Bibb County Board of Education v. United States Jurisdictional Statement on Behalf of Appellants

    No.

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER SESSION, 1967.

THE BIBB COUNTY BOARD OF EDUCATION, ELLINGTON P. JONES, 
HENRY BOLDING, BRITT COX, C. E. HORNSBY, JR., and 

FRANCIS B. PRATT,
Appellants,

vs.
UNITED STATES OF AMERICA,

Appellee.

JURISDICTIONAL STATEMENT
In Behalf of Appellants, The Bibb County Board of Edu­
cation, Ellington P. Jones, Henry Bolding, Britt Cox, 

C. E. Hornsby, Jr., and Francis B. Pratt.

REID B. BARNES,
Exchange Security Bank Building,

3 17 North 20th Street,
Birmingham, Alabama 35203,

GEORGE P. WHITE,
132 Courtsquare, East,

Centreville, Alabama,
Attorneys for Named Appellants.

St. L ouis L aw P rinting  Co., I nc., 411-15 N. Eighth St., 63101. CEntral 1-4477.



INDEX.

Page

(a) Reference to the official and unofficial reports of
the decrees, orders and opinions delivered in the 
Court below ...........................................................  1

(b) A concise statement of the grounds on which the
jurisdiction of this Court is invoked ................  3

(i) The nature of the proceeding and the statute
pursuant to which it is brought ................  3

(ii) The date of the judgment or decree sought
to be reviewed and the time of its entry, 
the date of any order respecting a rehearing, 
the date the notice of appeal was filed, and 
the Court in which it was filed ................  6

(iii) The statutory provision believed to confer
on this Court jurisdiction of the appeal . . . .  6

(iv) Cases believed to sustain the jurisdiction.. 7
(v) The validity of a statute is not directly in­

volved on this particular appeal ..................  9
(c) The Questions Presented by this A ppeal............  9
(d) A concise statement of the case containing the

facts material to the consideration of the ques­
tions presented ........................................................ 11

Appendix 1 ..................................................................  15
Writ of Injunction ......................................................  15
Order ...........................................................................  16

Appendix 2—Objection to Motion to Dismiss ...........  33
Appendix 3—Questions Presented ............................  36



ii

Cases Cited.

Anthony T. Lee et al., and United States of America, 
Plaintiff and Amiens Curiae v. Macon County Board
of Education (1963), 221 P. Supp. 297 ................  2,3

Lee, et ah, v. Macon County Board of Education,
M. D. Alabama, 231 F. Supp. 743, July 13, 1964, .. 7, 9

United States v. Rea (1964), 231 P. Supp. 772 .........  2
United States v. Wallace (1963), 222 P. Supp. 485.. 2

Statutes and Rule Cited.
1 (h) of Rule 1 5 ...........................................................  3, 5
Title 28, U. S. Code, Section 1253 ............................  3, 6
Title 28, U. S. Code, Section 2281 ............................. 3, 7
Title 28, U. S. Code, Section 2284 ............................. 3, 7
Title 52, No. 61 (8), Code of Alabama ... ............... 6,7,8



No.

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER SESSION, 1967.

THE BIBB COUNTY BOARD OF EDUCATION, ELLINGTON P. JONES, 
HENRY BOLDING, BRITT COX, C. E. HORNSBY, JR., and 

FRANCIS B. PRATT,
Appellants,

vs.
UNITED STATES OF AMERICA,

Appellee.

JURISDICTIONAL STATEMENT
In Behalf of Appellants, The Bibb County Board of Edu­
cation, Ellington P. Jones, Henry Bolding, Britt Cox, 

C. E. Hornsby, Jr., and Francis B. Pratt.

1.

(a)

REFERENCE TO THE OFFICIAL AND UNOFFICIAL
REPORTS OF THE DECREES, ORDERS AND 
OPINIONS DELIVERED IN THE COURT BELOW.

Order dated May 18, 1967, signed by United States Cir­
cuit Judge Richard T. Rives, United States District Judge 
H. H. Grooms and United States District Judge Frank M. 
Johnson, Jr.



This is the order appealed from and made the subject 
of this particular appeal, a copy being appended hereto as 
Appendix 1. It is doubtful whether it was intended to be 
an opinion as such (it is certainly not a formal opinion), 
but since (h) of Rule 15 requires that the Court’s findings 
and conclusions of law be appended, the portions of the 
findings and order of that date, applying to The Bibb 
County Board of Education and its members, are shown 
in Appendix 1.

This order and the appeal therefrom arise as an inci­
dent and sequel to the decree and judgment dated March 
22, 1967, signed by the same three judges, and made the 
basis of the appeal in the case already docketed in this 
Court as No. 489, October Session, 1967, entitled as 
follows:

Governor Lurleen Burns Wallace, in her capacity 
as Governor of the State of Alabama, and as Presi­
dent of Alabama State School Board of Education; 
Alabama State Board of Education; Ernest Stone, Sec­
retary and Executive Officer of Alabama State Board 
of Education; James D. Nettles, Ed Dannelly, Mrs. 
Carl Strang, Fred L. Merrell, W. M. Beck, Victor P. 
Poole, W. C. Davis, Cecil Ward and Harold C. Martin, 
as members of Alabama State Board of Education, 
Appellants, v. United States of America, Appellee.

For convenience we characterize this as the main case, 
the opinion in which is reported in 267 F. Supp. 458 
(M. D. Alabama 1967). Three prior opinions in the main 
case are:

Anthony T. Lee et al., and United States of America, 
Plaintiff and Amicus Curiae v. Macon County 
Board of Education (1963), 221 F. Supp. 297; 

United States v. Wallace (1963), 222 F. Supp. 485; 
United States v. Rea (1964), 231 F. Supp. 772;



Lee and the United States of America, Plaintiff and 
Amicus Curiae v. Macon County Board of Educa­
tion (1964), 231 F. Supp. 743.

[These citations, we conceive, are required by 1 (h) of 
Rule 15.]

A copy of the judgment and decree of March 22, 1967, 
is appended as Appendix 1 to the Jurisdictional Statement 
of the appellants in the main case, Governor Lurleen 
Burns Wallace et ah, Appellants v. United States of Amer­
ica, Appellee, already on file in this Court, and a copy of 
the opinion therein is shown as Appendix 2 thereof. To 
avoid duplication and for the sake of brevity, the appel­
lants, The Bibb County Board of Education et al., ask 
leave to adopt by reference the contents of that Jurisdic­
tional Statement, with appendices, insofar as the contents 
are relevant to the issues involved herein.

