Petition for Writ of Certiorari

     [||a7de2723-348c-45a4-aeff-363e5d43c202||] IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL, DISTRICT, ET AL, 

Petitioners, 

VS. 

REBECCA E. HENRY, ET AL, 

Respondents. 

PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

SEMMES LUCKETT 

121 Yazoo Avenue 

Clarksdale, Mississippi 

Harpy LotT 

105 West Market Street 

Greenwood, Mississippi 

Counsel for Petitioners 

E. L. MENDENHALL, INC., 926 Cherry Street, Kansas City, Mo. 64106, HArrison 1-3030 



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Opinions Below <i... i... ec eisininnn ~ 2 

Questions Presented {or Review ............comseemsnsesensssansss 3 

Constitutional Provisions and Statutes Involved ....... 5 

Statement of the Case o.oo i ceeeriepossronsnsse 6 

Reasons for Allowance of the WIil ........cococemcopmimmmmmnssss 14 

Brown Directed, As the Means of Achieving the 
Desegregation of the Schools of a District, the 

Creation of Compact Attendance Areas or Zones .... 15 

Brown Requires the Creation of School Systems Not 

Based on Color Distinctions ......eeee.e..e...o.oooco oo... 16 

De Facto Segregation—Which Occurs Fortuitously 

Because of Housing Patterns—According to Brown 
and the Holdings of the Seventh, Tenth, Fourth 

and Sixth Circuit Courts of Appeals, Does Not 
Make an Otherwise Acceptable Desegregation 
Plan Unconstitutional ..........coci otitis sitesi 20 

The Civil Rights Act of 1964 Validates Bona Fide 

Neighborhood School Lines and Prohibits Court 
Orders Intended to Alleviate Racial Imbalance in 
NCISHhOtNODA SCNODIN .........occoeensecssnentrimntonsrsshpasensass 31 

The Constitutionality of an Attendance Area De- 

segregation Plan Is to Be Judged by the Decisions 
in Those Cases Dealing with Such Plans. It Is 
Not to Be Judged by Decisions Dealing with 

“Freedom-of-Choice” Plans, for Those Decisions 
Are Based on Considerations Foreign to Attend- 

ance Atea Plans... a 34 

OCI I OTL, oo iii... virsssistpnianspsis tadasionsEtpiominssisnsannmmssttis ions ss 40 

Ceottiicate Of SerVICE i... ... ici iesiioinsssityssisscinniron 42 

Appendix— 

Opinion, United States Court of Appeals, Fifth Cir- 
eR  Nerch 8 JOB rien areains Al 



II INDEX 

Judgment, United States Court of Appeals, Fifth 
Circuit, issued June 26,1960 ................................ A23 

Petition for Rehearing and Petition for Rehearing 
en Banc, United States Court of Appeals, Fifth 

Circuit, denied June 26, 1069 .......veeeeevreeenonen A25 

Order of the District Court Dated June 26, 1964 .... A26 

Memorandurn Opinion of District Court Dated Au- 

gust 10, 1065 ..........c..e... - ..A31 

Order of the District Court Dated August 10, 1965 A638 

Order of the District Court Amending Order of Oc- 
tober 1, 1985 .........ccocoeeiviueneeiiss tis eesssosninussrbmsntonaivantn AT74 

Memorandum Opinion of the Court Dated De- 

cemhber 13 J985 iin AT6 

Order of the District Court Dated December 13, 

(0 LR ll I A83 

TABLE OF CASES 

Bell v. School City of Gary, Ind., 324 F. 2d 209 (certio- 
rari denied 377 U.S. 924, 12 L.. Ed 2d 216) 3, 4, 22, 30, 31, 34 

Broussard v. Houston Independent School District, 

2067. Supp. 268,395 F.2d 817 .......ccon. coi 28, 30 

Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 

873; 349 U.S. 294, 99 L. Ed. 1083 ........ 3,4,7,12, 14, 15, 16, 

esukamarsvsastsristiaet sists Redan anrins 17, 20, 21, 22, 34, 35, 36, 37, 38, 41 

Brown v. Board of Education of Topeka, 139 F. Supp. 

1 os RR RE RS ie 21 

Collins v. Walker, 328 F. 2d 100 ............. a . 19 

Davis v. Board of School Commissioners of Mobile 
County, 364 F. 2d 898 ....... cece ocern eee, 34 

Deal v. Cincinnati Board of Education, 369 F. 2d 55 ....24, 26 

Downs v. Board of Education of Kansas City, 336 F. 
2d 988 (certiorari denied 380 U.S. 914, 13 L. Ed. 2d 

BO0). oi 23, 30 



INDEX III 

Goss v. Board of Education, 373 U.S. 683, 10 L. Ed. 

FA 03D ......cotmncnsninmnesieredfin BRE cous vuse ons nsiins onion ts rmsimstnsnns 17 

Goss v. Board of Education, City of Knoxville, Tenn., 
406 F 2d 1183 .... - 26, 30 

Green v. County School Board of New Kent County, 

Va..391 US. 430,201. Ed. 24d 716 ........................ 38, 39 

Griggs v. Cook, 272 F. Supp. 163 (N.D. Ga, July 21, 

1967), affirmed 384 F. 2d 705 ... nr 28, 30 

Holland v. Board of Public Institutions, 258 F. 2d 
vo EVIE SR a a ee 29 

Monroe v. Board of Commissioners of the City of 

Jackson, Tenn., 391 U.S. 450, 201. BEd. 24 733 ............ 35 

Moses v. Washington Parish School Board, 276 F. 

Supp. 334 (ED. La., Oct. 26, 1967 ............ 28, 30, 36, 37, 38 

Plessy v. Ferguson, 163 U.S. 537, 41 1. E4. 256 ....... 17, 41 

Raney v. Board of Education, 391 U.S. 443, 20 L. Ed. 

DH 027 ie rin he er 39 

Singleton v. Jackson Municipal Separate School Dis- 

trict, 300 Bo BBS ie 37 

United States v. Jefferson County Board of Education, 

3727.24 336; 380 F. 2d 355 .............. 31,32,33,34,38,39 

STATUTES AND CONSTITUTIONAL PROVISIONS 

Civil Rights ‘Aet of 1964 .... .. .... ..... 3.4,5,15,31, 33,34 

Secfion 401 (42 USC. 22900¢c) ...................... 4,5, 32,40 

Section 407 (42 U.S.C. §2000¢-6) ................ 4,5, 32, 33,40 

Section 410 (42 U.S.C. §2000c-9) ........... 4,6, 32, 33, 40 

Fourteenth Amendment, Constitution of the United 

States. 9, 6, 15, 40, 41 

280 UBC. S133 (3) centr crosses apeains 6 

42 UB.C 31003 i i ier shane rmisnitiimn osrieic bests 6 



IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL, 

Petitioners, 

VS. 

REBECCA E. HENRY, ET AL. 
Respondents. 

PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

. Petitioners, Clarksdale Municipal Separate School Dis- 

trict, a school district organized under the laws of Missis- 

sippi, Gycelle Tynes, Superintendent of the schools of the 

school district, and the members of the Board of Trustees of 

the school district, pray that a writ of certiorari issue to 

review the judgment of the United States Court of Appeals 
for the Fifth Circuit entered in the above case on March 

6, 1969. 



OPINIONS BELOW 

The opinions and orders of the District Court of the 

United States for the Northern District of Mississippi in 

the above case are not reported. Copies are included in 

the Appendix at pages A26 to A84. The opinions of 

Claude F. Clayton, District Judge, rendered August 10, 

1965, and December 10, 1965, which are included in the 

Appendix at pages A31l to A67, and pages AT76 to A82, 

and the orders of the District Court entered pursuant thereto 

on said dates, which are included in the Appendix at 

pages A68 to A75, and pages A83 to A84, are the opinions 

and orders from which respondents appealed to the United 

States Court of Appeals for the Fifth Circuit. 

The opinion of the United States Court of Appeals, 

which was rendered March 6, 1969, more than 33 months 

after the case was argued before that court on May 25, 

1966, is reported at 409 F. 2d 682. A copy is included in 

the Appendix at pages Al to A22. 

JURISDICTION 

The judgment of the United States Court of Appeals 

for the Fifth Circuit was made and entered on March 6, 

1969. A copy is included in the Appendix at pages A23 to 

A24. | 

The order of the United States Court of Appeals for 

the Fifth Circuit denying petitioners’ Petition for Rehear- 

ing in Banc was made and entered on June 26, 1969. A 

copy is included in the Appendix at page A25. 

The jurisdiction of this Court is invoked under U.S.C. 

1254 (1). 



3 

QUESTIONS PRESENTED FOR REVIEW 

In Browm I and Brown II (347 U.S. 483, 98 L. Ed. 

873; 349 U.S. 294, 99 L. Ed 1083), this Court called for 

the cessation of the practice of segregating children solely 

on the basis of their race, and the establishment of sys- 

tems whereby the admissions of children to public schools 

would be determined on a nonracial basis. In spelling out 

‘how those objectives could be accomplished, it authorized 

the revision of school districts and attendance areas, 

within the limits set by normal geographic school district- 

ing, into compact units, to bring about a system not based 

on color distinctions. Consequently, when the Seventh, 

Tenth, Fourth and Sixth Circuit Courts of Appeals were 

required to pass on the constitutionality of desegregation 

plans which provided for the creation of attendance areas 

‘or zones fairly arrived at, bounded by natural, nonracial 

monuments which defined, in truth and in fact, true 

neighborhoods, and directed that all children living in an 

attendance area or zone, without exception, should attend 

the appropriate school in his or her attendance area or 

zone, each ruled in favor of the constitutionality of such 

plans, even though some of the attendance areas or zones 

were populated, as a result of housing patterns in the 

community, with people of one race. In addition, the 

Congress and the President of the United States, through 

the enactment of the Civil Rights Act of 1964, placed 

their approval on the holding of the Court of Appeals for 

the Seventh Circuit in Bell v. School City of Gary, Ind., 

324 F. 2d 209 (certiorari denied 377 U.S. 924, 12 L. Ed. 

2d 216) wherein the fact of de facto segregation which 

fortuitously resulted from housing patterns was held not 

to invalidate a school system developed on the neigh- 

“borhood school plan, honestly and conscientiously con- 



4 

structed with no intention or purpose to segregate the 

races. 

Yet despite the fact that when this Court spoke in 

Brown of attendance areas, it said that such areas should 

be “compact units” constructed “within the limits set by 

normal geographic school districting,” and when it spoke 

in Brown of the type of school system which should be 

created, it said that such system should be “a system not 

based on color distinctions,” and when it spoke in Brown 

of admission policies which should be achieved, it said 

that admissions of children to public schools should be 

on “a nonracial basis,” and despite the fact that the thrust 

of Bell—“which was that if school districts were drawn 

without regard to race, . . . those districts are valid even 

if there is racial imbalance caused by discriminatory prac- 

tices in housing”’—was written into the Civil Rights Act 

of 1964, and despite the provisions of Sections 401, 407 

and 410 of the Civil Rights Act of 1964, wherein school 

districts were authorized to assign students according to 

their residences and courts were prohibited from shifting 

students in order to achieve racial balance, the Court of 

Appeals for the Fifth Circuit, relying on ‘“freedom-of- 

choice” cases, ruled in this case that petitioners’ zone lines 

should be gerrymandered in order to alleviate racial im- 

balance resulting from housing patterns and that “if there 

are still all-Negro schools, or only a small fraction of 

Negroes enrolled in white schools, . . . then, as a matter 

of law, the existing plan fails to meet constitutional stand- 

ards as established in Green and its companion cases.” 

The questions presented for review are: 

1. Whether de facto segregation which occurs fortui- 

tously because of housing patterns renders an otherwise 

acceptable desegregation plan unconstitutional. 



5 

2. Whether a school district can be required to gerry- 

mander its attendance area or zone lines so as to include 

pupils of a certain race within an attendance area or zone, 

who would not be included therein if its attendance area 

or zone lines were drawn in a reasonable, rational and 

nonracial fashion. 

3. Whether the courts, in view of the provisions of 

the Civil Rights Act of 1964, have authority to issue orders 

seeking to achieve a racial balance in neighborhood schools. 

4. Whether the constitutionality of an attendance 

area or zone plan should be judged by the requirements 

of decisions dealing with “freedom-of-choice” plans. 

THE CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED 

: This case involves the pertinent parts of the Four- 

teenth Amendment to the Constitution of the United 

States— 

[19 
. No State shall make or enforce any law 

which shall abridge the privileges or immunities of 
citizens of the United States; . . . nor deny to any 
person within its jurisdiction the equal protection of 
the laws.” 

It also involves the pertinent parts of Section 401 of 

the Civil Rights Act of 1964 (42 U.S.C. §2000c.)— 

“ ‘Desegregation’ means the assignment of students 
to public schools and within such schools without re- 
gard to their race, color, religion, or national origin, 
but ‘desegregation’ shall not mean the assignment of 
students to public schools in order to overcome racial 
imbalance.” 

. And the perient part of Section 407 of the Civil 

Rights Act of 1964 (42 U.S.C. §2000c-6.)— 



6 

(13 . nothing herein shall empower any official 
or court of the United States to issue any order seeking 
to achieve a racial balance in any school by requiring 
the transportation of pupils or students from one school 
to another or one school district to another in order to 

achieve such racial balance, ...” 

And Section 410 of the Civil Rights Act of 1964 (42 

U.S.C. §2000c-9.)— 

“Nothing in this subchapter shall prohibit classi- 
fication and assignment for reasons other than race, 
color, religion, or national origin.” 

STATEMENT OF THE CASE 

This is the first school desegregation case brought in 

the Northern District of Mississippi. It was begun April 

22, 1964, by the filing of a complaint, accompanied by a 

motion for a preliminary injunction, wherein respondents, 

on behalf of themselves and other Negro children similarly 

situated, demanded, among other things— 

a) the end of all racial designations and consid- 
erations in the budgets, expenditures, programs, pol- 

icies and plans of the school district; 

b) the establishment of school zones or attend- 

ance areas on a nonracial basis; and 

c) the assignment of pupils to the schools of the 

school district on a nonracial basis. 

Jurisdiction was invoked pursuant to the provisions 

of 28 U.S.C. §1343 (3), 42 U.S.C. §1983, and the Fourteenth 

Amendment to the Constitution of the United States. 

Petitioners did not question the right of respondents 

to such relief. To the contrary, in order to acquaint them- 

selves with the requirements respecting such relief, they 

employed the writer as their attorney and sought his advice 



7 

about the requirements of Brown v. Board of Education, 

347 U.S. 483, 98 L. Ed. 873; 349 U.S. 294, 99 L. Ed. 1083, and 

the cases which had followed in its wake (R. 203). They 

were advised by him that Brown required the cessation 

of the practice of segregating children solely on the basis 

of race and the achievement of a system of determining 

admissions to the schools of the district on a nonracial basis 

(R. 203), and that in the pursuit of those objectives the 

Constitution and the cases required them to discard all 

considerations of race and to treat the pupils of the district 

as individuals—neither as Negroes nor whites (R. 203, 205). 

On the basis of such advice, petitioners thereupon un- 

dertook to provide respondents with the relief to which 

they were entitled under Brown, and to do so in the manner 

spelled out by this court in Brown. That meant, of course, 

the choice of desegregating the schools of the district by 

the establishment of attendance areas or zones, rather than 

through the dubious but more popular “freedom-of-choice” 

method (R. 205). 

Then, having chosen to establish attendance areas or 

zones, petitioners proceeded to the fixing of the boundary 

lines. That, of course, required a consideration of the way 

the district is laid out and the location of its schools (R. 

209, 210). 

Clarksdale is a town of approximately 25,000 inhabi- 

tants. It is bisected by the railroad tracks of the Illinois 

Central Railroad Company which run in an easterly and 

westerly direction from the northeastern to the south- 

western corner of the town, dividing it into approximately 

equal northerly and southerly halves (R. 213, 214). Ac- 

centuating the division of the residential areas of the town 

made by those railroad tracks is the fact that throughout 

a good portion of the town the lands adjacent to both the 

northerly and southerly side of those railroad tracks are 



8 

occupied by commercial and industrial establishments. Also 

adding to such division is the fact that those railroad 

tracks, located as they are in a town situated in the flat 

lands of the Yazoo-Mississippi Delta, are on an embank- 

ment. With but one exception (which is where Sunflower 

Avenue crosses over the tracks), no one can cross those 

railroad tracks from one residential area to another except 

through an underpass. And throughout the length of those 

railroad tracks as they pass through Clarksdale—some three 

and a half miles—there are but four underpasses, with but 

one west of the Sunflower River and that one right next 

to the river. (See maps.) 

There is a high school north of those railroad tracks 

which is adequate—but not more than adequate—for those 

high school pupils who live north of those railroad tracks 

(BR. 219, 223). 

There is a more than adequate high school south of 

those railroad tracks which is modern in every particular 

—much more so than the high school north of the tracks 

—for those high school pupils who live south of those rail- 

road tracks (R. 219, 221). 

There is a junior high school north of those railroad 

tracks which is also adequate, although obsolete, for those 

junior high school pupils who live north of those railroad 

tracks (R. 225). 

There was a modern and adequate junior high school 

south of those railroad tracks for those junior high school 

pupils who live south of those railroad tracks (R. 225). 

Now there are two. 

In the light of those facts, petitioners reached the ob- 

‘vious conclusion that two high school sub-districts and two 

junior high school sub-districts should be established, 

with those railroad tracks as the dividing line between the 

sub-districts. (See maps.) 



9 

The southerly half of the town is bisected almost 

equally by the railroad tracks of the Illinois Central Rail- 

road Company which run in a southerly direction from 

Clarksdale to Jackson and are referred to in the plans as 

running from Clarksdale to Mattson (R. 210). Those 

tracks, which create a southwest quadrant and a southeast 

quadrant, are not elevated and one can cross over at grade 

level at almost every intersection. About as many pupils 

live in the southwest quadrant as in the southeast quadrant. 

There are two modern elementary schools in the south- 

west quadrant of the town which can adequately take care 

of the pupils in that neighborhood (R. 227). 

There are three elementary schools in the southeast 

quadrant of the town—one quite modern—which can ade- 

quately provide for the pupils in that neighborhood (R. 

227). 

Since those are the facts with reference to the terri- 

tory and schools south of the east-west railroad tracks of 

the Illinois Central Railroad Company, petitioners reached 

the obvious conclusion that two elementary sub-districts 

should be established south of those east-west railroad 

tracks, with the north-south railroad tracks of the Illinois 

Central Railroad Company as the dividing line between 

them, and with each of those sub-districts divided into at- 

tendance areas or zones. They then divided the south- 

west quadrant into two attendance areas or zones, with an 

elementary school in each of those attendance areas or 

zones, and they divided the southeast quadrant into three 

attendance areas or zones, with an elementary school in 

each of those attendance areas or zones. (See maps.) 

The northerly half of the town is bisected by the Sun- 

flower River, but there are many more pupils in the 

northerly half of the town west of the river than east of the 



10 

river, due principally to the fact that the central business 

district of the town is in the northerly half of the town east 

of the river (R. 216, 228, 230). There are two bridges over 

the river in that section of the town (just as there are 

two bridges over the river in the southerly half of the 

town) which enable those elementary school pupils who 

live in the northeast quadrant of the town and north of 

First Street to pass over into the northwest quadrant of the 

town (which is entirely residential) without passing 

through the central business district. (See maps.) 

There are three elementary schools in the northwest 

quadrant of the town (R. 228). The northeast quadrant 

had none, but petitioners’ plans committed them to try to 

have one built there in 1966 (R. 228). 

With those facts before them, petitioners established 

two elementary sub-districts in the northerly half of the 

town with Sunflower River as the dividing line between 

them; divided the northwest quadrant of the town into 

three attendance areas or zones, with an elementary 

school located in each of them; and then provided that 

those elementary school pupils in the northeast quadrant 

of the town (where there was no elementary school) could 

—for the present—attend either Oakhurst Elementary 

School (the westernmost elementary school in the north- 

west quadrant) or Eliza Clark School (the northernmost 

elementary school in the southeast quadrant) (R. 229, 231). 

Thus, by utilizing the obvious and indisputable nat- 

ural barriers which separate Clarksdale into separate and 

distinct neighborhoods as the boundary lines for the vari- 

ous sub-districts, petitioners established sub-districts de- 

manded by the topography of the town, the location and 

the capacity of the school buildings, the proximity of the 

pupils to the school buildings, and the requirements of 

good educational practices. They took the same action as 



11 

they would have taken had all of the pupils of the school 

district been white, or all Negro, or had every other resi- 

dence in the town been occupied by whites and the re- 

mainder by Negroes. They discriminated against no one. 

None of the interior lines dividing the elementary 

school districts into separate attendance areas or zones 

have ever been seriously questioned with the exception of 

the north-south line between what was originally the 

E-1-B (Hall) zone and the E-1-C (Clark) zone, which was 

originally selected so as to ensure sufficient room at the 

Eliza Clark School for those children who lived closest to 

it and those children in the E-3-A zone who had to go 

there because of a lack of an elementary school in their 

home zone (R. 246). Because of its dubious validity as a 

dividing line between the two zones, it failed to win ap- 

proval of the district court. Thereafter, to meet that prob- 

lem, petitioners proposed what is favorably known as the 

“Princeton Plan” among those active in mixing the races 

in the schools. Their proposal called for combining the two 

zones into one, to be designated E-1-B, with the two schools 

‘(Hall and Clark) to be administered by one set of adminis- 

trative officials. Grades one and two would attend Eliza 

Clark and grades three, four, five and six would attend 

Myrtle Hall (R. 130). 

After a hearing, petitioners’ revised plans were ap- 

proved by the trial court and ordered into effect for the 

1966-67 school year (R. 148-149). 

Racially, Clarksdale is almost evenly divided between 

Negroes and whites, and, of course, as in all other towns 

and cities where there is a bi-racial population, there is no 

even distribution of the races throughout the community. 

A majority of the whites live north of the east-west rail- 

road tracks. Most of the Negroes live south of those 

tracks. But there are sizable areas where the races are 



12 

mixed. Sub-District S-1 and Sub-District J-1 both have 

a substantial amount of racial mixture in their population. 

In Zone E-2-B (Riverton), about half of the area is com- 

posed of white residences and a considerable proportion 

of the population is white. In Zone E-2-A (Booker T. 

Washington), there are a few people who are not Negroes. 

The original Zone E-1-C (Eliza Clark) was populated en- 

tirely by whites, but then it was combined with Zone 

E-1-B (Myrtle Hall) which is predominantly, but not 

entirely populated by Negroes. Zone E-1-A (George 

Oliver) has a considerable number of whites among its 

predominantly Negro population. By adopting a “neigh- 

borhood school” plan and requiring all pupils to attend 

the school in the zone wherein he or she lives—thus bas- 

ing their admissions’ policy on residence and not on race— 

and particularly by providing that every white pupil in 

a racially mixed meighborhood is assigned by virtue of 

his residence to a formerly all-black school, petitioners 

met all requirements of Brown and established, as much 

as it was within their power so to do, a desegregated 

school system which necessarily had to result in integrated 

schools if the school children of Clarksdale attend public 

schools. 

To be specific, under petitioners’ desegregation plan— 

The schools of the district were completely 

desegregated by the beginning of the 1967-1968 school 
year. 

The segregation of pupils on the basis of race 

has been ended. 

Compact attendance areas or zones, with reason- 

able, rational and natural boundaries have been es- 
tablished in order to achieve a system of determin- 
ing admission to the schools of the district on a non- 
racial basis. 



13 

All racial designations have been abolished and 
all racial considerations have been abandoned. 

All students desiring to take a course not offered 
at the school he or she attends but offered at another 

school are allowed to transfer to the latter school. 

No transfers other than those referred to in the 
paragraph immediately preceding this paragraph are 
granted. 

Petitioners are required to offer an identical cur- 
riculum at all of the district’s elementary, junior high 
and senior high schools; to maintain substantially the 

same teacher-pupil ratios for each grade in all of the 
district’s schools; to maintain substantially the same 
level of expenditures of public funds per pupil at all 
of the district’s elementary schools, each of the dis- 

trict’s junior high schools, and at each of the dis- 
trict’s senior high schools. 

