Carr v. Montgomery County Board of Education Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 29521

ARLAM CARR, et al.,
plaintAffs-Appellants,

NATIONAL EDUCATION ASSOCIATION, INC.,
plainti f f-Inte rvenor,

UNITED STATES OF AMERICA,
Amicus Curiae, 

vs.
MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees«,

Appeal rom the United States District Court for the 
Middle District of Alabama

BRIEF FOR APPELLANTS

FRED D. GRAY 
SOLOMON Sc SEAY, JR.
GRAY, SEAY & LANGFORD 
35 > Dexter Avenue 
Montgomery, Alabama 36104

JACcC GREENBERG 
JAM5S M. NABRIT, III 
NORTAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS
Page

Table of Authorities ................
Issues Presented for Review..........

Statement
History of the Litigation . . . .
Results Under Freedom of Choice .

The H.E.W. Plan ................
The Board's Plan................
plaintiffs' Objections..........

Argument
The Board's Plan Fails to 
Identifiable Schools and 
Essential Characteristic

Eliminate Racially 
Thus Retains the 
of a Dual School System. . .

The Board's Decisions to Close McDavid Elementary, 
Kale Elementary and Booker T. Washington High 
School Retard Desegregation and Unfairly Place 
the Burden of Desegregation Upon Black Students .

Conclusion

ii
1

2
5
5
8
11

12

31
38

l



TABLE OF AUTHORITIES
Page

Cases

Adams v. Mathews., 403 F.2d 181 (5th Cir. 1968) 13, 24

Bivins v. Board of Public Educ. of Bibb County,
284 F. Supp. 888 (M.D. Ga. 1967)................

Brewer v. School Bd. of City of Norfolk, 397 F.2d
37 (4th Cir. 1968)..............................

Brice v. Landis, Civ. No. 51805 (N.D. Cal.,
August 8, 1969) ................................

Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955). .
Brooks v. County School Bd. of Arlington County,

324 F.2d 303 (4th Cir. 1963)....................
Brown v. Board of Educ., 347 U.S. 483 (1954); 349 U.S. 

294 (1955)......................................

31

21

34
24

24

24, 31

Carr

Carr

Carr

Carr

Carr

Carr

Cato

v. Montgomery County Bd. of Educ., 232 F. Supp.
705 (M.D. Ala. 1964)................................
v. Montgomery County Bd. of Educ., 11 Race Rel.
L. Rptr. 582 (M.D. Ala. 1965)......................
v. Montgomery County Bd. of Educ., 253 F. Supp.
306 (M.D. Ala. 1966)................* ..............
v. Montgomery County Bd. of Educ., 289 F. Supp.
647 (M.D. Ala. 1968)............ ....................
v. Montgomery County Bd. of Educ., 400 F.2d 1 
(5th Cir. 1968) ....................................
v. Montgomery County Bd. of Educ., 402 F.2d
784 (5th Cir. 1968) ................................
v. Parham, 297 F. Supp. 403 (E.D. Ark. 1969)........

Cato v. Parham, Civ. No. PB-67-C-69 (E.D. Ark.,
July 25, 1969)....................................

Davis v. School Dist. of City of Pontiac, Civ. No. 32392 
(E.D. Mich., February 17, 1970) ..................

Dove v. Parham, 282 F.2d 256 (8th Cir. 1960)
Dowell v. School Bd. of Oklahoma City, 

(W.D. Okla. 1965), aff'd 375 F.2d 
cert, denied, 389 U.S. 847 (1967)

244 F. Supp. 971 
158 (10th Cir.),

20

21
24

31



Page

Dowell v. School Bd. of Oklahoma City, Civ. No. 9452 
(W.D. Okla., August 8, 1969), aff'd 396 U.S.
296 (1969)......................................

Ellis v. Board of Public Instruction of Orange County, 
No. 29124 (5th Cir., February 17, 1970) ........

Green v. County School Bd. of New Kent County, 391
U.S. 430 (1968) ................................

19

22, 23

4, 12, 23,
24, 27

Haney v. County Bd. of Educ. of Sevier County, 410
F. 2d 920 (8th Cir. 1969)......................

Henry v. Clarksdale Municipal Separate School Dist.. , 
409 F.2d 682 (5th Cir.), cert, denied, 396 U.S.
940 (1969)....................................

Jackson v. Marvell School Dist. No. 22, 416 F.2d 380 
(8th Cir. 1969) (en banc) (per curiam)..........

Jackson Municipal Separate School Dist. v. Evers, 357 
F.2d 653 (5th Cir. 1966). ....................

Griffin v. County School Bd. of Prince Edward County, 
377 U.S. 218 (1964) ..........................

Kemp v. Beasley, No. 19782 (8th Cir., March 17, 1970)

19

13, 19, 24

13

25

31
13, 18, 25,
29

Keyes v. School Dist. No. 
279 (D. Colo.), stay 
(Mr. Justice Brennan

1, Denver, 303 F. Supp. 
vacated, 396 U.S. 1215 (1969) 
in Chambers)..............

Lee v. Macon County Bd. of Educ., 267 F. Supp. 458 
(M.D. Ala. 1967)............................

Louisiana v. United States, 380 U.S. 145 (1965)..........
McLaughlin v. Florida, 379 U.S. 184 (1964) ..............
Monroe v. Board of Comm'rs of Jackson, 391 U.S. 450 (1968)
Moore v. Tangipahoa Parish School Bd., 304 F. Supp.

244 (E.D. La. 1969) ................................
Northcross v. Hoard of Educ. of Memphis, 333 F.2d

661 (6th Cir. 1964) ................................
Quarles v. Oxford Municipal Separate School Dist.,

Civ. No. UC6962-K (N.D. Miss., January /, 1970) . . .

19, 28 

4
23
36
4

28

26

35-2 6

i n



Page

Raney v. Board of Educ. of Gould, 391 U.S. 443 (1968).
Ross v. Dyer, 312 F.2d 191 (5th Cir. 1962) ..........
Shapiro v. Thompson, 394 U.S. 618 (1969) ............
Singleton v. Jackson Municipal Separate School Dist., 

419 F.2d 1211 (5th Cir. 1969) ..................
Spangler v. Pasadena City Bd. of Educ., Civ. No.

68-1438-R (C.D. Cal., March 12, 1970) ........ ■
Stell v. Savannah-Chatham Bd. of Educ., 318 F.2d 425

(5th Cir. 1963); 333 F.2d 55 (5th Cir. 1964); 387 
F.2d 486 (5th Cir. 1967)........................

4, 25 
24, 26
27

28 

20

25

Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.
Supp. 1358 (W.D.N.C. 1969)..........................

Turner v. Goolsby, 225 F. Supp. 724 (S.D. Ga. 1965). . .
United States v. Board of Trustees of Crosby Independent 

School Dist., No. 29286 (5th Cir., April 6, 1970) . 28, 29

United States v. Greenwood Municipal Separate School 
Dist., 406 F.2d 1086 (5tn Cir, 1969). ........

United States v. Guest, 383 U.S. 745 (1966)..........
United States v. Indianola Municipal Separate School

Dist., 410 F.2d.626 (5th Cir.), cert, denied, 396 
U.S. 1011 (1969)................................

United States v. Jefferson County Bd. of Educ., 372
F.2d 836 (1966), aff'd on rehearing en banc, 38U
F 2d 385 (5th Cir.), cert, denied sub norn. Caddo 
Parish School Bd. v. United States, 389 U.S. 840 
(1967).............................. ............

13, 19 
22

12, 19, 25

3, 23, 24, 
28

United States v, Montgomery County Bd. of Educ., 
395 U.S. 225 (1969) ......................

United States v. School Dist. 151, 286 
(N.D. 111.), aff'd 404 F.2d 1125

F. Supp. 
’7th Cir.

786
1968). .

Valley v. Rapides Parish School Bd., No. 2923/ (5th 
Cir., Maich 6, 1970)........................

4

21, 28

19-20

Other Authorities
/

Weinberg, Race and Place 
Neighborhood School 
Catalogue No. FS 5.

