Bivins v. Board of Public Education and Orphanage for Bibb County Brief for Appellants
Public Court Documents
August 1, 1964

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Brief Collection, LDF Court Filings. Bivins v. Board of Public Education and Orphanage for Bibb County Brief for Appellants, 1964. 6d2fa6e6-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5c2772d5-4924-472e-898f-99ccd6c9aa42/bivins-v-board-of-public-education-and-orphanage-for-bibb-county-brief-for-appellants. Accessed June 13, 2025.
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I n - t h e , Mnxttb U tata Cmtrt of Kppmhx F oe t h e F if t h C ir c u it No. 21690 S h ir l e y B iv in s , et al., -v.— Appellants, B oard of P u b l ic E du ca tio n a n d O r ph a n a g e for B ibb C o u n t y , et al., Appellees. A P P E A L FR O M T H E U N IT E D STA TES D IS T R IC T COU RT FO R T H E M ID D L E D IS T R IC T O F GEORGIA BRIEF FOR APPELLANTS D onald L. H ollow ell 859% Hunter Street, N. W. Atlanta, Georgia J ack G reen berg C o n sta n ce B a k e r M otley D e r r ic k A. B e l l , J r . 10 Columbus Circle New York, New York 10019 Attorneys for Appellants. I N D E X PAGE Statement of the Case .............. .................. ............. . 1 Pre-Litigation Pleas and Petitions ................. . 2 Description of Board’s Plan ............... ............... 4 Appellants’ Objections and Interim Plan ...... . 5 Board Defense of Its Plan .................... ............ . 6 Approval of Plan by Lower Court ................. . 9 Specifications of Error ........... ..................... ............. . 9 A r g u m e n t : Appellees’ 20 Year Desegregation Plan Fails to Meet the Minimal Standards Set by This Court and Countenance Impermissible Delay________ 10 C o n c l u s io n .......... ................................ ........................ . 18 T able op Cases Armstrong v. Board of Education of Birmingham, 323 F. 2d 333 (1963), F. 2d M l- (5th Cir., June 18, 1964) ...................... ............ .................................11,15,17 Augustus v. Board of Public Instruction, 306 F. 2d 862 (5th Cir., 1962) .................. ........................... ........ 15 Bell v. School Board of Powhatan County, Va., 321 F. 2d 494, 499 (4th Cir. 1963) ___ ______ ___ ____ 14 Belo v. Randolph County Board of Education, Civ. No. 209-G-63 (M. D. N. C.) 16 ii PAGE Bennett v. Madison County Board of Education, Civ. No. 63-613 (N. D. Ala.) --------- ------- ----- ---------- 17 Boyce v. County Board of Education of Humphreys County, Tenn. Civ. No. 3130 (N. D. Tenn.) ... .......... 17 Bradley v. School Board of City of Richmond, Va., Civ. No. 3353 (E. D. Va.) (317 F. 2d 429) (4th Cir.) .... 17 Brown v. Board of Education, 347 IT. S. 483 (1954) ..2, 5,16 Brown v. Board of Education, 349 U. S. 294 (1955) .... 10 Brown v. School District No. 20, 226 F. Supp. 819 (E. D. S. C. 1963), aff’d 328 F. 2d 618 (4th Cir. 1964) ................. ...............- .....-................ -............... 16 Bush v. Orleans Parish School Board, 308 F. 2d 491 (5th Cir., 1962) ........................................................ 10,15 Calhoun v. Latimer, 377 U. S. 2&- (1964) ................. 10,13 Carr v. Montgomery County Board of Education, Civ. No. 2072-N (M. D. Ala.) ..........-.............-.......-........ 17 Cooper v. Aaron, 358 TJ. S. 1 ....................................... 15 Davis v. Board of School Commissioners of Mobile County, 322 F. 2d 356 (1963),-----F. 2d — (5th Cir., June 18, 1964) ................ -.....- ................. H> 15,17 DuBissette, et al. v. Cabarrus County Board of Educa tion (M. D. N. C.) ....................-................................ 16 Eaton v. New Hanover County, Civ. No. 1022 (E. D. N. C.) .....................................-.................................. Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) cert, denied, 364 H. S. 81 (1961) .......................... -........... Ford v. Cumberland County Board of Education, No. 668 (E. D. N. C.) .................................................. - Gaines v. Dougherty County Board of Education, No. 20984 (July 31, 1964) ......................................... -U, 17,18 Ill PAGE Gill v. Concord City Board of Education, No. C-223- S-63 (M. D. N. C.) .................. .................................. 16 Gilmore v. High Point Board of Education (M. D. N. ('.). No. C-51-G-63 ____ ___________ _____ _ 16 Glynn County Board of Education v. Gibson,-----P. 2d ----- , June 18, 1964 .............. ................................... 16 Goss v. Board of Education of the City of Knoxville, 373 U. S. 683 (1963) _________ __ ______ ______ 10 Goss v. Board of Education of City of Knoxville, 301 F. 2d 164 (6th Cir. 1962) rev’d on other grounds, 373 IT. S. 683 ......... ...................................................10,14 Goss v. Board of Education of Knoxville, No. 3984 (E. D. Tenn.) ...... .................. ................................ 