Those requirements—which are a part of the court’s 

order of August 10, 1965—make certain that no school 

in the district will be inferior to any other school in the 

district. But lest this court be misled into believing what 

respondents say about what were formerly the Negro 

schools of the district, petitioners—with understandable 

pride—call attention to these facts: 

Every school in the district is fully accredited, 

with every so-called Negro school graded AA. (See 
Answer to Interrogatory 3G in 2nd Set of Interroga- 
tories.) 

Every school in the district is a member of the 
Southern Association of Colleges and Schools. (See 
Answer to Interrogatory 3G in 2nd Set of Interroga- 

tories.) But one other school system in Mississippi 
can make that claim. 

Every Negro teacher in the system possesses a 

Class A or Class AA professional certificate (R. 186). 



14 

Teacher salaries, pursuant to a program adopted 
several years before the beginning of this action, have 

been equalized. (See Answer to Interrogatory 8D in 
2nd Set of Interrogatories.) 

There is no real difference in the courses offered 
throughout the system and any course really desired 
by pupils in any of the schools is provided. (See 
Answer to Interrogatory 3F in 2nd Set of Interroga- 
tories.) 

There is no overcrowding in any of our schools. 

The orders of the District Court approving petitioners’ 

plan and putting it into effect were made and entered 

on August 10, 1965, and December 10, 1965. Respondents’ 

appeal therefrom was argued before the Circuit Court of 

Appeals for the Fifth Circuit on May 25, 1966. On March 

6, 1969, more than 33 months thereafter, and largely on 

the basis of decisions in ‘“freedom-of-choice” cases, the 

Court of Appeals reversed the orders of the District 

Court by the order which petitioners pray this Court to 

review. : 

The questions presented for review are unquestion- 

ably the most important questions in the field of school 

law. 

REASONS FOR ALLOWANCE OF THE WRIT 

There are many reasons why the decision below should 

be reviewed by this Court: 

First, it is in conflict with the decisions of the 

Seventh, Tenth, Fourth and Sixth Circuit Courts of Ap- 

peals on the same matter. 

Second, it decides important questions of federal law 

which, if not decided by Brown, has not been, but should 

be, settled by this Court. 



15 

Third, it decides important questions of federal law 

in a way which, if those questions were decided by 

Brown, as we believe, is in conflict with the applicable 

decisions of this Court, particularly those in Brown. 

~ Fourth, it violates the express provisions of the 

Civil Rights Act of 1964. 

Fifth, it is based on an untenable and erroneous 

construction of the Fourteenth Amendment to the Con- 

stitution of the United States. 

Sixth, it does not accord with the applicable decisions 

of this Court and the other Circuit Courts of Appeals. 

Seventh, it is erroneous and its probable results will 

be so mischievous as to make a “shambles” of public 

education throughout the nation. 

Brown Directed, As the Means of Achieving the 
Desegregation of the Schools of a District, the 
Creation of Compact Attendance Areas or Zones 

This Court, in Brown, authorized the lower federal 

courts to consider— 

“. . . problems related to administration, arising 
from the physical condition of the school plant, the 
school transportation system, revision of school dis- 

tricts and attendance areas into compact units to 
achieve a system of determining admission to the public 
schools on a nonracial basis.” (Emphasis added). 

The sort of attendance areas which this court had in 

mind was indicated in one of the questions propounded 

for reargument as attendance areas resulting from 

“normal geographic school districting.” 

And those words have been almost unanimously con- 

strued by the courts as authorization for attendance 



16 

areas or zones honestly and conscientiously constructed 

without regard for race, and as requiring the disapproval 

of attendance areas gerrymandered for racial purposes. 

Respondents, whose contentions in this case are 

voiced by the NAACP, should have no quarrel with that 

construction of those words. For in the brief filed by 

the NAACP in Brown II, it was stated on page 12: 

“The extent of the boundary alterations required, 
in the reformulation of school attendance areas on a 
nonracial basis, will vary. This is illustrated by the 
recent experience in the District of Columbia in re- 
casting attendance boundaries on a wholly geograph- 
ical basis. In the neighborhoods where there is little 
or no mixture of the races, and where school facilities 
have been fully utilized, it was found that the elimina- 
tion of the racial factor did mot work any material 
change in the territory served by each school.” (Em- 
phasis supplied). 

Petitioners, in fashioning the plan now before this 

Court, have also so construed those words of this Court. 

Brown Requires the Creation of School Systems 
Not Based on Color Distinctions 

In Brown II, this Court directed school boards “to 

achieve a system of determining admission to the public 

schools on a nonracial basis.” 

That the systems to be created pursuant to its direc- 

tions should be free of racial considerations was made clear 

by this Court in one of the questions propounded for re- 

argument when it described the sort of system it desired 

as— 

“a system not based on color distinctions.” 

The “separate but equal” doctrine repudiated in Brown 

was, as we all know, the legal basis for segregation. It 



17 

had its genesis in the majority opinion in Plessy v. Fergu- 

son, 163 U.S. 537, 41 L. Ed. 256, wherein a Louisiana statute 

regulating the privileges of passengers on public carriers 

by race was held not to violate the fourteenth amendment. 

Its antithesis, i.e., the doctrine that the right of any citizen 

to enjoy the privileges of a public institution to which he 

is otherwise entitled cannot be made to depend on his race 

or color—which Brown established as the law of the land 

for all public school districts—was thus expressed in the 

dissenting opinion of Mr. Justice Harlan: 

“In respect of civil rights, common to all citizens, 
the Constitution of the United States does not, I think, 
permit any public authority to know the race of those 
entitled to be protected in the enjoyment of such rights. 

. I deny that any legislative body or judicial 
tribunal may have regard to the race of citizens when 
the civil rights of those citizens are involved. 

“These notable additions to the fundamental law 
(the 13th, 14th and 15th Amendments to the Constitu- 
tion of the U.S.) were welcomed by the friends of 
liberty throughout the world. They removed the race 
line from our governmental systems. 

“There is no caste here. Our Constitution is color- 
blind, and neither knows nor tolerates classes among 
citizens. In respect of civil rights, all citizens are 
equal before the law. . . . The law regards man as man, 
and takes no account of his surroundings or of his color 
when his civil rights as guaranteed by the supreme law 
of the land are involved.” 

When the transfer provisions incorporated into the de- 

segregation plans of the public school systems of Knox- 

ville, Tennessee, which were based solely on racial factors, 

‘came on for review in Goss v. Board of Education, 373 U.S. 
683, 10 L. Ed. 2d 632, this Court, in invalidating them, bor- 



18 

rowed from the language in one of its prior decisions to 

say— 

“Racial classifications are ‘obviously irrelevant 
and invidious.’ ” 

And then went on to capsulize a history of those of its 

decisions which demonstrated its animosity toward racial 

classifications: 

¢ ‘... The cases of this Court reflect a variey of in- 
stances in which racial classifications have been held 

to be invalid, e.g., public parks and playgrounds, 

Watson v. Memphis, 373 U.S. 526, 10 L. Ed. 2d 529, 
83 S. Ct. 1314 (1963); trespass convictions, where 
local segregation ordinances pre-empt private choice, 

Peterson v. Greenville, 373 U.S. 244, 10 L. Ed. 2d 
323, 83 S. Ct. 1119 (1963); seating in courtrooms, 
Johnson v. Virginia, 373 U.S. 61, 10 L. Ed. 2d 195, 
83 S. Ct. 1053 (1963); restaurants in public buildings, 
Burton v. Wilmington Parking Authority, 365 U.S. 

715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961); bus ter- 
minals, Boynton v. Virginia, 364 U.S. 454, 5 L. Ed. 
2d 206, 81 S. Ct. 182 (1960); public schools, Brown 

v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 
74 S. Ct. 686, 38 A.L.R. 2d 1180, supra; railroad din- 

ing car facilities, Henderson v. United States, 339 U.S. 
816, 94 L. Ed. 1302, 70 S. Ct. 843 (1950); state enforce- 
ment of restrictive covenants based on race, Shelley 

v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836, 

3 ALR. 2d 441 (1948); labor unions acting as statu- 
tory representatives of a craft, Steele v. Louisville & 

N:R. Co, 323 US. 192, 89.1. Ed. 173, 65 S. Ct. 228, 

supra; voting, Smith v. Allwright, 321 U.S. 649, 88 
L. Ed. 987, 64 S. Ct. 757, 151 A.LLR. 1110 (1944); and 

juries, Strauder v. West Virginia, 100 U.S. 303, 25 
L. Ed. 664 (1879).” 

It followed with a gist of a decision by the Court 

of Appeals for the Fifth Circuit: 



19 

“. . . The recognition of race as an absolute 

criterion for granting transfers which operate only 
in the direction of schools in which the tranferee’s 
race is in the majority is no less unconstitutional 
than its use for original admission or subsequent as- 
signment to public schools. See Boson v. Rippy, 285 

F. 2d 43 (C.A. 5th Cir.).” (Emphasis added). 

In that case which this Court cited with approval, 

the Court of Appeals for the Fifth Circuit said: 

“. .. Negro children have no constitutional right 
to the attendance of white children with them in the 
public schools. Their constitutional right to ‘the 

equal protection of the laws’ is the right to stand | 
equal before the laws of the State; that is, to be treated | 
simply as individuals without regard to race or color. 
The dissenting view of the elder Mr. Justice Harlan 

in Plessy v. Ferguson, 1895, 163 U.S. 537, 559, 16 S. 
Ct. 1138, 1146, 41 L. Ed. 256, has been proved by | 

history to express the true meaning of our Consti- | 

tution: | 

“‘ .. . There is no caste here. Our constitution 
is color-blind, and neither knows nor tolerates classes 
among citizens. In respect of civil rights, all citizens 

are equal before the law. The humblest is the peer 
of the most powerful. The law regards man as man, 

and takes no account of his surroundings or of his 
color when his civil rights as guaranteed by the su- 

preme law of the land are involved.” ” | 

Many other decisions from this and other courts could 

be cited to the same effect, but one will suffice. It is | 

that of Collins v. Walker, 328 F. 2d 100, wherein the Court 

of Appeals for the Fifth Circuit ruled that a grand jury | 

upon which Negroes had been purposely included was as 

unconstitutional as one from which they had been pur- 

posely excluded. The court said: 



20 

“A Negro is entitled to the equal protection of 

the laws, no less and no more. He stands equal be- 
fore the law, and is viewed by the law as a person, 

not as a Negro.” 

Hence, as the foregoing cases show. petitioners, in 

carrying out the mandate of Brown, which was to admit 

children to the schools of the district on a nonracial basis, 

were enjoined to disregard the face of every school child 

in the district, to look on every pupil simply as a pupil 

and not as a white pupil or a Negro pupil. They were ob- 

liged to come up with the same segregation plan as they 

would have produced had all of the pupils of the district 

been white, or all colored, or had every other residence 

in the district been occupied by whites and every other 

been occupied by Negroes. As the record shows, that is 

exactly what they did. 

De Facto Segregation—Which Occurs Fortuitously Be- 
cause of Housing Patterns—According to Brown and the 

Holdings of the Seventh, Tenth, Fourth and Sixth Cir- 
cuit Courts of Appeals, Does Not Make an Otherwise 

Acceptable Desegregation Plan Unconstitutional. 

As we have pointed out, the directives of this Court 

for the construction of attendance areas or zones, as set 

forth in Brown, are— 

First, the attendance areas or zones must be 
“compact units,” and 

Second, the system thus created must be “a sys- 
tem not based on color distinctions.” 

Brown necessarily was to the effect that de facto 

segregation—that which occurs fortuitously because of 

housing patterns—does not make an otherwise acceptable 

desegregation plan unconstitutional. For if an area around 

a school is inhabited solely by whites or blacks, the cre- 



21 

ation of the “compact units” required by Brown will nec- 

essarily result in racially imbalanced attendance areas or 

zones. And only by the drawing of zone lines without 

regard to color can “a system not based on color consider- 

ations” be devised. For only if attendance areas or zones 

are set up as they should be: through the drawing of rea- 

sonable, rational and nonracial lines, without regard to the 

race of the pupils enclosed thereby, will admissions to the 

school of that zone be determined on a nonracial basis, 

i.e., the residence of the pupils. But if the boundaries of 

the attendance areas or zones must be gerrymandered 

so as to include certain pupils within the zone who would 

not be included therein if those boundary lines were 

arawn in a reasonable, rational and nonracial fashion, 

then the admission into the school of the zone of those 

pupils artificially brought into the zone will be based on 

racial considerations, in defiance of the command of 

Brown. 

From the very beginning—in fact, in Brown after re- 

mand to the trial court—it has been held that if attendance 

areas or zones are fairly arrived at, and all children living 

in each attendance area or zone are required to attend the 

school in that area or zone, no violation of the Fourteenth 

Amendment results even though the concentration of chil- 

dren of one race in particular areas or zones results in 

racial imbalance in the schools. Brown v. Board of Educa- 

tion of Topeka, 139 F. Supp. 468. To quote from the trial 

court’s opinion: . 

“It was stressed at the hearing that such schools 
as Buchanan are all-colored schools and that in them 
there is no intermingling of colored and white chil- 
dren. Desegregation does not mean that there must be 
intermingling of the races in all school districts. It 
means only that they may not be prevented from 
intermingling or going to school together because of 
race or color. 



22 

“If it is a fact, as we understand it is, with respect 
to Buchanan School that the district is inhabited en- 
tirely by colored students, no violation of any constitu- 
tional right results because they are compelled to at- 
tend the school in the district in which they live.” 

At least four Courts of Appeals have reached the same 

conclusion. The Seventh, in Bell v. School City of Gary, 

Ind., 324 F. 2d 209 (certiorari denied 377 U.S. 924, 12 L. Ed. 

2d 216), which first appeared in 213 F. Supp., at page 

819, was presented the question whether the schools of 

Gary, with some having all-white and some all-colored 

student bodies, met the requirements of Brown. After 

pointing out that the composition of those student bodies 

was the result of the concentration of the city’s Negroes 

in certain sections, the court added: 

“Plaintiffs argue that Brown v. Board of Educa- 
tion, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, pro- 
claims that segregated public education is incompatible 
with the requirements of the Fourteenth Amendment 
in a school system maintained pursuant to state law. 
However. the holding in Brown was that the forced 
segregation of children in public schools solely on the 
basis of race, denied the children of the minority group 
the equal protection of the laws granted by the Four- 
teenth Amendment. 

“We approve . . . the statement in the District 
Court’s opinion, ‘Nevertheless, I have seen nothing in 
the many cases dealing with the segregation problem 
which leads me to believe that the law requires that 
a school system developed on the neighborhood school 
plan, honestly and conscientiously constructed with 
no intention or purpose to segregate the races, must 
be destroyed or abandoned because the resulting effect 
is to have a racial imbalance in certain schools where 
the district is populated almost entirely by Negroes 
or whites * & xr» 



23 

The Tenth Circuit Court of Appeals reached the same 

conclusion in Downs v. Board of Education of Kansas City, 

336 F. 2d 988 (certiorari denied 380 U.S. 914, 13 L. Ed. 2d 

800), which involved a broad attack on the administration 

of the Kansas City, Kansas, school system, and particularly 

on the action of the school board in defining school bound- 

ary lines and requiring students to attend the school in 

the district in which they lived, with the result that some 

of the schools were all-white and some all-Negro. But, 

said the court: 

“The neighborhood school system and other school 
systems, by which admission to the school is deter- 
mined upon the basis of similar criteria such as res- 
idence and aptitude, are in use in many parts of the 
country. . . . In the second Brown case, supra, the 
Supreme Court appears to have recognized that school 
admissions may be based upon such factors as res- 
idence. It said that in determining ‘good faith com- 
pliance at the earliest practicable date,” the lower 
courts might take into account problems arising from 
the ‘* * * revision of school districts and attendance 
areas into compact units to achieve a system of de- 
termining admission to the public schools on a non- 
racial basis * * *. 

“The drawing of school zone lines is a discretion- 
ary function of a school board and will be reviewed 
only to determine whether the school board acted ar- 
bitrarily. 

“We conclude that the decisions in Brown and 
the many cases following it do not require a school 
board to destroy or abandon a school system developed 
on the neighborhood school plan, even though it re- 
sults in a racial imbalance in the schools, where, as 
here, that school system has been honestly and con- 
scientiously constructed with no intention or purpose 
to maintain or perpetuate segregation.” 



24 

The Fourth Circuit Court of Appeals reached the same 

conclusions in Gilliam v. School Board of the City of Hope- 

well, Va., 345 F. 2d 325, which involved a neighborhood 

school plan which inevitably resulted in some all-Negro 

schools because of “the fact that the surrounding res- 

idential areas are inhabited entirely by Negroes.” In re- 

jecting the objections thereto, the court said: 

“The plaintiffs object that the result of the geo- 
graphic zoning is a large measure of de facto segrega- 
tion. It is true that it is, but this is because of the 
residential segregation that exists. The Harry E. 
James School zone, for instance, bounded in part by 
Hopewell’s city limits, is otherwise largely surrounded 
by railroad classification yards and industrial tracks, 
with adjacent industrialized areas, which isolate the 
residential portions of that zone from all other res- 
idential areas. De facto segregation could be avoided 
for those pupils only by transporting them to distant 

schools. 

“The Constitution does not require the abandon- 
ment of neighborhood schools and the transportation 
of pupils from one area to another solely for the pur- 
pose of mixing the races in the schools.” 

Deal v. Cincinnati Board of Education, 369 F. 2d 55, 

decided by the Sixth Circuit Court of Appeals on Decem- 

ber 6, 1966, is also to the same effect. In it, the appel- 

lants posed the question— 

“Whether the neighborhood system of pupil place- 
ment, fairly administered without racial bias, comports 
with the requirements of equal opportunity if it 
nevertheless results in the creation of schools with 
predominantly or even exclusively Negro pupils.” 

In responding, the court said: 

“The neighborhood system is in wide use through- 

out the nation and has been for many years the basis 



25 

of school administration. This is so because it is 
acknowledged to have several valuable aspects which 
are an aid to education, such as minimization of safety 
hazards to children in reaching school, economy of 
cost in reducing transportation needs, ease of pupil 
placement and administration through the use of 
neutral, easily determined standards, and better home- 
school communication. The Supreme Court in Brown 
recognized geographic districting as the normal 
method of pupil placement and did not foresee chang- 
ing it as the result of relief to be granted in that 
case. 

“Because of factors in the private housing market, 
disparities in job opportunities, and other outside in- 
fluences (as well as positive free choice by some Ne- 
groes), the imposition of the neighborhood concept 
on existing residential patterns in Cincinnati creates 
some schools which are predominantly or wholly of 
one race or another. Appellants insist that this situa- 
tion, which they concede is not the case in every 
school in Cincinnati, presents the same separation and 
hence the same constitutional violation condemned 
in Brown. We do not accept this contention. The 
element of inequality in Brown was the unnecessary 
restriction on freedom of choice for the individual, 
based on the fortuitous, uncontrollable, arbitrary fac- 
tor of his race. The evil inherent in such a classifica- 

tion is that it fails to recognize the high value which 
our society places on individual worth and personal 
achievement. Instead, a racial characterization treats 
men in the mass and is unrelated to legitimate gov- 
ernmental considerations. It fails to recognize each 
man as a unique member of society. 

“In the present case, the only limit on individual 
choice in education imposed by state action is the use 
of the neighborhcod school plan. Can it be said that 
this limitation shares the arbitrary, invidious char- 
acteristics of a racially restrictive system? We think 



26 

not. In this situation, while a particular child may 
be attending a school composed exclusively of Negro 
pupils, he and his parents know that he has the choice 
of attending a mixed school if they so desire, and they 
can move into the neighborhood district of such a 
school. This situation is far removed from Brown, 
where the Negro was condemned to separation, no 
matter what he as an individual might be or do. 
Here, if there are obstacles or restrictions imposed 
on the ability of a Negro to take advantage of all the 
choices offered by the school system, they stem from 
his individual economic plight, or result from private, 
not school, prejudice. We read Brown as prohibiting 
only enforced segregation.” (Emphasis supplied). 

The Sixth Circuit Court of Appeals, on February 10th 

of this year, reaffirmed its holding in Deal. In Goss V. 

Board of Education, City of Knoxville, Tennessee, 406 

F. 2d 1183, it had this to say of a plan which required each 

student to be assigned to the school in the district in which 

he or she resides: 

“Preliminarily answering question I, it will be 
sufficient to say that the fact that there are in Knox- 
ville some schools which are attended exclusively or 

predominantly by Negroes does not by itself estab- 
lish that the defendant Board of Education is violat- 

ing the constitutional rights of the school children of 
Knoxville. Deal v. Cincinnati Bd. of Education, 369 

F. 2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 
88 S. Ct. 39, 19 L. Ed. 2d 114 (1967); Mapp. v. Bd. of 
Education, 373 F. 2d 75, 78 (6th Cir. 1967). Neither 
does the fact that the faculties of some of the schools 
are exclusively Negro prove, by itself, violation of 
Brown.” 

And there are comparatively recent district court 

cases from the Fifth Circuit to the same effect. Griggs v. 

Cook, 272 F. Supp. 163 (N.D. Georgia, July 21, 1967), af- 

firmed by the court in 384 F. 2d 705, clearly recognizes 



27 

that there is nothing unconstitutional or illegal about 

fortuitous de facto segregation. We quote: 

[13 . . . the sole question here is whether the loca- 
tion of a neighborhood school, ipso facto, is uncon- 
stitutional, because it will result in a predominantly 
all-negro enrollment. Short of racially motivated ac- 

tion in the manipulation of attendance patterns or 
‘gerrymandering’ of school districts, and prior to Jejf- 
ferson County, the matter appeared to be at rest un- 

der such cases as Bell v. School City of Gary, 213 
F. Supp. 819 (N.D. Ind. 1963), aff’d 324 F. 2d 209 
(7th Cir. 1963), cert. den. 377 U.S. 924, 84 S. Ct. 1223, 
12 L. Ed. 2d 216 (1964), and Briggs v. Elliott, 132 
F. Supp. 7718 (B.D.S.C. 1955); Holland v. Board of 
Public Instruction, 258 F. 2d 730 (5th Cir. 1958); 

Deal v. Cincinnati Board of Education, 369 F. 2d 55 
(6th Cir, 1966). 

“The dilemma arises from the legal application 
of a decree directed at de jure situations upon facts 
which plaintiffs themselves assert are de facto prob- 
lems. It is apparent to all that the difficulty here arises 
out of residential racial patterns in the City of At- 
lanta. That such residential segregation actually pro- 

duces educational segregation and renders the task 
of school integration extremely difficult is obvious. 
However, it is impossible for the court in this action to 
abolish the Atlanta housing problem by judicial solu- 

tion of the school problem. Such result must await 
effective legislation and social maturity on the part 
of many parties not remotely concerned with this suit. 

“ .. What is decided is that the establishment 
of a school on nonracially motivated standards is not 

unconstitutional because it fortuitously results in all- 
negro or all-white enrollment.” 



28 

In Moses v. Washington Parish School Board, 276 

F. Supp. 834 (E.D. La., Oct. 26, 1967), it was said: 

“ . . This Court’s considered position is that 
separation which occurs fortuitously is not ‘inherently’ 
unequal. 

“ . . this Court cannot sanction a rule of law 
which places the legal burden on the state to correct 
the effects on one class of individuals of chance occur- 
rences or of the free exercise by another group of their 

rights of free association.” 

Broussdrd v. Houston Independent School District, 395 

F. 2d 817, decided May 30, 1968, by a three-judge court, 

rejected the contention that the construction of new schools 

should be halted because they might promote and per- 

petuate de facto segregation in the schools. 

“The Constitution does not require such a result, 
and we entertain serious doubt that it would permit 
it. Racial imbalance in a particular school does not 
in itself, evidence a deprivation of constitutional rights. 
Zoning plans fairly arrived at have been consistently 

upheld, though racial imbalance might result.” 

We live in a pluralistic society. Our communities are 

as diverse as the races and the ethnic groups which popu- 

late them. All-white communities abound in sections out- 

side the South. A few all-Negro communities can be found 

in the South. Towns made up of French-speaking citizens 

exist in Louisiana. Scandinavian groups compose com- 

munities located in the Mid-West. Perhaps the same can 

be said about German and Italian groups. For this country 

has provided a refuge for those of every race and nation- 

ality, with no restrictions on where they should settle. 

