Board of Education of the City of Birmingham v. Armstrong Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

This item is featured in:

Furthers Education Equity

    IN  THE

Olmtrt td tty? Untieft States
October T erm ,, 1963

Ho.

T h e  B oard of E ducation of the  
City  of B irm ingha m , et al., Petitioners,

v.
D w ight  A rmstrong, et al., Respondents. 

L inda S ue G ibson, et al., Petitioners.
Y.

Carolyn E leanor H arris, et al., Respondents.

L awrence R oberts, et al., Petitioners,
v.

R alph  S tell, et al., Respondents.

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH  CIRCUIT

Geo. Steph en  L eonard 
1730 K Street, N. W. 
Washington 6, D. C.

R eid B. Barnes
Of Counsel: Exchange Security Bank Bldg.
R. Carter P ittman  Birmingham 3, Alabama
Charles J. Bloch Counsel for Petitioners
J. W alter Cowart 
R ichard L. H irshberg 
R obert C. Maynard

P ress o f  B yro n  S . A d a m s , W a s h in g t o n , D . C .

9



INDEX

Opinions B elo w .............................................
Jurisdiction ...................................................
Question Presented .....................................
Statutes Involved .........................................
Statement of the C a se s ...............................
Reasons Relied on For Allowance of W rit 
Argument .......................................................

13
14

TABLE OF AUTHORITIES
C ases :
Aaron v. Cooper, 257 F. 2d 33 (8th Cir. 1958 ).............. 20
Aaron v. Cooper, 261 F. 2d 97 (8th Cir. 1958 )........• • • 20
American Lead Pencil v. Schneegass, 178 Fed. 735

(N.D. Ga. 1910) ............................................. . ••• .17,3.8
Bergen Drug v. Parke Davis Co., 307 F. 2d 72o (3rd

Cir. 1962) .....................................................• •••••••  16
Clune v. Publishers Association of New York City, 214

F. Supp. 520 (S.D.N.Y. 1963) .................................  17
Cooper v. Aaron, 358 U.S. 1 (1958) ............ • - • 20
DeBeers Mines v. United States, 325 U.S. 212 (194o). .16, 2o
Dennis v. United .States, 341 U.S. 494 (19ol) .............. 25
Dunn v. Retail Clerks International Association, 299

F. 2d 873 (6th Cir. 1962) .........................................  21
Gantt v. Clemson Agricultural College of South Caro-

lina, 208 F. Supp. 416 (W.D. So. Car. 1962) ---- 17,18
Greene v. Fair, 314 F. 2d 200 (5th Cir. 1963) . . . . . . . .  22-o
Hamilton Watch Co. v. Benrns Watch Co., 206 F. 2d

738 (2d Cir. 1953) .....................................................
Hess v. Woods, 185 F. 2d 404 (9th Cir. 1950) . . . . . . .  21-2
Joint Anti-Fascist Refugee Committee v. McGrath,

341 U,S. 123 (1951) ................................................. 24-5
In  re Lennon, 166 ILS. 548 (1897) ........................... • • •
Mack v. General Motors Corp., 260 F. 2d 886 (7th Cir

1958) ......................... .................................................. 17-8
Meredith v. Fair, 305 F. 2d 341 (5th Cir. 1962) ..........  22



11 Index Continued

Page
Miami Beach Federal Say. & Loan Assoc, v. Callander,

256 F. 2d 410 (5th Cir. 1958) ..............................17, 23-4
Northern Securities Co. v. United States, 193 U.S. 197

(1904) ...........................................................................  24
Price v. Johnston, 334 U.S. 266 (1948) .......................... 15
Shuttlesworth v. Birmingham Board of Education,

358 U.S. 101 (1958) .................................................  9
Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F. 2d 804

(9th Cir. 1963) ..................................................  17
Toledo, A.A. & N.M. Ry. Co. v. Pennsylvania Co., 54

Fed. 730 (N.D. Ohio 1893) ........................................ 16
Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399

(1923) ............................................................................6,20
United States v. A dler’s Creamery, 107 F. 2d 987 (2d

Cir. 1939) ....................................................................17,18
United States v. Hayman, 342 U.S. 205 (1952) ............ 15
United States v. Morgan, 346 U.S. 502 (1954) ............ 15
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) . .19-20 
W arner Bros. v. Gittone, 110 F. 2d 292 (3d Cir. 1940). .17,18 
Westinghouse Electric Corp. v. Free Sewing Machine

Co., 256 F. 2d 806 (7th Cir. 1958) .........................  18
Willheim v. Investors Diversified Services, Inc., 303

F. 2d 276 (2d Cir. 1962) ........................................... 17,18
Willheim v. Murchison, 203 F. Supp. 478 (S.D.N.Y.

1962) .............................................     17
Winton Motor Carriage Co. v. Curtis Publishing Co.,

196 Fed. 906 (E.D. Pa. 1912) ...................................  17

S t a t u t e s :

28 U.S.C. § 1254(1)
28 U.S.C. § 1291 ..
28 U.S.C. § 1292 ..
28 U.S.C. § 1343 ..
28 U.S.C. § 1651 ..
28 U.S.C. § 2101(e)
28 U.S.C. § 2106 
42 U.S.C. § 1983 ..

M iscella n eo u s  :

A.L.R. 2d, vol. 15, p. 213, 234 ...................................  16
Am. Jur., vol. 28, “ Injunctions”, § 1 7 ...................... 16
Pomeroy’s Equity Jurisprudence (4th ed. 1919), vol.

4, §§ 1337,1359 ...................................................  16

............  3

....12,18, 20 
...4,12,18-9
............ 4
4-5,15,18, 23
....... 2
............ 5
............ 5



Ill

INDEX TO APPENDIX

Op in io n s  of C ourts B elow  
U n it e d  S tates C ourt of A ppea ls  

F if t h  Cir c u it

Page
Ralph Stell et al. v. Savannah-Chatham County Board 

of Education et al., 318 F. 2d 425 (1963) .............. la
Birdie Mae Davis et al. v. Board of School Commis­

sioners, 322 F. 2d 356 (1963) .................................  6a
Dwight Armstrong et al. v. The Board of Education of 

the >City of Birmingham, Jefferson County, Ala­
bama, et al., 323 F. 2d 333 (1963) .......................... 19a

Carolyn Eleanor H arris et al. v. Linda Sue Gibson et 
al. and Glynn County Board of Education et al.,
322 F. 2d 780 (1963) .................................................  79a

DISTRICT COURTS
Ralph Stell et al. v. Savannah-Chatham County Board 

of Education, U.S.D.C. Southern District of 
Georgia, Savannah Division (1963) (unreported) . 82a

Birdie Mae Davis et al. v. Board of School Commis­
sioners of Mobile County, Alabama, et al., 219 F. 
Supp. 542 (U.S.D.C. Southern District, Alabama,
S.D., 1963) ................................................................... 91a

Dwight Armstrong et al. v. The Board of Education of 
the City of Birmingham, Jefferson County, Ala­
bama, et al., 220 F. Supp. 217 (U.S.D.C. Northern 
District, Alabama, S.D., 1963) ...............................  99a

Linda Sue Gibson et al. v. Glynn County Board of Edu­
cation, U..S.D.C. Southern District of Georgia, 
Brunswick Division (1963) (unreported) ...............109a



IN THE

(tart nf %  Itmti'ft #tatai
Ootobek T erm, 1963

Ho.

T h e  B oard of E ducation of the 
City of B irm ingham , et al.. Petitioners, 

y.
D w ight A rmstrong, et al., Respondents.

L inda S ue Hibson, et al., Petitioners,
Y.

Carolyn E leanor H arris, et al., Respondents.

L awrence R oberts, et al., Petitioners,
v.

R alph  S tell, et al., Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

To The Honorable, The Chief Justice and Associate 
Justices of The Supreme Court of The United 
States:

Each of your petitioners was a prevailing party in 
a District Court action and is now an appellee in an 
appeal therefrom pending before the Eifth Circuit 
Court of Appeals. In each appeal, pending any hear­
ing on the merits, the Circuit Court has issued an orig-



2

inal mandatory injunction which, has de facto reversed 
the order or judgment appealed from by awarding as 
against each of your petitioners, the affirmative relief 
to which the respective respondents had failed to sus­
tain their right in the trial court. Petitioners, con­
tending that the form of such orders constitutes an 
impermissible departure from normal appellate proc­
esses, pray the issuance of a writ of certiorari directed 
to the United States Court of Appeals for the Fifth 
Circuit limited to the question of the formal validity 
of such orders as an allowable or proper exercise of 
appellate judicial power.

The prayer is made for joint consideration of all 
four1 cases under Rule 23(5) on the ground that the 
four orders in question are substantially identical, 
present the same issue of law and may constitute the 
entire class of such orders since your petitioners know 
of no similar rulings by any other Court of Appeals.

OPINIONS BELOW

The opinions of the Court of Appeals are printed 
in the appendix and have been reported as follows: 
St ell v. Savannah-Chatham County Board of Educa­
tion, 318 F. 2d 425 (May 24, 1963) ; Davis v. Board of 
School Commissioners of Mobile County, Ala., 322 F. 
2d 356 (July 9, 1963) ; Armstrong v. Board of Educa-

1 In addition to the three captioned cases, a motion to he per­
mitted to file an application for rehearing limited to the form of 
the order concerned is filed herewith in Board of School Commrs. 
of Mobile, et al. v. Birdie Mae Davis, et al., Oct. Term, 1963, No. 
348, cert. den. 375 U.S. 894 (Oct. 28, 1963). The inclusion of the 
Davis case is solely to have before the Court on a single applica­
tion, the four related cases in which such appellate orders have 
been issued.



3

tion of City of Birmingham, Ala., 323 F. 2d 333 ( July 
12, 1963); and Harris v. Gibson and Glynn County 
Board of Education, 322 F. 2d 780 (September 12, 
1963).

The opinions of the District Courts are not sought 
to be reviewed herein but are included in the appendix 
for the Court’s reference. Two have been officially 
reported, Davis v. Board of School Commissioners, 
219 F. Supp. 542 (S.D. Ala. June 24, 1963) and Arm­
strong v. Board of Education, 220 F. Supp. 217 (N.D. 
Ala,, May 28, 1963). At the time of the issuance of 
the order of the Fifth Circuit in Stell v. Savannah- 
Chatham County Board of Education, only the pre­
liminary findings given in the appendix had been 
issued. The District Court’s decision, as thereafter 
entered with the Clerk, is reported at 220 F. Supp. 
667 (S.D. Ga. 1963).

The denial of the application for issuance of a writ 
of certiorari in Davis is reported at 375 TT.S. 894 (Oc­
tober 28, 1963).

JURISDICTION

The review authority of this Court prior to the 
rendition of a judgment or decree by a Court of Ap­
peals is conferred by 28 IT .8.0. § 1254(1) ; and since 
each case is now so pending in that Court, this appli­
cation comes within the time limited by 28 TJ.S.C. 
§ 2101(e). The dates of the issuance of the orders 
sought to be reviewed are as given in the preceding 
section.



4
QUESTION PRESENTED

Does a Court of Appeals have power, pending its 
determination of an appeal on the merits, to issue an 
original mandatory injunction which

(a) reverses the appealed-from order or judgment 
of the District Court by granting the affirmative 
relief prayed by the unsuccessful parties in the 
trial court;

(b) alters both the status quo ante litem and the 
status quo as of the time the appeal was taken; 
and

(c) directs the trial court to sign and issue as its 
own the interim reversal of its earlier order ?

STATUTES INVOLVED 
28 U.S.C. § 1292(a)(1). Interlocutory Decisions.

“ (a) The courts of appeals shall have jurisdiction 
of appeals from:

(1) Interlocutory orders of the district cotirts 
of the United 'States, the United States District 
Court for the District of the Canal Zone, the 
District Court of Guam, and the District Court 
of the Virgin Islands, or of the judges thereof, 
granting, continuing, modifying, refusing or dis­
solving injunctions, or refusing to dissolve or 
modify injunctions, except where a direct review 
may he had in the Supreme Court;” (As am. Oct. 
31, 1951, c. 655, §49, 65 Stat. 726; July 7, 1958, 
Pub. L. 85-508, § 12(e), 72 Stat. 348; Sept. 2,1958, 
Pub. L. 85-919, 72 Stat. 1770)

28 U.S.C. § 1651(a). Writs.

“ (a) The Supreme Court and all courts established 
by Act of Congress may issue all writs necessary or 
appropriate in aid of their respective jurisdictions



5

and agreeable to the usages and principles of law.” 
(June 25, 1948, c. 646, 62 Stat. 944, amended May 24, 
1949, c. 139, § 90, 63 Stat. 102).

28 U.S.C. § 2106. Review: Determination,

“ The Supreme Court or any other court of appel­
late jurisdiction may affirm, modify, vacate, set aside 
or reverse any judgment, decree, or order of a court 
lawfully brought before it for review, and may remand 
the cause and direct the entry of such appropriate 
judgment, decree, or order, or require such further 
proceedings to be had as may be just under the cir­
cumstances.” (June 25, 1948, c. 646, 62 Stat. 963).

STATEMENT OF THE CASES

A number of facts are common to all cases. Each 
of the four is a school desegregation case—Savannah 
and Brunswick, Georgia, and Birmingham and Mobile, 
Alabama—brought as a suit in equity under 28 TJ.S.C. 
1343(3). The jurisdiction of the District Courts has 
been invoked under the “ due process” and “ equal pro­
tection” clauses of the Fourteenth Amendment to the 
Constitution as implemented by the Civil Rights Act, 
(42 TJ.S.C. § 1983). The respondents have had in each 
case the same or associated counsel and have asked 
the same type of relief, resulting in substantial simi­
larity in their pleadings and motions both in the Dis­
trict Courts and in the Court of Appeals for the Fifth 
Circuit.

In each trial court the respondents’ pleadings have 
prayed a permanent injunction directing some form 
or plan of desegregation and respondents have asked 
the same relief by way of preliminary injunction. In 
each ease, the District Court concerned has issued a



6

judgment or order which respondents have appealed 
to the Court of Appeals as constituting a denial of the 
injunctive relief so demanded.

On taking each appeal, respondents have prayed an 
original appellate interlocutory injunction for the 
same affirmative relief as had been denied by the lower 
court. The ground stated by respondents has been 
that the clear absence of legal merit in the rulings of 
the District Courts makes any delay in granting them 
final relief, an irreparable injury. The Court of Ap­
peals on each appeal has agreed with respondents and, 
acting on an accelerated basis2 without a record or a 
transcript of the proceedings below, has reversed the 
lower court by granting the application for appellate 
injunctive relief substantially as requested. On each 
appeal, the Circuit has issued its mandate in the form 
of an order to be signed and issued as that of the 
District Court from which the earlier order not yet 
determined on appeal, had issued.3

In somewhat greater detail, the nature of the pro­
ceedings and character of the orders issued by the trial 
and appellate courts are here given in the chrono­
logical order of the cases.
(a) Savannah-Chatham Board of Education, et al v.

Ralph Stell, et al. (5th Cir. Ct. of App. No. 20557)

This action was brought on behalf of negro school 
children in Savannah alleging injury caused by sep­
arate schools and praying preliminary and permanent 
injunctive relief requiring the defendant School Board

2 From application through hearing to decision, Stell, 4 days; 
Davis, 8 days; Armstrong, 39 days; Gibson, 2 days.

3 Although the Fifth Circuit in the later Davis, Armstrong- and 
Gibson opinions refers to' Stell as authority for the form of injunc­
tion in question, Judge Cameron identifies an unpublished order 
two days earlier as being the first. (App. pp. 60-4a)



7

of Savannah-Chatham County to submit a plan to re­
organize the school system into what plaintiffs de­
scribed as a “ unitary nonracial system”. At the trial, 
proof was made on defense that the plan proposed by 
respondents would injure both the negro and white 
school children in Savannah. On the Court’s inquiry, 
respondents refused to proffer any evidence in rebuttal 
of this issue or in support of the injury averments in 
their complaint, stating that the law so conclusively 
presumed such injury to their class that no evidence 
to show other or different injury in the Savannah area 
could be considered by the trial court.

The District Court disagreed and, at respondents’ 
request at the close of trial (May 13), immediately 
issued its preliminary judgment, denying the prayer 
of the complaint, and giving respondents a right to re­
open for further proof. (App. pp. 82a-90a)

Respondents appealed and moved for a preliminary 
appellate injunction on May 20, 1963, for the same 
relief denied below (Stell Rec. 55). The Court of 
Appeals set this for hearing on May 24 (id. 80), heard 
it (id. 135), and on the same day, entered its order 
granting the requested injunction (id. 136) on the 
basis of the “ All W rits” statute, 28 U.S.C. § 1651(a) 
(App. p. la). For its direction to the District Court 
to enter the order as its own the Court of Appeals ad­
ditionally referred to this Court’s ruling in Toledo 
Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923).

(b) Board of School Commissioners of Mobile County, ei al. v.
Birdie Mae Davis, et al. (5th Cir. Ct. of App. No. 20657)

The complaint in this case was substantially similar 
to that in Stell, and respondents, in addition to praying 
a permanent injunction therefor, moved for a prelimi-



8

nary in junction requiring the submission within thirty 
days of a desegregation plan to commence in Septem­
ber, 1963. The preliminary injunction in the form 
prayed by plaintiffs was denied on June 24, 1963, but 
the Court directed the School Board to submit such a 
plan to be heard at the trial, which had then been 
scheduled for November.4

On July 1, 1963, respondents moved the Court of 
Appeals for an injunction pending appeal “ and for 
other orders”. On the same day the Court ordered 
a hearing on July 8 (Davis Bee. p. 19) and granted re­
spondents’ application on July 9 (id. pp. 21-8). In 
its decision the Court said:

“ The ‘All W rits’ statute, 28 U.S.C.A. § 1651 gives 
us the power to grant the relief sought by the 
plaintiffs. St ell v. Savannoh-Chatham County 
Board of Education, Fifth Circuit, 1963, F. 
2d [No. 20557, May 24, 1963]. However, as 
in that case, we think it is more appropriate to 
frame the injunction and direct by mandate that 
this injunction be made the order of the District 
Court.” (App. p. 9a)

On an application for rehearing, the order was recalled 
and reissued on July 18 to conform to the form used 
in the interval in the Court’s decision in Armstrong. 
In the opinion of the dissenting Judge:

“ The modification by the majority of their prior 
order in this case compounds error. (App. p. 13a).
U * * *

“ . . . what has been done is at the expense of the 
judicial process. A Court of Appeals should not 
sit as a District Court in chancery . . . without 
facts before it to serve as a basis for the decree.

4 It was tried on the dates scheduled and is now sub judice.



9

The All-Writs Statute, 26 TJ.S.C.A. § 1651, does 
not authorize this . . . more constitutional rights 
will be lost than gained in the long run by depar­
ture from the procedures which have stood the 
test of time, and which are a part of due process 
of law as we have heretofore known it.” (App. 
p. 15a)

A dissent was also filed by Judge Cameron after 
rejection of his recommendation for an en banc hear­
ing (Davis Ree. 41). A petition for review by cer­
tiorari on the merits was filed and denied by this Court 
on October 28, 1963; Board of School Commissioners 
of Mobile County v. Davis, 375 U.S. 894. No recon­
sideration of the merits discussed in that application 
is requested, the concurrent motion served herewith 
being intended to consider only the formal validity of 
the injunctive order of the Fifth Circuit.

(c) Armstrong v. Board of Education of City of Birmingham, Ala.
(5th Cir. Ct. of App. No. 20595)

In this case, as in the two eases previously detailed, 
the complaint sought a mandatory injunction requir­
ing the School Board to reorganize the school system 
along stated lines. A preliminary injunction for the 
same relief was made but by stipulation was merged 
into the prayer for permanent relief and the ease was 
tried on the merits. The Court found that the plain­
tiffs in the case had failed to make any effort to comply 
with the Alabama Pupil Placement Act which this 
Court had held constitutional; Shuttlesworth v. Birm­
ingham Board of Education, 358 U.S. 101 (1958). The 
District Court retained jurisdiction to rehear the plain­
tiffs on any contention that the manner of application 
to them of that statute was improper. (App. p. 108a). 
On June 3, 1963, the Armstrong respondents moved



10

the Court of Appeals to issue an injunction pending 
appeal which would grant the relief denied below. 
(.Armstrong Rec. p. 1). This was heard on June 26 
(id. 21) and the requested injunction was granted on 
July 12, Judge Gewin dissenting (App. p. 19a). An 
application for rehearing en banc was denied July 22, 
Judge Cameron filing an additional dissenting opinion 
on July 30.

In its decision, the Circuit Court, Rives, J., directed 
the issuance of an order by the District Court “ In 
line with the procedure . . .in St ell, . . . ” (App. p. 29a) 
and Tuttle, C. J., concurring specially, stated that a 
definite plan “ should be required by an injunction 
. . . pending the appeal of this case on the merits in 
this Court. See St ell . . . , Davis . . .” (App. p. 31a). 
Judge Gewin, in an extended dissent, stated:

“ I t should be noted quickly that the majority 
opinion leaves little to be decided when the case 
reaches this Court on the merits. Under the guise 
of ‘injunction pending appeal’ that opinion sub­
stantially decides the case and renders moot many 
questions which could arise when the case reaches 
the Court for final decision after a review of the 
record . . . The action in this case is taken with­
out any pretense that the Court has taken so much 
as a hurried glance at the record.” (App. p. 32a)

Judge Gewin then discussed the questions involved 
in issuing such an injunction pending appeal and dis­
tinguished the action taken in Stell on the ground that 
the Court had there considered it was reviewing an 
interlocutory ruling. (App. p. 41a)

Judge Cameron also dissented saying:
“ The decision of this panel involves questions 

of procedure which have for some weeks plagued



11

and are still plaguing the Court. The Judges of 
the Court are sharply divided on these questions 
and not only the lawyers of the Circuit, but the 
public generally, are displaying open concern 
with respect to inconsistent positions which they 
conceive are being taken by the Court. . . .

“ The procedure followed by the majority here 
is one which, in my opinion, is not sanctioned by 
the law. The hearing before these three Judges 
was not an appeal. Rather, it was what the Third 
Circuit has termed something ‘ in the nature of an 
original proceedings . . .’ I t was the substitution 
of a hearing on ‘injunction pending appeal’ for 
a hearing on appeal. Theoretically the appeal is 
still pending, but it is apparent that there is little 
or nothing more to hear since the decision and 
order of the majority of the panel are on the 
merits of the ease, deciding in full, without the 
benefit of any record of the evidence in the lower 
court, the questions of law and fact which were 
before that court in its extended hearing. (App. 
pp. 58a-60a). * * *
“ The last sentence of Judge Bell’s special concur­
rence in the July 9th hearing characterizes poig­
nantly the dilemma into which this Court has been 
plunged since it set itself the task of inventing 
special procedures for the handling of such cases :

‘This case serves as a classic example of the 
pitfalls to be encountered, with the attendant 
disruption and delays in the orderly administra­
tion of justice, when courts depart from the 
time-tested processes of law.’ ” (App. p. 60a)

(d) Harris ei al. v. Gibson and Glynn County Board of 
Education et al. (5th Cir. Ct. of App. No. 20871)

This action followed the pattern of the preceding 
three, except that in this case respondents filed their 
prayer for temporary and permanent injunctions as



12

intervenors in a suit brought to restrain the Board 
of Education from effecting a pupil transfer except in 
accordance with Court order and the Georgia School 
Code. The action was commenced in August, 1963, and 
on motion of the Gibson respondents to intervene and 
be heard on the broad issue of desegregation, the Court 
set the matter down for a pretrial hearing on Septem­
ber 5. At that hearing, the Court allowed the requested 
intervention and then heard arguments both on re­
spondents’ motion for a preliminary injunction and 
the petitioners’ motion for judgment for failure of the 
School Board to have held a public hearing under the 
Georgia School Code prior to their approving the 
transfers in question.

To limit the issues and to obviate the jurisdictional 
objection, the Court by pretrial order directed the 
School Board to promptly hold an open record hear­
ing under the Georgia Code, limiting the parties on 
the subsequent trial to the issues and evidence pre­
sented before the Board. The Court further required 
the Board to recommend a complete plan of desegrega­
tion for the County, including the six transfers com­
plained of.

Respondents appealed this order to the Fifth Circuit 
on the ground that it constituted a denial of their mo­
tion for a preliminary injunction enforcing the trans­
fers before trial. At the same time, they prayed an 
interlocutory appellate injunction for the relief stayed 
below. The order of the District Court was entered on 
September 6 : the application to the Court of Appeals 
was filed on September 10 and was heard and decided 
on September 12. (Gibson Rec. 8-9, 22 and 23) In
its decision granting the injunction to respondents, 
the Court of Appeals held that the pretrial order of



13

the District Court was both an interlocutory appeal- 
able order under 28 U.S.C. § 1292 and an appealable 
final order under 28 U.S.C. § 1291. (App. p. 80a)

REASONS RELIED ON FOR ALLOWANCE OF WRIT

Each of the considerations referred to in this Court’s 
Rule 19(1) (b) exists with respect to the Fifth Circuit 
opinions for which review is sought.

1. They are contrary to the decisions in the only 
other four cases which petitioners have found of an 
application to a Federal Court of Appeals for a man­
datory injunction to grant final relief pending determi­
nation of an appeal on the merits. There is one such 
case each in the Sixth and Ninth Circuits, the other 
two being in the Fifth Circuit itself (infra p. 21-3).

2. The Federal law question regarding the powers 
of United States Courts of Appeals to grant this type 
of order—either as a matter of inherent authority, by 
precedent in equity, or through legislative enactment, 
is both unique and important. The four orders in 
question appear to be the only four published orders 
of this nature issued by any United States Court of 
Appeals.

3. In the opinion of your petitioners, the action of 
the Court of Appeals in the issuance of the orders con­
cerned has so far departed from the accepted and 
usual course of judicial proceeding as to call for an 
exercise of this Court’s power of supervision. Peti­
tioners concede that applications such as this are not 
favored because made during the pendency of appeals 
in the Court of Appeals. However, it is the position of 
petitioners, and one we believe reasonably taken, that 
the “ deviation from normal appellate processes”



14

phrase in this Court’s Rule 20 is more descriptive of 
the action of the Court of Appeals in the four cap­
tioned cases than of the present application for review.

4. Petitioners recognize that the merits of the pend­
ing appeals involve controversial political and social 
issues, issues evocative of strong emotional reactions 
not always limited to the protagonists. Since we pray 
no review on these issues, we do not urge their im­
portance as a basis for the granting of this petition. 
We do urge the corollary, however, that such cases 
should receive the same tempered measure of judicial 
consideration as more mundane issues and should not 
become a quasi-administrative and summary exception 
to the normal procedures of the Judicial Branch.

5. Three of the four orders abrogate otherwise ap­
plicable and constitutionally valid state legislation.

ARGUMENT

What we are here concerned with, is a relatively 
narrow question. We deal with mandatory as opposed 
to prohibitory injunctions and only those which alter 
rather than maintain or restore a status quo. We are 
concerned solely with appellate interlocutory injunc­
tions and only such of those as grant relief to the ap­
pellant which is the same as the relief he seeks by ap­
pellate process itself, i.e., ‘final’ relief in the action.

It would be futile to deny that the broad powers 
of the United States courts include every form of writ 
which may be required to assure to the ultimately 
prevailing party an effective and meaningful remedy. 
We do deny, however, that such authority extends to 
the granting of anticipatory relief in the nature of in­
stant reversal based on appellate prejudgment of the 
merits.



15

In the following argument, your petitioners will at­
tempt to show first, that there is no statutory basis 
for the orders in question nor any precedent in equity 
or in the opinions of other courts. Second, we will en­
deavor to show that the issuance of the orders in ques­
tion conflicts with decisions in the Sixth and Ninth 
Circuits and with the earlier decisions of the Fifth 
Circuit and deviates from the judicial policies declared 
by this Court.

I. THE AUTHORITIES CITED BY THE COURT OF APPEALS FOR 
THE FIFTH CIRCUIT DO NOT SUSTAIN THAT COURT'S 
POWER TO ISSUE A MANDATORY INJUNCTION, GRANTING 
THE FULL RELIEF SOUGHT BELOW, PENDING DETERMI­
NATION OF AN APPEAL ON THE MERITS.

