Rybicki, DelValle, and Crosby v. Illinois State Board of Elections

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UNITED STATES OF AMERICA, . Plaintiff-Appellant, Lad 

Vy. 

PHILADELPHIA MUNICIPAL SEPARATE 

SCHOOL, DISTRICT, ET AlL., Defendants~Appellees. 

(Civil Action No. 1368(E)) 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Vy. 

FRANKLIN COUNTY SCHOOL DISTRICT, 
ET AL., Defendants-Appellees. 

(Civil Action No. 4256(J)) 

  

  

ON APPEAL FROM 

THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI 
  
  ears a nn 

 



  

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PETITION FOR REHEARING IN BANC AND FOR STAY 

OF PROCEEDINGS IN THE UNITED STATES 

DISTRICT COURT FOR THE SOUTHERN DISTRICT 

OF MISSISSIPPI, OR, IN THE ALTERNATIVE, 

FOR RECALL OF MANDATE OF THIS COURT 

  
  

TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT 

AND THE JUDGES THEREOF: 

It is the understanding of counsel for all of the appel- 

lees that the foregoing entitled causes were consolidated by 

this Court for the purpose of the hearing on appeal, even though 

counsel have not been furnished with copy of any such order, if 

such be in existence. Each of the school districts involved is 

represented by separate counsel, even though there are some 

counsel that represent more than one of the districts. The facts 

in each district differ from the facts in the other districts 

and the issues presented vary with each district. Nevertheless, 

there are some basic general issues that are commen to all of 

the appellee school districts. Therefore, counsel for appellee 

school districts have concluded that only one petition should 

be filed covering these general basic issues that are common 

to all districts, rather than have separate petitions filed for 

each of the appellee school districts. Accordingly, this peti- 

tion is filed on the assumption that the Court will accept this 

petition as being applicable to all of the appellee school dis- 

tricts, even though it is not signed by the counsel of record 

for each of the appellee school districts. 

 



  

This petition for a rehearing of the above entitled causes 

is being filed with the belief and conviction that it is essen- 

tial that the issues presented herein receive full and complete 

consideration by this Court in banc, the proceedings in the 

district court must be stayed or the mandate of this Court re- 

called. This petition is being filed in accordance with Rule 

40 and Rule 35 of the Rules of Appellate Procedure, and in sup- 

port of this petition, your petitioners assert as follows: 

l. The appellees have not been accorded due process of 

law in this appeal. 

2. Various panels of this Court have not been consistent 

in their interpretation and application of the decision of 

this Court rendered, in banc, in United States of America v.   

Jefferson County Board of Education, 380 F.2d 385, and this 
  

Court, sitting in banc, should establish what was meant by the 

in banc decision of this Court in the Jefferson case, supra.   

3. Various panels of this Court have not been consistent 

in their interpretation and application cf the decisions of the 

United States Supreme Court in Green v. County School Board of 
  

New Kent County, Virginia, 319 U.S. 430, 20 1..Fd4.24 716, 58 
  

S.Ct. 1689; Raney v. Board of Education of Gould School District, 
  

391 U.S. 433, 20 L..Fd.24 727, 88 8.Ct. 1697; and Monroe v. Board 
  

of Commissioners of the City of Jackson, Tennessee, 391 U.S. 450, 
  

20 1..E4.2d4 733, 85. 8.Ct. 1700; and this Court, sitting in banc, 

should make an interpretation and application of those decisions 

 



  

of the United States Supreme Court that can be uniformly ap- 

plied. 

4, These proceedings involve questions of exceptional 

importance. 

This is a petition, not a brief, and there should not be, 

and therefore will not be, any extended discussion of the 

issues involved. It is our intent and purpose, however, to 

set forth sufficient of the issues to illustrate and demon- 

strate the need for the grant of the relief sought by this 

petition. 

l. THE APPELLEES HAVE NOT BEEN ACCORDED DUE PROCESS OF 
LAW IN THIS APPEAL. 

The chronology of "events in connection with the appeal to 

this Circuit is as follows: 

A. The district court, consisting of three judges, 

for the Southern District of Mississippi, sitting in banc, ren- 

dered its opinion con May 13, 1969. 

B. The district court entered its order pursuant 

to the foregoing -opinion on or about May 16, 1969 in each of 

the above referenced cases. 

C. On May 28, 1969, the district court entered 

additional findings of fact. 

D. Attorneys for the private plaintiffs filed notice 

of appeal and a motion for summary reversal on June 10, 1969. 

E. The United States of America filed notice of 

appeal on June 12, 1969 in the cases where the United States 

Se 

 



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of America was plaintiff but filed no motion for summary re- 

versal in connection with said notice of appeal. 

F. On June 10, 1969, notice was issued by the Clerk 

of the Uni ted States Court of Appeals for the Fifth Circuit 

to the attorneys for the school districts in which there were 

private plaintiffs, that the motion for summary reversal would 

be presented for ruling without oral argument on or about June 

20, 1969, together with any response or opposition that may be 

filed by opposing counsel by that date. 

G. On June 23, 1969, the United States of America 

filed a "Motion for Summary Reversal and Motion to Consolidate 

" in the cases in which the United States of Appeals, etc. 

America was plaintiff. 