And since like attracts like, our various racial and ethnic 



29 

groups have inevitably moved into those communities 

which numbered among their inhabitants those of their 

~ own group and have shunned those communities which do 

not have those of their background. For instance, while 

Mississippi has, along with its many Anglo-Saxons, those 

of German and Italian stock, it has no Scandinavians or 

Poles. It has Chinese but not Japanese. And other il- 

lustrations could be given. 

Where communities have sizable racial or ethnic 

groups, those groups tend to congregate in identifiable 

sections of their community. In parts of Boston, none 

but Irish can be found. The same can be said of New 

York, which also includes sections composed exclusively 

of Italians. In San Francisco, Chinese have their own 

part of the city. Those are but examples of a phenomena 

well known to those familiar with American communities. 

Other such examples can easily be given. 

Negroes have the same tendencies as the white groups. 

Where they form a sizable proportion of the population, 

whether it be in the South, North, East or West, they nat- 

urally, and of their own volition, create their own neigh- 

borhood. It can be safely said that there is not a com- 

munity in this country where Negroes, if there are enough 

of them, do not congregate into a particular section of their 

community. The instincts which motivate their white 

counterparts to do so, also impel Negroes to live together. 

Such de facto segregation as exists in Clarksdale is, 

of course, the fortuitous result of the housing patterns in 

the community. But those housing patterns did not result 

from any state law or local ordinance, as did the housing 

patterns in the community under consideration in Holland 

Vv. Board of Public Institutions, 258 F. 2d 730. The fact of 

the matter is that they are the result of the natural desires 

of people to live near those of their own kind. 



30 

There is some de facto segregation in Clarksdale, just 

as there is in every community in this nation where there 

is a sizable proportion of Negro population. Given the 

housing patterns which prevail in towns and cities through- 

out the country, any other result would be inconceivable. 

But the de facto segregation found in Clarksdale is 

fortuitous de facto segregation and not the result of any 

law or ordinance. It is, in every essential respect, the same 

type of de facto segregation as prevails in Gary, Indiana, 

which was before the court in Bell; as prevails in Kansas 

City, Missouri, which was before the court in Downs; as 

prevails in Hopewell, Virginia, which was before the court 

in Gilliam; as prevails in Cincinnati, Ohio, which was be- 

fore the court in Deal; as prevails in Knoxville, Tennes- 

see, which was before the court in Goss v. Board of Edu- 

cation, City of Knoxville, Tennessee, 406 F. 2d 1183; as 

prevails in Houston, Texas, which was before the court in 

Broussard v. Houston Independent School District, 262 F. 

Supp. 266; as prevails in Atlanta, Georgia, which was be- 

fore the court in Griggs v. Cook, 272 F. Supp. 163, 384 F. 

2d 705; as prevails in Washington Parish, Louisiana, which 

was before the court in Moses v. Washington Parish School 

Board, 276 F. Supp. 834; and as prevails in numerous other 

communities whose plans have been validated by the 

courts even though they encompassed areas where de 

facto segregation prevailed. 

Where such de facto segregation exists, and a district’s 

zones are set up as they should be: through the drawing 

of reasonable, rational and nonracial lines, without regard 

to the race of the pupils enclosed thereby, there will be, of 

necessity, some all-black and some all-white schools. 

There is no escape from such an inevitable result, except 

the racist solution advanced by the court below. But 

neither race, nor religion, should be acknowledged as con- 

stituting in any way a valid condition or measure, in this 



31 

nation, of a person’s access to public facilities, positions or 

activities of any sort. Those who would make it such ought 

to be rejected with finality because, in racial matters, en- 

during progress and justice will come about only under 

rules of law which unswervingly treat all men as equal 

before the law, regardless of race, color or national origin. 

The Civil Rights Act of 1964 Validates Bona Fide 
Neighborhood School Lines and Prohibits Court 
Orders Intended to Alleviate Racial Imbalance in 

Neighborhood Schools 

As we have pointed out, Bell v. School City of Gary 

holds that de facto segregation which occurs fortuitously 

because of housing patterns is not unconstitutional. Now 

we point out that the gist of that holding was incorporated 

into the Civil Rights Act of 1964. This is clear from the 

language of Senator Humphrey, floor manager of the bill, 

as quoted in Jefferson 1 (372 F. 2d 836): 

“Senator Humphrey explained: 

“ ‘Judge Beamer’s opinion in the Gary case is sig- 
nificant in this connection. In discussing this case, 
as we did many times, it was decided to write the 
thrust of the court’s opinion into the proposed sub- 

stitute.” (Emphasis added). 

“ ‘The bill does not attempt to integrate the schools, 

but it does attempt to eliminate segregation in the 
schools. The natural factors, such as density of 
population, and the distance that students would 

have to travel are considered legitimate means 
to determine the validity of a school district, if 
the school districts are mot gerrymandered, and. 
in effect deliberately segregated. The fact that there 
is a racial imbalance per se is not something which 

is unconstitutional. That is why we have attempted 
to clarify it with the language of Section 4.” (Em- 

phasis added).” 



32 

The pertinent provisions of the Civil Rights Act of 

1964 are, of course, Sections 401, 407 and 410, which read 

as follows: 

“Sec. 401. As used in this title— 

“(b) ‘Desegregation’ means the assignment of 
students to public schools and within such schools 
without regard to their race, color, religion, or national 
origin, but ‘desegregation’ shall not mean the assign- 
ment of students to public schools in order to over- 
come racial imbalance. 

“See, 407... 

[13 
. nothing herein shall empower any official 

or court of the United States to issue any orders seek- 
ing to achieve a racial balance in any school by re- 
quiring the transportation of pupils or students from 
one school to another or one school district to another 
in order to achieve such racial balance. 

“Sec. 410. 

“Nothing in this title shall prohibit classification 

and assignment for reasons other than race, color, 
religion, or national origin.” 

In defining the latter part of Section 401— 

“but desegregation shall not mean the assign- 
ment of students to public schools in order to over- 
come racial imbalance,” 

the Court of Appeals for the Fifth Circuit, in Jefferson 1, 
said: 

“The negative portion, starting with ‘but’, ex- 
cludes assignment to overcome racial imbalance, that 
is acts to overcome de facto segregation.” 



33 

In support of its conclusion that the prohibition in 

Section. 407 against assignment of students to overcome 

racial imbalance was related solely to racial imbalance 

resulting from de facto segregation, the Court, in Jefferson 

1, went on to say this about the undefined term “racial 

imbalance”: 

“It is clear however from the hearings and de- 

bates that Congress equated the term, as do com- 

mentators, with ‘de facto segregation’ that is, non- 

racially motivated segregation in a school system 

based on a single neighborhood school for all children 

in a definable area.” 

In recognition of the fact that “classification and as- 

signment for reasons other than race, color, religion, or 

national origin,” as used in Section 410, includes classi- 

fication and assignment on the basis of residence, the 

Court, in Jefferson 1, said: 

“The thrust of the Gary case (Bell) was that if 

school districts were drawn without regard to race, but 

rather on the basis of such factors as density of popu- 

lation, travel distances, safety of the children, costs of 

operating the school system, and convenience to par- 

ents and children, those districts are valid even if there 

is a racial imbalance caused by discriminatory prac- 

tices in housing.” 

When the Court of Appeals for the Fifth Circuit de- 

cided in Jefferson 1, as it had to do, that the thrust of Bell 

had been written into the Civil Rights Act of 1964 and that 

‘the Act applies, at the very least, to those school districts 

whose zone lines are drawn without regard to race, but 

rather on the basis of such factors as density of popula- 

tion, travel distances, safety of the children, cost of operat- 

ing the school system, and convenience to parents and chil- 

dren, it decided, beyond all question, that the Act applies 

to the Clarksdale Municipal Separate School District. For 



34 

petitioners’ zones are set up exactly as were the zones in 
Bell. 

It follows therefore, from the decision in Jefferson 1 

and the express words of the Civil Rights Act of 1964, that 

petitioners’ attendance areas or zones are valid even if 

there is a racial imbalance therein and that the court was 

without authority to issue any order designed to achieve 

a racial balance in petitioners’ schools. 

The Constitutionality of an Attendance Area Desegre- 
gation Plan is to Be Judged by the Decisions in Those 
Cases Dealing with Such Plans. It Is Not to Be Judged 
by Decisions Dealing with “Freedom-of-Choice” Plans, 

for Those Decisions Are Based on Considerations 
Foreign to Attendance Area Plans. 

The plan before the court is unique in that no other 

school district in the Fifth Circuit has initially proposed to 

do exactly that which is required by Brown, to-wit: to 

abolish its dual zone lines, to revise its attendance areas 

into compact units, and to establish a system of determining 

admissions to its schools on a nonracial basis, without in- 

cluding in its proposal an escape provision whereby a white 

pupil in a predominantly black neighborhood could avoid 

the school for that zone and attend a school designated for 

a different zone. As Judge Tuttle put it in Davis v. Board 

of School Commissioners of Mobile County, 364 F. 2d 896— 

“As every member of this court knows, there are 
neighborhoods in the South and in every city of the 
South which contain both Negro and white people. So 
far as has come to the attention of this court, no Board 
of Education has yet suggested that every child be re- 
quired to attend his ‘neighborhood school’ if the neigh- 
borhood school is a Negro school. Every board of ed- 
ucation has claimed the right to assign every white 
child to a school other than the neighborhood schocl 
under such circumstances.” 



39 

Judge Tuttle simply didn’t know about the plan now before 

this court, which was then before another panel of his 

court. 

In the plan before the court every pupil is required 

to attend the school in his or her zone with the exception 

that students desiring to take a course not offered at the 

school he or she attends but offered at another school are 

allowed to transfer to the latter school. That exception is 

nullified for all practical purposes by the requirement that 

identical curriculum be offered at all of the district’s ele- 

mentary, junior high and senior high schools. During the 

five years the plan has been in operation, not a single white 

pupil has taken advantage of that exception, nor been ex- 

cused from his or her initial assignment under the plan. 

In sum, the plan before the court has no transfer provi- 

sions such as that which led this court to equate the plan 

in Monroe v. Board of Commissioners of the City of Jack- 

son, Tennessee, 391 U.S. 450, 20 L. Ed. 2d 733, with a “free- 

dom-of-choice” plan, and no gimmick such as those re- 

ferred to by Judge Tuttle in Davis. 

Since the plan before the court is a bona fide attend- 

ance area plan, and uncontaminated with “freedom-of- 

* choice” provisions, it should, we submit, be judged by the 

decisions in those cases dealing with attendance area plans. 

In particular, it should be judged by what this court said 

in Brown, for what this court had in mind when deciding 

Brown was the organization and operation of school dis- 

tricts by the establishment of attendance areas, with single 

rather than dual lines, and with admissions determined by 

the residences of the pupils. 

Of course, primarily Brown called for the achievement 

of a system of determining admissions to the public schools 

on a nonracial basis. But it contemplated that such result 

would be obtained through revision of school districts and 



36 

attendance areas into compact units. For it directed the 

lower courts to consider, in determining whether a school 

district’s efforts were consistent with good faith compli- 

ance at the earliest possible date, 

“problems related to administration, arising from the 
physical condition of the school plant, the school trans- 
portation system, personnel, revision of school districts 
and attendance areas into compact units to achieve a 
system of determining admission to the public schools 
on a nonracial basis.” (Emphasis supplied). 

At the time Brown was decided, pupils everywhere 

were required to attend their neighborhood school. Hence 

it is certain that what Brown contemplated was the elim- 

ination of dual zone lines and the drawing of single zone 

lines around each school, with the new attendance areas 

to be the “compact units” which result from “normal geo- 

graphic school districting,” coupled with the requirement 

that every pupil be required to attend that school located 

in the zone of his residence. The resulting school systems 

would not be based on “color distinctions.” Districts so 

organized and operated would have a system of deter- 

mining admissions on a nonracial basis. 

What we have just said was better said in Moses v. 

Washington Parish School Board, 276 F. Supp. 834: 

“... One need not go back more than three or four 
years in time to find the school systems in the South 
operating, along with those in the rest of the nation, 
smoothly and efficiently. In the days before the im- 
pact of the Brown decision began to be felt, pupils were 
assigned to the school (corresponding, of course, to the 
color of the pupils’ skin) nearest their homes; once 
the school zones and maps had been drawn up, nothing 
remained to be done but to inform the community of 
the structure of the zone boundaries. Upon the rendi- 
tion of the Brown decision and the issuance of the ulti- 
matum to abolish the segregated dual zones in each 



37 

school district, it was natural for the citizenry to ex- 

pect to see the old coterminous dual zones abolished, 

and single independent zones drawn up around each 

school in each district.” 

After Brown was decided, most Southern school dis- 

tricts took the first step required by that decision, i.e., the 

elimination of their dual zone lines. But practically none 

of them took the second step required, i.e., the establish- 

ment of single zone lines around each school, so as to cre- 

ate new compact units as attendance centers. Instead, the 

idea which culminated in the “freedom-of-choice” plan ap- 

peared on the scene and was embraced as an excuse for not 

meeting the second requirement of Brown. 

Beyond peradventure, the “freedom-of-choice” 

method of operating schools was not that called for by 

Brown. Equally clear was the fact that “freedom:-of- 

choice” is a “haphazard” way of administering a school 

system. Singleton v. Jackson Municipal Separate School 

District, 355 F. 2d 865. “When attempted on a permanent 

basis,” according to Moses, “the system becomes so un- 

workable as to be ridiculous.” But its real defect, as 

viewed by the courts, was that it transferred the burden 

of achieving a system of admissions to public schools on a 

nonracial basis from the school boards, where the courts 

felt it belonged, to the parents of black pupils, and that 

the parents of black pupils, in the opinion of the courts, 

were so conditioned by their heritage that they were in- 

capable of exercising their choices in a free and unfettered 

manner. Hence the usefulness of “freedom-of-choice” 

plans had to be limited to the interim period required for 

the transition to a school system impartially zoned on a 

geographic and nondiscriminatory basis. In other words, 

school districts were simply given the privilege of op- 

erating under “freedom-of-choice” plans for a limited pe- 



38 

riod. They never had the right so to operate their schools. 
To quote from Moses again: 

“Obviously there is no constitutional ‘right’ for 
any student to attend the public school of his own 
choosing. But the extension of the privilege of choos- 
ing one’s school, far from being a ‘right’ of the 
students, is not even consistent with sound school 
administration.” 

The question presented in cases involving “freedom- 
of-choice” plans was whether, and on what conditions, the 
defendant district would be permitted to operate its schools 
by a method designed to avoid the zoning requirements 
of Brown. Such question is, of course, vastly different 
from the question of whether a district organized and op- 
erating under an attendance area plan has defined its 
attendance areas or zones on the nonracial basis called 
for by Brown. Thus cases such as Green v. County School 
Board of New Kent County, Va., 391 U.S. 430, 20 L. Ed. 2d 
716, and United States v. Jefferson County Board of Educa- 
tion, 372 F. 2d 836; 380 F. 2d 385, both “freedom-of- 
choice” cases, and cases of that ilk, have no bearing on the 
question of the constitutionality of the plan now before 
this court. 

In Green, according to this court— 

“The question for decision (was) whether, under 
all the circumstances here, respondent School Board’s 
adoption of a ‘freedom-of-choice’ plan which allows 
a pupil to choose his own public school constitutes 
adequate compliance with the Board’s responsibility 
‘to achieve a system of determining admissions to the 
public schools on a nonracial basis. . . >” 

That the answer to that question did not depend on 
facts which are present in zone cases such as this, is amply 
shown by this paragraph from the court’s opinion: 



39 

“There is no residential segregation in the county; 
persons of both races reside throughout. The school 
system has only two schools, the New Kent school on 
the east side of the county and the George W. Watkins 
school on the west side. . . . The School Board operates 
one white combined elementary and high school (New 
Kent). and one Negro combined elementary and high 
school (George W. Watkins). There are no attend- 
ance zones. Each school serves the entire county.” 

The first paragraph in Raney v. Board of Education, 

391 U.S. 443, 20 L. Ed. 2d 727, shows that it is subject 

to the same comments as were applied to Green: 

“This case presents the question of the adequacy 
of a ‘freedom-of-choice’ plan as compliance with Brown 
v. Board of Education, 349 U.S. 294, 99 L. Ed. 1083, 75 
S. Ct. 753 (Brown II), a question also considered today 
in Green v. County School Board of New Kent County, 
391 U.S. 430, 20 L. Ed. 2d 716, 88 S. Ct. 1689. The fac- 
tual setting is very similar to that in Green.” 

In Monroe v. Board of Commissioners, 391 U.S. 450, 

20 L. Ed. 2d 733, the question, according to the court, was 

similar to the question decided in Green and Raney in that 

the “free transfer” provision in the plan then before the 

court, which operated as a device to allow resegregation 

of the races to the extent desegregation would be achieved 

by geographically drawn zones, converted the plan into 

what was essentially a ‘“freedom-of-choice” plan, subject 

to the same tests as were applied in Green v. Raney. 

Jefferson, which the court below leaned on so heavily, 

was concerned solely with “freedom-of-choice” plans, a 

fact that is emphasized by the fact that this case was ar- 

gued in the court below in conjunction with the Jefferson 

cases and yet was not covered by the decision therein. 

In addition, it specifically stated that it was not concerned 

with cases such as this case. 



40 

“We leave the problem of de facto segregation in 
a unitary system to solution in appropriate cases by 
the appropriate courts.” 

And it further distinguished the “freedom-of-choice” cases 

it was dealing with and cases such as this case by holding 

that Sections 401, 407 and 410 of the Civil Rights Act of 

1964 do not apply to “freedom-of-choice” plans but do ap- 
ply to plans such as the plan now before this court. 

Because the question before the courts in “freedom- 

of-choice” cases was vastly different from the question 

which was before the court below in this case, and because 

the facts in “freedom-of-choice” cases bear no relationship 

to the facts in this case, we submit that the constitutional- 

ity of petitioners’ plan should not have been judged in the 

light of language found in ‘“freedom-of-choice” cases. 

CONCLUSION 

We submit that the decision below, for the several rea- 

sons heretofore assigned, should be reviewed by this Court. 

In particular, we submit that the fundamental question 

presented herein, i.e., whether the Fourteenth Amendment 

to the Constitution of the United States requires a school 

district, in order to bring about racial balance in its schools, 

to so gerrymander its zone lines as to include pupils of a 

certain race within an attendance area or zone who would 

not be included therein if its attendance area or zone lines 

were drawn in a reasonable, rational and nonracial fash- 

ion, should be decided by this Court. It is probably the 

most important question now troubling the people of this 

nation, especially now that so many school districts are 

being required to abandon “freedom-of-choice” and to cre- 

ate attendance areas or zones. 

A permanent and universal choice must be made be- 

tween the mutually exclusive goals of color-consciousness 



41 

and color-blindness. The policy of legal segregation, of 

“separate but equal” facilities for the races, was based on 

color-consciousness, on classification by race. Now that 

it has been outlawed by Brown, it must be permanently 

replaced by an enduring and universal principle of even- 

handed fairness. The principle which meets that require- 

ment, which squares with the correct interpretation of the 

Fourteenth Amendment to the Constitution of the United 

States, is that suggested by Mr. Justice Harlan, in his dis- 

sent in Plessy v. Ferguson, that “our Constitution is 

color-blind and neither knows nor tolerates classes among 

citizens.” 

Respectfully submitted, 

SEMMES LUCKETT 

121 Yazoo Avenue 

Clarksdale, Mississippi 38614 

Harpy Lott 

105 West Market Street 

Greenwood, Mississippi 38930 

Counsel for Petitioners 



42 

CERTIFICATE OF SERVICE 

The undersigned counsel for petitioners hereby certi- 

fies that true copies of the foregoing petition have been 

served on counsel for respondents, by depositing the same 

in a United States Post Office, with first class postage 

prepaid, addressed to Hon. Melvyn R. Leventhal, Hon. 

Reuben V. Anderson, and Hon. Fred L. Banks, Jr., at their 

post office address: 538 1/2 North Farish Street, Jackson, 

Mississippi, 39202, and Hon. Jack Greenberg, Hon. Jona- 

than Shapiro, and Hon. Norman Chachkin, at their post 

office address: Suite 2030, 10 Columbus Circle, New York, 

New York, 10019. 

Dated: August 27, 1969. 

Harpy LoTT 

Counsel for Petitioners 



APPENDIX 



IN THE 

United States Court of Appeals 
FOR THE FIFTH CIRCUIT 

No. 23255 

REBECCA E. HENRY, ET AL. 

Appellants, 

VERSUS 

THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL: DISTRICT, ET AL, 

Appellees. 

Appeal from the United States District Court for the 

Northern District of Mississippi. 

(March 6, 1969) 

Before WISDOM and THORNBERRY, Circuit Judges, 

and COX,* District Judge. 

WISDOM, Circuit Judge: As this case demonstrates, 

a school board’s adoption of a geographic zoning system 

instead of a “freedom of choice” system is not a guarantee 

of effective desegregation. “Geographic zoning, like any 

other attendance plan adopted by a school board in this 
Circuit, is acceptable only if it tends to disestablish rather 

*William Harold Cox, United States District Judge for the 
Southern District of Mississippi, sitting by designation. 



A2 

than reinforce the dual system of segregated schools.” 

United States v. Greenwood Municipal Separate School 

District, 5 Cir. 1983, ........ Fe2d.......... In Davis v. Board 

of School Commissioners of Mobile County, 5 Cir. 1968, 

393 F.2d 690, we recognized that in many instances geo- 

graphic zoning offers “administrative improvement and 

greater desegregation” but required the Board to make a 

new effort to draw zone lines “on a non-racial basis so 

that its plan would promote desegregation rather than per- 

petuate segregation”. 

Here the district court found that the school board 

acted in good faith. But good faith does not excuse a 

board’s non-compliance with its affirmative duty to liqui- 

date the dual system. Good faith is relevant only as a 

necessary ingredient of an acceptable desegregation plan. 

In 1964, under court order, the Clarksdale Municipal 

Separate School District of Mississippi redrew its attend- 

ance zones and adopted a geographic zoning system as 

the basis for desegregating its schools. In the fall of that 

year, not a single child in Clarksdale was enrolled in any 

school with members of the other race. Again, for the 

spring semester of the 1964-65 year, not a single child was 

enrolled in a school attended by children of the other race. 

When this case was tried in April 1965, 2800 Negro pupils 

attended the five “Negro” schools in Clarksdale and 2100 

white children attended white schools along with two Ne- 

gro girls who had transferred to the white high school to 

obtain a course, Latin, not available in the Negro high 

school. 

In Jefferson this Court considered freedom of choice 

plans in operation in Jackson, Biloxi, and Leake County, 

Mississippi, and in other parish and county school districts 

throughout this circuit. United States v. Jefferson County 



A3 

Board of Education, 5 Cir. 1966, 372 F.2d 847, aff’d en 

banc, 380 F.2d 385, cert. denied sub nom. Caddo Parish 

School Board v. United States, 1967, 389 U.S, 840, 88 S.Ct. 
72, 19 L.Ed.2d 103. Much of what we said in our opinion 

in that case applies to any school desegregation plan. We 

held that school officials have an “affirmative duty” to 

reorganize their schools into “an integrated, unitary school 

system in which there are no Negro schools and no white 

schools—just schools”. 380 F.2d at 389. We recognize 

that freedom-of-choice plans have ‘serious shortcomings” 

and suggested a detailed order to attempt to overcome 

some of the shortcomings. We pointed out, “The only 

school desegregation plan that meets constitutional stand- 

ards is one that works.” (Original emphasis.) 372 F.2d at 

847. Recently, the Supreme Court has underscored a 

school board’s “affirmative duty” today “to come forward 

with a plan that promises realistically to work, and prom- 

ises realistically to work now”. (Original emphasis.) Green 

v. County School Board of New Kent County, Virginia, 

1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. In Green 

the Court found that the freedom of choice plan used in 

New Kent County was ineffective and suggested alterna- 

tives, including zoning, that might bring about a “speedier 

and more effective conversion [of the dual system] to a 

unitary, nonracial school system”.! 

