young elemen
tary school children. Such an arrangement is basically
School Board Affidavit, Filed July 29, 1969
760a
unsound. In this instance it also results in drastically in
creased expense to the school system as already referred
to. It results in the closing of permanent facilities and the
housing of these students, or others whom they displace, in
temporary facilities at the schools to which they are trans
ported. It results in the destruction of neighborhood
schools. I do not think it desirable to move young children
from their neighborhoods where they are familiar with the
surroundings to distant neighborhoods and schools where
they are unfamiliar with the surroundings and develop a
feeling of insecurity. In addition to psychological problems
the mere physical distance involved creates a number of
problems and hardships for the students and for their par
ents.
I disagree with the H.E.W. recommendations because of
the fact that they work in many ways, busing included, to
destroy the concept of neighborhood schools. It is impos
sible for students to identify fully with school centers far
from their familiar surroundings. It makes it impossible
for parents to identify with the school center; and it leads
to destruction of the school as a strong force in the devel
opment of such activities as Parent-Teacher Associations,
Scouting Programs and many other extracurricular activi
ties. Under the H.E.W. recommendations the important
role that the neighborhood school plays in the life of the
community is for the most part effectively destroyed.
For the same reasons, a number of recommendations in
the H.E.W. proposal are at least as objectionable as the
crosstown busing. The proposal recommends the formation
of so called “complexes” involving a number of schools. An
example is the Sidney Phillips, Booker T. Washington,
School Board Affidavit, Filed July 29, 1969
761a
Fonvielle “ complex” . Under the H.E.W. proposal these
three schools would be operated as one junior high school,
with every student having to pass through each of the three
school centers in the complex during his years of junior
high school attendance. There are many problems asso
ciated with this specific proposal which make it totally
unfeasible from an administrative standpoint. From the
educational standpoint it presents grave difficulties in the
development of an adequate curriculum, the development
of student faculty relationships, the development of extra
curricular activities, the access of students, and many other
problems.
A good portion of the H.E.W. proposal is based upon
a series of artificial arrangements of schools and students.
Several one grade schools are called for. This is so un
sound from the educational and administrative standpoint
as to be obvious to anyone. Latitude in the development
of curriculum is completely limited. Student identification
with the school and the opportunity for development of
faculty student relationships is thwarted. Important extra
curricular activities and Parent related activities are de
stroyed.
The H.E.W. proposal is totally devoid of any concept
of organized grade structure, resulting in haphazard grade
structure arrangements and in some instances, as pre
viously referred to, one grade schools, and other equally
impractical defects.
As a result of this sort of situation, under the H.E.W.
proposal many students would attend as many as six dif
ferent schools by the time they reach the 10th grade.
School Board Affidavit, Filed July 29, 1969
762a
The H.E.W. proposal contains arrangements of attend
ance areas prepared by someone who obviously had no
knowledge of or concept of the significance of natural bar
riers snch as railroads, major thoroughfares, transpor
tation routes, creeks and streams, bridges, or the lack
thereof, commercial and industrial centers and other fac
tors. A close examination of the H.E.W. proposal and the
maps included therewith indicates that in many, many in
stances the attendance area boundary lines are poorly
placed and do not take these necessary factors into account.
In numerous instances the H.E.W. proposal calls for the
use of various school plants in a manner for which they
were not planned nor constructed, and therefore do not con
tain the necessary or proper facilities. I have previously
referred to the expense that would be involved in convert
ing these facilities to the use proposed by the H.E.W. rec
ommendations. If they are not converted it would result
in thousands of students attending schools where the facili
ties are totally and completely inadequate, for example;
high school students attending school in elementary school
facilities where there are no gymnasiums, laboratory facili
ties, etc.
As near as I have been able to determine from my review
of the H.E.W. proposal it makes no provision whatsoever
for the needs of special education students (students re
quiring special facilities, special classes and special instruc
tion, due to mental deficiency or other circumstance).
The H.E.W. proposal does not contain a provision for
transfer for good cause, without regard to race. Such a
provision is necessary for the effective operation of any
School Board Affidavit, Filed July 29, 1969
763a
school system and a failure to include the same in the pro
posal for the operation of the school system indicates either
total ineptness from an educational standpoint or amaz
ingly callous disregard for the students of the school sys
tem.
After a thorough review by our staff it appears that the
H.E.W. recommendations are incapable of administration
as a whole, if for no other reason, because they simply are
statistically inaccurate. We have found in a number of
instances that the tables and statistics shown in the pro
posal are inaccurate, and that a number of schools, if oper
ated upon the basis recommended by H.E.W. would be
overcrowded by hundreds of students; in one instance
(Eanes-Woodeock Complex) by as many as 900 students.
At the same time, many other schools would be underpopu
lated; in one instance (Mobile County Training School) by
as many as 930 students. In other words, the H.E.W. pro
posal results in a mismatch or unbalance of students with
relation to facilities; so much so, that an attempt to operate
the schools on the basis of the proposal would literally mean
chaos from that standpoint alone. It is difficult to determine
if these inaccuracies resulted from lack of information, lack
of skill, lack of concern, neglect, or design.
In seeking to evaluate the H.E.W. proposal we found
that many geographic boundaries are not clearly identi
fiable. In order for any plan to be workable it must be a
plan that can be understood and the geographic boundaries
in the plan must be clearly identifiable by the staff and by
the community. In many instances the H.E.W. plan con
tains boundaries which simply cannot be identified or
pinned down. An example of this is where boundary lines
separating the Murphy and the Williams on-Craighead
School Board Affidavit, Filed July 29, 1969
764a
areas extends haphazardly through the middle of two sub
divisions, Rosswood and Brookwood. Another example of
this same kind of a problem appears in the rural area. The
H.EAV. plan calls for the dispersal of sixth grade students
in the Davis area to Griggs and Burroughs and Hollingers
Island, but no boundaries are given to indicate, either to
professional staff or to the community, which sixth graders
in the area would go to which school. This compounds con
fusion and frustration for both the community and the
staff.
The H.EAV. proposal in the metropolitan area calls for
a two phased implementation. The difficulty here is that
it is not clear which phase is which. For example: The
H.E.W. plan says that recommended changes east of the
Belt Line will not be effective until September of 1970,
except for the transportation of part of the Toulminville
students. It recommends, however, that children in the
Emerson and Fonvielle areas be transported to schools
which are west of the Belt Line. Clearly this is a change
in school attendance which affects areas which are both
east and west of the Belt Line. In this kind of situation the
plan does not make clear whether this change is to be im
plemented in September, 1969 or September, 1970. Another
example of this confusion can be found in the middle school
plan where the Phillips, Fonvielle, Washington attendance
area takes in portions of the city which are both east and
west of the Belt Line. It is not clear how the Phillips,
Washington, Fonvielle complex plan could be implemented
for those students west of the Belt Line in September, 1969,
while at the same time it was not implemented in Sep-
School Board Affidavit, Filed July 29, 1969
765a
tember, 1969 for students in that area who are east of the
Belt Line. In other words, there are instances where the
H.E.W. plan affects children, some of whom live east and
some of whom live west of the Belt Line, and it sets out
no recommendations as to how this kind of problem can be
resolved. Similar difficulties would occur in the Vigor-
Blount complex, in the Hamilton-Robbins area, and in other
areas.
