Alice Love v. Dade County School Board Brief and Appendix in Opposition to Petition for Writ of Certiorari

    tn tiie
Supreme Court

of tiie
Um teb States!

OCTOBER TERM, 1971

NO. 7 1 - 9 1 8

ALICE LOVE, etal,

vs.
Petitioner,

DADE COUNTY SCHOOL BOARD, etal,
Respondent.

BRIEF AND APPENDIX 
IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

FRANK A. HOWARD, JR. 
1410 N. E. Second Avenue 
Miami, Florida 33132 
Attorney for Respondent

JAMES T. SCHOENBROD 
1410 N. E. Second Avenue 
Miami, Florida 33132 
Of Counsel

MIAMI REVIEW  —  371-4853 —  377-3721



INDEX

Page

Statement of the C ase____________________________  1-4

Argument

Reasons for Denying the Writ

1. The Court Should Refuse to Review the
Adequacy of the Evidence Supporting the 
Orders of the District Court._____________  5-7

2. The Rulings Below Were Consistent,
Rather Than in Conflict, with this Court’s 
Decisions. ____________ ____________________ 7-11

Conclusion ______________________________________   12

Certificate of Service____________________________  13

Appendix —

Order Approving Interim Desegregation Plan 
for Dade County Public Schools —  dated 
August 29, 1969 _________      1-6

Excerpts from testimony of Edward L. Whig- 
ham (February 2, 1970) ___________________  7-10

Excerpts from minutes of Dade County School 
Board meeting of May 19, 1971 —  filed May 
26, 1971 __________________________________  11-12

Excerpt from Report of the Dade County 
School Board to the United States District 
Court —  dated November 10, 1971 ________ 13-24



II

TABLE OF AUTHORITIES

CASES
Page

Davis v. School Commissioners of Mobile County,
402 U.S. 33, 28 L.Ed.2d 577 (1971) ______  5, 7, 8, 9

Davis v. School Commissioners of Mobile County,
430 F.2d 883 (5th Cir. 1970) _________________ 10

General Talking Pictures Corporation v. Western 
Electric Company,

304 U.S. 175, 178 (1938) ____________________  6

Green v. County School Board of New Kent County,
391 U.S. 430, 20 L.Ed.2d 716 (1968) _______ _ 2, 3,10

N.L.R.B. v. Amalgamated Clothing Workers of 
America,

430 F.2d 966 (5th Cir. 1970) ________________ 4

Pate v. Dade County School Board,
434 F.2d 1151 (5th Cir. 1970), cert, denied, 402 
U.S. 953, 28 L.Ed.2d 123 (1971) ____________  3,10

Swann v. Charlotte-Mecklenburg Board of 
Education,

402 U.S. 1, 28 L.Ed.2d 554 (1971)______ 4, 5, 6, 7, 8,
9,11,12

OTHER AUTHORITIES

Robertson and Kirkham, Jurisdiction of the Supreme
Court of the United States, at p. 558 _______ 6



Suprem e C o u rt
of ttje

Untteb States?
OCTOBER TERM, 1971

NO. 7 1 - 9 1 8

ALICE LOVE, etal,

vs.
Petitioner,

DADE COUNTY SCHOOL BOARD, etal,
Respondent.

BRIEF AND APPENDIX 
IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

The petitioners’ statement of the case does not 
adequately reflect the flavor or history of this litigation, 
as the context for the points now being urged as grounds 
for the exercise of this Court’s discretionary jurisdiction. 
Without attempting a complete restatement, we offer the 
following as background and supplement.

The litigation began in 1969 by the filing of a suit 
against the respondent School Board by a citizen named



2

Pate, who sought to enjoin the Board from implementing 
a desegregation plan it had approved for the 1969-1970 
school year. The School Board invoked federal jurisdiction 
over its desegregation efforts by removing the case to the 
U.S. District Court for the Southern District of Florida. 
The Board had previously, over a period of approximately 
ten years, and not under judicial compulsion, taken various 
measures at a moderate rate to desegregate the Dade 
County public schools. This history was succinctly reviewed 
by the District Judge in his first order approving the 
Board’s plan on an interim basis (Appendix 1-6) and 
further developed in testimony later (Appendix 7-10).

This first plan was recognized by the District Judge 
as not adequate to meet constitutional standards, and was 
approved as an interim measure only, with directions for 
immediate further planning to accomplish a unitary school 
system. The case progressed through a labyrinth of proceed­
ings including testimony, plans and modifications submitted 
by the Board, and a number of orders entered by the 
District Judge desegregating the Dade County public 
schools in various respects. Finally, in June and July, 1970 
the District Court entered orders reviewing a final desegre­
gation plan filed by the Board. The District Judge, while 
finding that the plan reflected “ a substantial effort, made 
in good faith, to create a unitary school system” , held it 
not yet sufficient, and therefore directed a great many 
modifications, and declared the plan, as so modified, to 
constitute a unitary system of public education for Dade 
County.

On appeal, the Court of Appeals for the Fifth Circuit 
measured the Board’s plan, as modified by the District 
Court, against the six criteria established by this Court in 
Green v. County School Board of New Kent County, 391



3

U.S. 430, 20 L.Ed. 2d 716 (1968), and in an exhaustive 
opinion required extensive further modifications, but only 
to the student assignment elements of the plan. The other 
five criteria set forth in Green were found to have been 
met, and the Court of Appeals therefore held that the total 
plan as modified by its decision would effectively desegre­
gate the Dade County school system. Pate v. Dade County 
School Board, 434 F.2d 1151 (5th Cir. 1970), cert, denied, 
402 U.S. 953, 28 L.Ed. 2d 123 (1971). (The orders of the 
District Court referred to above are reprinted in full as 
appendices to the report of the decision of the Court of 
Appeals.)