H. On June 23, 1969, the Clerk of the United States 

Court of Appeals for the Fifth Circuit mailed a letter to counsel 

of record to the effect that the motion of the United States of 

America had been filed and would be presented on or about July 3, 

1969 together with any response or opposition that may be filed 

by opposing counsel by that date. This notice was received by 

some of the counsel on June 24, 1969 and other counsel on later 

dates. 

I, On June 24, 1969, the district c¢ .:rt entered an 

"order as to the appellate record" in which the district court 

recognized that the record in these cases was voluminous and 

that it would be "a Herculean task for the appellate court to 

examine such a voluminous record in any reasonable length of 

ee 

 



  

time". Accordingly, the district court ordered that appel- 

lants' counsel was to file with the Clerk of the court within 

five days a designation of so much of the record in each of the 

cases that they desired to be used in the appeal. The district 

court further ordered that within three days after receipt of 

a copy of such designation by appellants' counsel, appellees’ 

counsel was to file a designation of those parts of the record 

not previously designated which they deemed necessary for use 

on appeal. The court further ordered that the Clerk should 

have thirty days in which to prepare the record and to forward 

same to the Clerk for the Court of Appeals for the Fifth Circuit 

in New Orleans. 

J. On June 25, 1969, the Clerk of the United States 

Court of Appeals for the Fifth Circuit addressed a letter to 

counsel of record in all cases, including those in which there 

were private plaintiffs and those in which the plaintiff was 

the United States of America, to the effect that the Court would 

hear oral argument on all of these cases ''on the motion for 

summary reversal and the merits in all of the cases both pri- 

vate plaintiffs and those of the United States". (Emphasis 

added). This letter further advised that the argument would 

be held in New Orleans beginning at 9:30 A.M., July 2, 1969, 

and any memoranda or responses would have to be filed in the 

office of the Clerk by'noon, July 1, 1969, In this latter, it 

was recited that the Court had taken notice of the district 

court's order with respect to the record but that since appeal 

 



  

# @ 

was being expedited on the original record, the United States 

attorney should make arrangements with the District Clerk to 

transmit to the Clerk of the Court of Appeals the entire record 

of the district court so that same would be available to the 

Court if needed during the argument and summation. It was fur- 

ther stated that the Court recognizes that "this is a huge 

record involving a large number of parties and matters of great 

public interest and importance. 

K. The foregoing letter dated June 25, 1969 was re- 

ceived by some of the counsel of record on June 26, 1969 and 

by others on June 27, 1969. This meant that counsel had, at 

best, Friday June 27, Saturday June 28, Sunday June 29, and 

Monday June 30 to prepare any response, since it had to be filed 

by noon, July 1, 1969. 

L. Briefs filed by the United States of America 

. Were received by some of the counsel on Monday, June 30, 1969 

and by others on Tuesday, July 1, 1969. In addition, supple- 

ments to the brief were delivered to counsel on the morning of 

the hearing, July 2, 1969. Thus, counsel were afforded no oppor- 

tunity whatsoever to examine or inspect same in order to reply 

thereto either in writing or orally. 

M. The proposed opinion-orders as submitted by the 

private plaintiffs and the United States of America were not 

submitted to nor seen by opposing counsel until the morning of 

the hearing, July 2. Accordingly, there was no opportunity to 

examine same or make any meaningful comments in regard thereto. 

Wm 

 



  

® » 

N. The record in the district court was brought 

into the courtroom and was present during the argument on 

July 2. It is the understanding of counsel that this record 

consisted of four large packing boxes and that these boxes 

were still sealed as same had been sealed by the Clerk of the 

district court and remained sealed during the entire argument. 

0. The oral argument of counsel was concluded 

during the middle of the afternoon of July 2. 

P, The opinion of the panel of this Court was 

entered July 3, 1969, applying to all of the cases. 

It is submitted that the record in these cases has not 

been examined by any member of the Fifth Circuit Court of 

Appeals. Yet, on July 1, 1969, another panel of the Fifth Cir~ 

cuit in Cause No. 27281, styled United States of America v. 
  

Board of Education of Baldwin County, Georgia, rendered an 
  

opinion in which it was stated as follows: 

"Tn the case now before the Court, we conclude, after 
a study of the record, that the district court cor- 
rectly decided that a freedom of choice plan was more 
suitable than a zoning plan for Baldwin County, Georgia. 
We base this conclusion on the county's racial resi- 
dential patterns, the location of the schools and the 
projections- for 1969-70." 

Thus, we have a clearcut illustration and demonstration 

of, in one case, a panel of this Court examining the record 

of a case and, after analysis of the facts of that particular 

case, reaching a conclusion. No consideration was given by 

the panel deciding these cases as to the facts as they exist 

in any of these cases other than bare statistics; 

hy 

 



  

and, in the panel's opinion which purported to cover statis- 

tics in each of the districts involved, the Court omitted any 

findings of statistics as to a number of the school districts 

which were appellees. 

2, VARIOUS PANELS OF THIS COURT HAVE NOT BEEN CON- 

SISTENT IN THEIR INTERPRETATION AND APPLICATION OF 

THE DECISION OF THIS COURT RENDERED, IN BANC, IN 
UNITED STATES OF AMERICA V, JEFFERSON COUNTY BOARD 

OF EDUCATION, 380 F.2d 385, AND THIS COURT, SITTING 
IN BANC, SHOULD ESTABLISH WHAT WAS MEANT BY THE IN 
BANC DECISION OF THIS COURT IN THE JEFFERSON CASE, 

SUPRA. 