17 Griffin v. County School Board of Prince Edward County, 377 U. S. 218 (1964) _____ _____ ____ 10 Griffith v. Board of Education of Yancey County, Civ. No. 1881 (W. D. N. C.) ................... ..................... . 16 Hall v. Hon. E. Gordon West, ----- P. 2d ----- (5th Cir., July 9, 1964) .................................................... 17 Hereford v. Huntsville Board of Education, Civ. No. 63-109 (N. D. Ala.) ............... ..................................... 17 Jackson v. School Board of City of Lynchburg, Va., 321 F. 2d 230 (4th Cir., 1963) ........ ..................... ......... 10 Jeffers v. Whitley (Caswell County), 309 F. 2d 621, 629 (4th Cir., 1962) ................................................. 16 Miller v. Board of Education of Gadsden, Ala., Civ. No. 63-574 (N. D. Ala.) ________ _____ ________ 17 Eippy v. Borders, 250 F. 2d 690, 693 (5th Cir. 1957) .... 17 IV PAGE Sowers v. Lexington City Board of Education, C-20- S-64 (M. D. X. C.) _______ ______ ____ ______ 16 Stell v. Savannah-Chatham County Board of Educa tion, 318 F. 2d 425 (1963), F. 2d (5th Cir. June 18, 1964) ........... ............................. 11,13,15,17,18 Turner v. Warren County Board of Education, 1482 (E. i). N. C.) ......... .................................... .............. 16 Vick v. County Board of Education of Obion County, Tenn. (Civ. No. 1259) (W. D. Tenn.) .............. ......... 17 Watson v. City of Memphis, 373 U. S. 526 ............. 10,11 Wheeler v. Durham City Board of Education, Civ. No. C-54-D-60 (M. D. N. C.) ................................... 16 Whittenberg v. School District of Greenville County, S. C., Civ. No. 4396 (W. D. S. C.) ...... ................. 16 Zigler v. Beidsville Board of Education, C-226-G-62 (M. D. N. C.) 16 I n t h e Htttteb States Gkrurt rtf Appeals F oe t h e F if t h C ir c u it No. 21690 S h ir l e y B iv in s , et al., Appellants, B oaed of P u b lic E ducation a n d O eph a n a g e foe B ibb C o u n ty , et al., Appellees. A P P E A L F E O M T H E U N IT E D STA TES D ISTR IC T COURT F O E T H E M ID D LE D ISTR IC T OF GEORGIA BRIEF FOR APPELLANTS Statement of the Case Preliminary Statement This suit was brought by Negro parents of school chil dren attending the public schools of Macon and Bibb County, Georgia, after the Board of Public Education and Orphanage for Bibb County publicly announced that, not withstanding requests and petitions calling for voluntary school desegregation, they would not alter their traditional segregated school system unless such action was ordered by a federal court. Appellants present here for review a final order and judgment of the district court approving a desegregation plan which envisions two decades to com- 2 plete what the Board has already taken a full decade to begin. The complaint follows what is by now the classic form, seeking for plaintiffs and their class a preliminary and permanent injunction against the Board of Public Educa tion and Orphanage of Bibb County, Georgia, its members and its Superintendent of Schools, enjoining them from : continuing their policy and practice of assigning pupils by means of a dual scheme of school zone lines based on race and color; assigning teachers, principals and other professional school personnel to the Bibb County schools on the basis of race and color; and approving budgets, poli cies, curricula and programs designed to maintain or sup port compulsory racially segregated schools (B. 3-12). In the alternative, plaintiffs prayed that the Court enter a decree directing defendants to present a complete plan for the reorganization of the entire school system of Bibb County into a unitary nonracial system, within a period of time to be determined by the Court (B. 11). P re -L itiga tion P leas a n d P e titio n s This action culminates a lengthy history of vain efforts by plaintiffs and others to induce the Bibb County Board to voluntarily implement Brown v. Board of Education, 347 U. S. 483 (1954). In December 1954, a petition calling on the Board to de segregate the schools was submitted by Negro citizens of Bibb County who offered their services to the Board in the implementation of a desegregation plan (B. 90-92, 322-23). While petitioners requested notification of the meeting on this petition, the Board did not respond. Subsequent public statements indicated that the request was deemed “pre mature” by the Board (B. 92, 326). 