United States v. Mississippi Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 85-4804

UNITED STATES OF AMERICA, 

and
ZANDRA PITTMAN, Etc., ET AL., 

versus
THE STATE OF MISSISSIPPI, ET AL., 

and
HATTIESBURG MUNICIPAL SEPARATE 
SCHOOL DISTRICT,

PIainti ff-Appel lee.

Plaintiffs-Interveners-Appellants

Defendants-Appel lees.

Defendant-Intervenor-Appellee.

Appeal from the United States District Court for the 
Southern District of Mississippi

BRTRP FOR APPELLANTS

JERE KRAKOFF
909 Lindenwcod Drive 
Pittsburgh, Pennsyl­
vania 15234

WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN

Lawyers’ Committee for Civil 
Rights Under Law 

1400 Eye Street, N.W,, Suite 
400

Washington, D.C. 20005-2208 
(202) 371-1212 

NAUSEAD STEWART
Suite 400 Security Centre South 
200 East Pascagoula Street 
P. 0. Box 2086
Jackson, Mississipoi 39225-2086 
(601) 948-4589

Attorneys for Plaintiff-Intervenors-Appellants



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 85-4804

UNITED STATES OF AMERICA,

and
ZANDRA PITTMAN, Etc., ET AL., 

versus
THE STATE OF MISSISSIPPI, ET AL.,

and
HATTIESBURG MUNICIPAL SEPARATE 
SCHOOL DISTRICT,

Plaintiff-Appellee.

Plaintiffs-Intervenors-Appellants

Defendants-Appellees.

Defendant-Intervenor-Appel lee.

Appeal from the United States District Court for the 
Southern District of Mississippi

CERTIFICATE OF INTERESTED PERSONS 
The undersigned counsel of record certifies that the following 

listed persons and bodies have an interest in the outcome of this 
case. These representations are made in order that the Judges 
of this Court may evaluate possible disqualification or recusal.

The United States of America
Zandra Pittman, a minor child and her parents,

Andrew Pittman and Patricia Pittman
Geneva Harrell and Jimmy Harrell, Jr., minor 

children, and their parents, Jimmy Harrell 
and Rose Mary Harrell

-  1  -



The class of all students attending the public schools of the Hattiesburg Municipal Separate 
School District

The State of MississippiThe Mississippi State Board of Education and 
its members, Joe Blount, Carolyn Gwin, Arthur 
Peyton, Talmadge Portis, James E. Price, 
Jr., Jack Reed, Sr., Lucimarian Roberts, 
Joe M. Ross, Jr., and Tommy WebbRichard A. Boyd, Mississippi Superintendent 
of EducationThe Mississippi State Educational Finance 
Commission and its members, J.W. Collins, 
J. Tom Dullin, J.Y. Trice, W.L. Roach, J.W. 
Phillips, and Boyce ColemanFrank I. Lovell, Jr., Executive Secretary of 
the Mississippi State Educational Finance 
Commission

The Hattiesburg Municipal Separate School 
DistrictGordon Walker, Superintendent of the Hatties­
burg Municipal Separate School District

The Board of Trustees of the Hattiesburg Muni­
cipal Separate School District and its mem­bers, F. Charles Phillips, Paul W. McMullan, 
Andrew Wilson, Harry McArthur, and Dr. Char­
lotte Tullos

January 23 , 1986
NORMAN J. CHACHKIN 
Attorney for Plaintiff- 

In tervenors-Appel lants

-  1 1  -



Request for Oral Argument

Appellants respectfully request that oral arguinent be sched­
uled in this case because of the great public importance of the 
subject matter (school desegregation) and of the major ground 
advanced by the court below in support of its decision (anticipated 
"white flight" if a school pairing plan were implemented.)

While this Court has consistently and recently rejected "white 
flight" as a justification for adopting a desegregation plan which 
is less promising than available alternatives, the failure of 
the district court to follow that well-established precedent (when 
urged by the United States that it need not do so) suggests the 
critical importance of reaffirming the governing legal principles 
in this matter.

Oral argument will also provide an opportunity for the Court 
to have any factual ambiguities or questions which may arise on 
the record or in the briefs clarified; school desegregation cases 
are highly fact-intensive and the plan approved below encompasses 
a number of varying activities at different schools.

- Ill -



TART.R OF CONTENTS

Certificate of Interested Persons . . . .
Request for Oral Argument............ .
Table of Contents.................... .
Table of Authorities................ .
Statement of Jurisdiction ............  .
Statement of Issues Presented for Review 
Statement of the Case

1. Proceedings Below ............
2. Statement of Facts ..........

a. The Hattiesburg district .
b. The magnet p l a n ........
c. The Stolee plan ........
d. Effectiveness of the plans and 

"white flight" ..............
Summary of the Argument 
ARGUMENT —

Introduction .

Page
i

iii
iv
vi
1

II

The Plan Approved Below Is Constitutionally 
Inadequate Because It Does Not Reach 
Racially Isolated Schools Which Can Rea­
sonably And Feasibly Be Desegregated . . .
The Plan Approved Below Impermissibly 
Postpones Desegregation of Hattiesburg's 
Elementary Schools for Years ............

2

6

8

10
15

18
23

26

28

35

*A note concerning the form of citations to record 
materials appears at the end of the Table of Contents

- IV -



Table of Contents (continued)
Page

Argument (continued)
III Anticipated White Flight Cannot Justify 

Adoption Of The Less Effective Magnet 
School Desegregation Plan ..............

IV Magnet Schools And Educational Improve­
ments Should Be Implemented In Conjunction 
With A Mandatory Desegregation Plan . . .

Conclusion .......................................
Appendix .........................................
Certificate of Service

39

46
49
la

*Throughout this brief, record materials are cited as follows:
The consecutively paginated two volumes of original papers 

assembled by the district court clerk (Vol. 1 and 2 of the Record 
on Appeal) as "R. __

The consecutively paginated four-volume Transcript of Hearing 
held October 1-4, 1985 in Hattiesburg (Vol. 4-7 of the Record on 
Appeal) as "Tr. __

The single volume of proceedings on the motion to intervene 
held before the district court on July 26, 1984 (Vol. 3 of the 
Record on Appeal) as "R. Vol. 3 p. __."

The Docket Entries (appearing at the front of Vol. 1 of the 
Record on Appeal but separately paginated) as "Dkt. Ent. p. -- ."

Exhibits introduced at the October 1-4 hearing by the United 
States government as "G-X __by the defendant-intervenor Hat­
tiesburg Municipal Separate School District as "D-X __and by
the plaintiff-intervenors (appellants) as "PI-X __ ." (All ex­
hibits were admitted without objection, Tr. 13.)

The Memorandum Opinion and Order from which this appeal is 
taken as "Mem. Op. __."

Material included in the separately bound and paginated Record 
Excerpts as "R.Exc. __."

- V -



Table of Authorities
Page

Cases t
Acree v. County Bd. of Educ., 4 

Cir.), cert, denied, 409 U 
Adams V. Mathews, 403 F.2d 181 
Alexander v. Holmes County Bd.

19 (1969) ..............Allen V. Board of Pub. Instruct 
County, 432 F.2d 362 (5th 
denied, 402 U.S. 952 (1971 

Arthur V. Nyquist, 514 F. Supp. 
aff'd mem., 661 F.2d 907 ( 
denied sub nom. Griffin v.
1085 (1981) ............

Arthur V. Nyquist, 473 F. Supp. 
1979) ..................

58 F.2d 486 (5th 
.S. 1006 (1972) 
(5th Cir. 1968) 
of Educ., 396 U.S,
ion of Broward 
Cir. 197 0) , cert.
) .........................1133 (W.D.N.Y.), 
2d Cir.), cert. 
Arthur, 454 U.S.
830 (W.D.N.Y.

Berry v. School Dist. of Benton Harbor, 515 F. 
Supp. 344 (W.D. Mich. 1981), aff'd and re­
manded, 698 F.2d 813 (6th Cir.), cert, de­
nied, 464 U.S. 892 ( 1 9 8 3 ) ..............

Brown V. Board of Educ. of Bessemer, 464 F.2d
382 (5th Cir.), cert, denied, 409 U.S. 981
(197 2 ) ...................................Brunson v. Board of Trustees, 429 F.2d 820 (4th 
Cir. 197 0 ) ...............................

Carr v. Montgomery County Bd. of Educ., 429 F.2d
382 (5th Cir. 197 0) ......................Carter v. West Feliciana Parish School Bd., 396
U.S. 290 (197 0) .................. .. . . .

Cisneros v. Corpus Christi Indep. School Dist.,
467 F.2d 142 (5th Cir. 1972) (en banc), cert, 
denied, 413 U.S. 920 (1973) ..............

Davis V. Board of School Comm'rs of Mobile, 402
U.S. 33 (1971)...........................Davis V. East Baton Rouge Parish School Bd.,
721 F.2d 1425 (5th Cir. 1983) ..........

Davis V. East Baton Rouge Parish School Bd.,
514 F. Supp. 869 (E.D. La. 1981) ........

Ellis V. Board of Pub. Instruction of Orange Coun­
ty, 465 F.2d 878 (5th Cir. 1972), cert, de­
nied, 410 U.S. 966 ( 1 9 7 3 ) ................

16n
35n
25, 34, 35n

16n

37n
37n

Flax V. Potts, 464 F.2d 865 (5th Cir.), cert, de­
nied, 409 U.S. 1007 (1972)................

47 n

29n 
4 On

7n
25, 34, 35n 

16n

25, 32n-33n
passim
15n

33n

8n

- VI -



Page
Cases (continued):
Green v. County School Bd. of New Kent County,

391 U.S. 430 (1968) ........................  35n
Hall V. St. Helena Parish School Bd., 417 F.2d 

801 (5th Cir.), cert, denied, 396 U.S. 904
(1969)....................................... 35n

Harrington v. Colquitt County Bd. of Educ., 460 
F.2d 193 (5th Cir.), cert, denied, 409 U.S.
915 (1972)................................... 16n

Henry v. Clarksdale Mun. Separate School Dist.,
409 F.2d 682 (5th Cir.), cert, denied, 396
U.S. 940 (1969) ............................. 29n

Hereford v. Huntsville Bd. of Educ., 504 F.2d 857 
(5th Cir. 1974) , cert, denied, 421 U.S. 913 
(1975)....................................... 33n

Jackson v. Marvell School Dist. No. 22, 425 F.2d
211 (8th Cir. 1970) ........................  30

Johnson v. Jackson Parish School Bd., 423 F.2d
1055 (5th Cir. 1970)........................  30

Lee V. Demopolis City School Sys., 557 F.2d 1053 
(5th Cir. 1977), cert, denied, 434 U.S. 1014
(1978) .......................................  33n-34n

Lee V. Linden City School Sys., 617 F.2d 383 (5th
Cir. 1980)................................... 33n

Lee V. Marengo County Bd. of Educ., 465 F.2d 369
(5th Cir. 1972) ............................. 40

McNeal V. Tate County Bd. of Educ., 508 F.2d 1017
(5th Cir. 1975) ............................. 48n

Milliken v. Bardley, 433 U.S. 267 ( 1 9 7 7 ) .......... 19n
Monroe v. Board of Comm'rs of Jackson, 391 U.S.

450 (1968)................................... 35n
Monroe v. Board of Comm'rs of Jackson, 427 F.2d

1005 (6th Cir. 197 0 ) ............ ............ 32, 42
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert.

denied, 426 U.S. 935 (1976) ................  40n
Pate V. Dade County School Bd., 588 F.2d 501 (5th

Cir.), cert, denied, 444 U.S. 835 (1979) . . . 33n
Pate V. Dade County School Bd., 434 F.2d 1151 

(5th Cir. 1970), cert, denied, 402 U.S.
953 (197 1 ) ................................... 49

Plaquemines Parish School Bd. v. United States,
415 F.2d 817 (5th Cir. 1969)................  48n

Quarles v. Oxford Mun. Separate School Dist., 487
F.2d 824 (5th Cir. 197 3 ) ....................  29n

v i i  -



Page
Cases (continued):
Raney v. Board of Educ. of Gould, 391 U.S. 443 

(1968) .................................
Swann v. Charlotte-Mecklenburg Bd. of Educ., 

402 U.S. 1 (1971) ..................

Tasby V. Estes, 572 F.2d 1010 (5th Cir. 1978), 
cert, dismissed as improvidently granted,
444 U.S. 437 (1980) .......................

United States v. Columbus Mun. Separate School 
Dist. , 558 F.2d 228 (5th Cir. 1977), cert, 
denied, 434 U.S. 1013 (1978) ..............

United States v. Gadsden County School Dist.,
572 F.2d 1049 (5th Cir. 1978) ............

United States v. Greenwood Mun. Separate School
Dist., 460 F.2d 1205 (5th Cir. 1972) . . . . 

United States v. Greenwood Mun. Separate School 
Dist., 406 F.2d 1086 (5th Cir.), cert, de­
nied, 395 U.S. 907 (1969) ................

United States v. Hinds County School Bd., 433
F.2d 611 (5th Cir. 1970) ..................

United States v. Hinds County School Bd., No.
28030 (5th Cir. March 30, 1970)(unreported) 

United States v. Hinds County School Bd., 417 
F.2d 852 (5th Cir. 1969), cert, denied,
396 U.S. 1032 (197 0 ) ......................

United States v. Indianola Mun. Separate School 
Dist., 410 F.2d 626 (5th Cir. 1969), cert.
denied, 396 U.S. 1011 (1970) ..............

United States v. Jefferson County Bd. of Educ., 
372 F.2d 836 (5th Cir. 1966), aff'd on 
rehearing en banc, 380 F.2d 385 (5th Cir.), 
cert, denied sub nom. Caddo Parish School 
Bd. V. United States, 389 U.S. 940 (1967) 

United States v. Mississippi [Laurel Mun. Sep­
arate School Dist.], 567 F.2d 1276 (5th
Cir. 1978).................................

United States v. Scotland Neck City Bd. of Educ., 
407 U.S. 484 (1972) ......................

United States v. Seminole County School Dist.,
553 F.2d 992 (5th Cir. 1977) ..............

United States v. Texas Educ. Agency, 647 F.2d 504 
(5th Cir.), cert, denied, 454 U.S. 1143 
(1981).....................................

35n

3n, In,
25, 32

15n

15n-16n,
17n, 30

48n
29n

29n
3n
3n

31, 35n 

29n

31&n, 48n 

22n
25, 40&n, 

42
16n, 33n 

8n

- v i i i  -



Page
Cases (continued):
United States v. Texas Educ. Agency, 532 F.2d 380 

(5th Cir.), vacated and remanded, 429 U.S. 
990 (1976), reaff'd, 364 F.2d 162 (5th Cir.
1977) , on rehearing, 579 F.2d 910 (5th Cir.
1978) , cert, denied, 443 U.S. 915 (1979) . .

of Brevard 
1972) , cert,Weaver v. Board of Pub. Instruction 

County, 467 F.2d 473 (5th Cir.
denied, 410 U.S. 982 ^ 9 7 3 ) .......... .

Wright v. Board of Pub. Instruction of Alachua 
County, 445 F.2d 1397 (5th Cir. 1971)

Youngblood v. Board of Pub. Instruction of Bay 
County, 448 F.2d 770 (5th Cir. 1971) . .