The H.E.W. plan includes provisions for the pairing of
several schools (in one case a triumvirate is set up in which
three schools will somehow serve one area. The ultimate
example is the Prichard quadruple complex). In any of
these instances where multiple facilities are to serve one
area and particularly when the schools involved are geo
graphically widely separated, there are many administra
tive problems which would have to be resolved. For ex
ample, in the case of the Arlington-Council complex, chil
dren living in that area are to attend grades 1-5. The
H.E.W. plan does not spell out what kind of arrangement
is to be set up with respect to grade levels. It would be
possible to put the first and second grade at one school and
the third through the fifth grades in the other, or put the
first and second grade at one school, the fourth and fifth
at the other with both schools having a third grade. If it
happens to be the case that the grades cannot be distrib
uted disjointly between or among the schools involved, then
the question arises as to what to do with the extra grade—
that is, how it will be decided which school children will
attend which school if both schools serve the grade to which
they are assigned. This would lead to confusion for par
ents as well as for school officials. The only concrete sug-
School Board Affidavit, Filed July 29, 1969
766a
gestion made for this kind of situation is that a child living
in one of these areas should attend all the schools serving
that area for at least one year each during the time which
he resided in that area and is assigned to a grade served
by the particular complex. This is unsound by any standard.
Another difficulty which the H.E.W. plan will cause in
these paired school areas will be the actual administration
of the school when the campuses are geographically sepa
rated.
Three years ago the Board of School Commissioners
adopted a 5-3-4 plan of school organization. Since that
time as facilities and circumstances have permitted, we
have moved toward this goal in the organization of our
schools. The plan, as proposed by H.E.W., particularly in
the metropolitan middle school area, will have the effect
of moving us away from this plan. Although since the
adoption of the Board’s policy we have not been able to
entirely implement the 5-3-4 plan, I feel that any recom
mendation which moves away from this goal will be detri
mental to the overall educational process, unless this move
is based on other sound educational principles. What prin
ciples H.E.W. used as a basis for moving away from this
organizational pattern escapes me entirely.
The H.E.W. proposal substantially lessens articulation
and the opportunity to develop adequate curricula. Articu
lation under the H.E.W. plan will be a great deal less than
is satisfactory from an educational standpoint. Develop
ment of curricula is restricted by a number of factors in
cluding insufficient articulation and numerous other factors
such as the existence of one grade schools and the hap
hazard grade structure included in the H.E.W. plan.
School Board Affidavit, Filed July 29, 1969
767a
There is another most important factor which was
apparently overlooked completely by those who developed
the II.E.W. recommendations; the future. The H.E.W.
proposal is devoid of any consideration for the future. As
far as I have been able to determine from examination of
the H.E.W. report, the services of the Housing Board and
of the City Planning Commission were not utilized or
considered in making the recommendations. In his deposi
tion testimony, Dr. Hall admitted that they were not.
Expected residential growth in the downtown area as a
result of urban renewal projects apparently had no effect
on the H.E.W. recommendation in this area. Specifically,
a number of schools in urban areas, where population
increase is expected, are closed under the H.E.W. proposal.
Among these schools are: Emerson, Caldwell, Howard and
Toulminville.
Again, I must reiterate that the recommendations sub
mitted to the Court by H.E.W. are as a whole, and in each
segment thereof, educationally unsound and incapable of
effective administration; any attempt to implement them in
the operation of the school system will do substantial and
lasting harm to the school system and to all students who
must utilize it, negro and white alike.
School Board Affidavit, Filed July 29, 1969
James A. McP herson
768a
School Board Affidavit, Filed July 29, 1969
ATTACHMENT A
Page 1
MOBILE COUNTY PUBLIC SCHOOLS
E stimated Construction and Renovation Cost as
P roposed by the HEW Study eor Mobile County
Conversion and Addition Cost:
Vigor-Blount ..... ........ ................. .... $ 4,600,000.00
Williamson-Craighead ................... 1,500,000.00
Sidney Phillips-B. T. Washington 1,901,200.00
Woodcock-Mae Eanes ................... 2,100,000.00
Burroughs ........................................ 1,400,000.00
Hillsdale............................................ 680,000.00
Dunbar-Central................................ 394,000.00
T o ta l.......................................... $12,575,200.00
Cost of Buildings to Be Closed:
Toulminville .................................... $ 1,428,400.00
Calcedeaver...................................... 423,200.00
^Howard ............................................ 516,800.00
Caldwell .......................................... 739,100.00
#Emerson .......................................... 890,000.00
Calvert .............................................. 123,900.00
Total .......................................... $ 4,121,400.00
* These buildings to be replaced with new buildings.
School Board Affidavit, Filed July 29, 1969
ATTACHMENT A
Page 2
BOARS OEJCHOOL COMMISSIONERS OF MOBILE COUNT*
MARYVALE S1I0FS
TRANSPORTATION DEPARTMENT
J u ly 9 , 1969
769a
ESTIMATED COST TO OPERATE AN ADDITIONAL 84 BUSES BUSING THE 1969-70 SCHOOL TERM
GRADES 1 through 5
SCHOOL NO. OF BUSES
Haryvale
> * If
H om in gside v 2
Rate Shepard 2
Mertz / - 2
Fonde 3
Hostlawn 1
A ustin 1
John W ill 3
F orest H i l l 5
TOTAL 21
GRADES 6 through 9
SCHOOL NO. OF PUPILS NO. OF BUSES
H ills d a le 914 . 1 5
Scarborough 600 10
K. J . C lark 240 4
P richard J r . H i, 65 1
M obile Co. T m g . 125 2
Sidney P h i l l ip s 70 1
Dunbar (C e n tra l) 600 10
Woodcock 360 • -yJ 6 t
TOTAL 49
GRADES 9 through 12
SCHOOL NO. OF PUPILS NO. OF BUSES
GRADE
8th
6th - 7 th
8th
6th * 7 th
6 th • 7th
6 th - 9th
6th - 9 th
6 th - 9 th
Davidson
Shaw
540
305
9 Students from the
5 T o u lm in v ille a rea
TOTAL 14
The above f ig u r e s are based on 60 passenger busaa w ith 60 p u p ils t o each b u s .
C ost t o op era te bus w ithout c o s t o f d r iv e r $ 396,20
This f ig u re i s based on the c o s t to opera te
the 1968 model buses during the 1968-69 s ch o o l
term.