The School Board applied to this Court for review on 
certiorari, complaining of the summary disposition of the 
case by the Fifth Circuit, and of the massive extent of 
the rezoning, pairing and grouping required, which in 
turn necessarily required extensive additional busing.1

This Court denied certiorari on May 4, 1971, and on 
May 26, 1971 the Board filed with the District Court its 
1971-1972 Pupil Assignment Plan, which (as petitioners 
concede) affirmatively moved to reduce predominantly 
black enrollment in certain schools. The Board in approving 
this plan, although its school system had been held fully to 
meet constitutional standards, further authorized addi­
tional busing, and looked to the purchase of still more buses 
for future desegregation steps, as budget resources would 
permit (Appendix 11-12). The Board has since continued 
its planning and efforts for improvements in the county 
school system, as will be pointed out later in the Argument 
portion of this brief.

Petition for a Writ of Certiorari to the United States Court of 
Appeals for the Fifth Circuit, filed in Dade County School Board v. 
Herbert Pate, case No. 936, October Term, 1970.



4

At this juncture, certiorari having been denied by 
this Court, and Swann v. Charlotte-Mecklenburg Board of 
Education., 402 U.S. 1, 28 L.Ed. 2d 554 (1971) and its 
companion cases having been decided in April, the District 
Judge entered his order of June 14, 1971, recognizing his 
continuing responsibility to assure that the school system 
did not revert to dual status, and giving all parties an 
opportunity to object to the Board’s 1971-1972 Pupil As­
signment Plan (Pet. Appendix la ) . The petitioners at 
this point first objected to the Plan, and then sought to 
reopen the entire case for evidentiary hearings de novo 
“ to determine whether or not the Dade County school 
system is unitary” . The District Court approved the Board’s 
plan, and on June 30, 1971, after considering the peti­
tioners’ contentions in the light of the Swarm opinion, the 
Court concluded that no new evidentiary hearings were 
required and denied the motion (Pet. appendix 8a).

Petitioners appealed, making the same arguments to 
the Court of Appeals as are now offered to this Court. After 
a month of consideration upon full briefs the Court of 
Appeals affirmed without opinion, referring to its Local 
Rule 21,2 and to its explication of that Rule in N.L.R.B. v. 
Amalgamated Clothing Workers of America, 430 P.2d 966 
(5th Cir. 1970).3

2Rule 21 provides: “ When the court determines that any one or 
more of the following circumstances exists and is dispositive of a matter 
submitted to the court for decision: (1) that a judgment of the district 
court is based on findings of fact which are not clearly erroneous; (2) 
that the evidence in support of a jury verdict is not insufficient; (3) 
that the order of an administrative agency is supported by substantial 
evidence on the record as a whole; (4) that no error of law appears; 
and the court also determines that an opinion would have no preceden­
tial value, the judgment or order may be affirmed or enforced without 
opinion.”

3This case is incorrectly cited in petitioners’ appendix. It shows 
the caution observed by the Fifth Circuit in employing this local rule 
to affirm without opinion.



5

ARGUMENT

REASONS FOR DENYING THE WRIT

1. The Court Should Refuse To Review The Adequacy Of
The Evidence Supporting The Orders Of The District
Court.

Both the District Judge, who had lived with this case 
for two years, and the Fifth Circuit, certainly the most 
experienced Court of Appeals in the nation in desegrega­
tion cases, have held the Dade County school system effec­
tively desegregated, after monumental efforts by all con­
cerned with the matter since 1969. Furthermore, the orders 
of the District Court now attacked by petitioners, were 
entered in full light and after careful consideration of this 
Court’s decisions in Swann v. Charlotte-MecJclenburg Board 
of Education, supra and Davis v. School Commissioners of 
Mobile County, 402 U.S. 33, 28 L.Ed. 2d 577 (1971).

Petitioners now, in attempting to force a reopening of 
the case, are in actuality asserting that the District Court’s 
order of June 30, 1971, holding that respondent’s school 
system is unitary under the guidelines laid down in Sivann, 
is not supported by the evidence. The issue correctly stated, 
then, is whether the conclusion of the District Court is sup­
ported by substantial evidence.

Petitioners focus on the language in Swann indicating 
a “presumption against schools that are substantially dis­
proportionate in their racial composition” , and argue that 
neither of the courts below addressed itself to the issue. 
This argument simply overlooks the plain terms of the Dis­
trict Court’s order of June 30, 1971. There can be no



6

doubt that the District Court did consider Swann, and it 
is clear that the District Court’s denial of petitioners’ 
motion for an evidentiary hearing de novo was an adjudica­
tion that in the light of the Swann case, the respondent 
had sustained its burden of proof. Thus, the question is 
nothing more than whether the evidence was sufficient to 
justify the conclusion of the court. There can be no doubt 
that under the precedents of this Court, certiorari will not 
be granted “merely to review the evidence or inferences 
drawn from it.”  See General Talking Pictures Corporation 
v. Western Electric Company, 304 U.S. 175, 178, 82 L.Ed. 
1273 (1938) and cases cited. See also Robertson and Kirk- 
ham, Jurisdiction of the Supreme Court of the United 
States, at p. 558. Petitioners would have this Court review 
hundreds of pages of testimony and exhibit piled upon 
exhibit to determine whether this mass of evidence contains 
substantial justification for the considered opinion of a 
trial court that the respondent had satisfied its burden of 
proof; that is, the burden of justifying the continued exis­
tence of some one-race schools in Dade County and the fact 
that approximately 24 % of the black students in the county 
would attend black or substantially all-black schools during 
the 1971-1972 school year. Petitioners ask this Court to 
substitute the petitioners’ evaluation of the evidence for 
that of the District Court.

A school desegregation case presents a particularly 
inappropriate instance for Supreme Court review of a trial 
court’s evidentiary determination. This Court recognized in 
Swann that in determining the constitutionality of pupil 
assignment plans “ . . .  we must of necessity rely to a large 
extent, as this court has for more than 16 years, on the 
informed judgment of the district courts in the first in­
stance and on courts of appeal.”  Secondly, the thrust of



7

this Court’s decisions since Brown I has been to place 
primary responsibility on the district courts to fashion 
equitable remedies, that discretion being limited by the 
decisional guidelines laid down by this court in such cases 
as Swann. Where, as here, a district court has explored 
with great thoroughness the possibilities in a particular 
community for providing desegregated public education 
and has adopted a complex plan for the operation of a large 
public school system in a unitary manner, and has held 
such plan to be consistent with a school board’s obligations 
under the law of the land as most recently stated in the 
Swann case, an application to review the adequacy of the 
evidence to support the trial court’s conclusions, parti­
cularly where such court’s findings have been completely 
affirmed by a court of appeals, should not be entertained. 
It was the function of the Fifth Circuit to review the suf­
ficiency of the evidence, and by its affirmance that court 
obviously held that the District Court’s orders were sup­
ported by substantial evidence.