1. The court carefully stated, “Although the general ex- 
perience under ‘freedom of choice’ to date has been such as to in- 
dicate its ineffectiveness as a tool of desegregation, there may well 
be instances in which it can serve as an effective device. Where it 
offers real promise of aiding a desegregation program to effec- 
tuate conversion of a state-imposed dual system to a unitary, 
nonracial system there might be no objection to allowing such a 
device to prove itself in operation.” Green v. School Board of 
New Kent County, 391 U.S. at _____. In areas where residential 
segregation is substantial, freedom of choice or free transfer 
plans may aid desegregation. 



A4 

A geographic system of allocating students to schools 

is a pragmatic solution that avoids the “haphazard”? ele- 

ment in administering a freedom of choice plan based on 

the individual pupil’s considered or perhaps capricious se- 

lection of a school to attend. A district court in Louisi- 

ana recently observed: | 

If this Court must pick a method of assigning students 
to schools within a particular school district, barring 

very unusual circumstances, we could imagine no 
method more inappropriate, more unreasonable, more 

needlessly wasteful in every respect, than the so- 
called “free-choice” system. Moses v. Washington 
Parish School Board, E.D. La. 1968, ....... F.. SUDD:: cexssser 

Historically, a compulsory attendance zone system al- 

most invariably prevailed in the school districts in this 

circuit®—until Brown* ordered an end to school segrega- 

tion. But an attendance zone plan also may fail to work. 

When a particular plan does not succeed in converting a 

dual system into a unitary system, the school board must 

find ways for the plan to succeed. 

The plaintiffs contend that the attendance zone plan 

in Clarksdale extends promises it cannot fulfill. They 

allege also that the zones were drawn for the purpose and 

have had the effect of maintaining the racial identity of each 

formerly white and formerly Negro school. 

The plaintiffs raised additional issues in the district 

court. One concerned the speed of desegregation to take 

2. See Singleton v. Jackson Municipal Separate School Dis- 
trict, 5 Cir. 1966, 355 F.2d 865. 871. 

3. See Moses v. Washington Parish School Board, E.D. La. 
1967, ..... FSupp. ...... See also Meador, The Constitution and 
the Assignment of Pupils to Public Schools, 45 Va. L. Rev. 517 
(1959). 

4. Brown v. Board of Education (Brown I), 1954, 347 U.S. 
483, 74 S.Ct. 686, 98 L.Ed. 873; Brown II, 1955, 349 U.S. 294, 
75 S.Ct. 753, 99 L.Ed. 1083. 



AD 

place in Clarksdale. This issue, of course, is settled: The 

time is now. As Green puts it, “delays are no longer 

tolerable . . . [and] a plan that at this late date fails to 

provide meaningful assurance of prompt and effective dis- 

establishment of a dual system is also intolerable”. 391 

U.S. af oii Other issues in the district court involved 

the qualitative differences between “white” schools and 

“Negro” schools.” Jefferson tried to put an end to such 

differences by requiring integration “lock, stock, and bar- 

rel”: faculty and staff (part VIII), services, facilities, ex- 

tracurricular activities and programs (part V), and school 

equalization (part VI).® Similarly, Green requires “dis- 
mantling” of the state-imposed dual system “root and 

branch”. 

The issue on this appeal centers on the geographic 

zones established by the school board. The record clearly 

establishes that all pupils living in each zone are required 

to attend the school in that zone. As we recognized in 

Jefferson, however, such factors as residential patterns, 

the mushrooming of private schools, and a minority-to- 

majority transfer policy may bring about a school at- 

tended exclusively or almost exclusively by students of 

one race, although the zone originally etched out to sup- 

ply students for that school may have been racially mixed. 

5. The order of the district court corrected a number of 
deficiencies in the administration of schools by providing for 
equalization of curricula, teacher-salary scales, teacher-pupil 
ratios, and of per pupil expenditures for all schools of each level 
(elementary, junior high, and high schools). United States wv. 
Bessemer Board of Education, 5 Cir. 1968, _______ F2d ..... , [Nos. 
25809, 25810, 25811, May 1968]; Moses v. Washington Parish, 
ED La. 1063, .... F.Supp. ...... , n. 17; HEW Guidelines § 9. 
The court found merit in the appellants’ complaint that teachers 
were segregated but held that, because of teacher contracts hav- 
ing been signed for the 1965-66 year, faculty desegregation should 
be temporarily deferred. 

6. See especially United States v. Bessemer Board of Educa- 
tion, 5 Cir. 1968, . Fad... [Nos. 24809, 25810, 25811, June 
31]. 



AB 

Clarksdale is bisected from the northeast to the south- 

west by a main line of the Illinois Central Railroad track. 

Commercial and industrial establishments lie adjacent to 

both the northern and southern side of the railroad tracks, 

accentuating the division of the residential areas of the 

town. Elevated tracks on an embankment add to this di- 

vision. J 

Clarksdale is also bisected by the Sunflower River 

running north-south through the city. The southern half 

of the city is divided by another line of railroad tracks 

running north-south, which is built on the same grade 

as the surrounding lands. There are four underpasses 

and one grade crossing transversing the embanked railroad 

tracks. Only one of these underpasses is west of the Sun- 

flower River, and it is next to the river. The central business 

district is in the northern half of Clarksdale, and east of the 

Sunflower River. Two bridges span the river in both the 

northern and southern sections of the community. 

Traditionally, most Negro residents in the city have 

lived south of the Illinois Central tracks, while the great 

majority of the white residents have lived north of the 

tracks. Under the school board’s proposed attendance- 

zone plan, no school child will cross those tracks. The 

result was obvious from the beginning: the zoning could 

produce only token desegregation. 

The plaintiffs attempted to prove that the purpose 

behind the board’s drawing of the present zone lines is to 

perpetuate a dual, segregated school system in Clarksdale.” 

7. A zoning ordinance, enacted in July 1964 by the City of 
Clarksdale, de-annexed the property on East Second Street where 
the Negroes lived; the City and County purchased and demolished 
the homes located near the County Jail; and the City purchased 
and demolished the homes in Tuxedo Park, after annexing adjoin- 
ing territories containing white residences. The Board denies any 
knowledge of the City and County action, and city officials main- 
tain that the ordinance was not intended to affect school desegre- 
gation. 



AT 

They allege that certain pockets of Negro residences north 

of the tracks were purposefully removed through dean- 

nexation, purchase, or urban renewal by public author- 

ities so that no Negroes would reside in the attend- 
ance zones of the northern half of Clarksdale? We agree 

8. The Higgins High School, containing all the Negro pupils 
in grades 7-12 is located south of these tracks, while the high 
schools containing all the white public high school pupils are lo- 
cated north of the tracks. Four elementary schools, Oliver, Hall, 
Washington and Riverton, containing all the Negro elementary 
pupils are located south of the Illinois Central's tracks. Three of 
the four elementary schools serving white pupils are located north 
of the tracks. The fourth elementary school, Eliza Clark, is lo- 
cated in a white residential section south of the tracks. Based on 
Board statistics provided in March 1965, 865 Negro high school 
pupils, all but two of the total eligible to attend high school, live 
south of the Illinois tracks, attend Higgins, and if the Board has 
its way, will continue at Higgins. The effect of zoning one white 
and four Negro elementary schools located south of the Illinois 
Central tracks is that all Negroes will be assigned to schools tradi- 
tionally serving Negro pupils and the great majority of white pu- 
pils will be assigned to the white Eliza Clark School. The three 
remaining white elementary schools located north of the Illinois 
Central tracks serve only pupils living north of the tracks. Few 
if any of these students are Negroes. The Board estimated that 
in December 1964 only one Negro elementary school child was 
eligible by reason of residence to attend an elementary school 
now serving only white pupils. The district court approved the 
high school zones and the elementary zones located north of the 
Illinois Central tracks, adding requirements that all school fa- 
cilities be equalized and that students seeking courses not offered 
in their assigned schools be given the right to transfer to schools 
where such courses are offered. The order temporarily approved 
the school zones located south of the Illinois Central tracks, but 
required reconsideration of these zones by the board and a resub- 
mission of zones “predicated on efficient utilization of avaliable 
school facilities on a racially nondiscriminatory basis in accordance 
with sound education principles”. The order further provided that, 
notwithstanding the elementary subdistricts located north of the 
Illinois Central tracks had been approved, the Board was free to 
revise these boundaries if this was necessary to accommodate 
changes in the elementary attendance zones located south of the 
Illinois Central tracks. The order awarded costs to appellants 
and retained jurisdiction of the case for additional orders which 
might become necessary or appropriate. In October 1965 the 
Board submitted its revised plan for the elementary attendance 
zones located south of the Illinois Central tracks. The sole change 
recommended was that the zone line dividing the white Eliza Clark 
school from the Negro Myrtle Hall school be eradicated and that, 
effective in September 1966 all first and second grade pupils in 
the combined zone be assigned to the Eliza Clark school and all 



A8 

with the district court that evidence on this issue is irrele- 

vant, but not for the reasons supporting the district judge’s 

conclusion. It is irrelevant because the ultimate in- 

quiry is not whether the school board has found some 

rational basis for its action, but whether the board is ful- 

filling its duty to take affirmative steps, spelled out in 

Jefferson and fortified by Green, to find realistic meas- 

ures that will transform its formerly de jure dual segre- 

gated school system into a ‘“‘unitary, nonracial system of 

public education”. 

In Monroe v. Board of Commissioners of the City of 

Jackson, 1968, 391 U.S. 450, 88 S.Ct. 1701, 20 L.Ed.2d 733, 

a companion case to Green, the school board for the city 

of Jackson, Tennessee, established a plan involving at- 

tendance zones drawn according to certain established 

criteria and containing a free-transfer provision. The 

schools of Jackson retained their racial identity, with only 

token integration. The Supreme Court, focusing on the 

free-transfer aspect of the plan, observed: 

Plainly, the plan does not meet respondent’s “af- 
firmative duty to take whatever steps might be nec- 

essary to convert to a unitary system in which racial 
discrimination would be eliminated root and branch.” 

Green v. County School Board, supra, at p. 7. Only 
by dismantling the state-imposed dual system can 

that end be achieved. And manifestly, that end has 

pupils in grades three through six be assigned to the Myrtle Hall 
school. Appellants promptly filed objections to the revised plan, 
contending that there was no greater justification for retaining 
the zone lines of the other elementary schools and that, while the 
eradication of the line between the Myrtle Hall and Eliza Clark 
zones appeared to have advantages from an educational and de- 
segregational standpoint, the practical effect of assigning the 115 
white children from Eliza Clark with the approximate 415 Negro 
pupils from Myrtle Hall would be that white parents would refuse 
to send their children to the school and would move their resi- 
dences to areas north of the Illinois Central tracks where, as the 
evidence shows, Negroes could not obtain housing. 



A9 

not been achieved here, nor does the plan approved 

by the lower courts for the junior high schools prom- 
ise meaningful progress towards doing so. . . . That 
the Board has chosen to adopt a method achieving 
minimal disruption of the old pattern is evident from 

its long delay in making any effort whatsoever to 
desegregate. . . . 

The Court concluded that “free transfer”, like free- 

dom of choice, “can have no place in a desegrated plan 

. if it cannot be shown that such a plan will further 

rather than delay conversion to a unitary, nonracial, 
» nondiscriminatory school system. . . . 

In Clarksdale only two elementary schools are likely 

to be attended by children of both races. All other schools 

will be “white” and “Negro”, corresponding to their status 

before the present plan was adopted. It is evident then 

that the board here has not fulfilled its duty, spelled out 

in Green, “to come forward with a plan that promises 

realistically to work, and promises realistically to work 

now.” 

The basic criteria the school board used in this case 

were rational: (1) maximum utilization of school build- 

ings; (2) density of population; (3) proximity of pupils 

to schools; (4) natural boundaries; and (5) welfare of 

students. This fifth criterion requires consideration of at- 

tractive nuisances and health hazards. The presence of 

public transportation for school children would be rele- 

vant to the weight to be given the proximity criterion. 

By the same token, natural boundaries, such as the tax 

districts used in Moses v. Washington Parish, are not to 

be confused with “historical” boundaries, i.e. those that 

have historically separated white and Negro residential 



A10 

areas.” Finally, safety hazards may be applicable to stu- 

dents of various ages in differing degrees, and the history 

of community action vis-a-vis those hazards should be 

taken into consideration.’ No one doubts the relevance 

of such criteria. But a relationship otherwise rational 

may be insufficient in itself to meet constitutional stand- 

ards—if its effect is to freezé-in past discrimination. For 

example, a rational relationship exists between literacy 

or citizenship tests (fairly administered) and the right to 

vote. But we enjoin the use of such tests when they 

freeze into a voters’ registration system the effects of past 

discrimination. 

But there is a sixth basic criterion the Board did not 

use: promotion of desegregation. Jefferson, Stell, Davis, 

Braxton, Polk County, Carr, Bessemer, Adams, Graves 

and Greenwood, and other cases decided by this Court, 

9. The school board’s original plan would have contained an 
irregularly drawn boundary surrounding the only all-white resi- 
dential area south of the railroad tracks. This boundary would 
have zig-zagged and followed unpaved roads; in sum, it would have 
cut between the white and neighboring Negro residential areas. 
The district court disapproved this zone, for obvious reasons. 

10. For example, while the use as a boundary of the ele- 
vated railroad tracks in Clarksdale would appear reasonable, such 
appearance must be measured against the past history of school 
children crossing those tracks to go to a school for their particu- 
lar race. Having disregarded the tracks as impediments in order 
to maintain the racial purity of its schools, the school board can- 
not turn around and consider the tracks impenetrable when doing 
so will perpetuate that former racial purity. See United States v. 
Louisiana, E.D.La. 1963, 225 F. Supp. 353, aff'd 380 U.S. 145, 85 
S.Ct. 817, 13 L.Ed.2d 709; United States v. Mississippi, S.D., Miss. 
1964, 229 F.Supp. 925, rev’d 380 U.S. 128, 85 S.Ct. 808 13 L.Ed.2d 
71%. 

11. Board of Duval County v. Braxton, 5 Cir. 1968, 402 F.2d 
900; Stell v. Savannah-Chatham Board of Education, 5 Cir. 1967, 
387 F.2d 486; U. S. v. Board of Public Instruction of Polk County, 
Fla., 5 Cir. 1968, 395 F.2d 66; Montgomery Board of Education v. 
Carr, 5 Cir. 1968, 400 F.2d 1; United States v. Bessemer Board of 
Education, 5 Cir. 1968, 396 F.2d 44; Adams v. Mathews, 5 Cir. 1968, 

ERE Jy 1 ERY ; Graves v. Walton County Board of Education, 5 
Cir. 1968, _...... rsd . Jefferson, Davis, and Greenwood are 
cited in the body of this opinion. 



All 

and now Green v. County School Board of New Kent 

County, require school authorities to take affirmative ac- 

tion that will tend to eradicate all vestiges of the dual sys- 

tem. For example, given a choice of alternatives, a school 

board should draw zone lines, locate new schools, con- 

solidate schools, change feeder patterns, and resort to 

other measures that will reduce the effect of past patterns 

tending to maintain segregation (or token desegregation). 

“Where the Board is under compulsion to desegregate the 

schools (1st Brown case, 347 U.S. 483) we do not think 

that drawing zone lines in such a manner as to disturb 

the people as little as possible is a proper factor in rezon- 

ing the schools.” Northcross v. Board of Education of 

City of Memphis, 6 Cir. 1964, 333 F.2d 661. In Davis v. 

Board of School Commissioners of Mobile, Alabama, 5 Cir. 

1968, 393 F.2d 690 we considered it our primary concern 

“to see that attendance zones in the urban areas ... [are] 

devised so as to create a unitary racially nondiscrimina- 

tory system.” We held: 

We therefore accept the board’s policy decision in this 

regard but insist on a survey and new effort to draw 
zone lines on a nonracial basis so that the attendance- 
-area plan will promote desegregation rather than per- 
petuate segregation. It is intended that attendance 

areas be designed according to strictly objective cri- 
teria with the caveat that a conscious effort should 
be made to move boundary lines and change feeder 
patterns which tend to preserve segregation. ........ F.2d 

As stated by the U.S. Dept. of Health, Education, and 

Welfare, in its Policies on Elementary and Secondary 

School Compliance with Title VI of the Civil Rights Act 

of 1964 (March 1968): 

School systems are responsible for assuring that to 

the extent it is administratively feasible, the zone 



Al2 

boundaries do not perpetuate any vestiges of a dual 

school structure and that among the various attend- 
ance zone arrangements which are possible, it estab- 

lishes the one which best promotes elimination of its 
dual school structure. 

Bearing in mind the historical background of state- 

compelled educational segrepation, consideration of race 

may be necessary to provide an adequate remedy that will 

erase or minimize the effects of the dual school system. 

“The Court has not merely the power but the duty to ren- 

der a decree which will so far as possible, eliminate the 

discriminatory effects of the past as well as bar like dis- 

crimination in the future.” United States v. Louisiana, 

1965, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709. A 

school board’s zoning policy may appear to be neutral but 

in fact tend to retard desegregation because it binds pupils 

to custom-segregated neighborhoods. In this situation, the 

board’s failure to take corrective action amounts to the 

State’s giving official sanction to continued school segre- 

gation, contrary to the mandate of this Court and of the 

Supreme Court. Black nationalists and white racists 

notwithstanding, school integration is relevant: It is an 

educational objective as well as a constitutional impera- 

tive. 

At the time this case was tried Clarksdale still had 

segregated schools. A long time has elapsed since the 

12. “The impact [of segregation] is greater when it has the 
sanction of the law; for the policy of separating the races is usually 
interpreted as denoting the inferiority of the Negro group.” Brown 
I, 347 U.S. at 494. See Strauder v. Virginia, 1880, 100 U.S. 303, 
25 L.Ed. 664. See also United States v. School District 151 of 
Cook County, Illinois, 7 Cir. 1968, .. .. 2d ......, in which the 
Seventh Circuit distinguished Bell v. Gary, 7 Cir. 1963, 324 F.2d 
209, followed by Deal v. Cincinnati Board of Education, 6 Cir. 
1966, 369 F.2d 55 and Downs v. Board of Education, 10 Cir. 1964, 
336 F.2d 988 on the ground that they dealt with “innocently ar- 
rived at de facto segregation with ‘no intention or purpose’ to seg- 
regate Negro pupils from White”. The dissenting opinion here 
cites with approval Bell, Deal, and Downs. 



Al3 

trial, partly because this Court delayed rendering its de- 

cision in order to obtain further enlightenment from the 

Supreme Court on the subject of attendance zones plans 

as against freedom of choice plans. In view of the delay, 

we believe that the interests of justice require that the 

case be remanded for a hearing to determine the effective- 

ness of the Clarksdale plan in today’s factual setting and 

in the light of Green and other decisions of the Supreme 

Court and of this Court. The Board should bear in mind 

that it bears the burden of proving that its existing plan 

of desegregation is adequate now “to convert [the dual 

system] to a unitary system in which racial discrimina- 

tion would be eliminated root and branch”. If the plan 

does not promise “realistically to work now”, the Board 

bears the burden of taking corrective action. An effective 

plan should produce desegregated faculties, staff, facili- 

ties, transportation, and school activities (such as ath- 

letics) along with integrated student bodies. If there are 

still all-Negro schools, or only a small fraction of Negroes 

enrolled in white schools, or no substantial integration 

of faculties and school activities then, as a matter of law, 

the existing plan fails to meet constitutional standards as 

established in Green and its companion cases. The board 

should consider redrawing its attendance-zone boundaries, 

incorporating a majority-to-minority transfer provision in 

its plan,'® closing all-Negro schools, consolidating and pair- 

ing schools, rotating principals, and taking other measures 

to overcome the defects of the present system. As to its 

attendance zones, 

13. “If school officials in any district should find that their 

district still has segregated faculties and schools or only token in- 

tegration, their affirmative duty to take corrective action requires 
them to try an alternative to a freedom-of-choice plan, such as a 
geographic-attendance plan, a combination of the two, the Prince- 

ton Plan, or some other acceptable substitute, perhaps aided by 

an educational park.” Jefferson I, 372 F.2d at 895-896. 



Al4 

zone boundaries or feeder patterns designed or used 
to perpetuate or promote segregation shall be discon- 
tinued, and such zone lines shall be redrawn, wherever 
feasible, to maximize desegregation or eliminate seg- 
regation. No zone boundaries or feeder patterns which 
maintain what is essentially a segregated school struc- 
ture shall be used. Braxton v. Board of Public In- 
struction of Duval County, M.D.Fla. 1967, _.... F. 
Supp. iis 

Accordingly, we REMAND this case to the district 

court for entry of a judgment or further proceedings con- 

sistent with this opinion. 

COX, United States District Judge, Dissenting. 

This school case was argued before and presented to 

this Court on May 25, 1966, with the other school cases 

presented to and decided by the Court in what is gener- 

ally known as the Jefferson decision.! This case has been 

voluntarily held through the intervening time by the Court 

without any effort to dispose of it prior to this time. On 

August 10, 1965, Honorable Claude F. Clayton, as trial 

judge,” issued an opinion and entered a consequent order 

for a permanent injunction to end all aspects of segrega- 

tion of the public schools in Clarksdale, Mississippi. On 

December 18, 1965, another opinion was issued, and an 

order was entered for the final approval of school plans 

for the year 1965-1966. Notice of appeal to this Court was 

given by the plaintiffs “from this Court’s order entered 

December 14, 1965.” The entire record with transcripts 

and exhibits was designated by appellants, and it is pre- 

1. United States of America and Linda Stout, Appellants, v. 
Jefferson County Board of Education, et al., Appellees, (5CA) 372 
F.2d 836, 380 F.2d 385, cert. denied 88 S.Ct. 72. 

2. Honorable Claude F. Clayton was inducted on November 
24, 1967 to the bench of the United States Court of Appeals for the 
Fifth Circuit. 



Al5 

sumed that they complain of and appeal from the opin- 

ions and orders previously stated. 

The 1965-1966 school year has long since passed, and 

school laws have been updated and strengthened on sev- 

eral occasions in the interim. The people of Clarksdale have 

acquiesced in the mandate of the Supreme Court in its 

Brown decision and have displayed a good faith effort in 

this record to respect and comply with such requirements. 

The trial judge very carefully and very thoroughly and 

very skillfully assayed all of the facts and circumstances 

in this case in such school plan, now four years old, with 

full knowledge of the law and his judicial obligation in 

the connection. A completely voluntary advisory opinion 

by this Court under the circumstances would be and is 

unwarranted and improper. The trial judge not only 

knew the law, but knew facts and circumstances and drew 

inferences which unquestionably support his sound deci- 

sion and judgment in this case. Clarksdale has a very 

nearly equal Negro and white population, and also has a 

very large Chinese population and even a large Indian 

population in the area. These school zones which were 

set up in these school plans followed natural barriers such 

as a railroad on an elevated right-of-way -running diago- 

nally (northeast to southwest) through and bisecting the 

city; another railroad dividing the southern part of the 

city, and Sunflower River dividing the city on the west. 

An effort was made by appellants to convince the Court 

that some of these lines were gerrymandered, but the 

facts clearly show in this record that city streets were 

used as dividing lines for the school zones, and that in 

many cases white people lived on both sides of the street; 

and that when they found themselves in a particular school 

zone that the children were obliged to attend schools in 

that zone regardless of predominance of race. The highly 



Al6 

experienced and well informed trial judge carefully ex- 

amined these plans and approved them for the school year 

indicated and observed that the plaintiffs had nothing bet- 

ter to offer toward complete eradication of segregation 

from the attendance center involved. 

The opinions and orders, of the trial judge were care- 

fully drafted to comply with all of the requirements of 

Civil Rule 52(a) as to finding of facts and conclusions of 

law where injunctions are involved. There is not a case 

cited by counsel, or to be found in the majority opinion 

of the Court in this case, or that has been found on inde- 

pendent research to support any inference or conclusion 

to the effect that these school zones, as contained in these 

school plans, with these perfectly natural boundaries and 

barriers should not have been accepted and approved as they 

were at the time by the Court. The accusations of the plain- 

tiffs that these appellees had anything whatever to do with 

the acquisition by the county of some dilapidated buildings 

for use of the land as a public park,® and that these appel- 

lees had anything whatever to do with the municipality 

changing its boundary as having any effect upon these 

plans is completely without merit as the trial judge prop- 

erly held. There was simply nothing that the trial judge 

did in this case which is not abundantly supported as to 

its propriety by facts and circumstances in this record. 