(a) The "All Writs" Statute (28 U.S.C. § 1651)
(1) Statutory Language

The Court of Appeals assumed jurisdiction to grant 
relief in these cases primarily under the “ All W rits” 
statute, 28 U.S.C. § 1651, which reads:

(a) The Supreme Court and all courts established 
by Act of Congress may issue all writs necessary 
or appropriate in aid of their jurisdictions and 
agreeable to the usages and principles of law. 
(Emphasis added).

This Court has held that the power given to the courts 
under this provision of the Judicial Code is limited, 
and must be exercised in accordance with the prin­
ciples of equity jurisprudence which were known to 
the common law, (United States v. Morgan, 346 U.S. 
502 (1954) ; United States v. Hayman, 342 U.S. 205, 
221 n. 35 (1952)), and which have attached themselves 
over the years to the particular writ in question (Price 
v. Johnston, 334 U.S. 266, 282 (1948)).



16

Tims, in DeBeers Mines v. United States, 325 U.S. 
212 (1945), this Court vacated an injunction issued 
under the statute, after reviewing the “ course of de­
cision in chancery,” and finding that “ No relief of this 
character has been thought justified in the long history 
of equity jurisprudence.” (id., 223)

(2) Principles of Equity

The purpose of the writ of preliminary mandatory 
injunction at common law was “ wholly preventive, 
prohibitory or protective,” with its use being re­
stricted to situations where its effect would be to 
restore the plaintiff to his “ former” or “ original” 
position. 4 Pomeroy’s Equity Jurisprudence, §§ 1337, 
1359 (4th ed. 1919). Thus, where the object of the 
writ is to maintain or restore the status quo ante litem, 
the power of the federal courts to issue preliminary 
mandatory injunctions is clearly recognized. In re 
Lennon, 166 U.S. 548 (1897); Bergen Drug v. Parke 
Davis Co., 307 F. 2d 725 (3rd Cir. 1962).

The preliminary mandatory injunction, like the pre­
liminary prohibitory injunction, has traditionally 
served “ to keep the parties, while the suit goes on, as 
far as possible in the respective positions they occu­
pied when the suit began” (Hamilton Watch Co. v. 
Benrus Watch Co., 206 P. 2d 738, 742 (2d Cir. 1953)). 
But its issuance can be justified only when necessary 
to preserve or restore the status quo pending final 
determination of the merits of a litigation. 28 Am. 
Jur. “ Injunctions” § 17; 15 ALE 2d 213, 234; Toledo 
A.A. and N.M. By. Co. v. Pennsylvania Co., 54 Fed. 
730 (N.D. Ohio 1893).

So firmly established is the equitable principle that 
mandatory preliminary injunctive relief will be



17

granted only to maintain the status quo ante litem 
that the Federal district courts have refused, through 
the years, to grant relief beyond that limited scope. 
See Clune v. Publishers Assoc, of New York City, 214 
F. Supp. 520 (S.D.N.Y. 1963) ; Gantt v. Clemson Agr. 
Coll, of So. Car., 208 F. Supp. 416 (W.D. So. Car. 
1962); Willheim v. Murchison, 203 F. Supp. 478 
(S.D.N.Y. 1962), aftVI Willheim v. Investors Diversi­
fied Services, Inc., 303 F. 2d 276 (2d Cir. 1962); 
Winton Motor Carriage Co. v. Curtis Publishing Co!, 
196 Fed. 906 (E.D. Pa. 1912); and American Lead 
Pencil v. Schneegass, 178 Fed. 735 (N.D. Ga. 1910).

In those cases where the district courts have ex­
ceeded their equity jurisdiction and granted relief 
requiring affirmative action beyond that necessary to 
reinstate a pre-existing status quo, they have been 
summarily reversed. See Tanner Motor Livery v. 
Avis, Inc., 316 F. 2d 804 (9th Cir. 1963) ; Miami Beach 
Federal Savings and Loan Assoc, v. Callander, 256 F. 
2d 410 (5th Cir. 1958) ; Warner Bros. v. Gittone, 110 
F. 2d 292 (3d Cir. 1940) ; and United States v. Adler’s 
Creamery, 107 F. 2d 987 (2d Cir. 1939).

A correlative equity principle is that the merits of 
the controversy are not to be decided on an applica­
tion for preliminary relief. Tanner Motor Livery v. 
Avis, Inc., supra; and Miami Beach Federal Savings 
& Loan Assoc, v. Callander, supra-. From this prin­
ciple has developed the firmly rooted rule that where 
the granting of a preliminary injunction would give 
to the plaintiff all the relief to which he would be en­
titled were he to obtain a final decree in his favor on 
the merits, the request for preliminary relief should 
be denied. Tanner Motor Livery v. Avis, Inc., supra; 
Mack v. General Motors Corp., 260 F. 2d 886 (7th Cir.



18

1958) ; Westinghouse v. Free, 256 P. 2d 806 (7th Cir. 
1958); United States v. Adler’s Creamery, supra; 
Gantt v. Clemson Agr. Coll, of So. Car., supra; Will- 
heim v. Investors Diversified Services, Inc., supra; 
and American Lead v. Scheegass, supra.

In each of the instant cases, the application of re­
spondents for injunctive relief both temporary and 
permanent was to alter a pre-existing status in their 
favor. To give them such relief preliminarily is to give 
them what they would at most be entitled to if they bad 
succeeded on the merits after trial and appeal. As the 
Third Circuit said in Warner Bros. v. Gittone, supra:

. . . the effect of the preliminary injunction which 
the court granted was not to preserve the status 
quo but rather to alter the prior status of the 
parties fundamentally. Such an alteration may 
be directed only after final hearing, the office of 
a preliminary injunction being, as we have pointed 
out, merely to preserve pendente lite the last 
actual noncontested status which preceded the 
pending controversy. . . .
Irreparable loss resulting from refusal to accord 
plaintiff a new status, as distinguished from inter­
ference with rights previously enjoyed by him, 
does not furnish the basis for interlocutory" relief. 
110 P. 2d 292, 293.

(b) Other Statutes

In addition to its stated reliance on 28 U.S.C. § 1651, 
the Court of Appeals has referred to 28 U.S.C. §§ 1291 
and 1292 as sources of such authority (App. pp. la, 
2a, 80a). 28 U.S.C. §1291 confers upon courts of
appeals “ jurisdiction of appeals from all final deci­
sions of the district courts of the United States. . . . ” 
28 U.S.C. § 1292(a) (1) gives the courts of appeals



19

“jurisdiction of appeals from: (1) Interlocutory 
orders of the district courts of the United States . . 
(italics ours).

Petitioners submit that the Fifth Circuit is clearly 
in error in its reference to these provisions. Both sec­
tions confer jurisdiction over the merits of an appeal, 
not a new and different writ power. Petitioners con­
cede that these appeals are properly pending in the 
Fifth Circuit, that that Court’s jurisdiction extends 
to their merits. What we say is that this does not 
concern the form in which the Court must exercise 
its admitted jurisdiction, this does not change the 
nature of the judicial process.

(c) Opinions Cited by the Court of Appeals

In its opinions in these cases, the Court of Appeals 
has cited as its precedent on appellate injunctive power 
the cases themselves. I t has additionally cited deci­
sions, not here relevant, to distinguish between final 
and interlocutory orders, the power of District Courts 
over substantive aspects of school plans, and the power 
of a Court of Appeals to make its mandate effective 
through District Court orders.

But, apart from the eases for which review is here 
sought no other decision referred to by the Court of 
Appeals is authority for the existence of appellate 
power to issue the type of injunction in question. 
Although four other decisions are cited for the claimed 
authority, each of them concerns only a prohibitory 
order intended to prevent a change in the status quo 
which would make ineffective the appellate remedy.

United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), 
(cited in Gilson, App. p. 80a) reversed a denial by the



20

District Court of a temporary restraining order against 
state prosecution pending a hearing for preliminary 
injunction because the District Court’s action deter­
mined “ substantial rights of the parties which will be 
irreparably lost if review is delayed until final judg­
ment” (295 F. 2d 772, 778).5

Cooper v. Aaron, 358 U.S. 1 (1958) was also cited in 
Gibson. I t affirms Aaron v. Cooper, 257 F. 2d 33 (8th 
Cir. 1958), reversing a District Court suspension of a 
court approved school integration plan after a hearing 
of the case on the merits. In its St ell opinion (App. 
p. la), the Fifth Circuit cited the other Aaron v. Cooper 
decision, 261 F. 2d 97 (8th Cir., 1958), restraining the 
leasing of public schools to a private school corporation 
pending a final determination on the merits. Also cited 
in St ell was Toledo Scale Co. v. Computing Scale Co., 
261 U.S. 399 (1923), where this Court upheld the power 
of a Court of Appeals under the “All W rits” statute to 
direct a District Court to enjoin a party to a suit before 
it from interfering with the Court’s process by bringing 
a conflicting suit in another jurisdiction.

Your petitioners submit that none of the foregoing 
decisions constitutes acceptable precedent for the extra­
ordinary writ powers claimed by the Court of Appeals 
in the instant cases.

5 Since the granting or denial of a temporary restraining order 
is not ordinarily appealable, the Circuit held this to be a reviewable 
“ final order” under 28 U.S.C. § 1291.



21

II. THE ORDERS SOUGHT TO BE REVIEWED ARE IN CONFLICT 
WITH THE DECISIONS IN OTHER CIRCUITS AND WITH 
PRIOR DECISIONS IN THE FIFTH CIRCUIT.

Your petitioners’ research has found only four other 
cases in which affirmative interlocutory injunctions 
approximating final relief have been asked of a United 
States Court of Appeals. In each of the four such 
relief has been denied.

In Dunn v. Retail Clerks International Association, 
299 P. 2d 873 (6th Cir. 1962), the Court of Appeals 
refused to issue a mandatory injunction pending appeal 
compelling a regional director of the National Labor 
Relations Board to bring legal action against alleged 
unlawful picketing or, in the alternative, to issue an 
injunction directly enjoining the picketing. The relief 
had been denied by the District Court, in an action 
brought by the owners of the property being picketed, 
not by the regional director of the NLRB. The District 
Court also had denied an application for a mandatory 
injunction pending appeal.

The statement of the case by the Court of Appeals 
indicates its similarity to the present litigation (299 P. 
2d 873, 874) :

“ The relief prayed for here is much broader than 
a mere restraining order preserving the status quo. 
* * * * * * * * *
“ The mandatory order which appellants request 
is the ultimate relief sought in the District Court 
and in this appeal. To obtain such relief appel­
lants would have to prevail on the merits of the 
case. We ought not to grant temporary relief 
which would finally dispose of the case on its 
merits . . . ”

The same conclusion was reached by the Court of 
Appeals for the Ninth Circuit in Hess v. Woods, 185



22

F. 2d 404 (9th Cir. 1950). The District Court had 
denied an injunction against the continuing enforce­
ment of the Housing and Rent Act of 1947 on the 
ground that it was being asked to change the status 
quo. Plaintiffs applied to the Court of Appeals for an 
immediate “ restraining order” and “ injunction” 
against the Housing Expediter and his subordinates, 
which in denying the application, stated (185 F 2d 
404) :

“ In short, we are asked to suspend all activity of 
an important governmental agency before the'ap­
peal is before us for adjudication as to whether 
the District Court should take jurisdiction and try 
the case on the merits. No order with such far- 
reaching consequences should be made by any 
court before the merits of the controversy have 
been tried and adjudicated.”

In two earlier civil rights type cases, the Court of 
Appeals for the Fifth Circuit has itself denied manda­
tory injunctive relief pending determination of the 
merits of the appeals on the same ground, following 
denials of such injunctions by the trial court. In Mere­
dith v. Fair, 305 F. 2d 341 (5th Cir. 1962), an appeal 
was taken from a District Court denial of an interlocu­
tory order compelling a state university to admit the 
negro plaintiff. The plaintiff then moved the Court of 
Appeals for such an injunction during the pendency of 
his appeal. In denying this motion, the Court noted 
that “ the testimony taken before the district court is 
not yet available to this Court” and stated that judg­
ment should be withheld until there had been “ an op­
portunity to study the full record and testimony on the 
hearing before the district court” (id., 341-2).

The same ruling was made in Greene v. Fair, 314 F. 
2d 200 (5th Cir. 1963), where the District Court had 
abstained from ruling on plaintiff’s university admis-



23

sion request, pending his applying to the admissions 
committee of the school. Plaintiff prayed for an in­
junction pending appeal to compel his immediate ad­
mission, asserting that 28 U.S.C. § 1651 gave the Court 
power to take such action. The Court denied any 
interlocutory mandatory relief, pointing out that (id., 
202) “ The rules of this Court make possible a prompt 
hearing of all regularly docketed appellate cases.”6

As to the views of that Court on such injunctions 
when issued by a District Court, Chief Judge Tuttle 
has stated:

“ Upon analyzing the trial court’s order, issued 
without any evidence being submitted, even though 
perhaps at least partially at the instigation and 
insistence of the litigants, it appears much broader 
than the relief requested and than the question at 
hand. The matter before the court was a motion 
for a preliminary injunction which by its nature 
has the purpose of preserving the status quo to 
prevent irreparable injuries until the merits of 
the issues can be decided.

*  *  *

“ The judgment awarded appears to provide the 
plaintiffs with practically all of the relief, if not 
more, than they sought on the merits, . . .

*  *  *

“ We have repeatedly held that an order for a 
temporary injunction does not and cannot decide

6 Possibly because nothing is left to be accomplished by a hear­
ing on the merits, it is only in St ell of the four cases here con­
sidered that respondents have filed a record or taken other action 
to bring the matter on for a hearing on appeal. Moreover, in St ell 
within the past week, appellants have moved for further time to 
file a supplemental record covering District Court proceedings 
directed by the interlocutory order here complained of and which 
occurred after the appeal was taken—necessarily relevant only to 
issues created by the appellate injunction, not the merits of the 
case as tried!



24

the merits of the case . . . ” Miami Beach Federal 
Sav. & Loan Assoc, v. Callander, 256 F. 2d 410, 415 
(5th Cir. 1958)

III. THIS COURT, IN THE EXERCISE OF ITS SUPERVISORY 
POWERS OVER THE LOWER FEDERAL COURTS, SHOULD 
VACATE THE INJUNCTIONS GRANTED IN THESE CASES 
AND REMAND TO THE COURT OF APPEALS FOR PROMPT 
HEARINGS ON THE MERITS.

The procedural issue raised by this application is 
a narrow, hut extremely important one in the admin­
istration of justice. There is no effective control ex­
cept judicial self-control in defining the incidents of 
judicial power. I t is in cases such as these four, whose 
merits concern deeply controversial issues, that courts 
will always have the greatest difficulty in adhering to 
established practice.

Mr. Justice Holmes’ famous dissent in Northern 
Securities Co. v. United States, 193 II.S. 197, 400-1 
(1904), describes the problem:

“ Great cases like hard cases make bad law. For 
great cases are called great, not by reason of their 
real importance in shaping the law of the future, 
but because of some accident of immediate over­
whelming interest which appeals to the feelings 
and distorts the judgment. These immediate 
interests exercise a kind of hydraulic pressure 
which makes what previously was clear seem 
doubtful, and before which even well-settled prin­
ciples of law will bend.”

Mr. Justice Frankfurter, concurring in Joint Anti- 
Fascist Befugee Committee v. McGrath, 341 U.S. 
123,149 (1951), recognized that where legal issues were 
“ inescapably entangled in political controversies” and 
“ touch the passions of the day,” it was the duty of 
the Courts to “ dispose of a controversy within the 
narrowest confines that intellectual integrity per-



25

mits.” Concurring in Dennis v. United States, 341 
U.S. 494, 528 (1951), he said:

“ Unless we are to compromise judicial impar­
tiality and subject these defendants to the risk of 
an ad hoc judgment influenced by the impregnating 
atmosphere of the times, the constitutionality of 
their conviction must be determined by principles 
established in cases decided in more tranquil 
periods.”

This Court in DeBeers Mines v. United States, 
325 U.S. 212, 222 (1945), adhered to precedent in the 
face of strong pressure from the Government to in­
crease the scope of judicial authority:

“ This suit, as we have said, is not to be distin­
guished from any other suit in equity. What 
applies to it applies to all such.”

* * *
The powers exercised by the Court of Appeals are 

not known to equity, are not granted by statute, they 
circumvent the established course of appellate review, 
directly affect the integrity of the judicial process, the 
administration of the courts and create conflict between 
circuits. Review by certiorari should be granted as 
prayed.

Respectfully submitted,
Geo. S tephen  L eonard 
R eid B. B arnes 

Attorneys for Respondents
Of Counsel:

R. Carter P ittman  
Charles J. B loch 
J. W alter Cowart 
R ichard L. H irshberg 
R obert C. M aynard



APPENDIX



la

APPENDIX

OPINIONS OF COURTS BELOW

U N IT E D  STA TES COU RT OE A PPEA L S 

F IF T H  C IR C U IT

R a l p h  S t e l l  e t  al ., Appellants, 
v.

S a v a n n a h -C h a t h a m  C ounty  B oard of E ducation  et  al .,
Appellees.

No. 20557.

May 24, 1963.

E. H. Gadsden, B. Clarence Mayfield, Savannah, Ga., 
Constance Baker Motley, New York City, for appellants.

J . W alter Cowart, Savannah, Ga., Charles J . Bloch, 
Macon, Ga., E. Freeman Leverett, Elberton, Ga., R. Basil 
Morris, Savannah, Ga., for appellees.

Before T u t t l e , Chief Judge, and R ives  and B e l l , Circuit 
Judges.

T u t t l e , Chief Judge.
This is a motion for an injunction to be entered by this 

Court pending our consideration on the merits of an appeal 
from an order of the District Court for the Southern Dis­
trict of Georgia dated May 13, 1963, denying appellants’ 
motion for a preliminary injunction requiring a prompt 
start to the desegregation of the Savannah-Chatham County 
Schools.

A judgment denying a motion for preliminary injunction 
is an appealable order, though interlocutory. 28 U.S.C.A.



2a

§ 1292(1). This Court has the power to issue all writs 
necessary or appropriate in aid of its jurisdiction and agree­
able to the usages and principles of law. 28 U.S.C.A. § 
1651(a). An injunction pending appeal is such a writ. 
Aaron v. Cooper, 8 Cir., 261 F.2d 97, 101. The power 
granted to Courts of Appeal under Section 1651, commonly 
known as the “ All W rits” statute is meant to be used only 
in the exceptional case where there is clear abuse of dis­
cretion or usurpation of judicial power. Bankers Life & 
Casualty Company v. Holland, 346 U.S. 379, 74 S.Ct. 145, 
98 L.Ed. 106. I t should be invoked only in ‘ ‘ extreme cases. ’ ’ 
LaBuy v. Hawes Leather Company, 352 H.S. 249, 77 S.Ct. 
309, 1 L.Ed.2d 290. This is such a case.

The trial court made the following finding of fact touch­
ing on the critical question as to whether the prim ary and 
secondary schools of Savannah-Chatham County are ra ­
cially segregated:

“ The prim ary and secondary public schools of ,Sa- 
vannah-Chatham County are divided into schools for 
white pupils and schools for negro pupils and admis­
sion thereto is limited to applicants of the respective 
races.”

The Supreme Court of the United States, in Brown v. 
Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 
98 L.Ed. 873, said:

“ We conclude that in the field of public education the 
doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal. There­
fore, we hold that the plaintiffs and others similarly 
situated for whom the actions have been brought are, 
by reason of the segregation complained of, deprived of 
the equal protection of the laws guaranteed by the 
Fourteenth Amendment.”

This decision by the Supreme Court should have ended 
the m atter for the district court to the extent that upon



3a

its making this determination its duty was then to do what 
the Supreme Court directed to be done upon the second 
appearance of the Brown v. Board of Education case in the 
Supreme Court, 349 U.S. 294, at page 300, 75 S.Ct. 753, 
at page 756, 99 L.Ed. 1083, where the Court said:

‘ ‘ The courts will require that the defendants make a 
prompt and reasonable start toward full compliance 
with our May 17, 1954, ruling. Once such a start has 
been made, the courts may find that additional time 
is necessary to carry out the ruling in an effective 
manner.”  (Emphasis added).

Instead of doing this the trial court permitted an inter­
vention by parties whose sole purpose for intervening was 
to adduce proof as a factual basis for an effort to ask the 
Supreme Court to reverse its decision in Brown v. Topeka 
Board of Education. The court then permitted evidence 
in support of this approach by the intervenors, and denied 
the appellants’ motion for preliminary injunction solely on 
the basis of such evidence, which, briefly stated, tended to 
support the thesis that compliance with the Supreme 
Court’s decision would be detrimental to both the Negro 
plaintiffs and to white students in the Savannah-Chatham 
County school system.

The district court for the Southern District of Georgia 
is bound by the decision of the United States Supreme 
Court, as are we. Unless and until that Court overrules 
its decision in Brown v. Topeka, no trial court may, upon 
finding the existence of a segregated school system, refrain 
from acting as required by the Supreme Court merely be­
cause such district court may conclude that the Supreme 
Court erred either as to its facts or as to the law.

It is, therefore, clear that on the day of the entry by 
the trial court of its order it was a clear abuse of its dis­
cretion for the trial court to deny appellants’ motion for 
a preliminary injunction requiring the defendant School



4a

Board to make a prompt and reasonable start towards de­
segregating the Savannah-Chatham Connty schools.

In  such circumstances, because it has now been more 
than nine years since the Supreme Court made it plain what 
the duties of the Boards of Education are under such cir­
cumstances, and because any further delay might prevent 
the enjoyment by the appellants of their clear rights as of 
the beginning of a new school year in September, 1963, we 
must determine what relief should be granted in response 
to this present motion.

We have heretofore concluded that this Court has the 
power to grant an injunction pending the final hearing of 
the case on the merits in the Court of Appeals. However, 
it is clearly more desirable for injunctive relief to be 
granted at the level of the trial court rather than by an ap­
pellate court if the same necessary results can be accom­
plished. Included in the powers of the Court of Appeals 
under the All-Writs ‘Statute, is the power of the Court of 
Appeals to frame the terms of an injunction and direct the 
trial court to enter such injunction and make it the order of 
the trial court. See Toledo Scale Co. v. Computing Scale 
Co., 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719. There the 
Supreme Court sa id :

“ Under § 262 of the Judicial Code [the predecessor 
of the All-Writs statute] [the Court of Appeals] had 
the right to issue all writs not specifically provided for 
by statute which might be necessary for the exercise of 
its appellate jurisdiction. I t  could, therefore, itself 
have enjoined the Toledo Company from interfering 
with the execution of its own decree, Merrimac River 
Savings Bank v. Clay Center, 219 U.S. 527, 535 [31 
S.Ct. 295, 55 L.Ed. 320]; or it could direct the District 
Court to do so, as it did.” 261 U.iS. 399, 426, 43 S.Ct. 
458, 465, 67 L.Ed. 719.



5a

We think it appropriate, therefore, to frame an injunc­
tion and direct by mandate that this injunction be made the 
order of the District Court.

It is, therefore, ordered that the District Court for the 
Southern District of Georgia enter the following judgment 
and order:

“ The defendant, Savannah-Chatham County Board 
of Education and the other individual defendants (nam­
ing them specifically) and their agents, servants, em­
ployees, successors in office and those in concert with 
them who shall receive notice of this order, be and they 
are hereby restrained and enjoined from requiring and 
permitting segregation of the races in any school under 
their supervision, from and after such time as may be 
necessary to make arrangements for admission of chil­
dren to such schools on a racially non-discriminatory 
basis with all deliberate speed, as required by the Su­
preme Court in Brown v. Board of Education of 
Topeka, 349 U,S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.

“ It is further ordered, adjudged and decreed that 
said persons be and they are hereby required to sub­
mit to this Court not later than July 1, 1963, a plan 
under which the said defendants propose to make an 
immediate start in the desegregation of the schools of 
Savannah-Chatham County, which plan shall include 
a statement that the maintenance of separate schools 
for the Negro and white children of Savannah shall 
be completely ended with respect to at least one grade 
during the school year commencing September, 1963, 
and with respect to at least one additional grade each 
school year thereafter.”

This order shall remain in effect until the final deter­
mination of the appeal of the within case in the Court of 
Appeals for the F ifth  Circuit on the merits and until the 
further order of this Court. During the pendency of this



6a

order the trial coart is further directed to enter such other 
and further orders as may be appropriate or necessary in 
carrying out the expressed terms of this order.

The Clerk is directed to issue the mandate forthwith.

U N IT E D  STA T E S COU RT OF A PPEA L S 

F IF T H  C IR C U IT

B irdie  M ae D avis e t  al ., Appellants, 
v.

B oard of S chool  C o m m issio n er s  of M obile C o u n ty , 
A labama  et  al ., Appellees.

No. 20657.

July 9, 1963.
On Rehearing July 18, 1963.

Dissenting Opinion July 30, 1963. 
# # # * # # # # * *

Vernon Z. Crawford, Mobile, Ala., C. B. Motley, New 
York City, for appellants.

George F. Wood, Mobile, Ala., Joseph F. Johnston, B ir­
mingham, Ala., for appellees.

Before B r o w n , W isdom  and B e l l , Circuit Judges.

P er  C u r ia m .

Plaintiffs here seek an injunction by this Court pending 
our determination of the merits of an appeal from an order 
entered on June 24, 1963, by the District Court for the 
Southern District of Alabama. This suit originated when 
Plaintiffs filed a class action seeking the desegregation of 
the Mobile County school system. Plaintiffs sought an 
immediate order requiring the Defendant School Commis-



7a

sioners to submit a plan of desegregation within thirty 
days. This motion was denied by the District Court. In  
the alternative, Plaintiffs sought a preliminary and per­
manent injunction prohibiting the further operation of seg­
regated schools. The Court took this motion under sub­
mission and ordered briefs to be filed within a specified time. 
Plaintiffs appealed from this ruling asserting that the 
failure to immediately rule on the motion for preliminary 
injunction amounted to a denial of the motion. On that 
appeal, this Court held that the trial Judge had not abused 
his discretion. Davis v. Board of School Commissioners 
of Mobile County, 5 Cir., 1963, 318 F.2d 63.

Subsequently, the District Court held a hearing and made 
the following determination. By its order of June 24, the 
Court denied Plaintiffs ’ motion for preliminary injunction. 
The case was set for trial on November 14, 1963 and the 
Defendants were directed “ to present at the trial * * * a 
specific plan for the operation of the schools under their 
authority and control on a racially non-discriminatory basis, 
consistent with the principles established by the Supreme 
Court, to commence not later than the beginning of the 
1964-65 school year.” I t is from this order that Plaintiffs 
have appealed to this Court, seeking in the meantime an 
injunction requiring the Mobile County schools to commence 
integration not later than September 1963.

We are in agreement with Plaintiff’s theory. The De­
fendant Board has not come forward with an acceptable 
reason why the integration program should be further 
delayed. No one disputes that the public schools of Mobile 
County are presently operated on a segregated basis.

“ I t  is now more than nine years since this Court held 
in the first Brown decision * * * 347  U.S. 483, 74 S.Ct. 
686 , 98 L.Ed. 873, that racial segregation in state public 
schools violates the Equal Protection Clause of the 
Fourteenth Amendment.
* * # * • # * * #



8 a

“ Given the extended time which has elapsed, it is far 
from clear that the mandate of the second Brown de­
cision [349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083] re­
quiring 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. Brown never contemplated that the concept 
of ‘ deliberate speed’ would countenance indefinite delay 
in elimination of racial barriers in schools * # 
Watson v. City of Memphis, 1963, 373 U.S. 526, 83 
S.Ct. 1314, 10 L.Ed.2d 529.
“ Now * * * eight years after [the second Brown de­
cision] was rendered and over nine years after the 
first Brown decision, the context in which we must 
interpret and apply this language [‘all deliberate 
speed’] to plans for desegregation has been signifi­
cantly altered.” Goss v. Board of Education of City 
of Knoxville, 1963, 373 U.S. 683, 83 S.Ct. 1405, 10 
L.Ed.2d 632.

The District Judge in his memorandum opinion discusses 
two principal reasons why preliminary injunctive relief 
should not now be granted. The first is that there would 
be an impossible administrative burden placed on the school 
system. The second is the Court’s belief, based upon ex­
perience over the past several years in other race civil 
rights matters, that if this action is not too hastily taken, 
the problem will work itself out with no strife or similar 
consequences.