(b)

A CONCISE STATEMENT OF THE GROUNDS ON 
WHICH THE JURISDICTION OF THIS 

COURT IS INVOKED:

(i) The nature of the proceeding and the statute pur­
suant to which it is brought.

The order of the Court below, appealed from, dated 
May 18, 1967, was by a three-judge court constituted pur­
suant to Sections 2281 and 2284, Title 28, United States 
Code, for the purpose of hearing this cause in United 
States District Court for the Middle District of Alabama, 
Eastern Division, composed of United States Circuit Judge 
Richard T. Rives and United States District Judges H. H. 
Grooms and Frank M. Johnson, Jr. This appeal is taken 
pursuant to 28 United States Code, Section 1253. Said



— 4 —

Court was constituted, in accordance with the provisions 
of the statutes of the United States, by order granted on 
the 6th day of February, 1964, a copy of which is attached 
as Appendix 21 (p. A256) to the Jurisdictional Statement 
in the main case.

Following the rendition of the final decree in the main 
case and the opinion of the three-judge court, filed March 
22, 1967 (See Appendix I and Appendix II, Jurisdictional 
Statement, main case), which, among other things, di­
rected the State Superintendent of Education to require 
ninety-nine school boards in Alabama (including the Bibb 
County Board) to file with the State Superintendent a uni­
form plan of desegregation prescribed in the decree of 
March 22, 1967, the Bibb County Board of Education, 
standing upon what it conceived to be its rights, failed to 
comply with the requirement, and hence on April 22, 1967, 
after the taking of the appeal in the main case (notice 
filed April 7, 1967—Appendix 4, main case, Jurisdictional 
Statement, p. A149), the United States, plaintiff-inter- 
venor in the main case, filed a motion to add, ex parte, 
four school boards, including the Bibb County Board, as 
parties defendant, and also for an order requiring the Bibb 
County Board, among others, to show cause why an order 
should not be entered requiring said Board to adopt a 
desegregation plan meeting the standards embodied in the 
plan of the decree of March 22, 1967, main case (plan 
attached as Exhibit A to the decree). This motion is a 
part of the record, but is not attached as an appendix. 
The District Court made an order thereon, dated April 24, 
1967 (Appendix X, .Jurisdiction Statement, main case, p. 
A175) adding the Bibb County Board as a party, and or­
dering said Board, among others, to appear before the 
Court on the morning of May 13, 1967, “ to show cause.” 
* * * why said Board should not be ordered to adopt 
such desegregation plan. Prior to the entry of this order, 
the Bibb County Board of Education had not been a party



in any sense to the court proceedings. While the depo­
sition of the Board’s Superintendent, Mr. Pratt, had been 
taken, as shown by the record, this was taken in the main 
case long before the Board became a party and without 
any representation on the part of said Board in the taking 
of such deposition. The allowance of this deposition in 
evidence over the objection of the Board’s attorney on 
May 13, 1967, at the hearing on the order to show cause, 
is assigned as error.

Thus, the only pleading filed against the Bibb County 
Board, the Government’s motion on an order to show 
cause, utterly fails to allege any facts, or to make any 
charges against the Board, which would justify the order 
which was later rendered by the three-judge court, re­
quiring the Bibb County Board mandatorily to adopt and 
file such plan of desegregation.

At the hearing on May 13, 1967, the Bibb County Board 
of Education and the individual appellants here (mem­
bers of the Board and the Superintendent, all added as 
parties defendant along with the Bibb County Board) 
filed an objection to the motion of the United States (to 
show cause) containing ten separate grounds challenging 
the jurisdiction of the District Court to require the Board 
to submit a plan of desegregation, and also asserting 
improper venue. The concluding paragraph contains a 
prayer that the objection and each ground thereof be 
treated in the alternative as a motion to dismiss (the last 
ground of the objection is that the motion of the United 
States fails to state a claim against the said Board and 
the individual objectors upon which relief can be granted).

The objection is attached as Appendix 2 to this Juris­
dictional Statement and appellants ask and pray that the 
separate and several grounds be treated as questions pre­
sented by this appeal under paragraph (c) (1) of Rule 
15 of this Court.



•—  6 —

This action leading up to the judgment of March 22, 
1967, was initiated by supplemental complaints filed by 
the United States of America acting through the Attorney 
General as plaintiff-intervenor and amicus curiae in Sep­
tember and November, 1966, seeking (a) to have declared 
unconstitutional a tuition grant law passed by the legis­
lature of the State of Alabama and approved by the 
governor on September 1, 1965, which appears as Title 
52, No. 61 (8) of the Code of Alabama and (b) as de­
scribed by the three-judge court (p. A31) “ asking for 
a state-wide desegregation order and an injunction against 
the use of state funds to support a dual school system.”

The proceeding (motion) by which the Bibb County 
Board and its individual members and officer were first 
brought into the case, culminating in the mandatory order 
of May 18, 1967, was not based specifically upon any stat­
ute, and the only statute or statutes that can be involved 
are those conferring jurisdiction upon the three-judge 
court, already mentioned.

(ii) The date of the Judgment or Decree sought to be 
reviewed and the time of its entry, the date of any Order 
respecting a rehearing, the date the Notice of Appeal was 
filed, and the Court in which it was filed.

The date of the judgment or decree sought to be re­
viewed is May 18, 1967, also the time of its entry. There 
is no order on rehearing, none having been requested. 
The notice of appeal was filed on June 17, 1967, in the 
United States District Court for the Middle District of 
Alabama, Eastern Division. This order has already been 
attached as Appendix 1 to this Jurisdictional Statement.

(iii) The Statutory Provision believed to confer on this 
Court jurisdiction of the appeal.

Section 1253, Title 28 of the United States Code, which 
authorizes appeals directed to this Court from injunctive



orders of a three-judge court is conceived to be the stat­
ute involved. Sections 2281 and 2284, Title 28, United 
States Code, prescribe the jurisdiction of three-judge 
courts.

(iv) Cases believed to sustain the jurisdiction.