3 In August 1955, a second petition signed by Negro parents and citizens (R. 92-93, 324-25) was submitted to the Board again calling for an end to racially segregated schools in Bibb County, and quoting the Supreme Court’s admonition that its decision requires “good faith compliance at the earliest practicable date” (R. 324). The Board, whose mem bership includes five lawyers and judges (R. 78) referred this petition to a special committee headed by Board mem ber Mallory C. Atkinson (R. 89), a law school professor (R. 77) and former Superior Court judge (R. 87). The committee in a “preliminary report” indicated that the problem would require an inestimable amount of “time, effort and study, . . . ” (R. 327). In February 1961, the Macon Council on Human Rela tions, an interracial group, noting the repeal by the Georgia Legislature of statutes aimed at frustrating any school desegregation (R. 329), appealed to the Board to study the school situation for the purpose of initiating desegrega tion of the public schools (R. 97, 328). The receipt of this letter seems to have stimulated the Board to form a new committee to study the problem (R. 97, 122, 332). In or about March 1963, a group of Negro citizens, in cluding some of the appellants, once again petitioned the Board to desegregate the Bibb County public schools (R. 336-37). As a result, the Board, on April 25, 1963, filed a petition seeking a declaratory judgment in the Bibb County Superior Court as to whether the Board had the power to desegregate the schools in view of their charter from the State which prescribes the operation of a system of distinct and separate schools for white and colored children (R. 18). The Superior Court ruled that the Board has the authority, under its charter, to operate its schools on a desegregated basis (R. 23). 4 Nevertheless, on July 30, 1963, the Board adopted a Resolution stating that- any decision to change the present segregated operation of the Bibb County Public Schools must be left to the federal courts, and reaffirming the Board’s conviction that integration of the races in the public schools of Bibb County would be detrimental to both the colored and white races, and the entire county (R. 23- 25). D escrip tio n o f B o a rd ’s P la n Plaintiffs filed suit in August 1963, and the Board’s answer admitted the essential allegations of jurisdiction, the capacity of plaintiffs to sue in behalf of themselves and as representatives of the class of minor Negro children similarly situated, and that the Board had in the past and presently operates separate schools for white and colored children in Bibb County (R. 16,17,18, 22). The district court, following a pre-trial hearing, ordered the Board to make a prompt and reasonable transition to a racially non-discriminatory school system and to present to the court within thirty days a complete plan adopted by the Board for this purpose (R. 29). The plan was submitted on February 24, 1964 (R. 30-36). Under the plan, no immediate change was to be made in the identification of residential areas or in the identification of the high school to which pupils graduating from the sev eral grammar schools are assigned. Except for a transfer provision, the present policies and procedures of the system are to be continued with respect to the placement of pupils entering the system and with respect to the transfer of pupils within the system. The plan permits applications for transfer only for the 12th grade for the school year 1964-65. Thereafter, the transfer plan is to be similarly 5 applied to all 11th and 10th grades for 1965-66, all 9th grades for 1966-67, all 8th grades for 1967-68, all 7th grades for 1968-69, all 6th and 5th grades for 1969-70, all 4th grades for 1970-71, all 3rd and 2nd grades for 1971-72, and all 1st grades for 1972-73, becoming at that time an open admission plan, as to first grade students, which plan will then progress throughout the system at the speed of a grade-a-year (R. 35, 36, 66). A ppellan ts’ O bjections an d In te r im P lan Appellants, in objections filed with the court on March 16, 1964, objected to the Board plan on the following grounds (R. 37-39): That no criteria were enumerated to guide the Super intendent in the granting or refusal of applications for transfer and in the designation of public schools to be attended; nor was there any procedure for appeal pro vided, in the event of dissatisfaction with the designa tion; Dual racial zones are maintained and there is no basic plan for bringing about a transition to a unitary non- racial system at any time in the immediate future; The plan places the burden of initiating any change on the student seeking transfer; The provisions establishing an advisory committee are vague and indefinite; and the plan purports to permit 9 years for the total desegregation of the Publie School System of Bibb County even though it has been 10 years since the Supreme Court decision in Brown v. Board of Education, 347 IT. S. 483 (1954). Appellants submitted their own interim plan of desegre gation calling for freedom of choice assignments in all grades, and continuing such policy until the Board began assigning all students without regard to race (E. 40-41). 