Boyd v. Pointe Coupee Parish School Board Motion for Leave to File and Brief for Plaintiffs as Amici Curiae

    IN THE
TTNITED STATES COURT OF APPEALS 

Fr'R THE FIFTH CIRCUIT 
MI. 30467

YVONNE MARIE BOYD, et al.,

UNITED STATES OF AMERICA,
Plaintif fs,

Plainti ff-Intervenor,
EMMITT DOUGLAS and CHARLES HARRIS,

Plainti ffs-Intervenors-Appellants,v .
POINTE COUPEE PARISH SCHOOL BD., et al.,

Defendants-Appellees.

MOTION FOR LEAVE TO FILE 
AND BRIEF FOR PLAINTIFFS AS AMICI CURIAE

A .P. TUREAUD 
1821 Orleans Avenue 
New Orleans, Louisiana 70130

JACK GREENBERG NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-AmiciCuriae



IN THE
UNITED STATES COURT OF APPEALS 

I OR THE FIFTH CIRCUIT 
NO. 30467

YVONNE MARIE BOYD, et al. ,
UNITED STATES OF AMERICA,
EMMITT DOUGLAS and 
CHARLES HARRIS,

Plaintiffs,
Plaintiff-lntervenor,

Plaintiffs-lntervenors-AppeHants,

POINTE COUPEE PARISH SCHOOL BI., et al..
De fendants-Appellees.

MOTION OF PLAIFTIFFS 
FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

Plaintiffs below, Yvonne Marie Boyd, et al., by their 
undersigned counsel, respectfully pray that this Court permit 
them to file a brief as amici curiae on this appeal in support 
of the appellants, who ^ere plaintiffs-intervenors below.

Proposed amici are directly interested in the determination 
of this appeal since it affects the rights which they have 
sought Lo enforce since they commenced this litigation. in 
fact, amici and plaintiffs-intervenors are equally aggrieved 
by the order appealed from; umici a 5 plaintiffs would also have 
filed a Notice of Appeal from that order within the time limits 
prescribed by Part III of this Court's Singleton decision^but

-/ §Angleton v. Jackson Municipal Separate School Dist.. 419 F.2d 1211 (5th Cir. 1969).



for the fact that they were not aware of the entry of the 
order by the court below until after the prescribed period 
had passed. Rather than delay the consideration of this appeal 
by seeking leave to file Notice of Appeal out of time, plaintiffs 
below desire to present their position to this Court as amici 
curiae in support of the appellants.

Counsel for all parties have expressed their consent to 
the filing of a brief by plaintiffs as amici cur iae but written 
consent has not been secured in time for compliance with Rule 
29 of the Federal Rules of Appellate Procedure.

Plaintiffs participation on this appeal as amici curiae 
will not delay or impede the consideration or disposition of 
this cause but will, we hope, assist the Court in the resolution 
of the issues presented and advance the ultimate termination of 
this litigation.

WHEREFORE, plaintiffs Yvonne Marie Boyd, et al. respectfully
seek leave of this Court to file their brief as amici curiae 
herein in support of the appellants.

fectfully

TUREAUD 1821 Orleans 
New Orleans, Louisiana 70130 

JACK GREENBERG 
NORMAN J. CHACHKIN 10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs

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TABLE OF CONTENTS

P_a .̂e

Table of casps .  ii
Other Authorities........................... iv
Interest of Amici ..........................  1

Issues presented for Review ................  2

Statement ..................................  2
ARGUMENT

The District Court Erred in Approving 
the School Board's proposal to Reestablish Racially identifietble Schools in Pointe 
Coupee Parish ..........................  7

The poirte Coupee parish School BoardMay Not Constitutionally Assign
Students to School Buildings on the
Basis of their Achievement TestS c o r e s ................................. 12
The District Court Should be 
instructed to Hold Hearings Before 
Approving Contested Modifications 
to School Desegregation Plans ..........  15

Conclusion . . .   17

Certificate of Service.................. .. . 18



Table of Cares

Alexander v. Holmes County Hoard of iiduc. ,
396 U.S. 19 (1969).................... 4,

Allen v. Board of Public Instruction of
Broward County, No. 30032 (5th Cir. ,
August 13, 1970)...................... 3,

Boyd v. Pointe Coupee parish School Bd.,
420 F.2d 379 (5th Cir. 1970) . . . .  .3

Brown v. Board of Educ., 349 U.S. 294 (1955).9
Brunson v. Board of Trustees of School

District No. 1, No. 14,571 (4th Cir.,
June 5, 1970).......................... 10

Carter v. West Feliciana parish School Bd.,
396 U.S. 290 (1970) .................. 4,

Chicago, M. & St. P.R.Co. v. Polt, 232
U.S. 165 (1915)  16

Cooper v. Aaron, 358 U.S. 1 (1958) ........ 9
Gaston County v. United States, 345 U.S.