It is simply not for this Court to usurp the function of the 

trial court in making its own findings and conclusions of 

the facts and circumstances in this case independently of 

the findings and conclusions of that able trial jurist. It 

3. This park along both sides of Sunflower River as a recre- 
ation project will cost one and one-third million dollars according 
to recent estimate. 

4. Yet Civil Rule 52 (a) provides: “Finding of facts shall not 
be set aside unless clearly erroneous and due regard shall be given 
to the opportunity of the trial court to judge of the credibility of 
the witnesses.” 



A1T 

must be remembered that the United States Court of Ap- 

peals is a creature of statute, and is vested with only statu- 

tory appellate jurisdiction as an appellate court, and not 

as a court of original jurisdiction as a trial court. 28 

U.S.C.A. 81282. 

In an injunction case, a plaintiff is entitled to such 

relief as may be justly due him at the time of the trial of 

the case, and not to a declaratory expression by this Court 

on a gratuitous basis, without regard to the facts and cir- 

cumstances existing at the particular time, which may or 

not justify a trial judge as knowledgeable of the law, and 

certainly more familiar with the facts, to reach an en- 

tirely different conclusion. Surely the Green case’ and 

the Monroe case® may be expected to receive careful anal- 

ysis and intelligent and proper consideration and appli- 

cation by the trial court when called upon to consider and 

apply its criteria; but there is surely nothing to be found 

in either of those cases which can be safely said to con- 

demn the plans which were approved in 1965 by the trial 

court for the 1965-1966 school year in this case. The facts 

as disclosed in this record simply do not support any such 

conclusion or inference to the contrary here.’ 

5. Charles C. Green v. County School Board of New Kent 
County, Virginia, 391 US 430, 88 S.Ct. 1689. 

6. Brenda K. Monroe v. Board of Commissioners of Jackson, 
Tennessee, 391 US 450, 88 S.Ct. 1700. 

7. The trial court, with all of the facts and circumstances 
clearly before it, and being impregnable to any criticism under the 
clearly erroneous rule, found as a fact on a full evidentiary hear- 
ing that the plans of this Clarksdale school were proper, and af- 
forded an education to each child at an attendance center as a 
part of a unitary system completely without regard to race and in 
compliance with the Brown cases. The Court further found that 
the natural barriers to these school zones constituted the lines of 
their boundaries; and that such boundaries were not gerryman- 
dered, and that the school authorities had done nothing to make 
these boundaries to these school zones work in any particular way. 
These school zones were designed and grew gradually through the 
years by reason of economic destiny of the community with noth- 



Al8 

There is no evidence in this record that anybody did 

anything in this school district to effect the vested rights 

of any colored child or to affect the resulting de facto seg- 

regation. Certainly nothing has been done under any 

law, or by force of any public authority or power to even 

contribute thereto. This Court is called upon to pass 

judgment on a plan for these Clarksdale schools now four 

years old. These plans will require and doubtless receive 

some necessary updating. The plan in suit surely does 

not aid or encourage or foster or preserve any aspect of 

segregation of the races under any sort of compulsion. An 

honest application of freedom of choice as a sound Ameri- 

can principle should certainly satisfy all vested rights of 

all persons. 

Under the Green decision, it is surely the non-dele- 

gable duty of the school board and nobody else to devise 

a sound workable school plan in compliance with existing 

decisional law. No court has yet said that there must be 

forced mixing of the races in any particular ratio contrary 

to the expressed wishes of students and parents of both 

races! There could not be much, either constitutional or 

American, in such a judicial fiat. When the Court finds 

as the trial court here found, that the board was acting in 

good faith and that its plan had real prospects for dis- 

mantling the state imposed dual system at the earliest 

practicable date, then the plan would meet all require- 

ments of the last announcement of the Supreme Court on 

this subject. 

ing else in view. The trial judge thus approved these zones where 
disparities in population as to race naturally grew and existed, 
and were accepted as de facto segregation. The facts and circum- 
stances in the Green and Monroe decisions do not condemn or 
even disapprove such conclusion under the facts here. The Green 
and Monroe principles may not be distorted to say that a given 
percent or ratio of children as to race must exist as a mathemati- 
cal equation under all circumstances to meet the requirements of 
law. 



Al9 

The principle of bona fide de facto segregation has 

been approved in four Circuits and the Supreme Court 

has never said aught to the contrary. In Rachel Lynn 

Bell v. School City of Gary, Indiana, (7CA) 324 F.2d 

209, cert. denied 377 US 924, it is said: “Plaintiffs are 

unable to point to any court decision which has laid 

down the principle which justifies their claim that there 

is an affirmative duty on the Gary school system to re- 

cast or realign school districts or areas for the purpose of 

mixing or blending Negroes and whites in a particular 

school.” In Renee Patrice Gilliam v. School Board of City 

of Hopewell, Virginia, (4CA) 345 F.2d 325 the Court held: 

“The constitution does not require the abandonment of 

neighborhood schools and the transportation of pupils from 

the area to another solely for the purpose of mixing the 

races in the schools.” That principle was followed in Deal 

v. Cincinnati Board of Education, (6CA) 369 F.2d 55, cert. 

denied 389 US 847; and in Downs v. Board of Education, 

(10CA) 336 F.2d 988, cert. denied 380 US 814. The same 

result was reached in Renee Patrice Gilliam v. School 

Board of City of Hopewell, Virginia, supra, where the 

opinion of the trial court was vacated without opinion 

on such question in 382 US 103, 86 S.Ct. 224, because of 

a lack of an evidentiary hearing in the trial court. The case 
at bar was accorded a full evidentiary hearing by an ex- 

perienced trial judge far more competent than any mem- 

ber of this panel to weigh and judge the problem from 

the cold pages of this record. 

The principle of freedom of choice was heralded in 

the Jefferson decisions which were companion cases to 

this case and were argued and presented to this Court at 

the same time. There is nothing wrong with that princi- 

ple as a means of uprooting every vestige of state enforced 

segregation. The trouble with the plan not working in 



A20 

most instances is occasioned by an insincere, less than 
halfhearted, effort on the part of some school authorities 
to see that such plan really worked. No devious devices 
should be allowed to be engrafted upon such a plan to 
keep it from being an honest expression of the free will 
and choice of the parent and child as to the school to be 
attended.® If these school plans in Clarksdale afforded a 
child a freedom of choice as to the desired attendance cen- 
ter (as does the Jefferson plan), such a plan would seem 
impervious to any just criticism. It is incumbent upon 
the board, as experienced school people, to devise a plan 
which will “work” within valid constitutional limits. It 
should not be necessary for the public to have any school 
closed, or any new school built just to accommodate a 
workable plan, but the board should have the power and 
authority to permit transfers from one zone to another 
within limits of existing facilities and without discrimi- 
nation as to race. These observations, in response to sug- 
gested changes in the plan contained in the majority 
opinion, are doubtless vulnerable to the same criticism as 
being dicta, if not obiter dicta. 

The suggestion of the majority that the board con- 
sider “incorporating a majority-to-minority transfer pro- 
vision in its plan” is with deference a distortion of the 

8. Significantly, as a declaration of Congressional policy in 
“Departments of Labor, and Health, Education and Welfare Ap- 
propriations Act 1969” (P.L. 90-557; 82 Stat. 969; Title IV - Gen- 
eral Provisions), it is said: “Sec. 409. No part of the funds: 
contained in this Act may be used to force busing of students, 
abolishment of any school, or to force any student attending any 
elementary or secondary school to attend a particular school 
against the choice of his or her parents or parent in order to 
overcome racial imbalance. Sec. 410. No part of the funds con- tained in this Act shall be used to force busing of students, the 
abolishment of any school or the attendance of students at a par- 
ticular school in order to overcome racial imbalance as a condi- 
tion precedent to obtaining Federal funds otherwise available to any State, school district, or school.” 



A21 

furtherest reaches of Brown and is completely untenable 

as a sound principle of constitutional law.’ The principles 

announced in Green are: “That it is incumbent upon the 

school board to establish that its proposed plan promises 

meaningful and immediate progress toward disestablish- 

ing state imposed segregation;”’ that “where the Court 

finds the board to be acting in good faith and the proposed 

plan to have real prospects for dismantling the state im- 

posed dual system at the earliest practicable date, then 

the plan may be said to provide effective relief.” These 

principles are simply not consonant with the newly de- 

vised principles found for the first time in the majority 

opinion here, 

The majority do not reverse or vacate the opinion and 

order of the trial court, but remand the case to the trial 

court and in such respects I concur. But insofar as the 

trial court is directed to enter a judgment consistent with 

and in conformity to the majority opinion, I very respect- 

fully dissent: First, because the majority opinion in this 

state of record is mere dicta, if not obiter dicta; second, 

because the majority opinion assumes that the law re- 

quires forced mixing in these Clarksdale schools in some 

undesignated ratio as to race to satisfy present require- 

ments as to desegregation of these schools as a matter of 

decisional law. 

Obviously, the delay of the majority in awaiting an 

announcement of any such principles from the Supreme 

Court of the United States to support their majority opin- 

9. An unchanged Fourteenth Amendment to the United 
States Constitution was not violated said the Chief Justice of the 
United States speaking for every member of the Court in 1927 
where it was complained that the state had a policy based on or- 
ganic law and statutes which excluded a colored child from at- 
tendance at a white school. Gong Lum v. Rice, 48 S.Ct. 91, 275 US 
78. In Brown, the Court decided the case as one of first impres- 
sion. 



A22 

ion was not fruitful or rewarding. Green said that in 
1968 a plan had to promise meaningful and immediate 
progress toward disestablishing state imposed segrega- 
tion. Judge Clayton thought and found as a fact in 1965 
that this plan did exactly that to his entire satisfaction 
and the plaintiffs then had nothing better to offer as he 
said after hearing all of the testimony and receiving all 
of the evidence in the case, and such finding may not be 
arbitrarily and capriciously brushed aside as clearly er- 
roneous when it is so abundantly supported, as it is, by 
the proof in this record. I would affirm and remand. 

/s/ Harold Cox 

United States 

District Judge 



A23 

United States Court of Appeals 
FOR THE FIFTH CIRCUIT 

OCTOBER TERM, 1965 

No. 23255 

D. C. Docket No. CA-DC-6428 

REBECCA E. HENRY, ET AL. 
Appellants, 

VERSUS 

THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL. 

Appellees. 

Appeal from the United States District Court for the 

Northern District of Mississippi. 

Before WISDOM and THORNBERRY, Circuit Judges, 

and COX,* District Judge. 

JUDGMENT 

(Filed June 30, 1969) 

This cause came on to be heard on the transcript of 

the record from the United States District Court for the 

Northern District of Mississippi, and was argued by coun- 

sel; 

*William Harold Cox, United States District Judge for the 
Southern District of Mississippi, sitting by designation. 



A24 

ON CONSIDERATION WHEREOF, It is now here 

ordered and adjudged by this Court that the judgment 

of the said District Court in this cause be, and the same 

is hereby, remanded to the said District Court for entry 

of a judgment or further proceedings consistent with the 

opinion of this Court. 

Costs of the appeal shall be taxed against the appel- 

lees. 

Cox, District Judge, dissenting. 

March 6, 1969 

Issued as Mandate: June 26, 1969. 



A25 

IN THE 

United States Court of Appeals 
FOR THE FIFTH CIRCUIT 

No. 23255 

REBECCA E. HENRY, ET AL, 

Appellants, 

VERSUS 

THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL., 

Appellees. 

Appeal from the United States District Court for the 

Northern District of Mississippi. 

ON PETITION FOR REHEARING AND PETITION 

FOR REHEARING EN BANC 

(June 26, 1969) 
Before WISDOM and THORNBERRY, Circuit Judges, 

and COX,* District Judge. 

PER CURIAM: 

The Petition for Rehearing is DENIED and no mem- 

ber of this panel nor Judge in regular active service on 

the Court having requested that the Court be polled on 

rehearing en banc, (Rule 35 Federal Rules of Appellate 

Procedure; Local Fifth Circuit Rule 12) the Petition for 

Rehearing En Banc is DENIED. 

*William Harold Cox, United States District Judge for the 
Southern District of Mississippi, sitting by designation. 



A26 

(Caption Omitted) 

ORDER OF THE DISTRICT COURT DATED 
JUNE 26, 1964 

Order for Preliminary Injunction 

This case is before the court on plaintiffs’ motion for 
a temporary injunction to require defendants to submit a 
plan for the desegregation of the public schools of the 
Clarksdale Municipal Separate School District, memoran- 
dum briefs of the parties and other materials furnished 
by the parties. It is conceded, and the court agrees, that 
it is the court’s duty, especially under cases heretofore 
decided by the Supreme Court, by the Court of Appeals 
for the Fifth Circuit and by other cases decided by other 
courts, some of which are listed following this order, to 
sustain said motion and issue an injunction for the afore- 
mentioned purposes. However, there are certain facts 
which must guide the court in shaping its preliminary 
order in this case at this time. They are: 

1. The Clarksdale Municipal Separate School Dis- 
trict, acting by and through its Board of Trustees as au- 
thorized by the laws of the State of Mississippi, before 
this suit was filed contracted with some of the other de- 
fendants (see Chapter 301, General Laws of Mississippi: 
1960, appearing as Sections 6328-71, 72, 73, 14, 75, 76 and 
76.5, Mississippi Code 1942 Recompiled) and this contract 
will expire, unless renewed with the end of the school 
year 1964-1965. That, as it seems, these statutes and this 
contract caused some confusion on the part of plaintiffs 
and caused said other defendants to be joined in this case. 
Apparently no school with which this suit is concerned 
is under the present jurisdiction of any of said other de- 
fendants, but only the Board of Trustees of said Clarksdale 



A27 

Municipal Separate School District has the sole and ex- 

clusive power to designate which of the children in said 

separate school district will attend the schools with which 

this case is presently concerned. No relief, at this time, 

against any defendant, other than the Clarksdale Munic- 

ipal School District and its Board of Trustees, would be 

proper. It would be improvident, however, to eliminate 

said other defendants at this time and they should be re- 

tained as defendants pending full development on the 

merits and further order of the court. 

2. The schools operated by the Clarksdale Munici- 

pal Separate School District are and have been operated 

on a racially segregated basis with white children only 

attending schools operated for them and only Negro chil- 

dren attending schools operated for them. This has been 

the situation for many years. There is no dispute in this 

regard. The parties concede that this is true. And, it is 

also true that this suit is the first formal court under- 

taking that has ever sought to make any change at all 

with such segregated practices in this school system. This 

suit was filed April 22, 1964. 

3. Negro children of public school age are in the 

overwhelming majority as compared to white children in 

the same category in said separate school district. 

4. All the schools now and heretofore available to 

and attended by Negro children in said school district, on 

recognized standards, are rated AA, while some of the 

schools now and heretofore available to and attended by 

white children of this district are rated A, which is a 

lower classification than AA. 

5. No protest with respect to the assignment of any 

Negro child to any school has ever been made to the Su- 

perintendent of Schools for said district or his representa- 



A28 

tives either by a child or a child’s parents, although all 
pupil assignments to schools are first made on a tempo- 
rary basis with the right of protest, or to request a change. 

6. Only a small part of the facts and circumstances 
which will be pertinent to ultimate disposition of this case 
are now known to the court from the files and records or 
otherwise, and, all such facts and circumstances cannot 
be fully known until a full hearing on the merits. 

7. In cases such as this, different decrees, different 
plans, different systems have been used from court to 
court, from district to district, from school to school, with 
each designed to fit the facts and circumstances of each 
particular situation on a fair and an equitable basis. And, 
it may be that the plan which will be initially approved 
or prescribed by this court will not be exactly like any 
plan used by any other court or in any other school, 
since the plan here must be fashioned to fit the prob- 
lems as they exist in the Clarksdale Municipal Separate 
School District. 

8. This court has the utmost confidence in the pres- 
ent members of the Board of Trustees of the Clarksdale 
Municipal School District and their counsel. It fully be- 
lieves that they will promptly, and in good faith, under- 
take to fully comply with this court’s orders in this case. 

9. This court also has great faith in the people of 
this school district, both white and Negro. It believes 
and expects that the leadership of both races will ap- 
proach solution of the many problems inherent in this 
developing situation with calmness and in friendship, 
good will and understanding. 

Having in mind all of the foregoing, and as to the 
defendants, Clarksdale Municipal Separate School District 



A29 

and the members of the Board of Trustees of said school 

district, their agents, servants and employees, and the 

successors in office of said trustees, those acting in con- 

cert with them or with any of them who shall receive 

notice of this order, it is, 

ORDERED: 

1. That they (the aforementioned) shall be and are 

hereby temporarily restrained and enjoined, in assigning 

pupils to the public schools now and hereafter operated 

by or under the supervision of said school district, from 

making any or all of such assignments solely because of 

the race of any or all of such pupils from and after such 

time as may be reasonably necessary to plan for and make 

arrangements for assignment of pupils and admission of 

pupils to such schools on a racially nondiscriminatory 

basis. 

2. They, said defendants, shall be and are hereby 

required to fully prepare a plan by which an immediate 

start will be made in the desegregation of such schools, 

with such plan to provide that desegregation is to progress 

with all deliberate speed until all grades in all schools 

shall be included in said plan, and to provide that a mini- 

mum of one grade in all schools shall come under said 

plan at the beginning of the school term in September 

1964. Said plan shall be submitted to this court for its 

consideration no later than July 30, 1964. A copy of said 

plan will be served on counsel for plaintiffs not later than 

five days before said date. 

3. Said defendants may submit to the court simul- 

taneously with, or promptly after, disapproval of the plan 

above required (if it is not approved) one or more alter- 

nate plans and may designate the order of preference as- 

signed by them to such plan or plans. 



A30 

4. A hearing will be held following submission of 

the plan (or plans) aforementioned at a time and place 

to be fixed by the court. 

It is further ordered that no relief at this time is 

granted against the other defendants but they are re- 

tained in the case pending a full hearing on the merits or 

until further order of this court. 

This the 26th day of June, 1964. 

CraupE F. CLAYTON, 

District Judge 



A3l 

MEMORANDUM OPINION OF DISTRICT COURT 

DATED AUGUST 10, 1965 

IN 

UNITED STATES DISTRICT COURT 

For THE NORTHERN DISTRICT OF MISSISSIPPI 

DELTA DIVISION 

No. DC6428 

ReBeccA E. HENRY, et al., 

Plaintiffs, 

Vi 

THE CLARKSDALE MUNICIPAL 

SEPARATE SCHOOL DISTRICT, et al., 

Defendants. 

This is a school desegregation suit which was filed in 

April 1964 by Negro residents of Clarksdale, Mississippi, 

seeking injunctive relief to end segregation by race in the 

schools of the Clarksdale Municipal Separate School Dis- 

trict. On June 26, 1964, this court ordered the Board of 

Trustees of this school system to submit a plan which 

would provide, as a minimum, for the desegregation of one 

grade in September 1964. Defendants were given the right 

to submit alternative plans. Within the time required, de- 

fendants filed plans in the alternative providing a selec- 

tion of four different modified stair-step time schedules 

for desegregation.! Each of these plans was bottomed on 

1. Commendably, Plan IV provided for complete desegre- 
gation of all grades within a total of five years, a faster rate 
than the six year over-all period allowed defendants by the Court 
of Appeals of this circuit in Armstrong v. Board of Education, 333 
F. 2d 47; Davis v. Board of School Commissioners, 333 F. 2d 55 
and Stell v. Savannah-Chatham County Board, 333 F. 2d 55, 
decided June 18, 1964. 



A32 

the establishment of neighborhood school zones with pu- 

pils living in a zone to be required without exception to 

attend the school for that zone when the plan had pro- 

gressed to the point where the grade for that child was 

included therein. Until that time arrived, each pupil was 

to continue attendance at the school to which the pupil 

was already assigned. Pupils newly come to the system 

would be assigned in the same way—zone of residence and 

school for the zone. Assertedly, the zones as proposed 

are based on (1) utilization of school buildings (2) prox- 

imity of pupils to schools to be attended (3) natural 

boundaries and (4) the welfare of all pupils. 

Plaintiffs promptly objected to the plan as lacking in 

specificity, speed and completeness. A hearing was held 

on August 19, 1964, on defendant’s proposals and plain- 

tiffs’ objections thereto, as a result of which the court 

ordered into effect portions of defendants’ Plans I and II 

to require the desegregation of grade one in September 

1964 and grade two in January 1965. This was a tenta- 

tive, interim procedure made necessary by the late filing 

of the complaint, the time necessary to formulate plans? 

and the imminence of the opening date for these schools 

in the fall of 1964. 

On January 5, 1965, alleging that no desegregation had 

resulted from the plan as ordered into effect and that be- 

cause of the nature of the plan, no desegregation is likely 

to result in the future, plaintiffs filed a motion for fur- 

ther injunctive relief. Following this a full hearing was 

had and the case is for disposition on briefs. 

All of the schools of the Clarksdale Municipal Sepa- 

rate School District were operated on a completely segre- 

2. During the short time available for planning under the 
first order, many of the professional staff of these schools were 
not available to participate therein since the 1963-1964 school 
session had ended with the usual summer scatteration of teachers. 



A33 

gated basis before the filing of this suit. Pupils and staffs 

were assigned to schools on a racial basis. Thus each 

school was either all Negro or all white. The physical 

plant now consists of two high schools? (each with a jun- 

ior high school in connection therewith or operated from 

the same buildings) and eight elementary schools. 

The controversy between plaintiffs and defendants with 

respect to the proposals made by defendants is focused on 

two principal areas, (1) the rate at which desegregation 

will progress, and (2) the suitability or validity of the 

attendance zones as contemplated. There are other issues 

which will be mentioned later. 

THE RATE AT WHICH DESEGREGATION MUST PROGRESS 

Following the latest teachings of the Court of Appeals 

for this circuit now available to this court as they appear 

in Singleton v. Jackson Municipal Separate School Dis- 

ric, in P24... (5th Cir. June 22, 1965), and giving 

careful consideration to the fact that the defendants have 

the first responsibility in this area, it appears reasonable 

and proper that desegregation of the Clarksdale schools, 

3. When this suit was filed, the Board of Trustees of the 
Clarksdale Municipal Separate School District shared jurisdiction 
with the Coahoma County School Board over a high school, owned 
by the county, and the physical plant of the Clarksdale high 
school-junior high school facilities. This was under a contract 
providing that white senior high school students from both the 
city and county would attend the school owned by the county 
and white junior high school pupils from the city and county 
would attend school at the facilities owned by Clarksdale. This 
agreement has expired and has not been renewed. 

4. One of the elementary school buildings was under contract 
and in the process of being constructed at the time of the hearing 
of August 19, 1964. It was estimated to be ready for occupancy 
at the beginning of the second half of that school year (1964-1965). 
This was one of the factors considered in directing that Plan I go 
into effect in September and Plan II in January 1965. 



A34 

in addition to grades one and two heretofore ordered de- 

segregated, must progress in accordance with the sched- 

ule following: 

School Year in Grades 
Which Desegregation. to be 

Is to Occur Desegregated 

1965-1966 : Third, Fourth and 
Twelfth 

1966-1967 Fifth, Sixth, Tenth 

and Eleventh 

1967-1968 Seventh, Eighth 

and Ninth 

In Singleton, the Court of Appeals cited the General 

Statement of Policies Under Title VI of the Civil Rights 

Act of 1964 Respecting Desegregation of Elementary and 

Secondary School, United States Office of Education, De- 
partment of Health, Education, and Welfare, April 1965, 
and, inter alia, said: 

We attach great weight to the standards estab- 
lished by the Office of Education. The judiciary has 
of course functions and duties distinct from those of 
the executive department, but in carrying out a na-. 
tional policy we have the same objective. There 
should be a close correlation, therefore, between the 
judiciary’s standards in enforcing the national policy 
requiring desegregation of public schools and the ex- 
ecutive department’s standards in administering this 
policy. Absent legal questions, the United States Of- 
fice of Education is better qualified than the courts 
and is the more appropriate federal body to weigh 
administrative difficulties inherent in school deseg- 
regation plans. If in some district courts judicial 
guides for approval of a school desegregation plan 
are more acceptable to the community or substan- 
tially less burdensome than H.E.W. guides, school 



A35 

boards may turn to the federal courts as a means of 
circumventing the HE.W. requirements for financial 
aid. Instead of a uniform policy relatively easy to 
administer, both the courts and the Office of Educa- 

tion would have to struggle with individual school 
systems on ad hoc basis. If judicial standards are 

lower, recalcitrant school boards in effect will re- 
ceive a premium for recalcitrance; the more the in- 

transigence, the bigger the bonus. 