—  A Legal History of the 
(U.S. Gov't Printing Office, 

238:38005, 1967) .......... 25

3-V



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO„ 29521

ARLAM CARR, et al.,
plaintiffs-Appellants, 

NATIONAL EDUCATION ASSOCIATION, INC.,
plainiiff-lnrervenor,

UNITED STATES OF AMERICA,
Amicus Curiae,

vs.
MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appcllees.

BRIEF FOR appell a nts

Issues presented for Review
1. Whether the plan approved belcw will eliminate the 

Montgomery, Alabama dual school system "root and branch" by totally 
disestablishing segregated pupil attendance patterns and 
eliminating the racial identities of the Montgomery County public

schools.
2. Whether the Board of Education met its heavy burden 

of justifying its decision to close otherwise satisfactory



schools rather than require white students to attend formerly 

all-Negro facilities.

Statement

History of the Litigation
This school desegregation action was commenced May 11, 1964

on behalf of the class of Negro schoolchildren eligible to attend 
the public schools of Montgomery, Alabama. On May 18, 1964, the 
United States was formally designated amicus curiae by the district 
court.17 Plaintiffs sought, and still seek, enforcement of their 
constitutional right to attend public schools which are not 
maintained on the basis of, or so as to perpetuate, racial 

distinctions.
in its initial opinion granting a preliminary injunction, the 

district court found the defendants to maintain "one set of schools 
to be attended exclusively by Negro students and one set of schools 
to be attended exclusively by white students" through various 
devices, including pupil assignments through the use of attendance 
areas' or 'district zones,' which areas are, according to the maps 
introduced into evidence in this case, very obviously drawn on the 
basis of race and color." 232 F. Supp. 705, 707 (M.D. Ala. 1964). 
Accordingly, the district court required the school district to take 
affirmative action to desegregate the schools other than mere 
acknowledgement of the possibility that Negro students might apply 
to transfer to white schools pursuant to the Alabama School Placement

1/
--- Thi ^ I i t H H T ^ J t T n t e r e d  its order Pri^  t° ^he Passage
of the civil Rights Act of 1964, which permits h Un its.
States t.o bring or intervene m  school desegregation i

2



Law. Id. at 709. For the 1964-65 school year, the court 
specified certain public notice of transfer rights to be given, 
and established a minimum period during which applications for 
transfer from first, tenth, eleventh and twelfth grade students 
would be accepted. Ibid. Subsequent orders entered by the 
district court accelerated application of Alabama School Placement 
Law provisions to the remaining grades, e.g_. , 11 Race Rel. L. Rptr 
582 (1965), and later required mandatory choices, honored without
reference to the criteria of the state placement law, see 253 F.

Supp. 306 (19 66).
After the decision in United States v. j^fferson_County_^ 

o£ Educ , 372 F . 2d 836 (1966), afTd on rehearin£ en banc, 380 F.
2d 385 (5th Cir.) , cert, denied sub nortu Caddo,parish School_Bd^ v. 
United States, 389 U.S. 840 (1967), the model free choice decree 
was made applicable to Montgomery County. 12 Race Rel. L. Rptr. 1200
(1967). August 17, 1967 and February 7, 1968 motions for further 
relief filed by the United States and joined in by the plaintiffs 
resulted in further order of the district court, which recognized in 
its opinion of March 2, 1968, 289 F. Supp. 647, that there was still 
a dual school system in Montgomery County; the court warned:

Third, unless the 11 freedom-of-choice " 
plan is more effectively and less dilatorily 
used by the defendants in this case, this 
Court will have no alternative except to 
order some other plan used. 289 F. Supp. at

2/
653.

2/ The district court required further specific steps to 
be taken by the Montgomery County Board of Education in 
the following areas:

/
3



August 8, 1969, plaintiffs and the United States joined in 
another motion for further relief seeking, in light of the Supreme 

' Court decisions in Green v. County School Bd. of New Kent County, 
391 U.S. 430; Monroe v. Board of School Comm'rs of Jackson, 391 
U.S. 450; and Raney v. Board of Educ. of Gould, 391 U.S. 443 (1968), 

I the adoption and implementation of a desegregation plan other than 
freedom of choice. On August 19, 1969 the district court requested 
the Department of Health, Education and Welfare to file a proposed

2/ [continued]
construction[approval of State Superintendent of Education 

to he obtained in accord with Lee, v. Macon County Bd. oJL 
Educ.. 267 F. Supp. 458, 470-72, 480-81, before contracts
let] ;

transportation [bus routes to be redrawn on a non- 
discriminatory basis; projected routes to be approved by
court];

supplementary efforts to encourage Negroes to attend 
schools which the court found were deliberately located, 
designed, constructed and operated to project a whit 
image and to discourage Negro attendance; and

faculty desegregation [a specific minimum ratio of one 
minority teacher for every six staff members in schools 
with more than twelve teachers was required for ^ ^ - 6 9  
with an ultimate goal stated of hiring and assigning teachers 
so as to produce, at each school, the approximate racial 
ratio among the faculty as existed m  the entire system].

The school board appealed that, portion of the order 
related to faculty, which was modified by a panel of this 
Court so as to eliminate the requirement of ultimate ratio 
assignment, 400 F.2d 1 (1968). shearing en banc was denied 
by an evenly divided court, 402 F.2d 784 (1968) but on 
June 2, 1969, the United States Supreme Court held that toe 
district; judge had not abused his discretion in requiring such 
assignments in order to disestablish the past pattern of 
racially discriminatory faculty placement. United Stat_s . 
Montgomery County Bd. of Educ., 395 U.S. 225 (19 9).

4



plan to disestablish the dual school system in Montgomery County, 
and allowed the school board to propose its own plan if it so 
desired. These plans were filed January 19, 1970 and February 6, 
1970, respectively. plaintiffs filed objections to both plan- 
February 19, 1970, amended February 24, 1970, which also incorporated 
certain suggestions for further desegregation. After a hearing 
February 24, the district court entered judgment approving, with 
slight modifications, the plan submitted by the Montgomery County 
Board of Education. Notice of appeal was filed by plaintiffs 

March 12, 1970.

Results under Freedom of Choice
As noted above, the Montgomery County schools operated 

pursuant to Jefferson-type freedom of choice during the school 
years 1967-68, 1968-69 and 1969-70. Prior thereto, transfer plans 
modeled upon the Alabama School Placement Law or upon the 1966 
guidelines issued by the Department of Health, Education and 
Welfare were utilized pursuant to the district court's orders.

As the court below recognized in its August 19, 1969 order 
requiring submission of new plans, three years of free choice had 
failed to eradicate the ingrained duality of the Montgomery County 
school system. Of some 68 schools operated at all grade level^, 
four enrolled only white students and 26 only black students. All

3/ The district court had required for 1969 70 that at 
least 20Yo of all black students in the system be in 
attendance at integrated schools the Board responded y 
transporting Negro students from the area sur^°u™ ^ g g 
Montgomery to previously all-white schools. In 1968-69 
there were eight all-white and 27 all-black schools. Many 
schools enrolled only one or two Negro pupils.

5 _



of the schools which had been all-black in 1964, prior to the 
issuance of the first decree in this litigation, were still all­
black. Many of the schools which had been all-white in 1964 were 
still all-white. A handful of previously all-white schools now 
had token integration, and a few enrolled.such substantial numbers 
of Negro students that they seemed in danger of turning to all-black

4/schools.
The reasons for the failure of free choice are complex and 

varied; there can be little doubt, however, that the refusal of 
the defendants to even attempt to make it work contributed heavily 
to the lack of results. The district court found in 1968, for 
example, that the school board had deliberately ere:.ted new racially 
identifiable white schools in white neighborhoods, had expanded 
identifiable black schools in Negro neighborhoods to contain the 
Negro school population, had retained a racially dual transportation 
system, had intentionally avoided scheduling athletic content 
between traditionally white and traditionally Negro schools, and 
had failed to take advantage of the opportunities presented to 
assign newly hired teachers to faculties where their race was in 
the minority. 289 F. Supp. at 650-61. It is in the light of these 
actions by which the board manifested its lack of real desire to 
implement a unitary, nonracial school system, that the efficacy of 

the plan it now proposes must be judged.