285 (1969)............................ 14
Goldberg v. Kelly, 397 U.S. 254 (1970). . . .16 
Grannis v. Ordean, 234 U.S. 385 (1914). . . .15
Green v. County School Bd. of New Kent

County, 391 U .S. 430 (1968).......... . 11
Ha 1 1 v. St. Helena parish School Bd.,

417 F.2d 801 (5th Cir .), cert, denied,
396 U.S. 904 (1969) .2,

Hall v. West, 335 F. 2d 481 (5th Cir. 1964). .15
Henry v. Clarksdale Municipal Separate

School Dist., 409 F.2d 682 (5th Cir.), 
cert, denied, 396 U.S. 940 (1969)... .8

Henry v. Clarksdale Municipal Separate 
School Dist., No. 29165 (5th Cir.,
August 12, 1970)...................... 7

Hilson v. Ouzts, No. 30184 (5th Cir.,
August 20, 1970)...................... 7

ii

Page 

11, 16 

7

11, 16

12

6, 7



Table of cages (continued)

page
Hobson v. Hansen, 269 F. Supp. 401 (D.D.C.

1967), aff'd sub nom. Smuck v. Hobson,
408 F. 2d 175 (D.C. Cir. 1969)..........13

Interstate Commerce Comm1n v. Louisville
& N.R. Co., 227 U.S. 88 (1912) . . . .  .16

Keyes v. School Dist. No. 1, Denver, 303
F. Supp. 279 (D. Colo. 1969).......... 10

Lemon v. Bossier parish School Bd., No.
30447 (5th Cir., September 2, 1970). . .14, 17

Monroe v. Board of Comm'rs of Jackson, 391
U.S. 450 (1968)    .9, 10

Monroe v. Board of Comm'rs of Jackson,
Civ. No. 1327 (W.D. Tenn., July 23,
1970)  14

Morgan v. United States, 298 U.S. 468 (1936).16
Ohio Bell Telephone Co. v. public Utilities

Comm1 n, 301 U.S. 292 (1937) .......... 15, 16
Singleton v. Jackson Municipal Separate 

School Dist., 419 F.2d 1211 (5th
Cir. 1969)............................. 3, 14, 15

United States v. Board of Educ. of Baldwin
County, 423 F.2d 1103 (5th Cir. 1970). .11, 12

United States v. Carroll County Bd. of
Educ., Civ. No. GC-6541-K (N.D. Miss.,
July 6, 1970) ........................ 9

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

United States v. Indianola Municipal
Separate School Dist., 410 F.2d 626 
(5th Cir.), cert, denied, 396 U.S.
1011 (1969) .......................... 8

United States v. Sunflower County School 
Dist., No. 29950 (5th Cir., August 
13, 1970)  14

United States v. Tunica County School Dist.,
421 F. 2d 1236 (5th Cir. 1970)  14

Valley v. Rapides parish School Bd., No.
29237 (5th C Lr., March 6, 1970). . . . .8

iii



Other Authorities

Bullock, II.A., A History of Negro Education
in the South (Praeger, 1967)............ 13

Initial Findings and Recommendations on 
Testing and Ability Grouping As Discriminatory 
practices (Nat'1 Education program Associates,
1969) ...........................................................................................   13
Some views on Aptitude and Achievement 
Testing and Ability Grouping as a Strategy 
for Desegregation (Nat'l Education program 
Associates, 1969) ...........................  13

iv



IN THE
UNT TED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
MO. 3C467

YVONNE MARIE BOYD, et al.,
UNITED STATES OF AMERICA,
EMMITT DOUGLAS and 
CHARLES HARRIS,

vs .

Plaintiffs,
plaintiff-lntervenor,

plaintiffs-lntervenors-Appellants,

POINTE COUPEE PARISH SCHOOL BD., et al.,
Defendants-Appellees.