Cost o f D r iv er 1*175.00
TOTAL ESTIMATES COST TO OPERATE ONE BUS . $ 1 ,5 7 1 .2 0 X 84 Buses ” $ 131 ,980 .80
PURCHASE PRICE OP ONE BUS — — — — — $ 5 ,4 4 0 .4 3 x 84 Buses “ $ 457 ,672 /32
TOTAL ESTIMATED COST — — — — — — — — — " $589 ,653 .12
• • . . -x, P/>6£- 2, ■
770a
School Board Report to the Court,
Filed October 13, 1969
The August 1, 1969 Order of this Court requires that
the School Board file with the Court, not later than De
cember 1, 1969, a further suggested desegregation plan for
all schools located east of 1-65. The order also requires that
a report of progress in this regard be filed on October 10,
1969. This is the October 10, 1969 progress report.
This Court’s August 1, 1969 order required an almost
complete reorganization of the entire rural portion of the
school system and major changes in the metropolitan por
tion of the system; all within approximately 30 days. This
made unusual and excessive demands of time and effort
upon the professional staff of the school system following
the August 1 order, throughout August, and continuing
through the opening of school in September.
With the opening of school, demands of time and effort
were increased and intensified due to extensive dissatisfac
tion and unrest in the community as a result of implementa
tion of the August 1 Order. This dissatisfaction and unrest
has manifested itself in numerous ways including pickets,
boycotts, student sit-ins, an exceedingly large number of
transfer requests, public gatherings, confusion, threats, etc.
This court is already aware of many of these things.
As a result, the Board and Staff have been unable to
apply more than preliminary effort towards developing a
new desegregation plan for metropolitan schools east of
1-65. Within recent days there have been indications of a
general abatement of confusion and unrest. Unless there
should be a reversal of this new trend, the staff should be
able to apply more productive effort to this task within
coming weeks, to the extent that the board should be in posi
tion to make a more detailed progress report on or before
November 20, 1969.
771a
School Board Report to the Court,
Filed November 20, 1969
The August 1, 1969 Order of this Court requires that the
School Board tile with the Court, not later than December
1, 1969, a further suggested desegregation plan for all
schools located east of 1-65. The order also requires that
reports of progress in this regard be tiled on October 10,
1969, and November 20, 1969. The October 10 report was
tiled on that date. This is the November 20 report.
This Court’s August 1, 1969 order required an almost
complete reorganization of the entire rural portion of the
school system and major changes in the metropolitan por
tion of the system; all within approximately 30 days. This
made unusual and excessive demands of time and effort
upon the professional staff of the school system following
the August 1 order, throughout August, and continuing
through the opening of school in September.
With the opening of school, demands of time and effort
were increased and intensified due to extensive dissatisfac
tion and unrest in the community as a result of implementa
tion of the August 1 order. This dissatisfaction and unrest
manifested itself in numerous ways including pickets, boy
cotts, student sit-ins, an exceedingly large number of trans
fer requests, public gatherings, confusion, threats, etc. This
court is already aware of many of these things.
As a result, the Board and Staff were for some w*eeks
unable to apply more than preliminary effort towards de
veloping a new desegregation plan for metropolitan schools
east of 1-65. Within recent weeks the professional staff
have however been able to turn their attentions to the de
velopment of the new plan.
772a
First, there was a thorough review and restudy of the
material submitted to the Court by HEW as its suggested
desegregation plan prior to the Court’s August 1 Order.
This restudy revealed that the plan suggested by HEW
was more educationally unsound, administratively unfeasi
ble and generally objectionable overall than had been first
thought when it was submitted by HEW to the Court.
Next, there was an assessment and evaluation of the im
pact of this Court’s August 1, 1969 Order, and the im
plementation of that order, on the school system. It was
found that implementation of the order had resulted in
numerous undesirable effects, including the apparent with
drawal of several thousand students from the system.
Next there was a review of suggested desegregation plans
heretofore filed in this Court by the Justice Department
and by Counsel for the plaintiffs; and plans heretofore filed
by the School Board.
Drawing upon information and knowledge resulting from
the review procedures described above, and upon their
general knowledge, the staff then set about efforts to dis
cover and develop a comprehensive desegregation plan for
the schools east of 1-65. This effort is still in progress, but
no comprehensive plan is yet available for recommendation
to the Court.
The Court should be advised that these efforts described
above have served more and more to convince the staff that
the most feasible plan for the operation and desegregation
of all secondary schools in the metropolitan area (both east
and west of 1-65) is a system of student assignment based
on free choice of schools by all.
School Board Report to the Court, Filed November 20,1969
773a
Application for intervention as parties defendant, filed
on July 29, 1969 by the Mobile County Council of Parent-
Teacher Associations and Mrs. Eugene Gibbons, Robert R.
Williams, Odie Williams, Mrs. Frances D. Bridges, James
T. Hammer, Jr., Mrs. J. L. Kittrell, John J. Hackmeyer,
K. H. Williams, William E. Deneke, Mrs. Irvin G. Rentz,
Mrs. Warren M. Banta, Jr., Ruth Merwin, Thomas L. Grif
fin, W. A. Kimbrough, Jr., James F. Hurd, Edwin M. John
son, Mrs. B. L. Gilbert, Mrs. 0. L. Wilson, Jr., H. B. Young,
Mrs. James R. Strange, Samuel W. Jenkins, Mrs. Patsy T.
Stinson, W. M. Flannagan, Sr., Marie T. Clotfelter, Mrs.
Charles H. Durham, W. S. Van Langingham, Glendean R.
Harrison, Charles S. Harrison, and Mrs. Jean Hooker, on
behalf of themselves and all others similarly situated, be
ing considered by the Court, is hereby Granted.
Done at Mobile, Alabama this the 22nd day of January,
1970.
District Court Order of January 22, 1970
Daniel H. Thomas
Chief Judge
774a
Comes now the Board of School Commissioners of Mobile
County, and each member thereof, through their attorneys
Pillans, Reams, Tappan, Wood and Roberts, and for re
sponse to this Honorable Court’s Order of January 28,
1970, would respectfully say: .
1. The Board, on December 1, 1969, upon the express
orders and directions of this Court, filed a revised desegre
gation plan containing recommendations for steps to be
taken toward further desegregation of the schools in the
system lying east of Interstate Highway 65.
2. These recommendations were developed over a period
of approximately three months. They reflect the expert
thinking and best judgment of competent, trained, profes
sional educators who are thoroughly and intimately familiar
with the school system. The desegregation plan embodied
in these recommendations was soundly conceived and care
fully fashioned in order to comply with all legal require
ments imposed by the Court; and at the same time to do
so in a manner that will be educationally sound, will cause
the least possible hardship to the least number of students,
parents and teachers, and will present the least possible
danger of destruction of or substantial harm to the school
system. If there were other recommendations that would
accomplish all of these things better and more fully they
would have been included as a part of the December 1
recommendations to begin with; but there are none.
3. It should be pointed out that what the Court has
now done is to order the Board to attempt to have its pro-
School Board Response to Order, Filed January 30, 1970
775a
fessional staff to hastily, in a matter of several days, alter
and revise the end product of this three months of exten
sive, careful, analytical work. Such a hasty effort cannot
be expected to produce competent results. I f we were
merely dealing with maps and figures on a piece of paper
this would present no problem; but we are not, we are
dealing with human beings, children, and the very life of
a public school system. The professional staff people indi
cate that what the Court has suggested calls upon them to
violate and sacrifice professional standards and principals
that they, as professional educators, hold inviolate, and
this they cannot do.