4/ As wearo students choose a previously white facility in 

through ^ref chiice^r j h a ^ t h f f i

S i s  anyVmystery In his February 24 1968 opinion,
“ S E n S E  a“ a f  m a ^ t t e L ^ s e g ^ t i o n  unlikely: See. 289
F. Supp. at 651. _ 6 _



The H.E.W. Plan
The plan drawn by the Office of Education proposed to 

reorganize the Montgomery County school system by (a) drawing 
zone lines around each school facility; (b) transporting students 
from the county area immediately adjacent.to the City of 
Montgomery to schools in which their race would be in a minority; 
and (c) pairing or clustering several city schools where application 
of the first two methods had resulted in either all-black or 
overwhelmingly black schools in this 56%-white school system.
The H.E.W. plan also recommended closing several facilities, 
including Booker T. Washington Senior High School in Montgomery, 
and grade restructuring at several rural facilities.

The H.E.W. plan noted that "the main challenge the school 
district faces. . . is the disestablishment of the twenty-three
schools that remain with all-Negro student enrollments. ’The 
removal of the. racial identity of schools within a district is 
one of the major steps toward providing, equal educational 
opportunities for all of its sfaidents. . . . "  (p- 4> (emphasis

supplied).
Simple zoning would not achieve the desired result, according 

to H.E.W.:
It will be noted that, in addition to the 
three all-Negro city schools, twelve of the 
converted all-Negro city schools would have 
white enrollments under 13%, and as low as 
4%. With such percentages, there is a f—  
question as to their continuing as identifiable 
integrated schools.

_ 7 -



Alternative suggestions will be made that will 
both provide integrated education in all of the 
district's schools and in substantial numbers 
as to provide a stable pattern of integrated 
education. (p. 11) (emphasis supplied)

Even its own recommended plan contained flaws, H.E.W.

said:
Under the zone and pairing plan herein submitted, 
there will be schools with critical minority 
group enrollments. The school district 
officials should be mindful of the need to 
improve these racial ratios and offset the 
probability of these schools reverting to one- 
race facilities. . . .The selection of sites
for new schools should be made with maximum 
consideration toward providing an integrated 
education for the students who are to attend.
(p. 22) .

Nevertheless, the Board refused to accept even the limited plan 

proposed by H.E.W.

The Board's Plan
The Board willingly adopted the portions of the H.E.W. plan 

which referred to attendance zoning, and further acceded to some 
suggestions made by H.E.W. concerning the restructuring of grade 
levels in rural schools located in the southern part of Montgomery 
County. The Board also suggested certain deviations from the 
precise zone lines recommended by H.E.W., mainly to simplify 
transportation routing (Board's Plan, pp. 3-6). It strongly 
disagreed with the remaining H.E.W. recommedations, however.

Whereas H.E.W. had recommended rerouting to the all-black 
Loveless Jr. High School some of the white students now being

> 8



transported from rural areas into the Baldwin Jr. High School, the 
Board proposed to explicitly limit transportation of "all children 
who live in a ncn-zoned [rural] area to previously white schools," 
although it recognized that this would desegregate only previou y 
white schools where sound city zoning would not accomplish this"

(p. 2) (emphasis supplied).
The Board opposed the idea of pairing any schools; rather than 

do so, it was prepared to close entirely the all-Negro Hale 
Elementary School (paired with Highland Gardens Elementary under 
the H.E.W. plan), the all-Hegro McDavid Elementary School (paired 
with Forest Avenue Elementary under the H.E.W. plan), and the all- 
Negro Booker T. Washington High School (into which a minority of

white students could be zoned).
The Board also declined to endorse H.E.W. recommendations to

pair Capitol Heights (white) and Paterson (Negro) elementanes;
Fews (Negro), Goode street (Negro) and Bellinger Hill (white) 
elementaries; and to close Chilton Elementary and reassign its

students to Loveless.
As expressed in its plan and in the testimony of the 

Superintendent, pairing was not favored because (1) it violated 
the concept of assignment to the nearest school (Tr. 17, 27, 33, 
35, 37, 38); (2) it increased the distances which children would
be required tc walk to their assigned schools (Tr. 18, 25-27, 23,
33, 35-36, 37, 38); (3) it would split community and parental
support which was essential to provide supplementary materials and

5/ References are to the transcript of the hearing held
February 24, 1970.

_ 9 _



facilities at each school (Tr. 18, 27, 33, 35, 37, 38), (4) it
would split families, with children attending different schools 
where they now attend the same school (Tr. 18, 25, 27, 33, 35,
37, 38); (5) it would make recruitment of children for Safety
patrols difficult since some schools would have grades too low 
for such duties (Tr. 18); (6) it deprived teachers of the super­
visory assistance of older children on the playground (Tr. 19);
(7) where capacities of paired schools were not equal, splitting 
of grades into sections would seem to be required (Tr. 19, 27, 33,
37/ 38); and finally, (8) pairing would often place whites in a 
greater minority than they were before (Tr. 20-21, 26). The same 
reasons were advanced for opposing H.E.W.’s -proposals regarding

Baldwin, Chilton and Loveless (Tr. 29-31).
On the other hand, H.E.W. Program Officer Miller, who was 

part of the team which developed the Montgomery County plan 
(Tr. 112) (and who had substantial teaching and administrative 
experience, Tr. 110), testified that pairing is a sound educational 
technique with numerous benefits, and it is particularly useful as 
a tool to disestablish the dual school system (Tr. 119). Miller 
testified that pairing would not adversely affect the district's 
6-3-3 grade structure (Tr. 126-27) nor require children to walk 
past one school offering the same grades as the school to which 
they were assigned (Tr. 129); that student safety patrols could be 
provided in the entire paired school area by recruiting students in 
the upper grades (Tr. 144); that the importance of all the children 
in a family attending the same school facility varied with each

> »

10



family; and that the “nearest school assignment" concept was 
relatively new, having been embraced by school boards only after 
the courts began to require integration (Tr. 149-51).

Plaintiffs' Objections
Plaintiffs objected to both the H.E.W. and Board of Education

plans as insufficient to establish a unitary school system, and
objected also to closing satisfactory but traditionally all-black
schools rather than assigning white students to them. plaintiff-
suggested greater use of the pairing device to remove the racial
identiflability of schools which would be perpetuated by the H.E.W

6/
and Board plans.

Plaintiffs supported the H.E.W. proposals to pair McDavrd and 
Forest Avenue Elementary Schools, three blocks apart, rather than 
close McDavid and send additional black students to Booker T.
Washington (Tr. 22). McDavid was constructed at the same^time as
an addition was built at Forest Avenue (Tr. 60, 120-21). Plaintiffs

r- / Plaintiffs suggested the possitle pairing of Booker T.

and/or a n d ^  a^Ce^rgia
Washington Junior High Schools.

7/ Plaintiffs also sought to require the Board to adopt the
“ -recommended pairing of Hale and Highland gardens.Whil^* cor ceding that Hale would^eventually^have^to^be^closed^ 

utilized^until IS addition to Highland Gardens which could^
the°BoarcVs p ^ ^ o s ^ g  ^ “^ “ “nSnSditiinal Wegrc ~ 
students to Paterson (Tr. 30).

_ 11



opposed the reassignment o£ Booker T. Washington High School 
students to overcrowded schools (Tr. 79) instead of bringing white

students into the school (see Tr. 77).
The district court found that the Board's plan would achieve

"[cjomplete disestablishment of the dual school system to the 
extent that it is based upon race. . and rejected plaintiffs' 
objections as "based upon a theory that racial balance and/or 
student ratios as opposed to complete disestablishment of a dual 
school system is required by the law. . . . While pairing of
schools may sometimes be required to disestablish a dual system, 
the pairing of schools or the busing of students to achieve a racial 
balance, or to achieve a certain ratio of black and white students 

in a school is not required by the law.”