BRIEF FOR PLAINTIFFS AS AMICI CURIAE

Interest of Amici

Amici curiae are the plaintiffs below in this litigation 
involving the desegregation of the public schools of Pointe 
Coupee parish, Louisiana, and as such are directly affected 
by the determination cf this appeal.

The order from which appeal was taken approved the motion 
of appellees Pointe Coupee parish School Board, et al., filed 
on or about August 10, 197C, to substitute a different plan of 
desegregation for that approved and ordered into effect by the 
district court's decree of July 25, 1969. Amici opposed said 
Motion below in writing on August 21, 1970. The same date, the 
district court, without hearing, approved the board's substitute 
plan but afforded amici no notice thereof; consequently, amici



did not file Notice of Appeal to this Court.

.issues Presented lor Review

1* Whether a school district in the process of implementing 
a contiguous pairing plan which will completely desegregate the 
school system may reestablish racially identifiable schools in 
order to entice white students to return to the school system.

2. Whether a school district which has not completely 
eliminated its dual system of schools may, consistent with the 
Constitution, assign students to school buildings and to 
differentiated curricular programs on the basis of their scores 
on nationally normed standardized achievement tests.

3. Whether a district court may properly approve contested 
modifications by school boards of desegregation plans previously 
held constitutional, without affording the parties the opportunity
for an evidentiary hearing.

Statement

This case was among those decided sub nom. Hall v. St.
Helena parish School Bd., 417 F.2d 801 (5th Cir. 1969). in 
accordance with the mandate of this Court, representatives of 
the Department of Health, Education and Welfare (HEW) visited 
Pointe Coupee parish during the summer of 1969 and drafted a 
desegregation plan which was submitted to the district court. 
Since the parish was divided into five geographically distinctive

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attendance areas, each containing a racially identifiable white
and black school, the HEW plan proposed the pairing of each

2/group of schools with grade restructuring. After the pointe 
Coupee parish School Board failed to propose any alternative 
desegregation plan except free choice, the district court on 
July 25, 1969 entered an order directing the implementation 
of the H.E.W. pairing plan over a two-year period. During 1969-70, 
the schools were to be paired in grades 1-6 while free choice 
would continue in grades 7-12. All grades were to be paired 
effective 1970-71.

The school board appealed. Disposition of its appeal was 
delayed pending determination by the full Court of the cases 
decided sub nom, Singleton v. Jackson Municipal Separate School 
Dist., 419 F.2d 1211 (5th cir. 1969), and on January 6, 1970, 
this Court affirmed the district court's July 25 order. Boyd ■ 
v. Pointe Coupee parish School Bd., 420 F.2d 379 (5th Cir. 1970).

in the meantime, the Supreme Court of the United States 
had decided Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969). On November 26, 1969, plaintiffs filed a "Motion for 
Immediate Relief" in the district court, seeking acceleration 
of the implementation date for the entire HEW plan to the begin­
ning of the second semester of the 1969-70 school year. On 
the same day, November 26, 1969, the district court denied the 
motion.

plaintiffs did not appeal that denial but suggested that

2/ Cf. Allen v . Board of public Instruction of Broward County, No. 30032 (5th Cir., August 18, 1970).



appropriate disposition of the school board's pending appeal 
in accordance with Alexander and Carter v. West Feliciana parish 
School Bd., 396 U.S. 290 (1970) would include a direction from 
this Court that the HEW pairing plan be fully implemented by 
the second semester of the 1969-70 school year. Response of 
Private plaintiffs to Memorandum of United States in Nos. 26450, 
28570, 28637 and 28411. However, the Court's mandate merely 
affirmed Judge West's July 25 order.

October 10, 1969, following the declaration by appellee 
school board of a "Freedom of Choice Holiday," Emmitt Douglas 
and Charles Harris were permitted to intervene in this litigation 
as plaintiffs.

August 10, 1970, appellees filed a Motion in the district 
court proposing the following modifications to the desegregation 
plan ordered into effect by the district court on July 25, 1969:

a. Creating separate vocational and academictwelve-grade campuses in the Batchelor-Innis 
area of the parish, with students to be 
"assigned to their curricula based on their 
past performances in the classroom, past 
standardized test scores, and principal-teacher- 
counselor opinion."

b0 Zoning the Morganza-LaBarre area of the parish 
for grades 1-8 producing an estimated enrollment 
70% black at Morganza and 90% black at LaBarre, 
the traditionally black facility.

c. Zoning the poydras-Rosenwald area for grades
1-12 producing an estimated enrollment 32% black 
at Poydras and 94% black at Rosenwald, the
tradition illy black school.

d. Zoning the Rougon-St. Alma area of the parish
for arades 1-6, subject to a free transfer option, 
producing an estimated enrollment 51% black at 
Rougon and 80% black at St. Alma, the traditionally 
black school.