  

  

  

  

More than sixteen decisions have been rendered by various 

panels of this Court construing, restricting, extending, vary- 

ing, or violating the principles laid down by the in banc deci- 

sim of this Court in the Jefferson case, supra. For the 
  

convenience of the Court, these decisions are listed in reverse 

chronological order as follows: U.S.A. v. Hinds County School 
  

Board, ef al., Nos. 28030 & 28042, July 3, 1969; U.S.A. v, Board 
  

  

of Education of Baldwin County, Georgia, et al., No. 27281, July 
  

1, 1969; U.S,A,, et. al, v. Jefferson County Boayd of Fducation, 
  

et al., No. 26584, July:'1l, 1969; U.S.A., et al. v., Choctaw County 
  

Board of Education, et al., No. 27297, June 26, 1969; U.S.A. v. 
  

  

Jefferson County Board of Edw ation, No. 27444, June 26, 1969; 
  

Davis v. Board of School Commissioners of Mobile County, No. 
  

26886, June 3, 1969; Hall v. St. Helena Parish School Board, 
  

No. 26450, May 28, 1969; Anthony v. Marshall County Board of 
  

Education, No. 26432, April 15, 1969; U.S.A, v. Indianola 
  

  

 



  

Municipal Separate School District, No. 25655, April 11, 1969; 
  

Henry v. Clarksdale Municipal Separate School District, No. 
  

23255, March 6, 1969; Duval County Board of Public Instruction 
  

Vv. Braxton, 402 F.2d 900, August 29, 1968; Adams v. Mathews, 
  

  

403 F.2d 181, August 20, 1968; Acree v. Board of Education Rich- 
  

mond County, 399 F.2d 151, July 18, 1968; U.S.A. v. Board of 
  

  

Education of the City of Bessemer, 396 F.2d 44, June 3, 1968; 
  

Broussard v. Houston Independent School District, 395 F.2d 817, 
  

May 30, 1968. 

In one of these cases, the U.S.A. v. Board of Education of 
  

the City of Bessemer, supra, it was stated that the decision of 
  

this Court in the Jefferson case, supra, had the status of an 
  

in banc decision and could not be varied by any panel of the 

Circuit. It is respectfully submitted that such has not been 

the case. Certainly the decisions of this Court have not been 

uniform or consistent in the application of what each respective 

panel considered to be the controlling principle enunciated by 

this Court sitting in banc in the Jefferson case, supra. 
  

As an illustration, and solely as an illustration of this 

point, we call the attention of the Court to the following: 

A, There were originally before a panel of this 

Court for an administration decision thirty-eight school dis- 

tricts in the State of Louisiana and most of the districts in 

Mississippi that are involved in this proceeding. After hear- 

ings in the district court, a separate decision was rendered 

by one panel in connection with the Louisiana cases and now 

“Gu 

 



  

another opinion has been rendered by another panel in the Mis- 

sissippli cases. The decision in the Louisiana cases is Hall 

v. St. Helena Parish School Board, being Cause No. 26450, and 
  

was rendered on May 28, 1969. In the Hall case, supra, the 

panel stated that it was urged by appellant to. 

"order on a plenary basis for all these school dis- 
tricts that the District Court must reject freedom 
of choice as an acceptable ingredient of any desegre- 
gation plan." 

The panel considering those cases declined to so order, refer- 

ring to the decision of the United States Supreme Court in the 

Green case, supra, and stated as follows: 

"Again, the statistical evidence makes abundantly 
clear that the freedom of choice plans as presently 
constituted, administered and operating, are failing 
to eradicate the dual system. (Emphasis added). 

  

  

Thus, the district court was free to consider freedom of choice 

plans that might be changed in the administration or operation. 

Yet, in the decision of the panel considering these cases, 

where obviously there has been no opportunity to examine and 

review the record, this panel stated as follows: 

"We hold that these school districts will no longer 
be able to rely on freedom of choice as the method 
for disestablishing the dual system." 

We again point out that just two days before, on July 1, 

1969, another panel of this Court in the Baldwin County case, 
  

supra, decided that, based upon the facts as they existed in that 

particular school district, which facts did not deal with sta- 

tistics, the freedom of choice plan was more suitable than any 

«10 

 



o » 

  

other plan available to the district. This was done even though 

it was acknowledged there would still be all-Negro schools in 

the district. It is submitted that an examination of the 

opinions of the various panels of this Court in the decisions 

of U.S.A. v. Jefferson County Board of Education, Cause No. 
  

26584, decided July 1, 1969; U,.S5.A, v, Choctaw County Board of   

Education, Cause No. 27297, decided June 26, 1969; and U.S.A, 
  

  

v. Jefferson County Board of Education, Cause No. 27444, decided 

June 26, 1969; along with the decision of the panel in the case 

of U.S.A. v. Board of Education of Baldwin County, Cause No. 
  

27281, decided July 1, 1969, demonstrates an inconsistent appli- 

cation of the various panels of this Court as to what is con- 

sidered to be the principles enunciated by this Court sitting 

in banc in the Jefferson case, supra. In fact, there is an 
  

obvious conflict between the opinion of the panel that rendered 

the decision in these cases wherein they completely forbid the 

consideration of a freedom of choice plan, and the other decisions 

wherein freedom of choice may still be considered. It is submitted 

that this difference cannot be justified by any reference to 

the record in these cases, since, as previously submitted, it 

is apparent that the panel in these cases had not had an oppor- 

tunity to even examine the record. 

