Gaines v. Dougherty County Board of Education Memorandum Brief in Support of Motion for Summary Reversal

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 71-2579

SHIRLEY GAINES, et al.#
Plaintiffs-AppeHants
v.

BOARD OF EDUCATION OF 
DOUGHERTY COUNTY, GEORGIA, 
et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Middle District of Georgia

MOTION FOR SUMMARY REVERSAL

Plaintiffs-Appellants move this Court for an order
summarily reversing the order of the United States District
Court for the Middle District of Georgia approving the
school district's plan for school desegregation, denying
plaintiffs' motion for appointment of an expert, and denying

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their motion for counsel fees. In support of this motion, 
plaintiffs-appellants would show the following:



1* This is a suit seeking the desegregation of the 
public schools of Dougherty County, Georgia. Following 
the summary reversal of an earlier order of the district 
court (see 392 F.2d 669 (5th Cir. 1968)), plaintiffs- 
appellants filed a motion for further relief seeking 
a desegregation plan other than freedom of choice in compliance 
with Green v. County School Board of New Kent County. 391 
U.S. 430 (1968). After the motion was first denied, the 
district court granted a motion for reconsideration in light 
of Hall v. St. Helena Parish School Board. 417 F.2d 801 
(5th Cir. 1969). The court ruled that as of the 1970-71 
school year freedom of choice could no longer be employed, and 
required the board to consult with the Department of Health, 
Education and Welfare and attempt to reach an agreement on 
a plan.

2. On December 15, 1969, the school board filed its own 
plan, reciting that the board could not agree with HEW.
HEW submitted its plan, which would have achieved substantially 
more desegregation, with the court. After a hearing, on 
June 30, 1970, the court entered an order approving the 
school board's plan without modification.

3. Plaintiffs-appellants appealed from that order on
July 14, 1970. On June 7, 1971, this Court entered its

)
order vacating the order of the district court and remanded

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"with direction that the district court 
require the school board forthwith to 
constitute and implement a student 
assignment plan that complies with the 
principles established in Swann v. 
Charlotte-Mecklenburg Board of Education 
• . . ." Gaines v. Dougherty County 
Board of Education. No. 30290.

4. Following remand, the school board, on or about 
June 30, 1971, submitted a plan to the district court.
Despite this Court's direction, the plan was in all 
significant respects the same as that in effect in the year 
1970-71, and that was disapproved by this Court as not being 
in compliance with Swann. The only significant change 
was that students were given an absolute preference, with the 
right of transportation if they lived l̂j miles from school, 
in transferring from a school in which their race was a majority 
to one in which it was a minority. Otherwise, the plan 
remained a "neighborhood school plan." Thus, the student 
assignment section provides:

"(a) All students who have not previously 
requested a transfer under the provisions 
stated above, shall be assigned to the school 
serving their grade and located nearest to 
their place of residence. However, students 
residing east of the Flint River will be 
assigned to schools located east of the Flint 
River, and students residing west of the 
Flint River will be assigned to schools 
located west of the Flint River." (Record,
Plan for Operation of Public Schools in 
Dougherty County, p. 6).

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The provision in the 1970-71 plan is in identical language.
And, indeed, the Superintendent of Schools admitted that the 
two plans were the same except for the change in the transfer 
provision. (Transcript of hearing, July 21, 1971, pp. 49-52.)

5. Not only is the plan the same, but it is clear that, 
according to the projected figures of the school board, there 
will be little increase in desegregation in the school system. 
Three elementary schools will remain all white, three all 
black, and other high schools, junior high, and elementary 
schools will remain seriously imbalanced. There follows a 
chart comparing the percentage of black students in each school 
in the system under the 1970-71 and 1971-72 plans. These 
percentages were derived from the figures set out in the 
orders of the district court dated June 30, 1970, and 
August 4, 1971. The former figures were, of course, before 
this court when it vacated the June 30, 1970, order of the 
court below.