For reasons which bear on both of them, we think neither 
of these grounds is sufficient. The administrative problem 
is not one created by the Plaintiffs. They have for nearly 
a year sought without success to get the school authorities 
to desegregate the schools. The fact that the suit was not 
filed until March 1963 is not therefore of controlling im-



9a

portance. As to the second ground, there is nothing on the 
present record to afford either the District Judge or this 
Court any assurance that the requested forebearance will 
produce effective results. The Defendants have not even 
answered as yet. They have filed a motion to dismiss for 
failure to state a claim. Although it seems to be acknowl­
edged on all hands that a racially segregated system is still 
maintained, the Defendants’ legal position under this mo­
tion is that the Plaintiffs have not set forth a claim entitling 
them to relief. So far as this record shows, the Defendant 
school authorities have not to this day ever acknowledged 
that (a) the present system is constitutionally invalid or 
(b) that there is any obligation on their part to make any 
changes at any time. At this late date the Plaintiffs, who 
represent Negro children who are presently being denied 
constitutional rights, are entitled to minimum effective 
relief. With the trial date now fixed in November, it means 
that effective relief is denied for another school year with 
no assurance that even at such later date anything but a 
reaffirmation of the teaching of the Brown decision will be 
forthcoming. The Plaintiffs showed a clear case entitling 
them to interim relief pending a final hearing, and it was 
an abuse of the District Court’s discretion not to enter 
a preliminary injunction.

The “ All W rits”  statute, 28 U.S.C.A. §1651, gives us 
the power to grant the relief sought by Plaintiffs. Stell 
v. Savannah-Chatham County Board of Education, 5 Cir., 
1963, 318 F.2d 425. However, as in that case, we think it 
more appropriate to frame the injunction and direct by 
mandate that this injunction be made the order of the 
District Court.

I t is  therefore, O rdered that the District Court for the 
Southern District of Alabama enter the following judgment 
and order:

“ The Defendant, Board of School Commissioners of 
Mobile County and the other individual Defendants



1 0a

(naming them specifically) and their agents, servants, 
employees, successors in office and those in concert with 
them who shall receive notice of this order, he and 
they are hereby restrained and enjoined from requir­
ing and permitting segregation of the races in any 
school under their supervision, from and after such 
time as may be necessary to make arrangements for 
admission of children to such schools on a racially non- 
discriminatory basis with all deliberate speed, as re­
quired by the Supreme Court in Brown v. Board of 
Education of Topeka, 1955, 349 U.S. 294, 75 S.Ct. 753, 
99 L.Ed. 1083.

“ I t  is further ordered, adjudged and decreed that 
said persons be and they are hereby required to make 
an immediate start in the desegregation of the school 
of Mobile County, and that a plan be submitted to the 
District 'Court by August 1, 1963, which shall include 
a statement that the maintenance of separate schools 
for the Negro and white children of Mobile County shall 
be completely ended with respect to the first grade 
during the school year commencing September 1963, 
and with respect to at least one successively higher 
additional grade each school year thereafter.”

The District Court may modify this order to defer de­
segregation of rural schools in Mobile County until Septem­
ber 1964, should the District Court after further hearing 
conclude that special planning of administrative problems 
for rural schools in the county make it impracticable for 
such schools to start desegregation in September 1963.

This order shall remain in effect until the final determi­
nation of the appeal of the within case in the Court of 
Appeals for the F ifth  Circuit on the merits, and until the 
further order of this Court. During the pendency of this 
order the trial court is further directed to enter such other



1 1a

and further orders as may be appropriate or necessary in 
in carrying out the expressed terms of this order.

The Clerk is directed to issue the mandate forthwith.
B e l l , Circuit Judge (dissenting).

I dissent. I  would support the view of the District Judge 
that the time remaining before the opening of school in 
September is insufficient to make the change from a segre­
gated to a desegregated school system as requested.

The chance of disruption of the educational process in 
Mobile likely to be encountered in planning and effecting 
the necessary changes on such short notice outweighs 
the damage which may be incurred by Plaintiffs in wait­
ing another year. Thus, I  would not hold that the Dis­
trict Judge abused his discretion. The loss of the year 
can be made up by requiring that two grades be desegre­
gated beginning in 1964. I  would join in the order if it 
encompassed this change.

Time for the effectuation of orderly school manage­
ment procedures is essential, and we should be careful not 
to give rise to an untoward situation in school administra­
tion at this late hour. Registration for the upcoming term 
has been completed, and school officials and staffs are in 
the vacation season. This is particularly so where we are 
passing on a motion in a case not filed until March, 1963.

On Petition for Rehearing

P er Cu r ia m .

This m atter is before the Court on the petitioners’ ap­
plication for a rehearing.

July 9, 1963, this Court by mandate directed the District 
Court to enter an injunction and order requiring the Board 
of Commissioners of Mobile County to submit to the Dis­
trict Court by August 1, 1963, a step-ladder plan for de­
segregating the public schools in Mobile, starting with



1 2a

the first grade in September 1963. Three days later, an­
other panel of the Court decided Armstrong v. Board of 
Education of the City of Birmingham, No. 20595, 5 Cir., — 
F.2d —. In  that case the Court declined to issue an in­
junction pending appeal which would go so far as to pro­
vide “ when and how the complete desegregation of 
the public schools may be accomplished.”  The Court’s 
mandate requires the Birmingham School Board to sub­
mit by August 19, 1963, a plan for an immediate start 
in desegregation by applying the Alabama Pupil Place­
ment Law to all school grades.

At this initial stage in the travail of desegregating 
the public schools in Alabama, the School Boards of Mobile 
and Birmingham face substantially the same social, legal, 
and administrative difficulties. We express no opinion of 
the merits of uniformity in school desegregation as against 
a school board’s tailoring a plan and a trial judge’s 
shaping a decree, to fit a particular school system. 
But we have reached the conclusion that at this early 
point in the legal proceedings, at a time when no school 
board in Alabama has formulated any plan for desegre­
gation, there should not be one law for Birmingham and 
another for Mobile. We have decided therefore to con­
form the Mobile order to the Birmingham order.

Accordingly, the Court amends the judgment and 
order of Ju ly  9, 1963, issued as the mandate, by de­
leting the following paragraph:

“ I t  is further ordered, adjudged and decreed 
that said persons be and they are hereby required to 
make an immediate start in the desegregation of the 
school of Mobile County, and that a plan be sub­
mitted to the District Court by August 1, 1963, which 
shall include a statement that the maintenance of 
separate schools for the Negro and white children of 
Mobile County shall be completely ended with respect 
to the first grade during the school year commencing



13a

September 1963, and with respect to at least one suc­
cessively higher additional grade each school year 
thereafter. ’ ’

and, in lieu thereof, directs the District Court for the 
Southern District of Alabama to enter the following para­
graph as its judgment and o rder:

“ It is further ordered, adjudged and decreed that 
said persons be and they are hereby required to sub­
mit to this Court not later than August 19, 1963, a 
plan under which the said defendants propose to make 
an immediate start in the desegregation of the schools 
of Mobile County, Alabama, which plan shall effec­
tively provide for the carrying into effect not later 
than the beginning of the school year commencing 
September 1963 and thereafter of the Alabama 
Pupil Placement Law as to all school grades with­
out racial discrimination, including ‘the admission 
of new pupils entering the first grade, or coming 
into the County for the first time, on a nonracial 
basis,’ Augustus v. Board of Public Instruction, 5 
Cir., 1962, 306 F.2d 862, 869 (that opinion describes 
such a plan which has been approved and is operat­
ing in Pensacola, F lorida).”

As in the Birmingham decision, the order contem­
plates a full hearing before the District Court. The 
District Court will therefore go forward with the trial 
already fixed for November 14, 1963.

Except to the extent expressly granted herein, the peti­
tioners’ application for a rehearing is denied.

The Clerk is directed to issue the mandate, as amended, 
forthwith.

Bele, Circuit Judge (concurring in part and dissenting 
in part).

The modification by the majority of their prior order 
in this case compounds error. Of course, I agree to the



14a

modification to the extent that it may alleviate disruption 
of the educational process in Mobile during the 1963-1964 
school term.

My understanding of this latest order is not altogether 
clear. I t  appears to simply require activation, under some 
plan yet to he worked out, of the Alabama School Placement 
Law which was adopted by the Legislature of that State 
in 1957, and which was approved as constitutional on its 
face in Shuttleworth [sic] v. Birmingham Board of Educa­
tion, N.D.Ala., 1958, 162 F.Supp. 372, affirmed 358 U.S. 101, 
79 S.Ct. 221, 3 L.Ed.2d 145. I t is not likely that any 
appreciable amount of desegregation will take place under 
that law at this late date. The protective measures 
assured by Judge Lynne in the Armstrong case of a 
hearing on complaints if and where the plan or law 
is administered on the basis of race on five days no­
tice is not present in Mobile. I t  is an inherently com­
plicated law providing many factors which may he con­
sidered in making pupil assignments. We have only 
recently eliminated two of them in the Atlanta school case 
where we said that the use of scholastic standards and 
personality interviews as a basis in transfer and as­
signment were illegal per se when applied only to Negroes. 
Calhoun v. Latimer, 5 Cir., 1963, 321 F.2d 302. Others 
were eliminated or limited when that case was in the 
District Court. Calhoun v. Board of Education, N.D.Ga., 
188 F.Supp. 401. Working out a meaningful plan will 
not be easy, and will require more than the cursory and 
perfunctory treatm ent the case has received here.

Moreover, what was done in Birmingham may or may 
not he relevant to Mobile. The case there had been pend­
ing in the District Court some three years. The Dis­
trict Court conducted a hearing and had certain repre­
sentations from the school hoard as to how the Pupil Place­
ment Law would be administered. Here no party  has 
ever mentioned using this law. The District Court has 
never considered it.



15a

This case is set for trial on the merits in November. A 
pending motion to dismiss is set at the same time. The 
District Court has ordered the school board to propose 
at that time a plan for desegregation of the school 
system beginning in September 1964 within the teachings 
of the Supreme Court decisions on that subject.

I t  has been the position of appellants that their 
ultimate right to a desegregated school system is cast 
in doubt by the pending motion to dismiss, and the 
fact that the case is set for trial on the merits even 
though the school system is now segregated. One of 
the real thrusts of the appeal is their contention that they 
cannot be certain that desegregation will become a reality 
in the school term commencing in September 1964 because 
of this posture of the case. An order of the type 
originally entered but making desegregation effective 
with the beginning of school in September 1964, and 
in at least two grades, should serve to dispel this 
doubt and the record warrants such an order. In [sic] war­
rants nothing more. The school board would have the 
opportunity in the interim of formulating a desegregation 
plan, subject to court approval, and making ready for the 
good faith adaptation of the plan.

The modification has been neither sought nor considered 
and will come as a great surprise to all. I t  will in all 
probability be ineffective. I  do not understand the in­
ordinate hurry in this case. I t  has only been pending 
three and one half months. I t  has been to this court 
twice in that short time.

Probably no party  will consider the relief granted or 
denied to be a victory, but what has been done is at the 
expense of the judicial process. A Court of Appeals 
should not sit as a District Court in chancery to 
mold and enter an equitable decree affecting an entire 
school system in a metropolitan community without hear­
ing from the parties on the nature of the decree, and



16a

without facts before it to serve as a basis for the decree. 
The All-Writs Statute, 28 U.S.C.A., § 1651, does not au­
thorize this. I t  must contemplate rules of procedure, no­
tice, record facts, and an opportunity to be heard, all after 
time for consideration by the District Court. I t  applies 
only in cases of emergency proportions. To state this 
belief is to at once demonstrate that I  cannot join in 
the procedure here. Therefore, I must dissent, except 
as otherwise stated, with the admonition that more 
constitutional rights will be lost than gained in the 
long run by departure from procedures which have 
stood the test of time, and which are a part of due 
process of law as we have heretofore known it. In 
fact, more may be eventually lost in this very case.

While this appeal must have been considered as 
presenting something in the nature of a judicial emergency 
in the beginning; otherwise it would not have been twice 
advanced over the many other cases pending in this court, 
it is plain to me that it now has no emergency proportions. 
I  would remand it to the District Court for action on the 
basis of reasoned and informed discretion in the light of 
necessary facts and argument, consistent with the law 
in the premises and the guidelines which I have set 
out regarding September 1964.

C am ero n , Circuit Judge (dissenting).
On July 11, 1963, I  requested a hearing of this case en 

banc by writing all of the Judges of the Court in active 
service as follows:

“ Pursuant to Rule 25(a) of this Court, I  hereby 
initiate consideration by each of the Circuit Judges 
in active service of whether to order a hearing or re­
hearing of this case en banc. Included in this motion is 
the request that the issuance of the mandate be stayed 
until the attitude of the members of the Court can 
be ascertained and that the Chief Judge proceed 
to poll the Court on this motion. * * *



17a

“ I  am of the opinion * * * that the case was 
not legally advanced for hearing or placed on the 
docket for hearing at the time it was heard, it being 
my understanding that the order was signed by 
Judge Tuttle on June 28th after the judgment of 
the district court had been entered June 24th.

“ I  think, too, that there is considerable doubt 
about the jurisdiction of this panel to hear the 
case. I t  is my understanding that this panel had un­
der consideration before we adjourned for the sum­
mer the Theron Lynd case * # * Its right to consider 
and adjudicate the Davis case is, I think, subject to 
serious question.

“ I  assume that the record before the Court in New 
Orleans was sent up under our Rule 23(4), which is 
a substantial rescript of Rule 75 (j ), Federal Rules of 
Civil Procedure. That portion of our Rules refers 
only to a motion ‘for any intermediate order.’ I do 
not think the order which this Court directed the dis­
trict court to enter can be classified as an intermediate 
order. I t  seems to me it is the equivalent of a final 
judgment granting all of the relief which the plaintiffs- 
appellants would be entitled to under a hearing on the 
merits and, in fact, dispenses with a hearing on the 
merits.

“ For these reasons and others, including the fact 
that I see from the press that the appellees have made 
or intend to make a motion for a hearing en banc, I 
respectfully make this request.”

The panel of Judges B r o w n , W isdom , and B e l l  filed two 
per curiam opinions, one dated July 9, 1963 in which 
Judge B e l l  dissented, and the second filed July 18, 
1963 in which Judge B e l l  concurred in part and dis­
sented in part.

Being advised that a majority of the members of 
this Court in active service did not support my request



18a

for en banc bearing, I  respectfully dissent from the 
action of the members of the Court in refusing to grant an 
en banc hearing. The principles discussed in my dissent­
ing opinion in No. 20595, Armstrong et al. v. Board of 
Education of the City of Birmingham, et ah, 5 Cir., — 
F .2d —, are in my judgment controlling in this case also 
and I  adopt that opinion as a part of this one.

The panel to which this case was assigned by the Chief 
Judge on July 1, 19631 was a panel designated for a 
former term of this Court. Assuming that it was 
empowered to act, during the intervening time, on a 
case which it had under consideration when the term 
ended, it would not, in my opinion, have jurisdiction 
to hear the present case under special designation by 
the Chief Judge acting alone. As stated in the Arm­
strong case, it seems to me clear from the statutes and 
the Supreme Court decisions cited there and the Rules of 
this Court, that the assignment of Judges and of cases 
for hearing is a m atter entrusted solely to the Court as 
a body.

To hold that one Judge is vested with authority to fix 
the time and place where a case is to be heard, and to 
select the Judges who shall hear it, is in my judgment, to 
decide that one man has power in excess of any which 
has been committed to any individual under this gov­
ernment of laws.

I t is clear, moreover, that there is no showing here that 
the case is exceptional or extreme or which demon-

1 ‘ ‘ The within motion for an injunction pending appeal is hereby 
set for hearing before a panel of this Court to be convened in New 
Orleans, Louisiana, July 8, 1963, to follow immediately after the 
hearing in the case of United States v. Lynd, 5 Cir., 321 F.2d 26.

“ This 28th day of June, 1963.
“ Elbert P. Tuttle 
“ Chief Judge 
“ Fifth Circuit”



19a

strates a clear abuse of discretion or usurpation of judi­
cial power such as the panel of this Court thought it dis­
covered in Stell et al. v. Savannah-Chatham County Board 
of Education et al., May 24, 1963, 318 F.2d 425.

I  respectfully dissent.

U N IT E D  STA TES COU RT OF A PPEA LS 

F IF T H  C IR C U IT

July 12, 1963 
No. 20595

Dwight A rm strong , Denise Armstrong, James Armstrong, 
Jr., Floyd Armstrong, Minors, by James Armstrong, 
Sr., their father and next friend, et al., Appellants,

v.
T h e  B oard of E ducation  of the City of Birmingham, Je f­

ferson County, Alabama, the Present Members of the 
said Board and Theo R. Wright, Superintendent of 
Schools, City of Birmingham, Alabama, Appellees.

Rehearing Denied En Banc July 22, 1963. 
Dissenting Opinion July 30, 1963.

On Petition for Intervention and Stay September 6 , 1963. 
# # # # # * * * * *  

W. L. Williams, Jr., Birmingham, Ala., Ernest D. Jack- 
son, Sr., Jacksonville, Fla., Constance Baker Motley, New 
York City, for appellants.

Jos. F. Johnston, Reid B. Barnes, Birmingham, Ala., for 
appellees.

Before T u t t l e , Chief Judge, and R ives  and Ge w in , Cir­
cuit Judges.

R iv es , Circuit Judge.
The submission is upon the appellants’ motion for an 

injunction pending appeal from the following judgment 
entered on the 28th day of May 1963:



2 0 a

“ In  conformity with the memorandum opinion of 
the court contemporaneously entered herein, it is 
Ordered , A dju d g ed  and D ecreed  by the court that the 
injunctive relief for which plaintiffs pray in their 
own behalf and in behalf of others similarly situated 
be and the same is hereby denied.

“ I t  is further O rdered , A dju d g ed  and D ecreed  b y  
the court that jurisdiction of this action is hereby 
retained for the purpose of permitting the filing of 
such supplemental complaint, if any, as might be en­
titled to be presented, in case of any unconstitutional 
application of the Alabama School Placement Law 
against the plaintiffs, or others similarly situated, 
or of any other unconstitutional action on the 
part of defendants against them. I t  is further 
Ordered , A djudged  and D ecreed  by the court that the 
issues tendered by any supplemental complaint will 
be given a preferred setting on the docket of this 
court and will be heard on five d a y s ’ n o tic e  to  d e ­
fendants.”

The opinion of the court stated th a t :
1 ‘ This court will not sanction discrimination by them 
[the Superintendent and Board of Education] in the 
name of the placement law but it is unwilling to grant 
injunctive relief until their good faith has been tested. 
If  it should be demonstrated that it has been uncon­
stitutionally applied, under the settled authorities 
the court would be compelled to order the sub­
mission of a desegregation plan for its approval.”

The district court affirmed that both the Superintendent 
and the Board had assured the court that regulations gov­
erning the assignment and transfer of pupils in the B ir­
mingham school system had been in effect since June 1958 
for the purpose of implementing the Alabama law ; and 
found that sufficient time remained before the opening



2 1 a

of school in September 1963 for the processing of applica­
tions for assignments and transfers in behalf of interested 
individuals.

The opinion further stated that after application for 
assignment or transfer was made by a pupil, or those au­
thorized to act in his behalf, to the school board, judicial 
remedies for the denial of constitutional rights could be 
pursued at once in the United States District Court with­
out pursuing state court remedies.

The opinion continued:

“ Jurisdiction of this action will be retained for the 
purpose of permitting the filing of such supplemental 
complaint, if any, as might be entitled to be presented, 
in case of any unconstitutional application of the Ala­
bama School Placement Law against the plaintiffs, or 
others similarly situated, or of any other unconstitu­
tional action on the part of defendants against them. 
The issues tendered by any supplemental complaint 
will be given a preferred setting on the docket of this 
court and will be heard on five days notice to defend­
ants.”

The district court further mentioned the fact that the 
Superintendent and the Board had assured the court that 
‘ ‘ * * * they stand ready to comply with the law when any 
individual sets the administrative machinery in motion.” 
By affidavit of the Superintendent speaking on behalf 
of the Board filed in this Court, it is stated:

“ It [the Board] was and is now prepared to deal 
with the matter in a proper and orderly manner upon 
applications pursuant to the laws of Alabama and the 
decree of the District Court in this case.”

In the course of its opinion the district court stated: 
“ Before this court may grant injunctive relief, the admin-



2 2 a

istrative remedies provided therein [in the Alabama 
School Placement Law] must first have been exhausted.”

That ruling was directly contrary to repeated decisions 
of this Court. See, among others, Gibson v. Board of 
Public Instruction of Dade County, 5 Cir. 1957, 246 F.2d 
913, 914 ;x on second appeal, 5 Cir. 1959, 272 F.2d 763, 767 ;2 
Holland v. Board of Public Instruction of Palm Beach

1 ‘ ‘ The appellees urge also that the judgment should be affirmed 
because the plaintiffs have not exhausted their administrative rem­
edies under the Florida Pupil Assignment Law of 1956, Chapter 
31380, Laws of Florida, Second Extraordinary Session 1956, F.S.A. 
§230.231 [230.232], Neither that nor any other law can justify 
a violation of the Constitution of the United States by the require­
ment of racial segregation in the public schools. So long as that 
requirement continues throughout the public school system of 
Dade County, it would be premature to consider the effect of the 
Florida laws as to the assignment of pupils to particular schools. ’ ’ 
Gibson v. Board of Public Instruction of Dade County, 5 Cir. 1957, 
246 F.2d 913, 914-915.

2 “ On the first appeal in this case, we said that so long as the 
requirement of racial segregation continues throughout the public 
school system it is premature to consider the effect of the law 
providing for the assignment of pupils to particular schools. See 
246 F.2d at pages 914, 915. Obviously, unless some legally non- 
segregated schools are provided, there can be no constitutional as­
signment of a pupil to a particular school. We do not understand 
that the Fourth Circuit has ruled to the contrary.5 The net effect 
of its rulings, as we understand them, is that the desegregation 
of the public schools may occur simultaneously with and be 
accomplished by the good faith application of the law providing 
for the assignment of pupils to particular schools. If that under­
standing is correct, then we readily agree.

“ 5 See Carson v. Warlick, 4 Cir., 1956, 238 F.2d 724; 
Covington v. Edwards, 4 Cir., 1959, 264 F.2d 780; Holt v. 
Raleigh City Board of Education, 4 Cir., 1959, 265 F.2d 95; 
Allen v. County School Board of Prince Edward County, Va., 
4 Cir., 1959, 266 F.2d 507.”

Gibson v. Board of Public Instruction, Dade County, Fla., 5 Cir. 
1959, 272 F.2d 763, 767.



23a

County, Fla., 5 Cir. 1958, 258 F.2d 730, 732.* Mannings 
v. Board of Public Instruction, 5 Cir. 1960, 277 F.2d 370, 
372, 373; Augustus v. Board of Public Instruction, 5 Cir. 
1962, 306 F.2d 862, 869; Bush v. Orleans Parish School 
Board, 5 Cir. 1962, 308 F.2d 491, 499-501.4 The district 
court chose, instead, to rely upon a line of decisions from

3 “ A three-judge district court recently held that the Alabama 
School Placement Law is not unconstitutional on its face, but con­
cluded that ruling with a clear note of warning:

“ ‘AH that has been said in this present opinion must be 
limited to the constitutionality of the law upon its face. The 
School Placement law furnishes the legal machinery for an 
orderly administration of the public schools in a constitutional 
manner by the admission of qualified pupils upon a basis of 
individual merit without regard to their race or color. We 
must presume that it will be so administered. If not, in some 
future proceeding it is possible that it may be declared un­
constitutional in its application. The responsibility rests pri­
marily upon the local school boards, but ultimately upon all 
of the people of the State. ’

Nothing said in that opinion conflicts in any way with this Court’s 
earlier statement relative to the Florida Pupil Assignment Law:

“ ‘ * * * Neither that nor any other law ean justify a viola­
tion of the Constitution of the United States by the require­
ment of racial segregation in the public schools.’ Gibson v. 
Board of Public Instruction of Dade County, 5 Cir., 1957, 246 
F.2d 913, 914.”

Holland v. Board of Public Instruction, 5 Cir. 1958, 258 F.2d 
730, 732.

4“ This Court, like both Judge Wright and Judge Ellis, con­
demns the Pupil Placement Act when, with a fanfare of trumpets, 
it is hailed as the instrument for carrying out a desegregation plan 
while all the time the entire public knows that in fact it is being 
used to maintain segregation by allowing a little token desegrega­
tion. When the Act is appropriately applied, to individuals as 
individuals, regardless of race, it has no necessary relation to 
desegregation at all.” Bush v. Orleans Parish School Board, 5 
Cir. 1962, 308 F.2d 491, 499.



24a

the Fourth 'Circuit,5 which, according to the district court, 
“ continued to apply the doctrine of exhaustion of ad­
ministrative remedies fairly and lawfully conducted.”  In  
Gibson v. Board of Public Instruction, supra, 272 F.2d 
763, 767, n. 5, we noted many of the same Fourth Circuit 
decisions and stated our understanding that they were not 
contrary to the decisions of this F ifth  Circuit. In  any 
event, on June 3, 1963, shortly after the district court’s 
decision, the Supreme Court of the United States put 
beyond debate the proposition that, in a school desegrega­
tion case, it is not necessary to exhaust state administra­
tive remedies before seeking relief in the federal courts:

“ We have previously indicated that relief under the 
Civil Rights Act may not be defeated because relief 
was not first sought under state law which provided 
a remedy. We stated in Monroe v. Pape, 365 U.S. 
167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492:

“  ‘I t  is no answer that the State has a law which 
if enforced would give relief. The federal remedy 
is supplementary to the state remedy, and the latter 
need not be first sought and refused before the fed­
eral one is invoked. ’
“ The cause of action alleged here is pleaded in 

terms of 42 U.S.C. § 1983 * * *.
“ That is the statute that was involved in Monroe 

v. Pape, supra; and we reviewed its history at length 
in that case. 365 U.S. 171 et seq., 81 S.Ct. 473, 5 
L.Ed.2d 492. The purposes were several fold—to 
override certain kinds of state laws, to provide a

5 The district court cited: Covington v. Edwards, 4 Cir. 1959, 
264 F.2d 780; Holt v. Raleigh City Board of Education, 4 Cir. 
1959, 265 F.2d 95; McCoy v. Greensboro City Board of Education, 
4 Cir. 1960, 283 F.2d 667; Jeffers v. Whitley, 4 Cir. 1962, 309 F.2d 
621; Wheeler v. Durham City Board of Education, 4 Cir. 1962, 
300 F.2d 630.



25a

remedy where state law was inadequate, ‘to provide 
a federal remedy where the state remedy, though 
adequate in theory, was not available in practice’ (id., 
174, 81 S.Ct. 477), and to provide a remedy in the 
federal courts supplementary to any remedy any 
State might have. Id., 180-183, 81 S.Ct. 480-482. 
# # # # # # # * *

“ * * * The right alleged is as plainly federal in 
origin and nature as those vindicated in Brown v. 
Board of Education, 347 TJ.S. 483, 74 S.Ct. 6 8 6 , 98 
L.Ed. 873. Nor is the federal right in any way en­
tangled in a skein of state law that must be untangled 
before the federal case can proceed. For petitioners 
assert that respondents have been and are depriving 
them of rights protected by the Fourteenth Amend­
ment. I t is immaterial whether respondents’ conduct 
is legal or illegal as a m atter of state law. Monroe 
v. Pape, supra, 365 TJ.S. 171-187, 81 S.Ct. 475-484. 
Such claims are entitled to be adjudicated in the 
federal courts. Monroe v. Pape, supra, 365 U.S. at 
183, 81 S.Ct. at 481; Gayle v. Browder, 352 U.S. 903, 
77 S.Ct. 145, 1 L.Ed.2d 114, affirming 142 F. Supp. 707; 
Borders v. Rippy, 5 Cir., 247 F.2d 268, 271. Cf., e. g., 
Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 
1281; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 
88  L.Ed. 987; 'Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 
749, 93 L.Ed. 1093 affirming 81 F.Supp. 872; Turner 
v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed. 
2d 762.”