4. In compliance with the order of the Court we would
advise the Court that we have carefully restudied our
recommendations of December 1, 1969, with a view towards
revising them and find that we do not have any revisions
to suggest to the Court, except these:
(a) Since the Court now contemplates implementation
on February 1, in the middle of a school year, rather than
at the beginning of the next school year, provision should
be made to allow all senior students the option of retaining
their present assignments, if they choose to do so, in order
that they may graduate from the schools they have at
tended all these years.
(b) Some provision should be made to allow the ath
letic programs now in progress at the various schools to
continue until the end of the basketball season.
(c) The second semester of the school year has already
begun and students are already in the process of second
semester work. The next natural division point in the
School Board Response to Order, Filed January 30, 1970
776a
school year will be the beginning of tbe fourth quarter
work on April 6, 1970. Tbe Court’s Order of February 1
should provide for tbe transition to be made at the end of
tbe third quarter and before tbe fourth quarter begins.
(d) The best interest of tbe school system, and tbe
individual welfare of all of the students in tbe system,
black and white, would best be served by an order that will
not call for tbe reassignment of any student during the
remainder of this school year.
5. Tbe professional staff have carefully studied the
three alternate proposals filed with tbe Court by HEW on
December 1, 1969, as well as the revised proposal submitted
to the Court by the United States Department of Justice
on January 27, 1970, as referred to in tbe Order. Based
upon their study and the information furnished to tbe
Board as a result of their study we wish to advise tbe
Court as follows:
(a) Each of these four proposals suffers from tbe
basic defect that it is on the whole educationally unsound
and that it is made up of a variety of component parts
most all of which are also educationally unsound, indi
vidually.
(b) Each of the four proposals reflects clearly the fact
that it was devised by someone who has no practical work
ing knowledge of the school system; as well as by someone
who either has none of the basic professional and ethical
principals of a professional educator, or having them, is
prepared to sacrifice them to other considerations foreign
to and inconsistent with sound professional ethics and
practice.
School Board Response to Order, Filed January 30, 1970
777a
(c) Each of the four proposals is educationally un
sound and administratively infeasible to the extent that
it could not, either in its present form or with modification,
be implemented in the middle of a school year without total
disruption of a large part of the school system for a period
of several months; and there is considerable doubt if either
of these four proposals, could ever be placed into full
implementation successfully.
(d) We have pointed out these defects to the Court
in detail verbally during the course of the several con
ferences and we will reiterate this to the Court by written
affidavit testimony if the court should so desire.
School Board Response to Order, Filed January 30, 1970
778a
In the Court’s order entered in this cause on August 1,
1969, the elementary school of Dauphin Island was closed
and the children who would normally have attended that
school prior to its closing were transferred to Alba.
After a careful study, the Court is of the opinion that
an elementary school should be located on Dauphin Island
for children living on the Island at the elementary grade
level.
Therefore, it is Ordered, A djudged and Decreed that
such school be immediately established on Dauphin Island
and that this Order be implemented forthwith.
Done at Mobile, Alabama, this the 31st day of January
1970.
District Court Order of January 31, 1970
D aniel, H . T homas
United States District Judge
779a
School Board Report to the Court,
Filed February 23, 1970
Comes now the Defendant and makes this report to the
Court for the purpose of advising the Court of steps taken
towards implementation of its Order of January 31, 1970.
A copy of the Order was served upon the Board’s at
torney on Saturday, January 31, 1970. The Board’s attor
ney immediately conferred with the Superintendent and
delivered the Order to him that same day.
A conference was held, attended by the Board, Super
intendent and Staff, on Monday, February 2, 1970 at 9:00
A.M. where the Board’s attorney presented his interpreta
tion of the decree and steps toward and problems associated
with implementation were discussed.
Following this Board-Staff conference the Staff entered
into a conference in depth which consumed the remaining
part of the morning, the purpose being to examine the prob
lems associated with the Court Order in greater detail
and in greater depth; to begin the assessment of jobs which
have to be done, department by department and division
by division, and to structure these jobs in proper sequence,
trying to see how local school activities and systemwide
activities could be properly related to each other in such
a way as to minimize confusion, conflict and disruptive
influences in the total school program. In the meantime
steps were taken to get maps produced in sufficient quantity
to meet the needs of the school system.
A conference of principals directly affected by the Court
Decree was held on Monday, February 2 at 2 :30 P.M. The
purpose of this meeting was to familiarize principals with
the breadth, scope and nature of the decree and with the
780a
several jobs to be accomplished in implementing the decree,
particularly jobs which have to be performed at the local
school level and to invite questions and suggestions con
cerning ways and means of carrying out decree with a
minimum of disruption in the school system.
On Wednesday, February 4, a second Board-Staff con
ference was held for the purpose of making a progress re
port to the Board on investigations made by the adminis
trative staff and to discuss recommendations made by the
staff concerning ways and means of reorganizing the
schools in conformity with the decree. At this conference
a decision was made to call a special Board meeting for
Thursday, February 5 in order to consider further the
Superintendent’s report, and to take formal action with
regard to the Court Order.
On Thursday, February 5, the Board meeting was held,
at which time the Board passed a resolution authorizing
the Superintendent and Staff to fully comply with and
implement the Order of January 31, 1970, in accordance
with a procedure outlined and recommended by the Asso
ciate Superintendent, which recommendation was approved
by the Superintendent.
School Board Report to the Court, Filed February 23,1970
781a
Comes now the Defendant and for the information and
assistance of the court, files this Report to the Court.
Statement of S am H. S h o u t , Assistant Superintendent
in Charge of the Division of Administration, Mobile County
Public School System:
Concerning the nature and extent of integration in the
Mobile County Public School System from the standpoint
of factors other than the mere assignment of faculty, staff
and students on an integrated basis, I make the following
statement, with the understanding that it will be filed with
the United States District Court as a Report To The Court.
All services, facilities, activities and programs of the
school system are offered and conducted on a fully inte
grated basis. All services, facilities, activities and pro
grams with regard to each particular school in the system
are available to every student of the school without refer
ence to race; and all services, facilities, activities and pro
grams are available as between various schools without
reference to the race of the pupils attending the schools.
All activities of all schools, such as athletic teams, bands,
orchestras, choral programs, clubs and social activities;
and all services and programs such as counseling, student
governments, honor societies, and other student groups are
offered and conducted on a non-racial basis.
No services, facilities, activities or programs have been
changed, curtailed or limited due to the races of students.
No special waiting periods or other qualifying factors or
circumstances have been attached as a qualification to par
ticipate in any program or activity due to the race of any
School Board Report to the Court,
Filed February 24, 1970
782a
student. All student extracurricular activities, over which
the defendant board has control, are conducted on an inte
grated basis, as are all parent related activities. The
P.T.A. (Parent, Teacher Association) organizations of the
various individual schools are conducted on an integrated
basis; there has been a merger of the previously separate
(one formerly negro and one formerly white) P.T.A.
councils into one council, and the first president was a
negro high school principal.