The three-judge court was constituted as shown in Lee, 
et al., v. Macon County Board of Education, M. D. Ala­
bama, 281 F. Supp. 743, July 13, 1964, and in the subse­
quent case of the same name, reported in 267 F. Supp. 
458 (the report of the main case). The court was consti­
tuted in the first instance primarily because of the attack 
upon the constitutionality of the first tuition grant law of 
the State of Alabama (Chapter 4B [§§ 61(13) through 
61(21)] Title 52, Code of Alabama), and subsequently, 
upon supplemental complaint, the court was called upon 
to pass upon the Alabama 1965-1966 tuition grant law, 
§ 61(8), Title 52, Code of Alabama. Evidently consider­
ing that the question whether the defendants in the main 
case, the governor, the Alabama State Board of Educa­
tion, the members of said Board, and the State Superin­
tendent of Education, all state officials, had exercised such 
authority over the actual operation of the various school 
systems throughout the state so as to maintain a segre­
gated or dual system of schools (pp. A31, A62, A63, A64, 
et seq., the opinion in the main case as shown in the 
appendix to the Jurisdictional Statement [Case No. 489]), 
bore a close relationship to the question of the constitu­
tionality vel non of the tuition grant laws, the three- 
judge court enjoined the defendants in the main case from 
“ discriminating on the basis of race in the operation or 
the conduct of the public schools of Alabama, or in any 
manner pertaining to the public schools of Alabama” 
(Decree, March 22, 1967, Appendix, p. A2, Jurisdictional 
Statement, main case), and ordered the State Superin­
tendent of Education to notify ninety-nine school systems,



8

including the Bibb County Board of Education (each be­
ing under the supervision and management of city and 
county boards of education, each an independent corpo­
rate agency of the state—Title 52, Chs. 5 and 8, Alabama 
Code), that each was required to adopt a desegregation 
plan for all grades commencing with the 1967-68 school 
year meeting the standards embodied in the plan attached 
to the decree as Exhibit A. None of these boards had been 
subjected to any previous court order, and none had been 
made a party to the litigation. In regard to the conten­
tion made on the hearing in the main case by the defend­
ants therein in effect that the court should not enter a 
decree directed against the local boards without at least 
making them a party to the litigation (the argument being 
that they were indispensable parties if they were to be 
subjected to the mandates of the decree), the court said 
(Appendix, A65, to the Jurisdictional Statement in Case 
No. 489, also reported in 267 F. Supp. 458, 482):

“The argument that this Court is proceeding with­
out jurisdiction over indispensable parties to this 
litigation, to-wit, local school boards throughout the 
state, is not persuasive. We are dealing here with 
state officials, and all we require at this time is that 
those officials affirmatively exercise their control and 
authority to implement a plan on a state-wide basis 
designed to insure a reasonable attainment of equal 
educational opportunities for all children in the state 
regardless of their race. It may be that in some in­
stances a particular school district will need to be 
brought directly into the litigation to insure that the 
defendant state officials have implemented this Court’s 
decree and that the state is not supporting, financially 
or otherwise, a local system that is being operated 
on an unconstitutional basis. Hopefully, these in­
stances will be the exception and not the rule. Clearly 
this possibility does not diminish the propriety of



— 9 •

the state-wide relief to be ordered. Having already 
resolved this issue of state-wide relief against the 
defendants in the order made and entered in Lee, 
et al., United States of America, Amicus Curiae v. 
Macon County Board of Education, July 13, 1964, 231 
F. Supp. 743, further discussion and analysis is not 
necessary.”

The Bibb County Board was later brought into the 
case, after final decree, as suggested in the above quoted 
excerpt from the opinion, and asserted and now asserts 
that the Court below committed error in that regard and 
in the decree that was later entered against the board, as 
below outlined, but cites and quotes all of the above as 
supporting the general jurisdiction of the court to act 
(although the court committed error in so acting, the 
appellants contend).

(v) The validity of a statute is not directly involved 
on this particular appeal.

(c )

THE QUESTIONS PRESENTED BY THIS APPEAL.

The grounds of the objection of the Bibb County Board 
to the motion of the United States to show cause, ap­
pended as Appendix 2 to this Jurisdictional Statement 
(also including a motion to dismiss) presents substantial 
questions involved on this appeal. That portion of the 
appellants’ notice of appeal from the order of May 18, 
1967, outlined in the questions presented on appeal, is 
appended hereto as Appendix 3. Appellants ask that 
these be treated as statement of questions presented on 
appeal as if incorporated in this section of the Jurisdic­
tional Statement, as well as the grounds stated in the 
“objection”, Appendix 2 (we eliminate the ground or



- 1 0 -

grounds of objection whereby it was contended in the 
District Court that the subject matter of the hearing be­
low was not a proper matter for the jurisdiction of a 
three-judge court).

More succinctly stated, three of the principal questions 
presented may be stated as follows:

(1) Did the District Court for the Middle District have 
proper venue over the Bibb County Board, its members 
and superintendent, all of whom were residents of Bibb 
County within the area of the Northern District of Ala­
bama as shown by the record within the meaning of Sec­
tion 1391, Title 28, United States Code Annotated, the 
Bibb County Board and the individual appellants being 
not made parties prior to the final decree of March 22, 
1967, and the proceeding against the Board and the in­
dividuals following that decree being necessarily an orig­
inal and independent proceeding against these appellants?

(2) Were the Bibb County Board and the other appel­
lants properly joined with the defendants in the main case 
as parties defendant, within the meaning of Rule 20 of the 
Federal Rules of Civil Procedure in view of the fact that 
(we assert) by the very nature of this supplementary pro­
ceeding the right to relief asserted against the Board and 
individual defendants was not in respect of or arising 
out of the same transaction or occurrence or series of 
transactions or occurrences, as the right asserted in the 
main case?

(3) Did the court err in ordering the Bibb County Board 
of Education, its members and superintendent, to adopt 
and file the uniform plan of desegregation, the plan sub­
mitted to be adopted by the other ninety-eight boards (the 
equivalent of a permanent mandatory injunction), merely 
on a motion following the decree in the main case (to 
which the Bibb County Board was not a party), on a mo-



—  11

tion which alleged nothing against the Board (and there 
was no other pleading which made a charge against the 
Board), by way of discrimination or otherwise, and which 
placed the burden upon the Board to acquit itself of that 
with which it had not been charged?

(4) Did the court err in rendering its decree against the 
Bibb County Board, and the other appellants, ordering 
the adoption and filing for the plan of desegregation 
merely upon the basis of the introduction by the United 
States of the deposition of the Superintendent of Schools 
of Bibb County over the objection of said appellants, such 
deposition having been taken prior to the time when said 
appellants became parties to any proceeding?