2. The Rulings Below Were Consistent, Rather Than In 
Conflict, With This Court’s Decisions.

We address ourselves now to the alleged “ conflict” 
upon which petitioners seek to invoke the jurisdiction of 
this Court. As we read the opinions in Swann and Davis, 
supra, the essence of the cases is the Court’s delineation of 
permissible remedial techniques available to the district 
courts, as part of their traditional equity jurisdition, after 
local school authorities have demonstrably failed in their 
affirmative obligations to establish a unitary system eli­
minating racial discrimination. The Court in Swann made 
it very clear that judicial authority “ enters only when 
local authority defaults” , and then outlined the range of 
tools available to the lower courts as corrective devices.



8

The implicit theory of petitioners’ argument is that 
since non-contiguous zoning, cross-busing, and other reme­
dial techniques may be used by the district courts, there­
fore they should be used —  and therefore they must be 
used. It is a doctrinaire, unspoken and specious form of 
reasoning, which then enables petitioners to claim that 
since the lower courts in this case did not employ every 
tool in the kit, their judgments with respect to the unitary 
character of the Dade County school system must perforce 
be in “ conflict” with this Court’s decisions in Swann and 
Davis. I f petitioners are correct, then the flexibility and 
breadth of powers in the district courts which have so 
often been stressed by this Court are made illusory. Instead 
of being able to cope in differing and innovative ways 
with the manifold problems of desegregating school sys­
tems in different areas, the district courts would be frozen 
into a checklist procedure of using every weapon in the 
desegregation arsenal, regardless of local conditions, resi­
dential patterns, educational values, or any other factor 
of local significance. This cannot be what the Constitution 
commands, or what this Court intends.

The differences between the situations in Swann and 
Davis, and the posture of the case at bar, are many and 
obvious. Swann dealt with a recalcitrant school board which 
had persistently refused to accept its obligations to dis­
establish a dual school system, and whose elementary 
school plan had finally to be mandated by the district 
court. There was no holding that the Charlotte-Mecklen- 
burg board had achieved a unitary system; rather, the 
judgment of the district court was the reverse. Thus, the 
court was required to use its equitable powers to fashion a 
suitable remedy for past wrongs.



9

As has been shown, the Dade County School Board 
on its own initiative undertook the task of desegregating 
its schools long before this litigation began. The Board 
itself invoked the jurisdiction of the federal courts to 
protect and aid this effort, and made good faith and sub­
stantial efforts to cooperate and comply with the evolving 
requirements of law in respect to faculty desegregation, 
majority-to-minority transfers, and other criteria devel­
oped by this Court and the Fifth Circuit. The Board’s 
desegregation plan, after modifications by both courts be­
low, was held effective to desegregate the Dade County 
school system. Indeed, the Board has not been content to 
rest upon its unitary status even after the latest decisions 
in its favor, but has continued to work with the Bi-Raeial 
Committee appointed by the District Court, and has created 
a new department and staff, headed by a district super­
intendent, especially for the purpose of developing and 
implementing long-range further desegregation actions.4

The point here is, in contrast to the situation in Swann, 
that at the time of the hearings upon petitioners’ motion 
for de novo proceedings, there remained with the District 
Court only the duty to determine if  the Board’s 1971-1972 
Pupil Assignment Plan showed reversion to or toward a 
state-imposed dual school system. In finding that the 
motion was without merit, the District Judge, as well as 
the Court of Appeals, had the full benefit of this Court’s 
opinions in Swann and Davis, coupled with the intimate 
familiarity of both lower courts with the details and 
problems of this school system.

♦Report to Court (November 10, 1971). This was a comprehensive 
status report on the school system filed in compliance with directions 
of the District Court. Petitioners used statistics from the report in their 
appendix. We therefore feel free to reprint in the appendix to this brief 
the portion showing the establishment and functions of the Board’s new 
desegregation office and staff (Appendix 13-24).



10

Petitioners attempt to avoid the clear purport of the 
rulings below by means of two themes. The first consists 
of their assertion that the Court of Appeals, in its August, 
1970 Pate decision modifying and approving the Dade 
County desegregation plan, “ explicitly relied”  upon its 
decision in Davis v. School Commissioners of Mobile County, 
430 F.2d 883 (5th Cir. 1970), which was later reversed by 
this Court in its decision accompanying the Swann case. 
There are several answers to this. First, it is clear that 
the Court of Appeals in its Pate opinions only referred to 
its Davis decision, among others, as showing the approach 
the court has formulated in reviewing desegregation 
plans —  that is, to measure any given plan against the 
six criteria set forth in Green v. County School Board of 
New Kent County, supra. The opinion nowhere else refers 
to the Davis case. Secondly, the Pate opinion does not speak 
in terms of the “ neighborhood school” , and petitioners’ 
statements that the Fifth Circuit was governed by that 
concept are only speculation. Finally, when one turns to 
this Court’s decision in Davis, it is pretty clear that the 
Court was concerned with the peculiar geographic division 
of the races in Mobile, and reversed the Court of Appeals 
because it had felt constrained to treat the two segments 
of the system in isolation, resulting in a very high per­
centage of all-Negro or nearly all-Negro schools. No such 
split in geographical race location appears in Dade County, 
and no such easy solution to the problem of one-race schools 
as simply busing students east-west across a dividing high­
way.

5See Pate v. Dade County School Board, 434 F.2d 1151. 1152 (5th 
Cir. 1970).



11

Petitioners’ second theme concerns the continued exist­
ence of some remaining schools containing all or predomin­
antly one race. We disagree first with their rather 
extravagant statement that the entire school system is 
“presumed unconstitutional” by this fact alone. The Court 
in Swann enjoins close scrutiny of such schools, raises a 
presumption against their continued existence, and places 
the burden on school authorities to show that assignments 
involving such schools are genuinely non-diseriminatory. 
But Swann very clearly refused to say that mathematical 
racial balancing is a matter of substantive constitutional 
right, and just as clearly did say that the existence of 
some small number of racially disproportionate schools 
is not in and of itself the mark of a system practicing 
segregation by law.