MeNeese v. Board of Education for Community Unit 
School District 187, 83 S.Ct. 1433.6

The district court’s opinion referred to the reluctance of 
any Negro child “ to take the initiative in bringing about

8 As the district court recognized in its opinion, the present action 
also proceeds under 42 U.S.C.A. § 1983.



26a

the integration of the public schools.”  The burden of 
initiating desegregation does not rest on Negro children 
or parents or on whites, but on the School Board. As said 
in Brown v. Board of Education, 1955, 349 U.S. 294; 299, 
75 S.Ct. 753, 756, 99 L.Ed. 1083:

“ Full implementation of these constitutional prin­
ciples may require solution of varied local school 
problems. School authorities have the prim ary respon­
sibility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the 
action of school authorities constitutes good faith 
implementation of the governing constitutional prin­
ciples.”

The long-standing order of responsibility is “ first the 
school authorities, then the local district court, and lastly 
the appellate courts.”  Bippy v. Borders, 5 Cir. 1957, 250 
F.2d 690, 693.

Further, as we said recently in speaking of the Atlanta 
public schools:

“ Our decision must also be rendered upon a con­
sideration of the most recent pronouncements of the 
Supreme Court, Boss v. Board of Education of City 
of Knoxville, Tenn., supra [83 S.Ct. 1405], and W at­
son v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 
10 L.Ed.2d 529, which make it plain that the time 
available for the transition from segregated to deseg­
regated school systems is, with the passage of years 
since the Brown decisions, becoming more sharply 
limited. Indeed, we so stated in an opinion thereto­
fore rendered on May 24, 1963. Davis v. Board of 
School Commissioners of Mobile County, 5 Cir., 318 
F.2d 63.”

Calhoun v. Latimer, 5 Cir., — F.2d —.



27a

In the light of the foregoing well-established principles 
of law, we go to the undisputed facts as found by the dis­
trict court:

"T he white population of Birmingham is 205,620; 
the negro, 135,627. There are 8 high schools desig­
nated ‘W hite’ with 409 teachers and 10,081 pupils; 5 
high schools designated ‘Negro’ with 278 teachers and 
6,748 pupils; 50 elementary schools designated ‘W hite’ 
with 781 teachers and 29,578 pupils; 42 elementary 
schools designated ‘Negro’ with 697 teachers and 
26,967 pupils. Never at any time has a negro pupil 
been assigned or transferred to a school designated 
‘W hite’ or a white pupil to a school designated 
‘Negro.’ Without exception white instructional per­
sonnel have been assigned only to schools designated 
‘W hite’ and negro instructional personnel only to 
schools designated ‘Negro.’ White schools are lo­
cated with reference to the concentration of white 
population and negro schools with reference to the 
concentration of negro population. There are over­
lappings in the geographical areas involved wherein 
there are white schools in closer proximity to the 
residences of negro pupils than negro schools. The 
reverse situation obtains with respects to white pupils. 
Notwithstanding, the custom, usage and practice his­
torically followed, sanctioned and expected by Super­
intendent and Board to be followed presently, result in 
white pupils attending white schools and negro pupils 
negro schools.

‘‘To summarize, it graphically appears from the 
testimony of Dr. Theo R. Wright, Superintendent of 
Birmingham Public Schools, that he and the B ir­
mingham Board of Education have operated a segre­
gated school system based upon race in the past, are 
doing so now, and have formulated no plans to dis­
continue such an operation.”



28a

This litigation has now been pending for more than 
three years. There must, at the very minimum, be a good 
faith start toward according the plaintiffs and the mem­
bers of the class represented by them their constitutional 
rights so long delayed. However, whether the delay which 
has already occurred is justified or not, it cannot be com­
pensated by hasty or precipitate action under the order 
of this Court. Our action must be dictated by the con­
cept of “ deliberate speed” to the extent of not causing 
undue or unnecessary confusion in the administration of 
the Birmingham public schools to the injury of all of the 
pupils, white and black. In  the case of the Pensacola, 
Florida, School System, we said on July 24, 1962, about 
a year ago: “ I t  is probably too late, without undue con­
fusion, to require the elimination as to any grade of such 
dual districts in time for the 1962 fall term .”  Augustus 
v. Board of Public Instruction, 5 Cir. 1962, 306 F.2d 862, 
869. This same thought now holds true as to the Birming­
ham public schools.7

We decline, therefore, to issue an injunction pending 
appeal which would go so far as to provide that the 
maintenance of separate schools for the Negro and white 
children of Birmingham shall be completely ended with 
respect to any grade, or when and how the complete de­
segregation of the public schools may be accomplished. 
Such matters can be more appropriately determined upon 
a hearing of this appeal on its merits when a full record 
will be available. I t affirmatively appears at this time, 
however, on the face of the opinion and judgment of the

7 Superintendent of Schools of the City of Birmingham, Theo 
R. Wright, testified by affidavit upon the present motion at some 
length, concluding: “ * * * the attempted desegregation of any 
one grade in the system at the commencement of the fall term this 
year would be greatly disruptive of the whole school system, and 
extremely impracticable and injurious, if not impossible, for the 
reasons stated herein and in other affidavits of affiant.” There 
was no controverting testimony.



29a

district court, that the plaintiffs and the members of the 
class represented by them are entitled to more than mere 
expressions of opinion and have a right to a judgment 
legally enforcing the desegregation measures on which the 
Board has virtually agreed.

In line with the procedure which we followed as to the 
Savannah, Georgia, schools in Stell, et al. v. Savannah- 
Chatham County Board of Education, et al., 5 Cir., No. 
20557, 318 F.2d 425, it is therefore Ordered that the Dis­
trict Court for the Northern District of Alabama enter 
the following judgment and order:

“ The defendants, The Board of Education of the 
City of Birmingham, Jefferson County, Alabama, the 
present members of said Board (naming them spe­
cifically) and Theo B. Wright, Superintendent of 
Schools, City of Birmingham, and their agents, serv­
ants, employees, successors in office and those in con­
cert with them who shall receive notice of this order, 
be and they are hereby restrained and enjoined from 
requiring segregation of the races in any school under 
their supervision, from and after such time as may 
be necessary to make arrangements for admission of 
children to such schools on a racially nondiscrimina- 
tory basis with all deliberate speed, as required by the 
Supreme Court in Brown v. Board of Education of 
Topeka, 349 U.S. 294 [75 S.Ct. 753, 99 L.Ed. 1083].

“ I t  is further ordered, adjudged and decreed that 
said persons be and they are hereby required to sub­
mit to this Court not later than August 19, 1963, a 
plan under which the said defendants propose to make 
an immediate start in the desegregation of the schools 
of Birmingham, Jefferson County, Alabama, which 
plan shall effectively provide for the carrying into 
effect not later than the beginning of the school year 
commencing September 1963 and thereafter of the 
Alabama Pupil Placement Law as to all school grades



30a

without racial discrimination, including ‘the admission 
of new pupils entering the first grade, or coming into 
the County for the first time, on a nonracial basis,’ 
Augustus v. Board of Public Instruction, 5 Cir. 1962, 
306 F.2d 862, 869 (that opinion describes such a plan 
which has been approved and is operating in Pensa­
cola, F lo rida).”

Nothing contained in this opinion or in the order di­
rected to be issued by the district court is intended to 
mean that voluntary segregation is unlawful; or that the 
same is not legally permissible.

This order shall remain in effect until the final deter­
mination of the appeal of the above-styled case in the 
Court of Appeals for the Fifth  Circuit on the merits, and 
until the further order of this Court. During the pend­
ency of this order the district court is further directed to 
enter such other and further orders as may be appropriate 
or necessary in carrying out the expressed terms of this 
order.

In view of the already long delay, it is ordered that 
the mandate issue forthwith.

Motion granted.
T u t t l e , Chief Judge (concurring specially).
I, of course, join Judge Rives in the action taken on the 

appellants’ motion for injunction pending appeal, and I 
join him in the order that is embodied in his opinion. 
I  agree wholeheartedly with all that is said in his opinion, 
except as it bears on the relief that is to be granted in 
September, 1963.

It is now, as it has been from the start, the duty of the 
Board of Education to assume the prim ary responsibility 
putting an end to racially segregated schools. Brown v. 
Board of Education of Topeka (1955) 349 U.S. 294, 299, 
75 S.Ct. 753, 99 L.Ed. 1083. In  a situation where such a



31a

board of education has completely failed to make such a 
start, and, fortuitously or otherwise, the first appeal- 
able order entered by a district court comes so late in the 
school year that the Board then attempts to say it is too 
late to do anything by the following school year, I  think it 
is the duty of an appellate court to require a maximum 
effort by the Board to do what the law clearly requires of 
it, rather than to accept as a substitute for performance 
a plea that the Board has not made necessary prepara­
tion to permit orderly transition by the opening of the 
fall term of school.

I  believe it would not be consistent with what this Court 
has previously required in other situations if I did not 
express the view, strongly held by me, that as a minimum 
the Board of Education of the City of Birmingham should 
be required by an injunction of the trial court to arrange 
that at least one grade of the public schools of that city 
be completely desegregated by the abolition of dual school 
zones pending the appeal of this case on the merits in this 
Court. See Stell v. Savannah-Chatham County Board of 
Education, et al., 5th Cir. No. 20557, 318 F.2d 425 and see 
Davis et al. v. Board of School Commissioners of Mobile 
County et al., 5th Cir., 322 F.2d 356. Since, however, a 
majority of the court does not require this relief, I  join 
in the order as written by my esteemed colleague, Judge 
Rives.

GrBWin, Circuit Judge (dissenting).

My brothers of the majority have spoken in such inac­
curate and disapproving terms with reference to the opin­
ion and order of the distinguished trial judge of the North­
ern District of Alabama who tried this case for several 
days, that I  find it not only impossible to agree with them, 
but also necessary to write this dissent in order to inform 
those who may be interested of my opinion of the actual 
holding of the District Court. The cases cited by the 
majority condemn the opinion written by them. The opin-



32a

ion and order of the District Court considered together as 
they should be, destroy every reason asserted in the ma­
jority opinion for for the unusual action taken in the 
circumstances of this case by the issuance of an injunction 
pending appeal on the merits.

I t  should be noted quickly that the majority opinion 
leaves little to be decided when the case reaches this court 
on the merits. Under the guise of “ injunction pending 
appeal”  that opinion substantially decides the case and 
renders moot many questions which could arise when the 
case reaches the court for final decision after a review of 
the record. I t  is recognized that injunctions pending 
appeal may be used in exceptional and extreme cases 
where there is a clear abuse of discretion or usurpation of 
judicial power. Such extreme, harsh and unusual action 
should never be taken as a substitute for a proper deci­
sion on the merits. The action in this case is taken with­
out any pretense that the court has taken so much as a 
hurried glance at the record. There has not been sufficient 
time for the record to reach the court. In  effect my 
brothers of the majority have concluded that this is an 
extreme and exceptional case, involving either an abuse of 
discretion or usurpation of judicial power. Accordingly, 
they have ordered the District Court to issue a “ judgment 
and order”  enjoining the Superintendent and Board of 
Education of Birmingham, and have directed “ * * * that 
the mandate issue forthwith.”  This drastic action has 
been taken within a few days following the submission ot 
the case on the motion for injunction—not on the merits. 
As late as June 3, 1963, the Supreme Court stated in Goss 
v. The Board of Education of the City of Knoxville, Tenn., 
373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632, a school segre­
gation case, a recognition o f :

“  * * * the multifarious local difficulties and ‘ variety of
obstacles’ which might arise in this transition * *



33a

and the court further stated:

“ In  reaching this result we are not unmindful of the 
deep-rooted problems involved.”

In the instant case, this court has not even had the oppor­
tunity to review the evidence which was before the trial 
judge for the purpose of considering any “ variety of ob­
stacles”  or “ deep-rooted problems” which may be in­
volved. This court does not have sufficient facts before it, 
in the absence of the record, to render a decision “ guided 
by equitable principles”  and “ characterized by a practical 
flexibility in shaping its remedies” and to exercise the 
requisite facility “ for adjusting and reconciling public 
and private needs. ” 1

I .  T h e  O p in io n  and  Order oe T h e  D istrict  C ourt

The m ajority opinion quotes certain excerpts from the 
opinion of the court below, but the excerpts quoted do not 
fairly represent the opinion of that court. The action of 
the District Court in its memorandum opinion and order 
may be summarized in outline form as follows:

(a) The District Court stated that the “ starting point 
in any school segregation case must be Brown v. Board of 
Education, 347 U.S. 483, 74 S.Ct. 6 8 6 , 98 L.Ed. 873 (1954), 
the implementing decree of the court in Brown v. Board of 
Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), 
and its reinterpretative opinion, Cooper v. Aaron, 358 U.S. 
1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958)” , and recognized 
that it was bound by the holdings in the cases cited.

(b) Proper notice was taken of the fact that “ * * * dis­
trict courts have been invested with and are expected 
honestly and fairly to exercise discretion in the enormous 
task of desegregating public schools.”  The opinion asserts

1 See Brown v. Board of Education of Topeka, 349 U.S. 294, 
75 S. Ct. 753.



34a

that the course to be followed in the discharge of such task 
was “ staked out”  in an opinion written by Judge Bives in 
the case of Shuttlesworth v. Birmingham Board of Educa­
tion, 162 F.Supp. 372 (N.D. Ala. 1958) aff’d. by Supreme 
Court 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, wherein it is 
unequivocally held :

“ All that has been said in this present opinion must 
be limited to the constitutionality of the law upon its 
face. The School Placement Law furnishes the legal 
machinery for an orderly administration of the public 
schools in a constitutional manner by the admission of 
qualified pupils under a basis of individual merit with­
out regard to their race or color. We must presume 
that it will be so administered. If not, in some future 
proceeding it is possible that it may be declared uncon­
stitutional in its application. The responsibility rests 
prim arily upon the local school boards, but ultimately 
upon all of the people of the State.”

(c) Expressly stating that the law of this case is that 
the Alabama School Placement Law “ * * * furnishes the 
legal machinery for an orderly administration of the public 
schools in a constitutional manner by the admission of 
qualified pupils upon a basis of individual merit without 
regard to their race or color,”  the court held that the 
pupil, or those authorized to act in the pupil’s behalf, 
should first apply for assignment or transfer; and that 
before the court would grant injunctive relief, the 
administrative remedies provided by the Alabama act 
as modified and limited by the Court’s opinion and order 
must first be used.

(d) The opinion clearly holds that after application for 
assignment or transfer is made by a pupil, or those author­
ized to act in his behalf, to the school board, judicial reme­
dies for the denial of Constitutional rights can then be 
pursued at once in the United States District Court with­
out pursuing state court remedies. The court observed the



35a

fact that this Court of Appeals has been alert to strike 
down deviations by district courts from the Constitutional 
principles laid down in the Brown case, and asserted that 
the court had carefully read and considered all of the deci­
sions by this Court of Appeals relative to the subject.

(e) The District Court correctly concluded that this 
Court of Appeals2 has not heretofore had cause to consider 
whether the Alabama law has a permissible scope of opera­
tion in the desegregation of public schools, but it was noted 
that the Fourth Circuit had dealt with a similar state act 
in the case of Carson v. Warlick, 238 F.2d 724 (4 Cir. 1956), 
which was cited with approval in the Shuttlesworth case.

(f) The opinion and order squarely state that discrimi­
nation will not be tolerated, and uses the following lan­
guage in so holding:

“ This court will not sanction discrimination by them 
[the Superintendent and Board of Education] in the 
name of the placement law but it is unwilling to grant 
injunctive relief until their good faith has been, tested. 
If  it should be demonstrated that it has been uncon­
stitutionally applied, under the settled authorities the 
court would be compelled to order the submission of a 
desegregation plan for its approval.”

The District Court affirmed that both the Superintendent 
and the Board had assured the Court that regulations gov­
erning the assignment and transfer of pupils in the Bir­
mingham school system had been in effect since June 1958 
for the purpose of implementing the Alabama law; and 
found that sufficient time remained before the opening of 
school in September 1963 for the processing of applications 
for assignments and transfers in behalf of interested in­
dividuals.

2 The Shuttlesworth ease was. decided by a three judge District 
Court and not. by this court. The Shuttlesworth case was affirmed 
by the Supreme Court.



36a

(g) Jurisdiction of the action was retained for the pur­
pose of hearing any complaint which might he presented 
“ * * * in case of any unconstitutional application of the 
Alabama School Placement Law against the plaintiffs, or 
others similarly situated, or of any other unconstitutional 
action on the part of defendants against them.” The trial 
court mentioned the fact that the Superintendent and the 
Board had assured the court that “ * * * they stand ready 
to comply with the law when any individual sets the admin­
istrative machinery in motion.” By affidavit of the Super­
intendent speaking on behalf of the Board filed in this 
court, it is s ta ted :

“ I t  [the Board] was and is now prepared to deal with 
the m atter in a proper and orderly manner upon appli­
cations pursuant to the laws of Alabama and the decree 
of the District Court in this case.”

(h) In case any complaint is made by any person, the 
issues tendered thereby are to be given “ * * * a preferred 
setting on the docket of this court and will be heard on five 
days notice to defendants.”

I t  is my considered opinion that the action of the Dis­
trict Court fully complies with both Brown decisions, the 
decision in the Aaron, case, and is in complete accord with 
the previous holdings of this court. The trial court found 
as a fact that according to the uncontroverted record before 
the court, that no Negro child, or anyone authorized to act 
in his behalf, had applied for enrollment in or transfer to 
any school designated White, and pursued the remedies 
afforded by the Alabama statute. I t  was further found 
as a fact that such reluctance to bring about integration of 
the public schools was not a “ blind adherence to trad i­
tion” , but that the undisputed evidence in the record 
(which this court has not yet seen) clearly shows that 
there is “ very strong opposition to the mixing of the races 
in the schools of Birmingham on the part of citizens of all 
races.” The District Court rejected forthwith the opinions



37a

of experts in the fields of psychology and anthropology in 
whatever form insofar as they constitute an attack upon 
the rules of law laid down by the Supreme Court in the 
Brown and Aaron decisions.

A casual analysis of the opinion and judgment of the 
District Court should convince anyone that the court has 
not followed the Alabama act blindly, but has used it only 
insofar as it “ furnishes the legal machinery” for the de­
segregation of the schools in a Constitutional manner. The 
assignment and transfer of students from school to school, 
and the right to make objection to an assignment already 
made were covered by the opinion. In their brief, the 
Superintendent and Board admit and affirmatively assert 
that the provisions of the Alabama act and the decree of 
the court ‘4 are not restricted in application to any grade or 
grades * * that it 44* # * authorizes application for 
initial assignment to any school by the entering first grade 
students” ; and that there is 44# * * no limitation on the 
number of pupils who may apply for assignment or trans­
fer. In my opinion, the plan outlined by the District Court 
not only meets the standards recently expressed by this 
court in the case of Calhoun v. Latimer, 5 Cir., 321 F.2d 
302, but makes more liberal provisions with respect to 
assignment, transfer and objection to assignments previ­
ously made, because such provisions are applicable to all 
grades in Birmingham.

A fair and proper analysis of the ruling of the District 
Court will reveal that it is not subject to the criticism that 
students cannot make application for assignment to a 
school of their choice on entering the first grade as de­
nounced in Bush v. Orleans Parish School Board, 308 F.2d 
491, 5 Cir. 1962. Such applicants for assignment or trans­
fer are not impeded by dual school districts as was in­
volved in Augustus v. Board of Pub. Inst, of Escambia 
Co., 306 F.2d 862, 5 Cir., 1962; the plaintiffs are not re­
quired to comply with the details of the Alabama Place­
ment Law as condemned in Mannings v. Board of Pub.



38a

Inst, of Hillsborough Co., Fla., 277 F.2d 370, 5 Cir. 1960; 
nor is there a failure to afford a reasonable and conscious 
opportunity to pupils to apply for admission to any school 
to which they are eligible as condemned in Gibson v. Board 
of Pub. Inst, of Dade Co., Fla., 272 F.2d 763, 5 Cir. 1958. 
I t  is true that the Brown decision places first respon­
sibility to desegregate on the school authorities; but if the 
school authorities do not act, the district courts are re­
quired to act. Admittedly, the school authorities in B ir­
mingham have not submitted a plan of desegregation. 
Their failure resulted in this lawsuit, and the District Court 
has now directed the authorities to proceed with desegre­
gation as provided by the Alabama law and the decree 
of the District Court. By retaining jurisdiction of the case 
and ordering that any complaint will be heard on five days ’ 
notice, the District court has provided an effective and 
speedy method of supervision. We know of no plan or 
other remedy which is calculated to give better relief. The 
failure of the school authorities to act does not require 
injunctive relief in cases where a method of desegregation 
is outlined and provided as was done in this case. Plans 
presented by school boards are rarely ever approved in 
toto. Even after plans are submitted by school authorities 
and revised by the courts, litigation seems to continue.

II. T h e  M a jo r ity  O p in io n

(a) Injunction Pending Appeal:

There is an ancient and classic principle long recognized 
by all courts with reference to the granting of injunctions 
whether at the trial or appellate level, forcefully stated 
by Justice Baldwin, sitting at Circuit in the year 1830, 
in the case of Bonaparte v. Camden, 8 A. R. Co. (O.C.N.J. 
1830) Fed.Cas.No.1,617, p. 821:

“ There is no power the exercise of which is more
delicate, which requires greater caution, deliberation,



39a

and sound discretion, or more dangerous in a doubtful 
case, than the issuing an injunction; * *

Rule 62 F.R.Civ.P. deals with the question of injunc­
tion pending appeal. Subsection (c) of that rule relates 
to the power of district courts to issue such injunctions 
pending appeal. Subsection (g) of the same rule deals 
with the subject on the appellate level. I t  is conceded that 
a District Court (to which the Federal Rules of Civil 
Procedure generally apply) may grant injunctive relief 
pending an appeal as provided by subsection (c). Such 
is the holding of the Ninth Circuit in United States v. 
El-O-Pathic Pharmacy, 9 Cir. 1951, 192 F.2d 62. In con­
struing the rule and commenting on the last cited case, one 
of the leading commentaries on federal practice and pro­
cedure states the rule to be as follows:

“ In that case the court also pointed out that appellate 
courts are not as well equipped as the trial court to 
enforce an order of the sort in question. Thus Rule 
62(g), allowing* the appellate court to make such orders, 
should be regarded as supplementary to Rule 62(c).
In  the normal case parties should be required to seeh 

relief first from the trial court, with the appellate court 
acting only if  the trial court has erroneously refused 
to grant such r e l i e f (Emphasis added)

Vol. 3 Fed. Practice & Procedure, Rules Ed. (Rev. by 
W right) § 1373, p. 466

It should be emphasized and made crystal clear that there 
is no showing before us that the appellants in this case 
sought interlocutory relief in the trial court.3

8 Cumberland Tel. & Tel. Co. v. La. Pub. Serv. Comm.., 260 U.S. 
212, 43 S. Ct. 75, 77, 67 L. Ed. 217, is a case in which the Supreme 
Court recognized the fact that the trial court should first be asked 
for such injunctive relief:

“ We, of course, appreciate that, notwithstanding a denial of 
an injunction on its merits, a court may properly find that



40a

My brothers of the majority have directed the issuance 
of a mandatory injunction, which, of necessity, is of an 
interlocutory nature, because this case has not been reached 
on its merits. A clear statement of the law is contained 
in W. A. Mack, Inc. v. General Motors Corp., 7 Cir. 1958, 
260 F.2d 886 as follows:

“ * * * mandatory injunctions are rarely issued and 
interlocutory mandatory injunctions are even more 
rarely issued, and neither except upon the clearest 
equitable grounds.”

See also Miami Beach Federal Savings & Loan A ss’n. v. 
Callander, 5 Cir. 1958, 256 F.2d 410. The usual case arises 
upon an appeal from an order of the trial court granting 
or denying a preliminary injunction and even in such cases, 
the scope of review is limited. In re Tucker Corp. (Veen- 
kant v. Yorke), 7 Cir. 1958, 256 F.2d 808; Mytinger & 
Casselberry, Inc. v. Numanna Labs. Corp., 7 Cir. 1954,

pending a final determination of the suit on the merits in a 
court of last resort, a balance of convenience may be best 
secured by maintaining the status quo and securing an equi­
table adjustment of the finally adjudicated rights of all con­
cerned, through the conditions of a bond. Hovey v. McDonald, 
109 U.S. 150, 161 [3 S. Ct. 136, 27 L. Ed. 888, 891] ; Equity 
Rule No. 74. But the court which is best and most conveniently 
able to exercise the nice discretion needed to determine this 
balance of convenience is the one which has considered the 
case on its merits and, therefore, is familiar with the record.” 
(Emphasis added)

See also Peay et al. v. Cox, 5 Cir. 1951, 190 F.2d 123, wherein the 
court was dealing with the question of injunctions and the exhaus­
tion of administrative remedies and there held that an injunction 
should not issue. The court concluded that state remedies which 
are administrative as distinguished from those which are judicial 
should first be exhausted, because the exhaustion of administrative 
remedies does not result in the matter becoming res judicata; 
citing with approval Bates, et al. v. Batte, et al., 5 Cir. 1951, 187 
F.2d 142; Cook v. Davis, 5 Cir. 1949, 178 F.2d 595; Shinholt, 
et al. v. Angle, 5 Cir. 1937, 90 F.2d 297.



41a

215 F.2d 382; O ’Malley, et al. v. Chrysler Corp., 7 Cir. 1947, 
160 F.2d 35; Vol. 3 Fed.Practice & Procedure, Rules Ed. 
(Rev. by W right) § 1373.

In directing the District Court to issue a mandatory 
injunction pending determination of the appeal in this case 
on the merits, the majority claims that it is acting “ in 
line with the procedure which we followed * * in Stell 
et al. v. Savannah-Chatham Co. Board of Education et al., 
5 Cir., 318 F.2d 425, May 24, 1963. In  making such an 
assertion, the majority is clearly in error because it has 
overlooked the fact that the appeal in Stell was inter­
locutory as provided by 28 U.S.C.A. 1292(1), from a judg­
ment of the District Court denying a motion for pre­
liminary injunction. The relief granted in Stell purports 
to have been granted under the All W rits Act 28 U.S.C.A. 
1651(a). That opinion recognizes that the All W rits Act 
was intended to be used only in the exceptional case where 
there had been an abuse of discretion or usurpation of 
judicial power, and should be used only in “ extreme cases” . 
The authorities there cited, Bankers Life & Casualty Co. 
v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106; and 
LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 
1 L.Ed.2d 290, do not support the action of the majority 
in this case.

All 3 cases, Stell, Bankers Life, and LaBuy, involve 
interlocutory appeals relating to the denial or granting 
of interlocutory relief. I t was never intended that the 
All W rits Act should be used as a substitute for appeals, 
and this is true even though hardship may result from 
delay. In  any event, a heavy burden is placed upon those 
who petition for the writ to show that their right to its 
issuance is “ clear and undisputable” . Although the writ 
sought in Bankers Life was a writ of mandamus, the court 
was speaking of the All W rits Act, 28 U.S.C.A. 1651(a) 
when it there observed:



42a

“ * * * Congress must have realized that in the course 
of judicial decision some interlocutory orders might 
be erroneous.’’ (emphasis added)

The court assumed the existence of the difficulties of which 
petitioner there complained, resulting in the creation of 
many legal and practical problems, but the court observed:

“ * * * but Congress must have contemplated those 
conditions in providing that only final judgments are 
reviewable. ’ ’

The Court concluded:

“ But it is established that the extraordinary writs 
cannot be used as substitutes for appeals, Ex parte 
Fahey, 332 U.S. 258, 259-260, [67 S.Ct. 1558, 91 L.Ed. 
2041-2043] (1947), even though hardship may result 
from delay and perhaps unnecessary trial, United 
States Alkali Export Assn. v. United States, 325 U.S. 
196, 202-203, [65 S.Ct. 1120, 89 L.Ed. 1554, 1560, 1561] 
(1945); Roche v. Evaporated Milk Assn., supra [319 
U.S. 21], at 31 [63 S.Ct. 938, 87 L.Ed. 1185] ; and what­
ever may be done without the writ may not be done 
with it. Ex parte Rowland, 104 U.S. 604, 617 [26 
L.Ed. 861, 866] (1882).”4 (Emphasis added)

Traditionally, injunctions pending appeal have been 
issued in cases of extreme emergency, to avoid mootness, 
to preserve the status quo, to protect the jurisdiction of 
the court; and in the leading cases on the subject, if not 
all, injunctive relief pending appeal is granted only after 
the trial court has refused to grant interlocutory relief. 
Such a request was made in the Stell case. No such action

4 See also Cumberland Tel. & Tel. Co. v. Louisiana Pub. Serv. 
Comm., 260 U.S. 212, 43 S. Ct. 75, 67 L, Ed. 217; and in re Phila­
delphia & Reading Coal & Iron Co., 103 F.2d 901, 903 (3 Cir. 
1939); and Greene v. Fair, 314 F.2d 200 (5 Cir. 1963).