It is submitted that the opinion of the panel of this 

Court in Adams v. Mathews, 403 F.2d 181, decided August 20, 
  

1968, which opinion has been cited by numerous panels of this 

Court, involved only a motion to dismiss appcal from the docket 
  

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setting. The Adams decision, supra, was rendered without any 

evidence whatsoever and without any record whatsoever setting 

forth the facts as they pertain to any of the districts involved. 

The motion to dismiss and remand was sustained. Nevertheless, 

without a record and without the school districts involved hav- 

ing an opportunity for a hearing on the merits, the panel of 

this Court in Adams, supra, announced principles which are now 
  

being referred to as the law in this Circuit, even though it was 

interpreting the Jefferson in banc decision. We submit that the 
  

principles enunciated in Adams are not in conformity with the 

principles set forth by this Court sitting in banc in the Jefferson, 
  

supra, decision, and this fact is demonstrated by the concurring 

opinion of Justice Coleman in the in banc decision in Jefferson, 
  

supra, in which he set forth what he understood the Court to be say- 

ing in the majority opinion. There appears to be an obvious conflict 

between what Justice Coleman thought this Court, sitting in banc, 

was saying in the Jefferson case, supra, and what the panel in the 
  

Adams decision, supra, considered to be the effect of that decision. 

It is submitted that it is essential that this Court consider 

these cases in banc in view of the lack of uniformity by the vari- 

ous panels of this Court in interpreting and applying the decision 

of this Court in its in banc decision in Jefferson, supra. 
  

3. VARIOUS PANELS OFTHIS COURT HAVE NOT BEEN CONSISTEN- 
IN THEIR INTERPRETATIONS AND APPLICATION OF THE DECI- 
SIONS OF THE UNITED STATES SUPREME COURT IN GREEN V, 
COUNTY BOARD OF EDUCATION OF NEW KENT COUNTY, VIRGINIA, 
B10 0.8, 4°30, 20 T. 7d. 70 715, 53 5.6t. 1550; RANEY V. 
BOARD OF EDUCATION OF GOULD SCHOOL DISTRICT, 391 U.S. 
433. 20 1. Bd. 2d 777, 88 5.Cc. 1697; and MONROE V, BOARD 

  

  

  

  

12s 

 



  

OF COMMISSIONERS OF THE CITY OF JACKSON, TENNESSEE, 
SOLU. 5 L530. 20 L.00.0d 733, 30 5.Ce.TI700, Ap Tas 
COURT, SITTING IN BANC, SHOULD MAKE AN INTERPRETATION 
AND APPLICATION OF THOSE DECISIONS OF THE UNITED STATES 
SUPREME COURT THAT CAN BE UNIFORMLY APPLIED, 

  

The United States Supreme Court in the Green case, supra, 

Raney case, supra, and Monroe case, supra, clearly enunciated 

the basic principles that the Constitution requires all districts 

to be operated on a unitary, nonracial, nondiscriminatory basis 

‘and that, in districts having a history of de jure segregation, 

the school boards operating such school systems were required 

to effectuate a transition to a racially nondiscriminatory school 

system. In this context, the Supreme Court stated that steps 

must be taken in which racial discrimination would be eliminated, 

root and branch. These decisions, it is submitted, clearly es- 

tablish that each school district of the nation must be operated 

as a unitary, nonracial, nondiscriminatory school district and 

that, in districts that have a history of de jure segregation, 

the trustees of the school district have the affirmative duty 

of "eradicating the last vestiges of the dual system'. The 

confusion and PL Sundonstatdiis now rampant in this Circuit grows 

out of the interpretation and application of these basic concepts. 

It is essential that this confusion be eliminated. Literally 

hundreds of thousands of children are involved, as well as the 

entire educational system. The interpretation and application 

of these basic concepts, it is submitted, is probably the most 

important question facing the courts of this nation today. 

-] 3m 

 



  

Involved in the answer to this question is whether the schools 

will be operated, in their day to day operations, by a federal 

department under the supervision and guidance of the federal 

judiciary, or whether the officials of the districts can, through 

qualified educators, operate the schools in conformity with the 

concepts of the applicable provisions of the Constitution as 

defined by the courts. 

The two concepts are as follows: (A) a unitary, nonracial, 

nondiscriminatory school system, and (B) the vestiges of a dual 

system which must be removed by the trustees of the school dis- 

tricts. We will briefly discuss these two concepts with the 

thought in mind of at least demonstrating the necessity for a 

clearcut, understandable judicial definition -- a definition 

that is based upon constitutional principles and not upon the 

changing guidlines of a department of the executive branch of 

our government dealing with the expenditure of funds. 

A. What is a unitary, nonracial, nondiscriminatory 

school system? 

It is submitted that the answer to this question is not too 

difficult, It is a school system which is open and free to all 

pupils and in which race is not a factor. In fact, if it is 

to be “"monracial", then it is a contradiction on its face to 

take action that is motivated by the race of the pupil. One 

panel of the Fifth Circuit has given a definition in the 

Broussard case, supra, as follows: 
  

Yl oe 

 



  

M. , . it would appear that an 'integrated, unitary 
school system' is provided where every school is 

open to every child. It affords 'educational oppor- 

tunities on equal terms to. all.' That is the obli- 
gation of the Board." 