6 B o ard D efense o f I ts P la n Hearing was held on the Board’s plan and the objec tions thereto on April 13-14, 1964 (R. 42). The testimony of the Superintendent, Julius L. Gfholson, revealed that there are recognized geographical areas for white children and recognized geographical areas for colored children which are different and which determine school assign ments; that the prior practice of assigning students on a racial basis by means of school capacity and the avail ability of transportation to the schools was not changed, only limited by the “opportunity” to transfer to a different school under the proposed plan (R. 60). He further testi fied that the criteria for transfer included scholastic eli gibility, availability of space, capacity of the school and transportation (R. 61-62). Mr. G-holson stated that it would take nine years for the plan to include all the classes of the public school system and that the plan was essentially a transfer plan, dependent upon a student application for its efficacy (R. 66-67). He also testified that problems of changing customs and traditions, with their strong psycho logical impact on the community, were ̂ grounds for the_ Relay inherent'in the plan (R. 71). When questioned as to the basis of his interpretation, he admitted that his sources were second-hand, consisting of periodicals that he had read, in particular, The U. 8. News and World Report, and talks with other Superintendents at a “professional meet ing” (R. 74). For similar reasons, the Board refused to include teacher desegregation as a part of their plan (R. 68-74). Mr. Miller, a Board member and attorney (R. 117) testi fied that a committee was formed back in 1955, after the first decision implementing Brown; that there was a subse quent committee, and later, still a third committee; and 7 that each of these committees began to do “something” after a request on the part of those seeking to get the Board to act (R. 122-23). During the period between 1955 and 1961, the Board’s inactivity was explained in terms of the barriers set up by the State: the new package laws; and the laws enforcing segregation which were already on the books, the violation of which, the Board feared, would have resulted in a termination of State funds (R. 122). 'When the Georgia legislature repealed statutory pro visions requiring segregation, the Board thereafter ques tioned its own authority to implement the Supreme Court mandate because of the provision requiring segregation in its own charter (R. 118). Mr. Miller also testified, both on direct and cross-exami nation, that it was the opinion of the committee and subse quently the resolution of the Board that there should be no recommendation of a voluntary plan of integration (R. 139). Mr. Miller based, his opposition to “mass desegrega tion” on the grounds of projected difficulties and the need to limit and forestall friction. He had no first-hand knowl edge of impending difficulties or friction, relying mainly on mass media for his opinions (R. 140-41). Dr. Leon R. Culpepper, a Board official who will admin ister the plan (R. 146), indicated that the plan had been under study for a year (R. 171). He explained the Board procedures that follow filing of an application for transfer. In summary, transfer application forms, which are obtain able only at the office of the Board of Education (R. 148), must be signed by the student, his parent and a witness, (R. 150), and returned during a 30 day transfer period (R. 148). The Superintendent then obtains a complete transcript of the student’s grades, including aptitude and achievement tests, and additional information on his “atti tude, cooperation and stability” (R. 152). He then grants or denies the application based on “eligibility” which means passing marks (E. 153), “availability” which refers to avail ability of a school bus or city buses with regard to the school requested for; and “capacity” pertaining to the capacity of the school to which the student seeks to transfer (R. 154). The plan permits the Superintendent to call in the stu dent seeking transfer and his parents to clear up discrepan cies or irregularities in the application or to point out reasons why the requested transfer is not in the student’s own best interests (R. 155). Students in “disciplinary diffi culty” may for that reason be denied transfer (R. 158). Superintendent Julius L. Gholson testified that the deci sion was made to start at the upper grades rather than the lower grades because 1) “at that stage the students were more mature and that you could appeal to them and reason with them, and could probably get better cooperation be cause of their maturity.” 