ARGUMENT

The Board's Plan Fails to Elxmxnate 
Racially Identifiable Schools and 
Thus Retains the Esseixtial 
Characteristic of a Dual School System

in Green v. County School Bd. of Ne^KentOauntfr 391 U.S.
430, 438, 442 (1968), the Supreme Court held it the affirmative 
obligation of school boards to eliminate the dual biracial system 
of public education “root and branch” and establish "a system 
without a 'white' school and a 'Negro' school, but just schools." 
This Court explicated the same Constitutional standard in United 
States v. Tnc ianola Municipal separate School Dist ,̂ 410 F.2d 626, 
631 (5th cir. 1969) in referring to “a unitary school system with 
both substantially desearegated student bodies and teaching staffs."

_ 12



(emphasis supplied). Accord, Henry v. Clarksdale Municipal 
o perate School Dist.f 409 F.2d 682 (5th Cir.), cert, denied,
396 U.S. 940 (1969); TTnited States v. Greenwood Municipal Separate
School Dist., 406 F.2d 1086 (5th Cir. 1969); Kemy v. Beasley,,- 8/
No. 19,782 (8th Cir., March 17, 1970).

Judged by these standards, the plan approved below will 
not create a unitary school system in Montgomery County, Alabama. 
Although the geographic zones proposed by the Board will result in 
some mixed racial attendance at every school facility which is to 
be operated with the exception of all-black Loveless Elementary 
School, it seems clear that the system as a whole has undergone no 
substantial change. The plan will not shake loose the racial 
identities which defendants have over the years affixed to the 
schools. Those schools which have remained all-black during the 
past three years of operation under freedom-of-choice will have a 
distinctively and consistently higher black enrollment in the 
coming year than ohter schools in the system. Similarly, the 
traditional white schools remain sharply distinguishable because 
of their relatively lower black enrollments. Table 1 indicates 
the past and projected Negro enrollments at each school to be 

operated next year under the Board's plan.

§/ We but state the obvious fact that schools may remain 
racially identifiable even though they are ionger 10°/„ 
black or 100% white, cf. Adams v. Math£_ys* 403 F.2d 181 
(5 th 'cir. 1968). The Eighth Circuit has noted, for examp , 
that "[t]he admittance of 36 white students into a ormei .y 
all-Negro school still attended by 660 Negroes cannot be 
sa"id to have the effect of « n | ^ f £ ^ h | j c h j o y r
"  M 380 384 •(8th^CirhT96< , ) T i O S S r(HI 1S±II> •

_ 13



: it* •> JUA V.( •- V.. ur .-

TABLE 1
% Negro Enrollment

il
School 19 67-68 1968-69 1969-70 1970-71

Elementary:
Bear 0.0 0.0 0.0 7.4

Bellinger Hill 0.0 1.7 12.4 50.5

Bellingrath 4.7 6.8 8.3 5.9

Bellingslea 100.0 100.0 100.0 93.4
j

Booher T. Washington 100.0 100.0 100.0 91.4

Capitol Heights 8.9 14.9 22.0 33.0

Carver 100.0 100.0 100.0 89.7

Catoma 0.0 0.0t 1.5 40.7

Chilton 1.9 14.4 30.2 75.2

Chisholm 0.2 0.3 1.3 24.1

Crump — 11.1 16.7 18.1

Daisy Lawrence 100.0 100.0 100.0 94.8

Dalraida 0.0 0.2 0.2 10.9

Dannelly 0.0 0.9 0.8 10.5

Davis 0.0 0.1 1.0 7.4

Dunbar 100.0 100.0 100.0 73.8

Fews 100.0 100.0 100.0 96.0

Flowers 0.0 0.0 0.0 17.6

Floyd 0.0 0.2 2.3 15.3

Forest Avenue 1.3 4.3 4.1 31.2

Georgia Washington 100.0 . 100.0 100.0 90.1

Goode Street 43.4 100.0 100.0 94.7
iHarrison 21.1 19.2 18.1 13.2

Hayneville 100.0 100.0 100.0 79.3

14



School 1967-68 1968-69 1969-70 1970-71

Elementary; (continued) 

Head
Highland Avenue 
Highland Gardens 
Johnson 
Loveless 
McIntyre 
MacMillan 
Madison park 
Morningview 
Paterson 
pendar Street 
pine Level 
pintlala 
Southlawn

1.3 1.6

0.4 0.6

5.1 9.0

0.6 s 0.0

100.0 100.0

100.0 100.0

0.0 12.9

100.0 100.0
o • o 1.3

100.0 100.0

0.4 5.0

o•o 4.9

0.7 16.5
3.0

2.2 17.5

0.7 16.4

11.1 43.4

0.0 0.0

100.0 100.0

100.0 88.5

23.3 61.3

100.0 84.1

2.0 16.6

100.0 93.4

10.1 27.8

20.3 56.5

22.6 64.0

8.5 22.8

Junior High Schools:
Baldwin
Bellingrath
Booker T. Washington
Capitol Heights
Carver
Cloverdale

Floyd
Georgia Washington 

Goodwyn
i

1.7 2.2 3.1 33.4

3.1 6.3 13.5 19.2

100.0 100.0 100.0 91.0

1.0 1.7 2.9 17.9

100.0 100.0 100.0 96.0

1.0 1.2 1.4 15.7

0.0 0.0 0.0 18.9

100.0 100.0 100.0 84.1

10.0 6.4 5.2 14.6

15 _



School 1967-68 1968-69 1969-70 1970-71

Junior Hiqh Schools: (continued)

Hayneville 100.0 100.0 100.0 78.6

Houston Hill — 100 ; 0 100.0 84.1

Loveless ' 100.0 100.0 100.0 96.8

McIntyre 100.0 100.0 100.0 91.9

Montgomery County 0.8 1.6 7.8 62.9

Hiqh Schools:
Carver 100.0 100.0 100.0 72.4

Jeff Davis — 12.5 5.6 28.2

3 9 5.9 9.6 30.9Lanier
0.9 0.8 1.7 25.3Lee

Montgomery County 1.6 2.7 5.5 59.9

(Source: Jefferson reports filed with the district court June 7,

1967; September 16, 19 68; June 6, 19 69; district court1s order of

February 25, 1970).
The fact of continued racial identifiability is shown 

graphically on the following page, using the junior high schools 
as an example.. (The pattern is the same for elementary schools 
but we have not prepared a chart because of the complexity caused 
by the greater number of schools it is obvious in the high schools

from Table 1, above).

\

- 10



sn
oo

-W
^S

 
^

*■" /* _ . . IV/.IVyUUUW \ IV

C\-c\i£fsOftv.€. 

C.ftPVTOL. VVe\<3-ViT5 ■

FUOXI5 • 

■&£LU£6̂ P\Trt- 

— * *

HM̂ evivuv.6 ■

\-k)OSTotO \V ( L.U. .

T3ooK&£~T, U)fVScVlf̂ -Tcrl

fAc-X̂ TSRe

l_0\j 6LE-SS ■

6/o USG-PsO ^TOD&^T £MR0WUWE^T



The chart makes evident that the traditionally white schools

remain clustered at the bottom of the scale; all have less than
20% black enrollment with the exception of Baldwin, which will
be one-third Negro under the Board's plan. In contrast, none of
the former all-black junior high schools in this 56%-white system
has a black enrollment less than 78.6%. To the Negro parent or
child looking at the Montgomery County school system, little if

9/
anything has changed.

The district court erred in concluding that “ [p) lamtiffs' 
objections. . . appear to be based upon a theory that racial
balance and/or student ratios as opposed to the complete disestablish 
ment of a dual school system is required by the law." plaintiffs 
did not seek and do not here urge that every school have a 44%-black 
enrollment. What plaintiffs are entitled to is the disestablishment 
of student assignment patterns which consistently retain the racial 
identities of the Montgomery County public schools.