This Court in the Jefferson decision, supra, in banc, 
  

stated as follows: 

"The governmental objective of this conversion is 

-- educational opportunities on equal terms to all." 

It is submitted that this concept is clear, can be fol- 

lowed and implemented by school trustees of all school dis- 

tricts. The school districts throughout the nation, whether 

they have a history of de jure, de facto, or no segregation 

at all, must be operated on a unitary, nonracial basis. This 

is easily understood and can be easily implemented by the 

trustees that are acting in good faith. If the trustees are 

not acting in good faith, such can be easily demonstrated 

to and corrected by the district court and will not require 

that the federal courts become involved in the day to day 

operations of the schools in the school districts. 

1t is submitted that, if this Court in banc expressly 

adopts the definition of a unitary, nonracial, nondiscriminatory 

school system as succinctly set out in Broussard, supra, which, 
  

with deference, it ought to do, then the only problem which 

would remain would be to properly deal with the second concept. 

B. What are the vestiges of the dual system which 

must be eradicated by the trustees of the school districts? 

«15 

 



  

Quite frankly, it would also appear that the answer to this 

question should not be too difficult. It is submitted, however, 

that some of the recent decisions of various panels of this 

Court have made requirements of school districts that are not 

in keeping with the obligation to remove the vestiges of the 

dual system and have thereby created confusion and consternation 

concerning the meaning of dis ohlimation. 

Our discussion here will be based upon the assumption that 

we are correct in that the obligation of the trustees of the 

school districts located in formerly de jure segregated states 

is the affirmative duty to eradicate the last vestiges of the 

dual system. If this be true, then these vestiges must be 

identified and eradicated. It is not enough to operate a uni- 

tary system at this time. These trustees must go further and 

eradicate or eliminate any vestiges of the dual system. 

Illustrative of the points we are attempting to make here 

is the decision by a panel of this Court in the Adams case, 

supra. The panel in the Adams case, supra, with no record 

before 1t, and with no opportunity being offered counsel to 

be heard, made a specific finding that an all-Negro school was 

a vestige of the dual system and must be eradicated in all dis- 

tricts in the Fifth Circuit. Since that time, the language in 

the Adams decision, supra, has been quoted by several panels 

of this Court. Insofar as we know, however, no case has ever 

been presented to this Court which contained facts which would 

support a finding that this is a vestige of a dual system. 

~3b= 

 



  

A study of the history of litigation in this field indicates 

that the "racial statistics'' approach as a measuring device 

for determining whether the last vestiges of the dual system 

have been removed originated with the office of Health, Educa- 

tion and Welfare. That office promulgated guidelines which 

contained statistical requirements to be used in determining 

whether funds would be madeavailable to the various school 

districts. It is submitted that this approach has been adopted 

by some of the panels in this Circuit as a constitutional re- 

quirement, when, as a matter of fact, the office of Health, 

Education and Welfare has no authority to make constitutional 

interpretations that are binding on the courts and that office 

had no hearing or proof upon which to reach such a conclusion 

in the first place. Certainly the decisions of this court 

should be supported by proof. 

If it be assumed that the Fifth Circuit has found, with- 

out the benefit of any proof of any kind, that an all-Negro school 

constitutes a vestige of the dual system, then we think it 

important that this Court's attention be called to the case of 

Goss v. Board of Education of Knoxville, Tennessee, 406 F.2d 
  

1183 (decided February 10, 1969). In the Goss case, supra, 

the Court of Appeals for the Sixth Circuit specifically found 

and adjudicated that: 

"The fact that there are in Knoxville some schools which 
are attended exclusively or predominantly by Negroes 

does not by itself establish that the defendant Board 

of Education is violating the constitutional rights of 

the school children of Knoxville. . . Neither does the 

yl 

 



  

fact that the faculties of some of the schools are 
exclusively Negro prove, by itself, violation of 
Brown." 

We do not know the extent of the proof, if any, on this 

particular point that was in the record in the Goss case; 

however, for purposes of presenting the point here being dis- 

cussed we are assuming that there was no actual proof before 

the court and that the Sixth Glredis, like the Fifth Civcult; 

has made a finding based on taking judicial notice. 

The situation is, therefore, that we have Courts of Appeal 

for different circuits reaching opposite conclusions based on 

judicial notice and without the benefit of any actual proof 

in the record on which these conclusions could be based. 

In these proceedings now before this Court, there is proof, 

which was uncontradicted, that the existence of all-Negro schools 

is not a vestige of the dual system. In addition, there has 

been filed in the Fifth Circuit statistical information taken 

from the official records of the office of Health, Education 

and Welfare showing the racial composition of schools in the 

one hundred largest school districts in this nation. Most of 

these districts have never had a dual system. These statistics 

show, and we submit this is conclusive, that all-white and all- 

Negro schools exist in every school district where there is a 

large percentage of both white and Negro pupils. These sta- 

tistics show, beyond question, that all-white and all-Negro 

schools do exist in school districts that have never had a dual 

system. As a matter of fact, of the 12,497 schools in these 

«18~ 

 



  

one hundred school districts, assuming that a school with 

less than one percent of the minority race is an all-Negro 

or all-white school, 6,137 are either all-white or all-Negro. 