16n

33n, 44n 
8n

8n

Statutes:
28 U.S.C. § 1 2 9 1 ................................. 1
28 U.S.C. § 1292(a) (1) ..........................  1
Miss. Code Ann. § 37-13-91 (Supp. 1985)..........  lln
Miss. Code Ann. § 37-21-7(1)(f), (j) (Supp. 1985) . lln

Other Authorities:
Hawley & Rossell, Policy Alternatives for Minimi­

zing White Flight, 4 Educ. Evaluation & Pol'y 
Analysis 205 (1982) .................... .. <

Rossell, Applied Social Science Research: What
Does It Say About the Effectiveness Of School 
Desegregation Plans?, 12 J. Legal Stud. 69 
(1983) ..................................... ■

School Desegregation, Hearings Before the Subcomm. 
on Civil & Constitutional Rights of the House 
Comm, on the Judiciary, 97th Cong., 1st Sess. 
(1981)......................................

Vobedja, "Magnet Schools Aid Desegregation But
Questions Remain," Washington Post, December 
23, 1985, pp. Al, A8 ......................

46n

46n

46n

31n

- IX -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 85-4804

UNITED STATES OF AMERICA, 

and
ZANDRA PITTMAN, Etc., ET AL., 

versus
THE STATE OF MISSISSIPPI, ET AL., 

and
HATTIESBURG MUNICIPAL SEPARATE 
SCHOOL DISTRICT,

Plaintiff-Appel lee.

Plaintiffs-Interveners-Appellants

Defendants-Appel lees.

Defendant-Intervenor-Appel lee.

Appeal from the United States District Court for the 
Southern District of Mississippi

RRTKP FOR APPRT.T.ANTS

Statement of Jurisdiction
This Court has jurisdiction of this appeal pursuant to 28 

U.S.C. § 1291 because the Memorandum Opinion and Order appealed 
from is a final order for purposes of appeal. The Court also 
has jurisdiction of this appeal pursuant to 28 U.S.C. § 1292(a)(1) 
because the order appealed from denies to plaintiff-intervenors- 
appellants the permanent injunctive relief which they sought below 
(see R. 46 2) .



statement of Issue Presented for Review
The Hattiesburg elementary schools have never been effectively 

desegregated; in the 1984-85 school year, five of eleven schools 
were virtually all-Black and three other schools were each more 
than 70% white. (59% of all elementary students were Black.) 
The district court rejected a school pairing and clustering plan 
which would have reassigned Black and white students in 1986-87 
in substantial numbers to every school. It approved a primarily 
voluntary plan to convert two of the all-Black schools to "magnet 
schools" in 1987-88 and leave two other all-Black schools unaffec­
ted. The issue presented for review is whether the district 
court's decision meets applicable constitutional standards for 
eliminating all vestiges of dual school systems where:

(a) the court made no findings that distances or pupil 
transportation times between paired or clustered 
schools were excessive, or that the pairing and 
clustering plan was otherwise infeasible or imprac­
tical ;

(b) the court postponed any assessment of the magnet 
plan's effectiveness or modification of its order 
until the end of the 1989-90 school year; and

(c) the sole ground advanced by the court for its ruling 
was that implementation of the pairing and clustering 
plan would cause greater future "white flight" from 
the school district than would the magnet plan.

Statement of the Case
1. Proceedings Below.
This action was originally filed in 1970 by the United States 

against the State of Mississippi and several state agencies and 
officials, seeking the desegregation of 13 public school systems 
(R.Exc. 3 [Dkt. Ent. p. 1]). The Hattiesburg Municipal Separate

-  2 -



School District (HMSSD) intervened as a defendant (iJLi). On July 
15, 1970 the district court approved a pupil assignment plan embod­
ied in a consent decree between the United States and the HMSSD 
(D-X 53). Following the Supreme Court's decision in gwanjl^> the 
district court on July 21, 1971 approved the school system's plan 
for further student desegregation (D-X 51). Thereafter, HMSSD con­
tinued to send semi-annual reports^ to the court and to the gov­
ernment, but there were no significant proceedings in the matter 
for a dozen years.-'

On April 23, 1983, counsel for the present appellants —  Black 
children attending the HMSSD schools and their parents —  wrote 
to counsel for the HMSSD and for the United States, urging that 
meaningful steps be taken to eliminate continuing elementary school 
segregation (R. 7-8; PI-X 13). The Black children and their par­
ents on February 21, 1984 formally moved to intervene in this 
lawsuit as plaintiffs (R. 1). They alleged that the HMSSD elemen­
tary schools^ had never been adequately desegregated and that 
the United States had failed to protect the interests of Black

^Swann v. Char 1 otte-Mecklenbura Bd. of Educ. , 402 U.S. 1 
(1971) .

^The reports, required by a 1970 supplemental district court 
order (D-X 52), followed the format announced by this Court in 
United States v. Hinds Countv School Bd., No. 28030 (5th Cir. 
March 30, 1970)(unreported), reprinted in f 433 F.2d 611, 612 
n.l, 618-19 (5th Cir. 1970). They are collected in PI-X 1 intro­
duced below.

^On one occasion the parties agreed to, and the district 
court approved, a minor alteration of the desegregation plan 
(R.Exc. 24 [Dkt. Ent. p. 12]) but most of the elementary schools 
continued to be racially identifiable (see R.Exc. 80, 84 [G-X 1; 
PI-X 9]; Tr. 18, 142) .

^Neither the proceedings below nor this appeal involve any 
contested issues relating to the HMSSD secondary schools.

- 3 -



pupils in the HMSSD by seeking further relief to accomplish this 
goal (R. 2-4). The HMSSD opposed intervention (R. 58-60) and 
the government asked the district court to withhold ruling (R. 62- 
68), both parties indicating that they were actively engaged in 
negotiations to resolve any remaining problems (R. 56, 65-66).^ 
The district court delayed consideration of the intervention to 
permit these negotiations to go forward.

On July 17, 1984 the HMSSD and the United States submitted 
to the district court a consent decree which proposed further 
pupil desegregation in the elementary grades through the altera­
tion of zone lines, a school closing, and creation of two "magnet" 
schools (R. 99; PI-X 33).® Following a July 26, 1984 hearing on 
the motion to intervene (R. Vol. 3), the district court on August 
2, 1984 ruled that the applicant Black children and parents should 
be allowed to enter the suit (R. 134).’̂ The intervening plain­
tiffs and the HMSSD then worked out a procedure for the orderly 
submission to and consideration by the district court of plans 
to desegregate Hattiesburg's elementary schools.® The United

®The discussions between HMSSD and the government began only 
after receipt of the April 23, 1983 letter from counsel for the 
Black children and their parents. Response of the United
States to Motion to Intervene, pp. 3-5 (R. 64-66).

®This proposed consent decree, like the one subsequently 
filed on September 4, 1985 by HMSSD, Mississippi, and the United 
States (R. 524, R.Exc. 85 [D-X 57]), also contained provisions 
dealing with other subjects (such as student discipline and as­
signment to special education classes). The district court ap­
proved these provisions along with the magnet pupil assignment 
plan and no issue arises with respect to them on this appeal.

^Appellants' Complaint in Intervention was filed August 24, 
1984 (R. 148).

®This agreement was embodied in a consent order between plain-
- 4 -



States declined to agree to this procedure, arguing instead that 
the court should first hold a hearing on the magnet plan contained 
within the July 17, 1984 proposed consent decree (R. 164, 169). 
The district court rejected that suggestion.

Thereafter, in accordance with the scheduling order, plans 
prepared by desegregation consultants contacted by the school 
district^ were filed with the court on December 10, 1984 (R. 257 ); 
two "magnet" proposals were submitted on behalf of HMSSD on Decem­
ber 10, 1984 (R. 207);^° and a pairing plan drafted for plaintiff 
Black children by Dr. Michael Stolee was tendered on January 21, 
1985 (R. 362; R.Exc. 126 [PI-X 24]). Plaintiff Black children 
filed objections to the HMSSD plans (R. 322); the district filed 
objections to the plan drawn by Dr. Stolee (R. 393) ; and discovery 
between these parties was completed (see R. 335-44, 380-92, 402-04, 
408-20; PI-X 11, 21).

tiff Black children and the HMSSD which the district court en­
tered on September 24, 1984 (R. 171; see R. 705, R.Exc. 65 [Mem. 
Op. 3]). HMSSD agreed to contact the University of Miami Race 
Desegregation Assistance Center (the center funded under Title 
IV of the 1964 Civil Rights Act which serves Mississippi), as 
well as Dr. Larry Winecoff, of the University of South Carolina, 
and to request that each design two plans for desegregating the 
system's elementary schools: one based on "magnet schools" and 
one utilizing other techniques. The resulting plans were to be 
circulated to all parties, who could file them with the court 
and who would also have an opportunity to submit any other pro­
posals for the court's consideration. The order set deadlines 
for the submission of plans and objections and for the completion 
of discovery; and it called for an evidentiary hearing before 
the district court "on or about February 15, 1985" (R. 177).

^See supra note 8. Dr. Winecoffs plan was co-authored by 
Dr. Burnett Joiner, of Grambling University.

^^These submissions were referred to during the course of the 
proceedings below as the "District" and "District Alternative" 
plans.

- 5 -



On April 22, 1985 plaintiff Black children, by written motion, 
sought the prompt scheduling of a hearing (R. 455). Judge Russell 
subsequently withdrew from the case and it was reassigned to the 
Hon. Tom S. Lee. A pre-trial conference was held September 10, 
1985 (R. 563)^^ and an evidentiary hearing conducted in Hatties­
burg on October 1-4, 1985 (R. 67 3). On October 21 , 1985 the dis­
trict court issued its Memorandum Opinion and Order approving 
for implementation the magnet (voluntary) desegregation plan sup­
ported by the United States and HMSSD (R. 703, R.Exc. 63). The 
Notice of Appeal from this Order was filed November 4, 1985 (R. 
720).^2

2. Statement of Facts
This appeal concerns the adequacy of a plan approved by the 

district court to eliminate segregated elementary schools in the 
HMSSD. Neither the 1970 consent decree nor the 1971 order of the

^^In the meantime, the United States negotiated with the 
HMSSD in an effort to develop yet another magnet desegregation 
proposal for the District's elementary schools. Such a proposal 
was ultimately filed, in the form of a suggested consent decree, 
by the United States, the State of Mississippi, and HMSSD, on 
September 4, 1985 (R. 520, R.Exc. 85 [D-X 57]). As we indicate 
infra pp. 7a-8a, the basic student assignment features of the 
"magnet" plan supported by HMSSD and the United States have re­
mained unchanged in all of the various plans which either or both 
of those parties have submitted.

^^The Order was subsequently modified with the consent of 
all parties so as to include counsel for plaintiff Black children 
among those who are to receive copies of future semi-annual re­
ports to the court (R. 723-24). In addition, correspondence be­
tween the parties has continued with respect to the matters on 
which HMSSD was required by the district court's Order to take 
action (free transportation for enrollees in the magnet schools 
and controls on admission to prevent magnet school selections 
which would adversely affect the desegregation status of other 
facilities, see R. 718-19, R.Exc. 78-79 [Mem. Op. 16-17]).

-  6 -



district court succosded in achisving that constitutional objec~ 
tive.^3 In March, 1985, five of the district's eleven elementary 
schools were 89% —100% Black (R. 704, R.Exc. 64 [Mem. Op. 2n.3]).^^ 
Together, these five schools enrolled more than 73% of all Black 
Hattiesburg elementary students (PI-X 37; see also R. 705, R.Exc. 
65 [Mem. Op. 3 n.4]).^^ Conversely, 77% of all white children 
were enrolled in three historically white schools that each re­
mained more than 70% white (R.Exc. 84 [PI-X 9]; PI-X 37; Tr. 131- 
3 2 ) These patterns had remained unchanged for a dozen years 
(see R.Exc. 80, 8 4 [G-X 1; PI-X 9 ]) .

^^The 1970 decree replaced HMSSD's use of a freedom-of-choice 
plan adopted in 1964, which had had little result. For example, 
no white student ever chose to attend a formerly Black school 
under free choice (Tr. 35, 133).

After entry of the 1971 court order, the secondary schools 
of the HMSSD were fully desegregated through pairing and grade 
consolidation, s ^  D-X 38, pp. 5-6 [Race Desegregation Assistance 
Center report and plans]. However, both the 1970 decree and the 
1971 court-ordered plan utilized a system of contiguous geographic 
zoning for elementary school assignments which did not alter the 
historic racial identifiability of the schools (see R.Exc. 80, 
84 [G-X 1; PI-X 9]; Tr. 18, 142).

Although majority-to-minority transfers are authorized under 
the 1970 and 1971 orders, none has ever been used by a white ele­
mentary school pupil (s^ PI-X 1; D-X 8). The number of major- 
ity-to-minority transfers by Black elementary school pupils has 
totalled about 50-60 annually in recent years (s^ D-X 8). Major- 
ity-to-minority transfers are limited by the capacity of the re­
ceiving schools (Tr. 25, 123-24) and the HMSSD has not provided 
transportation for pupils making these transfers (Tr. 314-15) . 
Compare Swann. 402 U.S. at 26-27 ; Carr v. Montgomery County Bd. of 
Educ.. 429 F.2d 382, 386 (5th Cir. 1970) and cases cited.

'̂̂ Of these, all but one school (Walthall) 
for Black students under the dual system (see 
Tr. 48-50 , 132-33).

15r

had been designated 
R.Exc. 84 [PI-X 9] ;

^The four historically Black elementary schools, s ^  supra 
note 14, housed 63% of all Black pupils (PI-X 36, 37).

16See Table 1, inf ra p. 2a.
"̂̂ The school district argued that its adherence to the zoning

- 7 -



a. The Hattiesburg district
HMSSD is a small system, in September 1985 enrolling 2,972 

elementary pupils in grades 1-6 (exclusive of special education 
students) (D-X 10-A). The district covers a compact geographical 
area, within which the reassignment of pupils to bring about de­
segregation is entirely practicable (Tr. 662-63 [Dr. Stolee], 650
[Dr. Foster]).18

scheme embodied in the 1971 court order made HMSSD a unitary sys­
tem —  in spite of the substantial school segregation which re­
mained at the elementary level. (See Attachment C to Pre-Trial 
Order, p. 2, R. 580.) Comoare, e.g., Flax v. Potts, 464 F.2d 
865, 868 (5th Cir.), cert, denied. 409 U.S. 1007 (1972). Thus, 
it contended, no new plan could be mandated; rather, the court 
was required to approve its voluntary proposal of a magnet plan 
which might enhance desegregation. However, no order had ever 
been entered adjudicating HMSSD to be unitary. See, e.g., United 
States V. Texas Educ. Agency, 647 F.2d 504, 508-09 (5th Cir.), 
cert, denied. 454 U.S. 1143 (1981); Youngblood v. Board of Pub. 
Instruction of Bav County, 448 F.2d 770 (5th Cir. 1971); Wrjght 
V. Board of Pub. Instruction of Alachua County, 445 F.2d 1397 
(5th Cir. 1971) .

Following the pre-trial conference and the submission of 
briefs (see R. 533; Tr. 4), the district court ruled that HMSSD 
was not unitary (Tr. 4-5; see R. 7 04, R.Exc. 64 [Mem. Op. 2 n.l]) 
and proceeded to evaluate the adequacy of the plans submitted by 
the parties "to achieve the reaui red result of further desegre­
gation" (R. 717; R.Exc. 77 [Mem. Op. 15])(emphasis supplied). 
HMSSD has not cross-appealed from these rulings.

^^There was no testimony that it is physically or geograph­
ically impractical to desegregate any HMSSD elementary school. 
Compare, e.g. . Tr. 88 (Dr. Spinks, HMSSD Superintendent f rom 1966- 
1985: "I just don't think they'll [whites will] go to that school 
[Eureka ] ") .