43a

was requested of the trial court in the instant case. Not 
only is it unfair and inconsiderate for an appellate court 
to grant such relief pending appeal when the trial court 
has had no opportunity to pass upon the question, such re­
lief should never be granted as a substitute for an appeal. 
In passing upon injunctive relief, the court should take no 
action which will preclude fair consideration on the merits. 
As stated in Mesabi Iron Co. v. Reserve Mining Co., 8 Cir. 
1959, 270 F.2d 567:

‘ ‘ * # * the appellate court ought not to determine cru­
cial questions conditioning the merits of the case # #

If  this is the law in cases where interlocutory relief is first 
sought in the trial court, such a rule should be more strictly 
followed in cases where no interloctutory relief was sought 
in the lower court. Prior to the instant case, such has been 
our holding. As stated in Miami Beach Federal Savings 
& Loan A ss’n, supra:

“ We have repeatedly held that an order for a tem­
porary injunction does not and cannot decide the 
merits of the case.”

This court has recently spoken concerning the extraordi­
nary remedy of injunction pending appeal in Greene v. 
Fair, Feb. 18, 1963, 314 F.2d 200, and there clearly stated 
the controlling principles:

“ The reason for the sparing use of this power is ap­
parent. Litigants are given the opportunity to try  
their cases in a district court and they are given an 
unlimited right of appeal to the Courts of Appeal. The 
rules of this Court make possible a prompt hearing of 
all regularly docketed appellate cases. The rules pro­
vide for accelerated hearings in cases in which cause 
therefor is shown. The vindication of private rights 
by litigation necessarily entails some delay. Laymen 
and courts alike regret any delay in the vindication of



44a

a right that is not the natural and proper result from 
the orderly handling of the litigation. Historically 
and traditionally within our system of justice, appel­
late procedure calls for the docketing of a case, the 
furnishing of the transcript of the record to the ap­
pellate judges, a full briefing by the appellant, with 
an opportunity for response to he made by the appel­
lee, and oral argument after consideration of the 
records and briefs by the Court. The time required 
to prosecute an appeal in this manner is recognized 
by all to he time well spent in the ordinary case.”

(b) The Ruling and Mandate of the M ajority:
The majority opinion asserts that nothing contained 

therein is to be construed as enjoining or restricting volun­
tary  segregation. This Court is unequivocally committed 
to the proposition that voluntary segregation is permissi­
ble. The order and opinion before us for review do not re­
quire segregation, hut most emphatically state that any 
action on the part of the Superintendent and Board re­
quiring segregation will not be tolerated. Accordingly, it 
is difficult for me to see any useful purpose in issuing the 
extraordinary writ of injunction pending appeal. As a 
matter of fact, in the case of Rippy v. Borders, 5 Cir. 1957, 
250 F.2d 690, this Court specifically held that a district 
court should not issue an order enjoining the school board 
from “ perm itting”  segregation. Briggs v. Elliott, E.D. 
S.C. 1955 (three-judge court composed of Parker and 
Dohie, Circuit Judges, and Timmerman, District Judge), 
132 F.Supp. 776; Avery v. Wichita Falls Independent 
School Dist., 5 Cir. 1957 (Judge Rives), 241 F.2d 230; 
Borders v. Rippy, 5 Cir. 1957 (Judge Rives), 247 F.2d 268; 
Boson v. Rippy, 5 Cir. 1960 (Judge Rives), 285 F.2d 43.

As a m atter of fact, the opinion and order clearly state 
that the District Court “ * # * will not sanction discrimi­
nation * * and the doors of the court are held open



45a

to hear any complaint of “ * * * any unconstitutional ap­
plication of the Alabama School Placement Law against 
the plaintiffs, or others similarly situated, or any other un­
constitutional action on the part of the defendants against 
them.” (Emphasis added.)

The cases cited in the majority opinion, particularly 
Gibson (2 appeals), Holland, Mannings, Augustus, and 
Bush, all denounce “ the requirement of racial segregation 
in the public schools.”  (Emphasis added.) In the first 
Gibson appeal, in speaking of the Florida law, it was 
stated, “ * * * neither that nor any other law can justify 
a violation of the Constitution of the United States by the 
requirement of racial segregation in the public schools.”  
(Emphasis added.) To the same effect was the second 
Gibson appeal.5 The opinion and order now before us for

5 In the first Gibson case, for example, there was a rule of the 
school board directed to the superintendent, principals, and all 
other personnel, advising them that the public school system of 
Dade County, Florida, “ will continue to be operated, maintained 
and conducted on a nonintegrated basis.” In the second Gibson 
appeal, Judge Rives states that the racial factor was imminent in 
the consideration of the assignment and transfer of pupils under 
the plan there being considered. For example, the application con­
tained a blank space after the word “ school” , and did not permit 
a “ * # * conscious preference for continued segregation on a 
voluntary basis. ’ ’ I t  was also stated that certain forms and school 
records continued to emphasize “ White” and “ Negro” ; and it 
was finally held that for all practical purposes “ * * * the require­
ment of racial segregation in the public schools continue [d] at the 
time of trial. ’ ’ (Emphasis added)

In Holland, Judge Rives reaffirmed that the Alabama School 
Placement Law is approved; but as to the Florida Pupil Assign­
ment Law, cited the first Gibson case as to “ * * * the requirement 
of racial segregation in the public schools * * See majority
opinion.

The Mannings case related to a procedural question. There the 
court dismissed the complaint without affording the plaintiffs an 
opportunity of making proof of their allegations. Accordingly,



46a

review do not require segregation, but provide a means of 
orderly desegregation.

The most recent decisions bearing on the issues before us 
are two cases from our own court, the Stell case, and Cal­
houn v. Latimer, 5 Cir., 321 F.2d 302; and two Supreme 
Court cases, both decided on June 3, 1963, McNeese v. 
Board of Education, involving an Illinois statute, and 
Goss v. Board of Education of Knoxville, Tenn., 83 S.Ct. 
1405. In  addition to the distinguishing features in the 
Stell case which we have heretofore mentioned, a reading 
of that opinion will show that admission and attendance at 
schools in Savannah-Chatham County, Georgia, was re­
quired on a racial basis. The opinion further stated that 
evidence was admitted and considered which ‘ ‘ * # # tended 
to support the thesis that compliance with the Supreme 
Court’s decision (Brown v. Board of Education) Avould 
be detrimental to the Negro plaintiffs and the white stu­
dents in the Savannah-Chatham County school system.” 
The so-called Atlanta Plan approved in the Latimer case 
supports the decree of the District Court here involved. 
As a m atter of fact, the decree of the District Court au­
thorizes a procedure for desegregation as to all 12 grades, 
which the Atlanta Plan does not. This is not a criticism of 
the Atlanta Plan. The Supreme Court and the decision 
in Latimer, as well as numerous other cases, recognize 
the well known fact that all cases are not alike.

whatever the complaint alleged was considered true under the 
procedure, and the complaint alleged compulsory racial segregation.

In Augustus, the Florida Pupil Assignment Law was still under 
attack and each year the Board passed a resolution assigning each 
pupil back to the school Avhich he had previously attended. The 
district court in Augustus found that the racial factor was a con­
sideration in the assignment of students and that the Placement 
Law was being used for that purpose.

In Bush, two district judges and the Court of Appeals found 
that the Placement Law there involved was “ * * * being used to 
maintain segregation * * and there was no approval of the 
Placement Law there involved such as the approval given the Ala­
bama Placement Law in Shuttlesworth.



47a

In the MeNeese ease, the court was considering an ad­
ministrative remedy provided by the Illinois school code. 
First, the court decided not to apply the rule announced 
in Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 
1098, 87 L.Ed. 1424 relating to abstinence by a federal 
court in cases where state administrative remedies are 
made available. As to that question, the court found, 
“ We have, however, in the present case no underlying 
issue of state law controlling this litigation.” The court 
reasoned that “  * * * it is by no means clear that Illinois 
law provides petitioners with an administrative rem­
edy sufficiently adequate to preclude prior resort to , a 
federal court for the protection of their federal rights.”  
The court concluded that the Illinois law was no remedy 
at all.8 MeNeese asserts that “  [i]t would be anomalous to 
conclude that such a remedy forecloses suit in the federal 
courts when the most it could produce is a state court 
action that would have no such effect.”  The opinion ren­
dered by the District Court in the instant case does not 
authorize or tolerate the procedure criticized in the Mc- 
Neese case. Footnote 2 of the District Court’s opinion 
provides, “ A fter administrative remedies before the school 
board have been exhausted, judicial remedies for denial 
of constitutional rights may be pursued at once in this 
court without pursuing state court remedies.”  (Emphasis 
added) The MeNeese case did not hold or intimate that

8 It was pointed out in the opinion that before the question of 
segregation in a school on account of race could be presented to the 
Superintendent of Public Instruction, 50 residents of a school dis­
trict, or 10% whichever is lesser, were required to file a complaint. 
Any final decision by the Superintendent was subject to review 
by the courts. The Superintendent himself apparently had no 
power to order corrective action. His only function was to in­
vestigate, recommend and report. He could give no remedy. He 
could make no controlling finding of fact or law, and his recom­
mendations were not required to be followed by any court or 
executive order. Numerous other deficiencies in the Illinois law are 
made clear by the opinion.



48a

it was unlawful for a district court to require limited ad­
ministrative procedure such as that required by the holding 
of the trial court in this ease. Regardless of what we say, 
school systems must he operated by school superintendents 
and school boards, or by some administrative agency. All 
administrative procedure is not unlawful. Indeed, schools 
cannot operate without administrative procedure. As 
stated in Latimer, ‘ ‘ The courts are ill equipped to run the 
schools.”

In the Goss case, the difficulty complained of related to 
transfer provisions of the school desegregation plan. As 
there stated, “ * # # by the terms of the transfer provisions, 
a student, upon request, would be permitted, solely on the 
basis of his own race and the racial composition of the 
school to which he has been assigned by virtue of rezoning, 
to transfer from such school, where he would be in a racial 
minority, back to his former segregated school where his 
race would be in the m ajority.” The transfer system there 
under attack was held to work only to the end that segrega­
tion would be perpetuated. Transfers were available only 
to those who wished to attend schools where their race is 
in the majority and “ * * * there is no provision whereby 
a student might transfer upon request to a school in which 
his race is in the minority, unless he qualifies for a ‘good 
cause’ transfer.”  The court concluded:

‘ ‘ [W] e note that if the transfer provisions were made 
available to all students regardless of their race and 
regardless as well of the racial composition of the 
school to which he requested transfer we would have 
an entirely different case. Pupils could then at their 
option (or that of their parents) choose, entirely free 
of any imposed racial considerations, to remain in the 
school of their zone or transfer to another.

“ This is not to say that appropriate transfer provi­
sions upon the parents’ request, consistent with sound



49a

school administration and not based npon any state- 
imposed racial conditions, would fall. * * *”

I  find none of the defects in the opinion and order of the 
District Court which are condemned in Goss.

III. D elay  and  E m ergency

Considerable emphasis is placed npon the m atter of de­
lay from the time the suit was initially filed in the District 
Court on June 17, I960, until a final decision was rendered 
on the merits on May 28, 1963. Briefs of the appellants 
mention this delay and the m ajority opinion places empha­
sis on it. During the course of oral argument, appellants 
were interrogated by the court as to the delay involved, and 
the court was assured by counsel that no point was now be­
ing made with respect to delay. The matter continues to 
arise however, in spite of the fact that we do not have the 
record before us to determine if there was unnecessary 
delay. There is nothing to show that the parties litigant 
sought an earlier hearing. We judicially know of the excel­
lent record of the U.S. District Court for the Northern Dis­
trict of Alabama for the expedient dispatch of business. If  
there has been unnecessary delay in this case, it constitutes 
the exception rather than the rule. The case of Nelson v. 
Grooms, 5 Cir. 1962, 307 F.2d 76, may reveal some facts 
touching the question of delay. In the Nelson case the 
parties sought a writ of mandamus against U. 8. District 
Judge H. H. Grooms, because he continued the Nelson case 
pending hearing in the Armstrong case, rather than grant 
the petitioners’ application for preliminary injunction filed 
on June 13, 1962. The Nelson case was decided by a panel 
of this court on August 17, 1962. In the Nelson case it was 
alleged that the Armstrong case (presently before us) had 
been pending since June 17, 1960, but it was asserted that 
counsel for Armstrong were W. L. Williams, Jr. of Bir­
mingham and Ernest D. Jackson, Sr. of Jacksonville, F lor­
ida; whereas, counsel for Nelson were Constance Baker



50a

Motley of New York, and Orzell Billingsley, J r .  and Peter 
A. Hall of Birmingham. That fact was alleged as a reason 
why the cases should not he consolidated.7 The Nelson 
case is no longer before us, because the plaintiffs have 
moved from Birmingham and that case has been dismissed. 
No attack had been made on the action of the court with 
respect thereto. Presently, in this case, the Armstrong 
case, Attorneys Williams and Jackson still appear of rec­
ord as counsel for Armstrong; but in addition, George 
White of Birmingham and Constance Baker Motley, [sic] 
Jack Greenberg and Leroy D. Clark, all of New York, are 
also counsel. No criticism is made of the litigants or the 
lawyers involved as to the arrangements made for handling 
the cases. Of course, the litigants and the lawyers are 
free to deal with each other. I t  is a singular fact how­
ever, that at least two of the attorneys who originally filed 
the Armstrong case remain in it and so fa r as we know, 
no complaint was ever made of the delay involved. In 
Judge Grooms’ order it is recited that Judge Lynne would 
likely hear the Armstrong case in October 1962, and the 
hearing was held in October 1962.8 Judge Grooms’ order 
was entered in June 1962, and therefore everyone knew 
of the proposed hearing date for the Armstrong case as 
early as June 13, 1962. On the other hand, one of the 
attorneys who handled the Nelson case where complaint 
of delay was involved, and mandamus sought, now appears

7 We quote from the petition for mandamus in the Nelson case 
filed by the same counsel who orally argued the Armstrong ease 
before this court:

“ Counsel for the plaintiffs in the Armstrong case are not the 
same as counsel for the petitioner here. Counsel for the plain­
tiffs in the Armstrong case are: W. L. Williams, Jr., 1630 
Fourth Avenue, North, Birmingham, Alabama, and Ernest D. 
Jackson, Sr., 410 Broad Street, Jacksonville, Florida.”

8 The hearing before Judge Lynne was concluded the latter part 
of October, and the parties were given time to file briefs. In addi­
tion, the record of the testimony had to be transcribed.



51a

in the Armstrong case. So fa r as we are able to determine 
from anything before us, no complaint has ever been made, 
prior to this time, of the alleged delay in the Armstrong 
case. Courts are often reluctant to force parties to trial 
when the litigants on both sides prefer not to proceed to 
a trial, and many times cases are delayed for the conven­
ience of the parties or for other legitimate reasons. Usually 
a change in counsel actively handling the case will result in 
delay. We cannot determine these questions when we have 
not seen the record.

Certainly, there has been no delay in this court. On the 
26th day of June 1963, this court considered six (6) cases, 
all assigned for argument on an emergency basis. The 
six (6) cases are as follows:

1. Armstrong et al. v. Board of Education of the City 
of Birmingham, Jefferson County, Alabama, et al.

Decided in District Court on May 28, 1963; notice of 
appeal filed June 3, 1963; motion for injunction pending 
appeal filed on June 3, 1963; order assigning the case for 
oral argument on June 26, 1963, filed on June 5, 1963; and 
full oral argument was heard on June 26, 1963.

2. W. Gr. Anderson et al. v. City of Albany et al., 5 Cir., 
321 F.2d 649.

Filed on July 24, 1962 ; the District Court heard 5 vol­
umes of testimony (over 1300 pages) and entered an order 
dismissing the case on February 14, 1963; motion for in­
junction pending appeal, or in the alternative to advance 
the case on the docket for argument on the merits filed 
May 31, 1963; on June 5, 1963, an order was filed assigning 
the case for hearing on the merits on June 26, 1963; and 
on June 26, 1963, the case was extensively argued on the 
merits.

This case relates to injunctive proceedings against the 
City of Albany with respect to certain public facilities. One



52a

of the chief complaints of the appellants when the suit was 
initially filed, was the fact that the City of Albany had in 
effect ordinances requiring segregation of certain of the 
facilities involved. At the time of argument, all such ordi­
nances had been repealed and there was no compulsory 
segregation of such facilities. In  addition to extensive 
oral argument on June 26, 1963, another petition seeking 
an injunction pending appeal was heard before Judge Bell 
and denied by him on June 13, 1963.

3. NAACP v. Thompson, Mayor of the City of Jackson, 
Mississippi, et al., 5 Cir., 321 F.2d 199.

Filed June 7, 1963; hearing conducted and relief denied 
by U.S. District Court on June 11, 1963; motion for in­
junction pending appeal filed in this court on June 12, 
1963; order entered on June 14, 1963, assigning the case 
for hearing on the motion for June 26, 1963, at which time 
full argument was heard.

The relief sought is an injunction against the Mayor and 
city officials of the City of Jackson, Mississippi, restrain­
ing and enjoining them from interfering with parades, 
protests, street demonstrations, and from arresting Negro 
citizens who refuse to leave private businesses upon being 
requested to do so.

4. In the M atter of Application of Brown v. Rayfield, 
Chief of Police of City of Jackson, Mississippi (In the 
M atter of Application of Richards v. Rayfield), 5 Cir., 320 
F.2d 96.

Petition for writ of habeas corpus filed on June 7, 1963; 
hearing conducted and writ denied on June 12, 1963, at 
which time the F . S. District Court refused to certify prob­
able cause; on June 13, 1963, a Judge of this court signed 
a certificate of probable cause; motion for immediate hear­
ing filed on June 14, 1963; on June 14, 1963, motion granted 
and case was assigned for immediate hearing on June 26,



53a

1963; and on June 26, 1963, extended oral argument was 
heard.

This writ of habeas corpus sought the release of two 
Negro citizens who had been arrested in connection with 
street demonstrations. No effort was made to exhaust 
state remedies as required by law, because it was alleged 
that “ members of the various state courts”  of the State 
of Mississippi could not give a fair hearing to the peti­
tioners, and that an effort to obtain state remedies would 
be futile. The petition also complained that the petitioners 
were confined in segregated jails in contravention of their 
constitutional rights. According to affidavit of the Re­
spondent Rayfield, both petitioner-appellants were released 
from custody on June 15, 1963, by posting with the Clerk 
of the Municipal Court of the City of Jackson, Mississippi, 
an appearance bond in the sum of $100.00 for each of the 
appellants.

5. Kennedy v. Owen, Circuit Court Clerk and Registrar, 
Jefferson County, Mississippi, et al., 5 Cir., 321 F.2d 116.

(7 cases consolidated) Various applications were filed 
seeking an order of the District Court compelling the pro­
duction of records by clerks and registrars. Said petitions 
were filed on various dates, but some were filed in the 
month of May 1963; District Court held hearing and 
entered decree granting partial relief and denying some 
relief sought on June 11, 1963; notice of appeal filed June 
18, 1963; motion for summary reversal filed in this court 
June 20, 1963; order filed June 20, 1963, assigning the 
cause for oral argument on June 26, 1963; and on June 26, 
1963, extended oral argument was heard.

By reference to opinion already released, it will be ob­
served that the only question related to the sufficiency of a 
demand by the Attorney General which was addressed to 
the parties in their capacity as clerks only; whereas, the 
parties held the dual position of clerk and registrar.



54a

6. United States y. Dallas County, Alabama, et al.

Complaint seeking injunction filed in U. S. District Court 
for the Southern District of Alabama at 4:30 P.M. on June 
26, 1963; relief denied on June 26, 1963; notice of appeal 
filed June 26, 1963, and application made to this court for 
injunction at 9:00 P.M. June 26, 1963, at which time full 
oral argument was heard.

In this proceeding the United States sought to enjoin 
the Circuit Solicitor of the 4th Judicial Circuit, the County 
Solicitor of Dallas County, the State Judge having juris­
diction of the case, the Sheriff of Dallas County, Alabama, 
and Dallas County, Alabama, from prosecuting a 19 year 
old Negro youth on a charge of resisting arrest and en­
gaging in conduct calculated to cause a breach of the peace. 
Although the alleged offense was committed on June 17, 
1963, and the defendant arrested on that date, no effort 
was made to enjoin the prosecution until June 26, 1963.

I t  should be noted that in 3 of the cases outlined, relief 
was sought in the U. S. District Court, action taken by the 
District Court, the case appealed, and full oral argument 
heard by this court in 19 days or less. Opposing litigants 
were required to appear before our court on unusually 
short notice, without sufficient time, in some cases, to pre­
pare a brief. Some briefs were hurriedly prepared, typed 
and filed on the day the case was submitted to this court. 
Generally, administrative m atters of the court, and cases 
which seek emergency relief, are handled by the court with­
out formal oral argument. In the 6 cases mentioned, full 
and extended oral argument was permitted.

There is another factor which I  feel it is my duty to 
mention as a m atter of information to attorneys who ap­
pear before our court.9 The arguments presented in some

9 See Canons of Judicial Ethics, American Bar Association, 
Canon No. 11; Handbook for Judges (Carroll, Ed. 1961) Amer­
ican Judicature Society, p. 7.



55a

of the cases mentioned above contained insinuating over­
tones unfavorably reflecting on both the Federal and State 
Judiciary, in certain localities, varying in degree from the 
barely audible tinkling of a distant cymbal to the crashing 
noise of sounding brass. I t  is fundamental that lawyers 
owe full allegiance to their clients and should use their 
learning, skill, diligence, devotion, and “ * * * all appropri­
ate legal means within the law to protect and enforce legiti­
mate interests.” 10 Lawyers are required in the discharge 
of their duties to disagree with judges, to allege error, to 
attack the judges ’ rulings and decisions, and even to render 
just and proper criticism of such rulings, decisions and 
judgments. But the Office of Judge, whether it be Federal 
or State, requires the respect of the legal profession to the 
end that the dignity and independence of the judiciary may 
be maintained, regardless of the individual who may occupy 
such office at any given time. I t  is not appropriate, in my 
opinion, for lawyers, who are officers of the courts, to con­
demn all of the courts of a state, or to reflect improperly 
upon the courts generally by condemnation of such courts 
as a class or group. Such arguments are highly improper 
and are disapproved.11

At the time the above mentioned 6 cases were being 
heard, there were pending in this court 260 cases which 
could be calendared and heard during the summer recess. 
117 of such cases could be calendared during July. F u r­
ther, in addition to the 260 cases which have not been sub­
mitted there were, on June 26, 1963, 237 cases which had 
already been submitted to the court but not decided. Some 
of the 237 cases were argued and submitted over a year 
ago; 40 were submitted before January 1, 1963, and the 
balance were submitted since January 1, 1963. These 237

10 See Code of Trial Conduct, American College of Trial Lawyers, 
1962-63.

11 See Canons of Professional Ethics, American Bar Association, 
Canon No. 1.



56a

cases are now being considered by the court. All of the 
cases combined make a total of almost 500 cases pending 
in this court as of June 26, 1963. Consideration of them 
will come in the normal course of the court’s business, but 
the 6 cases outlined above received special emergency a t­
tention. The workload of this court is currently the heaviest 
of any Court of Appeals in the nation. The record of this 
court in hearing and deciding cases is as good as any. 
That record cannot long endure if certain cases are to be 
given special attention and considered on a preferential 
basis. In  the vast number of cases now pending before 
this court are m atters of tremendous importance involving 
business affairs, taxes, property, personal injuries, life and 
liberty. With deference and full respect, I  feel it is my 
duty to express the opinion that the 6 cases which were 
fully argued on June 26, 1963, were not of such overwhelm­
ing importance as to take precedence over all other cases 
then pending in this court.

IY . E x  B axc H earing

Because of the importance of this case both as to the 
motion for injunction pending appeal and the merits of 
the case on appeal not yet heard, because of the extraordi­
nary relief granted which conditions the merits of the case 
before an examination of the record by the court, the 
hurried and emergency action taken by the court, the 
unique procedure involved, and for other reasons which 
appear to me sufficient, I  hereby request, as authorized by 
Buie 2'5a of this court and the applicable statutes,12 that

12 28 U.S.C.A. § 46. “ Assignment of judges; divisions; hearings; 
quorum

“ (c) Cases and controversies shall he heard and determined 
by a court of division of not more than three judges, unless 
a hearing or rehearing before the court in ba.nc is ordered by a 
majority of the circuit judges of the circuit who are in active 
service. A court in banc shall consist of all active circuit 
judges of the circuit.”



57a

the court reconsider, rehear and decide this case En Banc, 
and I  hereby initiate consideration of this request by each 
of the Judges of the Court. See United States v. New 
York, N. H. & H artford Railroad Co., 2 Cir. 1960, 276 F.2d 
525; Puddu v. Royal Netherlands, etc., 2 Cir. 1962, 303 
F.2d 752; W alters v. Moore-McCormack Lines, Inc., 2 Cir. 
1963, 312 F.2d 893.

ON PETITIO N  FOR REHEARING BY FULL COURT

P ee C u r ia m .

One of the members of this Court, having in the dissent­
ing opinion, requested a rehearing of the case en banc, 
the Chief Judge polled the Circuit Judges of this Circuit 
who are in active service to determine whether an en banc 
rehearing should be ordered by a majority of such Judges. 
A majority of the Judges of the Circuit in active service, 
having voted against convening the Court en banc for the 
purpose of such rehearing, the petition of the appellees 
for rehearing by the Court en banc is D e n ie d .

The Petition for Rehearing is Denied.

Ge w in , Circuit Judge, dissenting.

Ca m ero n , Circuit Judge (dissenting).

On July 12, 1963 a panel of this Court composed of Chief 
Judge Tuttle and Judges Rives and Gewin filed an opinion 
and order in this case, ordering the District Court for the 
Northern District of Alabama to enter the judgment there­
in set forth, the opinion being written by Judge Rives, a 
special concurrence by Judge Tuttle, and a dissent by 
Judge Gewin. Judge Gewin requested that the Court in 
banc reconsider and decide the case and I  joined in that 
request. The Chief Judge advised that the request had 
been denied by a five to four vote of the members of the 
Court. I respectfully dissent from the action of the mem­
bers of the Court in refusing this in banc hearing and from



58a

the failure of the panel to grant the in banc hearing re­
quested by the appellees in a telegram to each of the Judges 
of the Court prior to the beginning of the hearing of the 
case by the panel.

Since the filing of the opinion and order on July 12th 
by the panel of three Judges the appellees have filed with 
the clerk of this Court a petition for rehearing and recon­
sideration of the decision and order of the panel. I  am ad­
vised that a sufficient number of the petitions for rehearing 
was filed for the distribution, as requested by appellees, 
of a copy of the petition to each of the Judges of the Court. 
I  am further advised that no copies of the petition for re­
hearing were submitted to any of the Judges of the Court 
except the members of the panel which had heard the case. 
That panel has, with Judge Gewin dissenting, entered an 
order declining the prayer for an in banc hearing and de­
nying the rehearing; and orders have been entered accord­
ingly. I  respectfully dissent from these actions of the 
panel and the orders entered in connection therewith.