In other words, over forty-eight percent of the schools in 

the one hundred largest school districts in this ma tion are 

either all-white or all-Negro. Most of these districts are 

in areas that have never had a dual system. We submit, there- 

fore, that for this Court to adjudicate that the existence 

of an all-Negro or an all-white school is, in and of itself, 

a vestige of the dual system is without support of any proof, 

is incorrect, and is clearly erroneous. 

It is submitted that such a finding by a panel of this 

Court is not in keeping with the opinion of this Court in the 

in banc Jefferson decision. The language of this Court in 
  

Jefferson, sitting in banc, was that there was to be ''no 
  

Negro schools and no white schools =-- just schools'. This 

language of this Court in its in banc decision is in accord 

with the obligation of the sehpol trustees to operate a unitary 

school system. The schools are not to be Negro schools nor are 

they to be white schools. They are to be just schools. This 

does not, however, mean that there must be both white and Negro 

pupils in attendance at each and every school. Since the 

existence of schools at which only Negroes attend, or the existence 

of schools at which only whites attend is not, in and of itself, 

a vestige of the dual system, then there is no constitutional 

basis on which the courts may or can require their elimination 

“10 

 



  

or eradication as being a vestige of the dual system. 

For the benefit of this Court, we are attaching as Ex- 

hibit "A" to this petition the report of Peat, Marwick, 

Mitchell and Company, dated June 27, 1969, which, it is sub- 

mitted, is self-explanatory. 

In addition to the foregoing, there is in this record 

testimony of experts which denonstiates conclusively that (1) 

all-Negro or all-white schools are not vestiges of the dual 

system and (2) a definite or specific amount of integration of 

the races in the schools is not an indication or even proof 

that the schools are operated on a unitary basis with the 

vestiges of the dual system eliminated or eradicated -- at 

best, it is only peripherally relevant to the issues. 

This evidence also stands uncontradicted and will be 

discussed and presented in full, if this petition is granted 

and this Court hears these cases in banc. 

What we have stated concerning pupils isequally appli- 

cable to faculties. The proof is that an all-Negro faculty 

or an all-white faculty is not, in and by itself, a vestige 

of the dual system and does not destroy the unitary nature 

of the school system. : 

Other illustrations could be given. It is submitted, 

however, that the foregoing discussion points up the absolute 

necessity of this Court, in banc, determining the issues 

presented by these cases. We feel that this is particularly 

true in view of the fact that some of the panels of this 

“20 

 



  

Court, without the benefit of a record, have adjudicated 

“that all-Negro schools cannot exist, while other panels of 

this Court have, upon review of the record, permitted all- 

Negro schools to exist. 

4, THE DECISION OF THIS PANEL IS CONTRARY TO THE CIVIL 
RIGHTS ACT OF 1964 AND OTHER FEDERAL STATUTES ENACTED 
UNDER AUTHORITY OF SECTION 5 OF THE FOURTEENTH AMEND- 
MENT. 

Section 5 of the Fourteenth Amendment provides '"The Con- 

gress shall have the power to enforce, by appropriate legisla- 

tion, the provisions of this article'. There is no need to cite 

the long line of cases upholding this right, including many 

specific congressional actions which preempt the particular 

field involved. 

U.S.C.A., Ticle 42, § 2000c(b), et seq.; Pub.L. 88-352, 
  

Title 4, § 401(b), § 407(a), § 410, covers particularly the 

desegregation of public schools and colleges. The decree here 

is directly contrary to federal statute which provides: 

WSection 401(bY: . . . but 'desegregation' shall not 
mean the assignment of students to public schools in 
order to overcome racial imbalance." 

  

"Section 407(a): . . . provided that nothing herein 
shall empower any official or court of the United 
States to issue any order seeking to achieve a racial 
balance in any school by requiring the transportation 
of pupils from one school to another or one school 
district to another in order to achieve such racial 
balance or otherwise enlarge the existing power of 
the court to insure compliance with constitutional 
standards." 

  

“31m 

 



  

"Section 410: Nothing in this title shall prohibit 
classification and assignment for reasons other than 
race, color, religion, or national origin." 

  

The effect of the decree is to require assignment of stu- 

dents asainst their will and the will of their parents in order 

to overcome racial imbalance by direct assignment, racial 

gerrymandering of zones or other devices. Not only does the 

Civil Rights Act itself prohibit such action, but Congress has 

continued to express the congressional intent. Its latest 

expression is contained in the current appropriation act for 

the Departments of Health, Education and Welfare and Labor 

(Pub. L. 90-557; 82 Stat. 969), Section 409 of Title 4, relating 

to elementary and secondary education, containing the following 

clear prohibition: 

"No part of the funds contained in this Act may be used 
to force busing of students, abolishment of any school, 
or to force any student attending any elementary or 
secondary school to attend a particular school against 
the choice of his or her parents or parent in order to 
overcome racial imbalance." (Emphasis added). 

  

  

It should be particularly noted that the federal statutes 

are not limited to prohibition of actions to achieve ''racial 

balance" =-- they are much broader, covering any action for 

the purpose of removing racial imbalance. 
  