The district is small enough that an assignment change which 
caused an early bus run to end up at Thames, on the western side 
of town, rather than at Love, to the east, could be compensated 
for merely by shifting driver assignments for the second bus runs, 
without purchasing any additional equipment (Tr. 324-29); HMSSD 
Transportation Supervisor Goodbread also testified that it might 
be possible to cut costs and new equipment needs under a pairing 
and clustering plan by routing the buses to make triple runs (Tr. 
349-50, 353, 357). [footnote continued on next page]

-  8 -



HMSSD currently operates some 32 school buses on double runs 
making neighborhood pick-ups —  22 on elementary school routes 
(of which 7 are for special education students) (Tr. 279, 345, 
350). Under the plan approved below, HMSSD will also, for the 
first time, provide free transportation to any student exercising 
a majority-to-minority transfer, as well as to any student admitted 
to a magnet elementary s c h o o l , s o  long as the student resides

O Aat least a mile from the school which he or she is to attend. 
The street travel distances between elementary school facilities 
which would be paired or clustered, under the plan drawn up by 
Dr. Stolee for the plaintiff Black children, range from 2.3 miles 
to 6.4 miles —  and the school-to-school travel times from 10 
minutes to 18 minutes by school bus (D-X 41; PI-X 34; Tr. 315- 
1 7 ) . (See map infra p. la, showing travel times and distances

A map drawn to scale, indicating the locations of the elemen­
tary schools in the HMSSD and the street driving distances between 
them by school bus, appears inf ra p. la.

^^As originally presented, the magnet plan proposed by HMSSD 
and the United States did not make provision for the transporta­
tion of pupils to the magnet schools without payment of a fee. 
However, the district court's October 21, 1985 Order directed 
HMSSD to "present a report to the court regarding the feasibility 
of and need for providing free transportation for children elect­
ing to attend magnet schools" (R. 719, R.Exc. 79 [Mem. Op. 17]). 
The district has advised other counsel and the court that it will 
furnish such transportation.

^®No accurate prediction of the increase in pupil transpor­
tation capacity which will be required under the district's plan 
could be devised (s^ Tr. 349-50). The estimates prepared by 
HMSSD's Transportation Director were based upon the unreliable, 
inaccurate attendance projections submitted with the plan (Tr. 
323). See inf ra pp. 19-22.

^^Past majority-to-minority transfers, for which HMSSD will 
now be providing transportation, have included transfers between 
nearly all of the schools which would be paired or clustered under 
the Stolee plan. (See map inf ra p. la and PI-X 1; D-X 8.)

- 9 -



between schools and their March, 1985 racial composition in grades 
1-6 .)

b. The magnet plan
The magnet plan approved by the district court would convert 

two of the five virtually all-Black elementary schools^^ (Jones 
and Walthall) into magnet facilities with specialized curricular 
emphases.23 Equal numbers of Black and white students would be 
admitted to these schools upon approval of their voluntary appli­
cations, so as to maintain a 50% Black, 50% white enrollment in 
each facility.24 a third Black school (Grace Love) would be con-

22See Table 1, inf ra p. 2a.
22slack pupils who formerly attended these facilities and 

who would not be enrolled in the magnet programs would be reas­
signed: at least 60 Blacks from Jones to Grace Christian (a for­
merly white school), 118 Blacks from Walthall to Eureka (still a 
virtually al1-Black school)(R.Exc. 124 [D-X 33]; Tr. 146-47, 194- 
95) , and 46 Blacks who now attend Jones under a special program 
to other "neighborhood" schools (Tr. 236-37). These numbers will 
increase to the extent that fewer pupils who formerly attended 
Jones and Walthall volunteer for the magnet schools than the num­
ber of places reserved for them under the plan (see Tr. 232-35) 
or to the extent that fewer white than Black students request 
admission to the magnet schools (Tr. 194-95).

2 4r 1985 enrollment of the HMSSD in grades 1-6 was 
Table 1, inf ra p. 2a), and the government's ex- 
, Christine Rossell, testified that even in thethe district's

‘The March,
59.4% Black (see 
pert witness. Dr,absence of any further desegregation measures, 
proportion of Black students in the elementary grades could be 
expected to increase each year (Tr. 6 07). See also Tr. 505 (aver­
age annual decrease of white students over ten-year period is 
2%); Argument on Hearing on Motion to Intervene, July 26, 1984, 
R. Vol. 3, p. 48.

The 50% limitation on Black enrollment is intended "to make 
those magnet schools more attractive to the white community" (Tr. 
259). "Rather than whites being in the minority, there will be 
an equal number of blacks and whites in the magnet schools" (Tr. 
257 ) .

-  10 -



2 5solidated with a small, racially mixed facility (Eaton) that 
would be closed, resulting in a projected enrollment in grades 
one through six^® that would be 73% Black.27 The two remaining

57)
2^Eaton was a white school under the dual system (Tr. 48, 
It is located on the eastern edge of the district in an

area whose population has been declining for years. The school's 
enrollment, well mixed racially, has also been declining for an 
extended period of time (Tr. 57; see R.Exc. 80 [G-X 1]). Eaton 
is located five blocks from the historically Black school, Grace 
Love, into which it would be closed under the plan approved below 
(Tr. 60) and all but five houses in the Eaton zone are within a 
mile (walking distance) of Love (Tr. 286).

1-6 ,
dual

2^Throughout this brief we 
the only elementary grades 
system (see Tr. 114) .

focus upon 
offered in

enrolIment 
the HMSSD

in grades 
under the

The magnet plans submitted by HMSSD originally contemplated 
that kindergarten and pre-kindergarten programs —  which are vol­
untary and not subject to Mississippi's compulsory attendance law, 
see Miss. Code Ann. § 37-13-91 (Supp. 1985) —  would be offered 
only at the magnet schools [July 17, 1984 and December 10, 1984 
"District" plan] or only at the non-magnet, formerly Black schools, 
Bethune, Eureka, and Love [December 10, 1984 "District Alterna­
tive" plan and September 4, 1985 proposed consent decree plan]. 
For this reason, the enrollment projections accompanying each 
of these plans included an estimated number of white kindergarten 
or pre-K pupils (see R. 231, 247 , 558; R.Exc. 119).

However, the Mississippi Educational Reform Act of 1982, 
Miss. Code Ann. § 37- 21-7 (1) (f) , (j) (Supp. 1985) , as implemented 
by the State Board of Education, requires that all public school 
systems Offer (voluntary) kindergarten programs at schools 
(Tr. 113-14). HMSSD officials admitted at trial that whites were 
unlikely to select kindergarten programs at formerly Black schools 
for their children in preference to kindergarten offerings in 
their "neighborhood" schools (Tr. 115, 175; see also Tr. 57 0 [gov­
ernment's expert witness Dr. Rossell]).

Moreover, both kindergarten and pre-kindergarten programs 
for "developmentally delayed" 4-year-olds are generally self-con­
tained; pupils in these programs, including any white children 
whose parents choose to enroll them, will have little or no con­
tact with Black students in the regular curriculum at the schools, 
except possibly in the lunchroom or on the playground or school 
bus (Tr. 263). The school district's expert witness, Dr. Wine- 
coff, admitted that combining white kindergarten pupils with Black 
students in grades 1—6 to produce a "desegregated" school is the

[footnote 26 continued & footnote 27 on next page]
-  11 -



virtually all-Black schools, Bethune and Eureka, will neither be­
come "magnets" nor have any white students in grades 1-6 reas­
signed to them. Finally, several attendance zone changes would 
be made that would reassign Black children to formerly white 
schools.^®

The enrollment projections submitted with the magnet plan 
indicate that Eureka and Bethune will be 97% and 99% Black, respec­
tively,^^ in grades 1-6^® (R.Exc. 124 [D-X 33]), enrolling ap-

same as characterizing a school in which all pupils in grades 1-3 
were Black and all pupils in grades 4-6 were white as "desegre­
gated" (Tr. 519).

^^This figure is determined by adding together the Eaton and 
Love enrollments shown on D-X 33 (R.Exc. 124)(the same projections 
appear on D-X 33 and as Attachment Two to the September 4, 1985 
proposed consent decree plan which the district court approved, 
R. 558, R.Exc. 119; Tr. 83, 157-58), exclusive of pre-K and
kindergarten students, and subtracting the Black students who will 
be shifted to Thames (see infra note 28).

^^These shifts primarily involve the reassignment of speci­
fied apartment complexes in the HMSSD which have previously been 
treated as units for student placement purposes (s£s Tr. 295-300). 
For example, the Bonhomie Apartments are located in the southwes­
tern area of the district, west of U.S. 49. See map inf ra p. la. 
The "natural" school of assignment for this area, according to 
both School Superintendent Walker and the government's expert 
witness Dr. Rossell, is Thames Elementary (Tr. 584, 822), but it 
has been zoned to Bethune since the time of the dual system (Tr. 
136-38). Black students living in the Bonhomie Apartments have 
been transported past Bethune to Love, while other Black students 
in the same area have attended Bethune (Tr. 212, 216-18, 831-32). 
Under the magnet plan, the 61 Black students living in the Bon­
homie Apartments, as well as 50 Black students residing nearby, 
will be reassigned to Thames (R. 713, R.Exc. 73 [Mem. Op. 11 n.23]; 
R.Exc. 124 [D-X 33]; D-X 7 ; Tr. 216-18). 62 Black students living
in the Pineview Apartments, who are presently transported by school 
bus to Bethune (Tr. 296), will be shifted to Woodley under the 
plan (D-X 7; R.Exc. 124 [D-X 33]). 11 Black students residing
in the Christina Apartments will be shifted from the Woodley zone 
to the Grace Christian zone (R.Exc. 124 [D-X 33]).

^^Dr. Spinks (Tr. 85, 120-21), Dr. Joiner (Tr. 464-65), Dr. 
Winecoff (Tr. 504), Dr. Rossell (R. 613-14, R.Exc. 157-58 [G-X 2, 
pp. 16-17]; Tr. 569-71, 610-11), and Dr. Stolee (Tr. 688-91) all

[footnote 29 continued & footnote 30 on next page]
-  12 -



31proximately 34% of all HMSSD Black children in grades 1-6. 
There are no firm commitments to take further action in order to 
desegregate these two s c h o o l s . the Black population of Love

recognized that Bethune and Eureka would remain racially iden­
tifiable under the plan.

30gee supra note 26. These figures were determined by adding 
together the enrollments shown on D—X 33/ exclusive of pre—K and 
kindergarten students/ and subtracting the number of Black students 
who are expected to attend the magnet schools or to exercise ma— 
jority-to-minority transfers/ or who will be shifted to other 
schools by zone line changes. The various projections presented 
at the hearing are discussed infra pp. 19-22.

31g0e pi-x 39. The figure derived when using Dr. Rossell's 
corrections to the projections submitted with the plans/ s ^  infra 
p. 21, is 36.6% of all Black elementary pupils attending schools 
more than 95% Black (§^ PI-X 41). Including kindergarten stu­
dents as originally projected by the district, it is 40% (Tr. 127 
29) .

^^The written plan contained in the proposed consent decree 
filed by HMSSD, the United States, and Mississippi, which was 
approved below, provides that "[t]he School District shall give 
consideration to converting Eureka to a magnet school afte.r— t.he 
1987-88 school year based upon the School District's evaluation 
of the Jones and Walthall magnet programs and the community need 
for or interest in additional or alternative magnet programs" 
(R. 542, R.Exc. 103 [p. 19])(emphasis supplied). At the hearing, 
however, former Superintendent Spinks (who served in that capacity 
from the inception of this case until his retirement at the close 
of the 1984-85 school year, Tr. 15) asserted that whites could 
never be attracted to the facility and doubted that its conversion 
to a magnet school is feasible (Tr. 85-88, 148), and current Su­
perintendent Walker called it "very improbable" (Tr. 245).

As to Bethune, Dr. Winecoff and Dr. Joiner originally devel­
oped projections indicating that 104 white children would attend 
the school in kindergarten and pre-kindergarten programs (Tr. 469- 
74). The same projections were submitted with the District Al­
ternative and September 4, 1985 magnet plans supported by the 
HMSSD (Tr. 157-58) , even though kindergarten will now be available 
at all schools in accordance with state law (see supra note 26). 
At the hearing. Superintendent Walker said that the projections 
were not reduced because the school district felt that the Extended 
Day program now to be offered exclusively at Bethune would lead 
at least this number of white parents to enroll their children 
through majority—to-minority transfers in grades 1-6 at Bethune 
(Tr. 176, 179) —  although the projection chart (R.Exc. 124 [D-X 
33]) was never modified to indicate the schools from which these

- 13 -



(when consolidated with Eaton) is added, 42% of Black students 
in grades 1-6 will attend these three facilities even if the mag­
net schools meet their enrollment targets.

The magnet schools at Jones and Walthall will not become oper­
ational until the 1987-88 school year (Tr. 199).^'^ The plan is 
then to function for three years before its success in desegre­
gating the HMSSD elementary schools will be evaluated (R. 542, 
R.Exc. 103 [p. 1 9 ] ) . In fact, the sponsors of the magnet plan

students would be coming (Tr. 271-72)

t
gi

The government's expert initially concluded that "the assump­
tion that 104 white students would enroll in Bethune, in addition 
o kindergarten and pre-kindergarten, seemed unrealistic to me 
iven that the school would still remain predominantly black 
. . ." (R. 613, R.Exc. 157 [G-X 2, p. 16]; Tr. 57 0). She later
said her judgment "may have in fact been too conservative" because 
it was not based on the understanding that Bethune would offer 
the only school-site Extended Day program in the HMSSD; under 
these circumstances, she thought it was "possible" that Bethune 
would be less than 80% Black (Tr. 566). There was no direct evi­
dence of how many white families are willing to send their chil­
dren to Bethune for the Extended Day, or any other program.

33See inf ra note 37.
1986-87 the only pupil assignment changes that will 

occur are (a) the closing of Eaton and shifting of its pupils to 
Love (R. 528, R.Exc. 89 [p. 5]; s^e supra note 25) j (b) the modest 
zone line adjustments affecting Black students (id.; S.ypJLg
note 28); (c) the availability of free transportation for major- 
ity-to-minority transfers (R. 533, R.Exc. 94 [p. 10]; 
note 13); and (d) the option for Black students living in the 
Jones and Walthall attendance areas to elect to attend either 
Eureka or Grace Christian, respectively (the facilities to which 
former Jones and Walthall students not attending the magnet pro­
grams will be reassigned in 1987-88) (R. 539, R.Exc. 100 [p. 16];
see supra note 23). In addition, "Basic Skills Learning Centers" 
are to be established in 1986-87 at the Bethune, Eureka and Love 
schools, to include 4-year-old "developmentally-delayed" pre-kin­
dergarten programs, breakfast programs, and an Extended Day program 
at Bethune only (R. 534-35, R.Exc. 95-96 [pp. 11-12]; supra
note 32; inf ra note 48).

^^The district court did reject the suggestion that the HMSSD 
must be declared "unitary" so long as the magnet plan had been 
effectuated for three years without interference by school author­
ities, irrespective of its results (see R. 548, R.Exc. 109 [p.
25]). R. 716, R.Exc. 76 [Mem. Op. 14]

- 14 -



expect that the magnet schools will not reach their projected 
enrollments of 240 pupils each (R.Exc. 124 [D-X 33]) for several 
y e a r s . D u r i n g  that time, the other HMSSD elementary schools 
may be less integrated than shown on the projections submitted 
with the plan (R.Exc. 124 [D-X 33]).^^

c. The Stolee Plan
The Stolee plan, supported by plaintiff Black children, would 

be implemented at once to desegregate all of the district's ele­
mentary school facilities through the techniques of pairing and 
clustering with appropriate grade restructuring^^ and the reten-

^^Tr. 193, 200, 268 [Dr. Walker], 557-58 [Dr. Rossell]; aeg 
al?o Tr. 267-68 [Dr. Walker: although each magnet school is de­
signed to house 240 students, if 120 Black pupils and 30 white 
pupils apply, only 30 Black students will be admitted, along with 
all white applicants], 602 [Dr. Rossell: magnet schools in minor­
ity neighborhoods are underenrolled].