(5) Did the court err in holding that the motion of the 
United States, the only pleading directed against these 
apellants, stated a claim upon which relief could be 
granted against these appellants?

(d)

A CONCISE STATEMENT OF THE CASE CONTAIN­
ING THE FACTS MATERIAL TO THE CONSID­

ERATION OF THE QUESTIONS PRESENTED.

These have for the most part been stated as shown by 
the transcript of the proceedings. When the case was 
called for hearing, the Board and the individual defend­
ants filed the objection to the granting of the motion, 
already noted and appended. All grounds of objection 
were overruled by the court, and the decree of mandatory 
injunction rendered on May 18, 1967, was based in essence 
upon the ground that the new defendants had not shown 
sufficient cause, and that the deposition of the superin­
tendent (while admittedly taken and filed prior to the 
addition of the Board and the others as parties) was



sufficient as an “ affidavit” in support of the motion for 
an order to show cause. The judgment of May 18, 1967, 
was actually a final judgment and it is inconceivable that 
the “ affidavit” could have been treated as sufficient evi­
dence against the Board (over the Board’s objection) 
to justify the rendition of a mandatory injunction order. 
No facts were alleged in the only pleading involving the 
Board except only that the Board had failed to file the 
uniform plan. This constituted a denial of due process, 
an unwarranted procedure depriving the Board of its 
rights (and the individual defendants). The only pro­
ceeding against the Board was a motion and order to 
“ show cause” , a procedure unheard of in the annals of 
jurisprudence as such. There was no contempt citation 
(and if there had been, there was no proof), and no 
charge that the Board had acted in concert with any 
of the original defendants. The Board was an independent 
agency having full authority over the assignment of 
pupils and teachers within the system under its juris­
diction (See opinion of the justices [Sup. Ct. of Ala., 160 
So. 2d 648]). Any evidence that the Board may have 
acted jointly with the defendants in the main case, or 
committed any act in respect of or arising out of the 
same transaction or occurrence as the act or acts of any 
of the state officials who were defendants in the main 
case, was necessarily adduced prior to the Board’s having 
been made a party, and we do not believe that in any 
event there was any evidence of such in the record what­
soever.

Thus, the questions presented are so substantial as to 
require plenary consideration with briefs on the merits 
and oral argument, for their resolution. We assert: The 
venue was wrong, the Board and the individual new de­
fendants were improperly joined, the only pleading filed 
against the Board (and the other appellants) failed to 
state a claim upon which relief could be granted, and the



— 13

Board and appellants were called upon, without any suffi­
cient evidence, to acquit themselves of some charge which 
had not even been made.

Respectfully submitted,

REID B. BARNES,
Exchange Security Bank Building, 

317 North 20th Street, 
Birmingham, Alabama 35203,

GEORGE P. WHITE,
Centreville, Alabama,

Attorneys for Named Appellants.



A P P E N D I X .



APPENDIX 1.

In the United States District Court for the 
Middle District of Alabama, 

Eastern Division.
Anthony T. Lee et al., Plaintiffs,
United States of America,

Plaintiff-In ter venor and 
Amicus Curiae, 

vs.
Civil Action. 

” No. 604-E.

Macon County Board of Education 
et al., Defendants.

Writ of Injunction.
To: The Bibb County Board of Education; S. E. Belcher, 

Jr., President of the Bibb County Board of Educa­
tion; Ellington P. Jones, Henry Bolding, Britt Cox, 
and C. E. Hornsby, Jr., Members of the Bibb County 
Board of Education; and Francis B. Pratt, Superin­
tendent of Schools of Bibb County:

Take Notice that you and each of you, together with 
your officers, agents, employees, successors and all persons 
in active concert or participation with you who shall re­
ceive notice of this order, be and you are hereby Enjoined 
as more particularly set out in the Order made and en­
tered by this Court in this cause on this date, a copy of 
which is hereby served upon you.

Witness my hand and the seal of this Court on this 
the 18th day of May, 1967.

R. C. Dobson,
Clerk of the United States District 

Court for the Middle District of 
Alabama,

By: Jane P. Gordon,
Deputy Clerk.



16

In the United States District Court 
For the Middle District of Alabama, 

Eastern Division.

Anthony T. Lee et al., Plaintiffs, " 

United States of America,
Plaintiff-Intervenor and 

Amicus Curiae, 1 
vs.

Civil Action. 
No. 604-E.

Macon County Board of Education
et al., Defendants.

Order.
(Filed May 18, 1967, R. C. Dobson, Clerk.)

This cause having regularly come on for hearing on the 
Order of this Court of April 24, 1967, requiring the de­
fendant school officials of Autauga County, Bibb County, 
Cullman County and Pickens County to show cause why 
they should not be ordered to adopt desegregation plans 
meeting the standards embodied in this Court’s Order of 
March 22, 1967, upon the motion of the defendant state 
officials to drop said local school officials as party defend­
ants, and upon the objections of the Bibb County Board 
of Education and its members to the motion of the United 
States for the said Order to Show Cause, and the parties 
having appeared by counsel, and the Court having re­
ceived evidence and having heard argument of counsel, 
and

It appearing to the Court that:
1. The Autauga County Board of Education has adopted 

a plan of desegregation conforming in all regards to the 
model desegregation plan attached as Exhibit “ A” to the 
Order of this Court of March 22, 1967 and has transmitted 
such plan by letter of April 27, 1967 from its counsel to



— 1 7 -

State Superintendent Ernest Stone who in turn has sub­
mitted the plan to this Court.

2. By letter of May 1, 1967, the Superintendent of 
Schools of Cullman County transmitted to this Court a 
supplement to its desegregation plan, previously adopted, 
stating that, commencing with the 1967-68 school year, 
the Cullman County Board of Education would close the 
only traditionally Negro school maintained by the Board 
in the County and would transfer all of the Negro teachers 
presently assigned to that school to schools heretofore 
maintained for white students. By further letter of May 
8, 1967, from the Superintendent of Schools of Cullman 
County to this Court and hv statements made by their 
counsel in open Court open the hearing of these motions, 
the Board of Education of Cullman County has assured that 
all Negro students residing within the territorial limits 
of the Cullman County School System will be educated in 
the schools of Cullman County.