All schools are treated equally, without regard to the
race of the students attending the school or the previous
racial background of the school, with regard to the alloca
tion of instructional materials, athletic equipment, facili
ties, equipment, furnishing, supplies, textbooks, and allo
cated funds; and courses of instruction are offered on the
same basis.
The statements made above have been accurately reflec
tive of the situation since at least 1967. From the stand
point of actual participation in integrated activities tre
mendous progress has taken place in the desegregation of
extra-curricular activities conducted under the direction of
the local schools, particularly in the secondary schools. This
progress is a compliment to both the white and negro stu
dents who engage in the various activities included in the
extra-curricular programs and to the teachers and adminis
trators responsible for the organization and supervision of
these activities. The progress has been so great that there
is now no apparent evidence that any negro student who is
now attending what has been a traditionally white school
is excluded from any extra-curricular activity, except on
School Board Report to the Court, Filed February 24,1970
783a
the basis of his ability to meet the normal criteria estab
lished for participation by anyone in a particular activity.
It is not only the increase in the number of negro students
now participating in extra-curricular activities conducted
in traditionally white schools that is significant, but the
degree to which the white students have accepted the negro
students into such activities. The casual observer could not
be unaware of the increasing number of negro students now
participating in the bands, chorus groups, school publica
tion staffs and athletic teams and other similar activities
in formerly traditionally white schools. It is significant to
note the number of negro students participating in the
Junior ROTC Programs who have been placed in leader
ship positions as junior non-commissioned or commissioned
officers in these units. These negro students are serving in
these leadership positions with dignity and with the respect
of the white students who are members of these units in
the traditionally white secondary schools.
Less obvious but just as significant in the progress being
made in the desegregation of extra-curricular activities are
the increasing number of negro students who have been ac
cepted into various honor societies such as the Beta Club
and the National Honor Society in the formerly tradition
ally white schools. All reports indicate that there is an
ever increasing number of negro students participating in
student council activities and other school sponsored club
activities.
This report would be less than complete if it did not point
out the influence of the administrative and teaching per
sonnel in the development of a colorless athletic program
being conducted in the Mobile County Public School Sys
tem. It is particularly significant that the composition of
School Board Report to the Court, Filed February 24,1970
784a
many of the athletic teams in the formerly traditionally
white schools has changed to the point that, in some cases,
such schools now have predominantly negro teams repre
senting their school in athletic contests. It is noteworthy
that all of the formerly traditionally white secondary
schools have outstanding negro athletes participating on
their athletic teams. There has also been an increase in the
scheduling of athletic contests between traditionally white
and traditionally negro schools. This occurs both in regular
season competition and in tournament competition.
It is the purpose and intent of the Superintendent and
statf to continue to insure that all services, facilities, activi
ties and programs of every school are available to every
student without regard to race, and to encourage the active
participation of all students, without regard to race.
School Board Report to the Court, Filed February 24,1970
S am H. S hout
785a
Comes now tlie Defendant and files the attached affidavit
testimony of James A. McPherson in support of its Re
sponse To Order heretofore filed in this court on January-
30, 1970.
School Board Affidavit, Filed January 30, 1970
AFFIDAVIT
State of A labama
County of Mobile
Personally appeared before me the undersigned authority
in and for said county and said state, James A. McP herson,
who being by me first duly sworn, did make affidavit and
say:
My name is James A. McP herson. My address is 103
Baratara Drive, Chickasaw, Alabama. I am 43 years old.
I am Associate Superintendent of the Mobile County Ala
bama Public School System. As such I hold the number two
administrative position in the school system, ranking im
mediately below the Superintendent. Prior to assuming
this position I was an Assistant Superintendent, in charge
of the Division of Pupil Personnel. I have also had a num
ber of years experience in the system in other capacities,
such as teacher and principal. As Associate Superinten
dent I have had the primary administrative responsibility
of working with the desegregation process that has been
in progress in the school system since 1964. I have testi
fied in the United States District Court, Southern District
of Alabama, on a number of occasions in connection with
the continuing litigation there concerning this desegrega
tion process. I have been called to testify at various times
786a
by both the plaintiffs and the defendant School Board. My
personal and professional qualifications appear fully in the
record from these past occasions, consequently, I will not
set them out again here.
This affidavit is made specifically for the purpose of sub
mission to the United States District Court as my testimony
in connection with the Response To Order filed in that Court
by the Defendant on January 30,1970, and particularly that
part of the Response To Order which points out defects in
the proposed desegregation plan for the Mobile County
School System filed in the District Court by the U. S. Office
of Education, Department of Health, Education and Wel
fare on December 1, 1969. I will hereafter in this affidavit
refer to such proposed plan as the HEW Plan of Decem
ber 1 or simply the H EW Plan.
The HEW Plan of December 1 was prepared by one
Ernest S. Bunch, who styles himself Acting Senior Program
Officer, Equal Educational Opportunities. I talked with Mr.
Bunch on several occasions although he never asked me for
information, advice or assistance. My first contact with Mr.
Bunch was on November 17, 1969 very shortly after his
arrival in Mobile. Prior to coming to Mobile on that occa
sion he had no prior contact with Mobile or the Mobile
County Public School System.
Based upon my discussions with Mr. Bunch and my sub
sequent review of the HEW Plan he prepared I am con
vinced beyond any doubt that he had only a very super
ficial knowledge of Mobile and the Mobile County Public
School System. He obviously has no knowledge whatso
ever of many, many factors, the thorough knowledge of
School Board Affidavit, Filed January 30, 1970
787a
which would be essential to anyone who would attempt to
formulate a comprehensive plan or system of student as
signment with the object and expectation that it should be
educationally sound, administratively feasible or, indeed,
practically workable. As a result, the HEW Plan of De
cember 1 that he has formulated, is in its entirety, as well
as in its various parts or segments, educationally unsound,
administratively infeasible and simply will not work. It
disregards and will be detrimental to the best interests of
the children concerned, black and white alike and would
be destructive to the school system.
The HEW plan is really four different plans which Mr.
Bunch has labeled Plan A, Plan B, Plan B-Alternative, and
Plan B-I-Alternative. Neither of the four plans is based
upon original information, study, statistics or research,
because Mr. Bunch made no study, conducted no research
and gathered no statistics or information. This in fact is
conceded in the explanatory preface contained in the plan
itself. All Mr. Bunch did was to take statistical data from
a previous HEW report dated July 7, 1969, and then re
arrange schools and students by juggling statistics in
several different ways to come up with his various alterna
tive plans.
Mr. Bunch’s Plan A is really not a plan but merely a
statement of statistical data reflecting what he understands
the presently existing situation during the current (1969-
70) school year. It may or may not be of significance, but
even this simple statement of statistical data contains
several errors, including the fact that many of his ca
pacity figures are inaccurate.
School Board Affidavit, Filed January 30, 1970
788a
Plan B as a whole is unworkable, for numerous reasons,
including the following:
The plan purports, according to its own terms, to be
based upon certain specific geographic zones, but no maps
or other description reflecting or stating the location of the
boundaries of zones is included with the plan.