-4-



o. Revising the HEW pairing plan for the
Valverda-Livonia area of the parish without 
substantial effect upon racial composition of the two schools.

August 21, 1970, plaintiffs filed their Opposition to 
this motion (together with their opposition to a similar 
motion filed by west Baton Rouge parish School Board). Plaintiffs 
objected both to the reestablishment of racially identifiable 
schools in all sections of the parish except Livonia-Valverda 
and also to the proposal to use testing as a means of assign­
ment in the Batchelor-lnnis area. The district court approved 
the modifications the same date but plaintiffs did not receive 
notice of the order of the district court. Plaintiffs were also 
unaware of the appeal by plaintiffs-intervenors until appellees' 
Motion to Dismiss that appeal and Opposition to Motion for 
Summary Reversal were served upon them and received on or about 
September 16, 1970.

At that time plaintiffs sent the following telegram to 
the members of this panel:

Please be advised that plaintiffs Boyd 
et al. were never notified either of August 
21 district court order or August 31 Motion 
for Summary Reversal. Had we been so advised 
we would also have filed Notice of Appeal and 
sought summary reversal. plaintiffs do not 
wish at this point however to delay considera­tion of the appeal, which we urge has merit.
We will furnish the court with copies of our 
opposition to the school board's request for modification, which we filed with the district court on the same day that the plan was 
approved, and we request the court's favorable 
consideration of the arguments which we sought 
to bring to the attention of the district court.

-5-



That Motion for Summary Reversal has not yet been ruled upon 
as we prepare this brief.

No actual attendance figures are available for the 
first semester of the 1970-71 school year because the orders 
of the district court since this Court's Hall remand have not 
included any reporting provision.

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ARGUMENT

1

THE DISTRICT COURT ERRED IN 
APPROVING THE SCHOOL BOARD'S 
PROPOSAL TO REESTABLISH 
RACIALLY IDENTIFIABLE SCHOOLS IN POINTE COUPEE PARISH

This is an almost classically simple school desegregation 
case. prior to 1969-70 Pointe Coupee parish operated a 
completely dual school system with overlapping attendance 
areas between five sets of "white" and "black" schools in 
different areas of the parish maintained by various devices, 
including freedom of choice. Hall v. St. Helena parish School 
B<3- / 417 F. 2d 801 (5th Cir. 1969), cert, denied, 396 U.S. 904 
(1969). The H.E.W. plan which the district court ordered 
implemented in two steps by decree of July 25, 1969 would, 
when fully implemented, completely eliminate the dual school 
system by establishing only one school serving each grade level 
in each area of the parish. This would be accomplished by 
the recognized educational tool of contiguous pairing and grade 
restructuring, which has consistently been sanctioned by this 
Court. E .g., Hall, supra; Allen v. Board of Public Instruction 
of Broward County, supra; Henry v. Clarksdale Municipal Separate 
School Dist., No. 29165 (5th Cir., August 12, 1970); Hilson 
v. Ouzts, No. 30184 (5th Cir., August 20, 1970).

Half the pairing was implemented in the 1969-70 school
y :ar- Grades 7-12 were due to be paired effective 1970-71 
under the district court's order or July 25, 1969. Since

-7-



enrollment at those grade levels during 1969-70 was still 
determined by free choice, the system was at least to that 
extent a till a dual school sys tern. It has never operated as 
a completely anitary school system.

1*̂ -ontext, the unavoidable consequence of the board's
proposals is to recreate the dual system in grades 1-6 as well 
as 7-12. The board's zones reestablish racially identifiable 
schools in three of the five areas of the parish -- the 
racial composition of the Livonia and Valverda schools is 
not affected by the changes, nor is specific zoning proposed 
in the Batchelor—innis area. However, the formerly black 
schools in the other three areas of the parish (Rosenwald, St. 
Alma and LaBarre) are each projected to enroll significantly 
higher proportions of black students than the "white" schools 
with which they would have each been paired under the Court's 
July 25, 1969 order.