8. The Pickens County Board of Education on May 12, 
1967, filed with this Court an answer to the Show Cause 
Order attaching a desegregation plan which was adopted 
by the Pickens County Board of Education on May 9, 1967, 
and which conforms in all respects with the model plan 
attached as Exhibit “ A” to the Order of this Court of 
March 22, 1967.

4. The Bibb County Board of Education, its members, 
and the Superintendent of Schools of Bibb County have 
filed no response to the Order to Show Cause other than 
the “ Objections” heretofore referred to and have offered 
no evidence to show cause why the Bibb County Board of 
Education should not be ordered to adopt and implement 
a plan of desegregation, other than the statement by their 
counsel that the Board has since March 22, 1967, directed 
certain questionnaires to the students and teachers in the 
Bibb County School System. The deposition of the Super-



— 18 —

intendent of Schools of Bibb County, which was offered 
into evidence by the United States upon the hearing and 
has been received by the Court, establishes that the Board 
of Education of Bibb County is operating a dual school 
system based on race, under which it maintains separate 
schools for Negro students, staffed solely by Negro per­
sonnel and attended solely by Negro students, and main­
tains separate schools for white children, staffed solely 
by white personnel and attended solely by white students. 
The Board maintains separate bus transportation systems 
for Negro and white students. The Board has failed to 
adopt any plan for the assignment of students on a non- 
racial basis meeting the requirements of this Court’s 
Order of March 22, 1967, nor has it adopted any plan or 
taken any effective steps for the desegregation of the 
faculty or staff of the schools nor for the desegregation of 
the transportation systems. Counsel for the Board does not 
dispute these facts.

And the Court being of the view that:
1. This Court has jurisdiction of the subject matter 

raised by the Order to Show Cause, whether viewed as a 
proceeding ancillary to the main proceeding in this cause, 
or as a separate claim properly joinable with such main 
proceeding.

2. This Court has jurisdiction of the parties named in 
the Show Cause Order, and venue of the matters raised by 
that Order is properly in this Court.

3. The issues raised by the Show Cause Order with re­
spect to the defendant boards and officials of Autauga 
County, Cullman County and Pickens County have become 
moot by their actions above described.

4. The failure of the defendant board and officials of 
Bibb County to adopt a plan of desegregation or otherwise 
take effective action to disestablish the dual system in



— 19 —

Bibb County based on race and color violates the duty of 
said Board and officials under the 14th Amendment to the 
Constitution and prevents the full effectuation of this 
Court’s Order of March 22, 1967.

Now Therefore It Is Ordered:
1. The Motion of Lurleen B. Wallace, the Alabama State 

Board of Education, its members, and Ernest Stone to 
drop parties defendant is Denied.

2. The Objection of the Bibb County Board of Educa­
tion, its members and Francis B. Pratt to the motion of 
the United States is Overruled.

3. The defendant boards of education and officials of 
Autauga County, Cullman County, and Pickens County 
are discharged as parties defendant upon the ground that 
the issues raised by the Order to Show Cause are now 
moot as to them.

4. The Bibb County Board of Education, S. E. Belcher, 
Jr., President, and Ellington P. Jones, Henry Bolding, 
Britt Cox and C. E. Hornsby, Jr., members of the Bibb 
County Board of Education and Francis B. Pratt, Super­
intendent of Schools of Bibb County, together with their 
officers, agents, employees, successors and all persons in 
active concert or participation with them are enjoined to 
adopt a desegregation plan for the Bibb County School 
System in the form attached to this Order and to fully 
carry out such plan.

Done this 18th day of May, 1967.
/V  Richard T. Rives,

United States Circuit Judge,
/s /  II. H. Grooms,

United States District Judge, 
/s /  Frank M. Johnson, Jr.,

United States District Judge.



-20 —

DESEGREGATION PLAN.

The Bibb County Board of Education will take the fol­
lowing affirmative action to disestablish all state enforced 
or encouraged public school segregation and to eliminate 
the effects of past state enforced or encouraged racial 
discrimination in the operation of the school system:

I .

Exercise of Choice.

The following provisions will apply to all grades com­
mencing with the 1967-68 school year:

A. Who May Exercise Choice. A choice of schools may 
be exercised by a parent or other adult person serving as 
the student’s parent. A student may exercise his own choice 
if he (1) is exercising a choice for the ninth or a higher 
grade, or (2) has reached the age of fifteen at the time 
of the exercise of choice. Such a choice by a student is 
controlling unless a different choice is exercised for him 
by his parent or other adult person serving as his parent 
during the choice period or at such later time as the 
student exercises a choice. Each reference in this plan 
to a student’s exercising a choice means the exercise of 
the choice, as appropriate, by a parent or such other 
adult, or by the student himself.

B. Annual Exercise of Choice. All students, both white 
and Negro, will be required to exercise a free choice of 
schools annually.

C. Choice Period. The period for exercising choice will 
commence May 22, 1967 and end June 9, 1967, and in sub­
sequent years will commence March 1 and end March 31 
preceding the school year for which the choice is to be 
exercised. No student or prospective student who exer-



—  21 —

cises his choice within the choice period will be given 
any preference because of the time within the period 
when such choice was exercised.

D. Mandatory Exercise of Choice. A failure to exercise 
a choice within the choice period will not preclude any 
student from exercising a choice at any time before he 
commences school for the year with respect to which the 
choice applies, but such choice may be subordinated to 
the choices of students who exercised choice before the 
expiration of the choice period. Any student who has not 
exercised his choice of school within a week after school 
opens will be assigned to the school nearest his home 
where space is available under standards for determining 
available space which will be applied uniformly through­
out the system.

E. Public Notice. On or within a week before the date 
the choice period opens, the school board will arrange 
for the conspicuous publication of a notice describing the 
provisions of this plan in the newspaper most generally 
circulated in the community. The text of the notice will 
be substantially similar to the text of the explanatory 
letter sent home to parents. Publication as a legal notice 
will not be sufficient. Copies of this notice will also be 
given at that time to all radio and television stations 
serving the community. Copies of this plan will be posted 
in each school in the school system and at the office of 
the Superintendent of Education.

F. Mailing of Explanatory Letters and Choice Forms.
On the first day of the choice period there will be dis­
tributed an explanatory letter and a choice form to the 
parent (or other adult person acting as parent, if known 
to the school board) of each student, together with a 
return envelope addressed to the Superintendent. The 
text for the explanatory letter and choice form will essen­
tially conform to the sample letter and choice form 
appended to this plan.