Section 1 of the Fourteenth Amendment provides that no 

state shall make or enforce any law which shall deny to any 

person within its jurisdiction the equal protection of the 

laws. It would be a presumptuous waste of time to reiterate 

the arguments so forcefully advanced by the separate opinions 

wy oR 

 



  

of Circuit Judges Gewin, Bell, Coleman and Godbold in Uni ted 

States v. Jefferson County Board of Education, in banc, 380 
    

F.2d 385 at p. 397, et seq. Suffice it to say that the heart 

of the argument is embodied in Judge Gewin's opinion: 

"It is not our function to condemn the children or 
the school authorities because the free choices 
actually made do not comport with our own notions 
of what the choices should have been. When our 
concepts as to proportions and percentages are im- 
posed on school systems, notwithstanding free choices 
actually made, we have destroyed freedom and liberty 
by judicial fiat; and even worse, we have done so in 
the very name of that liberty and freedom which we so 
avidly claim to espouse and embrace." 

With deference, neither this Court nor the Fifth Circuit 

Court of Appeals in banc, nor the Supreme Court of the United 

States has the slightest constitutional prerogative to require 

these appellees to discharge their official duties in a manner 

different from that vouchsafed by the Constitution to all the 

citizens of this nation and as legislated by the Congress. 

The Fourteenth Amendment, as "enforced" by "appropriate legis- 

lation" by Congress, does not require integration of schools. 

Ss THIS 15 A CASE OF FIRST IMPRESSION IN WHICH IT HAS 
BEEN PROVED BY COMPETENT EVIDENCE ADMITTED BY THE 
DISTRICT COURT AND BY THE COURT OF APPEALS THAT 
FREEDOM OF CHOICE IS THE MOST PROMISING COURSE OF 
ACTION TO BRING ABOUT MEANINGFUL AND LASTING DE- 
SEGREGATION. 

The courts have always recognized that constitutional 

rights will not be sacrificed to violence, disorder or disagree- 

ment of any person, see particularly Cooper. The courts do 

not act upon apprehensions or possibilities. In Monroe, 
  

  

23 

 



® » 

  

the Supreme Court stated: 

"We are frankly told in the (school board's) brief 
that without the transfer option it is apprehended 
that white students will flee the school system 
altogether." (Emphasis added). 

  

  

The apprehension thus expressed was necessarily disregarded 

by the Court. 

Nevertheless, the courts consider the best evidence of 
  

what may be reasonably expected to occur in the future. In 
  

Green the duty was placed upon the district courts to weigh 

the plan administered or propose 

"in the light of the facts at hand and in the light of 
any alternatives which may be shown to be as feasible 
and more promising in their effectiveness.' (Emphasis 
added) . 
  

In that case further reference was made to the possibility of 

"more promising courses of action' which may be shown to be   

open to the board. 

In these cases there was introduced evidence, prepared 

and presented in conformity with all the authorities, which 

proved that racial geographic zoning, pairing, assignment of 

pupils on a racial basis or other massive immediate mixing of 

the races would not result in meaningful desegregation. This 

evidence, based upon an educational survey by disinterested 

and qualified experts, demonstrated that freedom of choice, 

implemented by the right of school authorities to use their 

influence with parents to "make it work now', holds promise 

1 of bringing about '"now'" (in the sense described in Carr, Green   

and Raney) meaningful desegregation. 

-24~ 

 



  

If a hearing is granted in banc, the school districts 

will have an opportunity for this evidence to be considered 

by this Court of Appeals. 

6. RECALL OF THE MANDATE OR STAY OF FURTHER PROCEEDINGS 
BY THE DISTRICT COURT 1S NECESSARY IF JUSTICE 1S TO 
BE DONE IN THESE TWENTY-FIVE CASES. 

As the decree provided for the issuance of a mandate to 

the district court immediately, without opportunity for the 

filing of a petition for rehearing and such mandate has been 

issued, it will be necessary that the mandate be recalled or 

further proceedings by the district court be stayed in order 

that justice may be done. 

This application for stay is addressed only to the compulsory, 

affirmative or mandatory features of the decree. The actions 

ordered by the decree are irrevocable, and the injury to the 

appellees, the parents and the pupils in all of the school 

systems which are affected thereby will be irremedial. The 

actions required will require expensive and substantial changes 

in the operation and administration of the various school 

systems. Irrevocable injury will be done to the teachers in 

each of the school systems. 

This petition is filed by authority of all counsel of 

record for the defendant-appellees in all of the cases involved 

and is signed in their behalf. 

=I Su 

 



  

CONCLUSION 
  

It is respectfully submitted that it is essential that 
  

the relief sought herein be granted. Not only are the school 

districts included in this proceeding vitally affected =~- 

but every district in this Circuit. In some of the larger 

districts, the eradication of sohouls attended only by Negroes 

or only by whites will be an impossibility == yet, this, 

according to a panel of this Court, is unconstitutional. Ob- 

viously, this holding is, in effect, a holding that the Consti- 

tution requires one thing in one school district and an entirely 

different thing in another school district. If an attempt is 
  

made to justify such inconsistency by referring to the factual 
  

situation in the respective school districts, then the fact is 
  

that the record in these cases was not even examined to attempt 
  

to determine the facts. 
  