No contention was made in the board's motion suggesting 
these changes that the zones were drawn for the purpose of 
promoting desegregation. See, e .g., Davis v. Board of School 
Comm1rs of Mobile County, 393 F.2d 1086 (5th Cir. 1969);
Henry v. Clarksdale Municipal Separate School Dist., 409 F.2d 
682 (5th Cir.), cert, denied, 396 U.S. 940 (1969); United 
States v. Indianola Municipal Separate School Dist., 410 F.2d 
626 (5th Cir.), cert, denied, 396 U.S. 1011 (1969); Valley v. 
Rapides parish School Bd., No. 29237 (5th Cir., March 6, 1970).

The only justification for the proposal to revert to a 
dual school structure was the hope that this would entice
wi: . to students back into the schoc 1 system.

-8-



Very nearly the same contentions were rejected by Judge
Keady in the Northern District of Mississippi:

On the basis of the figures shown, 
there has been a flight of whites from 
these schools from the first six grades, 
and I cannot fairly hold from this evidence 
that this plan may be justified longer under 
the consideration that it xs necessary to 
save the public schools. If saving the 
public schools is to be determined by the 
number of whites that stay in a system, not even this plan is going to save it. The 
fact that a significant number of white 
children in the first six grades have 
already left the public schools under this 
plan leads the court to believe that possibly 
an even greater number of whites will leave 
when the existing plan takes effect for the 
upper six grade;;. So, the plan cannot be 
justified under the vague heading that it is 
necessary to sa'-e the public schools.

United States v. Carroll County Bd. of Educ., Civ. No. GC-6541-K
(N.D. Miss., July 6, 1970)(slip opinion at pp. 4-5)(sex separation)

"White flight" is one; expression of resistance to 
integration, but the Supreme Court has held over and over that 
the courts must not permit, community hostility to "intrude 
on the application of constitutional principles." Brown v.
Board of Educ., 349 U.S. 294, 300 (1955); Cooper v. Aaron,
358 U.S. 1 (1958). The Court specifically directed itself 
to this problem in Monroe v. Board of Comm'rs of Jackson, 391 
U.S. 450, 459 (1968):

We are frankly told in the Brief that without 
the transfer option it is apprehended that 
white students will flee the school system 
altogether. "But if should go without saying 
that the vitality of these constitutional 
principles cannot be allowed to yield simply 
because of disagreement with them." Brown II, 
at 300.

9-



Whatever may be the desirability of white stvidents
rcturninq to the pv.bLic school system in this parish or in
any school district, the law permits their return only to a
constitutionally operated system. 'The force of the holding
[in Monroe, supra] is inescapabla: dissidents who threaten
to leave the system may not be enticed to stay by the
promise of an unconstitutional though palatable plan."
Brunson v. Board of Trustees of School Dist. No. 1, No.
14,571 (4th cir., June 5, 1970)(Sobeloff, J., concurring).

I, too, am dismayed that the remaining white pupils in the Clarendon County 
schools may well now leave. But the 
road to integration is served neither 
bycovert capitulation nor by overt 
compromise, such as adoption of a schedule 
of optimal mixing.

Ibid..

The proposed change of assignment method from pairing 
under the HEW plan back to zoning reflecting long-established
racial patterns is equivalent to abandonment by a school 
board of a desegregation elan it had formerly adopted, 
permitting segregation to continue uncorrected. In Keyes 
v. School Dist. No. 1, Deiver, 303 F. Supp. 279 (D. Colo.
1969) , the court held that such action constituted an inde­
pendent Fourteenth Amendment violation.

Finally, we note that representatives of H.E.W. were 
asked by appellees to consider the plan they proposed and 
reported that it would lead to reestablishment of racially
identifiable schools which could not be justified:

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The team is convinced that any attempt 
to return to parallel grades, reflective 
of the former dual structure, despite 
inclusion of some of both ethnic groups 
in the schools where their race is in 
the minority, would be contrary to recent 
Court decisions inasmuch as there are more 
effective approaches to desegregating the 
children in this parish. Neither of the 
five natural geographical areas contains 
sufficient numbers of students for two schools with parallel grades. we strongly 
suggest that the Board, both as a group and as representatives of particular 
wards, abandon this idea and work toward 
a unitary plan for each of the above- 
mentioned areas.