22 —

Gr. Extra Copies of the Explanatory Letter and Choice 
Form. Extra copies of the explanatory letter and choice 
form will be freely available to parents, students, pro­
spective students, and the general public at each school in 
the system and at the office of the Superintendent of 
Education during the times of the year when such schools 
are usually open.

H. Content of Choice Form, Each choice form will set 
forth the name and location of and grades offered at each 
school and may require of the person exercising the choice 
the name, address, age of student, school and grade cur­
rently or most recently attended by the student, the school 
chosen, the signature of one parent or other adult person 
serving a,s parent, or where appropriate the signature of 
the student, and the identity of the person signing. No 
statement of reasons for a particular choice, or any other 
information, or any witness or other authentication, will 
be required or requested.

I. Return of Choice Form. At the option of the person 
completing the choice form, the choice may be returned 
by mail, in person, or by messenger to any school in the 
school system or to the office of the Superintendent.

J. Choices Not on Official Form. The exercise of choice 
may also be made by the submission in like manner of any 
other writing which contains information sufficient to 
identify the student and indicates that he has made a 
choice of school.

K. Choice Forms Binding. When a choice form has 
once been submitted and the choice period has expired, 
the choice is binding for the entire school year and may 
not be changed except in cases of parents making different 
choices for their children under the conditions set forth 
in paragraph I-A of this plan and in exceptional cases 
where, absent the consideration of race, a change is edu-



eationally called for or where compelling hardship is 
shown by the student.

L. Preference in Assignment. In assigning students to 
schools, no preference will be given to any student for 
prior attendance at a school and except with the approval 
of the State Superintendent of Education in extraordinary 
circumstances, no choice will be denied for any reason 
other than overcrowding. In case of overcrowding at any 
school, preference will be given on the basis of proximity 
of the school to the home of the students choosing it, 
without regard to race or color. Standards for determin­
ing overcrowding will be applied uniformly throughout 
the system.

M. Second Choice Where First Choice Is Denied. Any
student whose choice is denied will be promptly notified 
in writing and given his choice of any school in the school 
system serving his grade level where space is available. 
The student will have seven days from the receipt of no­
tice of a denial of first choice in which to exercise a second 
choice.

N. Transportation. Where transportation is generally 
provided, buses will be routed to the maximum extent 
feasible in light of the geographic distribution of stu­
dents, so as to serve each student choosing any school in 
the system. Every student choosing the school nearest 
his residence must be transported to the school to which 
he is assigned under these provisions, whether or not it is 
his first choice, if that school is at least two miles from 
his residence. The school system will adopt non-discrim- 
inatory bus routes and criteria governing the availability 
of bus transportation to students, so that race will not be 
a basis for assigning students to school buses and over­
lapping and duplicative bus routes based on race will be 
eliminated. Prior to the choice period, parents and chil­
dren will be advised that such routes and criteria will be



adopted, and substantially prior to the opening of the 
1967-68 school year the parents and children will be noti­
fied of the routes and criteria, in a readily understandable 
manner.

O. Officials Not to Influence Choice. At no time shall 
any official, teacher, or employee of the school system in­
fluence any parent, or other adult person serving as a par­
ent, or any student, in the exercise of a choice or favor or 
penalize any persons because of a choice made. If the 
school board employs professional guidance counselors, 
such persons will base their guidance and counseling on 
the individual student’s particular personal, academic, and 
vocational needs. Such guidance and counseling by teach­
ers as well as professional guidance counselors will be 
available to all students without regard to race or color.

P. Protection of Persons Exercising Choice. Within 
their authority, school officials are responsible for the 
protection of persons exercising rights under or otherwise 
affected by this plan. They will, without delay, take 
appropriate action with regard to any student or staff 
member who interferes with the successful operation of 
the plan. Such interference will include harassment, 
intimidation, threats, hostile words or acts, and similar 
behavior. The school board will not publish, allow, or 
cause to be published, the names or addresses of pupils 
exercising rights or otherwise affected by this plan. If 
officials of the school system are not able to provide suf­
ficient protection, they will seek whatever assistance is 
necessary from other appropriate officials.

II.

Prospective Students.
Each prospective new student will be required to exer­

cise a choice of schools before or at the time of enroll­



ment. Each such student known to the school system will 
be furnished a copy of the prescribed letter to parents, 
and choice form, by mail or in person, on the date the 
choice period opens or as soon thereafter as the school 
system learns that he plans to enroll. Where there is no 
preregistration procedure for newly entering students, 
copies of the choice forms will be available at the office 
of the Superintendent and at each school during the time 
the school is usually open.

III.

Services, Facilities, Activities and Programs.
No student will be segregated or discriminated against 

on account of race or color in any service, facility, activ­
ity, or program (including transportation, athletics, or 
other extra-curricular activity) that may be conducted 
or sponsored by or affiiliated with the school in which he 
is enrolled. A student attending school for the first time 
on a desegregated basis wTill not be subect to any dis­
qualification or waiting period for participation in activi­
ties and programs, including athletics, which might other­
wise apply because he is a transfer or newly assigned 
student except that, such transferees shall be subject to 
longstanding, nonracially based rules of city, county, or 
state athletic associations dealing with the eligibility of 
transfer students for athletic contests. All school use or 
school sponsored use of athletic fields, meeting rooms, 
and all other school related services, facilities, activities, 
and programs such as commencement exercises and 
parent-teacher meetings which are open to persons other 
than enrolled students, will be open to all persons without 
regard to race or color. All special educational programs 
conducted by the school system will be conducted with­
out regard to race or color.



—  26 —

IV.

School Equalization.
A. Inferior Schools. In schools heretofore maintained 

for Negro students, the school system will take prompt 
steps necessary to provide physical facilities, equipment, 
courses of instruction, and instructional materials of 
quality equal to that provided in schools previously main­
tained for white persons. Conditions of overcrowding, as 
determined by pupil-teacher ratios and pupil-classroom 
ratios will, to the extent feasible, be distributed evenly 
between schools formerly maintained for Negro students 
and those formerly maintained for white students. If for 
any reason it is not feasible to improve sufficiently any 
school formerly maintained for Negro students, where 
such improvement would otherwise be required by this 
subparagraph, such school will be closed as soon as possi­
ble, and the students enrolled in the school will be re­
assigned on the basis of freedom of choice. By October 
of each year, the school board will report to the State 
Superintendent of Education pupil-teacher ratios, pupil- 
classroom ratios, and per-pupil expenditures both as to 
operating and capital improvement costs, and will outline 
the steps to be taken and the time within which they 
will accomplish the equalization of such schools.