The aforementioned progressive schedule for desegre- 

gation seems to meet the requirements of Singleton and 

defendants will be required to proceed in accordance there- 

with. See also Price, et al. v. The Denison Independent 

School District Board of Education, et al., ........ Fad iu... 

(5th Cir, July 2, 1965, No. 21632), 

{i i 

PROPOSED ATTENDANCE ZONES 

In reality defendants had but two choices when they 

were required to prepare and submit plans for the desegre- 

gation of the Clarksdale public school system—the “free- 

dom of choice” system of pupil assignment, or the “neigh- 

borhood” plan. They chose the latter, which they had the 

constitutional right to do. Plaintiffs do not object to the 

basic choice of methods (in fact, they recommend it) but, 

they vigorously attack the zone boundaries as proposed, 

saying in substance that they do not comport with stand- 

ards and practices generally recognized in professional ed- 

ucation circles,” and that by design they are calculated 

to perpetuate a segregated school system and thus to de- 

feat desegregation. 

5. Two experts testified for plaintiffs and were critical of 
the plans of defendants as to zone boundaries in some particulars. 
However, they were not in agreement as to what should be done. 
Their testimony will be dealt with later in this opinion. 



A36 

The cases which have approved “neighborhood” or at- 

tendance zone plans for assignment of pupils to schools 

within a public school system are legion. Lengthy quota- 

tions from them are not required and would unduly 

lengthen this opinion. In sum, these cases teach that at- 

tendance zones are constitutionally permissible if (1) all 

pupils living in each zone are required to attend the school 

in that zone, and (2) the boundaries of each zone are fairly 

determined on a color blind or non-racial basis. Under 

defendants’ proposals, all pupils in each zone will be re- 

quired to attend the school for that zone.” Thus, attention 

need be given here primarily to the justification advanced 

by defendants for the zone boundaries as proposed and the 

points in opposition thereto as advanced by plaintiffs. 

Careful consideration must and has been given to the 

physical facts as they exist in Clarksdale as they bear on 

the troublesome problems incident to the establishment of 

public school attendance zones. 

Clarksdale is situated on the flat Mississippi Delta. It 

has a population in excess of 20,000 and is cut almost in 

half by a railroad which runs through the community in a 

6. Some of these cases are: Bell v. School City of Gary, 
Indiana, 213 F. Supp. 819 (N.D. Ind. 1963), aff’d 324 F. 2d 209 
(7th Cir. 1963), cert. den., 377 U. S. 924 (1964); Northcross Vv. 
Board of Education of City of Memphis, 302 F. 2d 818 (6th Cir. 
1962), cert. den., 370 U.S. 944 (1962); Gilliam v. City of Hopewell, 
Va, =. F.2d _... (4th Cir. April 7, 1965); Downs Vv. Board 
of Education of Kansas City, 336 F. 2d 988 (10th Cir. 1964); 
Holland v. Board of Public Instruction, 258 F. 2d 730 (5th Cir. 
1958); Blakeney v. Fairfax County School Board, 231 F. Supp. 
1006 (E.D. Va. 1964); Lynch v. Kenston School District Board of 
Education, 229 F. Supp. 740 (N. D. Ohio 1964); Bush v. Orleans 
Parish School Board, 230 F. Supp. 509 (E.D. La. 1963); Monroe 
v. Board of Commissioners of City of Jackson, Tennessee, 221 F. 
Supp. 968 (W. D. Tenn. 1963); Webb v. Board of Education of 
City of Chicago, 223 F. Supp. 466 (N.D. Ill. 1963); Evans Vv. 
Buchanan, 207 F. Supp. 820 (D. Del. 1962); Henry v. Godsell, 
165 F. Supp. 87 (E.D. Mich. 1958); Brown v. Board of Education 
of Topeka, 139 F. Supp. 468 (D. Kan. 1955). 

7. Attendance will now, of course, begin in accordance with 
the desegregation schedule heretofore listed in this opinion. 



A337 

northeasterly-southwesterly direction. This railroad is 

built on an earth fill which elevates the tracks an appre- 

ciable height above the grade of the surrounding lands. 

Throughout a substantial portion of the length of this rail- 

road through this community, the area immediately ad- 

jacent thereto on both sides is occupied by commercial 

and industrial establishments. From municipal boundary 

to municipal boundary along these tracks is approximately 

314 miles. 

The northerly half of Clarksdale is bisected by the Sun- 

flower River. The southerly half is divided by another 

line of railroad which is built on approximately the same 

grade as the surrounding lands. It runs north and south. 

Vehicular and pedestrian traffic moving across the rail- 

road which is on the embankment is required to use one 

of four underpasses or the one crossing which is at the 

same grade as the railroad track. Only one of these under- 

passes is west of the Sunflower River and it is right against 

the river. To move from a residential area on one side of 

this railroad to a residential area, or to any one of the 

several school sites on the other side requires, in most 

instances, that the movement be made through either a 

commercial area, an industrial area, or both. 

The central business district of Clarksdale is in the 

northerly half and east of the Sunflower River. There 

are two bridges over the river in both the northerly and 

southerly sections of the community. 

High School and Junior High School Zones 

As aforementioned, there are two combination high 

school-junior high school plants in this system. One of 

these is in the northerly half of Clarksdale, while the 

other is in the southerly half. Defendants propose that 

the railroad tracks, at a height above ground as afore- 



A38 

mentioned, which run in a northeasterly-southwesterly di- 

rection shall be the boundary line for high school and 

junior high school pupil assignment purposes, between the 

northerly and southerly parts of the city. They contend 

that this is a natural boundary and that to use it for these 

purposes will be for the welfare of all the pupils of junior 

high school and high school ages and that it will eliminate 

pupil movement across the railroad tracks through com- 

mercial and industrial areas, and thus minimize dangers 

incident to traffic. 

Geographically it is without question that the school 

plant north of the railroad tracks is reasonably well sit- 

uated with respect to the residential areas in the northerly 

section of the school district. 

The school plant south of the railroad tracks is not as 

well located with respect to the residential areas in 

the southerly part of the district, but no other boundary 

line for high school-junior high school purposes which can 

be envisioned would afford a more efficient utilization of 

this school plant and the plant north of the railroad tracks 

from the standpoint of nearness of pupils to both schools. 

Plaintiffs complain that nearly all Negro pupils who 

are now of junior high school and high school ages and 

who will reach such ages in the future live in the southerly 

part of Clarksdale and would therefore be required to at- 

tend the school south of the railroad, which is the one 

formerly operated as a Negro school, and, that thus such 

a zone will result in the continuation of a segregated school 

at this site. This argument, however, overlooks the fact 

that there are also a substantial number of white pupils 

who live in this zone who will be required to attend the 

school south of the railroad at junior high school and high 

school levels, if they wish to avail themselves of the facili- 

ties of this public school system. 



A39 

Complaint is also made that practically no school age 

Negroes live in the northerly zone and that thus the junior 

high school-high school facility in this zone, which was 

and is all white, will continue to be all white. It is pos- 

sible that the use of this railroad as the dividing line be- 

tween these zones may result in this school remaining. 

from the pupil standpoint, all white. But, some Negro 

families have lived in the northerly zone. Perhaps some 

Negroes live there now. It must also be noted that there 

are no laws or ordinances to prevent Negroes living in 

this zone—in fact there could not be. 

The facts which give rise to these two of plaintiffs’ 

complaints arise from racial housing patterns which have 

developed over the years. They were not caused by the 

proposal to use this railroad as the boundary between 

these zones and they do not cause this railroad to be any 

less a proper boundary when all factors are considered. 

It appears to this court without question that the use 

of this raised railroad track as a zone boundary for junior 

high school and high school purposes is reasonable. It is a 

natural boundary. Its use will permit efficient utilization 

of both these school plants, will place a great majority of 

pupils in both zones closer to their school than would be 

the case if any other boundary proposed or considered 

were used and will eliminate for all pupils attending both 

schools the risks inherent in movement through busy com- 

mercial and industrial areas. 

i, 

PROPOSED ELEMENTARY ZONES 

Of the eight® elementary schools now operated by this 

school system, three are located north of the railroad on 

the fill and five are to its south. 

8. One of these was completed in time for use beginning in 
January 1965 (see footnote 4, supra). 



A40 

Defendants’ approach to the establishment of attend- 

ance zones for elementary schools was to divide the school 

district into four sub-districts, with three of the sub-dis- 

tricts being divided into attendance zones and the fourth 

to be itself an attendance zone. 

Two of these proposed sul-districts are in the afore- 

mentioned northerly part of the school district and two are 

in the area to the south of the elevated railroad. 

Defendants propose to use the Sunflower River as the 

boundary between the two sub-districts north and to use 

the north-south railroad (unelevated) as the boundary be- 

tween the two sub-districts south. 

These sub-districts may be utilitarian from the stand- 

point of school administration, but, frankly, with respect 

to the problems here presented by this case, sub-districts, 

as such, seem to have little significance. They do not 

appear to bear with any appreciable force with respect 

to the problems this court has in considering the proposed 

boundary lines for attendance zones, since the court must 

look at each attendance zone as it is proposed to be es- 

tablished for each school. With these thoughts in mind 

and with the disposition this court is making with respect 

to attendance zones, it is sufficient now to say that the 

sub-district boundary lines as proposed, both north and 

south are natural boundary lines easily defined and easy 

to be seen. Plaintiffs have made no objection to these 

proposed sub-district boundary lines directly. Hence, they 

will be approved. 

However, in the light of this court’s action with respect 

to proposed elementary school attendance zones south of 

the elevated railroad, defendants, if they care to do so, 

may revise the sub-district boundaries for that territory, 

but subject to approval by the court. 



Adl 

Attendance Zones—North 

The attendance zones proposed for the existing Heidel- 

berg, Kirkpatrick and Oakhurst Schools and for the school 

being constructed for the fourth proposed zone north of 

the elevated railroad® all seem to be reasonably well de- 

signed for efficient use of these school facilities, taking into 

account the proximity of residential areas within each 

zone'® to the school plant therein (or to be therein), the 

pupil capacity of these facilities, and the safety and wel- 

fare of the pupils residing therein. Even the educational 

experts who testified for plaintiffs could find little real 

fault with the plans for these zones. There was some 

criticism of some of these zones by these witnesses, but 

this was so only as these zones were related by them to 

the area south of the elevated railroad. In the light of 

this court’s views heretofore expressed with respect to 

the suitability of this railroad as a zone boundary for 

high school-junior high school purposes, such criticism has 

little weight.! These are good plans for these four zones. 

They should and will be approved. 

Attendance Zones—South 

The territory south of the railroad which is on the 

earth fill is divided into two “sub-districts” (E-1 and E-2). 

The boundary between these two sub-districts, as afore- 

mentioned, is the north-south railroad which is not on a 

fill. E-1 is east of the north-south railroad and E-2 is to 

the west. In the eastern sub-district (E-1), three schools 

are located, Oliver (E-1-A), Hall (E-1-B) and Clark (E- 

9. This proposed zone is also a “sub-district”. 

10. Probable increases in some of the residential areas by 
reason of new residential developments also have been considered. 

11. It would be even more undesirable for children of ele- 
mentary school ages to cross this railroad and the territory adja- 
Cont thereto than it would be for children in the higher grades to 
0 so. 



A42 

1-C). Two schools are in the western sub-district (E-2), 

Washington (E-2-A) and Riverton (E-2-B). 

The eastern sub-district territory approximates a 

rough triangle with the northern and western sides 

formed by the two railroads and the eastern by the school 

district boundary which zigzags somewhat like stair- 

steps. The Oliver School is in the southeastern part of 

this territory, while Clark and Hall are in the north- 

western section. Hall is somewhat further to the north 

than Clark and is east of Clark, although these two school 

buildings are quite close together. 

In the western sub-district (E-2), Washington School 

is located in the southeastern section, while Riverton is 

located in the west central section.'? 

From what has been said and from a careful examina- 

tion of the maps in evidence, it is apparent that a number 

of these school facilities are poorly located when con- 

sidered in the light of present needs and in the light of 

the many problems now presented incident to desegrega- 

tion of a school system whose physical plant was largely 

developed over a period of many years when all schools 

in the system were operated on a completely segregated 

basis. Moreover, it goes without saying that the wisdom 

of hindsight with respect to where schools should have 

been built has no value now. The “Monday morning 

quarterback” can contribute nothing here. The realities 

of the locations of these schools must be accepted and at- 

tendance zones devised which will best meet the needs of 

12. Riverton School is a newly constructed facility which 
was first used beginning with the second semester of the school 
year 1964-1965. (See footnote 4, supra.) It is situated at the 
north-western edge of the built up residential areas in this part 
of the school district. It is said that this site was selected for two 
principal reasons—the high cost of land at a more suitable loca- 
tion and prospective future residential development and growth. 



A43 

this school system and of all of the pupils who are en- 

titled to attend school in the facilities operated by this 

school district. The attendance zones proposed by defend- 

ants must be evaluated objectively to determine whether 

they will afford efficient use of the existing school plant, 

if they have taken into account proximity of prospective 

pupils to the school to which these zones would require 

they be assigned, to ascertain if the safety and welfare 

of the pupils will be reasonably well served and to resolve 

what is a most important issue in this case—whether 

these zones have been proposed on a completely racially 

non-discriminatory basis. 

As has been pointed out, sub-districts, as such, have 

little value here. This court must look to the proposed 

attendance zones. 

Riverton (E-2-B) 

This attendance zone as proposed has as its northerly 

boundary the elevated railroad, its southerly boundary 

the boundary of the school district and its easterly bound- 

ary the Sunflower River north to Fifth Street.” Then the 

boundary runs east along Fifth Street to the north-south 

railroad and then along this railroad to the elevated rail- 

road. The school building is in the approximate geo- 

graphical center of the proposed zone, but at the western 

edge of the built up area. 

This new building'* operated at near capacity during 

the last semester of the 1964-1965 school year.'® 

13. There is a modern bridge across the river on Fourth 
Street, the midline of this area. 

14. This building has 12 rooms with a maximum rated pupil 
capacity, according to the rating system commonly used by ac- 
crediting (rating) agencies in Mississippi, of 420. All 12 rooms 
were in use during the school year 1964-1965. 

15. One of plaintiffs’ experts believed it to be crowded. The 
superintendent of these schools said this witness had misinterpreted 
data and that the school was not crowded. 



A44 

Accepting, as this court has done, that the elevated 
railroad is a valid, suitable zone boundary, criticism of 
this proposed zone by plaintiffs’ experts was minimal.!® 

Taking the physical facts as they are (location and 
capacity of school building, residential areas in the Zone, 
routes of travel) and applying the mentioned criteria 
these proposed boundaries seem to establish a valid at- 
tendance zone," with the possible exception of the ter- 
ritory east of the Sunflower River and north of Fifth 
Street. The center of the residential area within that 
rectangle seems about as near to the Washington School 
(E-2-A)'® as to the Riverton School, and much nearer 
to Clark School (E-1-C).» 

Oliver (E-1-A) 

This proposed attendance zone has as its easterly and 
southern boundaries the boundary lines of the school dis- 
trict.** From the western end of the south boundary the 
line runs due north and then northwesterly along Florida 

16. One of them would have had some pupils from some- 
where in this district cross the railroad and attend school at Oak- 
hurst which he claimed had space available. But, apparently he 
misinterpreted data and did not appreciate fully the situation with 
respect to the Oakhurst zone 

17. It is crossed by United States Highway No. 61, but ap- 
parently all residential areas now in existence are on the same 
side of the highway as the school building. 

18. If this section is added to the Washington School zone 
(E-2-A), the pupils living there would not have to cross the river 
and would travel about the same distance. They would have to 
cross United States Highway No. 61. 

19. If this area is made a part of the Clark School zone (E-1-C) the pupils would be much closer but would cross the 
north-south railroad to go to school. Since it is not elevated, and 
apparently has reasonably safe street crossings and since adjoin- 
ing territory at this section is not heavily commercialized or in- 
dustrialized, it is not as great a barrier or hazard as the elevated 
railroad. 

20. The southern boundary extends into the district for about 
150 feet along the south line of Wissler Street. 



A45 

Street to the elevated railroad which forms the northerly 

boundary. The school building® is in the southeastern 

portion of this territory. Florida Street is prominent and 

improved. Thus all proposed boundaries are clearly de- 

fined and easy to identify. But, there are several ap- 

parently bad features with respect to this proposed zone. 

The school building is not at all well located with refer- 

ence to all of the territory. Pupils in the extreme north- 

western area are approximately 800 to 800 yards from 

the school and only 100 to 200 yards from Hall School 

(E-1-B). Pupils living in the extreme northeasterly area 

are more than 1000 yards from the school, but they would 

be about 700 yards from Hall School. United States High- 

way No. 61 runs through this territory in a southwesterly- 

northeasterly direction. About one-third of the territory 

is south and the rest north of this highway. The highway 

is an obstacle and a hazard to pupil traffic across it. It 

might be feasible to use this highway as the northerly 

boundary of the zone for Oliver School and extend the 

zone westward along this highway to United States 

Highway No. 49 (which runs in a northwesterly-south- 

easterly direction) and to the south along that highway to 

the school district boundary. 

Hall (E-1-B) 

The zone proposed for this school has as its northerly 

boundary the elevated railroad, for its easterly boundary 

Florida Street from this railroad to Wissler Street then 

the school district boundary. For its southerly boundary 

it has the district line. For its westerly boundary it has 

21. There are 19 rooms in this plant but 4 of them are al- 
located to Higgins (high school-junior high school). Of the 15 
available for elementary school purposes, only 14 are used. These 
14 rooms have a maximum rated capacity of 490. (See footnote 
14, supra.) The 15 rooms would have a maximum rated capacity 
o a Nineteen rooms would have a maximum rated capacity of 



A46 

the unelevated railroad from the southerly boundary to 
United States Highway No. 61, the highway to Mississippi 
Street, that street to Seventh Street. It then runs a short 
distance in an easterly direction along that street, then 
northeasterly along a subdivision boundary (which is not 
even a street or an alley) which would be difficult for a 
layman to identify on the ground, to Wilson Avenue 
and then along this avenue to the elevated railroad. The 
school plant is located in the extreme north central area 
of this elongated zone. It is adjacent to the elevated rail- 
road. 

The evidence shows that the section of Wilson Avenue 
which forms a part of this boundary is improved for only 
a short distance, the rest is unimproved and some consists 
only of “tracks in the grass.” Further, the evidence 
strongly indicates, if it does not conclusively show, that 
to the west of Wilson Avenue and the subdivision bound- 
ary the population is white and to the east the population 
is Negro. 

It is fully recognized that the proximity of this 
school—Hall—to Clark School presents a built in problem 
for defendants. These buildings probably were well lo- 
cated when built years ago, for the operation of a racially 
segregated school system. No reasonable person would 
contend that they are well located for a desegregated 
system. 

From the map it appears that more than fifty blocks 
of what appears to be residential area is included in this 
proposed zone, with the rather tortured and indistinct 
section of boundary aforementioned, while it thus also 

22. This plant consists of three units. One unit of 4 rooms 
is not in use. In the two units in use there are 16 rooms, but only 
14 are in use. These 14 have a maximum rated pupil capacity of 
490. The 16 rooms would have a maximum rated capacity of 560. 
All 20 rooms would have a maximum rated capacity of 700. 



A4T 

appears that less than half that number of blocks of ap- 

parent residential area are included in the compact regu- 

lar shaped zone proposed for Clark School.?® Considera- 

tion must also be given to the fact that children living in 

many sections of this proposed zone would be closer to 

other schools, notably Clark School for some in the 

north-western area? and Washington or Oliver Schools for 

all in the southern area.? 

It must also be noted that this proposed zone is bi- 

sected by the aforementioned United States Highway 

No. 61.%¢ 

It seems probable that an attendance zone for this 

school could be devised on a more efficient basis. 

Washington (E-2-A) 

The territory proposed for the attendance zone for this 

school is—in crude form—shaped like a boot. Its southerly 

boundary is the school district line which forms the heel and 

sole of the boot. Its westerly boundary, the Sunflower 

River, forms the toe, foot and upper front of the boot. 

Fifth Street from the river easterly to the unelevated rail- 

road forms the top of the boot and is the northerly bound- 

ary. From Fifth Street southeasterly to the heel of the boot 

the unelevated railroad forms the boundary. All of these 

boundaries are clear and easily identifiable. 

23. It must also be noted here that a substantial number of 
pupils who reside in proposed zone E-3-A will attend Clark School 
until the new building for that zone is completed and ready for 
use. 

24. Some of these would be within about one block of Clark 
as compared to about six to Hall. 

25. To attend Washington for those in this area would re- 
quire that they cross the unelevated railroad. (See footnote 17, 
supra.) 

26. See discussion of Oliver (E-1-A), supra. 



A48 

The school plant is just north of the arch of the boot.’ 
It is not well located for most of the area in this zone. 
There appear to be about twelve to fourteen blocks of res- 
idential area extending to the north of the school. Just to 
the north of this area there seems to be an industrial area 
entirely across the zone, averaging approximately 900 yards 
north and south. To the north of this industrial area, in 
the upper one-half of the boot leg or top, there appear to 
be between fifteen to twenty blocks of residential area. 
Approximately four to five of these blocks are south of 
United States Highway No. 61, with the others being to the 
north. This highway cuts across this zone in a northeast- 
erly-southwesterly direction. As has been mentioned, this 
highway is an obstacle and a hazard to pupil traffic across 
it. 

Most of the northerly residential area in this zone is 
as close to other schools (Riverton and Clark) as to Wash- 

ington. Much of it is closer to Clark. 

It may well be that to use this school —Washington— 
to its capacity will require that this proposed attendance 
zone be used for it. However, if changes are made in the 
zones proposed for other schools south of the elevated rail- 
road, consideration probably should be given to a redesign 

of the zone for this school. One apparent possibility would 

be to add to this zone the territory bounded by United 

States Highway No. 49, the unelevated railroad, United 

States Highway No. 61 and the school boundary, deleting 

the area within the zone as now proposed north of United: 

States Highway No. 61. This, of course, may not be feasible 

because of pupil population within these areas and the 

places of residence of these children. 

27. There are 16 rooms available in this plant, but only 15 
are in use. The 15 rooms have a maximum rated pupil capacity 
of 525. All 16 rooms would have a maximum rated capacity of 
560. (See footnote 14, supra.) 



A49 

Clark (E-1-C) 

The proposed zone for this school? is bounded on the 

north by the elevated railroad, on the west by the unele- 

vated railroad, on the south by Highway No. 61 and on the 

east by the tortured line discussed as the northwesterly 

boundary proposed for Hall (E-1-B), supra. All of these 

boundaries are easy to locate and identify and are suitable, 

except the easterly line north of Seventh Street. It is not 

suggested that the sound capacity of this school be ignored 

or that its physical condition®® not be considered, or that de- 

fendants must extend the zone for it in any particular di- 

rection, or that the temporary non-zone pupil load be 

ignored (see footnote 23, supra). But, considering the de- 

fects of other zones as aforementioned, this zone as now 

proposed cannot and will not be approved for permanent use 

for this school. 

Summary—South Zones 

From what has been said, it is apparent that this court 

is not now convinced that all or any of the proposed at- 

tendance zones south of the elevated railroad meet the 

criteria thus far discussed. It may well be that the lack 

of educational expertise on its part causes this uncertainty. 

Facts and figures in the record here, which are now obscure 

to this court, may well demonstrate with certainty that 

28. For the area within this proposed zone the school plant 
is reasonably well located. It is within approximately one block 
of the geographical center of the zone. Clark has 7 classrooms 
but only 6 are in use. The 6 in use have a maximum rated pupil 
capacity of 210. All 7 rooms would have a maximum rated ca- 
pacity of 245. 

29. The unelevated railroad is a “suitable” boundary, but is 
not such an obstacle as would make its use as a boundary manda- 
tory. (See footnote 17, supra.) 

30. The evidence shows without dispute that this school plant 
is in a poor state of repair and that defendants are seriously con- 
cerned as to whether it can safely be used much longer. 