(Letter from Messrs. Miller, Lee and Kendrick, H.E.W.
Regional Office in Dallas, to Mr. warren Braud, Superintendent, 
dated July 20, 1970 and attached as Exhibit "D" to appellees' 
August 10 motion in the district court)(emphasis supplied).

Since the H.E.W. plan if fully implemented will 
dismantle the dual system, it should be ordered reinstated 
by this Court, because "the obligation of every school district 
is to terminate dual school systems at once and to operate 
now and hereafter only unitary schools." Alexander v.
Holmes County Bd. of Educ., supra; Carter v. West Feliciana 
parish School Bd., 396 U.S. 290 (1970); Green v. County 
School Bd. of New Kent County, 391 U.S. 430 (1968); United 
States v. Board of Educ. of Baldwin County, 423 F.2d 1013 
(5th Cir. 1970). On remand to this Court in Alexander, supra, 
the school districts involved were ordered to implement HEW 
plans during the school year. See United States v. Hinds 
County School Bd., No. 28030 (5th Cir., November 7, 1969).
The Court in Baldwin County, supra, in ordering the implementation

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of the H.E.W. plan stated:
Since the HEW plan is the only one 
currently available that gives any promise of ending the dual system, 
we must order its inplementation 
despite its defects

423 F.2d at 1014. Given the H.E.W. alternative to the plan 
approved below, the district court's ruling permitting the 
reversion to racially identifiable schools is constitutionally 
impermissible. Green v. County School Bd. of New Kent County,
supra.

II
The pointe Coupee parish 
School Board May Not Consti­
tutionally Assign Students 
To School Buildings On The 
Basis of Their Achievement 

Test Scores

In the Batchelor-Innis area of the parish, appellees 
proposed to establish two twelve-grade schools, one empha­
sizing vocational training and the other academic preparation. 
Students would be assigned to these buildings, and to these 
different curricular preparations, on the basis of their 
scores on nationally normed standardized achievement tests.
The school board provided no projection of enrollment at 
the two schools although it proposed to make assignments on 
the basis of past test scores. We suggest it did not do so 
because the vocational school will be overwhelmingly black.

There are many problems with the school board's proposal 
but it is difficult to go very daeply into them without

12-



havinq had anv opportunity to make an evidentiary showing 
below. We shall merely sketch the dimensions of the consti­
tutional question since we believe that the district court's 
order with respect to Batchelor-Innis should be reversed 
upon more narrow grounds (see infra).

Vocational education has traditionally been regarded 
in the South as the particular province of Negro children.
It is no mere coincidence that the black school, not the 
white school, is proposed for use as the vocational training 
center. See Bullock, H.A., A History of Negro Education in 
the South (Praeger, 1967). Furthermore, the weight of 
educational authority holds that nationally normed standardized 
achievement tests are discriminatory when given to culturally 
and educationally deprived children, such as black children, 
and are therefore notably unreliable as guides for curricular 
placement. This is particularly true where the grouping 
proposed involves assignments by buildings rather than by 
specific subject matter. See Initial Findings and Recommen­
dations on Testing and Ability Grouping As Discriminatory 
Practices and Some views on Aptitude and Achievement Testing 
and Ability Grouping as a Strategy for Desegregation (Nat'1 
Education Program Associates, 1969)(studies done for the 
United States Qffice of Education).

We submit that the district's proposal is the same form 
of tracking condemned as unconstitutional in Hobson v.
Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff1d sub nom. Smuck 
v * Hobson, 408 F.2d 175 (D.C. Cir. 1969). To assign and lock

-12



in students to vocational programs on the basis of their 
academic achievement in a segregated setting is to penalize 
black children for conditions over which they had no 
control. See Gaston County v. United States, 345 u.S. 285 (1969) 
This very kind of proposal —  to make a formerly black school 
a vocational school -- was rejected in Monroe v. Board of 
Comm1rs of Jackson, Civ. No. 1327 (W.D. Tenn., July 23,
1970).

However, this Court need not decide these broad issues 
on this notably bare record. Reversal of the order below 
is required by this Court's decisions in Singleton v. Jackson 
Municipal Separate School Dist., supra; United States v.
Tunica County School Dist., 421 F.2d 1236 (5th Cir. 1970); 
ar»d United States v. Sunflower County School Dist., No.
29950 (5th Cir., August 13, 1970). As we have pointed out 
above, the H.E.W. plan has never been completely implemented 
in Pointe Coupee parish. Secondary grade assignments during 
the 1969-70 school year continued to be made on a free choice 
basis, and the system clearly remained a dual one, falling 
within the ruling in Singleton that "testing cannot be 
employed in any event until unitary school systems have been 
established" as applied in Tunica and Sunflower.