TABLE: Percentage of Blacks in 
Dougherty county Schools 1970-71 and 1971-72

Schools 1970-71 1971-
High Schools (all grades

10-12):
Albany 2 7% 3 2%Monroe 78 81Dougherty 22 2 6Westover 2 4

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Junior High (all grades 7-9 
in 1970-71, McIntosh 
grade 7 only, 1971-72):
Albany 
McIntosh 
Dougherty 
Merry Acres 
Carver 
River Road 
Southside 
Radium Springs

Schools

Elementary (all grades 1--6) : 
Broad
Coachman Park 
Flintside 
Hazzard 
Highland 
Isabella 
Jackson Heights 
Lake Park 
Lincoln Heights 
Madison 
Magnolia 
Mamie Broman 
Mock Road 
Morningside 
Northside 
Palmyra
Radium Springs
River Road
Sherwood
Sylvandale
Sylvester Road
Tift
Turner
Westover

1970-71 1971-72

15% 16%15 2026 271 395 9598 98.578 7312 16

79 90.580 10099 9980 8550 5812 1594 985 1198 91100 1004 926 50.44 50 00 00 015 17100 1002 312 132 565 closed4 85 14

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6. An analysis of the actual figures, moreover, shows 
a consistent pattern. The majority white schools generally 
show a small increase in the percentage of black students, 
while the majority black schools in many instances
show a decrease not only in the percentage of white students but 
in the actual number of white students attending the schools. 
Thus, for example, Monroe High School: 1970-71 - 340 whites;
1971-72 - 270; Carver Junior: 1970-71 - 38; 1971-72 - 30;
Broad Elementary: 1970-71 - 36; 1971-72 - 21; Jackson
Heights: 1970-71 - 36; 1971-72 - 12; Highland: 1970-71 -
182 white, 180 black; 1971-72 - 166 white, 230 black.
Although there are some exceptions, the overall pattern is
clear continued racial imbalance and the resegregation of

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some schools.

7. in light of the total failure of the school board
to comply with this Court's mandate, plaintiffs-appellants 
filed motions in the district court that: (1) objected to

1/ Indeed, this pattern was furthered when the school board 
closed Tift Elementary, a 65% black school in 1970-71, and 
assigned its students to Broad, which went from 79% to 90.5% 
black, and Mamie Broman, which went from 26-50.4% black.

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the school board plan; (2) requested the court to appoint 
an expert in education administration to be designated by 
plaintiffs and paid for by defendants; and (3) requested the 
award of expenses and attorneys’ fees occasioned by having to 
litigate again the inadequacy of the plan. At the hearing 
that followed, on July 21, 1971, plaintiffs took the position 
that the school board could not adhere to a neighborhood 
plan in light of Swann and in light of the great imbalances 
m  the system. Rather, it should be required to adopt a plan 
that would achieve as close to the 60%-40% white-black ratio 
that prevalied in the system as a whole in each school as 
was possible by use of methods such as pairing, clustering, 
zones, busing, etc.

8. After the hearing, the district court issued its 
order on August 4, 1971 approving the school board plan, 
with one amendment requiring two additional transfer periods, 
and denying plaintiffs' motions. The court reasoned that since 
there was an absolute right of majority to minority transfer, 
any continued segregation was caused by the choice of black 
students to remain where they were (Opinion, pp. 5-7). The 
court also stated that busing would not be required in light
of recent public statements by the President that he would 
ask Congress not to approve funds for busing (Op. pp. 8-9).

9. Plaintiffs filed their notice of appeal on August 5, 
1971, and promptly docketed the case in this Court.

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WHEREFORE, for the foregoing reasons, and for the 
reasons set out in their attached memorandum brief, plaintiffs- 
appellants respectfully pray that this Court advance this case 
on its docket in light of the imminent opening of the 1971-72 
school year and issue its order:

1* Summarily reversing the order of the district court;
2. immediately remanding with directions that the 

district court appoint an educational expert designated by 
the plaintiffs and compensated by the defendants for the 
purpose of drawing up a plan for the desegregation of the 
school system in Dougherty County and order the school board 
to give such expert all possible cooperation and assistance;

3. Directing the district court to hold a hearing not 
later than fifteen (15) days after appointment of the expert 
on the plan proposed by him and to enter such plan pending 
further hearings on any objections or amendments to the plan 
as any party may have;

4. Directing the district court to award reasonable 
attorneys' fees to plaintiffs arising from all proceedings 
held m  the district court and in this Court following the 
remand by this Court on June 7, 1971; and

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5. For any other relief that may be just and proper

Respectfully submitted.