A50 

these proposed zones are, or are not, constitutionally ac- 

ceptable. But, at this time, in good judicial conscience, these 

proposals can neither be approved nor disapproved, either 

in whole or in part. The obvious interrelation of all these 

zones forbids approval of less than all. This is so to a large 

extent, also, because the probabilities are that this court’s 

final action in this regard may well be action which will 

vitally affect the educational rights and the welfare of the 

children of this school district for years to come. Schools 

in this system are to open in approximately a month. Reg- 

istration for the oncoming session will occur before that. 

Time, then, is extremely important. The school children 

of this district, plaintiffs and, assuredly, defendants need 

now to know what will and will not be done for the opening 

of schools for the school year 1965-1966. Moreover, as a 

practical matter, it would be impossible for defendants, up- 

on whom the first and basic responsibility rests, to recon- 

sider adequately, and revise if necessary, their plans for 

these attendance zones, in time for them to be submitted 

to and properly considered on an adversary basis by this 

court, and disposed of in time to be effective by the sched- 

uled time for registration. 

In these circumstances, in an effort to prevent anxiety 

and confusion on the part of all interested parties, and dis- 

ruption of this school system, the attendance zones proposed 

for all elementary schools south of the elevated railroad 

will be approved for use, but only for the first semester of 

the oncoming school session for the school year 1965-1966, 

and defendants will be required to restudy and reconsider 

their proposals and to resubmit their plans for the attend- 

ance zoning for elementary school purposes of all of the 

school district south of the elevated railroad. 



Ab51 

Iv. 

OTHER ISSUES 

Plaintiffs complain of differences as between schools 

which have been? all white—pupils and staffs—and those 

which have been all Negro, which have existed with re- 

spect to teacher salary scales, curricula,®® teacher-pupil 

ratios and per pupil expenditures of public funds. On the 

face of the figures furnished by defendants, most of these 

complaints are justified. Some of these differences have 

already been corrected (i. e., all teachers—Negro and 

white—are to be paid on exactly the same basis begin- 

ning with the 1965-1966 school session). All pupils who 

are entitled to attend school in this public school system 

have the undoubted right to benefits equal to those afforded 

to any other pupil of the same age or grade. Thus, all such 

differences as now exist will be required to be eliminated. 

This court’s orders, inter alia, will provide: 

A. That curricula at all schools of each type* be 
identical. 

B. That if defendants wish to offer any course at 
one junior high school or at one high school and not 
at the other, all pupils at the other such school will be 

31. No mixing of the races in any school resulted from the 
desegregation under orders of this court of grades one and two 
during the school year 1964-1965. An appreciable number of 
white pupils did not attend any school in this system during that 
time, where the only school available had Negro pupils. Thus all 
schools and all grades continued to be segregated and plaintiffs 
consistently refer to “Negro” and “white” schools. 

32. This complaint was with respect to differences thought 
to exist by one of plaintiffs’ experts between courses available to 
the high school south of the elevated railroad and the high school 
north of the railroad. In response to questions from the bench, 
defendants’ superintendent said that this was not the case and 
that any course available at one school was available on the same 
basis as at the other. 

33. Type of school, of course, means elementary, junior high 
and high schools. 



Ab52 

so notified and any pupil at such other school will have 
the right to transfer if so desired to the school where 
such course is to be offered. 

C. Teacher-pupil ratios must be maintained at 
substantially the same level for each grade taught at 
each school of each type. 

D. Per pupil expenditures of public funds must be 
maintained at substantially the same level for all 
schools of each type, except for such differences as 
may reasonably result from: 

1) Variations in age and physical condition of 
school buildings and facilities. 

2) Variations in types of licenses held by 
members of the teaching staff assigned and salaries 
paid. 

3) Greater expenditures which may be reason- 
ably required to bring any library, laboratory, shop, 
home economics equipment, visual aids equipment or 
supplies, or other such equipment or supplies®** to the 
level of all other similar equipment or supplies at all 
schools of each type. 

4) Greater expenditures which may be reason- 
ably required to bring comfort and recreational facil- 
ities, equipment and supplies,® to the level of all 

other similar facilities, equipment and supplies, at all 
schools of each type. 

Any other significant variation from standards of equal 

opportunity and equal treatment for all pupils of each age 

or grade grouping must and will be eliminated by orders of 

this court, where shown to exist. 

Plaintiffs, with merit, also complain that the staff at 

each school is now on a completely segregated basis—that 

~ 34. Some of these might better be classed as capital invest- 
ments rather than operating expenses, but all of them are some-- 
times classed generally as expenses. Hence all are included here. 



Ab53 

is, that they are all Negro or all white in every school in 
the system. 

Employment contracts for principals and teachers in 
all public schools of Mississippi extend, at the maximum, 
for three years. The Board of Trustees, in its discretion, 
may elect to enter into contracts for the maximum period, 
or for lesser periods of one or two years. Mississippi Code 
Annotated 1942 (Recompiled) §6282-17. There is no ten- 
ure except for the contractual period. The defendant 
school board has apparently elected to enter into contracts 
for the minimum period, so that principals and teachers 
are currently employed on one-year contracts. Contracts 
for the 1965-1966 school year have already been executed. 

Each individual teacher is employed for a specific pur- 
pose at a specific school. The employment is accomplished 
upon recommendation of the principal of the particular 
school to the superintendent, the recommendation of the 
superintendent to the Board of Trustees, and the acceptance 
of such recommendation by the Board, followed by author- 
ization for the execution of the contract. Mississippi Code 
Annotated 1942 (Recompiled) §§6282-05 to 6282-09. Thus, 
it is at once apparent that it would be improvident at this 
time to order any staff desegregation for the oncoming 
school year. To do so would cause unwarranted confusion, 
and would, as this court finds, probably result in a general 
lowering of the quality of education in this school system 
for that school year. For example, such a course of action 
would result in many teachers working under a principal 
who had not recommended that teacher’s employment and 
at a school not considered by the teacher or the school 
authorities at the time when application was made to 
teach during the school year 1965-1966. It could result in 
some teachers being required to teach subjects outside the 
teacher’s field, i.e, a history major teaching mathematics 



A54 

or a science major teaching English. In effect, it would 

be a drastic rewriting of the contract for each teacher, and, 

in fact it would cause dissatisfaction and a lowering of staff 

morale generally. It could cause resignations by some 

teachers, which would, if such occurred, create the now un- 

necessary and serious problems of last minute efforts to 

find qualified replacement teachers.®® 

Hence, for these reasons, resolution of the problem of 

faculty desegregation will be deferred for the time being. 

V. 

EXPERT WITNESSES 

Three witnesses, each with special learning, knowl- 

edge and experience in public education, testified on the 

last hearing. Two of these were offered by plaintiffs. The 

other—the superintendent of this school system—was the 

principal witness for defendant. This last witness also 

testified extensively at the hearing held on August 19, 1964. 

For years he has lived and is now living with this school 

system. He is the principal architect of the zoning plans 

proposed by defendants and is an articulate, persuasive ad- 

vocate for their total acceptance. He consistently planned 

and is now planning ahead to meet the needs of this school 

system which is rated and recognized as one of the out- 

standing public school systems in Mississippi. There can 

be no doubt about his devotion to the cause of public educa- 

tion and to the education of all children—white and 

Negro—who attend school at any Clarksdale public school. 

His lifetime of actual experience in this field demonstrates 

his competence. His intimate knowledge of the public 

school situation at Clarksdale is obvious. 

35. It is a matter of common knowledge that qualified teach- 
ers are in short supply in Mississippi. Clarksdale now has an ex- 
ceptionally well qualified professional staff. 



AbB5 

The other two experts are accepted as being educa- 

tionally and theoretically well qualified. The practical ex- 

perience of neither, in the actual operation of a school sys- 

tem (such as that of the Clarksdale Municipal Separate 

School District) approaches that of the superintendent. 

Their knowledge of this school system came from data fur- 

nished by defendants in response to interrogatories? and 

from personal observations made during only a few hours 

visit to this community. 

Additionally, it was obvious that each of these wit- 

nesses is committed to the philosophy that mixing of Ne- 

gro and white pupils in classrooms is desirable and that 

such a system produces a better education for all pupils. 

This may well be so, but the devotion of these two wit- 

nesses to this philosophy made it difficult for them to ex- 

press valid opinions with respect to the legal problems for 

solution by this court in this litigation. Basically, the solu- 

tion of those legal problems rests on the answer to the 

question, “are pupils dealt with as individuals without re- 

gard to race?”. The legal question is not, “are Negro and 

white pupils mixed in the classrooms?”. 

It is the legal responsibility of defendants to operate 

a racially non-discriminatory, desegregated school system, 

and the obligation of this court to see that they do. It is 

neither the legal responsibility of defendants, nor the ob- 

ligation of this court to require that Negro and white pupils 

be mixed in the classroom. This is the present legal dis- 

tinction between integration and desegregation. The lan- 

guage of the court in Avery v. Wichita Falls Independent 

36. Apparently some of the terminology used by defendants 
(which was that used by public schools in Mississippi, by the state 
rating agencies, and by school rating agencies in this area) was 
different from that with which these witnesses were familiar, 
causing some confusion and misinterpretation on their part. 



A56 

School District, 241 F. 2d 230 (5th Cir. 1957) cert. den. 

353 U. S. 938 makes this distinction clear: 

The Constitution as construed in the School Segre- 
gation Cases . . . forbids any state action requiring 
segregation of children in public schools solely on 
account of race; it does not, ‘however, require actual 
integration of the races. 

The court then quoted the now classic per curiam of the 

three-judge court in Briggs v. Elliott, 132 F. Supp. 776 

(E.D. S. C. 1955), in which it was said: 

(The Supreme Court) has not decided that the states 
must mix persons of different races in the schools or 
must require them to attend schools or must deprive 
them of the right of choosing the schools they attend. 
What it has decided, and all that it has decided, is 
that a state may not deny to any person on account of 
race the right to attend any school that it maintains. 

. Nothing in the Constitution or in the decision 
of the Supreme Court takes away from the people 

freedom to choose the schools they attend. The Con- 
stitution, in other words, does not require integra- 
tion. Tt merely forbids discrimination.®” 

Judge Bell, speaking for the court in Evers v. Jackson 

Municipal Separate School District, 328 F. 2d 408, 410 

(5th Cir. 1964), recently reaffirmed these principles, as 

did the Courts of Appeals for the Seventh Circuit in 

Bell v. School City of Gary, Indiana, 324 F. 2d 209 (7th 

Cir. 1963), and the Tenth Circuit in Downs v. The Board 

of Education of Kansas City, 336 F. 2d 988 (10th Cir. 

37. This court is not unmindful of footnote 5 to Judge Wis- 
dom’s opinion in Singleton v. Jackson School District, decided 
June 22, 1965 by the Court of Appeals of this circuit, FP 2d 

However, the precise question of “integration” - vis a vis ——————— 

“desegregation” was in no way an issue in that case. Hence, this 
court must treat the remarks in that footnote as dictum. 



AST 

1964) 28 In this circuit, see also Borders v. Rippy, 247 

F.2d :268 (5th Cir. 1957); Rippy Vv. Borders, 250 F.24 

690 (5th Cir. 1957); Holland v. Board of Public Instruc- 

tion, 258 F. 2d 730 (5th Cir. 1958); and Stell v. Savannah- 

Chatham County Board of Education, 333 F. 2d 55 (5th 

Cir. 1964). 

The same view was adopted by Congress in drafting 

the Civil Rights Act of 1964. Section 401 (b) of the Act, 

42 U.S.C. § 2000c(b), provides: 

(b) “Desegregation” means the assignment of 

students to public schools and within such schools 

without regard to their race, color, religion, or national 

origin, but “desegregation” shall not mean the assign- 

ment of students to public schools in order to over- 

come racial imbalance. 

Nor, as it must be noted, do plaintiffs seek here a right 

to require affirmative integration in these schools. They 

clearly so state in their brief. 

The aforementioned precise legal requirements, the 

fact that neither of plaintiffs’ experts had intimate knowl- 

edge of this community or of this school system, plus the 

fact that neither these witnesses nor anyone else for plain- 

tiffs offered a complete substitute zoning plan® for that 

38. In Downs, the court said: 

Appellants also contend that even though the Board may 

not be pursuing a policy of intentional segregation, there is 

still segregation in fact in the school system and under the 

principles of Brown v. Board of Education, supra, the Board 

has a positive and affirmative duty to eliminate segregation 

in fact as well as segregation by intention. While there 

seems to be authority to support that contention, the better 

rule is that although the Fourteenth Amendment prohibits 

segregation, it does not command integration of the races 

in the public schools and Negro children have no constitutional 

right to have white children attend school with them. (Cita- 

tions omitted.) 

39. Substantially all suggestions were with respect to indi- 

vidual districts or a “broad brush” generalized and sweeping state- 

ment of principles, or a similar negative statement that the pro- 

posed zones did not conform to such principles. 



A58 

proposed by defendants makes it appropriate to say that 

these witnesses gave little help to the court. Moreover, 

their difficulty in distinguishing between their own ap- 

parent philosophical educational objective—integration— 

and the legal requirements of desegregation make it seem 

that some of their zoning suggestions were the product of 

their own beliefs, rather than the result of objective analy- 

sis of all relevant facts. 

It is obvious that plaintiffs’ experts did not know, nor 

understand, what weight was, or should be, given to the 

actual physical condition of the several school plants of 

this system (and the several parts of some of the plants 

at individual school sites). It is equally as obvious that 

defendants’ superintendent did understand these and all 

other relevant factors to a remarkable degree for a man in 

his position and that he, in most instances, gave proper 

weight to all.** It is also obvious that these experts knew 

little about the development of this community, its prospec- 

tive growth or the probable areas or directions thereof, 

while defendants did. They knew little about funds avail- 

able to defendants, or sources of these funds, or require- 

ments for budgeting or application of these funds, while 

defendants did. Their knowledge of actual locations of 

pupil population was sparse, but defendants’ was sound. 

Their knowledge of the type of character** of pupils was 

40 At least one zoning recommendation by one of these wit- 
nesses had no apparent justification except that it would re- 
quire an actual mixing of Negro and white pupils. All other rele- 
vant factors seemed to be against this proposal. : 

41. In view of the court’s present action with respect to ele- 
mentary school attendance zones south of the elevated railroad, 
he will have time to consult more fully with the principal of each 
of these schools and with the maintenance and custodial personnel 
(many of whom were not available to him when the plan was first 
designed) so that, hopefully, defendants will be able to re-submit 
plans for those zones which this court can approve promptly. 

42. Whether ambulatory or with a fixed, permanent resi- 
dence, whether from disadvantaged or poor homes, or from eco- 
nomically sound and secure homes. 



Ab9 

virtually nonexistent, while defendants’ was sound and 

comprehensive. Other similar comparisons could be made, 

but it suffices now to say, in sum, that their approach was 

essentially negative disapproval of defendants’ plans—in 

almost every category. Thus, although fully recognizing 

their competence in specialized fields of public education 

and accepting their sincerity and good purposes, this court 

can give little weight to their views. 

On the other hand, this court is convinced that defend- 

ants’ superintendent, in addition to having the qualities 

aforementioned, is commendably objective and without 

guile. It goes without saying that he is the best informed 

witness with respect to this school system to testify in 

this case. His views command respect, and it may well be 

that the court was at fault in not taking a more active 

part in examining him with respect to some, or all, of the 

questions for which this court does not, at this time, have 

clear and certain answers. 

As has been said, the facts upon which such answers 

could be properly based may now be before the court. But, 

to solve the many and varied problems which obtain in 

devising permanent elementary school attendance zones 

for the area of this school district which is to the south of 

the elevated railroad presents to this court as formidable 

a legal maze as any ever dealt with by it. 

Hence, the aforementioned action will be taken with 

respect to that part of this case in order that, in the end, 

this court may have as sound an understanding as possible 

of every aspect, every fact, every condition, every situation 

which may properly relate to or bear upon these problems. 



A60 

VIL 

THE City oF CLARKSDALE, URBAN RENEWAL 
AND CoaHOMA COUNTY 

There are some unusual aspects to the record here and 
plaintiffs’ position with respect thereto. Viewed pragmat- 
ically, much of this evidence. which will be discussed. is ir- 
relevant. except as it may affect credibility of some wit- 
nesses and the good faith of defendants in preparing their 
plans which are at issue here. 

To view it in proper perspective, it must be understood 
that although the territorv in the Clarksdale Municipal 
Separate School District is identical to the territory in 
the City of Clarksdale, the governments of the school and 
of the municipality are separate and distinct. The schools 
are governed by a Board of Trustees. Individual trustees 
are elected for staggered statutory terms by the govern- 
ing authorities of the municipality. Mississippi Code An- 
notated 1942 (Recompiled) § 6328-07 (b). Other than such 
elections the only connection the governing authorities of 
the municipality have with the school system is that they 
must levy taxes required by state law for the support of 
the separate school district under the minimum education 
program, Mississippi Code Annotated 1942 (Recompiled) 
§ 6518-02, and additional taxes up to a statutory limit 
upon demand of the Board of Trustees, Mississippi Code 
Annotated 1942 (Recompiled) § 6518-06. Further, on peti- 
tion of the Board of Trustees for tax support in addition 
to that provided by the last cited statute, the governing 
authorities of the city must call a special election so that 
the electors of the school district may approve or disap- 
prove of such additional taxes. Mississippi Code An- 

notated 1942 (Recompiled) § 6518-07. 

The governing authorities of the city have no other re- 
sponsibility in law for the schools of the school district 



Ab1 

or authority over the trustees, and the trustees of the 

school district have no authority with respect to any mu- 

nicipal problem or program. 

The governing authorities of Coahoma County have no 

connection with, authority over or responsibility for this 

school district, nor for this municipality. 

With that background the aforementioned evidence 

will be discussed. In 1961, long before this case began, the 

City of Clarksdale initiated a program of urban renewal, 

designed to improve the community primarily by the elim- 

ination of slum areas and sub-standard housing, and other- 

wise by the creation or construction of modern housing 

facilities, utility systems, and other related facilities of 

public usefulness. It is a matter of common knowledge 

that similar programs began on a nationwide basis as a re- 

sult of federal programs and federal financing for them. 

In Clarksdale, independent, outside consultants were em- 

ployed to study and survey the local situation and make 

recommendations to the governing authorities through the 

Planning Commission. These surveys, studies and plans 

were well under way, with the expectation that a large 

part of the financing to put them into effect would come 

from federal sources. These expectations were frustrated, 

however, when the Mississippi Legislature by statute de- 

stroyed the right of the city to participate in such a fed- 

eral program. Mississippi Code Annotated 1942 (Recom- 

piled) § 7300.5, effective December 21, 1962. But, the 

Planning Commission and governing authorities of the city 

chose another route to follow in financing this planned 

program—a city sales tax. With the proceeds of this tax, 

the program was undertaken, but at a much slower pace 

than as originally planned in the then contemplation of 

federal financing. 



A62 

City Actions 

1. The city acquired by purchase for park purposes a 
small group of houses and the land on which they were 
situated in what was known as Tuxedo Park. This ter- 
ritory was not in the school district. Thus children living 
there could not attend school in tHe defendant school sys- 
tem. These sub-standard, dilapidated houses were occu- 
pied by Negroes. They were situated on low lands adja- 
cent to a creek which overflowed with each heavy rain. 
Drainage from this area, including human excreta, flowed 
onto the grounds of a Catholic school located across the 
creek and created what was recognized as an unsanitary, 
unhealthy situation. 

2. The city, ostensibly to aid in solving its parking 

problems, which it, like many cities, has in abundance, pur- 

chased an area near the jail in the edge of the central busi- 

ness district for a public automobile parking lot. Some 

houses occupied by Negroes were in this area. 

3. The city purchased property upon which were 

some houses occupied by Negroes, for garage and storage 

area for its street department equipment. This was in 

the school district. 

4. Every few years Clarksdale (as do many other 

municipalities) makes changes (most of which are minor) 

to its corporate limits. The statutory procedure*® for such 
10 to 3374-16. 

changes provides for 

a) Adoption of an ordinance describing the ter- 
ritory involved, defining the entire corporate limits 
as they will exist after the change and stating the rea- 
sons for the change. 

b) Publication of a certified copy of the ordi- 
nance in a local newspaper. 

43. Mississippi Code Annotated 1942 (Recompiled) §§ 3374- 



A63 

c) Filing a petition in Chancery Court seeking 
approval of the proposed changes. 

d) Making defendants to such court proceedings 
any municipality within three miles of the city limits 
and all parties interested in, affected by or aggrieved 
because of the proposed changes. 

e) Having the court fix a time and place for a 
hearing. 

f) Publishing a notice to all defendants in a 
local paper of the nature of the proceedings and the 
time and place of the hearing as fixed by the court. 

g) Having a hearing before the court at the time 
and place fixed and obtaining court approval. 

In July 1964, following all these steps as required by 

law, Clarksdale de-annexed some territory and annexed 

other. There were no objections by plaintiffs or by anyone 

else. At the end of the hearing the proposed changes 

(annexation and de-annexation) were approved by the 

Chancery Court. 

In the de-annexed area there were small numbers 

of substandard homes occupied by Negroes. These houses 

were on an unimproved extension of a street alongside 

the railroad embankment or fill, mentioned many times 

herein, on very narrow, shallow lots, and were not served 

by two key city operated utilities—water and sewers. No 

area immediately adjacent is suitable for residential de- 

velopment in the near future, tax revenues from this 

property were negligible and to furnish these utility serv- 

ices (which would have been required if the area remained 

in the city) would have been prohibitively expensive to 

the city. 

All of the areas mentioned in 1), 2), 3) and 4) are 

north of the elevated railroad which has been approved 

by this court as a key school zoning boundary. 



A64 

County Action 

The governing authorities of Coahoma County deter- 

mined that it was necessary to enlarge and modernize its 

county jail (which this court judicially knows is also a 

federal contract prison) at a cost of $200,000. For this 

purpose and for a parking area adjacent thereto the county 

purchased property upon which were some houses occupied 

by Negroes. This area is north of the railroad on the 
fill. 

One result of the foregoing actions, city and county, 

was that some Negro families* were required to move 

out of these areas. Most, if not all, of these actions were 

consistent with the survey, study and recommendations 

of the aforementioned independent consultants. 

Defendants’ Attorney 

Defendants’ attorney*” was a member of the Planning 

Commission, which recommended all the foregoing munic- 

ipal actions. His personal knowledge of each of these de- 

velopments is not clear, except with respect to the Tuxedo 

Park acquisition. For many years before the first case 

in 1954 in which desegregation of public schools was re- 

quired, he, for personal as well as community reasons, 

had worked for the correction of the unhealthy and un- 

sanitary conditions which existed at Tuxedo Park. Ob- 

viously, these reasons had nothing to do with this case. 

He did and does approve all these actions. Even if he had 

personal, intimate knowledge of each one as it developed, 

and expressed his formal approval of each municipal 

action as a member of the Planning Commission, he was 

44. It is not clear whether any children of school age were 
members of these families or not. The court assumes there were 
some. Nor is it clear where these families went. 

45. He was called as a witness by plaintiffs, and testified 
extensively. 



A65 

not then acting in any way as defendants’ attorney. Other 

than this tenuous connection, the evidence does not show 

that anyone connected with the Clarksdale school system 

took any part in these aforementioned projects of the city 

and county. 