We next point out that in the past two years, through 
the combined efforts of the School Board and the lower 
courts, the percentage o f black enrollment remaining in 
substantially all-black schools (85%-100%) has been cut 
by over h alf— from 58% to 23% — as the petition itself 
discloses. Only 15 of 218 schools remain predominantly 
all-black, and there is no warrant for petitioners’ asssump- 
tion that this will continue indefinitely. If anything, the 
Board’s continued efforts beyond the strict limits of its 
approved system as now operating indicate that racially 
disproportionate schools will continue to be reduced. In any 
event, the remaining disproportionate schools have clearly 
survived the judicial scrutiny of the District Court and 
the Court of Appeals, in the light of Swann, and those 
courts retain jurisdiction to review further actions of the 
Board.



12

CONCLUSION

The District Court and the Court of Appeals have 
both evaluated petitioners’ contentions and have rejected 
them, with full advantage of the Swann guidelines and 
with comprehensive knowledge of this large and complex 
school system, its history and its progress. Petitioners have 
made no showing of real conflict as a basis for review on 
certiorari, and the petition should be denied.

Respectfully submitted,

FRANK A. HOWARD, JR. 
1410 N.E. Second Avenue 
Miami, Florida 33132 
Attorney for Respondent

JAMES T. SCHOENBROD 
1410 N.E. Second Avenue 
Miami, Florida 33132 
Of Counsel



13

CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the 

above and foregoing Brief in Opposition to Petition for 

Writ of Certiorari have been served upon all parties re­

quired to be served, service having been effected by mail, 

in accordance with paragraph 1 of Rule 33 of the Rules 

of the Supreme Court of the United States, to the follow­

ing named attorneys of record, on the ______  day of

March, 1972.

FRANK A. HOWARD, JR. 
1410 N.E. Second Avenue 
Miami, Florida 33132

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

CHARLES MINER 
State Board of Education 
Tallahassee, Florida 32304

DREW S. DAYS, III 
10 Columbus Circle
New York, New York 10019

JAMES W. MATTHEWS 
5022 N. W. Seventh Avenue 
Miami, Florida 33127 Blomqvist & Davant 

Biscayne Building 
Miami, Florida 33130

FRED DAVANT 
Wicker, Smith, Pyszka,

IRMA ROBBINS FEDER TOBIAS SIMON
RICHARD YALE FEDER 1492 S. Miami Avenue 
11th Floor, Roberts Building Miami, Florida 33130 
28 West Flagler Street 
Miami, Florida 33130



APPENDIX



APPENDIX

[ T i t l e  O m i t t e d ]

ORDER APPROVING INTERIM DESEGREGATION 
PLAN FOR DADE COUNTY PUBLIC SCHOOLS

In 1956, following the landmark school integration 
cases of Brown v. Board of Education, 347 U.S. 483 (1954) 
and 349 U.S. 294 (1955), a lawsuit was filed in the United 
States District Court in the Southern District of Florida. 
The case was styled Gibson v. Dade County School Board 
and sought to effect the integration of the Dade County 
schools. On March 17, 1960 United States District Judge 
Joseph P. Lieb entered an order providing for the imple­
mentation of a freedom of choice plan in the schools. This 
order also1 stated

“ It is further ORDERED, ADJUDGED AND 
DECREED that the Court retains jurisdiction of 
this cause for such time as may be necessary to 
put the plan herein provided into operation and 
for determination as to whether further proceed­
ings are necessary.”

From the time of the entry of this order to the present 
this case has laid dormant. In the interim the integration 
of the Dade County School System has proceeded at a 
moderate rate. At the close of the 1968-69 school year there 
were 42 all negro schools in the system out of a total of 
217 schools. On July 1, 1969 the Department of Health, 
Education & Welfare, charged by Congress in Title 42 
U.S.C. §2000 with administering federal funds to aid 
public education and to assist in the process of desegregat­
ing public schools, notified the Dade County School System 
that it was not in substantial compliance with Title VI of



App. 2

the 1964 Civil Rights Act which concerns desegregation. 
At the time of the notification HEW stated:

“ It is expected that the Dade School System 
will develop and implement a plan which will 
eliminate the dual school structure in the system 
by no later than September 1970 and that those 
steps toward that end which are administratively 
feasible will be taken by September 1969.”

In accordance with this direction the school board 
obtained the services of the Florida School Desegregation 
Consulting Center, a federally funded center at the Univer­
sity of Miami, The Center studied the Dade System for 
approximately 1 month and on July 23, 1969 submitted 
an Interim Desegregation Plan for the 1969-70 school year. 
The School Board approved this plan on July 25 with two 
changes. The rejected the recommendation that there be 
pairing of two groups of elementary schools in South Dade 
County and they eliminated the all black Mays Junior- 
Senior High School. The revised interim plan was approved 
by HEW on August 4 pending receipt o f a final plan by 
February 1, 1970.

At this point the school system began making prepara­
tions to operate under the revised interim plan for the 
1969-70 school year. Certain portions of the plan met with 
public opposition as did certain steps taken to implement 
the plan. This opposition culminated in the filing of several 
lawsuits in the Eleventh Judicial Circuit of the State 
of Florida. The various plaintiffs were the parents of 
school children in the Dade system and the defendants 
were uniformly the Dade County School Board. The first 
of these suits attacked the Board’s action with regard to 
the elimination of the all black Mays school. It is styled 
Pate v. Dade County School Board. The Board’s action



App. 3

was alleged to be arbitrary and capricious and also as 
taken in violation of Florida Statute 286.011, known as 
the “ government in the sunshine law.”  This law requires 
that any official action taken by an agency of the State 
of Florida be taken in public proceedings and that a written 
record of such procedings be made. The school board 
petitioned this Court for removal of the Pate case on 
August 25, 1969, alleging that the case was one of ex­
clusive federal jurisdiction. At 8:30 a.m. on August 27, 
the court heard a motion to remand and under the doctrine 
of England v. Louisiana State Board of Medical Examiners, 
375 U.S. 411 (1963) remitted the case to the State Court 
for determination of state law issues and retained jurisdic­
tion of the case for determination of any federal questions. 
At 9:00 p.m. on August 27, Circuit Judge David Popper 
entered a temporary injunction restraining the School 
Board from implementing its plan of July 25 as it related 
to Mays School. The basis of the injunction was Judge 
Popper’s finding that the “government in the sunshine 
law” had been violated and that the action of the School 
Board in regard to Mays was void. The effect of this 
ruling was to require Mays to open as an all black school 
for the school year 1969-70.