9/

10/

If one considers racially identifiable those schools with 
less than a 15% minority enrollment for purposes ° L  22% cf ' 
then 47% of the black junior high school students and 22% of 
the white junior high school students will / ^ e n d  r.aoi y _
identifiable Negro and white schools, respectively, during 
It 10-71. Applying this criterion to the entire system, 43/> 
of the black students and 22% of the white students at all 
grade levels will be assigned to such racially identifi
facilities.

we are in complete accord with the recent f  R a t i o n  of
p e r c L S ^  - r ^ s S o o f j o ^ a n l J e r e

even one school might have a black majority an unemotionally
considered^^ h e ”1 syste^is^unitissd^ within the" Supreme Court‘d
Alexander requirement." Kemp v. Beasley, supra, slip op 
pp” 14-16. The fatal defect of Montgomery County s P 
S a t  perfect racial balance is not achieved at every school, but 
tl>at the racial identity of no school is eliminated.

- 18



Defendants argue that they have applied an objective standard 

in the drawing of zones, and that they are thus relieved of 
responsibility for the resulting continued segregated pattern of 
attendance. We see no validity in such an argument.

In the first place, the Board adopted this "objective 
standard" with full knowledge that it would not meet its affirmative 
Constitutional responsibilities by so doing. It was aware that 
neighborhoods are custom-segregated (cf.. Henry, v. Clarksdale 
Municipal Separate School Dist^  supra) in Montgomery (Tr. 54) but 
it made no effort to overcome this pattern (Tr. 54-55). It knew 
the natural effect of the kind of zoning it proposed was to 
produce heavily black and heavily white schools (Tr. 46-47). The 
school district may not permissibly continue its past discriminatory 
assignment policies by the present application of neutral standards 
which do not achieve the result of dismantling the dual system.
This is true whether the method used is free choice or geographic 
zoning. Otherwise "the equal protection clause would have little- 
meaning. Such a position 'would allow a state to evade its 
constitutional responsibility by carve-outs of small units."'
Haney v. county Bd. of Educ. of Sevier County, 410 F.2d 920, 9zi 
(8th Cir. 1969). See Dowell v. School Bd. of Oklahoma City, Civ.
No. 9452 (W.D. Okla., Aug. 8, 1969), affhi 396 U.S. 296 (1969);
Keyes v. School Dist. No. _U_jenyer, 303 F.Supp. 279, 289 (D. Colo.), 
stay vacated, 396 U.S. 1215 (1969) (Mr. Justice Brennan, in Chambers) 

Henry v. clarksdale Municipal Sepa_ra^_S^Ql_Pigt^/ * a-; —  ̂  
States v. Greenwood Municipal Separate School_Dist_._, supra; UnjLted

States v. Tndlanola Municipal SeparateySchool_DistiJ supra; Valley

19 _



V. Pap-ides parish School Bd.f No. 29237 (5th Cir., March 6, 1970); 
Cato v. Parham, 297 F. Supp. 403, 409-10 (E.D. Ark. 1969); Cato v. 
Parham, Civ. No,. PB-67-C-69 (E.D. Ark., July 25, 1969); Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1358 (W.D.N.C. 
1969); Spangler v. Pasadena City Bd. of Educ^, Civ. No. 68-1438-R

(C.D. Cal., March 12, 1970).
Furthermore, it is established in this case that the school 

board is directly responsible for its present inability to 
substantially desegregate the schools by simple zoning. The

district court wrote in 1968:
The evidence further reflects that the 
defendants have continued to construct 
new schools and. expand some existing 
schools; certainly, there is nothing 
wrong with this except that the construction 
of the new schools with proposed limited 
capacities geared to the estimated white 
community needs and located in predominantly 
white neighborhoods and the expansion o~ the 
existing schools located in predominantly ^
Negro neighborhoods violates both the spirit 
and the letter of the desegregation plan for 
the Montgomery County School System. Examples 
of this are the construction of the Jefferson 
Davis High School, the peter Crump Elementary 
School and the Southlawn Elementary School 
all in predominantly white neighborhoods -- 
and the expansion of Hayneville Road Schoo 
and the Carver High School, both in predominantly 
Negro neighborhoods. The location of these 
schools and their proposed capacities cause the 
effect"of this construction and the expansion to. 
perpetuate'the dual school system based on race 
Tn the Montgomery County School System. 289 F. 
Supp7~at 651 (ernphasis supplied) .

Similar instances are revealed in the record. For example, McDavid 
Elementary School, an all-Negro school, was constructed only three 
blocks from Forest Avenue Elementary at the same time that an 
addition to the latter was built with sufficient capacity to house 
white students in the area (Tr. 60). The influence of such school

_ 20



construction upon neighborhood patterns is not to be disparaged. 
■■Putting a school in a particular locution is the active force 
which creates a temporary co-unity of interest among those who 
at the moment have children in that school." Swann v. Ch^lotte^

^ 1P.nh,„c Bd. of Educe., SSES, 300 F- SUPP- 3t 13M (em£>haSiS
omitted). It is the school district's responsibility now to 
disestablish what it has created. See United,States v. School
nlst, 151, 286 F. supp. 786. 799 (N.D. 111.). 404 1125
"(7th Cir. 19 68) ; Brewer v. s c h o o l ^ J l J ^ ^  397 F.2d

37 (4th Cir. 1968) .
When the power to act is available, failure 
to take the necessary steps so as to negat 
nr alleviate a situation which xs harmful 
fs as «ong as is the taking of affrrmatrve 
steps to advance that situation.

~sKli'Kffi SHs'Sis-..
For a school Board to acquiesce in a housing
? S ^ ? t y nf o f S e rS v : n t ^ : e ^ e S ^ d a|arac- 
^ o ^ C f  f o r ^  l o S rSoCab?Sg;tena S eignore 
S l o w e r !  control and responsibility h Board

c ^ 1 L o r S n d ^ b l i ^ l y 9
announce that for a Negro ^ “^ ^ “mSs^do isattendance at a ^ s c h o o l ^ l l ^ e  mast_ ^

SFuiiet'f'aduS iEif!;°wUhbliisaprejudices and 
opposition to integrated housing.

Davis v. School Dist. of Cia_gllS£li^' Clv' K°' 32392 <E'D'

February 17, 1970)(slip opinion at pF■ 13-14>'



‘.U jTr. J ' 'M ■ • * ' - -' - *•1L -V C-»v

Finally, the Board may not justify its failure to dismantle 
the dual system by reference to any "nearest school assignment" or 
••neighborhood school" concept.^ "Standards of placement cannot be 
devised or given application to preserve an existing system of

11/ We submit that the recent decision of a panel of this 
court in Ellis v. Board of Public Instruction of Orange 
county n!t% 1 24 '(5th Cir.. Feb. 17, 19 ToT. is not controlling 
fn^the" circumstances of this case. First, Ellis purported to 
permit detention of a number of all-white and all-black schools 
upon the explicit finding that the racial composition of such 
schools resulted from "residential patterns." While the schoo 
district may make such a claim here, the evidence and prior
findings in this case refute it, showingclear^  theresidential patterns in Montgomery have developed with the 
encouragement and facilitation of defendants racially 
qeareaated public schools. And while residential patterns 
might also be the result in part of private discriminatory or 
non-discriminatory action, the Board would still not be 
of its dutv "[T]he involvement of the State need [not] be 
exclusive or direct. In a variety of situations the Court has 
found"state action of a nature sufficient to create rights 
under the Equal protection Clause even though the participate 
of the State was peripheral or its action was only . 
severa/co-operative forces leading to the constitutional 
violation." united States v. Guest, 383 U.S. 74b, /bb dp ,

Second, the neighborhood school system defined in was
one in which school attendance was based solely on h_1d
distance" assignment and school capacities. The court held 
that " r i a n c e s V  arbitrary cone lines or for reasons of 
traffic, while reasonable on their face, might destroy the 
integrity and the stability of tie entire assignment^lan.
Hence if Orange County, the school sys-tem domaintain a neighborhood assignment plan, it would have to^do 
so without such variances (slip opinion at p. 1C) . Y - 
Superintendent1s own admission, other factors such as more 
c X e n i e n f  transportation routings - r e  considered rn drawrng 
zone lir.es in Montgomery. More important, large \\
students are not assigned on the basis of zones at all,

blach'

I m / s ^ f f i ^ l / t ^ S t ^  § 5 ^ i h . ° L S l £ £ > d  not preclude 
the employment of differing assignment methods m  other sc o 
districts to bring about unitary school systems.