2) “Their parents are not as emotionally concerned with them at the 11th and 12th grades in senior high schools as they would be if they were first entering school; and you would not have as many prob lems because of emotionalism and concern of parents” (R. 185-86). Dr. Weaver, Board President, revealed that his opposi-. tion to mass integration by a speedier plan was based solely on a ’ subjective evaluation of what he had heard , from others and read in the press (R. 201, 203). 9 A p prova l o f P la n by L ow er C o u rt The court below approved the Board’s plan as submitted (R. 278-97) and denied ail injunctive relief sought by ap pellants. Reviewing the record, including the Board’s in action in the face of several petitions calling for school de segregation, and its refusal to abandon segregated schools without a federal court order (R. 291), the court concluded that the Board plan is “legally sufficient and acceptable” (R. 296). Notice of appeal was filed on May 25, 1964 (R. 298-99). Specifications of Error The District Court erred in : 1. Refusing to enjoin the operation of a dual system in Bibb County, Georgia, based wholly upon race and the as signment of children to schools on the basis of the dual system. 2. Refusing to rule on the validity of requiring assign ment of professional school personnel to the schools of Bibb County on a non-racial basis as part of a desegregation plan. 3. Approving a “transfer” plan which operates to delay and to postpone at least nine years even the commencement of freedom of choice assignments in the public schools of Bibb County. 10 A R G U M E N T Appellees’ 20 Year Desegregation Plan Fails to Meet the Minimal Standards Set by This Court and Coun tenances Impermissible Delay. The Board of Public Education and Orphanage for Bibb County required to produce a desegregation plan under the compulsion of a court order after years of conscious delay, has attempted to further evade the mandate of Brown v. Board of Education, 349 U. S. 294 (1955) and the more recent admonitions of Watson v. City of Memphis, 373 U. S. 526, Goss v. Board of Education of the City of Knox ville, 373 U. S. 683 (1963), Calhoun v. Latimer, 377 U. S. 263 (1964), Griffin v. County School Board of Prince Ed ward County, 377 U. S. 218 (1964). Evasion is perpetrated by a transfer plan which frustrates and postpones mean ingful desegregation for a period of twenty years. The plan, commencing at the twelfth grade level, and operating on a descending basis, will take nine years to reach grade one. It then becomes a freedom of choice plan as to students entering the first grade and progresses with that class through the system until in 1984, all students will have a choice of attending, either Negro or white schools. The plan is more deliberately slothful than those of the “grade-a-year” variety now rejected by the Third, Fourth, Fifth and Sixth Circuits in Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960), cert, denied, 364 U. S. 81 (1961); Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963); Bush v. Orleans Parish School Board, 308 F. 2d 491, 500, 501-502 (5th Cir. 1962); Goss v. Board of Education of City of Knoxville, 301 F. 2d 164 (6th Cir. 1962), rev’d on other grounds, 373 U. S. 683, and falls seriously short of the timing required by Watson, a time 11 table based on the number of years that have already elapsed since Brown. The court in Watson said: Given the extended time which has elapsed, it is far from clear that the mandate of the second Brown deci sion requiring that desegregation proceed with “all deliberate speed” would today be fully satisfied by types of plans or programs for desegregation of public educational facilities which eight years ago might have been deemed sufficient. 373 U. 8. 526, 530. The plan before the court also falls far short of the mini mal standards set for desegregation plans on June 18, 1964, in Stell v. Savannah-Chatham Board of Education; Arm strong v. Board of Education of Birmingham; and Davis v. Board of School Commissioners of Mobile. In these deci sions, issued after the lower court’s decision and the filing of this appeal, this Court again condemned desegregation at a grade per year pace, and held that plans beginning in the 12th grade must also end segregation in the first grade as to students entering the system for the first time so that the bi-racial system is not perpetuated. Moreover, this Court said in Stell v. Savannah-Chatham, supra: . . . a necessary part of any plan is a provision that the dual or bi-racial school attendance system, i.e., separate attendance areas, districts or zones for the races, shall be abolished contemporaneously with the application of the plan to the respective grades when and as reached by it. More recently this Court in Gaines v. Dougherty County Board of Education, No. 20984 (July 31, 1964) required a start in grades one, two and twelve, with at least three addi tional grades to be added to the plan yearly “ . . . in order that every Negro child in the Dougherty County School System have at least an opportunity to enjoy a desegregated 12 education during Ms school career.” As to grades being desegregated, each child may choose the nearest formerly Negro or white school. Such choice must be granted unless the school chosen is already crowded with pupils living closer to that school, or until the Board submits a plan assigning all pupils to the schools nearest their residence. Clearly, the Board’s plan fails to meet this Court’s mini mal standards as to speed and coverage, but a closer look at the plan reveals not simply a nine year delay in the effectuation of the transfer plan but further, a twenty year delay in the effectuation of desegregation in the system of public education. The plan, which has been accepted by the court below, insures no rights, and provides merely for a grade by grade opportunity to transfer from one school to the other, beginning with grade 12. Only when the trans fer program reaches grade one—some nine years later— does appellee’s “desegregation plan” apply to entering stu dents automatically and on a nonracial basis. At that point, however, it would take eleven more years before all grades were affected by the unitary nonracial admissions. This spotlights what is perhaps the most glaring defi ciency of the plan: that it is not a desegregation plan at all—only a transfer plan with even freedom of choice as signments effectively postponed for nine more years. As a nine year transfer plan, the Bibb County plan not only post pones the commencement of desegregation, but does so by a method which has been explicitly rejected by the courts. The burden of getting out of the segregated arrangement is placed upon the student; if no one applies for transfer, nothing at all is done: all children are reassigned to the same schools that they are now attending. This burden is weighted with variations of the onerous transfer requirements frequently condemned by this Court. For example, transfer applications must be made on a form 13 obtainable only at the Board’s office (R. 148). The form must be signed by the pupil, his parents or guardian and a witness (R. 150).1 The Board Superintendent studies the transfer applicant’s grades, including achievement scores, his personality as indicated by his “attitude”, “cooperation” and “stability” (R. 152), considers eligibility, availability and school capacity (R. 153-54). He may call in the student and parents for a conference to discuss irregularities in the application, or to point out why the transfer is not in the pupil’s best interests (R. 155), and may deny applica tions of pupils deemed in “disciplinary difficulty” (R, 158).2 It will not be surprising that most Negro parents and stu dents will hesitate to exercise their opportunity to transfer to white schools after considering the difficulties of nego tiating these administrative obstacles, none of which are required of white children assigned to white schools as a matter of course.3 The inadequacy of the plan becomes more glaring and more manifestly calculated when placed in the context of the Board’s inactivity, delay and express opposition to the desegregation of the Bibb County Public Schools. The 1 “Onerous requirements such as the notarization of applications for assignment are not to be condoned.” St ell v. Savannah-Chatham Board of Education, supra. 2 Special criteria, including special standards of scholastic achievement, personality or conduct applied only to transfer ap plicants have been condemned in Stell v. Savannah-Chatham Board of Education, supra; Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963). 3 Preliminai’y reports indicate that only 34 Negroes obtained transfer application forms as provided in ^he Board’s plan. Twenty-nine forms were returned, and while 28 applications were approved (one was denied for scholastic reasons), four have dropped out for reasons which include discouragement by teachers, and one has moved out of the district. Thus, at this point, with school opening still a month away, only 25 of the 13,000 Negro students in the system will be attending desegregated schools. 