^^The attendance projections submitted with the plan are 
based upon the ultimate, fully successful operation of the magnet 
schools with anticipated total enrollments of 240 students each 
—  enrollments which, as noted in text, the schools may well not 
reach until at least the third year of operation. Thus, during 
the 1987-88 and 1988-89 school years, if Jones and Walthall are 
each maintained with small student bodies that are 50% Black (per­
haps only 60 students each, see Tr. 267-68), then fewer students 
than are shown on the attendance projections will transfer from 
their home schools to the magnet programs —  and if this occurs, 
it will obviously affect the racial compositions of the non-magnet 
schools during those years.

For example, if fewer than 155 students leave Thames for the 
magnet schools, fewer Black students will be able to exercise 
maj ority-to-minority transfers to Thames (Tr. 480-82). Thames 
will then remain more heavily white and Bethune, shown on the projections as the source of majority—to—minority transfers to 
Thames, will remain more heavily Black.

^®These techniques have long been employed within this Cir­
cuit. S^, e. g. . Davis v. East Baton Rouae Parish School Bd^ , 
721 F.2d 1425 (5th Cir. 1983), aff'g 
1981); Tasbv v. Estes. 572 F.2d 1010, 
dismissed as imorovidentlv granted,

- 15 -

514 F. Supp. 869 (E.D. La. 
1014 (5th Cir. 1978) ,cert. 

444 U.S. 437 (1980); United



39 j-tion of zones for currently desegregated schools. It reassigns 
both Black and white students^® but retains neighborhood, peer.

-States V. Columbus Mun. Separate School Dist. , 558 F.2d 228 (5th 
Cir. 1977 ), cert, denied. 434 U.S. 1013 (1978); lJpitgd_St^t£_s
V. Seminole Countv School Dist., 553 F.2d 992, 995 & n.8 (5th 
Cir. 1977); United States v. Texas Educ. Agency, 532 F.2d 380, 
394 (5th Cir.), vacated and remanded on other grounds, 429 U.S. 990 
(1976), reaff'd. 564 F.2d 162 (5th Cir. 1977), on rehearing. 579 
F.2d 910 (5th Cir. 1978), cert, denied, 443 U.S. 915 (1979); Cj^- 
neros v. Corpus Christi Indeo. School D.i.st̂  > 467 F.2d 142, 152-53 
(5th Cir. 197 2) (en banc) . cert, denied, 413 U.S. 920 (197 3); FJL.ax 
V. Potts. 464 F.2d 865, 868 (5th Cir.), cert, denied, 409 U.S. 
1007 (1972)(quoting Allen v. Board of Pub. Instruction of Broward 
County. 432 F.2d 362, 367 (5th Cir. 1970), cert, denied. 402 U.S. 
952 (1971)); Acree v. Countv Bd. of Educ., 458 F.2d 486, 487 (5th 
Cir.), cert, denied. 409 U.S. 1006 (1972).

^^Dr. Stolee explained how the plan was designed to minimize 
reassignments and busing (Tr. 666-69).

^^There was disagreement about the extent to which the magnet 
plan and the Stolee plan would distribute the burdens of desegre­
gation equitably. e.q. , Harrington v. Colquitt County Bd. of
Educ.. 460 F.2d 193, 196 n.3 (5th Cir.), cert, denied, 409 U.S. 
915 (1972) .

Dr. Stolee calculated the total number of students subject 
to mandatory reassignments. Under his plan, 604 Black and 582 
white pupils will be reassigned to different schools for three, 
or possibly four, of the six elementary grades (Tr. 684; Tr.
211-12, 669-72, 780). Superintendent Walker agreed that these 
figures were relatively equitable (Tr. 824).

In contrast, under the magnet plan's attendance changes (see 
supra notes 23, 28), far more Black than white students would 
be reassigned, and for all of the elementary grades. "[T]he 497 
black children involuntarily transferred compared to the 65 white 
children is . . . inequitable" (Tr. 686 [Dr. Stolee]).

Dr. Walker did not view many of these mandatory reassignments 
as burdensome because "[tjhere are certain students in the School 
District plan which would be reassigned to a school which should 
be or which ought to be their neighborhood school" (Tr. 820); 
these reassignments, he said, are a "[d]isruption . . . [but] not 
a burden" (Tr. 834; accord. Tr. 581 [Dr. Rossell]; but see Tr. 586 
[individual students and parents might take a different view]). 
Excluding such changes. Dr. Walker calculated the magnet plan's 
"burdensome reassignments" as affecting 178 Black and 0 white 
students (Tr. 820-24).

The magnet plan was still more equitable than pairing and
- 16 -



and class groupings throughout the elementary school y e a r s . A s  
previously noted. Black students have in the past few years exer­
cised majority-to-minority transfers between virtually all of the 
schools paired or clustered under Dr. Stolee's plan'^^ and the 
distances and transportation times between schools grouped under
the plan are hardly excessive. 43

clustering, according to Dr. Walker: if whites who would be reas­
signed left the system but the pairing plan remained unaltered 
(but see Tr. 588-89, 834-35), the proportion of the burden borne 
by Blacks would increase. "At the end of the second year, the 
School District plan would have less relative burden or less rela­
tive inequity on blacks than the Stolee plan. Stolee would have 
a burden on 604 blacks, and under his plan on only 378 whites 
after we take into account white flight, thus leaving a difference 
in relative burden between black and white of 226 students, where­
as our difference in relative burden between black and white would 
only be 178 students" (Tr. 825).

The district court's brief discussion of this matter confused 
the numbers (R. 713, R.Exc. 73 [Mem. Op. 11 n.24]). 532 was the 
total which Dr. Rossell computed while on the witness stand for 
mandatory reassignments, according to her analysis of the magnet 
plan (Tr. 581). In fact, her arithmetic was wrong. According to 
her chart (R. 626 , R.Exc. 17 0 [G-X 2, p. 28]), the total mandatory 
reassignments (including the closing of Eaton) are 462 Black, 66 
white; the total mandatory and voluntary transfers projected by 
her are 613 Black, 286 white.

In any event, the lower court's view of the relative equities 
does not appear to have been an independent basis for its judgment 
and this Court need not resolve the dispute in order to reverse.

^^See Tr. 727-29; United States v. Columbus Mun. Separate 
School Dist.. 558 F.2d at 232 n.l6 ("Pairing also forces students 
to change schools after third grade. Though that is an undesirable 
effect, its importance is mitigated by the fact that students 
retain their same classmates despite the change of schools . . . ") .

42See supra note 21.
^^See map infra p. 1; supra p. 9, text at note 21. While 

the times and distances shown are for school-to-school routes, 
the system has considerable experience in designing efficient 
routing for transporting students from neighborhood pick-up points 
across the city to schools, as it currently does for special edu­
cation pupils (s^ PI-X 11 [bus routes]), pupils in the Reach 
program (see Tr. 351), secondary students, and as it will be re-

- 17 -



Dr. Stolee's plan was "designed to be implemented first, with 
magnet options following if the School Board so desires"^^ be­
cause, in his view,

magnet schools can be a helpful desegregative 
device. However, the mandatory desegregation 
program must come first, children must be trans­
ferred first, and after that, parents can be given 
a choice of magnet schools. Such a pattern would 
desegregate the schools now, provide parents with 
a choice concerning their child's education, and 
make the magnet schools more attractive.

d. Effectiveness of the plans and "white flight"
The two plans upon which principal attention was focused be- 

icw'̂  ̂ are summarized and compared in Table 2, infra pp. 3a-5a. 
As indicated in that table, there are substantial differences in 
the mechanics, timing and expected outcomes of the two plans. 
The most significant fact is that even when the magnet schools 
have had a three-year opportunity to achieve their projected en­
rollments, two historically Black schools will remain —  in grades 
1 - 6 __ 9 7 % and 99% Black, respectively, unless white students
suddenly, and contrary to the experience of the past decade. 47

quired to do next year for majority-to-minority transfer pupils 
and starting in 1987-88 for magnet school attendees, under the 
Order below suora note 19 and accompanying text) . HMSSD cur­
rently uses a computer in laying out routes (Tr. 283, 325) and 
at the hearing, its transportation supervisor demonstrated his 
facility for solving problems by appropriate route changes (§^,
e.Q.. Tr. 324-29, 342-45, 346-48).

44
45

R. 370, R.Exc. 133 [PI-X 24, p. 8]).
Id. at 369 , R.Exc. 132 [PI-X 24, p. 7]. at 374-75,

R.Exc. 137-38 [PI-X 24, pp. 12-13].
^^See "Note on Desegregation Plans before District Court," 

inf ra pp. 7a-8a.
~̂̂ See supra note 13.

- 18 -



decide to transfer to these schools.^® Conversely, the Stolee 
plan is designed to produce substantial desegregation at every 
Hattiesburg school in its first year of implementation.

Under the magnet plan, only Jones and Walthall (starting in 
1987-88) will have controlled student admissions (on a 50% white, 
50% Black basis. The racial composition of the other elemen­
tary schools in HMSSD will depend upon the pattern of majority- 
to-minority transfers and the facilities from which magnet school 
enrollees are drawn.Accordingly, when the plan was submitted, 
it included post-implementation enrollment projections for all 
schools (R.Exc. 119; R.Exc. 124 [D-X 33]), which are reflected 
in Table 2, infra p. 3a-5a.

The testimony about these projections was conflicting. For 
instance, the plan reserves spaces in the magnet schools for pu­
pils who did not previously attend Jones and Walthall, to "provide

^^See supra note 32. As the court below noted (R. 712, R.Exc. 
72 [Mem. Op. 10 n.22]), Bethune, Eureka and Love currently have 
the lowest test scores in the school district (§^ Tr. 165; D-X 
28). Common sense therefore suggests that white parents whose 
children are presently in schools with higher-performing students 
will be unlikely to transfer them voluntarily to Bethune, Eureka 
or Love. Cf^ Tr. 588 [Dr. Rossell: "[W]e know from the research 
that the blacks are willing to volunteer to go to white schools 
because—  for a whole variety of reasons. They perceive them as 
better—  and the whites are not"]. The "Basic_ Skills Learning 
Centers" to be implemented in these schools are similar to remedi­
ation programs and to the types of ancillary relief ordered in 
former dual systems for schools which will not be desegregated. 
See. e. g. . Mil liken v. Bradle.v, 433 U.S. 267 (1977). Several 
Black HMSSD biracial committee members testified that theysup- 
ported the plan because of its emphasis on improving educational 
attainment in these Black schools, not because they thought it 
would result in desegregation (see Tr. 383 [Lawrence], 422, 425-26 
[McFarlin]) .

^^See supra note 23 and accompanying text.
5Qsee. e.g.. Tr. 481-82, 819.

- 19 -



an opportunity for all segments of the school community to have 
access to the magnet schools" (R. 538^ R.Exc. 99 [p. 15]). But 
the projections indicate that students from one school, Bethune, 
are anticipated to fill 90 of the 96 seats reserved for non-Wal­
thall and non-Jones area Black pupils in the magnet schools 
(Tr. 239). Superintendent Walker testified that these projec­
tions, identical to those included in the magnet plan recommended 
by Dr. Winecoff and Dr. Joiner (Tr. 157-58), were checked and 
verified independently by HMSSD officials (Tr. 158, 259-60) —  
and that the assumption that few Black students from schools other 
than Bethune, Jones or Walthall would want to attend the magnets 
was based upon HMSSD school authorities' judgment (s^ Tr. 239-50) .

However, ex-Superintendent Spinks (who held his official posi­
tion at the time the District Alternative plan was filed with 
the district court) said that the figure of 90 Bethune pupils 
attending the magnet schools was a "guess" (Tr. 124-25) , while 
Dr. Joiner testified that no matter what the figures on the chart 
were, it had not been his or Dr. Winecoff's assumption that only 
Black students from Bethune would want to attend the magnet schools 
(Tr. 462). Unable to support or explain his figures. Dr. Joiner 
finally agreed that the projections do not "provide a reliable 
method for estimating what the racial composition of all of the 
schools in the system will be if this plan is implemented" (Tr.
468) 51

^^Dr. Winecoff testified, "Now, the chart that has been so debated was never set up and intended to be a specific-- I guess 
what we'd call a traditional school district desegregation chart" 
(Tr. 812). He also revealed that he and Dr. Joiner received an 
original written set of projections from the HMSSD Superintendent

-  20 -



The government's expert witness, Dr. Rossell, also refused 
to accept the projections submitted with the plan because she 
found them to be "incomplete, or in error, or unrealistic" (R. 
613, R.Exc. 157 [G-X 2, p. 16]; £££Tr. 556, 57 0 ) . For example, 
she could not agree with the estimates of large increases in ma­
jor ity-to-minority transfers in light of their modest use in the 
past (Tr. 556).^^ She also felt that Eureka would not attract 
white kindergarten pupils (Tr. 613, R.Exc. 157 [G-X 2, p. 16]). 
Although she was "not quite sure whether I made the right adjust­
ments" she "made cuts in virtually every school district projec­
tion̂ ' (Tr. 556 ). The '"adjustments" to the projections which she 
included in her written report, however, did not reflect correc­
tions made by the school district's witnesses at trial (Tr. 618; 
see Tr. 158-61)

and Transportation Director before they prepared their plan (Tr. 
507). Although Transportation Director Goodbread did not advert 
to his role in preparing the projections when he testified, he di 
suggest that they might not be fully accurate (Tr. 349 50).

^^The United States did, nevertheless, support the magnet 
plan as a co-signatory to the September 4 , 1985proposed consent decree (R. 520; R. 524, R.Exc. 85) --which in 
eluded the projections prepared by the school district (R. 558, 
R.Exc. 119; see R.Exc. 124 [D-X 33]).

^^See supra note 13.
54j-jj-̂ gtolee's projections of enrollment under his pairing 

and clustering plan were also questioned because of his assumption 
(R. 370, R.Exc. 133 [PI-X 24, p. 8]) that the base year enroll 
ments in each school were equally divided among grades (§^ Tr. 
67 0). However, Dr. Stolee testified that he had reviewed the 
projections against actual grade-by-grade enrollments, subsequent 
to submission of his plan, and that he concluded the more precise 
figures would result in no significant change, although they would 
permit a more even distribution of grades in the paired and clus 
tered schools (Tr. 721, 779-80; s ^  Tr. 760-66).

-  21 -



The district court, in its Memorandum Opinion and Order, char­
acterized the projections as "obviously flawed because of the 
inability to anticipate exactly what choices will be made" but 
suggested they were adeguate "to demonstrate that the [magnet] 
plan should lead to more fully desegregated schools in Hattiesburg 
[than at present]" (R. 715-16, R.Exc. 75-76 [Mem. Op. 13-14]).

Dr. Rossell also attempted to estimate the effect of "white 
flight" on post-implementation school enrollments under both the 
magnet plan and the Stolee plan. To do so, she reduced the white 
enrollments at individual schools, as shown on Dr. Stolee's pro­
jections and on her "adjusted" projections under the magnet plan, 
by her "expected white enrollment loss based on my research in 
other school districts" (Tr. 560). Dr. Rossel1 purported to esti­
mate white enrollment declines that would occur in each of the 
first two years following implementation of the Stolee plan (Tr. 
641)^^ but in her analysis of the magnet plan, she "collapsed" the
"first-year effects" "into the second year,"^® and assumed full

57enrollment in the magnet schools immediately upon implementation. 
See inf ra note 86.