22



11/ (continued)
Finally, should the Court consider Ellis, applicable to 

the facts of this case, we submit that ^  was n̂rong y
^ S L S S i l h  every^vestig/of school^segregation as
yequireS by Gre|n v.
affirmative actioHTS? full desegregation would brush aside 
the holding of Jefferson I:

the only adequate redress for, a 
Previously overt system-wide policy or 
seqreqatlon directed against Negroes a_s_ 
a c o llictive~entity is a system-wide 
policy of integration.

united States v. Jefferson County Bd. of Edpcĵ ,
«Ta— (9th Cir ) aff'd on rehearing en b̂ nc./ 380 F.2d 
385’ (1966) , cert. denlidTub-nonu Caddo parish School Bo.grd 
^ united StatesT 389UhsT840 (1967) (emphasis in original) .

That command and remedy —  to undo the effects of the 
past -  was not lightly arrived at by the jeff||s|n court
nor by the Green court. The point -ho'discriminatedprotection clause does not enjoin those who discriminate
in the nast (through school site selection, state encour g 
■ c . m-mjated housing segregation and compulsory racial 
ichSoJ segregation)* to^undo the effects of such discrimination, 
then the light assured black children rests on quicksand, 
in Louisiana v. united States, 380 US. 145, 154, (196.),
cited by the Green court, it was held:

the court has not merely the power 
but the duty to render a decree which 
will so far as possible eliminate the 
discriminatory effects of the past as well 
as bar like discrimination m  the future.

"Residential patterns" do not lessen the school district's burden t^desegregate its schools, for the Green court said, 
391 U.S. at 442 n. 6 (emphasis supplied):

in view of the situation found in New 
Kent County, where there is. no reside n^il 
seqreqatlon, the elimination of the dual 
icfel ^ t e m  and the establishment of a 
‘unitary non-racial system could - ̂  
readily achieved. . . by means of geographic
zoning. . . .

23



imposed segregation. Nor can educational principles and theories 
serve to justify such a result." Dove v. Parham, 282 F.2d 256, 258 
(8th Cir. I9 60);' accord, Ross v. Dyer, 312 F. 2d 191, 196 (5th Cn . 
1962); Brooks v. County School Bd, of Arlington County, 324 F.2d

11/ (continued)
Ellis construed broadly tacitly overrules.Jefferson,

Adams v." Mathews, supra, Henry v. Clarksdafe, supra and 
their progeny^ it spas the strength from Green and 
resurrects the Briggs dictum; Ellis does to Jefferson an 
Green what Briggs did to Brown: after  ̂a system-wid^^
policy of segregation, neutrality on the part of school 
officials will again satisfy the equal protection clause 
If after sixteen years of protracted litigation the ®3ual 
protection clause designates the segregated housing pattern 
and school district policies of discriminatory si 
selection as the final arbiter of pupil assignment, it has 
played a cruel joke upon the black school children of this
Nation.

Ellis will not end school desegregation litigation.
Rather it will begin a new era marked by new kinds of proof 
and more complex trial records. An equi-distance zoning 
plan for other districts will result m  numerous hearings 
to determine whether the school district s policies on 
school construction and site selection have been racial! 
discriminatory. Those findings have already been made i 
i-his case A similar attack against municipal authorities 
will also develop to demonstrate that zoning ordinances and 
other city policies have been and are designed to insure 
that blacks and whites live in separate communities

It is too late in the day for defendants to claim that 
current^residential patterns were not affected by segregated 
schools. The only effective remedy is to destroy the 
incentive to move to a particular area of the city where 
hSSini patterns make it doubtful that school desegregation 
will take place under zoning by substantially desegregating
the system.

2A



303, 308 (4th Clr. 1963); cf. Municipal Separate School
nist, V. Evers. 357 F.2d 653 (5th Clr. 1966); Shell v. Savannah- 

Bd. of E d u c . 318 F.2d 425 (5th Clr. 1963), 333 F.2d 55

(5th Cir. 1964), 387 F. 2d 486 (5th Cir. 1967).
As Mr. Miller testified at the hearing below, the so-called 

neighborhood school concept is a recent invention of school 
districts which were more than willing to pay it no heed in the 
past in order to maintain segregation. There is reason to believe 
it has been honored more in the breach than in performance.

Weinberg, Face and Place -  A
School (D.S. Gov't Printing office, Catalogue No. FS 5.238:38005, 196/).

The district court should have required the school distract to 
implement the school pairings recommended by H.E.W. as well as 
those suggested by plaintiffs in order to increase desegregation. 
Pairing has received repeated judicial approval. Raney v. Board 
of Educ. of Gould, supra, 391 D.S. at 448 n. 2; KemE_v. Beasley 

surpa; united States v. indiauKdi^^
supra, 410 F.2d at 630. The purported objections to the procedure 
raised by defendants range from the frivolous to the legally 

insufficient.
The Board argues that pairing ought not be required because 

it does not accord with the neighborhood school assignment concept 
which the district now wishes to pursue. "When racial segregation 
was required by law, nobody evoked the neighborhood school theory 
to permit black children to attend white schools close to where 
they lived. . . .  The neighborhood school theory has no standing 
to override ' the Constitution." Swann v. c h ^ p t l o t ^ c j e l * ! ^

25



of Educ., supra, 300 F. Supp. at 1369 (emphasis in original).
Second, pairing will increase the distances which children

will have to walk to school. But
Where the Board is under a compulsion 
to desegregate the schools (1st Brown 
case, 347 U.S. 483) we do not think 
that drawing zone lines in such a 
manner as to disturb the people as 
little as possible is a proper factor 
in rezoning the schools.

Northcross v. Board of Educ^ of Memphi^, 333 F.2d 661, 664 (6th 

Cir. 1964).
Third, parental support will drop off and the schools will 

lose supplemental materials and facilities furnished by P.T.A. 
groups. There is no reason whatsoever to believe that parents who 
are interested in the education of their children will not continue

to support the schools they are attending.
Fourth, the district objects to pairing because it would split 

families, resulting in brothers and sisters going to different 
schools. Such a justification for the ■'brother-sister" rule has 
been explicitly rejected by this Court. Ross v. Dyer, 312 F.2d 191

(5th Cir. 1962).
Fifth, establishing Safety patrols would be rendered more 

difficult. Again, there is no reason to believe that older youngsters 

living in the part of the paired school area in which the lower 
grade school was located could not serve as crossing guards near 

their homes and then go on to school themselves.

/ 26



i i. ;;v  • :aaieSK5WMW^-“

Sixth, teacners would be deprived of the supervisory 
assistance of older children on the playgrounds. This hardly 
seems worthy of comment, but we would note with regard to all 
such arguments that the Supreme Court has held that a State may 
not justify denail of equal protection rights for the sake of 
limiting expenditures. Shapiro v. Thompson, 394 U.S. 618, 633

(1969) .
Seventh, it school capacities were not equal, grades might 

have to be split. Nothing in the H.E.W. plan suggests that this 
would happen, nor are appellants aware of the exact harm involved 
in having more than one section of a grade, as is the case at the 

present time.
Finally, we think the record clearly reveals that the m a m  

ground for the Board's opposition to pairing is that it would 
place white children in a substantial minority m  several of the 
schools. This of course is a totally impermissible criterion.

Thus, we conclude that the school district has raised no 
valid objections to the pairings suggested either by H.E.W. or by 
the plaintiffs. But the district court was obligated to go further, 
and to examine all alternative remedies which might be open to 
disestablish the dual system. Green v. County Schoql_Bd^of_NgH.