B. Remedial Programs. The school system will provide 
remedial education programs which permit students at­
tending or who have previously attended all-Negro 
schools to overcome past inadequacies in their education.

V.

School Construction and Consolidation.
To the extent consistent with the proper operation of 

the school system as a whole, the school board will, in



locating and designing new schools, in expanding exist­
ing facilities, and in consolidating schools, do so with 
the object of eradicating past discrimination and of 
effecting desegregation. The school board will not build, 
consolidate or expand schools based on recommendations 
of any state survey conducted prior to March 1967 unless 
the state reapproves such building, consolidation or ex­
pansion. The school board will not fail to consolidate 
schools because desegregation would result.

VI.

Faculty and Staff.
A. Faculty Employment and Assignment. Race or color 

will not be a factor in the hiring, assignment, reassign­
ment, promotion, demotion, or dismissal of teachers and 
other professional staff members, including student 
teachers, except that race will be taken into account for 
the purpose of correcting the effect of the past segregated 
assignment of teachers in the dual system. Teachers, 
principals, and staff members will be assigned to schools 
so that the faculty and staff is not composed exclusively 
of members of one race. Wherever possible, teachers will 
be assigned so that more than one teacher of the minority 
race (white or Negro) will be on a desegregated faculty. 
The school board will take affirmative steps to accomplish 
the desegregation of its school faculties, including sub­
stantial desegregation of faculties in as many of the 
schools as possible for the 1967-68 school year. The ob­
jective of the school system is that the pattern of teacher 
assignment to any particular school shall not be indentifi- 
able as tailored for a heavy concentration of either Negro 
or white pupils in the school. The school system will 
accomplish faculty desegregation in a manner whereby 
the abilities, experience, specialties, and other qualifica­
tions of both white and Negro teachers in the system



will be, insofar as administratively feasible, distributed 
evenly among the various schools of the system.

B. Dismissals. Teachers and other professional staff 
members will not be discriminatorily assigned, dismissed, 
demoted, or passed over for retention, promotion, or re­
hiring, on the ground of race or color. In any instance 
where one or more teachers or other professional staff 
members are to be displaced as a result of desegregation, 
no staff vacancy in the school system will be filled through 
recruitment from outside the system unless no such dis­
placed staff member is qualified to fill the vacancy. If, as 
a result of desegregation, there is to be a reduction in 
the total professional staff of the school system, the quali­
fications of all staff members in the system will be 
evaluated in selecting the staff member to be released 
without consideration of race or color. A report con­
taining any such proposed dismissals, and the reasons 
therefor, shall be filed with the State Superintendent of 
Education.

VII.

Reports.
A. Report on Choice Period. The school system will 

file with the State Superintendent of Education on or 
before June 10 of each year a report tabulating by race 
the number of choice applications and transfer applica­
tions received for enrollment in each grade in each school 
in the system, and the number of choices and transfers 
granted and the number of denials in each grade of each 
school. The report will also state any reasons relied upon 
in denying choice and shall tabulate, by school and by 
race of student, the number of choices and transfers 
denied for each such reason.

B. Report After School Opening. The system will file 
with the State Superintendent of Education within 15



29 —

days after the opening of schools for the fall semester of 
each year a report setting forth the following information:

(1) The name, address, grade, school of choice and 
school of present attendance of each student who has 
withdrawn or requested withdrawal of his choice of 
school or who has transferred after the start of the 
school year, together with a description of any action 
taken on his request and the reasons therefor.

(2) The number of faculty vacancies, by school, that 
have occurred or been filled since the adoption of this 
plan or the latest report submitted pursuant to this 
subparagraph. This report shall state the race of 
the teacher employed to fill each such vacancy and 
indicate whether such teacher is newly employed or 
was transferred from within the system. The tabula­
tion of the number of transfers within the system 
shall indicate the schools from which and to which 
the transfers were made. The report shall also set 
forth the number of faculty members of each race 
assigned to each school for the current year.

(3) The number of students by race, in each grade 
of each school.

EXPLANATORY LETTER.

(School System Name and Office Address)

(Date Sent)
Dear Parent:

All grades in our school system will be desegregated 
next school year. Any student who will be entering one 
of these grades next year may choose to attend any school 
in our system, regardless of whether that school was 
formerly all white or all Negro. It does not matter which



— 30 —

school your child is attending this year. You and your 
child may select any school you wish.

Every student, white and Negro, must make a choice 
of schools. If a child is entering the ninth or higher 
grade, or if the child is fifteen years old or older, he may 
make the choice himself. Otherwise a parent or other 
adult serving as parent must sign the choice form. A 
child enrolling in the school system for the first time must 
make a choice of schools before or at the time of his 
enrollment.

The form on which the choice should be made is at­
tached to this letter. It should be completed and returned 
by June 9, 1967.* You may mail it in the enclosed en­
velope, or deliver it by messenger or by hand to any 
school principal or to the office of the Superintendent at 
any time between May 22 and June 9. No one may re­
quire you to return your choice form before June 9, and 
no preference is given for returning the choice form early.

No principal, teacher or other school official is permitted 
to influence anyone in making a choice or to require early 
return of the choice form. No one is permitted to favor 
or penalize any student or other person because of a 
choice made. A choice once made cannot be changed 
except for serious hardship.

No child will be denied his choice unless for reasons of 
overcrowding at the school chosen, in which case children 
living nearest the school will have preference.

Transportation will be provided, if reasonably possible, 
no matter what school is chosen. The school board is re­
routing buses and writing new rules for assigning stu-

* In  subsequent years the dates in both the explanatory let­
te r and the choice form should be changed to conform to the 
choice period.



0 1
—  01  —

dents to buses, so that there will be no more overlapping 
bus routes and students will be assigned to buses without 
regard to race. (Delete if the school system does not 
provide transportation.)

Your school board and the school staff will do every­
thing we can to see to it that the rights of all students 
are protected and that desegregation of our schools is 
carried out successfully.

Sincerely,
Superintendent.

CHOICE FORM.