^^HMSSD also presented evidence of white enrollment declines 
in the Laurel school system in the years following implementation 
of a pairing plan after this Court's remand in ynjted States 
V. Mississippi [Laurel Mun. Separate School Dist.], 567 F.2d 1276 
(5th Cir. 1978). S ^  D-X 4, 44, 65; Tr. 783-800.

^®Dr. Rossell testified, "Now what difference is this going 
to make I don't know" (Tr. 641) and also that "I'm trying to re­
member the rationale here. I simply can't." (Tr. 642.)

5'̂ See R. 6 26, R.Exc. 170 [G-X 2, p. 28] [with "Rossell adjust­
ments," Jones and Walthall are each projected to enroll 120 Black 
and 120 white students].

-  22 -



The projections for the Stolee plan and the magnet plan, both 
as they were originally submitted and as they were recalculated 
by Dr. Rossell, are collected in Table 3, infra pp. 7a-8a.

Summary of the Argument 

I
An acceptable plan to end the vestiges of the dual biracial 

system of education must eliminate one-race schools to the greatest 
extent feasible. Even a single all-Black school remaining in an 
otherwise reasonably integrated district is impermissible if a 
workable alternative (which may include devices such as pairing 
or noncontiguous attendance zoning) exists.

The plan approved below is limited in its scope and effective­
ness. Under it, four schools will remain virtually all-Black in 
1986-87. Starting in 1987-88, two of these facilities will be 
converted to "magnet schools" which by 1989-90 are projected to 
house 120 Black and 120 white students each. Bethune and Eureka, 
however, enrolling one-third of all Black elementary students, 
will continue to be virtually all-Black until the court order is 
modified after the 1989-90 school year —  with Eureka doubling 
its current all-Black enrollment —  unless white pupils exercise 
majority-to-minority transfers (something which has never occurred 
in the past). There is no realistic expectation of significant 
voluntary white enrollment at either school, even with the initi­
ation of an Extended Day program at Bethune, especially in light 
of the fact that the HMSSD Black schools presently have the lowest

- 23 -



test scores (which the district advances as the justification 
for creating special programs to improve Basic Skills instruction 
at Eureka, Bethune and Love).

In contrast, the pairing and clustering plan proposed by 
Dr. Stolee would achieve "the greatest possible degree of actual 
desegregation," Swann. 402 U.S. at 26, integrating every school. 
Its implementation is completely feasible; the district court 
made no finding to the contrary. Under these circumstances, the 
court was required by controlling precedent to order implementation 
of the more effective Stolee plan.

II
The Supreme Court and this Court have made clear that further 

delay in dismantling dual school systems is unacceptable. By 
allowing four full school years to pass, following the evidentiary 
hearing, before it will seek to evaluate the success of HMSSD's 
"magnet schools" in drawing sufficient voluntary white enrollment, 
and by announcing that it will not consider, much less order, 
any steps to integrate Eureka and Bethune elementary schools until 
that time, the district court has denied the constitutional rights 
of HMSSD's Black children to attend desegregated elementary schools 
in a unitary system, and its judgment must be reversed.

III
The primary justification urged by HMSSD and the United 

States, and accepted by the district court, for the "magnet plan" 
was the belief that implementation of a pairing and clustering 
plan would cause greater "white flight" from the district. The

- 24 -



"magnet plan" seeks to minimize such flight by avoiding any reas­
signment of white students to Eureka or Bethune and by limiting 
Black enrollment in the magnet schools to create a racial mix 
"more attractive to the white community," in the Superintendent's 
words. Under well-settled principles this justification is inade­
quate as a matter of law.

The "white flight" argument is no more persuasive or tenable 
when it is couched in statistical measures of interracial contact, 
as proposed by the government's expert witness, for it disregards 
the requirement of Scotland Neck, Swann, Davis, Alexander, and 
Carter that the greatest amount of actual desegregation must be 
achieved without delay, subject only to limitations of practicality 
and feasibility and unencumbered by speculation about future demo­
graphic events.

IV
Magnet schools may be a permissible option as part of a manda­

tory desegregation plan which promises to be fully effective in 
eliminating the vestiges of the dual system, and the educational 
improvements and incentives devised by HMSSD can and should be 
carried out in conjunction with a constitutionally acceptable, 
mandatory student reassignment plan.

- 25 -



ARGUMENT

Introduction

This case is governed by well settled principles enunciated 
and applied in numerous rulings of the United States Supreme Court 
and of this Court. Indeed, the applicable law has been so often 
restated and summarized by this Court, so concisely and compel- 
lingly, that no efforts by counsel could improve upon the language 
of its decisions.

We, therefore, respectfully submit that it is most appropri­
ate to begin this Argument by quoting from this Court's recent 
opinion in Davis v. East Baton Rouge Parish School Board, 721 
F.2d 1425 (5th Cir. 1983), which recounts the applicable constitu­
tional requirements:

1. The burden is on the school board to justify the continu­
ation of any one-race schools on grounds of practicality (721 
F.2d at 1434):

Swann places the burden squarely on the Board to demon­
strate that the remaining one-race schools are not ves­
tiges of past segregation. 402 U.S. at 26; Tasby [ŷ  
Wright) III. 713 F.2d [90,] at 94 [(5th Cir.1983)].
If further desegregation is "reasonable, feasible and 
workable," Swann. 402 U.S. at 31, then it must be under­
taken, for the continued existence of one-race schools 
is constitutionally unacceptable when reasonable alter­
natives exist. Ross [v. Houston Independent School 
District). 699 F.2d [218,] at 228 [(5th Cir. 1983)];
Lemon v. Bossier Parish School Board, 566 F.2d 985,
987 (5th Cir. 1978); Swann. 402 U.S. at 26 (requi­
ring "every effort to achieve the greatest possible 
degree of actual desegregation").
2. Until a unitary system has been achieved, the board's 

obligation encompasses the desegregation of racially isolated 
schools affected by oost-Brown changing demographic patterns (721

- 26 -



F.2d at 1435-36):
Until it has achieved the greatest degree of desegrega­
tion possible under the circumstances, the Board bears 
the continuing duty to do all in its power to eradicate 
the vestiges of the dual system. That duty includes 
the responsibility to adjust for demographic patterns 
and changes that predate the advent of a unitary sys­
tem. Lee V. Macon Countv Board of Education, 616 F.2d 
805, 810 (5th Cir. 1980); United States v. Board of 
Education of Valdosta. 576 F.2d 37 , 38 (5th Cir.), cert. 
denied. 439 U.S. 1007 (1978). The racial isolation of 
some schools, whether existing before or developing 
during the desegregation effort, may render disestab­
lishment of certain one-race schools difficult or even 
impossible. Until all reasonable steps have been taken 
to eliminate remaining one-race schools, however, ethnic 
housing patterns are but an important factor to be con­
sidered in determining what further desegregation can 
reasonably be achieved; they do not work to relieve the 
Board of its constitutional responsibilities. Valiev 
(v. Rapides Parish School Board! I, 646 F.2d [925,] at 
9 37 [ (5th Cir. 1981) , cert, denied, 4 55 U.S. 939 (198 2) ].
. . . [U]ntil it can show that all reasonable steps 
have been taken to eliminate remaining one-race schools, 
the Board must in its pursuit of a unitary system res­
pond as much as reasonably possible to patterns and 
changes in the demography of the [jurisdiction].
3. Desegregation may not be delayed or diluted because of

fears or predictions of "white flight" (721 F.2d at 1436):
The Board also urges a finding of unitariness on the 
familiar ground that desegregation of the remaining 
one-race schools, over half the schools in the [system], 
would drive families from the [system] and white chil­
dren from its public schools. This is not a case like 
Ross V. Houston Independent School District. 699 F.2d 
218 (5th Cir. 1983), or Calhoun v. Cook, 522 F.2d 717 
(5th Cir.) , reh' o denied. 525 F.2d 1203 (5th Cir. 197 5), 
in which residential patterns, population migration, 
or the departure of white students from the system ren­
dered further desegregation of one-race schools unfeas­
ible. Rather, this is a case in which by 198[5] the 
desegregation of the public schools had simply not yet 
been achieved. The Board's legitimate fear that white 
students would depart the public school system during 
the difficult period of active desegregation was cause 
for "deep concern" and creative solutions but could not 
justify a retard in the process of dismantling the dual 
system. United States v. Scotland Neck City School 
Board. 407 U.S. 484, 490-91 (1972).

- 27 -



4. Concern over "white flight" may justify special steps to
make desegregated schools attractive to white students but only
in the context of otherwise permissible, effective desegregation
plans (721 F.2d at 1438 [emphasis in original]):

As we have noted, fear that white students will flee the 
system is no justification for shrinking from the con­
stitutional duty to desegregate the [system's] schools. 
Scotland Neck. 407 U.S. at 491; Ross, 699 F.2d at 226;
Lee V. Macon Countv Board of Education, 465 F.2d 369 
(5th Cir. 1972). Our courts have long held that the 
process begun by Brown I will not be delayed to accom­
modate those who oppose the dismantling of dual school 
systems. See Morgan v. Kerrigan, 530 F.2d 401, 420 
(1st Cir. 1976), cert, denied. 426 U.S. 935 (1977).
The Board has submitted no adequate time-and-distance 
studies to show that the student transfers contemplated 
by 'the [Stolee] plan are unduly burdensome, Ross,
699 F.2d at 226; Tasbv v. Estes. 572 F.2d 1010, 1014 
(5th Cir. 1978) fTasbv II). cert, denied, 444 U.S. 437 
(1980) (such studies crucial in assessing feasibility 
of Swann techniques for further desegregation), nor 
has it even come forward with facts demonstrating a 
correlation between the distance a student must travel 
under the plan and the likelihood that the student will 
transfer from the system. . . .  To accommodate [white] 
concern by delaying desegregation would be to ignore 
our responsibility under Brown I, Green, and Swann. 
Further use of special programs designed to make the 
desegregated schools more attractive to students and 
parents and thereby minimize white flight is entirely 
appropriate, as long as the cause of desegregation is 
not frustrated. Stout v. Jefferson County Board
of Education. 537 F.2d 800 (5th Cir. 1976)(court may 
cho[o]se among permissible plans the one likely to min­
imize white flight).
In the Hattiesburg case, the district court failed to compre­

hend and apply these principles when it approved the magnet plan.

The Plan Approved Below Is Constitutionally 
Inadequate Because It Does Not Reach Racially 

Isolated Schools Which Can 
Reasonably And Feasibly Be Desegregated

During the 1984-85 school year there were five virtually all-
Black elementary schools in the Hattiesburg school system, enrol-

- 28 -



ling over 73% of all Black students in the elementary grades.^® 
This part of the system has never been desegregated.^^

The district is compact and it is entirely feasible to deseg­
regate all of the remaining one-race schools -- as demonstrated 
by the fact that all of the experts (Dr. Winecoff and Dr. Joiner 
for the school board. Dr. Stolee for the plaintiff Black children, 
and Dr. Foster for the Title IV-funded Race Desegregation Assis­
tance Center) submitted pairing or clustering plans which would 
do so.®® In contrast, the plan approved below will leave two of 
the currently all-Black schools —  Bethune and Eureka (enrolling 
one-third of HMSSD's Black elementary students) —  racially identi­
fiable.®^ This alone compels reversal of the judgment of the dis­
trict court.

58 R. 704-05, R.Exc. 64-65 [Mem. Op. 2-3 nn.3,4].
®^As described earlier, both the 1970 consent decree and 

the plan approved in 1971 for the elementary schools relied upon 
zoning and majority-to-minority transfers only, and they were 
ineffective. We are not sure why those plans were accepted at 
the time by the district court, in light of this Circuit's rul­
ings in, e.g. . United States v. Indianola Mun. Separate Scliool 
Dist.. 410 F.2d 626 (5th Cir. 1969), cert, denied, 396 U.S. 1011
(1970); United States v. Greenwood Mun. Separate School Dist., 
406 F.2d 1086 (5th Cir.), cert, denied, 395 U.S. 907 (1969); and 
Henry v. Clarksdale Mun. Separate School Dist., 409 F.2d 682 (5th 
Cir.) , cert, denied. 395 U.S. 940 (1969) . We do note that Hatties­
burg did not provide transportation to school for its students 
until 1978 (Tr. 28-29, 319). See Quarles v. Oxford Mun. Separate 
School Dist.. 487 F.2d 824 (5th Cir. 1973); but see, e.g., United 
States V. Greenwood Mun. Separate School Dist., 46 0 F.2d 1205 
(5th Cir. 1972); Brown v. Board of Educ. of Bessemer, 464 F.2d 
382 (5th Cir.), cert, denied, 409 U.S. 981 (1972).

®®See inf ra pp. 7a-8a. See also supra notes 18-21 and accom­
panying text.

®^See supra notes 29-31 and accompanying text. These results 
obtain whether or not one takes into account Dr. Rossell's predic­
ted "white flight." S^e Table 3, inf ra p. 6 a (summarizing pro­
jections) .

- 29 -



There is no question at all about Eureka; it is expected to 
be a virtually all-Black school for the foreseeable future. In 
fact, because of reassignments associated with conversion of Wal­
thall to a magnet school, it will enroll about twice as many Black 
pupils as it currently does (Tr. 127, 147; R.Exc. 124 [D-X 33]). 
Although the written plan commits the HMSSD to "consider" estab­
lishing a magnet school at Eureka some time in the future, school 
officials were frankly quite skeptical that the device would deseg­
regate the facility, see supra note 32.

Most of the witnesses also agreed that Bethune would remain 
racially identifiable (see supra note 29). The original magnet 
school proposal did not anticipate any significant number of white 
students attending Bethune, except in pre-K or kindergarten pro­
grams. Desegregating only these programs, of course, would not 
meet the school district’s constitutional obligations. United 
States V. Columbus Municipal Separate School District, 558 F.2d 
at 231-32. Cf^ Johnson v. Jackson Parish School Board. 423 F.2d 
1055 (5th Cir. 1970); Jackson v. Marvell School District No. 22. 
425 F.2d 211 (8 th Cir. 1 9 7 0 )

Subsequently, and without altering the numbers on the enroll­
ment projection chart. Dr. Walker claimed at the hearing that

^^Dr. Winecoff, HMSSD's expert witness, testified that com­
bining white kindergarten students and Black students in grades 
1-6 was misleading (Tr. 519):

Q So those total figures don't necessarily indicate 
whether the prior segregated patterns will be signifi­
cantly altered.
A That's true.

See also supra note 26.

- 30 -



Bethune could attract more than a hundred white students across
grades 1-6 because it would house the only Extended Day program
to be offered by the school system. No additional evidence was
presented to support these expectations, either indications of
white parental interest in sending students to Bethune for the

6program or reports of successful use of this device elsewhere.
The expectations for Bethune are inconsistent with the exper­

ience of the last twenty-one years, during which time no white ele­
mentary student ever exercised a free choice or majority-to-mi- 
nority transfer to attend a formerly Black school. The suggestion 
that school athorities can, virtually overnight, reverse the in­
grained patterns of years, if not generations, recalls the argument 
that the Jefferson "̂* decree was responsible for the failure of 
freedom-of-choice plans because it prohibited school officials from 
influencing the exercise of choice (in order to eliminate the
possibility of intimidation). See United States v. Hinds_C9Jjp.ty
School Board. 417 F.2d 852, 858 (5th Cir. 1969), cert, denied, 
396 D.S. 1032 (1970) .