Kent County, supra.
The district court would not consider, for example, plaintiffs' 

suggested pairing of Goodwyn and Georgia Washington Junior High 
schools, because transportation of pupils between ten and fourteen

- 27 -



• t ^  /m-v- a o\ vp +■ existincf bus 3rout3s servingmiles would be involved (Tr. 42). Yet existing
Georgia Washington carry up to 891 students (of its 1,221 students] 
on rides averaging 20.6 miles one way, and existing bus routes 
serving Goodwyn carry up to 291 students [of its 1,316 students] 
on rides averaging 18.2 miles one way. (H.E.wJ Plan, pp. 23,25). 
Obviously, provision of pupil transportation is nothing new in this 
school district; the district court found in 1968 that defendants 
had maintained a biracial transportation system to perpetuate 
racial discrimination for a considerable length of time after the

entry of a decree enjoining such practices.
This Court has recently held that bus transportation is but 

one factor to be weighed along with all the.other facilities of a 
district in determining how the resources o^a school district may 
best be used to dismantle the dual system. united states; v.

in the H.E.W. Plan showing the number of s 
transported to each school.

, o/ Tn tlv s regard we note that the limitation on the court's
^  iurisdictionlSt forth in Section 407(a)(2) of the Civil

Rights Act of 1964, «  U.S C §2000c-6^a)(2) has^no^ ^
-gregation. U n i t e d ^

v .  ^ , 3 / F  ^ t T l 3 0 ;united States v. Schooj^ist^lbi., -a.£5 244,
Moore v. Tangipahoa parish Schoo.. Bd̂ _, * *nPnver
^ R e . ? y - 8i g f )l t ^ l 9 8 g 5 rTOiSa-sSie'B,̂ - ^ ° £

Independent School, Dist^, SBffik- . «*e_. 
i H i t - e^licitl]; «eco|nIi5s-th,.; court s po«r to 
compliance with constitutional s.andards see-tn i

"  K “ £ t “
(reported at 419 F.2d 1211)-

28



i ^ r d of Trustees of Crosby independent School Di.st̂ ., No. 29,286

(5th Cir., April 6, 1970).
As the Eighth Circuit has recently put it:

We do not rule that busing is a constitutional 
imperative. Busing is only one possible tool 
in the implementation of unitary schools.
Busing may or may not be a useful factor in the 
required and forthcoming solution of the elementary 
school problem which the District faces It may 
or may not be feasible to use it, m  whole or in 
part for Fairview-Watson-Murmil Heights and it 
may or may not be feasible to use it, in whole 
or in part, elsewhere in the system. Busing is 
not an untried or new device for this District.
It has been used in the past and it is being used 
fn an extent at the present.

Kemp v. Beasley, supra, slip opinion at p . 14.
During 1969-70, some 7,004 or 18% of all Montgomery County 

students were bused by the school district an average of 18.7 miles 
one way. Rearranging the present transportation routes offers hope 
of increasing desegregation, as by transporting rural white students 
to black schools in Montgomery, rather than to predominantly white 
schools in accord with the Board's plan, but it seems obvious that 
additional transportation of some, probably not a great many, 
students will be necessary in order to substantially desegregate 
the system. There is plainly no valid objection to busing that it 
is used to promote integration, for this is the Constitutional 
imperative. The board has no satisfactory theory to differentiate 
that busing which is admittedly necessary from that which it finds 
objectionable, i.e., to legally differentiate between "good" and

"bad" busing.
The Board attacks arrangements which involve transporting 

children from their zone of residence to a non-adjacent zone,

29



although Superintendent McKee implicitly admitted that the entire 
system could be desegregated through the use of non-contiguous 
zones (Tr. 90). Pupils have no inherent right to attend any 
particular school because of their place or residence. A child's 
"own neighborhood school zone" does not exist in the order of 
natural phenomena. It is the product of school board decision, 
i.e., state action. Attendance areas and the grades served by 
particular buildings are alsways subject to change and often are 
changed. There is no good reason not to use available transportation 
facilities to desegregate the schools, or to limit that transportation 
to an artificial "adjacent" zone. Segregated schools need not 
inevitably follow segregated housing patterns. There is nothing 
inexorable about such segregation; there is merely the appearance 
of inevitability. In sum, the only reason not to use buses to
integrate the schools is to keep them segregated.

Since the plan approved below fails to create a unitary school 
system in Montgomery County, Alabama because it maintains the old 
racial identities of the "black" and "white" schools without 
achieving substantial desegregation, this cause should be remanded 
to the district court for a thorough evaluation by the court of all 
possible methods and devices to achieve such substantial desegragation 
including but not limited to, pairing, contiguous and non-contiguous 
zoning, rearrangement of existing transportation routes and prevision 
of new routes, keeping some or all of the schools to be closed under

i 30



the Board's plan open to facilitate desegregation, etc.
14/

II
The Board's Decisions to Close 
MeDavid Elementary, Hale 
Elementary and Booker T. 'Washington 
High School Retard Desegregation 
and Unfairly Place the Burden of 
Desegregation Upon Black Students

The decision of the Board to close certain facilites which 
are being operated during 1969-70 accomplished two things: white
students were protected from additional travel and from being 
placed in a minority, or greater minority position, and black 
students were made to bear the brunt of integration.

14/ The district court's inquiry should be as broad as the 
scope of its authority, which is very considerable in 
school desegregation cases. Brown v. Boai^oyEduc^, 349
U S  invesied the HIStrTct courts with “Broad
powers to grant relief from racial discrimination in the 
public schools, and they were to be guided by equitable 
nrinrinles in "fashioning and effectuating" decrees. Id.
I t 299 300. Pursuant to'this grant of power, federal courts 
In school desegregation cases have ordered reopened a puhl,c 
school system which had been closed to avoid desegregatio ,

v County School Bd. of prince Edward Countv, 3// U.S. 
§1 5 ^ 6 4)-paired attendance areas high schools, D w ^ l
v sciool Bd'. of Oklahoma City, 244 F. Supp. 971 (W.B Okla 
1965)T’aff'd 375 F.2d 158 (10th Cir.), cer^  ̂ enr|d^ 389 U .S. 
847 (1967); placed a school system in receivorsh p -
-...x. a deseareqation order, Turner v. Goolsby, 22a F. Supp.
724 (S.D. Ga. 1965); and enjoined school construction pro^ec s,

tr Rnard of Public Educ. o:: Bibb County, 284 r; Supo. ̂  
Iss Im .d ! GaT l9~67) , among"other^ictions indicating the brea 
of remedial power available.

- 31 -



Thus, while H.E.W. recommended pairing Hale Elementary 
(black) and Highland Gardens Elementary (white), the Board proposed 
to close Hale, make only Negro students bear the brunt of 
additional travel, and in fact assign some of the students not 
to Highland Gardens but to Paterson, another all-black school.
These black students are thus denied the opportunity to receive an 
integrated education (Highland Gardens will be 43.4% black —  
almost exactly the community percentage —  but Paterson will be 
93.4% black). There is no dispute between plaintiffs and defendants 
about the fact that there is occasional flooding of the Hale site, 
or the need for its eventual closure or replacement. However, 
plaintiffs sought and H.E.W. recommended (Tr. 116) that the 
addition to Highland Gardens which the school district must construct 
in order to absorb any students from Hale be made large enough to 
house all former Hale students. Instead, the Board has assigned 
former Hale students to overwhelmingly black Paterson in order 
to avoid placing white students in a slight minority at Highland

Gardens.
Similarly, H.E.W. recommended pairing of McDavid and Forest 

Avenue Elementaries. The schools are ideally suited for this 
purpose, being located only about three blocks apart. pairing 
would further seem an appropriate remedy since it is readily apparent 
that the two schools were deliberately constructed for the purpose 
of maintaining segregation -  Forest Avenue having been enlarged 
to accommodate the white students in the area in the same year 
that McDavid was constructed. Once again, all the Negro students 
from McDavid would not be accepted at Forest Avenue -  to make

3



sure the white children were not placed in a minority. Many 
Negro children will be denied the opportunity to attend an 
integrated school —  Forest Avenue will be 31.2% Negro -- due 
to this deliberate action of the Board, and will be forced to 
attend Booker T. Washington (91.4% Negro) and Paterson (93.4%

Negro).
Finally, the Board and H.E.W. proposed to close Booker T. 