Similar relief in the nature of an injunction pending 
appeal restraining operation of such a plan in plain Dealing, 
Louisiana was granted in Lemon v. Bossier parish School Bd.,
No. 30447 (5th Cir., September 2, 1970). We urge this Court 
to apply the same ruling to Pointe Coupee Parish.

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Ill

The District Court Should Be 
Instructed To Hold Hearings 
Before Afproving Contested 
Modifications to School Deseg­

regation Plans

Much of the difficulty in isolating and addressing 
the issues on this appeal stems from the failure of the 
district court to hold any evidentiary hearing whatsoever 
before approving the modifications submitted at nearly 
the last moment by the school board.

In light of this Court's accelerated and summary 
procedures in school desegregation appeals, see part III 
of Singleton, 419 F.2d at 1222, the district court's failure 
to hold a hearing assumes even greater significance.

There can be no doubt that the procedures followed by 
the district court in tl is case do not comport with the 
fundamentals of due process. "The funadmental requisite 
of due process of law is the opportunity to be heard." 
Grannis v. Qrdean, 234 U.S. 385 (1914). Important rights 
may not be adjudicated cn the basis of the privately 
acquired knowledge of the judge where a litigant is given 
no opportunity to make a showing about contested matters. 
Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 
292 (1937). Due process is plainly not satisfied where 
one litigant communicates the vital facts to the court on an 
informal or ex parte ba is. See Hall v. West, 335 D.2d 
481, 483-84 (5th Cir. 1964). A fair and open hearing is

15



vital to the integrity of judicial proceedings. "Nothing 
can be treated as evidence which is not introduced as such." 
Morgan . United States, 298 U.S. 468, 480, 481 (1936);
Interstate Commerce Commission v. Louisville & N.R. Co.,
227 U.S. 88 (1912). "The right to such a hearing is one of 
the 'rudiments of fair play' (Chicago, M. & St. P.R. Co. v.
Polt, 232 U.S. 165, 168) assured to every litigant by the 
Fourteenth Amendment as a minimal requirement." Ohio Bell 
Telephone Co. v. Public Utilities Commission, supra at 304.
"In almost every setting where important decisions turn on 
questions of fact, due process requires an opportunity to 
confront and cross-examine adverse witnesses." Goldberg v.
Kelly, 397 U.S. 254, 269 (1970).

We disagree with the government [in its Memorandum of 
the united States on Motion of Appellants for Summary 
Reversal] as to the proper disposition of this appeal. we 
agree upon and emphasize the necessity for a hearing below, 
but we think that appellants are entitled to judgment in 
their favor as a matter of law. At the very least, Alexander 
and Carter require that the original July 25, 1969 order be 
reinstated pendente lite while Judge West holds such hearings 
as may be necessary concerning the board's proposed modifications.

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CONCLUSION

WHEREFORE, for the foregoing reasons, amici 
respectfully support the position of the appellants 
herein and suggest to the Court that the district court's 
order of August 21, 1970 be reversed or vacated and the
district court's original order of July 25, 1969 be 
reinstated. See Lemon \ . Bossier parish School Bd.. supra

Respectfully si
n /

A.P. TUREAUD 
1821 Orleans AVenue 
New Orleans, Louisiana 70130

JACK GREENBERG 
KORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

attorneys for Plaintiffs- Amici Curiae

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CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of October, 
1970, I served the foregoing Motion for Leave to File 
and Brief for Plaintiffs as Amici Curiae upon counsel 
for the parties to this action by mailing two copies 
thereof, United States first class postage prepaid, to 
each of the following:

Hon. jack P. F. Gremillion Attorney General of Louisiana 
State Capitol Building Baton Rouge, Louisiana 70804
Samuel C. Cashio, Esq.District Attorney 
18th Judicial District 
Plaquemine, Louisiana 70764
John F. Ward, Jr., Esq.
206 Louisiana Avenue
Baton Rouge, Louisiana 70802
Murphy W. Bell, Esq.
1438 East Boulevard Baton Rouge, Louisiana
Frank D. Allen, Jr., Esq.
United States Department of Justice 
1723 Masonic Building 
333 St. Charles Avenue 
New Orleans, Louisiana 70130

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