Plaintiffs’ position as to the foregoing actions of the 

municipality and county seems to the court to be that 

they demonstrate a conspiracy between defendants, the 

Planning Commission, the city and the county to prevent 

Negro children from going to school with white children 

and that, therefore, the proposed school attendance zones 

as proposed by defendants are all invalid. If this in fact is 

plaintiffs’ argument, it must fail for many reasons which 

seem clear to the court. Some of those reasons will be 

discussed. 

a) To accept plaintiffs’ position would, in effect, 
require the court to find that defendants’ attorney 
(an honorable respected member of the bar of this 
court for many years, known to be deeply religious), 
defendants’ superintendent, a commissioner of the 
City of Clarksdale and the chairman of the Planning 
Commission all perjured themselves when testifying 

as witnesses in this court.*® Such a finding is wholly 
unjustified. 

b) Plaintiffs overlook the fact that the zoning 
plans as proposed by defendants have zones in which 
there are families of both the Negro and white races, 
with children of school ages. (The fact that no actual 
integration came about as a result of the desegrega- 
tion during the 1964-1965 school year may be under- 
stood only when the facts are known that there is no 
compulsory school attendance law in Mississippi; that 
some white parents whose children were assigned by 
defendants’ plans under this court’s order to schools 
which Negro children would attend, sent those chil- 

46. All but the school superintendent were called to the stand 
by plaintiffs. 



A66 

dren to other schools, and that some grades have not 
yet been reached in which children of both races will 
attend the same school—if they go to school in this 
system. These grades and these schools will soon be 
reached under the desegregation schedule being es- 
tablished by this court.) 

c) Even if plaintiffs’ position is accepted arguendo 
(which it is not) the fact remains that defendants had 
(and now have partially) the problem of devising 
school attendance zones, subject to this court’s approval 

based on the actual situation as it existed at the time 
these plans were devised,*” and this without regard to 
why any or all of the facts and realities of the situa- 
tion came about. This court cannot require that jails, 
parking lots and garages be razed or destroyed, nor 
can it require that substandard homes be built on lots 
where they formerly existed, to be occupied by Negro 
families. It cannot here undo what has been done. 

This court does not yet have the power or authority to 

order school buildings to be built, moved or destroyed. Nor 

does it yet have the authority or power to require families 

to move from one neighborhood to another. 

Plaintiffs and defendants both want and approve a 

school system to be operated on the neighborhood attend- 

ance zoning plan. Any fair and reasonable plan for such an 

operation for this school system must fit conditions as they 

now exist, not as they existed in the past, nor as they might 

ideally exist at some distant time in the future. 

Thus, as has been said, the only possible value evidence 

of the aforementioned actions of the City of Clarksdale and 

Coahoma County has in this case is as it may bear on 

the question of good faith of defendants in their plans to 

deal with the grave problems presented to them by this 

suit. It has been so considered. 

47. Of course, defendants must deal with the situation as it 
now exists south of the elevated railroad as to devising attendance 
zones for elementary schools in that area. 



ABT 

VIL 

CONCLUSION 

As has been many times said in the cases, the respon- 

sibility to accomplish desegregation in a constitutional 

way rests first with the school and then with the courts.*® 

It is in reliance on that obvious truism that this court will 

call on defendants, in accordance with what has been said 

in this opinion, to again exercise that first responsibility 

with respect to plans for the attendance zoning for ele- 

mentary school purposes of the southerly territory of this 

district. This course of action also results from the fact 

that this court recognizes fully that courts are ill equipped 

to deal with problems of this sort.* 

Final order will be entered with respect to all elements 

of this controversy upon which this court has expressed its 

final determination in this opinion. Nisi or interim orders 

will be entered as to all other issues and this court, in 

such orders, will formally retain jurisdiction over this en- 

tire case to enter all such orders as may hereafter be re- 

quired. 

This the 10th day of August, 1965. 

Claude F. Clayton 

District Judge 

48. Brown v. Board of Education, 349 U.S. 294, 299 (1955); 
Armstrong v. Board of Education, 333 F. 2d 47, 53 (5th Cir. 1964). 

49. Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963). 



A68 

(Caption Omitted) 

ORDER OF THE DISTRICT COURT DATED 
AUGUST 10, 1965 

Order for Permanent Injunction 

PART Y 

It appearing to the satisfaction of the court that there 

is no just reason for delaying entry of final judgment on 

certain of the multiple claims for relief presented in this 

action, and that there is in fact pressing need for entry 

of final judgment as to certain of these claims, then, in 

accordance with the Memorandum Opinion released this 

date, it is 

FiNnaALLy ORDERED: 

1) That the clerk of this court shall be, and he hereby 

is, directed to enter a final judgment, as provided in Rule 

54 (b), Federal Rules of Civil Procedure, as to so much of 

this order as is contained in Part I. hereof. 

2) That the defendants, Clarksdale Municipal Sepa- 

rate School District and the members of the Board of 

Trustees of the said school district, their agents, servants 

and employees, and the successors in office of said trustees, 

those acting in concert with them or any of them who shall 

receive notice of this order, shall be, and they hereby are, 

permanently enjoined, in assigning pupils to the grades 

progressively included in the schedule for racial desegre- 

gation of the public schools now or hereafter operated by 

or under the supervision of defendants, as provided in para- 

graph 3) of this order, from making any or all of such as- 

signments solely because of the race of any or all of such 

pupils. 



AB9 

3) That assignments of pupils to the said public school 

on a racially non-discriminatory basis, in addition to grades 

one and two heretofore ordered to be desegregated, shall 

be made in accordance with the schedule following: 

a) Grades three, four and twelve shall be racially 

desegregated not later than the opening of the first 

term or session for each of such schools for the school 

year 1965-1966. 

b) Grades five, six, ten and eleven shall be 

racially desegregated not later than the opening of the 

first term or session for each of such schools for the 

school year 1966-1967. 

¢) Grades seven, eight and nine shall be racially 

desegregated not later than the opening of the first 

term or session for each of such schools for the school 

year 1967-1968. 

4) That the geographic attendance areas created by 

order of the defendant Board of Trustees entered 21 July, 

1964, and incorporated in the desegregation plans pre- 

viously submitted by the defendants and temporarily ap- 

proved by the court, shall be and hereby are approved 

to the extent hereinafter provided. Pupils who apply and 

are eligible for enrollment in the public schools of the dis- 

trict and whose grade level has been included in those 

grades, racially desegregated pursuant to paragraph 3), 

supra, shall be assigned to the public school appropriate to 

their grade level which is related to and located"in the geo- 

graphic attendance area within which such pupils reside at 

the time of enrollment, whether such residence obtains 

now or is hereafter effected, except as may be otherwise 

provided in this order. Such pupils whose grade levels have 

not been racially desegregated at the time of enrollment 

shall be assigned to appropriate schools in accordance with 

such policies as may be devised by the defendants. 



AT0 

5). That the following geographic attendance areas 

shall be, and they hereby are, finally approved: 

Geographic 
Attendance 

Area 

Senior High School 
Sub-District 

One and Attendance 

Zone S-1-A 

Senior High School 
Sub-District 

Two and Attendance 

Zone S-2-A 

Junior High School 
Sub-District 

One and Attendance 

Zone J-1-A 

Junior High School 
Sub-District 

Two and Attendance 

Zone J-2-A 

Elementary 
Attendance 

Zone E-4-A 

Elementary 
Attendance 

Zone E-4-B 

Elementary 
Attendance 

Zone E-4-C 

Related School 

Clarksdale Senior High School 

W. A. Higgins Senior High School 

Clarksdale Junior High School 

W. A. Higgins Junior High School 

Oakhurst Elementary School 

Heidelberg Elementary School 

Kirkpatrick Elementary School 

6) That Elementary Attendance Zone E-3-A shall be, 

and it hereby is, finally approved as the geographical 

attendance area for the proposed elementary school to be 

constructed within this zone. From and after the com- 



A7] 

pletion and opening of the said school, assignment of 

elementary pupils who reside within this zone shall be 

made to the new school in the same manner as in the other 

Elementary Attendance Zones. Prior to the completion 

and opening of the proposed new school in this zone, 

elementary pupils who reside within Zone E-3-A may, 

upon application, be assigned to Oakhurst Elementary 

School or to Eliza Clark Elementary School in accordance 

with the method of assignment now in effect in this zone 

pursuant to orders of the defendant Board of Trustees. 

7) That curricula at all elementary schools within the 

school district shall be identical; curricula at all junior 

high schools within the district shall be identical; and 

curricula at all senior high schools within the district shall 

be identical. 

8) That in the event defendants wish to offer any 

course or courses at one junior high school in the school 

district and not at the other, or at one senior high school and 

not at the other, all pupils enrolled in the other junior or 

senior high school, as the case may be, will be so notified. 

Any pupil enrolled in the school where the course is not 

to be offered shall have the right to transfer if so desired 

to the school where such course is to be offered. 

9) That defendants shall maintain teacher-pupil 

ratios at substantially the same level for each grade at each 

elementary school; at substantially the same level for each 

grade at each junior high school; and at substantially the 

same level for each grade at each senior high school. 

10) That defendants shall maintain expenditures of 

public funds per pupil at substantially the same level at 

each elementary school; at substantially the same level at 

each junior high school; and at substantially the same level 



AT2 

at each senior high school; except for such differences as 

may reasonably result from: 

a) Variations in age and physical condition of 
school buildings and facilities. 

b) Variations in types of licenses held by mem- 
bers of the teaching staff assigned and salaries paid. 

c) Greater expenditures which may be reason- 
ably required to bring any library, laboratory, shop. 
home economics equipment, visual aids equipment or 
supplies, or other such equipment or supplies to the 
level of all such similar equipment or supplies at all 
schools of each type. 

d) Greater expenditures which may be reason- 
ably required to bring comfort and recreational fa- 
cilities, equipment and supplies to the level of all other 
similar facilities, equipment and supplies at all schools 
of each type. 

11) It appearing that defendants have taken effective 

action to eliminate any and all discrimination with respect 

to salaries for professional personnel employed in the 

school district, no provision need, or will be, made here 

in this regard. 

Part II. 

Further, in accordance with the Memorandum Opin- 

ion released this date, it is, 

ORDERED: 

12) That the following proposed Elementary At- 

tendance Zones shall be, and they hereby are, temporarily 



AT3 

approved for use only during the first semester of the on- 

coming school session for the school year 1965-1966. 

Elementry 
Attendance 
Zone Related School 
E-1-A George H. Oliver Elementary School 
E-1-B Myrtle Hall Elementary School 
E-1-C Eliza Clark Elementary School 
E-2-A Booker T. Washington Elementary School 
E-2-B Riverton Elementary School 

13) That defendants shall be, and they hereby are, 

directed to reconsider their proposals with respect to the 

proposed Elementary Attendance Zones listed in para- 

graph 12), supra, and to resubmit to this court a plan for 

attendance zoning for elementary school purposes of all 

of the school district now included in the said proposed 

Elementary Attendance Zones. The attendance zones to 

be devised by defendants in preparing the said plan shall 

be predicated on efficient utilization of available school 

facilities on a racially non-discriminatory basis in ac- 

cordance with sound educational principles. 

14) That the plan required by paragraph 13), supra, 

shall be filed by the defendants not later than 6 October, 

1965, and a copy thereof shall be served on counsel for 

plaintiffs not later than 1 October, 1965. Plaintiffs shall 

have twenty days after the filing of such plan within 

which to file objections thereto, if any they have. A hear- 

ing will be held following the filing of the plan and ob- 

jections at a time and place to be fixed by the court. 

15) That Elementary Sub-Districts E-1, E-2, E-3, and 

E-4 shall be, and they hereby are, approved, provided, how- 

ever, that defendants may, if they so desire, revise the 

boundaries of Sub-Districts E-1 and E-2, subject to the 

approval of the court, in such manner as may be neces- 



AT4 

sary to accommodate any changes in the Elementary At- 

tendance Zones thereby encompassed, pursuant to the pro- 

visions of paragraphs 12) through 14), supra. 

16) That all issues relating to racial desegregation of 

faculties and administrative .personnel employed in the 

school district shall be, and the same hereby are, deferred 

for later resolution. 

17) That costs, as they may have accrued to this date, 

shall be, and the same hereby are, awarded to plaintiffs 

from defendants, as they may in course be taxed. 

18) That jurisdiction of this cause shall be, and the 

same hereby is, retained for all purposes and especially for 

the purpose of issuing any and all additional orders which 

may become necessary or appropriate for the purposes of 

modifying or enforcing this order, either or both. 

This the 10th day of August, 1965. 

Claude F. Clayton 
District Judge 

(Caption Omitted) 

ORDER OF THE DISTRICT COURT AMENDING 
ORDER OF OCTOBER 1, 1965 

Order Amending Order for Permanent Injunction 

It appearing that the Order for Permanent Injunction 

entered 10 August, 1965, contained an error in paragraph 5) 

thereof, in that the schools related to the senior high 

school and junior high school sub-districts and attendance 

zones were inadvertently transposed, it is, 



ATS 

ORDERED: 

That the said order shall be, and it hereby is amended 

pursuant to Rule 60 (a), Federal Rules of Civil Procedure 

to read as follows: 

5) That the following geographic attendance 
areas shall be and they hereby are, finally approved: 

Geographic 
Attendance Area Related School 

Senior High School @ W, A. Higgins Senior High School 
Sub-District 

One and Attendance 
~ Zone S-1-A 

Senior High School Clarksdale Senior High School 
Sub-District 

Two and Attendance 

Zone S-2-A 

Junior High School @ W. A. Higgins Junior High School 

Sub-District 

One and Attendance 
Zone J-1-A 

Junior High School Clarksdale Junior High School 
Sub-District 

Two and Attendance 
Zone J-2-A 

Elementary Oakhurst Elementary School 
Attendance Zone 
E-4-A 

Elementary Heidelberg Elementary School 
Attendance Zone 

E-4-B 

Elementary Kirkpatrick Elementary School 
Attendance Zone 
E-4-C 

This the 6th day of October, 1965. 

Claude F. Clayton 
District Judge 



A'6 

(Caption Omitted) 

MEMORANDUM OPINION OF THE COURT 

DATED DECEMBER 13, 1965 

In response to the order entered in this cause on Au- 

gust 10, 1965, defendants, within the time specified, filed 

a new revised plan for the establishment of attendance 

zones for the school children of elementary school age who 

reside south of the line of railway which is on a fill or 

levee and which almost bisects the school district. The 

territory is that included in Elementary Subdistrict E-1 and 

Elementary Subdistrict E-2. Plaintiffs filed objections to 

these proposals and a hearing was held thereon. All as- 

pects of the case pertinent to defendants’ proposed revi- 

sions and plaintiffs’ objection thereto are now before the 

court for disposition. 

Consideration has been given to all of the record made 

on the several hearings, as well as such interrogatories and 

answers thereto as seem pertinent to the issues now for 

determination. 

Some questions were raised by the court in its Memo- 

randum Opinion released with the aforementioned order of 

August 10, 1965, with respect to the boundaries proposed for 

Attendance Zones E-1-A (Oliver), E-2-A (Washington) 

and E-2-B (Riverton). Additional evidence bearing on 

these questions was presented and has been carefully con- 

sidered. Such evidence consisted primarily of accurate lo- 

cations of the places of residence of elementary school age 

children in each of the attendance zones and accurate and 

more complete information about the character of the oc- 

cupancy and structures in other areas within these zones. 

This evidence is persuasive that defendants have devised 

attendance zones which are sound in the light of the need 

to take into proper account utilization of existing school 



ATT 

buildings, distances which pupils will have to travel to get 

to the school for their attendance zone, traffic hazards and 

the safety and welfare of the children. No better solutions 

have been proposed. Hence, these attendance zones should 

and will be approved. 

Defendants’ plan contemplates combining into one at- 

tendance zone the elementary school attendance zones 

originally designated as E-1-B (Hall) and E-1-C (Clark). 

It was with respect to a portion of the boundary between 

these two districts that the court raised the most serious 

question in its aforementioned Memorandum Opinion. The 

revised and present proposal would eliminate all of those 

questions. 

Serious problems exist by reason of the proximity of 

the Eliza Clark Elementary School and the Myrtle Hall 

Elementary School. The two are quite close together. 

Clark is on the easterly side of Mississippi Avenue between 

Fifth Street and Sixth Street, with Coahoma Avenue as 

its easterly boundary line. Hall is to the southeast on the 

northerly side of U. S. Highway 61 between Garfield Street 

and Grant Street, with Seventh Street as its northerly 

boundary line. The southeast corner of the grounds at Clark 

are thus but three blocks from the northwest corner of the 

Hall grounds. This close proximity of these two school 

plants makes any boundary line which could be drawn be- 

tween the two subject to serious question. These two 

school plants can advantageously be operated as one unit, 

with a consequent saving to the school district in funds re- 

quired for administrative and supervisory personnel. 

Defendants propose that when this revised plan be- 

comes effective, that the first and second grades should be 

housed at Clark; grades three and four at Myrtle Hall No. 

3 and grades five and six at Myrtle Hall No. 1, with all of 



AT8 

the schools in the merged district to be supervised and di- 

rected by the same personnel. The evidence indicates that 

if this proposal is approved, that approximately 530 pu- 

pils of elementary school age would reside in the new dis- 

trict where there will be 19 teachers, which would give a 

pupil-teacher ratio of thirty to onk, a ratio favorably com- 

parable to the system-wide pupil-teacher ratio for elemen- 

tary schools. 

Considering all pertinent factors, including the afore- 

mentioned proximity of these two school plants and the 

savings which will result from such a consolidation, the 

court is now persuaded that it should approve this proposal, 

and it will do so. 

Plaintiffs have offered no real objection to the afore- 

mentioned proposed consolidation of territories into one 

elementary school zone. That is to say, they have raised 

no objections which defendants have in their power to cor- 

rect or deal with. Plaintiffs do point out that many of 

the white children who reside in the combined or recon- 

stituted attendance zone probably will not attend the public 

school system, if this plan is approved. Defendants do not 

have the authority or power to require that any pupil at- 

tend any public school within this system or elsewhere. 

And, such a position at this time is somewhat speculative, 

although past developments in this case indicate that plain- 

tiffs’ position may be correct. But, as has been said, de- 

fendants cannot solve this problem for plaintiffs. 

The main point at issue, in the aspects of this case 

which are now under consideration, is that defendants pro- 

pose that the revision to result from the consolidation of the 

aforementioned territory into one elementary school at- 

tendance zone should not become effective until the open- 

ing of school in the fall of 1966. To this proposal, plain- 

tiffs strenuously object. They buttressed their position cn 



AT9 

the hearing by showing that defendants, to prevent over- 

crowding at two elementary schools, one class, with 

teacher, had been moved intact from each to another ele- 

mentary school building in the system where space was 

available. Such removals, however, are not analogous to 

what would occur if this court directed that this revised 

plan take effect at the end of the first one-half of the cur- 

rent school session. If the earlier date were specified, 

many unnecessary and hurtful problems would be pre- 

sented for solution. 

A large number of the pupils involved would be re- 

quired to leave the school buildings and classrooms to 

which they have become accustomed and enter those to 

which they are strangers. They would also be required to 

adjust to new classmates. In many instances, they would 

be required to adjust to new teachers. To say the least, a 

substantial amount of time is required at the beginning of 

each school year for pupils to become oriented to new 

classmates, new teachers and in some instances, a new 

school building, and in most instances, a new classroom. 

To require that this be done twice in a given school year 

could be nothing other than hurtful to the pupils. 

The earlier date would also be needlessly hurtful to the 

teachers involved, since they would be required to start 

working with children with whom they now are unac- 

quainted and about whom they then would know very little. 

This would double the strain of what is at best a very try- 

ing period for any teacher, through which the teacher must 

pass at the beginning of each school session. Additionally, 

a substantial portion of these teachers would also be re- 

quired to teach at a place or school building not specified 

in their contracts. This in effect would be for this court 

to change the provisions of these contracts between de- 



A80 

fendant school district and the teachers concerned. Such 

a course of action would result inevitably in dissatisfaction 

and a loss of teacher morale and thus a loss of teacher ef- 

fectiveness. 

Moreover, the use of the earlier effective date, in the 

middle of a school year, would create many unnecessary 

problems for the supervisory and administrative personnel 

of this school system. There are now two separate school 

plants, each having a separate principal and separate ad- 

ministrative personnel, with teachers employed on the 

recommendation of the principal for that particular school 

to teach a particular grade in a particular classroom. The 

reassignment of the teachers which would be required 

in the middle of the year if the earlier date were used, 

would present many unnecessary problems which could 

not be solved to the satisfaction of all concerned. The 

choice between the two principals would present a dif- 

ficult problem. The utilization of the services of the prin- 

cipal not selected would present other serious problems. 

Rescheduling of school events, many of which are already 

planned and scheduled, would pose many problems not 

easy of solution. 

Plaintiffs’ principal answer to the foregoing is that it 

is a long time since 1954. It is not, however, so long a time 

since the filing of this suit late in the school year 1963- 

64 (April 22, 1964). And, according to this court’s view, 

it has moved with more than “all deliberate speed” since 

the many problems incident to desegregation of defendant 

school system became its responsibility. It is not consid- 

ered a part of this court’s responsibility in this case to 

create problems of the magnitude aforementioned by 

hasty action which could be hurtful to the school children 

of tender years who would be involved, whose welfare 



A81 

is uppermost in the court’s mind, as it should be in the 

mind of all who are connected with this litigation. 

Use of the present two elementary attendance zones 

which would be merged into one attendance zone under 

defendants’ proposal, E-1-B (Hall) and E-1-C (Clark), for 

the remainder of this school session should and will be 

approved. 

Use of the merged or consolidated district (E-1-B) 

should and will be approved for use effective with the 

opening of school in the fall of 1966. 

Additionally, defendants were given the right to pro- 

pose revisions for the aforementioned Subdistricts E-1 and 

E-2 if they cared to do so. They made no such proposals, 

pointing out that the number of elementary school children 

resident in each of the two proposed subdistricts are ap- 

proximately equal and that the north-south line of rail- 

way affords a natural boundary between these two sub- 

districts. Inasmuch as these subdistricts were approved 

in the order of August 10, 1965, no change will be made 

therein. 

Defendants have also proposed that they should be 

given the authority to change attendance zone boundaries 

within each of these subdistricts as the need therefor may 

arise from the changing pattern of pupil populations and 

other developments of a similar nature. Such a proposal 

is certainly in keeping with good school administration 

and would, to a large extent, take defendants out of the 

rigid straight-jacket in which they now find themselves 

while the affairs of their school system are under the con- 

trol of this court. However, in light of all of the facts and 

circumstances connected with this litigation, the court does 

not feel that it can approve this proposal at this time. 



A82 

This could and may well require that a very thorough 

pupil population census be taken for each elementary 

school zone well in advance of the opening of a new school 

year in order that application can be made to this court 

for revision of attendance zone boundaries as may then 

be indicated. . 

A final order will be entered in accordance with the 

foregoing, but with a provision therein that this court 

will retain jurisdiction to deal with such questions as 

may arise in the future with respect to the operation of the 

schools of this school system. 

This the 13th day of December, 1965. 

Claude F. Clayton 

District Judge 



A83 

(Caption Omitted) 

ORDER OF THE DISTRICT COURT DATED 

DECEMBER 13, 1965 

In accordance with the Memorandum Opinion re- 

leased this date, it is, 

Ordered: 

1) The following geographic attendance areas and 

related schools created by the order of the defendant 

Board of Trustees on 21 July, 1964, shall be, and the same 

hereby are, finally approved. 

Geographic 
Attendance 

Area Related School 

Elementary 
Subdistrict E-1 

Elementary 
Subdistrict E-2 

Elementary Attend- George H. Oliver Elementary School 
ance Zone E-1-A 

Elementary Attend- Booker T. Washington 
ance Zone E-2-A Elementary School 

Elementary Attend- Riverton Elementary School 
ance Zone E-2-B 

2) The Elementary Attendance Zones which were 

temporarily approved in paragraph 12 of the order for per- 

manent injunction entered 10 August, 1965, for use during 

the first semester of the 1965-1966 school year, shall be, 

and the same hereby are, approved for use during the 

second semester of the 1965-1966 school year. 

3) The proposal in the revised plan for elementary 

attendance zones submitted by defendants that the present 

Elementary Attendance Zones E-1-B and E-1-C be com- 



A84 

bined to form a new Elementary Zone E-1-B, and that the 
related schools, Eliza Clark Elementary School and Myrtle 
Hall Elementary School, also be combined and operated 
as one unit in the manner described in the said plan, all 
to be effective at the beginning of the 1966-1967 school 
year, shall be, and the same hereby is, approved. 

4) The proposal in the said revised plan that the 
court delegate authority to the defendant Board of Trustees 
to change the boundaries of attendance areas or zones 
within the subdistricts shall be, and the same hereby is, 
disapproved and denied. 

9) Jurisdiction of this cause shall be, and the same 
hereby is, retained for all purposes and especially for the 
purpose of entering any and all additional orders which 
may become necessary or appropriate for the purposes 
of modifying or enforcing this order, either or both. 

This the 13th day of December, 1965. 

Claude F. Clayton 
District Judge [||a7de2723-348c-45a4-aeff-363e5d43c202||]