At 3:30 p.m. on August 27, the Court considered the 
request of the School Board that the Court exercise juris­
diction in the Pate case. Based on the effect of the State 
Court’s ruling, which negated the immediate elimination 
of an all black school, this Court accepted jurisdiction. 
Other factors which dictated the exercise of jurisdiction 
were the issuance of another injunction negating a separate 
portion of the Board plan and the fact that eventually 
under the State Court ruling, all action taken by the Board 
on July 25, when the plan was approved, would be held 
void as being in violation of the sunshine law. The State



App. 4

Court injunctions, of course, ran only in favor of the 
particular plaintiffs before that court. The forseeable re­
sult was that after sufficient plaintiffs came before the 
State Court the entire plan would be voided. The voiding 
of an interim plan providing for more integration is un­
questionably a question for the Federal Courts. Finally, 
reiterating the last order in Gibson —  this court retained 
jurisdiction over the Dade County School System for the 
purpose of supervising its desegregation.

The case of Pardo v. Dade County School Board has 
been removed from the State Court to this Court. The case 
of Frank v. Dade County School Board haas been filed in 
this court. Both of these cases concern attacks on aspects 
of the interim plan and it is ORDERED that they be con­
solidated with the Pate case in accordance with oral rulings 
made this morning. It is further ordered that petitions to 
intervene on the said of the plaintiffs Filed by Webb, et 
al, Rosen, et al., Wolff, et al, Eagle, et al, and Reiter, 
et al., as parents of children attending Dade public schools 
are all granted. IT IS FURTHER ORDERED that peti­
tions to intervene on the side of the defendants filed by 
the Dade County Classroom Teachers Association and Love, 
et al., are granted.

At this point, after two days of testimony and argu­
ment, eighty-four hours before the seventh largest school 
system in the United States is due to open, this Court must 
approve a desegregation plan under which this system is 
to be operated for the 1969-70 school year. This plan must

1By virtue of the order of the Acting Chief Judge of the Southern 
District of Florida, William 0 . Mehrtens, the case of Gibson v. Board 
of Public Instruction of Dade County, Florida is transferred to this 
division and consolidated with the case of Pate v. Dade County School 
Board Presently in this division.



App. 5

be formulated in accordance with the Constitutional stand­
ards delineated by the Supreme Court and the Fifth Circuit 
Court of Appeals. In devising such a plan the Court is 
confronted with a dilemma. It is clear from Green v. 
County School Board of New Kent Comity, Virginia, 391 
U.S. 430 (1968), the most recent United State of America
v. Jefferson County Board of Education et a l , ____ F.2d
____ , (No. 27444, June 26, 1969, 5th Cir.) decision, and
numerous other Fifth Circuit decisions that the time for 
desegregation is now, that delays are no longer tolerable. 
The case of Adams v. Mathews, 403 F.2d 181 (5th Cir. 
1968) clearly states “ If in a school district there are 
still all-Negro schools . . . the existing plan fails to meet 
constitutional standards as established in Green.”  The only 
comprehensive plan before the Court is the previously dis­
cussed school board Interim Plan for the school year 1989- 
70. Regrettably, this plan contemplates the operation of 38 
all-black schools. Regardless of HEW’s approval the plan 
does not meet Constitutional standards. The Court gave 
careful consideration the the alternative plans but their 
implementation, if  Constitutional, was not feasible and 
would impair the operation of the Interim Plan.

At this eleventh hour a balance must be struck. To 
require immediate desegration of all schools in Dade 
County would result in chaos. It is therefore the order of 
this Court that the Interim Plan for desegregation ap­
proved by the Dade County School Board at its July 25th 
meeting for the 1969-70 school year is, in all respects, 
adopted and approved by this Court. United States of 
America v. The Board of Education of Baldwin County,
Georgia, et a l.,____ F.2d -_____ (No. 27281, 5th Cir., July
9, 1969). This plan now being the order of this court all 
persons are enjoined from attack upon or interference in



App. 6

any way with the operation of such except by appellate 
review. The School Board is directed to furnish to this 
Court within 30 days the results of a study delineating 
the administrative feasibility of total disestablishment of 
a dual school system at the elementary and junior high 
levels at the beginning of the second semester of the 1969-70 
school year. Such study shall also include the following 
criteria:

(1) maximum utilization of school buildings;
(2) density of population; (3) proximity of
pupils to schools; (4) natural boundaries; and
(5) Welfare of students.

Henry v. ClarJcsdale Municipal Separate School District, 
et al., __ F.2d (No. 23255, 5th Cir., March 6, 1969).

The Board is also directed to furnish by March 1, 
1970 a plan to eliminate the dual school structure in 
grades 10-12 by no later than September 1, 1970. The 
Court approves the collaboration of the School Board with 
the Florida Desegregation Consulting Center and the 
United States Department of Health, Education and Wel­
fare and directs that the continuing cooperation of these 
agencies be sought in complying with the court’s order.

The Court retains jurisdiction of this cause for the 
entry of such further orders that may be necessary.

ENTERED This 29th day of August, 1969 at 6:00 
p.m. at Miami, Florida.

s /  C. CLYDE ATKINS

United States District Judge



App. 7

EXCERPTS FROM TESTIMONY OF 
EDWARD L. WHIGHAM (February 2, 1970)

EDWARD L. WHIGHAM

called as a witness on behalf o f the defendant Dade County 
School Board, having been first duly sworn, was examined 
and testified as follows:

THE CLERK: State your name and address:

THE WITNESS: Edward L. Whigham, 1410 North­
east Second Avenue.