The statistical data upon which the plan is based is out
dated and inaccurate. The original statistical data was
gathered and compiled by the School Board in September
1968. It is now totally inaccurate. Spot checks made of
this statistical information, after the HEW Plan was filed
on December 1, 1969, to determine its accuracy and rele
vancy indicate that in a number of instances such figures
as the total number of students living in a given area (an
attendance zone, or a part of an attendance zone), or the
ratio of black students to white or vice versa, are in error
by as much as 50%.
The plan contemplates, and therefore would require, the
utilization of a substantial amount of transportation or
bussing, beyond the capacity and capability of the School
System’s transportation system.
The plan contemplates the closing and non-operation of
three school facilities. The inaccurate statistics on which
these steps are based perhaps may justify such action, but
accurate current statistics and projections for the future
indicate that these steps cannot be taken.
The plan, as a consequence of its author’s (Mr. Bunch)
total lack of any knowledge of virtually all practical func
tional factors about the school system and the City of
Mobile, is based upon the assignment of many children
to schools where they simply cannot as a practical matter
attend because they simply cannot get to the schools. I
School Board Affidavit, Filed January 30, 1970
789a
have reference to such factors as: accessibility; traffic
flow patterns; the routes of city and other commercial
bus transportation; safety hazards such as railroad tracks,
major thoroughfares, business and industrial areas, narrow
streets without sidewalks, and other dangerous areas; and
absolute barriers such as rivers, streams and interstate
highways with only limited scattered crossing places.
In addition to those factors above which make the HEW
Plan B simply functionally unworkable, there are many
features of the plan which, while workable after a fashion,
are educationally unsound. Some of these features are:
Grade Structure in the junior high and senior high
schools is totally unstable. There are eight different
structures; 6-9, 7-8, 6-7, 8 only, 7-12, 9-12, 10-12 and 12
only. Within these structures are seven two grade schools
and three schools of only one grade each. Such an ar
rangement is so totally unsound from an educational stand
point that it is inconceivable anyone could recommend it
unless they were doing so under the necessity of achieving
some specific result at the expense of normal sound edu
cational practice.
Several school plants are designated for a use for which
they were not constructed and to which they cannot be
satisfactorily adopted; such as using elementary school
buildings for junior high schools (Woodcock, Fonville)
and high schools (Bienville, Craighead), junior high school
buildings for senior high schools (Carver) and senior high
school buildings for junior high schools (Mobile County
Training School, Central).
The plan calls for the creation of several so called school
complexes, by grouping two, three or even four separate
schools together, even though physically they may be
School Board Affidavit, Filed January 30, 1970
790a
widely separated, and treating them as one large school.
For example; (a) the Vigor, Blount, Carver, Bienville
High School complex; (b) the Phillips, Washington, Fon-
ville Junior High School complex; (c) the Fanes, Wood
cock, Junior High School complex and (d) the William
son, Craighead High School Complex. These complexes
present many administrative difficulties and other serious
problems such as unadaptability of facilities (using Craig
head Elementary School as half of a high school complex)
and the simple inability of students to get to the schools
to which they are assigned.
The plan overcrowds many schools and underpopulates
others. One example should suffice. The HEW Plan B,
according to its statistics contemplates an enrollment of
650 at Prichard Junior High School which has a capacity
of 609; whereas accurate current statistics indicate that
in the zone Plan B would assign to the school there are
actually 1421 students who must attend the school. This
means that Plan B has actually assigned 1421 students
to a school with a capacity of 609. There are other simi
lar examples. Such an arrangement is simply impossible
of implementation.
The Plan makes the implementation of adequate curric
ulum impossible in a number of schools; makes it impos
sible to conduct many extra curricular activities; and
destroys the very important factor of student and parent
identification with the neighborhood school as a center of
activity.
The plan virtually destroys the neighborhood school con
cept.
The plan requires the cross town bussing of many ele
mentary school students thereby forcing the very young
children to attend schools far removed from their own
School Board Affidavit, Filed January 30, 1970
791a
neighborhoods, in unfamiliar surroundings where they in
evitably experience insecurity.
I turn now to Plan-B-Alternative. It generally contains
the same defects and is subject to the same criticisms as
Plan B previously referred to. In addition, upon close
examination of the statistical data set out in the plan
and a comparison of this data with accurate current data,
it is immediately apparent that the statistical data is so
grossly inaccurate as to make the plan totally unwork
able. This example will suffice to illustrate the point.
The junior high and senior high zones set up by plan
B-Alternative are the same zones as were recommended
by HEW in its previous report of July 7, 1969, and are
reflected in maps attached to that report. The statistical
data set out in plan B-Alternative, as well as on the cor
responding maps, indicates a total of 1744 students in the
zone drawn for Eanes-Woodcock Junior High School Com
plex (grades 6-9). On the other hand, a current analysis
by our pupil personnel division indicates there are actually
approximately 2693 students in the zone in grades 6-9.
This is an error of over 900 students in the HEW figures.
Consider this in light of the fact that the normal capacity
of the school is 1760 students and the fatal absurdity
of the HEW error becomes apparent. In a similar man
ner, the statistics in Plan B-Alternative indicate a total
of 1291 students in the Mobile County Training School
Zone, (in grades 6-7). Whereas, a current statistical
analysis indicates that there are actually only approxi
mately 362 such students in the zone. This is an error of
over 900 students. In a similar manner plan B-Alternative
purports by its statistics to assign 2602 students to the
Phillips-Washington-Fonville Complex; whereas, in the
School Board Affidavit, Filed January 30, 1970
792a
zone drawn in the plan there are actually approximately
3253 students who must attend the complex. This is an
error of over 650 students. In a similar manner plan B-
Alternative purports by its statistics to assign 2606 stu
dents to the Dunbar-Central Complex, while in actuality
there are only 2214 students in the zone drawn in the plan;
an error of almost 400 students. These same errors are
also found in Plan B, as well as in Plan B-Alternative.
There are other similar errors in plan B-Alternative, all
of which combine to make the plan impossible of imple
mentation.
I turn now to plan B-I-Alternative. This plan apparently
pertains only to elementary schools. It is subject to the
same general criticisms already stated, and it contains sim
ilar statistical errors, resulting from the fact that the entire
plan is based on outdated, inaccurate statistics. It is to me
the most objectionable of all of the several plans, because
it would require massive cross-town bussing of young ele
mentary school children (the exact amount we are not cer
tain, but approximately 14,000 students in grades 1-5 each
year) and because it would shuffle these young children
from school to school allowing them to remain in each
school for only one or two years, or sometimes three years,
at the most. Both of these features are educationally un
sound.
Purely as a practical matter, this plan could not be im
plemented because it is founded on a statistical basis which
is inaccurate. There are other practical defects; for ex
ample, no provision at all is made for the approximately
100 sixth grade students residing in the South Brookely
zone.
School Board Affidavit, Filed January 30, 1970
793a
All of these errors and defects combine to make plan
B-I-Alternative educationally nnsonnd, administratively
infeasible, and totally unworkable.