^^Extended Day magnets have a mixed record at best. In Prince 
George's County, Maryland, where they were implemented in the 
1985-86 school year, "[o]nly two of six work place schools are 
within court-established guidelines for racial balance, which 
call for no more than 80 percent and no less than 1 0 percent black 
enrollment. . . .  At the work place schools . . . spaces remain 
open for white students, who are needed to improve racial balance 
at those schools, while about 300 black children occupy waiting 
lists to get in." Vobejda, "Magnet Schools Aid Desegregation 
But Questions Remain," Washington Post, December 23, 1985, pp. Al, 
A8 .

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

- 31 -



Moreover, the fact that the Black schools have the lowest 
test scores in the district, which is the justification for cre­
ating "Basic Skills Learning Centers" at Bethune, Love, and Eureka, 
is unlikely to encourage white transfers. See supra note 48. Cf. 
Monroe v. Board of Commissioners of Jackson, 427 F.2d 1005, 1008 
(6 th Cir. 1970)(school board argued that because of lower achieve­
ment levels, whites reassigned to Black school would withdraw 
from system unless they were permitted to transfer out; Court of 
Appeals ruled that "greater, not less, student and faculty desegre­
gation is the proper manner in which to alleviate the problem"); 
Tr. 485-86 [Dr. Joiner; general conclusion of research is that 
desegregation improves Black achievement without decline in white 
achievement]

Although Swann does not rigidly or mechanically condemn "some 
small number of one-race, or virtually one-race schools within 
a district," it requires "every effort to achieve the greatest 
possible degree of actual desegregation." 402 U.S. at 26. The 
touchstone of an adequate desegregation plan is its effective­
ness, measured against what is practicable. 66 Thus in Davis

^^Several Black biracial committee members recognized in 
their testimony that the low test scores at the historically Black 
schools made whites unlikely to enroll their children there; they 
said that they supported the magnet plan's efforts to improve 
academic achievement at these schools in the hope that it would 
lessen this white reluctance. See Tr. 383 (Lawrence), 393 (Smith).

66 [T]he district judge or school authorities should make every effort to achieve the greatest possible 
degree of actual desegregation, taking into account the practicalities of the situation. A district 
court may and should consider the use of all avail­
able techniques including restructuring of atten­
dance zones and both contiguous and noncontiguous

- 32 -



V. East Baton Rouge Parish School Board, this Court affirmed an 
order leaving a significant number of racially identifiable schools 
in existence because the lower court "found itself constrained 
by the facts of geography and by difficulties of transportation 
to allow eleven essentially one-race elementary schools to re­
main." 721 F.2d at 1433. Here there are no such difficulties, 
and the district judge made no findings that pairing or clustering 
is not feasible.

The instant case comes within the rule that aii remaining 
one-race facilities must be eliminated whenever possible a 
rule Which this Court has repeatedly invoked to require the de­
segregation of even a single all—Black school in a formerly dual 
s y s t e m . T h e  district court simply did not face up to the teach-

attendance zones. See Swann, supra, at 22-31.
The measure of any desegregation plan is its effec­
tiveness.

Davis V. Board of School Comm'rs of Mobile, 402 U.S. 33, 37
(1971) .

, Lee v. Linden City School Svs. , 617 F.2d 383 (5th 
Cir. 1980) (one Black school); Lee v. Demopolis City School Svs., 
557 F.2d 1053 (5th Cir. 1977) (same), cert, denied, 434 U.S. 1014 
(1978); United States v. Seminole County School Dist. , 553 F.2d 
992 (5th Cir. 1977)(same); Hereford v. Huntsville Bd. of Educ. , 
504 F.2d 857 (5th Cir. 1974)(same), cert, denied, 421 U.S. 913 
(1975); Weaver v. Board of Pub. Instruction of Brevard County, 
467 F.2d 473 (5th Cir. 1972) (same), cert, denied, 410 U.S. 982 
(1973); Ellis v. Board of Pub. Instruction of Orange County,
46 5 F.2d 878 (5th Cir. 1972) (three schools), cert, denied, 410 
U.S. 966 ( 1973); Pate v. Dade County School Bd. , 588 F.2d 501
(5th Cir.), cert, denied. 444 U.S. 835 (1979) (affirming denial 
of intervention to challenge district court order requiring pairing 
of newly constructed predominantly white school with nearby pre­
dominantly Black school).

As Judge Gee wrote in Demopolis (equally applicable to the 
case at bar):

We do not here contemplate a system including two or

- 33 -



ing of these decisions. It never articulated any adequate justi­
fication for leaving Eureka and Bethune as racially isolated facil­
ities:

At the end of the three year trial period [for the magnet 
schools], the plan is to be judged on whether the HMSSD 
contains more than two racially identifiable schools.
Plaintiff-intervenors argue that such a limited require­
ment is unacceptable in a school system where all racial­
ly identifiable schools could easily be abolished. The 
consent decree states that upon a showing of implem­
entation and maintenance of the plan, the court roav 
enter a declaration of unitariness. By no means does 
the standard set out in the consent decree alter this 
court's ability or responsibility to apply constitutional 
requirements for unitariness and the HMSSD will be de­
clared unitary only when it satisfies such standards.

(R. 716, R.Exc. 76 [Mem. Op. 14](emphasis in original).)
But the applicable constitutional standards mandate that

all HMSSD elementary schools be desegregated aSKf not three or
more years in the future. Carter v. West Feliciana Parish School
Board. 396 U.S. 290 (1970); Alexander v. Holmes County Board of
Education. 396 U.S. 19 (1969). Since it is clearly possible to
achieve this goal in Hattiesburg, the distinction between this
case and Davis v. East Baton Rouae Parish School Board noted by

three essentially one-race schools resulting from geo­
graphic or demographic accidents and surviving as minor 
anomalies in a broadly integrated program, despite ear­
nest planning and honest effort to eliminate them, be­
cause practical considerations of hazard, distance or 
expense all but forbid their elimination. Cf. Carr 
V. Montgomery Countv Board of Education, 377 F. Supp.
1123 (M.D. Ala. 1974), aff' d. 511 F.2d 1374 (5th Cir.), 
cert, denied. 423 U.S. 986 (1975); Stout v. Jefferson
County Board of Education. 537 F.2d 800 (5th Cir. 1976).

557 F.2d at 1054.

- 34 -



68the district court (see R. 714, R.Exc. 74 [Mem. Op. 12 n.28]) 
does not justify approval of a plan allowing two virtually all- 
Black schools to c o n t i n u e . T h e  judgment below must be reversed.

II
The Plan Approved Below Impermissibly 

Postpones Desegregation of Hattiesburg's 
______Elementary Schools for Years------

It is more than fifteen years since this Court made clear
its impatience with delays in dismantling dual school systems 70

Although, by the district court's calculations, the HMSSD 
magnet plan would leave a smaller percentage of all students in 
one-race schools than the magnet plan rejected in Davis -- one- 
third of all Blacks rather than one-half of all students —  that 
fact is irrelevant to the justification for the racially isolated 
schools which remained, under the court's plan, in Baton Rouge. 
Rather, the practical "facts of geography and . . . difficulties 
of transportation" peculiar to Baton Rouge were the keys to that 
plan's constitutional acceptability. 721 F.2d at 1433; see also 
supra note 67.

^^The government's expert witness. Dr. Rossell, recognized 
that under the magnet plan, hundreds of Black students would re­
main in racially identifiable Black schools for years -- but she 
supported this feature of the plan on the theory that the Black 
students' failure to exercise majority-to-minority transfers made 
these schools constitutionally acceptable "by choice" (Tr. 611). 
Apart from the fact that Black students' exercise of majority- 
to-minority transfers in Hattiesburg is circumscribed, see supra 
note 13, Dr. Rossell's approach fails to appreciate that the legal 
obligation to desegregate the HMSSD elementary schools is to be 
borne by the school district, not the Black children and their 
parents, as the Supreme Court stressed in its seminal rulings in 
1968. Green v. Countv School Bd. of New Kent County, 391 D.S. 
430, 441-42 (1968); Raney v. Board of Educ. of Gould, 391 U.S. 
443, 447-48 (1968); Monroe v. Board of Comm'rs of Jackson, 391 
U.S. 450, 458 (1968).

F. 2d 
Hal 1

^°S£e, e.Q. . United States v. Hinds County School Bd.. 417 
852 (5th Cir. 1969)
V. St. Helena Parish

cert, denied. 396 
(5th Cir. 1968) . 
alt/* Alexander v.

, cert. 
School

denied. 396 U.S. 1032 (197 0)
_______ B^, 417 F.2d 801 (5th Cir.),

U.S. 904 (1969) ; Adams v. Mathews. 403 F.2d 181 
See also Carter v. West Feliciana Parish School 
Holmes County Bd. of Educ.

- 35 -



It is nearly three years since counsel for plaintiff Black children 
wrote to counsel for the HMSSD and for the United States, seeking 
an end to elementary school segregation in Hattiesburg.^^ Yet 
the district court approved a plan which not only is incomplete 
fsupra Argument I) , but which also postpones any hope for effective 
school integration in the elementary grades in Hattiesburg for 
many additional years.

Under the terms of the lower court's Memorandum Opinion and 
Order, and the desegregation plan which it approves, only one of 
the five currently all-Black or virtually all-Black elementary 
schools in Hattiesburg is likely to be substantially changed in 
racial composition for the 1986-87 school year. The Grace Love 
Elementary School (which in 1984-85 enrolled 138 Black and 0 white 
pupils) will have reassigned to it the entire population of the 
Eaton School, which is to be closed (51 Black students and 44 
white students during the base year used in the preparation of 
all desegregation plans considered below^^). Jones and Walthall 
will remain virtually all-Black schools in 1986-87 , as will Bethune 
and Eureka.

In 1987-88, Jones and Walthall will be converted to magnet 
schools, to which white and Black pupils will be admitted on a 
1:1 basis in order to maintain a 50% white, 50% Black ratio, even 
if only a small number of students may thus be enrolled (Tr. 267- 
6 8 ). Bethune and Eureka will remain racially isolated Black 
schools.

7-8; PI-X 13.
 ̂̂ See R.Exc. 124 [D-X 33]; Tr. 131, 501-02, 516 .

- 36 -



HMSSD will then be permitted additional time to make the 
magnet schools "work"; that is, to achieve the "full" projected 
enrollment of 120 Black and 120 white students in each school. 
No attempt to assess the ultimate effectiveness of the magnet 
school technique will be made until the end of the 1989-90 school 
year. During this period of time, not only may the attempt to 
attract white students to Jones and Walthall be considerably less 
successful than the sponsors of the magnet plan suggested,'-^ but 
to that extent also will many of the other elementary schools of 
the HMSSD remain segregated (see supra notes 37, 50 and accom­
panying text). Further, as noted in the previous section, the 
district court tied its willingness to consider additional measures 
to desegregate Bethune and Eureka to its post-1990 review of prog­
ress at the magnet schools (R. 716; R.Exc. 76 [Mem. Op. 14]). The 
court did not even require HMSSD to be ready to implement a manda­
tory backup plan, in spite of the experts' recommendations (Tr. 
486-87 [Winecoff and Joiner]; 692 [Stolee]; R. 282 [DX-38, p. 23] 
[Foster]).

Thus, to permit "sufficient time for planning and publicity" 
and "time to attain maximum success" (R. 714, R.Exc. 74 [Mem. Op.

"^^HMSSD Superintendent Walker testified that he had visited 
other school systems with successful magnet school plans, such 
as Buffalo, New York, which he said had been "desegregated com­
pletely using the magnet schools" (Tr. 170) . Dr. Walker was appar­
ently unaware that the federal district court in the Buffalo case 
had had to order additional mandatory reassignments because magnet 
schools had proven ineffective at some sites, Tr. 270; Arthur 
V. Nvauist. 514 F. Supp. 1133, 1139 (W.D.N.Y.), aff'd mem.f 661 
F.2d 907 (2d Cir.), cert, denied sub nom. Griffin v. Arthur, 454
U. S. 1085 (1981). Moreover, the fact is that much of Buffalo's 
desegregation progress results from mandatory reassignment of 
Black students from all-minority schools which were closed, Arthur
V. Nvauist. 47 3 F. Supp. 830, 835, 840 (W.D.N.Y. 1979).

- 37 -



1 2 ]), the district court has shut its eyes fast to the continuing 
segregation which is virtually assured at Eureka and Bethune, and 
which is much more than a mere possibility at other elementary 
schools in the HMSSD, until some four and one-half years after the 
evidentiary hearing before the court, and until more than seven 
years after counsel for plaintiff Black children first raised 
this matter with the school district and the federal government 
(see Tr. 200-01, 104-05).

While the district court awaits the results of Hattiesburg's 
experiment with magnet schools, at least one of the named plain­
tiff Black children will complete elementary school, as will hun-“7 Jtdreds of members of the class whom they seek to represent. 
For many of these children, the delay in assuring the complete 
desegregation of Hattiesburg's elementary schools will deprive 
them of any opportunity to enjoy their personal and present con­
stitutional right to attend elementary schools in a unitary sys­
tem. Here, as in Baton Rouge, the magnet plan is too little, 
too late, and promises too small an improvement in the future. 
The judgment below should be reversed with instructions to order 
a desegregation plan for the HMSSD which will oromptlv eliminate 
the vestiges of the elementary-level dual school system.

"̂ "̂ The Complaint in Intervention alleges that plaintiff- 
intervenors seek to represent the class of minor Black pupils in 
the HMSSD (R. 149-50). There has been no class certification.

“̂^Davis V. East Baton Rouge Parish School Bd. , 721 F.2d at
1433.

- 38 -



Ill
Anticipated White Flight Cannot 
Justify Adoption Of The Less 

Effective Maonet School Desegregation Plan
The primary justification advanced by the HMSSD and the United 

States for the magnet plan was "the familiar ground" of "white 
flight," Davis v. East Baton Rouge Parish School Board, 721 F.2d 
at 1436. Most of the witnesses called by HMSSD predicted that 
implementation of Dr. Stolee's pairing plan would cause white 
parents in Hattiesburg to withdraw their children from the public 
s c h o o l s . T h e  district also sought to establish that Hattiesburg 
is similar to Laurel, Mississippi,”̂  ̂ suggesting that it would 
experience the same white enrollment loss as that system if a 
pairing plan were implemented.

The magnet plan is intended to prevent such "white flight" 
by leaving Bethune and Eureka largely untouched by any desegrega­
tion, and by placing a low ceiling^® on Black student enrollment 
in the magnet schools to "make those magnet schools more attractive 
to the white community" (Tr. 259 [Dr. W a l k e r ] ) . I t  is thus

See Tr. 8 8 [Dr. Spinks], 828 [Dr. Walker], 381, 400-01, 
429-30 [biracial committee members Lawrence, Smith, McFarlin and 
Williams], 453 [Dr. Joiner], 498, 504, 816 [Dr. Winecoff]. The 
plan was also favored because it preserved "neighborhood schools" 
(Tr. 37, 44 [Dr. Spinks], 415 [biracial committee member Mathews]) 
and because it committed HMSSD to efforts to improve the educa­
tional achievement of Black pupils (Tr. 383, 393, 422 [Black bi­
racial committee members Lawrence, Smith, McFarlin]).

”̂~̂ See Tr. 533-37, 541, 783-800.
78See supra note 24.
^^Dr. Stolee testified that he had not designed his plan on 

any assumption that whites would leave the system because "I be­
lieve that the rights of individuals don't depend on what someone 
else may or may not do" (Tr. 705) . He recognized that "some whites 
leave no matter what you do . . . there will be some white loss. 
The magnitude could be, you know, the same or more or less than 
what she [Dr. Rossell] says" (Tr. 723).

- 39 -



evident that the very premise of the plan is that "accomodat[ion 
of white] concern"®® which has been specifically condemned by the 
decisions of this Court and the Supreme Court. Davis, 721 F.2d 
at 1438, and cases cited.