C. B. KING 
ELLIOT H. HOLDEN 

P.0. Box 1024 
Albany, Georgia 31702

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
NORMAN CHACHKIN

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs—Appellants

BY:

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT
No. 71-2579

SHIRLEY GAINES, et al.,
Plaintiffs-Appel1ants 
v .

BOARD OF EDUCATION OF 
DOUGHE RTY COUNTY, GEQRGIA, 
et al.,

De fendants-Appellees.

On Appeal from the United States District Court 
for the Middle District of Georgia

MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR 
SUMMARY REVERSAL

I .

It is appropriate for this Court to grant a motion for 
summary reversal when a case before it on appeal is clearly 
controlled by prevailing law. See, Gaines v. Dougherty 
County Board of Education, 392 F. 2d 669 (5th Cir. 1968); 
Robinson v. Florida, 345 F. 2d 133 (5th Cir. 1965).



II.

Clearly, the desegreation plan permitted by the District 
Court does not comply with decisions of the United States 
Supreme Court in Swann v. Charlotte-Meeklenburg Board of Education. 
402 U.S. 1 (1971) and Davis v. School Commissioner of Mobile 
County, 402 U.S. 33 (1971). Those cases made it clear that racial
imbalances such as would remain under the present plan are not 
allowable, and that a neighborhood school plan that permits such 
imbalance must be replaced by a plan that uses other techniques. 
Indeed, this Court obviously recognized the inadequacy of the 
1970-71 plan under present consitutitional standards by its 
remand of June 7, 1971. Nevertheless, the School Board proposed 
and the court accepted virtually the identical plan on remand, 
despite the clear mandate of Davis. Swann, and the order of this 
Court, and in the face of statistics showing that there would 
he little improvement and indeed in many cases a worsening, of 
racial segregation.

Ill.
Just as clearly, none of the reasons given by the district 

court for its decision can stand in the face of Davis and Swann. 
Indeed, the basic rationale - that it is because black students 
do not choose to exercise a choice and transfer that segregation 
continues - is no more than an attempt to resurrect the freedom 
of choice concept repudiated by the Supreme Court in Green v.
County School Board of New Kent County. 391 U.S. 430 (1968).

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That case made it clear that if a plan fails to work - as 
this one manifestly does - it cannot be saved by trying 
to shift the burden of making it work on the black community. 
Likewise, the fact that there might be a question concerning 
the availability of federal funds for busing, cannot excuse 
the school board's failure to explore and develop whatever 
alternative plans may be necessary to carry out its consti­
tutionally-imposed responsibilities.

Because of the failure of the school board to even come close 
to meeting the requirements of the June 7 order of this Court 
and the district court's refusal to appoint an expert to devise 
an alternative plan, this Court should enter an order specifically 
mandating that such an expert be appointed at the board's expense. 
See, Swann, supra, 402 U.S. at 8-9. Given the past default of 
the board this is the only way to ensure that an adequate plan 
can be put into effect for this school year. In addition, an 
award of counsel fees is appropriate because of the board's failure 
to make a substantial effort to comply with the mandate of this 
Court.

IV.

Respectfully submitted
C.B. KING 
ELLIOT H. HOLDEN

P. 0. Box 1024 
Albany, Ga. 31702

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
NORMAN CHACHKIN

10 Columbus Circle 
New York, New York

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CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the 
attached Motion for Summary Reversal and Memorandum Brief 
in support thereof by depositing the same in the United 
States mail, air mail, postage prepaid, addressed to the 
attorney for the Defendants-Appellees, Jesse W. Walters, Esq., 
P.0. Box 527, Albany, Georgia 31702.

Done this , _ 6  day of August, 1971.

Attorney tor Plaintiffs-Appellants