The decision of this panel involves questions of proced­
ure which have for some weeks plagued and are still plagu­
ing the Court. The Judges of the Court are sharply divided 
on these questions and not only the lawyers of the Circuit, 
but the public generally, are displaying open concern with 
respect to inconsistent positions which they conceive are 
being taken by the Court.1 I  feel constrained to present in

1A feature article dated at New Orleans and appearing in the 
public press of July 20, 1963, presents a widely held conception 
of the situation. Excerpts from that article follow:

“ The U. S. Circuit Court for the Fifth Circuit has blazed 
new legal trails for nearly a decade in the deep south in the 
civil rights struggle for which Negroes are now demonstrat-mg  ̂^

“ The Court’s ‘hard core’ majority has moved at every 
opportunity, within its appellate power, to implement this 
school decision. Its orders, some without precedent, forced



59a

this dissent the result of some studies I  have made and 
some views I  entertain with respect to those questions, 
some of which have been so ably and exhaustively discussed 
by Judge Grewin. in his dissenting opinion, in which I  fully 
concur.

The procedure followed by the majority here is one 
which, in my opinion, is not sanctioned by the law. The 
hearing before these three Judges was not an appeal. 
Rather, it was what the Third Circuit has termed some­
thing “ in the nature of an original proceedings * * *.” 2 
It was the substitution of a hearing on “ injunction pend­
ing appeal”  for a hearing on appeal. Theoretically the 
appeal is still pending, but it is apparent that there is 
little or nothing more to hear since the decision and order 
of the majority of the panel are on the merits of the case,

the riot-triggering admission of James Meredith to the Uni­
versity of Mississippi last year.

“ It often has moved ahead of the Supreme Court to use 
the 1954 decision as a guideline to order desegregation of other 
facilities—buses, terminals, libraries, city auditoriums, parks 
and playgrounds. * * *

“ It has repeatedly overruled, and often sharply rebuked, 
Southern district court judges who have refused to accept or 
carry out the Supreme Court’s rulings. * * *

“ The split was exemplified by the Court’s recent 4-4 dead­
lock over the issue of a jury trial for Mississippi Governor 
Ross Barnett on criminal contempt charges growing out of 
his defiance of its orders to integrate Ole Miss. * * *

‘ ‘ The four judges who opposed a jury trial for Barnett have 
stood together consistently in decisions on civil rights cases. 
They are Chief Judge Tuttle and Judges Richard T. Rives 
of Montgomery, Alabama, John Minor Wisdom of New Or­
leans, and John R. Brown of Houston. * * * ”

These four Judges will hereafter sometimes be referred to as 
The Pour.

2 Two Guys from Harrison-Allentown, Inc. v. McGinley, 1959, 
266 F.2d 427, 431-432, Note 6.



60a

deciding in full, without the benefit of any record of the 
evidence in the lower court, the questions of law and fact 
which were before that court in its extended hearing. This 
phase of the vexatious problem before us has been so well 
handled by Judge Gewin’s dissent that I  rest on what he 
has said, with a few supplementary remarks.

I .

All of these unorthodox procedures have arisen in cases 
involving racial problems. Attention is focused on several 
of them in the five opinions written by members of this 
Court in No. 20240, United States of America v. Ross R. 
B arnett and Paul B. Johnson, Jr., April 9, 1963, which 
aggregated a total of one hundred th irty  pages; while other 
angles of the procedural questions were dealt with at some 
length in United States v. Lynd, 5 Cir., 301 F.2d 818, and 
the same case decided July 9 and 15, 1963 by a panel com­
posed of Judges Brown, Wisdom and Bell, 321 F.2d 26. 
The last sentence of Judge Bell’s special concurrence in 
the July 9th hearing characterizes poignantly the dilemma 
into which this Court has been plunged since it set itself 
the task of inventing special procedures for the handling 
of such cases:

“ This case serves as a classic example of the pit- 
falls to be encountered, with the attendant disruption 
and delays in the orderly administration of justice, 
when courts depart from the time-tested processes of 
law. ’ ’

The present wave of petitions for treatment according 
to the new and unusual procedures described in Judge 
Gewin’s dissent, may be said to have been set off by an 
order granted by Chief Judge Tuttle on May 22, 1963 in 
No. * * #, Linda Cal Woods by Next Friend v. Theo R. 
Wright, Superintendent of Schools of the City of Birming­
ham. The incomplete record of this case on file in this



61a

Court states that, on May 21, 1963, this class action was 
brought against the Superintendent of Schools in the City 
of Birmingham for an order enjoining him from enforcing 
a directive of the Board of Education of Birmingham sus­
pending the minor Linda Cal Woods and expelling or sus­
pending approximately 1080 other Negro students from 
the public schools of Birmingham on the alleged ground 
that they had been arrested for parading without a permit. 
The order entered by the Judge of the District Court on 
May 22nd recites that the case came on for hearing before 
him on motion for temporary restraining order and/or 
preliminary injunction and states that the prayer for both 
was denied. Reproduced in the margin are excerpts from 
this order of the District Court,.3

8 After reciting its finding that those attending the public schools 
of Birmingham had been cautioned not to stay away from 
school during the remaining weeks of the session, the order 
continues:

“ This Court was shocked to see hundreds of school children 
ranging in age from six to sixteen running loose and wild 
without direction over the streets of Birmingham and in the 
business establishments. It is due to the patience and good 
judgment of the people of Birmingham and the police officials 
particularly that no one was seriously injured on May 7, 1963, 
when the demonstrators were allowed by the police depart­
ment and city officials of Birmingham to parade within a 
certain designated area, and the hundreds of school children 
in the parade refused to stay within the boundaries of the 
parade area, broke through the police and for some forty-five 
minutes ran wild over the City of Birmingham.

“ This Court cannot conceive of a Federal Court saying to 
the Board of Education of the City of Birmingham, made up 
of dedicated, courageous, honorable men that they should take 
no action under the circumstances and that the children who 
deliberately failed to attend school for some several days should 
not in any way be punished or penalized. White students in 
recent weeks have been suspended or expelled from the Bir­
mingham high schools for similar or lesser offenses. # * * This 
Court feels that the Board of Education of the City of Bir­
mingham in its disciplinary problems deserves no interference



62a

The order signed by Chief Judge Elbert P. Tuttle on 
the same day recites in part the following:

“ The appellant # * * has made application to me 
to grant an injunction * * * pending an appeal on the 
merits of the case in this Court. Appellant contends 
that I  have jurisdiction as a member of the Court of 
Appeals for the F ifth  Circuit to grant such an in­
junction pending appeal under the terms of 28 U.S.C.A. 
§ 1651(b). * * *

“ I t  is clear, therefore, that the Court of Appeals 
has jurisdiction of this appeal within the contempla­
tion of Section 1651(b). I, therefore, hold that I  have 
jurisdiction and the power to grant the relief here 
sought. See Aaron v. Cooper, 8 Cir., 261 F.2d 97. See 
also Rule 62(g), Federal Rules of Civil Procedure, * * *

from this Court so long as it stays within reasonable bounds. 
The Court has been assured by the Board of Education that 
proper officials are presently in the process of 'giving each and 
every student who has been notified that he has been sus­
pended or expelled, a speedy, fair and comprehensive hearing, 
that the students have been notified of the specific charges, 
brought against them which, if proven, would justify dis­
cipline or expulsion under the regulations or policy of the 
Board of Education.

“ This Court has been advised that the suspension or ex­
pulsion of no child will be upheld by the school Board, after 
a hearing, due to prejudice, anger or in retaliation.

‘ ‘ The Court feels that this is borne out by the fact that the 
school Board in adopting its policy at the same time stipulated 
that all students, whether expelled or suspended, would be 
allowed to make up the work that they had lost in summer 
school. * * * Furthermore, the Court finds that suspension, 
pending a hearing and opportunity to make up the work in 
the summer in any event is not unduly harsh under the cir­
cumstances, taking into consideration the necessity of main­
taining the morale and efficient operation of the school system.

“ It is, therefore, at this time, O r d e r e d , A d j u d g e d  and 
D e c r e e d  that plaintiff’s motion for a temporary restraining 
order be, and the same is hereby denied.’’ [Emphasis added.]



63a

“ Although on the record before me it appears shock­
ing that a  Board of Education, interested in the edu­
cation of the children committed to its care, should 
thus in effect destroy the value of one term of school­
ing for so many children at a time when all persons 
professionally interested in the educational process 
and the welfare of young people are bending their 
efforts towards minimizing school dropouts and em­
phasizing the need for continuing education, the right 
of the appellant to succeed here cannot be based upon 
this consideration. If  appellant is entitled to an in­
junction it must be based on my determination that 
there is a clear right to the relief sought in the trial 
court and that an irreparable injury will result to 
appellant and the class which she represents unless 
the relief by injunction pending appeal is granted.” 
[Emphasis added.]

Judge Tuttle’s order contains these directives:

“ I t  is Ordered that Theo R. W right [and his agents, 
etc.] * * * are hereby enjoined from continuing to 
enforce and carry into effect the order of the Board 
of Education issued by letter on May 20, 1963 * * #

“ The said appellee [and the others] are further 
ordered to inform all principals of all schools in the 
Birmingham school system who received the letter 
of direction from respondent dated May 20, 1963, * * # 
that the letter of direction of May 20,1963, is rescinded 
and revoked and all students affected thereby are to be 
permitted to return to their respective classes as reg­
ular students immediately. Pending the actual re­
scission of the said letter, appellee is ordered to make- 
known in any way available to him or to the said 
students that they are permitted to return to school on 
Thursday, May 23, 1963.



64a

“ * * * This order shall stay in effect until the final 
determination of this appeal on the merits or until the 
further order of the Court.”  [Emphasis supplied.]

The file furnished me by the clerk’s office shows that the 
hearing before Judge Tuttle was had upon an unsworn 
“ petition” to which was attached what was alleged to be 
copies of several letters of May 20th, one from the princi­
pal of Washington School to Reverend Calvin Woods, 
father and next friend of the plaintiff, and others from the 
superintendent of schools to other school officials, all re­
ferring to the suspension or expulsion of children from the 
schools in Birmingham because of their participation in 
the “ demonstrations” then taking place in the streets of 
Birmingham. The only proof conforming to the Rules 
governing granting of temporary injunctions was an affi­
davit by Reverend Calvin Woods, all of which referred to 
his daughter Linda and her conduct. As fa r as I  can find 
there was no refutation at all of the findings of the District 
Judge concerning the conduct of the hundreds of students 
besides Linda Cal Woods, the unexcused school absences, 
the representations to the District Court by the Board of 
Education and the other important facts found by the 
court below as the basis of its denial of the motion for the 
temporary restraining order. There were no pleadings on 
behalf of the school hoard, because there had been no serv­
ice of process or opportunity to file such pleadings.

Nevertheless, Judge Tuttle entered an order finding that 
there was no genuine dispute as to the fact that the stu­
dents involved were arrested for participating in a demon­
stration against polices and practices of segregation either 
by the municipal government of Birmingham, the school 
system of Birmingham, or certain businesses in Birming­
ham whose segregation policies had previously resulted 
in the arrest of a number of Negro prisoners under either 
the segregation statutes of the City of Birmingham or the 
antitrespass laws of the State of Alabama.



65a

Even assuming that there was an appeal then pending 
from the decree of the District Court to this Court, there 
was, in my opinion, no jurisdiction in the Chief Judge to 
to hear or dispose of the motion for temporary injunction, 
especially one granting the order he essayed to enter, in­
cluding, as it does, provisions for mandatory relief effec­
tively disposing of the case on its merits. In the very 
nature of things, it was inevitable that the School Super­
intendent would obey the fiat of the Chief Judge of this 
Court whether it was backed by the authority of the law 
or not. No action could be taken which would obliterate 
the harm done to the Birmingham school system by this 
improvident order.

Unfortunately, efforts made by members of the Court 
to obtain an authoritative ruling on the legality of the 
order from the Judicial Counsel or the full Court were 
thwarted by the opposition of The Four.4

The majority in the instant case—as has been true in 
similar decisions rendered in the past few weeks—placed 
its reliance chiefly upon case No. 20557, Stell et al. v. 
Savannah-Chatham. County Board of Education, et ah, 5 
Cir., 318 F.2d 425. The injunctive order issued by the 
majority in the present case is modeled upon the order 
granted in the Stell case. Judge Gewin, in his dissenting 
opinion here, shows clearly that the present case is not 
controlled by the Stell case. In addition, I  think that the

4 The entry made on the Minutes of the meeting of the Judicial 
Council for the Fifth Circuit in New Orleans on May 29, 1963 
follows:

“ The power of a single Circuit Judge to act in certain in­
stances including the power to grant injunctive relief was 
next discussed. I t was not possible to resolve the question of 
power by rule or otherwise due to an even division among the 
members of the Council as to the presence or absence of such 
power, and because some felt that it was not the appropriate 
subject matter of a rule.”



66a

Stell case should not be followed because it was illegally 
advanced and set for special hearing by the Chief Judge 
before a panel selected and assigned by him alone.5 I  am 
unable to find any authority which is vested in the Chief 
Judge so to appoint a panel to hear a case or to assign 
a case for hearing such as was attempted by the Chief 
Judge in that case.

II.

This Court is, of course, a creature of statute. The statute 
providing for the assignment of Judges is 28 IT.S.C. § 46:

§ 46. Assignment of judges; divisions; hearings; 
quorum

“ (a) Circuit judges shall sit on the court and its 
divisions in such order and at such times as the court 
directs.

“ (b) In  each circuit the court may authorize the 
hearing and determination of cases and controversies 
by separate divisions, each consisting of three judges. 
Such divisions shall sit at the times and places and 
hear the cases and controversies assigned as the court 
directs.

5 The order, as it appears in the file of the Stell case, is as. follows:
“ I t  is O r d e r e d  that the above entitled and numbered cause 

be assigned for hearing at Atlanta, Georgia on Friday, May 
24, 1963 before a panel consisting of Judges Tuttle, Rives and 
Bell.

Elbert P. Tuttle 
C h i e f  J u d g e ,

U. S. Court of Appeals, 
to be filed and entered as of 5/21.”

The panel before whom cases were being argued during the week 
beginning May 20th was the one sitting at Houston, Texas com­
posed of Judges Hutcheson, Brown and Lumbard.



67a

“ (c) Cases and controversies shall be heard and 
determined by a court or division of not more than 
three judges, unless a hearing or rehearing before the 
court in banc is ordered by a majority of the circuit 
judges of the circuit who are in active service. A court 
in banc shall consist of all active circuit judges of the 
circuit .

“ (d) A majority of the number of judges author­
ized to constitute a court or division thereof, as pro­
vided in paragraph (c), shall constitute a quorum.”

The Supreme Court interpreted this statute in the case 
of Western Pacific Railroad Corporation et al. v. West­
ern Pacific Railroad Company et al., 1953, 345 U.S. 247, 
257-258, 73 S.Ct. 656, 661, 97 L,Ed. 986, confirming the 
language of the statute as having the literal meaning of 
the words used:

“ This interpretation makes for an harmonious read­
ing of the whole of § 46. In this Section, Congress 
speaks to the Courts of Appeals: the court, itself as a 
body, is authorized to arrange its calendar and distrib­
ute its work among its membership; the court, itself, 
as a body, may designate the places where it will sit. 
Ordinarily, added Congress, cases are to be heard by 
divisions of three. But Congress went further; it left 
no doubt that the court, by a majority vote, could con­
vene itself en banc to hear or rehear particular cases.”

The Rules of this Court do not, as far as I  can find, pro­
vide for the assignment of cases for hearing or for the 
assignment of judges by the Chief Judge or any one 
Judge.6 En banc hearings are provided for in Rule 25a of

8 The only rules I can find relating to the assignment of cases 
and of Judges are Rules 35, 36 and 17:

“ Rule 35. Assignment of Cases for Hearing 
“ 1. Thirty days prior to the opening of a regular session of 
this court at Atlanta, Montgomery, Port Worth, and Jackson-



68a

the Rules of this Court. I  find no provision for advance­
ment of cases or taking them up out of time either in the 
statutes or in our Rules or in the Federal Rules of Civil 
Procedure.7

From the foregoing, it follows, I  think, that the judg­
ment in the instant case should he reversed because the 
panel which decided it had no legal existence and the 
order setting it for hearing without a record and giving 
it other preferential treatm ent was entered without au­
thority. I t  follows, moreover, that the judgment should 
be reversed because the precedents upon which it is 
grounded were not valid decisions of this Court.

ville, and thirty days prior to the opening of the various 
sessions at New Orleans, the clerk is directed to assign cases 
returnable at said places that are ready for hearing in such 
manner as may be most convenient to expedite the business of 
the court.
“ 2. Any appeal returnable at Atlanta, Montgomery, Fort 
Worth, Jacksonville, or New Orleans may be assigned for 
hearing at any other place of holding court for a more prompt 
hearing, on consent of the parties or on motion of either party 
or on the court’s own motion.”

“ Rule 36. Assignment of Judges
“ It is ordered that whenever a full bench of three judges 

shall not be made up by the attendance of the Associate Jus­
tice of the Supreme Court assigned to the circuit, and of the 
circuit judges, so many of the district judges, as may be 
necessary to make up a full court of three judges, are hereby 
designated and assigned to sit in this court; provided, how­
ever, that the court may, at any time, by particular assign­
ment, designate any district judge to sit as aforesaid.”

“ Rule 17. Docket
“ The clerk shall enter upon a docket all cases brought to 

and pending in the court in their proper chronological order, 
and such docket shall be called at every term * *

7 Rule 40, F.R.C.P. provides that precedence shall be given to 
actions entitled thereto by any statute of the United States.



69a

III.
I  think, too, that a solution of the problems facing this 

Court will be helped by a study of the handling of racial 
cases during the immediate past, in which period so much 
haste has been made and so many procedural innovations 
have been utilized that the general impression has grown 
up and has been expressed that this Court has one set of 
procedures covering racial cases and another set covering 
all other cases. I  have accordingly made a study of the 
cases as they appear in the Federal Reporter, Second 
Series, involving controversies heard before panels of this 
Court bearing date within the two years preceding the 
hearing of the present case on June 26, 1963. I believe this 
survey to be correct. I t  covers twenty-five cases, which are 
listed in Appendix “ A ” to this opinion. Of the twenty-five 
cases listed, the m ajority of the panel in twenty-two of them 
was composed of some combination of The Four, who con­
stitute a minority of the active Judges. In  only two cases 
did two of the remaining five members of the Court sit to­
gether.

Of the Circuit Judges of this Circuit, The Four sat 
fifty-five tim es; the other five sat twelve times. The Four 
wrote twenty-three of the twenty-five opinions, including 
per euriam s: Chief Judge Tuttle wrote six, including four 
per euriams; Judge Rives wrote six, including two per 
euriams; Judge Brown wrote four, and Judge Wisdom 
wrote six, including one per curiam. The per curiam 
order (Appendix “ A ” , No. 21) adjudging Lieutenant 
Governor Johnson to be in civil contempt was entered by 
a panel consisting of Judges Rives, Brown and Wisdom, 
and one of them wrote the opinion. One per curiam was 
written by one of the five remaining Judges of this Court 
and one full opinion was written by a district judge.

IV.
The handling by Chief Judge Tuttle of three judge dis­

trict courts in the State of Mississippi is a part of the



picture of the crusading spirit which I  think has been 
largely responsible for the errors here discussed and is 
relevant to the discussion of a solution of the problems be­
fore us. The statute providing for such courts is in these 
w ords:

“ § 2284. Three-judge district court; composition; 
procedure

“ In  any action or proceeding required by Act of 
Congress to be heard and determined by a district 
court of three judges the composition and procedure of 
the court, except as otherwise provided by law, shall 
he as follows:
“ (1) The district judge to whom the application for 
injunction or other relief is presented shall constitute 
one member of such court. On the filing of the applica­
tion, he shall immediately notify the chief judge of 
the circuit, who shall designate two other judges, at 
least one of whom shall he a circuit judge. Such 
judges shall serve as members of the court to hear and 
determine the action or 'proceeding. * * * ”  (Em­
phasis added.)

In  the performance of the ministerial duty so imposed 
upon him, the universal practice, except in this Circuit in 
the last four years, has been for the Chief Judge to appoint 
the circuit judge resident in the State for which the dis­
trict court is constituted and one of the district judges 
resident in such state as the other two members. I  have 
been able to find no instance where this procedure has not 
been followed except those here mentioned.

The State of Mississippi has residing winthin its borders 
one Circuit Judge, three active District Judges, and one 
senior District Judge designated for active service, all of 
whom have been at all times mentioned citizens of Missis­
sippi, qualified for the positions they hold, and ready, 
willing and able to perform the duties incident to service 
upon such a district court.



71a

Since November 9, 1961 and prior to the submission of 
the instant case, three district courts of three judges have 
been constituted to hear racial cases in Mississippi.8

For the first of these District Courts of the United 
States for the Southern District of Mississippi, Judges 
Tuttle, Rives and Mize were designated; for the second, 
Judges Rives, Brown and Mize were designated; and for 
the third, Judges Brown, Wisdom and Cox were desig­
nated. A member of The Four was substituted for the 
resident Circuit Judge in each instance, and another mem­
ber of The Four was substituted for the additional Dis­
trict Judge. The idea that the Chief Judge may thus 
gerrymander the United States Judges of a State in order 
to accomplish a desired result is, I think, entirely foreign 
to any just concept of the proper functioning of the 
judicial process.

Y.
If this Court is to regain the stature it owned on March 

16, 1959 when Judge Hutcheson laid down the duties of 
Chief Judge it must, in my opinion, forsake the special 
procedures which have been discussed and adhere to those 
which are “ time-tested” and legal. I t is important, I  
think, that “ the court as a body” on whom the respon­
sibility rests take hold of the problem and solve it.

I, therefore, respectfully dissent. United States v. New 
York, New Haven & H artford Railroad Co., 2 Cir., 1960, 
276 F.2d 525 ; Puddu v. Royal Netherlands, Etc., 2 Cir., 
1962, 303 F.2d 752; and W alters v. Moore-McCormack 
Lines, Inc., 2 Cir., 1963, 312 F.2d 893.

8 No. 3215, Jackson Division, Southern District, "United States 
v. City of McComb, et al., order entered 11-9-61;

No. C-3235, Jackson Division, Southern District, Reverend Clark 
et al. v. Allen Thompson, Mayor, et al., order entered 1-23-62;

No. C-3312, Jackson Division, Southern District, United States 
v. State of Mississippi et al., order entered 9-5-62.



72a

APPEN D IX  A

1. Dixon v. Alabama State Board of Education, Aug. 
4, 1961, 5 Cir., 294 F.2d 150. Expulsion of students for 
demonstrating. Circuit Judges Rives, Cameron and W is­
dom. Opinion by Judge Rives.

2. United States v. Wood, Oct. 27, 1961, 5 Cir., 295 F.2d 
772. Voter registration. Circuit Judges Rives, Cameron 
and Brown. Opinion by Judge Rives.

3. Meredith v. Fair, Jan. 12, 1962, 5 Cir., 298 F.2d 696. 
School desegregation. Chief Judge Tuttle, Circuit Judges 
Rives and Wisdom. Opinion by Judge Wisdom.

4. Kennedy v. Bruce, Feb. 5, 1962, 5 Cir., 298 F.2d 860. 
Voter registration. Chief Judge Tuttle, Circuit Judges 
Rives and Wisdom. Opinion by Chief Judge Tuttle.

5. Stoudenmire v. Braxton, Mar. 9, 1962, 5 Cir., 299 F.2d 
846. School desegregation. Chief Judge Tuttle, Circuit 
Judges Brown and Bell. Per curiam.

6. United States v. Lynd, April 10, 1962, 5 Cir., 301 F.2d 
818. Voter registration. Chief Judge Tuttle, Circuit 
Judges Hutcheson and Wisdom. Opinion by Chief Judge 
Tuttle.

7. Christian v. Jemison, April 25, 1962, 5 Cir., 303 F.2d 
52. Local transportation desegregation. Circuit Judges 
Rives, Brown and Wisdom. Opinion by Judge Wisdom.

8. State of Alabama v. United States, June 1,1962, 5 Cir., 
304 F.2d 583. Voter registration. Circuit Judges Rives, 
Cameron and Brown. Opinion by Judge Brown.

9. Meredith v. Fair, Feb. 12, 1962, 5 Cir., 305 F.2d 341. 
School desegregation. Chief Judge Tuttle, Circuit Judges 
Rives and Wisdom. Per curiam.

10. Meredith v. Fair, June 25, 1962, 5 Cir., 305 F.2d 
343. School desegregation. Circuit Judges Brown and



73a

Wisdom, District Judge DeVane. Opinion by Judge 
Wisdom.

11. Kennedy v. Lynd (and four other consolidated cases), 
July 11, 1962, 5 Cir., 306 F.2d 222. Voter registration. 
Circuit Judges Rives, Brown and Wisdom. Opinion by 
Judge Brown.

12. Meredith v. Fair, July 27, 1962, 5 Cir., 306 F.2d 374. 
School desegregation—recall of mandate, etc. Circuit 
Judges Brown and Wisdom, District Judge DeVane. 
Opinion by Judge Wisdom.

13. Guillory v. Administrators of the Tulane University 
of Louisiana, July 21, 1962, 5 Cir., 306 F.2d 489. School 
desegregation. Circuit Judges Cameron, Brown and Wis­
dom. Per curiam.

14. Augustus v. Board of Public Instruction, July 24, 
1962, 5 Cir., 306 F.2d 862. School desegregation. Chief 
Judge Tuttle, Circuit Judges Rives and Brown. Opinion by 
Judge Rives.

15. Nelson v. Grooms, Aug. 17, 1962, 5 Cir., 307 F.2d 76. 
School desegregation—mandamus. Circuit Judges Rives, 
Brown and Wisdom. Opinion by Judge Rives.

16. Bush v. Orleans Parish School Board, Aug. 6, 1962, 
5 Cir., 308 F.2d 491. School desegregation. Circuit 
Judges Rives, Brown and Wisdom. Opinion by Judge 
Wisdom.

17. Stone v. Members of Board of Education, City of 
Atlanta, Ga., Nov. 16, 1962, 5 Cir., 309 F.2d 638. School 
desegregation. Chief Judge Tuttle, Circuit Judge Brown, 
District Judge Johnson. Per curiam.

18. Hanes v. Shuttlesworth, Nov. 16, 1962, 5 Cir., 310 
F.2d 303. Park  desegregation. Circuit Judges Rives, 
Jones and Bell. Per curiam.



74a

19. Ross v. Dyer, Dec. 28, 1962, 5 Cir., 312 F.2d 191. 
School desegregation. Chief Judge Tuttle, Circuit Judges 
Hutcheson and Brown. Opinion hy Judge Brown.

20. Potts v. Flax, Feb. 6, 1963, 5 Cir., 313 F.2d 284. 
School desegregation. Circuit Judges Brown and Bell, 
District Judge Simpson. Opinion by Judge Brown.

21. Meredith v. F a ir (United States v. Mississippi and 
Paul B. Johnson, J r .) , Sept. 29, 1962, 5 Cir., 313 F.2d 534. 
Civil contempt. Circuit Judges Rives, Brown and Wisdom. 
Per curiam.

22. Clark v. Thompson, March 6, 1963, 5 Cir., 313 F.2d 
637. Desegregation of public recreational facilities. Cir­
cuit Judges Hutcheson, Gewin and District Judge Hannay. 
Per curiam.

23. United States v. Dogan, Jan. 26,1963, 5 Cir., 314 F.2d 
767. Voter registration. Circuit Judges Rives and W is­
dom, District Judge Bootle. Opinion by Judge Bootle.

24. City of Shreveport v. United States, 5 Cir., 1963, 316 
F.2d 928. A irport desegregation. Chief Judge Tuttle, 
Circuit Judges Rives and Moore.* Per curiam.

25. City of Shreveport v. United States, 5 Cir., 1963, 316 
F.2d 928. Bus terminal desegregation. Chief Judge Tut­
tle, Circuit Judges Rives and Moore.* Per curiam.

ADDENDUM TO APPENDIX A

Since the printing of this dissenting opinion hy the 
Clerk on July 30, 1963, a less hurried examination of the 
published reports of cases decided during the period 
specified in the opinion has disclosed that four cases were 
inadvertently omitted from Appendix “ A ” . These were 
called to the attention of the other Judges of this Court by

* Of the Second Circuit, sitting by designation.



75a

my letter of August 14, 1963. They are not included in 
the computations dealt with in P art II I  of the opinion.