A further important factor not accounted for in the
HEW plans, and apparently not even considered, is the
financial factor. Implementation of the HEW plans would
result in the following costs and expenses to the school
system, according to a study made by the professional per
sonnel of the Business Affairs Division:
1. Cost of additions to and conversion of school plant
facilities in order to meet changes of use and changes of en
rollment required in the various HEW plans, $10,495,200.00.
2. Loss of value of buildings and sites to be closed and
abandoned, or at least not used, according to requirements
of the various HEW plans, $2,145,900.00.
3. Acquisition cost of new busses in order to meet the
additional transportation required by the various HEW
plans:
Plan B — $321,457.37 (59 busses)
Plan B-Alternative — $206,932.74 (38 busses)
Plan B-I-Alternative —$1,269,484.19 (233 busses)
4. Recurring yearly expense, for operating each year
the additional busses required to meet the additional trans
portation required by the various HEW plans:
Plan B — $ 92,700.80 (59 busses)
Plan B-Alternative — $ 59,705.60 (38 busses)
Plan B-I-Alternative — $366,089.60 (233 busses)
School Board Affidavit, Filed January 30, 1970
794a
The school system simply does not have the capability of
meeting these increased costs and expenses, whether it be
a matter of immediate or future cash outlay, or the absorp
tion of a loss due to the closing of facilities.
The HEW plans apparently make no provision what
soever for special classes to accommodate the several hun
dred exceptional (slow, retarded, handicapped, etc.) stu
dents in the system who require special classes, teachers,
and arrangements. This is most unfortunate.
The HEW plans are totally devoid of any consideration
for the future. As far as I have been able to determine
from examination and study of the HEW plans, the serv
ices of the Mobile Housing Board and the City Planning
Commission were not utilized or considered in developing
either of the three alternative plans. The original source
material from which the plans were developed was pre
pared by HEW representative Dr. Joe Hall in connection
with his previous report of July 7, 1969. In his deposition
testimony Dr. Hall admitted that these agencies were not
consulted. As a result, expected residential growth in the
downtown area is not allowed for in the HEW plans; on the
contrary, rather than allowing for anticipated growth, the
HEW plans would unwisely close schools in this area.
After a close and careful study of all of the several dif
ferent plans submitted to the District Court by HEW on
December 1, 1970, it is my firm opinion that all of these
plans are, as submitted to the court, educationally unsound
and administratively infeasible; and that they are based
upon statistical data which is to a large extent inaccurate,
or at least it is inaccurately stated in the plans, so that the
plans are incapable of effective implementation.
School Board Affidavit, Filed January 30, 1970
795a
I have had occasion to examine a copy of a document
given by counsel for the United States Department of Jus
tice to the District Court in conference on January 22,1970;
the document is entitled Projected Enrollment Changes be
tween 1969 and 1970. I have examined the document and
have compared the figures contained therein with infor
mation gathered and maintained on a current basis by the
professional educators and statisticians of our Pupil Per
sonnel Division. Based upon this study and comparison,
it is apparent to me that the projections and figures put
forth in that document in the columns labeled HEW plan B,
HEW plan B-Alternative, and HEW Plan B-I-Alternative,
are based upon old, outdated statistical data and that they
are inaccurate.
I participated in the development and preparation of the
revised desegregation plan submitted by the School Board
to the District Court on December 1,1969. I am aware and
here state that during this process a conscientious effort
was made to increase the extent of integration in the school
system and to create a unitary school system. In comparing
this plan with previous plans filed by the Board or ordered
by the Court it is immediately apparent that many of the
zones, particularly in the elementary schools, are substan
tially similar. This results from a recognition by profes
sional educators of the educational soundness of the neigh
borhood school concept, as well as the practical necessity
of developing zones and boundaries with due regard to a
multitude of purely practical factors such as capacities of
schools, size of zones, the location and density of popu
lation, accessibility, traffic flow patterns, the routes of com
mercial transportation, the location of railroad tracks, ma
School Board Affidavit, Filed January 30, 1970
796a
jor thoroughfares, business and industrial areas, the nature
and condition of routes of travel, other safety hazards and
barriers such as rivers and streams and interstate high
ways. The fact that the zones are similar however, cannot
be taken to mean that they are the same zones from the
racial standpoint, because the population in the area of the
county where the zones here concerned are located is to
a large extent of a transitory nature to begin with, plus the
fact that most of this area is undergoing a subbstantial and
rapid overall ethnic change. Therefore, a zone previously
drawn in a particular manner in order to avoid integration
could now be drawn in the exact same manner and yet
create or increase the extent of integration.
I have also had occasion to examine and study the de
segregation plan set forth by the District Court in its order
of January 31,1970, and the statistical data being prepared
by the professional educators and statisticians of our Pupil
Personnel Division based upon the contents of that plan.
From this examination and study, it is apparent to me that
the statistical extent of integration is larger and more ex
tensive under the court ordered plan than under the pro
posed revised plan filed by the Board on December 1, 1969.
In studying this plan it is apparent to me that the court
devised it with the conscious intent of increasing the extent
of integration and creating a unitary school system.
/ s / James A. McP herson
James A. McPherson
School Board Affidavit, Filed January 30, 1970
797a
Comes now the Board of School Commissioners of Mobile
County and files this Motion For Stay and would respect
fully show unto Your Honor as follows:
I.
Pursuant to 28 U.S.C. 2201, and such other statutes or
rules of law as may be applicable, Petitioner, the Board of
School Commissioners of Mobile County, is preparing an
action to be filed as soon as possible in this Honorable
Court calling upon the court to construe, determine and de
clare the constitutionality of the law recently enacted by
the Legislature of the State of Alabama, a true copy of
which is attached hereto, marked Exhibit A.
II.
Petitioner is a public body corporate and an agency of
the State of Alabama, and is bĵ law invested with the power
and responsibility of operating the public schools of Mobile
County, Alabama.
III.
Heretofore, on January 31, 1970 this court entered an
order by which it required the Petitioner to undertake and
carry out a reorganization of attendance zones and a re
assignment of students in a portion of the Public School
System of Mobile County. A copy of this order is attached
hereto, marked Exhibit B. In order to comply with the
terms and provisions of this order, Petitioner will of neces
sity be required to assign particular students to attend par
ticular schools on account of their race, and will be required
School Board Motion for Stay, Filed March 17, 1970
798a
to assign particular students to attend particular schools
for the purpose of achieving equality in attendance or in
creased attendance or reduced attendance of persons of a
particular race at these schools, and will be required to re
organize school attendance zones for such purposes.
IV.
Heretofore, on February 4, 1970, Petitioner adopted a
resolution instructing the Superintendent of Schools and
his staff to comply with this January 31, 1970 Order of the
Court, and to complete implementation of the order of the
court by March 16, 1970.
School Board Motion for Stay, Filed March 17, 1970
V.
Heretofore, on, to wit, February 27, 1970 the Legislature
of the State of Alabama passed an act relating to the as
signment of public school students within the State of Ala
bama, declaring that no student shall be assigned to 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
attendance, at any school, of persons of one or more partic
ular races, creeds, colors, or national origins; and no school
district, school zone or attendance unit, by whatever name
known, shall be established, re-organized or maintained for
any such purpose. This act was signed into law by the Gov
ernor of the State of Alabama on, to wit, March 4, 1970. It
is thus a valid law of the State of Alabama. A copy of
this law is attached hereto, marked Exhibit A.