DIRECT EXAMINATION 

BY MR. BOLLES:

Q. What position do you occupy in the Dade County 
Schools, Doctor?

A. Superintendent of Schools.

Q. And I believe in a previous appearance before 
this Court you have established how long you have been 
with the school system and what your qualifications are 
as an educator?

A. Yes, I have.

Q. Dr. Whigham, I would like to ask you to state 
what the School Board has done with regard to desegrega­
tion commencing in 1959?

A. If I remember those dates correctly, there was a 
suit here in Dade County, I believe the decision was in 
December of ’58, which declared that section of the Flor­
ida Constitution which required separate schools by race 
to be unconstitutional. It was either the latter part of 
’58 or the first part of ’59.

Several months later, the School Board decided to 
admit some black children to what had been a white



App. 8

school. In that fall the school system opened with two 
schools enrolling black youngsters, two schools that had 
formerly been white schools.

And then, in the years since, there has been an in­
crease in the number of students in desegregated schools. 
There has gradually been an increase, this would be a 
decade, in this decade from ’59 to ’69.

Q. And can you tell the Court, upon opening the 
schools in September of 1961, how many schools had been 
integrated ?

A. In ’61, I believe, when school opened, in ’61, there 
were five schools that were designated as desegregated. 
Then additional ones admitted youngsters of the other 
race during that year; four I believe, to be exact.

Q. Now, do you have —
A. No, no, no. I believe my figure is wrong here. 

I am thinking of the wrong year. In ’61 is your question?

Q. Yes, sir.
A. There were 9 in the fall and there were 5 more 

during the year, which brought it up to 14.

Q. Now, in 1962 in the fall, how many schools were 
integrated ?

A. The school system reported 17 that year.

Q. And in 1963?
A. 28.

Q. And in October o f 1963 how many schools had 
been desegregated?

A. 42.

Q. Now, for the fall o f 1964, state how many schools 
and staffs had been desegregated.



App. 9

A. In ’64 the school system was reporting 51 schools 
as desegregated and 9 teaching staffs.

Q. Now, had HEW or any governmental agency 
made a study of our school system at that time?

A. No, they had not made a study of our school 
system. As a matter of fact, they did not make a study 
o f our school system until 1969.

Q. Then the opening of schools in 1964 with this 
amount of desegregation accomplished was done with or 
without prodding from HEW or other governmental 
sources ?

A. Well, in ’64 that’s right, because it wasn’t until 
that year that the Civil Rights Act was enacted; yes, sir.

Q. All right sir. Skipping down to the opening of 
school in 1968 and 1969, how many children were enrolled 
in the public schools in that school year?

A. 1968-69 — something over 230,000.

Q. and do you recall how many were black and how 
many were white?

A. I have it noted here. The actual number was a 
total of 232,272. For the whites it was 175,801 and your 
blacks 56,471.

Q. And how many schools had a biracial composi­
tion at that time?

A. The school system was reporting 134 in that year.

Q. And please state how many all black high schools 
there were in 1963.

A. In 1963 I believe there were 5, Mr. Bolles.

Q. Now, how many all black high schools are there 
in the school system today?



App. 10

A. By all black, I am assuming you mean totally, 
all the student body is black?

Q. Yes, sir.
A. One that we consider in that category.

Q. Now, what happened to the other four schools —  
four high schools?

A. These schools were junior-senior high schools —  
you are speaking of the five high schools in ’63?

Q. Yes, sir.
A. Those schools were junior-senior high schools. The 

senior high student body were merged into other high 
schools on an integrated basis and the schools were main­
tained as junior high schools. Of those —  let me see if  I 
can get my numbers straight —  four of them that were 
done in this manner, one was done last year as a part of 
our interim desegregation plan when the Mays Senior 
High School students were moved to South Dade, and the 
junior high was integrated.

The plan we had under consideration would complete 
the desegregation of the remaining junior highs that were 
part of those four junior-senior high schools that you re­
ferred to in ’63.

Q. Now, Dr. Whigham, what is the School Board’s 
position with regard to desegregation?

A. I think the School Board’s position now is that 
they recognize the responsibility to desegregate the school 
system, to establish a unitary school system, and it recog­
nizes the responsibility to desegregate its staff in accord­
ance with the order of this Court, so that this staff is not, 
so to speak, racially identifiable staff, or so that the 
schools are not racially identifiable by their staffs.



App. 11

EXCERPTS FROM MINUTES OF DADE COUNTY 
SCHOOL BOARD MEETING OF MAY 19, 1971 — 

FILED MAY 26, 1971

STATE OF FLORIDA )
) SS

COUNTY OF DADE )

I HEREBY CERTIFY that the following is a true 
and correct copy of action taken by the Dade County School 
Board at its meeting of May 19, 1971, as appears of 
record in the minutes of said Dade County School Board:

1. The Board approve for submission to the federal 
courts as the school boundaries for 1971-72 the 
attendance zone plan adopted by the Board on 
February 17, 1971, and modified later for the 
Vineland-Leewood-Martin-C o r a l  Reef-Palmetto- 
Howard Drive Elementary Schools and for Coral 
Gables-Carver-Merrick-Sunset Elementary Schools.

2. The Board authorize the operation of shuttle bus 
service between the following schools, to commence 
in the fall of 1971, if sufficient bus services can 
be made available for that purpose and the required 
funds can be budgeted.

Lorah Park-Curtis Elementary Schools

Bel-Aire-Perrine-Moton Elementary Schools

Hialeah-Gladeview Elementary Schools

Douglas-Riverside Elementary Schools



App. 12

3. The Board authorize its attorney to submit its ap­
proved attendance plan to the federal district court 
and pursue litigation directed to final federal judi­
cial decision on establishment of a unitary system 
in the Dade County Public Schools.

4. The Board, in adopting the 1971-72 school system 
budget, give consideration to authorizing, if budget 
resources in a critical year permit, additional busses 
as required by further steps in desegregation which 
may be authorized by the Board.

IN WITNESS WHEREOF, I have hereunto set my 
hand and official seal on this 26th day of May, A.D. 1971.