The well-established law is that anticipation of "white 
flight" may be a factor in choosing among permissible plans, Davis, 
721 F.2d at 1438 , but this concern cannot "be accepted as a reason 
for achieving anything less than complete uprooting of the dual 
public school system. See Monroe v. Board of Commissioners, 391 
U.S. 450, 459." United States v. Scotland Neck City Board of 
Education, 407 U.S. 484, 491 (1972).®^ Even the most strongly 
held belief that white withdrawal may occur does not justify a 
district court's failure to order into effect a plan which will 
eliminate the vestiges of segregation "root and branch." E.q., 
Lee V. Marengo Countv Board of Education, 465 F.2d 369, 370 (5th 
Cir. 197 2) .

It is patently obvious that, under these standards, the Stolee

®®Dr. Rossell criticized the Stolee plan because it "makes 
no concessions to white flight" (R. 615, R.Exc. 159 [G-X 2, p. 
18]). See also R. 711, R.Exc. 71 [Mem. Op. 9, text at n.21].

®^Two eloquent judicial discussions of the "white flight" 
argument are worthy of particular note. In Morgan v. Kerrigan, 
530 F.2d 401, 4 21-22 (1st Cir.) , cert, denied, 4 26 U.S. 93 5 (197 6 ) , 
the Court explained how conceding to white flight replicates the 
original constitutional violation of segregation. In Brunson 
V. Board of Trustees. 429 F.2d 820, 823-27 (4th Cir. 1970), Judge 
Sobeloff forcefully demonstrated that acceptance of the "white 
flight" argument is a repudiation of the fundamental purpose of 
the Thirteenth and Fourteenth Amendments and a return to the juris­
prudence of the Dred Scott decision.

®^Cf. id. at 492 (Burger, C.J., Blackmun, Powell & Rehnquist, 
JJ., concurring in the result)("[I]t is undisputed that the_[plan] 
was substantially motivated by the desire to create a predominantly 
white system more acceptable to the white parents").

- 40 -



plan (or an equally effective mandatory student reassignment meas­
ure) should have been ordered into effect by the district court. 
As both the school district's and Dr. Rossell's projections demon­
strate Table 3, infra p. 6 a), under the magnet plan Bethune 
and Eureka, two historically Black elementary schools and undispu­
ted vestiges of the dual system, will remain virtually all-Black 
no matter how successfully Jones and Walthall are operated. Under 
the Stolee plan —  even taking into account Dr. Rossell's predic­
tions of white flight —  neither these facilities, nor any other 
HMSSD elementary schools, will be substantially disproportionate 
in their racial composition.

Dr. Winecoff, the school district's expert witness, as much 
as recognized this fact when he admitted that in spite of white 
enrollment losses after implementation of the secondary pairing 
plan in 1971, that plan had successfully eliminated the vestiges 
of segregation and racially identifiable schools on the secondary 
level in the HMSSD (Tr. 515) Similarly, although white enroll­
ment has decreased in Laurel, all of that system's elementary 
schools have remained desegregated (s^ D-X 4, 65).

Unless long-settled principles of constitutional law including 
binding Supreme Court precedent are to be disregarded, therefore, 
the district court's approval of the less effective desegregation 
plan offered by HMSSD, Mississippi and the United States cannot 
stand.

®^Dr. Winecoff testified that when he prepared desegregation plans for Jackson, Mississippi and Montgomery, Albama, he had 
not recommended voluntary, rather than mandatory, plans premised 
upon the possibility of white withdrawal from the system (Tr. 
516) .

- 41 -



The United States sought, through the written report (R. 597, 
R.Exc. 141 [G-X 2]) and testimony of Dr. Christine Rossell, to 
add a novel twist to the "white flight" argument. Dr. Rossell 
has collected data on school desegregation in more than a hundred 
districts and was at the time of her testimony "updating . . . and 
working now specifically at magnet schools versus mandatory" (Tr. 
544). Based on her data she sought to demonstrate (a) that imple­
mentation of the Stolee plan would cause greater "white flight" 
than implementation of the magnet plan; and (b) that implementation 
of the magnet plan would, despite the retention of Bethune and 
Eureka as virtually all-Black schools, result in greater levels 
of interracial contact among students than would occur under the 
Stolee plan, taking projected "white flight" into account.

As to the first conclusion (greater white flight), even if 
true it would provide no legal justification for approving the 
magnet plan. White flight resulting from hostility to the dismant­
ling of the dual system will obviously be greater under a plan 
which assigns white students in substantial numbers to all of 
the formerly Black schools than under a plan which leaves two of 
five all-Black schools unchanged. Dr. Rossel1's first proposition 
simply disregards the law of Monroer Scotland Neck, and their 
progeny in this Circuit.

Her second contention —  that the Stolee plan would produce 
significantly less "interracial contact" than the magnet plan —  
rested upon several complex calculations which are the subject

- 42 -



of her written report.®^ Based upon these calculations. Dr. Ros-

®^First, Dr. Rossell purported to estimate with relative 
exactness the proportion of white students who would withdraw 
from the public schools upon implementation of the Stolee plan 
or the magnet plan, based upon an analysis of "no-show" rates 
under court decrees in Baton Rouge and Los Angeles (Tr. 560—61). 
According to her, the rate of white loss would vary with the per­
centage of Black students projected to be in the schools to which 
white students were reassigned (Tr. 560-62; R. 604, R.Exc. 148 
[G-X 2, p. 7]). Subtracting these anticipated white losses, she 
developed a set of projections of the racial composition of each 
elementary school, two years after implementation of the plans, 
which thus differed substantially from the projections submitted 
when the Stolee and magnet plans were filed in court 6 26 , 
629, R.Exc. 170, 17 3 [G-X 2, pp. 28, 31]).

Second, based on these new estimates of individual school 
racial composition. Dr. Rossell calculated what she called a meas­
ure of "interracial exposure" under each plan. Rossell defined 
this measure as the "percentage of white students in the average 
Black child's school" (Tr. 550). It is a weighted average, deter­
mined by multiplying the existing or projected white percentage 
at each school in a system by the existing or projected number 
of Black students attending the school, then summing those prod­
ucts, and then dividing by the total number of Black students 
thus counted (Tr. 603-04). It is a hypothetical measure only; 
thus, for example, not a single school under Dr. Rossell's projec­
tions for the District Alternative Plan was expected to have the 
same proportion of white students as the measure of interracial 
exposure which she calculated, 33.0% (Tr. 604).

Rossell considers Sbw, the measure of interracial exposure, 
to be a better indicator of the effectiveness of a school deseg­
regation plan than a dissimilarity index such as the Taeuber index, 
which reflects the extent to which the distribution of students 
among schools deviates from absolute racial balance (R. 607-09, 
R.Exc. 151-53 [G-X 2, pp. 10-12]). An index of dissimilarity 
will have values from 0 to 100. When applied to a school system, 
it can be understood to indicate the percentage of students who 
would have to be reassigned in order to achieve perfect racial 
balance in each school; thus, lower scores indicate less remaining 
student racial isolation. In contrast, higher Sbw scores indicate 
greater "interracial contact" but the statistical value is always 
bounded by the systemwide white student percentage at the time 
of measurement. See Tr. 563 [Rossell: initial projection under 
Stolee plan, unadjusted for "white flight," of 41.2 Sbw is "ex­
tremely high, given that at that time the school system was-- 
the elementary schools were only about 41 or 42 percent white"].

The "index of interracial contact," however, is inadequate 
as a legal standard. Because it is, by its very nature, 1imited 
to the systemwide white percentage, it is entirely possible for

- 43 -



sell's report announced, and she testified, that two years after 
implementation, the magnet plan would produce more interracial 
contact than the Stolee plan (Tr. 554).

The district court did not rely upon this interracial exposure 
thesis.®^ It could hardly have done so, in light of the small 
differences reported by Dr. Rossell and especially in light of 
her concession, on cross-examination, that her calculations were 
not exact or reliable enough to establish with certainty that 
the difference between the level of "interracial exposure" under 
the Stolee plan and the magnet plan was more than 0.2 percentage 
point (Tr. 622-23).®^ Instead, the court relied squarely upon

a moderately large school system with one remaining all-Black 
school to have an interracial contact measure very close to that 
ceiling. Yet practicality, not some statistical measure, is the 
test of whether that remaining all-Black school must be desegre­
gated. E.g. . Weaver v. Board of Pub, instruction of Brevard Coun- 
ty, supra note 67.

^^See R. 714, R.Exc. 74 [Mem. Op. 12, text at n.28]("[T]he 
testimony showed that the difference between the initial net bene­
fit and effectiveness of the Consent Decree Plan and that of the 
Stolee Plan would be slight"); R. 716, R.Exc. 76 [Mem. Op. 14]) 
(Stolee plan "has interracial exposure of only a few percentage 
points lower than that of the Consent Decree plan").

®^Dr. Rossell's report compared the index of interracial 
exposure (Sbw) which she calculated after taking her projections 
of white flight into account under each plan. The magnet plan 
resulted in an Sbw of 33.0 compared to an Sbw of 29.8 for the 
Stolee plan, according to her report (R. 626, 629, R.Exc. 170, 
173 [G-X 2, pp. 28, 31]). Of course, these calculations were 
based upon the projections submitted with the magnet plan and 
did not reflect either the corrections to the chart made by Dr. 
Walker from the witness stand, which would change the results 
slightly (Tr. 618), or the actual enrollment patterns that might 
occur upon implementation of the magnet plan —  since it was admit­
ted at the hearing that the projections were only approximations 
and inaccurate (see supra pp. 19-22).

In any event, the difference in Sbw between the two plans 
as initially calculated by Dr. Rossell was quite small: less 
than four percentage points (Tr. 605) and not at all comparable

- 44 -



to the extreme hypothetical example used in her report and testi­
mony (Tr. 608; see R. 608-09, R.Exc. 152-53 [G-X 2, pp. 11-12]) 
and quoted in the district court's opinion (R. 7 08, R.Exc. 6 8  
[Mem. Op. 6 n.l3]). Dr. Rossell admitted that this difference 
was insignificant to Black students assigned to all-Black schools 
under the magnet plan (Tr. 605).

On cross-examination the validity of the comparison she sought 
to draw was further weakened. First, Dr. Rossell erroneously 
used the percentage of Black students, rather than the percentage 
of white students, for one school under the magnet plan. Correct­
ing for this mistake reduced the Sbw for the plan to 32.0 (Tr. 621- 
22). Second, she testified that each of her calculations had a 
possible margin of error of +/- 1% or +/- 2% (Tr. 620) . This meant 
that the real value of Sbw could be as low as 30.0 for the magnet 
plan —  just 0.2 percentage point above that shown by Dr. Rossell 
for the Stolee plan (Tr. 622-23). Of course, that latter figure 
of 29.8 might also be affected by error in the opposite direction 
so that its real value could be as high as 31.8.

Other fundamental problems with the handling of the data 
deprived Dr. Rossell's attempt to compare the magnet and Stolee 
plans in terms of the "interracial exposure" which they would 
produce of any significance. For example, the charts which she 
constructed did not compare the results of the plans at the same 
point in time, for two reasons; (a) Dr. Rossell assumed immediate, 
first-year achievement of the full 120 Black-120 white student 
enrollments at Jones and Walthall —  even though she testified 
that magnet schools take several years of operation to become 
successful (Tr. 557). (b) She made two separate subtractions 
for "white flight" under the Stolee plan in the first and second 
years following implementation to reach the Sbw figure of 29.8; 
but she "collapsed" the magnet school white flight into a single 
calculation —  and could not explain the basis for doing so (see 
Tr. 639-42). Moreover, her calculations of interracial exposure 
under the magnet plan included kindergarten students at Bethune, 
Eureka and Love -- even though that masks the degree to which 
meaningful desegregation occurs (see suora note 6 2 ) and even though 
kindergarten will be offered at all schools by the time the plan 
would become effective (see suora note 26). Removing the kinder­
garten children would, of course, make Bethune, Eureka and Love 
more heavily Black, would increase the dissimilarity index, and 
would further decrease Sbw under the magnet plan (see Tr. 627). 
As a final example. Dr. Rossell was not aware that Eaton was a 
formerly white school and did not account for possible "white flight" when its student body was reassigned to all-Black Grace 
Love Elementary (Tr. 630-31).

Apart from these calculations. Dr. Rossell's testimony was 
inconsistent and inconclusive. At one point, she said the Sbw 
index under a magnet plan began to exceed that under a mandatory

- 45 -



Rossell's prediction that the Stolee plan would cause greater 
white flight than the magnet plan.®’̂ For the reasons previously 
stated, this justification is constitutionally unacceptable.

IV

Magnet Schools And Educational 
Improvements Should Be Implemented 

Tn Conjunction With A Mandatory Desegregation Plan
The district court criticized the Stolee plan because it 

did not provide for educational improvements (R. 718, R.Exc. 78 
[Mem. Op. 16, text at n.33]) and Dr. Rossell complained that it 
did not offer white parents the "educational incentives" of magnet 
schools (Tr. 559-60, 645). As Dr. Stolee testified, however.

plan in the fourth or fifth year after implementation (Tr. 568- 
69) . At another point she said this occurred at seven years fol­
lowing implementation (Tr. 600). (Of course, while waiting for 
those lines to cross an entire class of Black children assigned 
to all-Black schools would complete the elementary grades.) Dr. 
Rossell admitted that her testimony contradicted her own published 
writings, in which she had concluded that voluntary plans rarely 
achieve either significant desegregation or increases in inter­
racial contact in school systems over 30% minority, such as Hat­tiesburg (Tr. 600). Her latest research has neither been published 
nor examined by other scholars in the field and it is contrary 
to the general findings to date, as previously reported by her 
and by others. See. e.a.. Rossell, Applied Social Science Re­
search: What Does It Sav About The Effectiveness Of School Deseg­
regation Plans?. 12 J. Legal Stud. 69 , 73, 104, 106 (1983); Hawley 
& Rossell, Policy Alternatives for Minimizing White Flight, 4School Deseo- 

Constitutional 
1st Sess.

Educ. Evaluation & Pol'y Analysis 205, 220 (1982)
reaation. Hearings Before the Subcomm. on Civil s_____
Rights of the House Comm, on the Judiciary, 97th Cong.,
222 (1981)(testimony of Christine Rossell).

®’̂R. 717, R.Exc. 77 [Mem. Op. 15]("[T]his court is of the opinion, based on the testimony of Rossell and other experts, 
that the Stolee Plan will not ultimately lead to more fully deseg­
regated elementary schools in the HMSSD")(emphasis supplied).

- 46 -



there is no conflict between the use of magnet schools as part
of an effective desegregation plan which also relies upon mandatory
reassignments, and there is certainly no reason why the basic
skills instruction upgrading suggested by HMSSD should not go
forward in conjunction with any desegregation plan;

Now, they've got some good ideas. They've got the basic 
fundamentals program that they were talking about, the 
basic skills program that they propose to put at, I 
believe, Bethune, Eureka and Love; and I commend them 
for doing that. . . . But I don't think they need deseg­
regation as an excuse to do it. The presence or absence 
of a desegregation plan does not mean that they can or 
cannot add these good programs, and I'm assuming they'll 
do it.
Secondly, 
ideas for 
because as

I think they'll come up with some very good 
magnet schools. I have to say I think so, 
yet they've not told us what they're going 

to do with their magnets except the process, and the 
process is good. And those magnet schools can help 
provide better education, but it's also possible to 
put in magnet schools as a part of a mandatory assignment 
school desegregation plan.