If the courts are to require the trustees and boards of 

education to take action that is not based upon constitutional 

concepts, then the courts will have launched into the detailed 

operations of the schools of this Circuit which will become only 

more involved and to which there will be no end. The issues 

here presented are vital and should receive the attention of 

this full Court, sitting in banc. Until this has been done 

and the decision made after full consideration, the action of 

the district court in these cases should be stayed or the mandate 

should be recalled. The actual continued existence of a 

26 

 



  

responsible public educational program may be involved in many 

of the districts in this Circuit. 

er submitted, 

AF ma 
. sii 
a General 

New Capitol Building 
Jackson, Mississippi 39201 

AIL Ear Crono POI 
OBERT C, CANNADA 

700 Petroleum Building 
Post Office Box 22567 
Jackson, Mississippi 39205 

Let, 7] Str vin 
OHN M. PUTNAM 

523 Bankers Trust Plaza Building 
Post Office Box 2075 
Jackson, Mississippi 39205 

/ gi oo 
Ln tt Bs ALE 

CHA LES CLARK ~~ 

1741 Deposit Guaranty Bank Building 
Jackson, Mississippi 39201 

7 os 
rl mT DG} "ORTH 

Post Office Fox 48 
Yazoo City, pississippi 

Ls (7 Lad 
JOHN C, SATTERFITLD / 
\ Post Offite Box 4606 

Yazoo City, Mississippi 

  

  

  

  

  

    

11/4 ]. aN UE 
V4 ! i 

  

J 
el, S.A 
  

  

- FOR AND ON BEHALF OF: 

M. M. ROBERTS 

Post Office Box 870 
Hattiesburg, Mississippi 39401 

w]e 

 



   
HOWARD L. PATTERSON, JR. 

Post Office Box 808 
: Hattiesburg, Mississippi 39401 

THOMAS H., WATKINS 
Post Office Box 650 
Jackson, Mississippi 39205 

L. P. SPINKS ; 
DeKalb, Mississippi 39238 

JOHN GORDON ROACH 
Post Office Box 506 
McComb, Mississippi 39648 

R. BRENT FORMAN 
Post Office Box 1377 
Natchez, Mississippi 39120 

RICHARD D, FOXWORTH 
216 Newsom Building 
Columbia, Mississippi 39429 

PHILIP SINGLEY 
203-04 Newsom Building 
Columbia, Mississippi 39429 

ROBERT GOZA 

Canton, Mississippi 39046 

W. SS. CAIN 
133 South Union Street 
Canton, Mississippi 39046 

JOE R. FANCHER 
Post Office Box 245 
Canton, Mississippi 39046 

ROBERT S. REEVES 

Post Office Box 998 
McComb, Mississippi 39648 

THAD LEGGETT, III 
Post Office Box 307 
Magnolia, Mississippi 39652 

WILLIAM B. COMPTON 
Post Office Box 845 
Meridian, Mississippi 39301 

“28 

  
  

 



  

ROBERT B. DEAN, JR. 
Post Office Box 888 
Meridian, Mississippi 39301 

HERMAN ALFORD 
424 Center Avenue 
Philadelphia, Mississippi 39350 

LAUREL G. WEIR 
Post Office Box 150 
Philadelphia, Mississippi 39350 

ERNEST L. BROWN 
Macon, Mississippi 39341 

HAROLD W, DAVIDSON 
Carthage, Mississippi 39051 

MAURICE DANTIN 
Post Office Box 604 
Columbia, Mississippi 39429 

J. D., GORDON 
Liberty, Mississippi 39645 

WILLIAM D. ADAMS 
Post Office Box 521 
Collins, Mississippi 39428 

JOHN K., KEYES 
Collins, Mississippi 39428 

CARY C. BASS, JR. 
Post Office Box 626 
Monticello, Mississippi 39654 

HERMAN C. GLAZIER 
506 Walnut Street 
Rolling Fork, Mississippi 39159 

J. WESLEY MILLER 

401 Pine Street 
Rolling Fork, Mississippi 39159 

RICHARD T., WATSON 
Woodville, Mississippi 39669 

HENRY W. HOBBS, JR. 
Post Office Box 356 
Brookhaven, Mississippi 39601 

«20. 

 



  

CALVIN R. KING 
106 Mulberry Street 
Durant, Mississippi 

G. MILTON CASE 

114 West Center Street 
Canton, Mississippi 

THOMAS H. CAMPBELL, JR. 
Post Office Box 35 
Yazoo City, Mississippi 

J. E, SMITH 
111 South Pearl Street 
Carthage, Mississippi 

ROBERT E, COVINGTON 

Jeff Carter Building 
Quitman, Mississippi 

TALLY D. RIDDELL 
Post Office Box 199 
Quitman, Mississippi 

CERTIFICATE OF SERVICE 
  

The undersigned, acting for and on behalf of all of the 

counsel of record for the appellees in the above entitled 

causes, does hereby CERTIFY that a true and correct copy of 

the above and foregoing petition was this day mailed, via 

United States mail, postage prepaid, to Honorable Robert E. 

Hauberg, United States Attorney, Post Office Box 191, Jackson, 

Mississippi 39205, and to Honorable David D. Gregory, Attorney, 

Appeals Division, Department of Justice, Washington, D.C. 20530, 

attorney of record for the United States of America; and to 

Honorable Reuben V. Anderson, Melvyn R. Leventhal, 538% North 

Farish Street, Jackson, Mississippi 39202, and Honorable Jack 

Greenberg, 10 Columbus Circle, Suite 2030, New York, New York 

10019, attorneys of record for private plaintiffs. 

2 
CERTIFIED, this the /4/= day of July, 1969. 

a Lo Lonrmnnn 
  

a 

V4