/ s /  Constance A. MacMurray

SEAL

CONSTANCE A. MACMURRAY 
Recording Secretary of the 
Dade County School Board



App. 13

EXCERPT FROM REPORT OF THE DADE COUNTY 
SCHOOL BOARD TO THE UNITED STATES 

DISTRICT COURT — DATED DECEMBER 10, 1971

The Biracial Advisory Committee, consisting of four­
teen members, appointed by Judge C. Clyde Atkins, United 
States District Court, has presented two reports to the 
School Board: (1) Preliminary Report dated December 7, 
1970, and (2) Summary of Priority Concerns with Sug­
gestions dated May 17, 1971.

The May 17, 1971, summary reflected the observations 
of the members of the Committee since September 1970 and 
also reemphasized their concerns and recommendations that 
were previously stated in the December 7, 1970, report.

The following suggestions were offered by the Biracial 
Committee for consideration of the School Board and the 
School Administration:

1. To make an all-out commitment of the School Board 
and the School Administration to the goals of a unitary 
school system and the desegregation of the schools. This 
implies even greater involvement of the School Board 
and the top School Administration within the schools 
and with parental/community groups throughout the 
County.

2. To make it known throughout the County School System 
by every communicative means available that the 
human and study/working relations have the highest 
priority in the system.



App. 14

3. To request an overall and comprehensive philosophy 
and plan from an appointed joint commission of school 
people and perhaps student and parental representa­
tion under a newly established Deputy or Assistant 
Superintendent of Schools for Human Resources. This 
plan should contain means of evaluating, changing and 
upgrading as necessary, the approach, the procedures 
and results of: recruiting and selection of new teach­
ers; retraining of administrators and tenured teach­
ers ; position relocation and status change to ineffective 
administrators and teachers; inservice training pro­
grams and intensive school faculty,/emergency train­
ing and development; teacher training (university) 
and internships; grievance and disciplinary policies, 
procedures and organization.

4. To establish the position of a Deputy or Assistant 
Superintendent of Public Instruction for Human Re­
sources with the responsibility of the developing and 
coordinating of comprehensive plans and implementing 
procedures to improve the present state of human 
affairs in our schools.

5. To strengthen the present Human Relations Team by 
providing additional personnel and funding regardless 
of availability of federal monies; a change of proce­
dures making it possible for them to influence policy, 
recommend programs and procedures in schools to 
assist school people to meet successfully and even cap­
italize on the human problems of a tri-cultural and 
multi-ethnic community.



App. 15

6. To initiate a request to the County Manager to formal­
ize the close liaison and planning of the County and 
the Schools, especially as it relates to housing, trans­
portation, and parks and school site selection and land 
usage.

7. To establish a reporting pattern which reflects the tri- 
cultural potential of each each school and each district 
to include student population, teacher-administrative 
population and any related and special instructional 
considerations or capabilities.

8. To compensate for any loss of intramural and nonclass 
activities occurring as a result of split and staggered 
sessions and reorganization of the school year.

9. To clarify the policy of the regional and national office 
administering desegregation funds to the effect that 
Biracial Committees are not in a position to monitor or 
to approve expenditures.

The School Board and the School Administration have 
given serious consideration to the above recommendations 
of the Biracial Committee. In order to implement these 
recommendations, the School Board established an Office 
for School Desegregation Planning and Implementation 
administered by a District Superintendent. This office has 
been charged with the responsibility to develop a long- 
range, comprehensive plan for further desegregation of the 
schools which will assist the School Administration and the 
School Board in bringing stability to those school centers 
already desegregated and in maintaining the “ unitary 
school system” status as it has been recognized by the 
Courts.



App. 16

It should be noted in the description of the office (see 
attached) that the specific responsibilities assigned include 
most of the recommendations of the Biracial Committee.

In addition, the Superintendent of Schools has initiated 
a request to the County Manager to explore the idea of 
formalizing a close liaison and planning of the County and 
the Schools. He has also set up, reviewed and established 
procedures for reporting and reducing incidents within the 
schools.

The Division of Instruction plans to conduct a Spanish 
Language Origin Survey. Information retrieved by this 
survey will be used principally for the allocation of special 
staff and material funds, but can serve other purposes.

The heavy demands on transportation make it difficult 
to give priority to the recommendation to compensate for 
the loss of intramural and nonclass activities occurring as 
a result of split and staggered sessions and reorganization 
of the school year.

We concur with the Biracial Committee that it is diffi­
cult to monitor and approve expenditures such as ESAP. 
funds. An effort will be made to keep the Committee in­
formed concerning projects designated to assist in the 
desegregation process.



App. 17

OFFICE FOR SCHOOL DESEGREGATION 
PLANNING AND IMPLEMENTATION

I. Rationale for the Establishment of the Office

Over the last several years, the Dade County School 
System has moved toward desegregation both on its own 
initiative and more recently under a series of court ordei s.

The major moves of the past two years have required 
the intensive effort of all administrators, plus the involve­
ment and personal dedication to this cause by the School 
Board, teachers, and other personnel, to effect the required 
changes.

As a result of these efforts, the federal district court 
has recognized the Dade County Public Schools as a unitary 
school system under constitutional mandates.

This decision by the courts, however, does not mean 
that the issues and problems accompanying the process of 
desegregation can now be forgotten. There is yet much to be 
done in the way of critical planning and development of 
policies, procedures, and programs to bring stability to 
those schools already desegregated, and to improve further 
the school system’s desegregation status.

County and district administrative staffs have been 
strained to the point where it is impossible for them to 
devote the extended periods of time required to undertake 
the comprehensive planning and implementation activities 
necessary for furthering the school system’s desegregation 
efforts. Recognizing the need to have this planning and 
implementation undertaken immediately, the School Board



App. 18

on July 21, 1971, authorized the establishment of an Office 
for School Desegregation Planning and Implementation and 
the appointment of a district superintendent on special 
assignment to administer the office.

II. Administration of the Office

This office is administered by a district superintendent 
on special assignment with three support staff members 
and two clerical staff members.