Washington High School, rather than assign white students to the 
facility. Again, only Negro students were inconvenienced. They 
were to be distributed among Lee, Lanier and Jeff Davis High 
Schools but each of those schools would now be overcrowded (Tr. 79). 
There would clearly have been no need to close one high school 
had the board not deliberately constructed Jeff Davis to perpetuate 

segregation, as the district court found in 1968.
in contrast, the students attending the predominantly white 

schools which are closed suffer little or no disruption. cloverdale 
which lost its elementary grades, is but four or five blocks from 
Forest Avenue. Closing Pike Road, a rural school, and restructuring 
Pintlala, also a rural school, meant little to students, most of

whom were already bused to school.
The position of the Negro students, particularly those from

Booker T. Washington Senior High School, who will be the cause of 
overcrowding at the other schools, is similar to that observed in

a California case:

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Where, however, the closing of an 
apparently suitable Negro school and 
transfer of its pupils back and forth 
to white schools without similar 
arrangements for white pupils, is not^ 
absolutely or reasonably necessary under 
the particular circumstances, consideration 
must be given to the fairly obvious fact 
that such a plan places the burden of 
desegregation entirely upon one racial group.
The minority children are placed in the 
position of what may be described as 
second-class pupils. White pupils realizing 
that they are permitted to attend their own 
neighborhood schools as usual, may come eo 
regard themselves as "natives" and to resent 
the Negro children bussed into the white schools 
every day as intruding "foreigners. 1 It- is in 
this respect that such a plan, when not 
reasonably required under the circumstances, 
becomes substantially discriminating in itself. 
This undesirable result will not be nearly so 
likely if the white children themselves realize 
that some of their number are also required to 
play the same role at Negro neighborhood schools.

Brice v. Landis, Civ. No. 51805 (N.D. Cal., August 8, 1969), slip

opinion at pp. 7-8.
It is doubtless true that the long-delayed integration of 

dual school systems provides an opportunity to improve the 
education of a LI students, black and white, by Eliminating 
substandard school plants which would not have been maintained but 
to preserve the segregated system. In many instances, such inferior 
schools are the schools which served the Negro student population.
But this process should not serve as a ruse to make Negroes pay 
for insisting upon desegregation by having the schools "traditionally 
theirs" closed and their children subjected to inconvenience ir. 
order to protect white children from attending the formerly Negro 

facilities.

34



»: A-***-':-*--

£  ;f

Ths district court has already ordered the closing of the 
small and inadequate schools which Montgomery County used as a 
device to keep its school system segregated. Twenty-one such 
facilities were ordered closed in 1965. 253 F.Supp. 306. The
remaining school plants are all reasonably adequate and ought to

be continued in use.
if"~ Judge Keady of the Northern District of Mississippi was
confronted with a situation similar to that below involving the
oxford Municipal school district, which had proposed to consolidate
its junior and senior high school grades on double sessions at the
former white high school, and to close the former Negro high school
rather than pair the facilities. His comments in refusing to
permit the district to undertake such a plan are relevant here:

The only reasons advanced which bear 
upon the relative inadequacy of the 
Central High School building are 
limitations it may have with re^Pe^  
to traffic conditions, playground arec , 
and other built-in deficiencies But 
nevertheless, it is a usable plant, it 
is in use at this time, it. has a 
substantial replacement cost an« ^  i 
needed by the board if it is to ^intai 
its separate junior higi school and senior 
high school programs. I

I think justice in this case requires that 
this building be used and that rt pot b 
terminated. To terminate it, frankly, 
this court sees the present situation from 
this evidence here today, ason
racial reasons. It would be tor one 
that the white people ^re willing for the 
colored children to come to the white sectro 
of town to go to white schools but the white 
people are not willing to let their children 
go to the colored section. I think that i 
the reason and we might as well tag it tor 
what it is . • • •

35



Quarles v. Oxford Municipal Separate School Dist., Civ. No.
WC6962-K (N.D. Miss., January 7, 1970) (oral opinion at pp. 3-4).

in light of the 1966 order closing many small, inferior 
segregated schools, we submit that the board's proposals to close 
adequate all-black facilities in light of available options which 
would integrate them, such as pairing, placed a heavy burden upon 
the board to justify its decision on non-racial, educational grounds. 
Quarles v. Oxford Municipal Separate School Dist.., supra; cf. e.g_. , 
McLaughlin v. Florida, 379 U.S. 184 (1964). That burden was not

met by the board in this case.
The principal reason for closing Booker T. Washington High 

School, for example, was its small size in relation to other 
Montgomery high schools. In fact, however, the school is not much 
smaller than either Carver or Jeff Davis. Only Lanier and Lee

15/ . .
High Schools are significantly larger schools. Equally compelling

15/

Capa-
city

1969-70
Enrollment Year 

W N Built
No. Students 

Type Transported

Booker T. Washington
Carver
Jeff Davis
Lanier
Lee

900 0 785
1,250 0 1,097
1,375 1,102 113
2,250 1,814 286
2,200 1,994 132

1948 Brick 28 
1948 Brick 232 
1968 Brick 152 
1929 Brick 427 
1955 Brick 420

(Source: H.E.W. Plan)

36



*
is the fact that the 785 black students who attend Washington this 
year cannot be contained in the white high schools among which 
they are to be distributed. Those schools are but 384 students 
under capacity this year, and in addition to the Booker T.
Washington students, they must absorb under the Board's plan an 
additional182 students who will be transported from the Mt. Meigs 
area, and who formerly attended the high school grades at Georgia 
Washington school. And while the Washington site does not meet 
State minimum site size requirements, the use of such standards is 
akin to a racial standard -  almost all black schools in Montgomery

were built on inadequate sites (Tr. 66-67).
The Board also failed to justify closing Hale and McDavid m  

order to avoid pairing them with white schools. Its reasoning was 
perhaps most transparent with respect to McDavid, whicn was built 
at the same time as an addition to Forest Avenue, the school with 
which it was to be paired. The Board's sole objection to McDavid, 
other than one based on its racial identity, was the size of the 
site. But this is so closely related to the racial characteristics 
of Montgomery's schools that it cannot justify closing the school.

Since the case must be remanded to the district court, we 
suggest the appropriateness of directions from this Court to (1) 
retain McDavid and pair it with Forest Avenue Elementary; (2) take 
further evidence and evaluate the proposed closing of Hale and 
Booker T. Washington, and disallow the closings if they are in Y 
part motivated by racial considerations; and (3) develop plans to 

continue Washington as a desegregated school.

37



CONCLUSION

For all or the above reasons, the case should be remanded 
to the district court with directions to require the development 
and implementation of a plan to substantially integrate the 
Montgomery County schools and thus create a unitary school system 
in Montgomery County, Alabama not later than the commencement of 

the 1970-71 school year.
Respectfully submitted,

352 Dexter Avenue 
Montgomery, Alabama 36104

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



■

CERTIFICATE OF SERVICE

I hereby certify that I served two (2) copies of the 
Brief for Appellants upon counsel for the appellees and for 
the united States, plaintiff-intervenor, by mailing same, 
first class postage prepaid, addressed to each of them as 

follows, this / / day of April, 1970:.

Vaughan H. Robison, Esquire 
Hill, Robison, Belser & Phelps 
36 South perry Street 
Montgomery, Alabama 36104
Honorable Ira DeMent

4 United States Attorney
r P. 0. Box 197
* Montgomery, Alabama 36101

Robert P. pressman, Esquire 
United States Department, of Justice 
Washington, D.C.

t-*

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