Following are the four omitted cases:

2%. Abernathy v. Patterson, Oct. 31, 1961, 5 Cir., 295 
F.2d 452. Enjoining “ segregated” state courts. Circuit 
Judges Rives and Wisdom, District Judge Carswell. 
Opinion by Judge Rives.

7%. United States ex rel. Seals v. Wiman, May 30, 1962, 
5 Cir., 304 F.2d 53. Exclusion of Negroes from state grand 
and petit juries. Circuit Judges Rives, Brown and Wis­
dom. Opinion by Judge Rives.

21%. Coleman v. Kennedy, Feb. 13, 1963, 5 Cir., 313 F.2d 
867. Voter registration. Circuit Judges Rives and Wis­
dom, District Judge Bootle. Per Curiam.

231/2 . Greene v. Fair, Feb. 18, 1963, 5 Cir., 314 F.2d 200. 
School desegregation. Chief Judge Tuttle, Circuit Judges 
Jones and Bell. Per Curiam.

On Petition for Intervention and Stay

Before W isdom , Ge w in  and B e l l , Circuit Judges.

G e w ik , Circuit Judge.

The Petition for Intervention and Stay of the operation 
of the plan of desegregation approved on August 19, 1963, 
by the United States District Court for the Northern Dis­
trict of Alabama is hereby denied. Morin v. City of 
Stuart, 5 Cir., 1939, 112 F.2d 585; Holland v. Board of 
Public Instruction of Palm Beach County, 5 Cir., 1958, 258 
F.2d 730; St. Helena Parish School Board v. Hall, 5 Cir., 
1961, 287 F.2d 376; McKenna v. Pan American Petroleum 
Corp., 5 Cir., 1962, 303 F.2d 778.



76a

Under the original opinion and order of the IT. S. Dis­
trict Court for the Northern District of Alabama1 and 
under the opinion of this Court rendered in this cause on 
July 12, 1963, Negro children have the constitutional right 
and the statutory right under the Alabama Pupil Place­
ment Law to make application for transfer and enrollment 
free of racial discrimination. The issues involved here 
have long been settled by decisions of the TJ. S. Supreme 
Court. Law and order cannot be preserved by yielding 
to violence and disorder, nor by depriving individuals of 
constitutional rights decreed to be vested in them by the 
U. S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 20, 
78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958).

We have no trouble in taking judicial notice of the fact 
that there are many upstanding, splendid, law-abiding 
citizens in Birmingham and throughout the State of Ala­
bama who are so firmly dedicated to the principle of the 
orderly process of the courts and the law that they refuse 
to rebel against those laws which displease them. We also 
take judicial knowledge of the fact that violence and dis­
order have erupted in Birmingham. There is no indication

1 In Judge Lynne’s original opinion it was stated:
“ This Court will not sanction discrimination by them [the 
Superintendent and Board of Education] in the name of the 
Placement Law * * * ”
‘ ‘ Adequate time remains before the opening of the September, 
1963, school term for the processing of applications for assign­
ments or transfers in behalf of interested individuals. Juris­
diction of this action will be retained for the purpose of per­
mitting the filing of such supplemental complaint, if any, as 
might be entitled to be presented, in case of any unconstitu­
tional application of the Alabama School Placement Law 
against the plaintiffs, or others similarly situated, or of any 
other unconstitutional action on the part of defendants against 
them. The issues tendered by any supplemental complaint 
will be given a preferred setting on the docket of this court 
and will be heard on five days notice to defendants. ’ ’



that the great body of people of Alabama approve of law­
less conduct even though such conduct arises out of the 
enforcement of laws which change customs and traditions. 
The question now is not approval or disapproval of the 
law ; but whether the law, order, and the educational process 
will prevail over violence and disorder. The howling winds 
of hate and prejudice always make it difficult to hear the 
voices of the humble, the just, the fair, the wise, the rea­
sonable, and the prudent. We must not permit their 
voices to be silenced by those who would incite mob violence. 
“ The best guarantee of civil peace is adherence to, and 
respect for, the law.” Watson et al. v. City of Memphis 
et al., 1963, 373 U.S. 526, 83 S.Ct. 1314,1320,10 L.Ed.2d 529.

“ Patience is a great part of justice,” 2 but we are bound 
by the most recent statement of the U. S. Supreme Court 
in Goss v. Board of Education of the City of Knoxville, 
Tennessee (a unanimous opinion) 1963, 373 U.S. 683, 83 
S.Ct. 1405, 1409, 10 L.Ed.2d 632, wherein the Court stated :

“ In reaching this result we are not unmindful of 
the deep-rooted problems involved. Indeed, it was 
consideration for the multifarious local difficulties and 
‘variety of obstacles’ which might arise in this transi­
tion that led this Court eight years ago to frame its 
mandate in Brown in such language as ‘good faith 
compliance at the earliest practicable date’ and ‘all 
deliberate speed.’ Brown v. Board of Education, 349 
U.S., [294] at 300, 301 [75 S.Ct. 753, 99 L.Ed. 1083], 
Now, however, eight years after this decree was 
rendered and over nine years after the first Brown 
decision, the context in which we must interpret and 
apply this language to plans for desegregation has 
been significantly altered.”

The w riter of this opinion wishes to state that it has 
been and is now his feeling that the opinion of the U. S.

2 ‘ ‘ Handbook for Judges ’ ’ edited by Donald Iv. Carroll, Amer­
ican Judicature Society.



78a

District Court for the Northern District of Alabama as 
originally entered in this cause should have been affirmed 
for the following reasons:

1. The same was in full compliance with the decisions 
of the U. S. Supreme Court and of this Court.

2. The District Judge being a resident of the area 
involved is better qualified to consider and deal with 
“ * * * the multifarious local difficulties and ‘variety 
of obstacles’ which might arise in this transition.”  3

Under the opinion of the District Court for the North­
ern District of Alabama originally entered in this case; 
the opinion of the majority and the dissenting opinion 
released on July 12, 1963 by this Court; the opinion in 
Shuttlesworth v. Birmingham Board of Education, N.D. 
Ala.1958, 162 F.Supp. 372; the Supreme Court cases herein 
cited; and numerous other decisions of the U. S. Supreme 
Court and the various Circuit Courts of Appeal, the rights 
of the plaintiffs and those similarly situated to attend the 
schools which have been designated for their attendance 
is clear and unequivocal. Court orders, like constitutional 
rights, cannot yield to violence. In the present status of 
this case the Board of Education of the City of B ir­
mingham, the present members of the Board and Theo R. 
Wright, Superintendent of Schools, their successors, etc. 
must comply with the plan of desegregation approved by 
the U. S. District Court for the Northern District of 
Alabama on August 19, 1963, in this cause.

A solution may be found in the following pronounce­
ment by Mr. Justice Frankfurter in his concurring opinion 
in Cooper v. Aaron, supra:

“ By working together, by sharing in a common effort, 
men of different minds and tempers, even if they do 
not reach agreement, acquire understanding and there­
by tolerance of their differences.”

3 See Goss v. Board of Education of the City of Knoxville, Ten­
nessee, supra.



79a

UNITED STATES COURT OF APPEALS 
F IF T H  CIRCUIT

Sept. 24, 1963.

C akolyn E leanor  H arris, a  m in o r , b y  T aylor H arris, h e r  
g u a r d ia n  and n e x t f r ie n d , e t  al., Appellcmts-Intervenors,

v.
L inda  S u e  G ibson  a n d  B renda  G ib so n , m in o rs , b y  T hom as 

L. G ibso n , th e i r  f a th e r  a n d  n e x t  f r ie n d , a n d  T hom as L. 
G ibso n , in d iv id u a lly , e t  a l., Plaintiffs-Appellees,

and

G l y n n  C o u n ty  B oard of E d u cation , a public body exist­
ing under the laws of Georgia, et al., Defendants-Appellees,

No. 20871.

Constance Baker Motley, New York City, Donald L. 
Hollowell, Horace T. Ward, Atlanta, Ga., for appellants.

Carter Pittman, Dalton, Ga., Geo. L. Leonard Washing­
ton, D. C., B. N. Nightingale, Brunswick, Ga., Barrie L. 
Jones, Alma, Ga., Alan B. Smith, Brunswick, Ga., for 
appellees.

Before R ives , B r o w n , and B e l l , Circuit Judges.
Gr if f in  B. B e l l , Circuit Judge.

The minor appellants are six Negro children presently 
enrolled in the public schools of Glynn County, Georgia. An 
application for transfer from the Negro high school to 
Glynn Academy, the white high school in Glynn County on 
behalf of each minor appellant, some to the eleventh and 
some to the twelfth grades, was granted by the appellee 
Board of Education for the 1963-64 school year which com­
menced on August 28, 1963. On August 27, 1963, the appel­
lee-plaintiffs secured from the United States District Court 
for the Southern District of Georgia a temporary restrain­
ing order, without notice, enjoining the appellee Board of



80a

Education from permitting the transfers. On September 6, 
1963 that court entered an order styled a “pretrial order”, 
the effect of which was to continue the temporary restrain­
ing order in force to the end of preventing the transfers. 
Because of this action of the District Court the Board of 
Education has been prevented from going forward with its 
voluntary plan of desegregation.

The “pre-trial” order of September 6, 1963, was, in effect 
the granting of a preliminary injunction. Our jurisdiction 
in this regard is based on 28 U.S.C.A. § 1292, Sims v. 
Greene, 3 Cir., 1947, 160 F.2d 512. See also Missouri- 
Kansas-T exas R. Co. v. Randolph, 8 Cir., 1950, 182 F.2d 996. 
We have the power to grant any necessary relief to prevent 
irreparable damage to the minor appellants, Title 28 U.S.­
C.A. § 1651. The “pre-trial” order is also a final order 
within the meaning of 28 U.S.C.A. § 1291 in that it deter­
mines substantial rights of the six minor Negro children, 
and these rights will be irreparably lost if relief is delayed 
pending final judgment. See United States v. Wood, 5 Cir.,
1961, 295 F.2d 771, 778; cert, den., 369 U.S. 850, 82 S.Ct. 933, 
8 L.Ed.2d 9; Kennedy v. Lynd, 5 Cir., 1962, 306 F.2d 222, 
228; Hodges v. Atlantic Coast Line Railroad Co., 5 Cir.,
1962, 310 F.2d 438, 443.

Under the school segregation cases, Rrown v. Board of 
Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 ; 
349 U.S. 294, 75 S.Ct, 753, 99 L.Ed. 1083; Cooper v. Aaron, 
1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, the irreparable 
damage being sustained by appellants consists of being 
forced to attend a racially segregated school. No com­
parable injury will be suffered by the appellee-plaintiffs if 
the motion for injunction pending appeal is granted. This 
court is of the opinion that there is a strong probability 
that the appellant-intervenors will ultimately prevail on this 
appeal on the merits although that question is not now 
decided.



81a

I t  follows from what we have said that an injunction 
pending appeal should be granted. This will also solve 
the dilemma of the School Board, caught as it is between 
its own voluntary plan and the preventative order of the 
District Court, as expressed in their request for direction. 
To the end that the handling of the matter be restored to 
local school authorities, see Calhoun v. Latimer, 321 F.2d 
302 decided by this court on June 17, 1963, the orders here­
tofore issued by the District Court as they prohibit these 
transfers are vacated, and following the procedure outlined 
in this court’s decision in Stell, et al. v. Savannah-Chatham 
County Board of Education, et al., 5 Cir., 1963, 318 F.2d 425, 
428, it is ordered that the District Court for the Southern 
District of Georgia enter the following judgment and order:

“The defendant-appellees, Glynn County Board of 
Education, a public body existing under the laws of 
Georgia; W. A. Whittle, Chairman of the Glynn Coun­
ty Board of Education, A. M. H arris, Jr., S. K. Sing- 
letery, G. M. Baumgardner, James Gilbert, Dr. H. L. 
Moore, D. 0. McCook, Jr. C. M. Ellzey, and Edward 
Drawdy, as members of the Glynn County Board of 
Education and Ralph Hood, Superintendent of Schools 
of Glynn County, their agents, servants, employees, 
successors in office and those in concert with them who 
shall receive notice of this order be, and they are here­
by restrained and enjoined from refusing to admit, 
enroll or educate the said six minor appellants in the 
Glynn Academy in the school year 1963-1964 from and 
after the opening of school on Monday, September 16,
1963.”

This order shall remain in effect until the final deter­
mination of the appeal of the within case in the Court of 
Appeals for the Fifth Circuit on the merits, and until fur­
ther order of this court.

The Clerk is directed to issue the mandate forthwith.



82a

Filed May 13, 1963.
I N  T H E  U N IT E D  STA TES D IST R IC T  CO U RT FO R T H E  S O U T H E R N  

D IST R IC T  OF GEORGIA, SA V A N N A H  D IV ISIO N .

Civ il  A ctio n  N o. 1316
R a l p h  S t e l l , a  m in o r  b y  L. S. S te l l , J r ., h is  f a th e r  a n d  

n e x t  f r ie n d ,  e t  a l., Plaintiffs,

v.
S a v a n n a h -C h a t h a m  C o u n ty  B oard of E d ucation , 

e t  al., Defendants,
and

L a w ren ce  M. R oberts and D a n ie l  R oberts, Minors, b y  
A d r ie n n e  M. R oberts, their mother and next friend, et al.,

Interveners.

PRELIMINARY FINDINGS AND CONCLUSIONS
This is a school desegregation case in which plaintiffs 

ask a mandatory injunction requiring total integration of 
the schools administered by the defendants. Interveners 
were made parties by the Court to be heard on the predicted 
injuries to white and negro pupils if the relief demanded 
in the complaint were to be granted.

The plaintiffs alleged injury to themselves and others of 
their class from the existing separation of white and negro 
schools in Savannah-Chatham County but did not offer 
proof in support of this allegation, contending rather that 
this Court must conclusively presume such injury as a 
m atter of law from the findings of fact made by the 
Supreme Court on the four factual situations brought 
before it in Brown v. Board of Education, 347 U. S. 483, 
74 S. Ct. 686, 98 L. Ed. 873.

Interveners denied that the existing school assignment 
system caused injury to either white or negro pupils but 
that serious injury would be suffered by students of both 
races if the relief sought by plaintiffs were to be granted. 
Interveners submitted on these points the expert testimony



83a

of sociologists, psychologists, educators and anatomists, 
each of whom was conceded by plaintiffs to be an authority 
in his field. The opinions expressed by these witnesses were 
further supported in the record by publications and studies 
either marked in evidence or read into the record. Plain­
tiffs offered no witnesses or authorities in rebuttal, main­
taining that whether any educational or psychological in­
jury  would result to the students of either race from com­
pulsory integration was irrelevant.

The defendant School Board took no position during the 
hearing as between plaintiffs and interveners except as 
stated by its counsel in open Court on May 13th—at the 
conclusion of the case.

Plaintiffs requested early trial in order that any relief 
may be made available by the Fall school term and the 
Court accordingly specially calendared and tried the issues 
on May 9, 10 and 13th.

In  response to plaintiffs’ further request for an early 
ruling herein the following findings of fact and conclusions 
of law under Rule 52 of the Federal Rules of Civil Proce­
dure are made on a preliminary basis. The Court will issue 
its formal opinion and final findings within the next thirty 
days.

I.

F in d in g s .

The Parties.

1. The minor plaintiffs are negro students in the primary 
or secondary public schools of Savannah-Chatham County. 
The minor interveners are white students in the prim ary or 
secondary white schools of Savannah-Chatham County. 
The defendant Board of Education and the individual 
defendants are in control of and administer the primary 
and secondary public schools in Savannah-Chatham County



84a

and have the necessary authority to place in effect any 
orders of this Court with respect thereto.

The Schools.

2. The Prim ary and secondary public schools of Savan- 
nah-Chatham County are divided into schools for white 
pupils and schools for negro pupils and admission thereto 
is limited to applicants of the respective races. The evi­
dence does not show any application of any negro to schools 
operated for whites.

3. The teaching and administrative staffs of the white 
and negro schools are white and negro respectively up to 
and including the direct assistants to the Superintendent of 
Schools. Principals of both negro and white schools are 
part of the Superintendent’s staff and participate in the 
adaptation of their particular schools to pupil requirements 
and the educational effectiveness of the several part [sic] of 
the school system. The schools are equal in all respects 
except as to a slight advantage in favor of the negro teach­
ing staff in terms of graduate training and salaries. The 
same total curriculum is made available to all schools. Re­
sponsiveness to the aptitudes and needs of the pupils in 
each is secured by arranging a choice of elective subject 
[sic] to be selected by the school on the basis of student 
request and guidance counseling.

Student Test Grouping.

4. All pupils in three significant grades of the Savannah- 
Chatham County school system have been tested annually 
since 1954 for psychometric intelligence and correlative 
academic achievement through a battery of nationally ac­
cepted tests administered by local personnel, supervised 
and processed by the University of Georgia. This program 
was initiated prior to May, 1954 at the request of the Super­
intendent of Schools for Savannah-Chatham County as 
part of a comprehensive study of mental growth and school



85a

achievement for pupil placement and course selection and 
content recommendations. The result of this testing pro­
gram has been considered by the Savannah-Chatham Coun­
ty Board of Education in arranging school curricula respon­
sive to the abilities and learning characteristics of the two 
student groups.

5. The psychometric test results have conclusively dem­
onstrated that the differences between white and negro 
students in learning capabilities and school performance 
vary in increasing degree from the pre-school period 
through the completion of high school. The differences be­
tween white and negro students were consistent on all types 
of tests and increased with chronological age at a pre­
dictable and constant rate. The negro overlap of the 
median white scores dropped from approximately 15% in 
the lowest grades to 2% in the highest and indicated that 
the negro group reached an educational plateau approxi­
mately four years before the white group. When a special 
control group was selected for identity of age and intelli­
gence quotient in the lower grades, the negro students 
lagged by two to four years when the entire group reached 
the 12th grade.

6. The tests covered general intelligence, reading and 
arithmetic achievement, and mental maturity. On the last, 
the white average was 20 points above the negro average. 
The achievement tests showed major ability pattern differ­
ences. On reading comprehension and arithmetic funda­
mentals there was virtually no overlap between the two 
groups.

Basis of Test Variations.

7. These differences in test results in Savannah-Chatham 
County are not the result of the educational system or of 
the social or economic differences in status or in environ­
ment of the students. These test results agree on a point 
for point basis with, substantially identical results obtained



86a

from similar tests made in other areas of this country and 
abroad and in both segregated and integrated situations. 
Additionally, quantitative and qualitative distinctions in 
the Savannah-Chatham and other test results have shown 
the same variation in learning rates between the two ethnic 
groups even after the socio-economic factors of the test 
students had been equated.

8. All the evidence before the Court was to the effect 
that the differences in test results between the white and 
negro students is attributable in large part to hereditary 
factors, predictably resulting from a difference in the 
physiological and psychological characteristics of the two 
races. The evidence establishes and the Court so finds that 
of the twenty-point difference in m aturity test results be­
tween negro and white students in Savannah-Chatham 
County a negligible portion can be attributed to environ­
mental factors. Furthermore no evidence whatsoever was 
offered to this Court to show that racial integration of the 
schools could reduce these differences. Substantially all the 
difference between these two groups of children is inherent 
in the individuals and must be dealt with by the defendants 
as an unchangeable factor in programming the schools for 
the best educational results.

Group Integration.

9. The students in Savannah-Chatham County schools 
are 60% white, 40% negro. A school class mixed on this 
basis would have a median progress rate 12 points below 
that of the former white class, and 8 points above the 
progress rate of the comparable former negro class. Two 
thirds of the negro students would fail in this situation, 
particularly in the upper grades. This would place in the 
same schoolroom negro students two to four years older in 
chronological age than the white students. White students 
in such a class lose any challenge to further academic ac­
complishment.



87a

10. Failure to attain  the existing white standards would 
create serious psychological problems of frustration on the 
part of the negro child, which would require compensation 
by attention-creating antisocial behavior. In other cities 
this effect has created serious discipline problems for the 
teachers and school administrators with consequent loss of 
schooltime. In New York 37% of negro truants questioned 
in a study stated that they had run away from home because 
of failure to keep up in school.

11. The congregation of two substantial and identifiable 
student groups in a single classroom, under circumstances 
of distinct group identification and varying abilities would 
lead to conflict impairing the educational process. I t  is 
essential for an individual to identify himself with a refer­
ence group for healthy personality development. Physical 
and psychological differences are the common basis of 
group identification, indeed they compel such self-identifica­
tion. To increase this divisive tendency, it has been estab­
lished without contradiction, that selective association is a 
universal human t r a i t ; that physically observable racial dif­
ferences form the basis for preferential association and 
that patterns of racial preference are formed and firmly 
established at a pre-school age.

12. The effects of intergroup association are reasonably 
predictable on the basis of that branch of psychology known 
as social dynamics. In the case of two identifiable groups 
in the same classroom, intergroup tensions and conflicts 
result. These become substantial when the groups have a 
high identification index in a situation where the difference 
between them is as great as that existing between white 
and negro children in the Savannah-Chatham County 
schools.

13. In  each city referred to in the evidence where large 
scale integration had taken place or had existed continuous­
ly, the predicted level or even a greater degree of conflict



88a

existed and substantially impaired the efficacy of the entire 
educational system.

14. Total group integration as requested by plaintiffs 
would seriously injure both white and negro students in 
the Savannah-Chatham County schools and adversely affect 
the educational standards and accomplishments of the pub­
lic school system.

Selective Integration.

15. Throughout the trial, counsel for plaintiffs empha­
sized the conceded ability of certain superior negro children 
to meet the progress norms of the white classes and implied 
that at least selective transfers of such students to white 
schools would not cause injury similar to the effects of 
group integration. The Court finds that such selective inte­
gration would cause even greater psychological harm to the 
individual negro children involved and to the balance of 
their group.

16. Negro children so transferred would not only lose 
their right of achievement in their own group but would 
move to a class where they would be inescapably conscious 
of social rejection by the dominant group. Such children 
must try  to identify themselves with the white children 
while unable to free themselves from continuing identifica­
tion with other negro children. Additionally, the children 
involved, while able to maintain the rate of the white class 
at first, would, according to all of the test results, there­
after tend to fall further back in each succeeding term.

17. The effects on the remaining negro children would 
be even more injurious. The loss of the better group mem­
bers would greatly increase any existing sense of inferi­
ority. The competitive drive to educational accomplish­
ment for those not transferred would be taken away. The 
Court finds that selective integration would cause substan­
tial and irremovable psychological injury both to the in­
dividual transferee and to other negro children.



89a

Segregation Injury.

18. Plaintiffs assumption of injury to negro students 
by the continuance of segregated schools is not supported 
by any evidence in this case. Whatever psychological in­
jury  may be sustained by a negro child out of his sense of 
rejection by white children is increased rather than abated 
by forced intermixture, and this increase is in direct 
proportion to the number and extent of his contacts with 
white children.

19. Each study presented to the Court, confirmed by the 
opinions of the witnesses showed that the damaging as­
sumptions of inferiority increase whenever the child is 
brought into forced association with white children. The 
principal author of the studies relied on by the Supreme 
Court in the Brown case, used students from integrated 
schools in Northern states in getting the race rejection 
results which were then cited as showing such effects occur­
ring from segregation. Moreover, the same author in an 
earlier study came to the conclusion that compulsory inter­
mixture rather than racial separation in school was the 
principal source of the damaging loss of race identification.

20. The adverse effects of compulsory congregation are 
particularly harmful in the early formative school years. 
Interveners’ witnesses noted that integration at the collegi­
ate level is not only possible but on a voluntary basis might 
be of advantage to both white and negro students. The find­
ings herein are accordingly limited to children of prim ary 
and secondary school ages.

II.

C o n c lu sio n s .

1. The white and negro school children have equivalent 
rights before this Court, and are equally entitled to be con­
sidered in determining the scope and content of constitu­
tional rights.



90a

2. A reasonable classification within the meaning of the 
equal protection clause of the Constitution would be one 
which secures the maximum result in the educational proc­
ess for all students and the minimum injury to any.

3. The classification of children in the Savannah- 
Chatham County schools by division on the basis of co­
herent groups having distinguishable educability capabili­
ties is such a reasonable classification.

This 13th day of May, 1963.
F. M. S carlett ,

United States District Judge.

ORDER AND DECREE.

Filed May 13, 1963.

(Title Omitted.)

1. The injunction prayed for by the plaintiffs in this case 
is denied.

2. Upon good cause shown by plaintiffs or interveners, 
the Court will further direct herein that defendants shall 
conduct the next annual test of children in the Savannah- 
Chatham County schools under such conditions as plaintiffs 
or interveners may reasonably request in order to insure 
complete impartiality of result.

3. No costs are awarded to any party  as against the 
other.

This 13th day of May, 1963.
F. M. S carlett ,

Judge, U. S. District Court, 
Southern District of Georgia.



91a

U N IT E D  STA TES D IST R IC T  COU RT 

S O U T H E R N  D IST R IC T  ALABAM A, S . D.

B irdie  M ae D avis et al., Plaintiffs,

v.

B oard of S chool C o m m issio n ers  
of M obile  C o u n ty , A labama, 

et al., Defendants.

Civ. A. No. 3003-63

June 24, 1963.

Jack Greenberg, Constance Baker Motley, Derrick A. 
Bell, Jr., New York City, Yernon Z, Crawford, Clarence E. 
Moses, Mobile, Ala., for plaintiffs.

Pillans, Reams, Tappan, Wood & Roberts, Mobile, Ala., 
Joseph F. Johnston, Birmingham, Ala., for defendants.

Daniel Holcombe Thomas, District Judge.

This cause was submitted on plaintiffs ’ motion for a pre­
liminary injunction, directing defendants to present for 
approval of the court, within a period to be determined by 
the court, a plan for the reorganization of the entire school 
system of Mobile County, Alabama, into a unitary non-racial 
system.

The motion purportedly sought relief in the alternative, 
but the first alternative prayed permanent relief “ upon the 
conclusion of the tr ia l” and hence did not seek interlocutory 
relief.

The complaint and motion in this case were filed on 
March 27, 1963. On April 25, plaintiffs urged the granting 
of the motion and suggested, in open court, without previous 
notice, thirty  days as the period of time to be determined 
by the court in which defendants should be ordered to sub­
mit a plan for the reorganization of the Mobile County 
School system. The court took the motion under submission 
on that date, and directed the parties to file briefs within



92a

designated times. The court’s action in this m atter was 
appealed by plaintiffs, and the appeal was dismissed by 
the Court of Appeals by order dated May 24,1963.

For the reasons stated below, the motion is denied as to 
the specific relief requested, requiring the presentation of 
a plan within thirty days. However, an interlocutory order 
will be entered which will assure the protection of the rights 
of the plaintiffs.

Based upon the affidavits filed by plaintiffs and respond­
ents and on facts of which the court takes judicial notice, 
the court makes the following findings of fact.

F in d in g s  of F act

1. The Mobile County School System is administered by 
the Board of School Commissioners of Mobile County, a 
five-man Board. The professional staff is under the direc­
tion of a County Superintendent of Education and his sev­
eral Assistant Superintendents, each being in charge of a 
particular phase of Board activities.

2. During the school year 1962-63, there were 89 schools 
in the Mobile County School system, accommodating a 
pupil load of approximately 75,000 pupils. More than 2,370 
teachers are employed in addition to 105 non-teaching 
school principals and assistants. More than 200 jiublic 
school busses are operated by the Board in the transporta­
tion of school children in Mobile County.

3. The schools of Mobile County are, and have been since 
the end of World W ar II, seriously overcrowded. During 
this period, the pupil load has doubled. Forty-two percent 
of the increase in the number of pupils in the State of 
Alabama since 1940, has occurred in Mobile County. The 
average annual pupil increase has been 3,000.

4. As a result of the rapid growth of the school popula­
tion, a building program sufficient to house properly the 
students fell five years behind. As a consequence, it was



93a

necessary to institute half-day or “double” sessions, the 
number of pupils in double sessions amounting to as many 
as 14,000 at one time.

5. In an effort to accommodate the pupil load, the School 
Board has engaged in an accelerated building program, and 
as a result the physical facilities are gradually overtaking 
the deficit. The administrative staff of the School Board 
has employed careful planning to utilize the space avail­
able, and throughout this period has resorted to the trans­
portation of pupils from crowded schools nearer their 
homes to more distant schools where less crowded condi­
tions existed. Many wooden portable classrooms have been 
constructed and utilized at the more crowded schools. As a 
result of these efforts, the number of pupils in double ses­
sions has gradually decreased over the years.