The district superintendent is responsible directly to 
the superintendent of schools and is held responsible for 
county-wide planning and review of the effectiveness of 
district and school activities in areas related specifically to 
school desegregation.

It is essential that a close working relationship exist 
between the Office for School Desegregation and the various 
district and county administrative offices. The functions of 
the office do not abrogate the authority and responsibility 
of the superintendents of the six geographic districts and 
other county administrative personnel. It remains their 
responsibility to exert leadership, direction and control for 
planning activities and full implementation of all School 
Board policies and regulations concerning desegregation, 
human and community relations within their districts and 
departments.

III. Functions of the Office

This office is responsible for the development of a 
comprehensive long-range desegregation plan for the Dade 
County Schools which will assist the school administration



App. 19

and School Board in bringing stability to those school 
centers already desegregated and in maintaining the “ uni­
tary school system” status as it has been recognized by the 
courts. To do this will require activities as follows:

A. Planning for Specific Actions and Recommendations

The prime function of this office will be the devel­
opment of a long-range comprehensive desegrega­
tion plan for the county. This plan will be comprised 
of a number of specific actions and recommendations 
in several interrelated areas which need considera­
tion. This planning shall result in practical and 
sound procedures for desegregation which can be 
implemented and maintained through sound admin­
istrative practices. Some of these areas are:

1. Attendance Boundaries

a. Establish guidelines for and direct planning 
activities of district and central office per­
sonnel in establishing attendance boundaries 
that will be in harmony with a comprehen­
sive desegregation plan.

b. Consult with appropriate administrative 
personnel in order to analyze all costs asso­
ciated with proposed boundary line changes 
such as transportation required.

c. Consult with community groups including 
the Biracial Committee to obtain reactions 
to proposed boundary line changes.

d. Review districts’ plans and recommend to
Superintendent changes in school bound­
aries.



App. 20

2. Sites for Future Centers

a. Review all plans and recommendations for 
the selection of sites for future school 
centers to determine if such plans are in 
accord with overall desegregation plans.

b. Determine guidelines for the replacement of 
schools as they become obsolete or in need 
of extensive maintenance.

c. Review all plant utilization proposals to 
determine if they are in harmony with over­
all county desegregation plans.

3. School Pairings and Groupings

a. Analyze problems associated with paired 
and grouped schools to determine what 
assistance or additional planning, if  any, is 
needed.

b. Determine which pairing or grouping pat­
terns have special merit for consideration in 
future desegregation planning.

4. Funding for Desegregation

a. Study local, state and federal costs involved 
in the desegregation process.

b. Work closely with departments of finance 
and special programs to keep informed and 
to take advantage of additional sources of 
funds.

c. Make recommendations as to reallocation of 
existing resources— local, state and federal.



App. 21

d. Review all proposals for requests of funds 
to support desegregation to determine if the 
requests include support for staffing, facili­
ties, transportation, materials, equipment or 
other capital outlay needs considered essen­
tial to maintain a unitary school system.

5. Recommendations of the Biracial Committee

a. Serve as the school administration liaison 
with the Biracial Committee.

b. Review and analyze reports by the Biracial 
Committee to determine if actions are 
needed to improve the county’s desegrega­
tion efforts.

6. Educational Programs

a. Analyze the impact of the county’s deseg­
regation on the educational program for 
pupils.

b. Analyze the effect of the county’s educa­
tional programs on Spanish-Ameriean and 
other minority pupils.

c. Consult with and make recommendations to 
the Division of Instruction and district 
superintendents for program improvements.

7. Court Appearances and Court Decisions

a. Meet as needed with court officials to dis­
cuss and testify concerning the county’s 
efforts and policies in desegregation.



App. 22

b. Meet with court officials to discuss various 
court decisions and requirements, explore 
options, and interpret Board policies and 
guidelines.

c. Consult and work closely with School Board 
attorneys on all desegregation matters.

8. Staff/Pupil Assignments and Transfers

a. Alert personnel and attendance departments 
to problems developing in maintenance of 
staff/pupil racial-ratio and make recom­
mendations for correction or improvement 
of ratios.

b. Make recommendation in identification/ 
placement of administrative/ supervisory 
personnel.

c. Develop policies and make recommendations 
concerning pupil/teacher transfers.

B. Intensifying Provisions for Human Relations

While various policies and programs may be estab­
lished to improve desegregation, their success even­
tually depends upon the human element: the ability 
of pupils, teachers, administrators, and parents to 
meet and work together day-by-day in the schools 
and the community. The Office for School Deseg­
regation should:

1. Determine the need for human relations train­
ing as it relates to specific districts and schools.



App. 23

2. Review and approve district and school propos­
als for use of human relations funds.

3. Establish priorities and assign activities to the 
established human relations team.

4. Review and develop policies and guidelines for 
the improvement of pupil/teacher/parent inter­
action.

€ . Assisting Schools and District Personnel with Crises 
and School Disruptions

While this area relates to the human relations aspect 
described above, its main emphasis is on the inter­
pretation and handling of school crises and disrup­
tions once they occur. The Office for School 
Desegregation will:

1. Review and develop policies and guidelines for 
the control of student behavior. This includes 
suspensions/expulsions as they relate to racial 
issues.

2. Review the planning for emergency procedures 
in the school in relation to the district and 
county offices, security, police and community 
groups and agencies,

3. Review district and individual school plans and 
procedures to be followed to bring stability to a 
school following a crisis or disruption.

It is important that district offices keep the Office 
for School Desegregation fully informed as to all 
actual and potentially disruptive incidents.



App. 24

D. Working with Community Agencies

The school system does not stand alone in the process 
of desegregation. Its plans and decisions affect and 
are affected by the community and the community 
agencies surrounding it. It is important that the 
school system develop and maintain the understand­
ing, support and involvement of the community as 
it proceeds with desegregation. This effort may be 
referred to as community relations much as the 
human relations aspect described above. This in­
volvement with the community begins in the parent 
group required to be in operation in each school. 
The responsibility of the Office for School Desegre­
gation is in assisting the school and the district and 
county offices in maintaining contact with commu­
nity groups and associations. This effort should be 
directed toward developing community acceptance 
of desegregation.



MIAMI REVIEW — MIAMI, FLORIDA