799a
VI.
Heretofore, on March 4, 1970, Petitioner adopted a
resolution instructing the Superintendent of Schools to
comply with this law of the State of Alabama, as it was
bound to do, being an agency of the State itself.
VII.
Heretofore, on March 16, 1970, this Honorable Court
taking cognizance of both its own order of January 31,
1970 and of the act of the Alabama Legislature signed
into law by the Governor on March 4, 1970, but without
seeking to determine the constitutionality of the law, or
declare the unconstitutionality thereof, entered an order
requiring Petitioner to follow and comply with its previous
order of January 31, 1970, within three days, failing in
which a fine of $1,000 per day is assessed against each of
the five members of the Board of School Commissioners
until there is compliance. A copy of this order is attached
hereto, marked Exhibit C.
School Board Motion for Stay, Filed March 17, 1970
VIII.
Petitioner desires to obey the law, however, by this
combination of circumstances Petitioner is placed in a po
sition of unavoidable conflict. Petitioner cannot at the
same time be or remain in compliance with the Alabama
Law and the orders of this Honorable Court hereinabove
referred to. If Petitioner complies with one it will auto
matically be in disobedience to the other; and vice versa.
The only way in which the conflict can be resolved is for
this court to consider and determine the matter of the
800a
constitutionality of this Alabama Law. To this end Peti
tioner is preparing for the purpose of filing in this Hon
orable Court as soon as possible an action calling upon
this court to construe, determine and declare the consti
tutionality of the Alabama Law.
IX .
Petitioner respectfully moves that enforcement of the
orders of this Honorable Court dated January 31, 1970
and March 16, 1970 be stayed pending the filing of such
action, a hearing in the action and a determination of the
issues presented in that cause.
School Board Motion for Stay, Filed March 17, 1970
801a
School Board Motion for Stay, Filed March 17, 1970
EXHIBIT A
Enrolled, AN ACT, TO PREVENT DISCRIMINATION
ON ACCOUNT OP RACE, COLOR, CREED OR NA
TIONAL ORIGIN IN CONNECTION WITH THE EDU
CATION OF THE CHILDREN OF THE STATE OF
ALABAMA. BE IT ENACTED BY THE LEGISLA
TURE OF ALABAM A: Section 1. No person shall be
refused admission into or be excluded from any public
school in the State of Alabama 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 attend
ance or reduced attendance, at any school, of persons of
one or more particular races, creeds, colors or national
origins; and no school district, school zone or attendance
unit, by whatever name known, shall be established, re
organized or maintained for any such purpose, provided
that nothing contained in this section shall prevent the
assignment of a pupil in the manner requested or au
thorized by his parents or guardian, and further pro
vided that nothing in this section shall be deemed to
affect, in any way, the right of a religious or denomina
tional educational institution to select its pupils exclu
sively or primarily from members of such religion or
denomination or from giving preference to such selection
to such members or to make such selection to its pupils
as is calculated to promote the religious principle for
which it is established. Section 3. The provisions of this
Act are severable. If any part of the Act is declared in-
802a
valid or unconstitutional, such declaration shall not af
fect the part which remains. Section 4. All laws and
parts of laws in conflict herewith are hereby repealed.
Section 5. This Act shall become effective upon its pas
sage and approval by the Governor, or upon its otherwise
becoming a law.
School Board Motion for Stay, Filed March 17, 1970
803a
Heretofore, on March 19, 1970, by letter to the Clerk of
the District Court, Appellant (The United States Depart
ment of Justice) has sought informally to supplement the
Record being certified to the Court of Appeals by furnish
ing the Clerk of the District Court with certain copies of
maps and statistical tables and requesting their certifica
tion.
Objection must be taken to this informal creation of a
record for certification to the court. Defendant would
respectfully show:
1. The documents have not been admitted into evidence
by the District Court; nor were they even offered into
evidence.
2. Defendants have not been served, formally or in
formally, with a copy of the documents.
3. The documents have not been properly authenticated.
4. There is no testimony before the court as to the
accuracy of these documents, how they were prepared or
by whom, or supporting them in any other manner.
W herefore, Defendant respectfully moves:
(a) That the documents concerned not be certified to the
Court of Appeals.
(b) That the documents concerned be returned to counsel
because they are not a part of the record in this cause.
(c) That the Court act upon this motion immediately.
School Board Objection to a Portion of the Record,
Filed March 27, 1970
804a
Pursuant to Order of this Court of July 28, 1970, the
following are hereby appointed as a Bi-Racial Committee
in this cause for the purposes hereinafter recited:
Dr. Sanford D. Bishop
Mr. Isom demon
Mr. M. C. Farmer
Mrs. H. Eugene Gibbons
Mrs. T. C. Gill
Mr. Arthur Outlaw
Bishop W. T. Phillips
Mr. 0. B. Purifoy
Mr. H. Minge Reed, Jr.
Mr. Beverly R. Wilson, Jr.
This Committee shall have the responsibility:
(1) To recommend to the Mobile County School
Board and the Court ways to maintain a unitary
system.
(2) To review the operation of the majority to
minority transfer rule and the transportation system.
(3) To assist the Mobile County School Board in
presenting to the Court problems encountered by the
Board in the operation of its desegregation plan hereto
fore or hereafter modified and approved by this Court
or the Court of Appeals for the Fifth Circuit.
(4) To consider the selection of school sites and
suggest other special assignments as the Court may
direct.
District Court Order of August 12, 1970
805a
District Court Order of August 12, 1970
The Committee is authorized to make recommendations
to the School Board and the Court in connection with these
activities. The Chairman is to alternate annually between
the races. Mr. Beverly R. Wilson, Jr. is appointed Chair
man for the ensuing twelve months.
D one at Mobile, Alabama, this the 12th day of August
1970.
Daniel H. Thomas
United States District Judge
806a
Pursuant to the Order of the United States Court of
Appeals for the Fifth Circuit of August 4, 1970, in this
case, the Order of this Court of July 13, 1970, as amended
July 30, 1970, is F urther A mended so that the elementary
schools known as Robbins and Hamilton are to be paired.
Done at Mobile, Alabama, this the 12th day of August
1970.
District Court Order of August 12, 1970
Daniel H. Thomas
United States District Judge
807a
B e f o r e :
Bell, A insworth, and Godbold,
Circuit Judges.
Court of Appeals Order of September 18, 1970
B y the Court :
It I s Ordered that intervenors-appellees’ motion for a
stay of this court’s order of A ugust 28, 1970, pending the
decision on the petition for rehearing en banc is hereby
Denied.
The Petition for Rehearing is Denied and no member
of this panel nor Judge in regular active service on the
Court having requested that the Court be polled on rehear
ing en banc, (Rule 35 Federal Rules of Appellate Pro
cedure; Local Fifth Circuit Rule 12) the Petition for
Rehearing En Banc is Denied.