6. Fourteen new schools, with more than three hundred 
rooms, are under construction or are about to be com­
menced, designed for occupancy in September of 1964. At 
that time, for the first time since World W ar II, it is prob­
able that no student within the system will be in double­
session classes. However, double sessions must continue 
through the school year 1963-64.

7. In normal years, in the Mobile County School System, 
the planning for a school term commences in March before 
the term beginning in September. The Board of School 
Commissioners of Mobile County followed the stated prac­
tice, and the planning for the session 1963-64 began in 
March of 1963.

8. Planning by the School Board staff consists of an 
ascertainment of pupil load based upon careful estimates 
and formulae derived from the experience of past years. 
The gross pupil load for each school is then broken down 
into class-by-class figures which are furnished to the Assist­
ant Superintendents. Based upon these figures, classes are 
organized and pupils assigned thereto; the curriculum is



94a

established for each school; necessary supplies are deter­
mined and ordered; class-room teachers are assigned, in­
volving in many cases individual transfers; and school 
busses are allocated and routed.

9. The registration of the first-grade pupils for the term 
1963-64 was accomplished before the end of the last preced­
ing school term. Each registrant was placed in a class, and 
teacher assignments made.

10. Substantially all of the planning for the 1963-64 
school session has already taken place, and most of the 
necessary administrative details have been accomplished. 
Teachers and the administrative personnel of the various 
schools have largely departed the area for additional pro­
fessional schooling, or are on vacation, or in other summer 
employment.

11. Any major re-allocation of pupils, as would be re­
quired in a general desegregation process, would require 
the abandonment of planning already accomplished and the 
evolving of new plans. Such planning would be more diffi­
cult of accomplishment than a normal plan in that the 
administrative personnel would be without knowledge of 
pupil distribution, and the formulae evolved in normal 
years would be inappropriate. Many administrative details 
already accomplished would require cancellation. I t would 
be necessary that administrative and teaching personnel 
be available for consultation and study of the problems 
peculiar to each of the schools involved. Many of these 
personnel are unavailable.

12. Teaching personnel would have to be re-assigned in 
many instances. In the realm of teacher assignment and 
transfer, many human difficulties exist. Consideration of 
community needs must be co-ordinated with consideration of 
individual teacher qualifications and personality. I t  would 
be necessary to ascertain the qualifications of each teacher 
to be assigned to desegregated schools.



95a

13. By reason of limited physical facilities, personnel 
problems, and administrative commitments, it is not now 
nor has it been since the hearing of the motion, reason­
ably possible to reorganize the school system of Mobile 
County within such time as to affect the school year 
1963-64.

14. The applications by the individual student plaintiffs 
for transfer to Baker High School during January  1963, 
were denied for valid administrative reasons.

Opinion.

Under the circumstances disclosed by the findings of 
fact, it is clear that the motion for interlocutory relief 
cannot be granted as a practical matter, independent of 
other considerations. The radical revision of school at­
tendance areas and other far-reaching administrative 
changes in the city-county school system contemplated 
by the motion, simply cannot be managed within the 
time available. I t  is very doubtful that it could have 
been managed within a period of four to six months, 
even if all teachers and other administrative personnel 
were available for the entire time, which they are not. I t is 
certain that no such order could now be made effective in 
the absence of every element which would be essential to 
its success—time, people, and, in all probability, money.

No plan or basis for general rearrangement of an entire 
local school system should be required by this or any court 
without affording to both the school authorities and the 
public ample time for consideration and discussion of alter­
natives. The arbitrary, hasty, and premature imposition 
of a plan would defeat the intended purpose and would 
create confusion, and impair the educational process for 
all pupils.

That it is impossible to predict what specific plan would 
be required upon the final outcome of this case, is made



96a

plain by the decision of Judge Lynne for the Northern Dis­
trict of Alabama in Armstrong v. Birmingham Board of 
Education, 218 F.Supp. 860. That decision was filed on 
May 28, 1963, after the submission of this motion. I t holds, 
following the decision upholding the validity of the Alabama 
school placement and related laws by the Supreme Court of 
the United States in Shuttlesworth v. Birmingham Board 
of Education, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145 
(1958), that the principle of the Brown case can be fairly 
and adequately applied by the school authorities through 
the processing of applications pursuant to the State laws, 
and that any denial of constitutional rights in the handling 
of such applications can be corrected by the District Court 
on motion or by other proper proceeding.

Although the Armstrong decision would not necessarily 
be controlling here after final hearing, it does furnish a 
sound and appropriate basis for rejecting the notion that 
the sweeping reorganization proposed by the motion is now 
necessary for plaintiffs’ protection.

The F ifth  Circuit Court of Appeals, 318 F.2d 63, in its 
per curiam opinion in this case, handed down on May 24, 
1963, had this to say: “The Supreme Court in the second 
Brown case [Brown v. Board of Education of Topeka], 
1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and in 
Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 
wisely left an area of discretion in the desegregation proc­
ess in the District Courts, feeling that they were close to 
the local problems, and to school officials, and the children 
involved.”

In line with this, I feel compelled to state here that this 
court ordered the desegregation of the municipal golf 
course in Mobile on the 13th of March 1961. That case had 
been held under advisement for fourteen months. The opin­
ion was written long prior to its release. The time of 
release was chosen by the court as being opportune, and



97a

evidently it was. There has been no incident on the golf 
course since its integration.

This court took under submission on July 25, 1961, mo­
tions to dismiss in the desegregation case involving the 
facilities of the Mobile Municipal Airport. On October 3, 
1961, the motions were denied. The case is still pending, but 
will be dismissed as moot. The A irport facilities have long 
since been integrated. The court, close to the community and 
its problems, believed that this would come about volun­
tarily and without the necessity of judicial enforcement. 
Relying upon this belief proved providential. There has 
not been the first incident.

There is now pending in this court a case for the desegre­
gation of the City Bus Lines for the City of Mobile. The 
City Bus Lines have long since been integrated. There have 
been no incidents, though the court has never ruled on this 
case. This case, at the appropriate time, will also very 
likely be dismissed as moot, though there is one city 
ordinance which must either be repealed or be stricken 
down by the court.

The libraries in the City of Mobile have long since been 
integrated, though no case was ever filed for their integra­
tion. Many drugstore lunch counters in Mobile are inte­
grated, and many chainstore lunch counters have been inte­
grated, though no suits have been filed.

Mobile is perhaps the most desegregated city in the 
South, with no unfortunate incidents. If and when the 
appellate courts are called upon to pass on the procedure 
which the District Court here outlines, is it too much to 
ask that they be mindful of that “area of discretion in the 
desegregation process to the District Courts,” left by the 
Supreme Court in the second Brown case, and approved 
as wise by the Court of Appeals for this Circuit in the 
instant case! I f  so, this court has every reason to believe 
that the mandate of the court will be honestly, conscien-



98a

tiously, and fairly carried out with the least possible, if not 
complete absence of, unfortunate incidents.

The specific relief prayed for in the motion will he 
denied. The case will be set for trial on the 14th day of 
November 1963. Consideration of the motion to dismiss, 
filed by the defendants, will be reserved until the trial of 
the cause. Defendants will be granted twenty days from the 
date of this order to file an answer.

In addition to any other relevant evidence which de­
fendants may choose to offer, they will be directed to 
prepare and present at the trial a specific plan for the 
operation of the schools of Mobile County on a racially non- 
discriminatory basis, consistent with the principles estab­
lished by the Supreme Court, to commence at the begin­
ning of the 1964-65 school year.

Entered this the 24th day of June 1963.



99a

U N IT E D  STA TES D IS T R IC T  COU RT 

N O R T H E R N  D IST R IC T  ALABAM A, S . D.

D w ig h t  A rm strong  e t  al., Plaintiffs, 

v.

T h e  B oard oe E ducation  of t h e  C ity  of B ir m in g h a m , 
J e ffe r so n  C o u n ty , A labama , e t  al., Defendants.

A gnes  N elso n  a n d  Oswald N elso n , Minors, e tc ., Plaintiffs.

v.

T h e  B oard of E ducation  of t h e  C it y  of B ir m in g h a m , 
J e ffe r so n  C o u n ty , A labama, et al., Defendants.

Civ. A. Nos. 9678,10188.
May 28, 1963.

W. L. Williams, Jr., Birmingham, Ala., and Ernest D. 
Jackson, Sr., Jacksonville, Fla. for plaintiffs.

J . M. Breckenridge City A tty., Cabaniss & Johnston, Jo ­
seph F. Johnston, Lange, Simpson, Robinson & Somerville, 
Reid B. Barnes and Ormond Somerville, Birmingham, Ala,, 
for defendants.

L y n n e , District Judge.
When the Armstrong case (C.A. 9678) was called for trial 

on October 3, 1962, plaintiffs in the Nelson case (C.A. 
10,188) moved for an order of consolidation or joint trial. 
Since it appeared that these actions involved common ques­
tions of law and fact the court entered an oral order con­
solidating them for purpose of trial only and expressly 
provided therein that all evidence offered and all objections 
thereto on any grounds made by any party  would be deemed 
to have been offered and made in each case separately.

Resting jurisdiction upon 28 TLS.C.A. § 1343(3) and pro­
ceeding under 42 U.S.C.A. § 1983, plaintiffs in each case 
brought a class action against defendants essentially to



100a

enjoin them from continuing their policy, practice, custom 
and usage of operating a compulsory biraeial school system 
in the City of Birmingham.

By stipulation of all counsel of record each ease was sub­
mitted for the judgment of the court upon the prayer for 
final injunctive relief upon the pleadings and the proof. 
While written answers in behalf of defendants had not been 
filed in the Nelson case it was orally stated that their an­
swers in the Armstrong ease tendered all relevant issues 
except for the insistence that plaintiffs in the Nelson case 
had no standing to maintain their action for vindication of 
their individual rights or to represent a class.

Faced with this threshold question, the court directed 
that evidence first be offered relating to the status of the 
Nelson children, Agnes and Oswald, of the ages of sixteen 
and twelve, respectively. Consisting entirely of the testi­
mony of their father, Reverend T. N. Nelson, careful con­
sideration thereof results in the finding of the court that 
each of such children had departed Birmingham for De­
troit several weeks before the filing of the complaint in 
their behalf; that throughout the trial they were living 
there with their sister and attending the public schools of 
Wayne County, Michigan, and that there is no reasonable 
probability of their return to Birmingham.

Since the father has no standing to sue for the depriva­
tion of the civil rights of his children, Brown v. Board of 
Trustees of LaGrange Ind. Sch. Dist., 187 F.2d 20 (5th Cir. 
1951) and the children, recognized as the real parties plain­
tiff, were not at the time of the filing of the complaint and 
are not now pupils in or affected by the public school system 
of Birmingham, it follows that neither has shown an injury 
to himself and that neither has standing to represent the 
class. McCabe v. Atchison, T. & S. F. By. Co., 235 U.S. 151, 
35 S.Ct. 69, 59 L.Ed. 169 (1914); Doremus v. Board of Edu­
cation, 342 U.S. 429, 432, 72 S.Ct. 394, 96 L.Ed. 475 (1952);



101a

Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed. 2d 512 
(1962); Conley v. Gibson, 29 F.R.D. 519 (S.D. Texas, 1961).

Therefore, a separate order will be entered in the Nelson 
case vacating the consolidation and dismissing the action 
for plaintiffs’ lack of standing to sue without prejudice, 
however, to their right to intervene or file a supplemental 
complaint in the Armstrong case in the event of the return 
of either to Birmingham, as will hereinafter more fully 
appear.

With respect to standing to complain, m atters stand dif­
ferently in the Armstrong case. Although it was stipulated 
at the trial that the Shuttlesworth children, Ruby Fred- 
ericka and Fred L. Jr., and Carolyn Nash are no longer in 
the Birmingham public school system and do not intend to 
return thereto, it is undisputed that the Armstrong chil­
dren, Dwight, Denise, James, J r. and Floyd, have con­
tinuously been and are presently enrolled in such system. 
They have an equitable right to maintain this suit as a 
class action.

Plaintiffs rely upon undisputed facts in the record which 
are reproduced in capsulated form. The white population 
of Birmingham is 205,620; the Negro, 135,627. There are 
8 high schools designated “W hite” with 409 teachers and 
10,081 pupils; 5 high schools designated “Negro” with 278 
teachers and 6,748 pupils; 50 elementary schools designated 
“ W hite” with 781 teachers and 29,578 pupils; 42 elementary 
schools designated “Negro” with 697 teachers and 26,967 
pupils. Never at any time has a Negro pupil been assigned 
or transferred to a school designated “White” or a white 
pupil to a school designated “Negro”. Without exception 
white instructional personnel have been assigned only to 
schools designated “White” and Negro instructional per­
sonnel only to schools designated “Negro”. White schools 
are located with reference to the concentration of white 
population and Negro schools with reference to the concen­
tration of Negro population. There are overlappings in



102a

the geographical areas involved wherein there are white 
schools in closer proximity to the residences of Negro 
pupils than Negro schools. The reverse situation obtains 
with respect to white pupils. Notwithstanding, the custom, 
usage and practice historically followed, sanctioned and ex­
pected by Superintendent and Board to be followed present­
ly, result in white pupils attending white schools and Negro 
pupils Negro schools.

To summarize, it graphically appears from the testimony 
of Dr. Theo R. W right, Superintendent of Birmingham 
Public Schools, that he and the Birmingham Board of 
Education have operated a segregated school system based 
upon race in the past, are doing so now, and have formu­
lated no plans to discontinue such an operation.

For their part, the real defendants, Superintendent and 
Board, advert to the allegation of the complaint that “the 
plaintiffs herein have not exhausted the administrative 
remedy [sic] provided by the Alabama School Placement 
Law” 1 and point to the uncontroverted evidence in this 
record that at no time has any Negro child, or anyone 
authorized to act in his behalf, applied for enrollment in 
or transfer to any school designated “W hite” and pursued 
the remedies afforded by such statute. Their reluctance to 
take the initiative in bringing about the integration of the 
public schools stems from something more than blind 
adherence to tradition. There is undisputed evidence in this 
record that there is a “very strong opposition” on the part 
of “citizens of all races” to the mixing of the different races 
in the schools. In addition, all witnesses who have been 
intimately associated with the operation of the local system 
over the period of many years expressed the opinion that 
indiscriminate mixing of the races would create many prob­
lems that would be detrimental to the interests of both

1 Code of Ala., tit. 52, § 61(1) et seq.



103a

groups, predicting the results of such a procedure by the 
use of adjectives ranging from “chaotic” to “catastrophic”.

Charts, representing the results of Kuhlmann-Anderson 
Tests administered to pupils upon entering the first grade, 
California Mental M aturity Tests, Stanford Achievement 
Tests, and California Achievement Tests, all administered 
without reference to pending litigation, comparing the per­
formances of white and Negro pupils in the same grade 
groups, were received in evidence as relevant to the con­
tention of defendants that there are distinct differences in 
the average or mean mental abilities of the two groups 
which they are obliged to take into account in maintaining 
a sound educational program.

Of course the starting point in any school segregation 
case must be Brown v. Board of Education, 347 U.S. 483, 74 
S.Ct. 686, 98 L.Ed. 873 (1954), the implementing decree of 
the court, Brown v. Board of Education, 349 U.S. 294, 75 
S.Ct. 753, 99 L.Ed. 1083 (1955), and its reinterpretive opin­
ion in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed. 2d 
5, 19 (1958). The basic premise of the court was expressed 
in simple, uncomplicated language: “Separate educational 
facilities are inherently unequal.” From it there flowed 
freely and naturally the enunciation of the constitutional 
principle: “Therefore, we hold that the plaintiffs and others 
similarly situated for whom the actions have been brought 
are, by reason of the segregation complained of, deprived 
of the equal protection of the laws guaranteed by the Four­
teenth Amendment.” 347 U.S. at page 495, 74 S.Ct. at 
page 692.

Insofar as the opinions of experts in the fields of psy­
chology and anthropology, in deposition, book and pamphlet 
form, may constitute an attack upon the major premise of 
the court, they are rejected out of hand. I t would be super­
erogation to labor the obvious, that this court is bound by 
the opinions and judgments of the Supreme Court.



104a

But the problem does not end there, for district courts 
have been invested with and are expected honestly and fair­
ly to exercise discretion in the enormous task of desegregat­
ing public schools. The course which the court should fol­
low was staked out in its opinion in Shuttlesworth v. Bir­
mingham, Board of Education, 162 F.Supp. 372, 384 (X.i). 
Ala.1958) wherein Judge Rives, as its organ, concluded with 
the pithy statement:

“All that has been said in this present opinion must 
be limited to the constitutionality of the law upon its 
face. The School Placement Law furnishes the legal 
machinery for an orderly administration of the public 
schools in a constitutional manner by the admission of 
qualified pupils upon a basis of individual merit with­
out regard to their race or color. "We must presume 
that it will be so administered. If not, in some future 
proceeding it is possible that it may be declared 
unconstitutional in its application. The responsibility 
rests primarily upon the local school boards, but ulti­
mately upon all of the people of the State.”

The Supreme Court, on direct appeal, granted the motion 
to affirm and affirmed the judgment upon the limited 
grounds, quoted directly above, on which this court rested 
its decision. Shuttlesworth v. Birmingham Bd. of Educa­
tion, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed2d 145 (1958).

As this court sees it, the law of this ease is that the Ala­
bama School Placement Law “furnishes the legal machinery 
for an orderly administration of the public schools in a con­
stitutional manner by the admission of qualified pupils 
upon a basis of individual merit without regard to their 
race or color”. Under that law the initiative is with the 
individual pupil, or those authorized to act in his behalf, to 
apply for assignment or transfer. Before this court may



105a

grant injunctive relief, the administrative remedies pro­
vided therein must first have been exhausted.2

Although the Court of Appeals for the Fifth  Circuit has 
on frequent occasions come to grips with school segrega­
tion problems and has been especially alert to strike down 
deviations by district courts from the constitutional norm 
of Brown in sometimes trenchant opinions delivered by able 
judges,3 all of which have been carefully read and con­
sidered by this court, it has heretofore had no cause to 
consider whether the Alabama Law has a permissible scope 
of operation in the desegregation of public schools.

On the other hand, the Court of Appeals for the Fourth 
Circuit has dealt frequently with the North Carolina Pupil 
Enrollment Act, strikingly parallel to the Alabama Law. 
In Carson v. Warlick, 238 F.2d 724 (4th Cir. 1956), cited 
with approval by this court in Shuttlesworth, the late, great 
Judge Parker, writing for the court, after holding that the 
North Carolina Act contained adequate standards, 
observed:

2 The appeals to the courts provided by Section 9 of the Alabama 
School Placement Law are judicial, not administrative remedies. 
After administrative remedies before the school board have been 
exhausted, judicial remedies for denial of constitutional rights may 
be pursued at once in this court without pursuing state court reme­
dies. Lane v. Wilson, 307 U. S. 268, 274, 59 S.Ct. 872, 83 L.Ed. 
1281 (1939); Carson v. Warlick, 238 F.2d 724, 729 (4th Cir. 1956),

8 Brown v. Rippy, 233 F.2d 796 (5th Cir. 1956); Avery v. Wickita 
Falls Independent School Dist., 241 F.2d 230 (5th Cir. 1957); 
Orleans Parish School Board v. Bush, 242 F.2d 156 (5th Cir. 1957) • 
Gibson v. Board of Public Instruction of Dade County, 246 F.2d 
913 (5th Cir. 1957); Rippy v. Borders, 250 F.2d 690 (5th Cir. 
1957); Gibson v. Board of Public Instruction of Dade County, Fla., 
272 F.2d 763 (5th Cir. 1959); Boson v. Rippy, 275 F.2d 850 (5th 
Cir. 1960); Mannings v. Board of Public Instruction, ‘111 F.2d 370 
(5th Cir. 1960); Boson v. Rippy, 285 F.2d 43 (5th Cir. I960); 
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).



106a

“Somebody must enroll the pupils in the schools. 
They cannot enroll themselves; and we can think of no 
one better qualified to undertake the task than the 
officials of the schools and the school boards having the 
schools in charge. I t  is to be presumed that these will 
obey the law, observe the standards prescribed by the 
legislature, and avoid the discrimination on account 
of race which the Constitution forbids. Not until they 
have been applied to and have failed to give relief 
should the courts be asked to interfere in school admin­
istration.”

In an unbroken line of decisions 4 that court has continued 
to apply the doctrine of exhaustion of administrative reme­
dies fairly and lawfully conducted. That is not to say that 
that court would tolerate a discriminatory application of 
the Act by refusing assignment or transfer to any school 
of any pupil because of his race or by requiring the appli­
cant to submit to futile, burdensome or discriminatory 
administrative procedures.

Superintendent and Board have assured this court that 
discrete desegregation would be much less disruptive than 
massive integration. They insist that in implementation of 
the Alabama Law regulations5 governing assignment and

4 Covington v. Edwards, 264 F.2d 780 (4th Cir. 1959); Holt v. 
Raleigh City Board of Education, 265 F.2d 95 (4th Cir. 1959); 
McCoy v. Greensboro City Board of Education, 283 F.2d 667 (4th 
Cir. 1960); Jeffers v. Whitley, 309 F.2d 621 (4th Cir. 1962); 
Wheeler v. Durham City Board of Education, 309 F.2d 630 (4th 
Cir. 1962).

51. Except as otherwise expressly provided by law and these 
regulations, and subject to supervision and review by the board, 
the City Superintendent of Schools shall exercise the authority and 
responsibility of the Board of Education of the City of Birmingham 
with respect to the assignment (including original and all other 
admissions to the school system), transfer and continuance of pupils 
among and within all public schools operated under the jurisdiction 
of the board.

2. The Superintendent shall have continuing authority to de­
termine the particular public school to be attended by each child



107a

transfer of pupils in the City’s public schools have been in 
effect since June, 1958, and that they stand ready to comply 
with the law when any individual sets the administrative 
machinery in motion. This court will not sanction discrimi-

applying for assignment or transfer to the public schools. No child 
shall be entitled to be enrolled or entered in a public school until 
he has been assigned thereto by the superintendent or his duly 
authorized representative. All school assignments shall continue 
without change until or unless transfers are directed or approved 
by the superintendent or his duly authorized representative.

3. Applications for the assignment or transfer of pupils to par­
ticular schools shall be directed to the superintendent and shall be 
delivered to the school principal unless otherwise directed by the 
superintendent, on forms provided by the superintendent, who will 
keep supplies of such forms available at the offices of the board.

4. A separate application must be filed for each pupil desiring 
assignment or transfer to a particular school. Joint applications 
will not be received or considered.

5. Applications for assignment or transfer of pupils must be 
filled in completely and legibly in ink or typewriter and must be 
signed by both parents, if living, or the legal guardian of each child 
for whom application is made. In case of denial of an application 
notice thereof will be mailed to the parents or guardian at the 
address shown on the application, which shall be deemed the final 
action of the board unless a hearing before the board is requested in 
writing within fifteen days from the date of mailing of such state­
ment.

6. The superintendent may in his discretion require interviews 
with the child, the parents or guardian, or other persons and may 
conduct or cause to be conducted such examinations, tests and other 
investigations as he deems appropriate. In the absence of excuse 
satisfactory to the superintendent or the board, failure to appear 
for any requested examination, test or interview by the child or the 
parents or guardian will be deemed a withdrawal of the application.

7. The delivery of such forms shall not constitute a request for 
hearing by the board. If a hearing by the board is requested with 
respect to the superintendent’s conclusion on an application, the 
parents or guardian will be given at least five days’ written notice 
of the time and place of the hearing. The hearing will be begun 
within thirty days from the receipt by the board of the request, but 
the board may in its discretion postpone the hearing upon request.



108a

nation by them in the name of the placement law but it is 
unwilling to grant injunctive relief until their good faith 
has been tested. If  it should be demonstrated that it has 
been unconstitutionally applied, under the settled authori­
ties the court would be compelled to order the submission 
of a desegregation plan for its approval.

Adequate time remains before the opening of the Septem­
ber, 1963, school term for the processing of applications for 
assignments or transfers in behalf of interested individuals. 
Jurisdiction of this action will be retained for the purpose 
of permitting the filing of such supplemental complaint, if 
any, as might be entitled to be presented, in case of any 
unconstitutional application of the Alabama School Place­
ment Law against the plaintiffs, or others similarly situ­
ated, or of any other unconstitutional action on the part 
of defendants against them. The issues tendered by any 
supplemental complaint will be given a preferred setting 
on the docket of this court and will be heard on five days 
notice to defendants.

Failure of the parents or guardian to appear at the hearing will be 
deemed a withdrawal of the application.

8. Hearings may be conducted before the board, or before a 
committee of not less than three members thereof, or a member 
thereof, or such person as the board may designate as a hearing 
examiner as provided by law. Hearings will be held at such times 
and places as the board or its committee or hearing examiner may 
lawfully determine and may be adjourned from time to time for the 
convenience of parties, witnesses, or the board or hearing examiner; 
provided however that nothing herein shall preclude any applicant 
from filing a request for hearing in accordance with Section 7 of the 
Placement Act and the right to have such hearing held beginning 
with the time prescribed therein.

9. Unless postponement is requested by the parents or guardian, 
the board will notify them of its decision within twenty days after 
the conclusion of the hearing. Exceptions to the decision of the 
board may be filed, as allowed by law, within five days of notice of 
the board’s decision, and the board shall meet within fifteen days of 
the receipt of the exceptions to consider the same.



109a

I S  T H E  U N IT E D  STA TES D IS T R IC T  COU RT FO R T H E  SO U T H E R N  

D IS T R IC T  OF GEORGIA, B R U N S W IC K  D IV ISIO N

L inda  S u e  G ib so n , by next friend, et al., Plaintiffs,

v.
Gl y n n  Co u n ty  B oard of E d u cation , e t  a l., Defendants.

U.S. District Court, Brunswick Division
Filed In Office

September 6, 1963

/ s /  Mary R. Cross 
Deputy Clerk.

PRE-TRIAL ORDER

UPON the pleadings, the motion for intervention and 
papers submitted in support thereof, upon the arguments 
and admissions of counsel for the parties and intervenors 
made at a pre-trial hearing held this 6th day of September, 
1963, pursuant to Rule 16 of the Federal Rules of Civil 
Procedure, it i s :

O rdered,

1. The motion for intervention is granted, and the 
objections of defendants thereto are overruled. The 
Interveners shall serve copies of their pleadings upon 
the other parties to the action and shall designate H. T. 
Ward, 859y2 Hunter Street, N. W., Atlanta, Georgia for 
service of further papers in the action. The caption 
of the case shall be deemed amended accordingly.

2. Defendants shall prepare and submit to the Court 
with reasonable promptness a plan for reorganization 
of the schools subject to their jurisdiction along non- 
racial lines which shall not exclude from transfer 
between schools any applicant therefor solely on the 
grounds of color or other criterion unrelated to the



110a

educational and physical advancement and well being 
of the children concerned. Open hearings thereon 
shall be held by defendants sitting as a school court 
pursuant to Sec. 32-910 of the Georgia Code Anno, as 
amended, and both plaintiffs and intervenors shall be 
afforded full opportunity to be heard therein on the 
contentions contained in their pleadings.

3. Defendants shall report such plan to the Court for 
its approval and shall give two weeks notice of hear­
ing before this Court thereon to all other parties. De­
fendants shall further recommend to the Court at such 
time whether to approve or reject the prior transfer or­
ders as being in accord with or outside the ambit of 
the plan so recommended. Plaintiffs and intervenors 
shall serve and file exceptions to the report not less 
than two (2) days before the date noticed for hearing 
thereon.

4. The issues reserved for trial herein under the 
pleadings of plaintiffs and intervenors shall be limited 
to those contained in their exceptions and the evidence 
to be received thereon shall be limited to that contained 
in the transcript made before the Board.

5. All other questions shall be held in abeyance pend­
ing the coming in of the Board’s report and the hearing 
thereon.

/ s /  F. M. S carlett ,
United States District Judge.

September 6, 1963.
a t t e s t : a tr u e  copy

Certified to September 6, 1963 
/ s /  M ary R. Cross 

Deputy ClerJc