14 Board repeatedly refused to initiate a clarification of the state law and its own authority, despite petitions by citi zens of Bibb County. After the state legislature finally lifted its own statutory prohibition of desegregation, the Board again dragged its feet, this time by seeking a declara tory judgment on the question of its authority under a Charter provision inconsistent with the newly defined state law. Even after the Superior Court cleared the way for affirm ative action, the Board chose instead to await the com pulsion of a court order, voting to record a resolution of a majority of the Board that the latter continue its present segregated system of operating its schools because of a conviction that “integration of the races in the public schools of Bibb County will be detrimental to both the colored and white races” ; and because they felt “the vast majority of both our colored and white citizens of Bibb County are satisfied with the present system of operation of our schools, . . . ” (B. 25). The Board’s plan, apparently prepared with these convic tions and feelings in mind, clearly evidences a desire and intent to replace total segregation with token integration. The court below, however, refused to condemn the Board for their frankness, stating: “Independence of thought is encouraged, and freedom of speech is guaranteed” (B. 291).4 4 This Court’s opinions have uniformly condemned the failure of school boards to act because they felt segregation should be retained, and at least two other circuits have taken a less charitable view of Board statements of disagreement than did the court below. In Goss v. Board of Education of Knoxville, Tennessee, 301 F. 2d 164, 167 (6th Cir. 1962), the Court said: “The position of the Board that it would continue to operate under these invalid laws, until compelled by law to do otherwise, does not commend itself to the Court,. . . ” In Bell v. School Board of Powhatan County, Virginia, 321 F. 2d 494, 499 (4th Cir. 1963), the Court, noting the declaration of 15 Appellants submit that while the Board may disapprove of the Supreme Court’s decision, they have no' right to disobey. Candor, whatever its virtues, is not compliance. Compliance in this case requires the Board to produce a desegregation plan meeting the minimal standards recently summarized by this Court in Stell v. Savcmwah-Chatham Board of Education, but clearly set forth in decisions avail able when this case was acted on below.5 Thus, the pace of desegregation may not be set at a snail’s pace because of fear that a faster speed will result in community dis orders. Cooper v. Aaron, 358 U. S. 1 (1958). As stated in the Savannah decision, it is the lot of district courts to act: “ • • • where school boards do not voluntarily follow the Constitution with relation to school operations, and once suits are filed in the District Court, to impose the burden on the school boards of justifying delay in the required full implementation of the constitutional rights involved.” The Bibb County Board has had ample opportunity to initiate voluntary desegregation and there is no doubt that if a plan had been offered, it would have received the Board counsel in oral argument that: “If it is our duty to en courage integration, then we have violated our duty!,” concluded sternly, “The School Board has indeed violated its duty.” 5 Augustus v. Board of Public Instruction, 306 F. 2d 862 (5th Cir. 1962); Bush v. Orleans Parish School Board, 308 F. 2d 491 (5th Cir. 1962). Even in injunctions ordered by this Court pending appeal, segregated schools were enjoined, and the school boards required to either completely end segregation with respect to one grade, Stell v. Savannah-Chatham County Board of Edu cation, 318 F. 2d 425 (5th Cir. 1963), or accept transfer applica tions in all grades. Armstrong v. Board of Education of Birming ham, 323 F. 2d 333 (5th Cir. 1963); Davis v. School Commissioners of Mobile County, 322 F. 2d 356 (5th Cir. 1963). 16 cooperation of the plaintiffs (E. 322-25), local Human Eelations groups (E. 328), and this Court. See Glynn County Board of Education v. Gibson, ----- F. 2d ----- (June 18, 1964), where this Court noted the Board’s efforts to voluntarily begin desegregation and accordingly with held injunctive relief. But the Board, with a full complement of legal talent, has chosen for ten years to answer requests and petitions for desegregation with silence (E. 322-23), committees (E. 334-35), and frivolous legal action (E. 345-51). It is not the purpose of this appeal to determine the Board’s good faith in the past or present, nor may good faith be made an issue where, as here, the Board submits a desegregation plan, ten years after Brown, which will require twenty years before providing the degree of desegregation which has been obtained this year in many communities;6 and 6 In South Carolina, the Charleston and Greenville Boards have been ordered to grant free transfers in all grades. Brown v. School District No. 20, 226 F. Supp. 819 (B. D. S. C. 1963), aff’d 328 F. 2d 618 (4th Cir. 1964); Whittenberg v. School District of Green ville County, S. C., Civ. No. 4396 (W. D. S. C.). In North Carolina, the Durham Board has been ordered to per mit freedom of choice assignments in all grades effective in 1964. Wheeler v. Durham City Board of Education, Civ. No. C-54-D-60 (M. D. N. C.). Freedom of choice plans have also been placed in effect in several other North Carolina communities after school desegregation suits were filed. These include: Jeffers v. Whitley (Caswell County), 309 F. 2d 621, 629 (4th Cir. 1962); Belo v. Randolph County Board of Education, Civ. No. 209-G-63 (M. D. N. C .); DuBissette, et al. v. Cabarrus County Board of Education (M. D. N. C.) ; Eaton v. New Hanover County, 1022 (E. D. N. C.) ; Ford v. Cumberland County Board of Education, No. 668 (E. IX N. C .); Gill v. Concord City Board of Education, No. C-223-S-63 (M. D. N. C.) ; Gilmore v. High Point Board of Education (M. D. N. C.) No. C-51-G-63; Griffith v. Board of Education of Yancey County, Civ. No. 1881 (W. D. N. C .); Zigler v. Reidsville Board of Education, C-226-G-62 (M. D. N. C .); Turner v. Warren County Board of Education 1482 (B. D. N. C.) ; Sowers v. Lexington City Board of Education, C-20-S-64 (M. D. N. C.). 17 which will be granted in no more than four years in Albany, Georgia, Gaines v. Dougherty County Board of Education, supra, and will be realized in sis years in several Georgia and Alabama communities even if plans presently in opera tion are not accelerated.7 Appellants contend that neither the Board nor the district court have provided them and their class the relief to which, under applicable decisions, they are presently entitled. In similar circumstances, this Court has repeatedly stated the sequence of responsibility now rests with the appellate courts. Rippy v. Borders, 250 F. 2d 690, 693 (5th Cir. 1957) ; Armstrong v. Board of Education of Birmingham, supra; Hall v. Hon. E. Gordon West, —-— F. 2 d ----- (5th Cir., July 9, 1964). Counsel for appellees argued below In Tennessee desegregation now encompasses all grades in Goss v. Board of Education of Knoxville, No. 3984 (E. D. Tenn.); Boyce v. County Board of Education of Humphreys County, Tenn., Civ. No. 3130 (M. D. Tenn.); Vick v. County Board of Education of Obion County, Tenn. (Civ. No. 1259) (W. D. Tenn.). In Virginia a free transfer plan has been approved in Richmond. Bradley v. School Board of City of Richmond, Virginia, Civ. No. \ 3353 (E. D. Va.). The above cases are intended to be illustrative rather than ex haustive. 7 Savannah and Brunswick, Georgia are in the second year of desegregation according to a transfer plan which will reach all grades by 1968. See: Stell v. Savannah-Chatham Board of Edu cation, — F. 2 d ----- - (5th Cir., June 18, 1964). In Alabama, similar plans are now in effect in Birmingham, Mobile, Gadsden, Huntsville, Madison County and Montgomery. Significantly for the present case, in all but Mobile and Birming ham, initial desegregation plans encompass four grades. See: Arm strong v. Board of Education of Birmingham, - ---- F. 2d ------ (5th Cir., June 18, 1964); Mobile, Davis v. Board of School Commissioners of Mobile County,----- F. 2 d ------ • (5th Cir., June 18, 1964) ; Miller v. Board of Education of Gadsden, Alabama, Civ. No. 63-574 (N. D. A la.); Hereford v. Huntsville Board of Education, Civ. No. 63-109 (N. D. A la.); Bennett v. Madison County Board of Education, Civ. No. 63-613 (N. D. A la .); Carr v. Montgomery County Board of Education, Civ. No. 2072-N (M. D. Ala.). 18 that the Board is not a litigant in this case but a supplicant seeking “guidance and direction in a delicate and difficult field” (R. 309). Experience and precedent indicate that this Court’s guidance and direction should include instruc tions to the court below to enter an order directing the Board to promptly file a similar plan to those recently required in Stell v. Savannah-Chatham, supra, and Gaines y. Dougherty County Board of Education, supra-, and that such relief be made effective in January 1965, so that the Bibb County Board may at last be placed in step with those in Savannah, Brunswick, Albany and Atlanta, Georgia. CONCLUSION W h e r e fo r e , for all the foregoing reasons, appellants request that the order of the court below approving the appellee Board’s plan be reversed with directions to enter an order requiring the Board to promptly submit a plan which meets the minimal standards set for such plans in the Savannah, Georgia, and Birmingham, Alabama cases decided by this Court on June 18, 1964, and requiring im plementation in January 1965 of desegregation according to the terms of this Court’s opinion in Gaines v. Dougherty County Board of Education, supra. Respectfully submitted, D onald L. H ollow ell 859% Hunter Street, N. W. Atlanta, Georgia J ack G reenberg C onstance B a ker M otley D er r ic k A. B e l l , J r . 10 Columbus Circle New York, New York 10019 Attorneys for Appellants. 19 Certificate of Service The undersigned, one of counsel for appellants, hereby certifies that on this day of August, 1964, he served three copies of the Brief for Appellants upon C. Baxter Jones, Esq., attorney for appellees, at 1007 Persons Build ing, Macon, Georgia, by depositing same in the United States mail, air mail, postage prepaid. Attorney for Appellants 38