I know I've been going on at length, but the main point 
is that every single educational improvement that the 
school system wants to and I know has in the past can 
be ma_d̂  functional within a mandatory reassignment
plan- 88
[T]hat [magnet] plan, I think, is a good educational 
plan. But this case has to do with desegregation, and 
it does not desegregate the School District. And I 
maintain that your fine educational plans can be put 
in place with the plaintiff-intervenors' plan which 
does desegregate the School District.

®®Tr. 676, 677-78. Dr. Stolee described a mixed magnet/man- 
datory plan operating in Benton Harbor, where he was appointed 
as Special Master by the federal district court (Tr. 678-79; see 
Berry v. School Dist. of Benton Harbor. 515 F. Supp. 344, 350, 
381-82 (W.D. Mich. 1981), aff'd and remanded. 698 F.2d 813 (6 th
Cir.) , cert. 

89
_____ denied. 464 U.S. 892 (1983))
Tr. 702-03.

- 47 -



If the district court believed it was limited to choosing 
between the educational upgrading in the magnet plan, which it 
liked, and the desegregation effectiveness of the Stolee plan, 
it was mistaken. Indeed, the HMSSD may be constitutionally re­
quired to eliminate disparities in educational opportunities in 
the formerly Black schools which developed during the years of 
segregation.Appellants oppose neither the appropriate inclusion 
of magnet schools as an additional option in a desegregation plan 
nor the educational improvements devised by the HMSSD. Our only 
point is that they must occur within the context of an effective, 
constitutionally adequate design to end the vestiges of elementary 
school segregation in Hattiesburg.

^^See Plaquemines Parish School Bd. v. United States, 415 
F.2d 817, 831 (5th Cir. 1969) (remedial programs); (Jnjted gtat,eg 
V. Jefferson Countv Bd. of Educ. , 372 F.2d at 891 (same); cf_. 
United States v. Gadsden County School Dist., 572 F.2d 1049 (5th 
Cir. 1978)(classroom grouping resulting in segregation may not 
be used unless school system can show it does not perpetuate ine­
qualities of dual system); McNeal v. Tate County— B^j— of— Edĵ iSji, 
508 F.2d 1017 (5th Cir. 1975)(same).

- 48 -



Conclusion
For the foregoing reasons, appellants respectfully pray that 

the judgment below be reversed and the case remanded with instruc­
tions to order the implementation, in the 1986-87 school year, 
of the Stolee plan —  or of an equally effective mandatory student 
reassignment plan, , p^te v. Dad^ County ?chool PQ.ard,
434 F.2d 1151, 1158 (5th Cir. 1970), cert, denied, 402 U.S. 953 
(1971) .

Respectfully submitted.

JERE KRAKOFF
909 Lindenwood Drive 
Pittsburgh, Pennsyl­
vania 15234

WILLIAM L. ROBINSON 
NORMAN J. CHACHKINLawyers' Committee for Civil 

Rights Under Law 
1400 Eye Street, N.W., Suite 
400Washington, D.C. 20005-2208 
(202) 371-1212 

NAUSEAD STEWARTSuite 400 Security Centre South 
200 East Pascagoula Street 
P. 0. Box 2086Jackson, Mississippi 39225-2086 
(601) 948-4589

Attorneys for Plaintiff-Intervenors-Appellants

- 49 -





I



Table 1

tvj

March. 1985 Elementary School Enrollments'

No. Black No. White
No. Black 
Spec. Ed.

No. White 
Spec. Ed. % Black,

Ssb.OQi Pupils Pupils % Black Pupils PupiIs w/o Sp .

Bethune 609 5 99 % ___ 99 %Eureka 165 1 2 93 % 1 2 94 %Grace Love 138 0 1 0 0 % — — 1 0 0 %Jones 191 24 89 % 2 1 2 2 99 %Walthall 17 2 17 91 % — — 91 %
Eaton 57 38 60 % 5 2 59 %Davis 116 6 6 64 % 18 1 0 64 %Camp 1 0 1 109 48 % 6 — 47 %
Woodley 87 214 29 % 6 1 0 28 %Grace Christian 47 184 2 0 % — — 2 0 %Thames 57 526 1 0 % — — 1 0 %

Grades 1-6. March, 1985 enrollments taken from PI-X 37; number of special education 
students and students in grades other than 1-6 shown on March, 1985 report to district court, pi-x 1 .



U1£u

School
Grace
Qiristian

IViames

Black
March,
1985^20 %

10 %

Table 2 (continued) 
Magnet Plan_________

1986-87 1987-88 1989-90

Clianges in 
Attendance

Some Black students 
at Jones may exer­
cise option to trans­
fer;” 11 Black stu- 
students transferred 
from Woodleŷ

Changes in 
Attendance

Changes in 
Attendance

50 Black students 
rezoned to Thames;*̂  
additional Black 
students may exer­
cise majority-to- 
minority transfers 
from Bethune;̂  61 
Black students from 
Bonhomie Apartments 
transferred from Lovê

Up to 60 Black stu­
dents transferred 
from Jones;'

FIMSSD estimates 41 
white students may 
transfer to magnet 
schoolŝ  by 1989-90
HMSSD estimates 155 
white students may 
transfer to magnet 
schoolŝ  by 1989-90

Ksee Table 1, supra p. 2a.
Ŝee R.Bxc. 125 [I>-X 33, as corrected at trial, Tr. 158-61]. 
Ŝee R. 370-73, R.Bxc. 133-36 [PI-X 24, pp. 8-11].
'̂See supra (body of brief) note 28 and accompanying text.
But see supra (body of brief) note 34.
Ŝee R. 539-40, R.Exc. 100-01 [r>-X 57, pp. 16-17].
^See supra (body of brief) note 23 and accompanying text.

Pro­
jected

 ̂ 2 Black‘d
44 %

38 %

Stolee Plan
1986-87

Clianges in 
Attendance

Pro­
jected

% . Black'
Clustered 
with Jones 
and Eureka

64 %

Clustered 
with Bethune 
and Love

59 %



'chool
Walthall

Eaton

4̂cu
Eavis

Camp
Woodley

%
Black 
Ma rcb, 
1985^
91 %

60

64

48 % 
29 %

1986-87

Qianges in 
Attendance

Some Black students 
may exercise opjtion 
to attend Eureka”

Closed; students 
transferred to 
Grace I,ove

Table 2 (continued) 
Magnet Plan_________

1987-88 1989-90

62 Black students 
residing in Pineviev; 
Apartments rezoned 
from Bethune;̂  11 
Black students in 
Qiristina Apartments 
rezoned to Christian;̂  
additional Black stu­
dents may exercise 
majority-to-minority 
transfers to this 
sc+iool̂

Qianges in 
Attendance

Changes in 
Attendance

Pro­
jected

% 2 Black‘d
Opens as magnet 
school; may or 
may not enroll 
240 students

Third year of mag- 50 
net operation; may 
enroll 240 stu­
dents, 50% Black

HMSSD estimates 8 
Black students may 
transfer to magnet 
schoolŝ  by 1989-90

HMSSD estimates 26 
white students may 
transfer to magnet 
schoolŝ  by 1989-90

64

47 % 
47 %

Stolee Plan
1986-87

Qianges in 
Attendance

Pro­
jected

%  ̂
Black"

Paired with 
Woodley

Remains open 
or

included in
Thames/Be-
thune/Love or
Jones/Chris-
tian/Eureka
clusters

53 %

54 %
(ifopen)

64 %

Paired with 
Walthall

47
53

[footnotes at end of table]



Table 2
COMPARISON OF ATTENDANCE CHANGES AND PROJECTIONS, GRADES 1-6, MAGNET AND STOLEE PLANS

School

Bethune

U)

Eureka

Grace
Love

Jones

%
Black 
Ma rch, 
1985^

99 %

93 %

100 %

89 %

Magnet Plan
1986-87 1987-88 1989-90

Changes in 
Attendance

62 Black students 
rezoned to Woodley;̂  
50 Black students 
rezoned to Thameŝ  
Additional Black 
students may exer­
cise majority-to- 
minority transfers 
to Thameŝ
May receive addi­
tional Black students 
from Walthall if they 
exercise option”
Consolidated with 
Eaton; 61 Black stu­
dents frcm Bonhomie 
Apartments trans­
ferred to Thameŝ
Some Black students 
may opt to to exer­
cise option to at­
tend G. Christian”

[footnotes at end of table]

Changes in 
Attendance

Changes in 
Attendance

Pro­
jected
Black'̂

HMSSD estimates 
90 Black students 
may transfer to 
magnet schoolŝ  
by 1989-90

99 %'

Up to 188 Black 
students trans­
ferred fjom 
Walthal

97 %

73 %

Opens as magnet 
school; may or 
may not enroll 
240 students

Third year of mag- 50 % 
net operation; may 
enroll 240 stu­
dents, 50% Black

Stolee Plan
1986-87

Changes in 
Attendance

Pro­
jected

% 3Black̂

Clustered 
with Thames 
and Love

61 %

Clustered 
with Jones 
and Chris­
tian
Clustered 
with Bethune 
and Thames

Clustered 
with Chris­
tian and 
Eureka

63 %

54 %

65 %



<T\
OJ

Table 3
COMPARISON OF ENROLLMENT PROJECTIONS. GRADES 1~6,_.UJiDF:P MAGNET fiND gTPLE-EL ^ M S

School
March, 
1985 

% Black

Maqnet Plan Stolee Plan

Rossell : 
9/4/85 Plan Before 

Projec- White 
tion Flight 

% Black % Black

Projections 
After 
White 
FI ight 

% Black %

Stolee
Plan
Projec
tion
Black

Rossel1 
Projec­
tion 
2 Yrs. 
White 
Flight 

% Black
Bethune 99 % 99 % 99 % 61 % 80 %
Eureka 93 % 97 % 95 % 95 % 1 63 % 79 %
Grace Love 100 % 73 % 70 % 70 %12J 54 % 75 %
Jones 89 % 50 % 50 % 50 % 65 % 78 %
Walthal1 91 % 50 % 50 % 50 % 53 % 75 %
Eaton 60 % — — — 54 % 54 %
Davis 64 % 64 % 57 % 57 % 64 % 64 %
Camp 48 % 47 % 47 % 47 % 47 % 47 %
Woodley 29 % 47 % 44 % 60 % 53 % 59 %
Grace Christian 20 % 44 % 48 % 52 % 64 % 70 %
Thames 10 % 38 % 31 % 35 59 % 66 %

t ̂ 1Bethune and Eureka would enroll 36.6% of al 1 Black students in grades 1-6
 ̂̂ ̂ Bethune, Eureka and Grace Love would enrol 1 43.1% of all Black students i

grades 1-6.
f^^Thames would enroll 31.9 % of all white students in grades 1-6.



Note on Desegregation Plans before District Court
Numerous elementary school desegregation proposals were filed 
with the district court (see supra nn. [9-12] and 
text):

accompanying

(a) Magnet plans;
(1) July 17, 1984 proposed consent decree submitted by 

United States and HMSSD (R. 99; PI-X 33);
(2) Plan A prepared by Race Desegregation Assistance 

Center (R. 267-81; D-X 38, pp. 8-22);
(3) magnet plan prepared by Drs. Winecoff and Joiner 

(R. 309-14; D-X 37, pp. 1-6);
(4) December 10, 1984 "District" plan submitted by 

HMSSD (R. 208; D-X 34);(5) December 10, 1984 "District Alternative" plan sub­
mitted by HMSSD (R. 323; D-X 35);

(6) September 4, 1985 proposed consent decree submitted 
by HMSSD, united States and State of Mississippi (R. 524, 
R.Exc. ).
(b) Mandatory plans;

(7) Plan B, using pairing, prepared by Race Desegrega­
tion Assistance Center (R. 282-86; D-X 38, pp. 23-27);

(8) Alternative Plan #1, using noncontiguous zoning, 
prepared by Drs. Winecoff and Joiner (D-X 37, pp. 6-8);

(9) Alternative Plan #2,using pairing, or pairing and 
clustering, prepared by Drs. Winecoff and Joiner (D-X 37 , 
pp. 8-9);

(10) stolee plan, using pairing and clustering, prepared 
for plaintiff-intervenors (appellants)(R. 363, R.Exc. 
[PI-X 24]).
All of the magnet plans submitted by HMSSD (alone or with 

other parties) (Plans (1), (4), (5) and (6) above), as well as
the magnet plan of Drs. Winecoff and Joiner (Plan (3) above), 
have the same basic student assignment features (Tr. 46);

establishing magnet schools at Jones and Walthall (with 
consequent reassignment of pupils living within their former 
attendance zones who would not be enrolled in the magnet 
programs),

closing Eaton into Grace Love, and
making modest zone line changes affecting Black pupils 

living in several apartment complexes.
None of these plans entails the creation of magnet schools 

at Bethune or Eureka, nor the reassignment of white pupils into 
these schools. They differ as to other features, such as the 
establishment of "Basic Skills Learning Centers" at Bethune, Eureka

- 7a -



and Love, the location of kindergarten and pre-K programs (see 
supra n. [27] & p. [12]) or breakfast and extended day programs, 
and as to other provisions dealing with subjects such as disci­
pline, special education, and assignment to classes.

The results to be expected from their implementation, accor­
ding to their sponsors, were quite similar; indeed, the projected 
school-by-school enrollments submitted with plans (3), (5), and 
(6) above were identical (Tr. 157-58).

The Desegregation Assistance Center's plan (Plan (7) above), 
the Winecoff-Joiner Alternative #2 (Plan (9) above), and the Stolee 
plan (Plan (10) above) provide for integration of al 1 schools, 
using pairing or pairing and clustering —  though they differ as 
to which schools would remain open and in their groupings of 
schools for pupil assignment.

By the time of the hearing, the parties' positions had nar­
rowed. The HMSSD, the United States and the State of Mississippi 
supported the last-filed version of the magnet plan (Plan (6) 
above). Plaintiff Black children supported the Stolee plan (Plan 
(10) above). However, because most of the pretrial preparation 
had, of necessity, focused upon the "District Alternative" plan 
(Plan (5) above), which HMSSD vigorously supported up until Sep­
tember 4, 1985, and because the student assignment features of 
the "District Alternative" and September 4 plans were identical 
in all relevant respects, the hearing was conducted on the under­
standing that references to the "District Alternative" plan were 
intended to be applied to the September 4 plan. See, e.a.. Tr. 
162-63 (Dr. Walker), 807-08 (Dr. Rossell).

- 8a -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 85-4804

UNITED STATES OF AMERICA, Plaintiff-Appel lee,
andZANDRA PITTMAN, Etc., ET AL. , Plaintiffs-Intervenors-Appellants,

ve rsusTHE STATE OF MISSISSIPPI, ET AL., Defendants-Appellees, 
and

HATTIESBURG MUNICIPAL SEPARATESCHOOL DISTRICT, Defendant-Intervenor-Appel lee.

Appeal from the United States District Court for the 
Southern District of Mississippi

CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of January, 1986, I 

served two copies of the Brief for Appellants in the above-cap­
tioned matter, as well as one copy of the Record Excerpts, upon 
counsel for the appellees, as follows:

by prepaid shipment via Federal Express, for delivery 
January 24, 1986 to the following:

Moran M. Pope, Jr., Esq.
100 Professional Building 
210 West Front Street 
Hattiesburg, Mississippi 39401

Hon. Sara E. DeLoach 
Assistant Attorney General 
5th fl.. Justice Building 
450 High Street 
Jackson, Mississippi 39205

by making arrangements for hand delivery, no later than 
January 24, 1986 to the following:

Mark L. Gross, Esq.Appellate Section, Civil Rights Division 
U.S. Department of Justice 
Room 5718 Main Justice Building 
10th and Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Norman J. Chachkin



>1“

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