This form is provided for you to choose a school for 
your child to attend next school year. You have 18 days 
to make your choice. It does not matter which school 
your child attended last year, and does not matter whether 
the school you choose was formerly a white or a Negro 
school. This form must be mailed or brought to the prin­
cipal of any school in the system or to the office of the 
Superintendent (address), by June 9, 1967. A choice is 
required for each child.

Name of child ......................................................................
(Last (First) (Middle)

Address .............................................................

Name of parent or other
adult serving as p aren t....................................

If child is entering first grade, date of birth:

(Month (Day) (Year)

Grade child is entering ............................................

School attended last y e a r ...........................................



Choose one of the following schools by marking an X be­
side the name.

Grades
Name of school Offered Location

( ) ..........................................................................................................
( ) ..........................................................................................................

(All schools in the district, the grades offered by 
each, and the location of each will be listed on the 
form prior to its distribution to parents and stu­
dents.)

Signature .............. ...........................................

Date

To be filled in by Superintendent: 
School assigned ..............



33 —

APPENDIX 2.

In the United States District Court for the 
Middle District of Alabama.

Anthony T. Lee et al., Plaintiffs, '

United States of America,
Plaintiff-Intervenor 

and Amicus Curiae, 
vs.

Macon County Board of Education 
et al., Defendants, j

Objection of the Bibb County Board, of Education, El­
lington P. Jones, Henry Boulding, Britt Cox, C. E. 
Hornsby, Jr., and Francis B. Pratt, to the Motion of 
the United States.

The Bibb County Board of Education and the individu­
als above named hereby object to the motion of the United 
States and say that the motion should be dismissed or 
overruled and as grounds hereof assign the following, 
separately and severally:

1. This Court has no jurisdiction on the motion of the 
United States in this proceeding, to require the said Board 
or the individuals to submit a plan of desegregation as 
called for in said motion.

2. Said Bibb County Board and each of the said indi­
viduals are residents only of Bibb County, Alabama, in the 
Northern District of Alabama, and there is improper venue 
as to each of them, in this proceeding, within the meaning 
of Section 1391, Title 28, United States Code Annotated.

3. The said motion is merely a supplementary, and not 
an original, proceeding and there is no sufficient showing

Civil Action. 
No. 604-E.



34 —

that this Court has jurisdiction to require the said Board 
and individuals to show cause why the said plan of de­
segregation should not be put into effect.

4. This Court was without jurisdiction to enter an order 
directing the State Superintendent of Education to direct 
the said Board to file said plan of desegregation, in its de­
cree heretofore rendered (said Board having not been made 
a party to the said cause at the time), and this Court has 
now no jurisdiction to require this Board to submit such 
plan, or to show cause why it should not submit such a 
plan.

5. Requiring this Board in this procedure to submit such 
plan of desegregation, or to show cause why it should not 
do so, is not within the purview of the legal authority for 
appointing a three-judge court to pass upon the consti­
tutionality of a state act (or the provision providing for 
granting tuition by the local boards to pupils to attend 
private schools), or of the purpose for designating such 
Court or for which such Court could have been designated.

6. This Board is an independent agency of the State of 
Alabama, vested by its laws with the sole power to assign 
or hire teachers, or to assign students, under the supervi­
sion of said Board, and this Board is not properly joined 
in this action, for reasons of improper venue and for other 
legal reasons.

7. The said motion, and the summons and order of the 
Court pursuant thereto, do not sufficiently inform the said 
Board and the said individuals as to the manner and ex­
tent in which or to which it is required to answer at this 
time.

8. This Board, and said individuals, cannot be legally 
required, and should not be required, to submit a plan of 
desegregation or to show cause why it should not submit 
one, without an original suit and hearing thereon.



9. The said Board and said individuals are not properly 
.joined as defendants or respondents in this action under 
Buie 20, Federal Rules of Civil Procedure, or otherwise.

10. The said motion of the United States fails to state 
a claim against the said Board and the said individual 
objectors above named, upon which relief can be granted.

Since Rule 12 (b) of the Rules of Civil Procedure allow 
the filing by a defendant or defendants of a motion raising 
the defenses set forth in said Rule, as a preliminary re­
sponsive pleading, this said Board and the said individ­
uals pray that the above objection, and each ground 
thereof, separately and severally, be treated in the alter­
native and separately as such a motion.

George P. White,
Centreville, Alabama,

Reid B. Barnes,
Exchange Security Bank Building, 

Birmingham, Alabama 35203,
Attorneys for the Bibb County Board 

of Education, and the individual 
objectors above named.



36 —

APPENDIX 3.

The following questions are presented by this appeal: 
Did the Court err by taking the actions listed below!

1. Granting a permanent mandatory judgment in the 
Order of March 22, 1967, compelling the original defend­
ants to act so as to materially and adversely affect the 
rights of the appellant, The Bibb County Board of Educa­
tion, although said appellant had not been served with 
process and was not actually or constructively before the 
Court—all in violation of the Constitution of the United 
States and particularly the due process clause of the Fifth 
Amendment.

2. Granting a mandatory injunction requiring the ap­
pellant, The Bibb County Board of Education, to adopt 
the specific plan of desegregation attached to the said 
Order and Judgment of the District Court from which 
this appeal is taken, filed May 18, 1967, contrary to the 
Constitution of the United States and particularly the 
Tenth and Eleventh Amendments thereof, and in viola­
tion of the Constitutional separation of governmental pow­
ers between the United States of America and the States, 
and also such separation of powers between the judicial, 
executive and legislative branches of the States and the 
United States.

3. Entering the Order filed April 24, 1967, adding the 
appellant, The Bibb County Board of Education, and the 
individual appellants named in this Notice of Appeal, to 
show cause why said Board of Education and its mem­
bers should not be required to adopt the plan of desegre­
gation above described, and thereby improperly joining 
said The Bibb County Board of Education as a party de­
fendant after the final judgment of March 22, 1967, had 
been entered, such joinder not being in proper imple-



— 37 —

mentation or enforcement of the said Judgment of March 
22, 1967.

4. Entering the Order filed April 24, 1967, adding the 
appellant, The Bibb County Board of Education, and the 
individual appellants named in this Notice of Appeal, to 
show cause why said Board of Education and its members 
should not be required to adopt the plan of desegregation 
above described, and thereby improperly joining said The 
Bibb County Board of Education as a party defendant 
after the final judgment of March 22, 1967, had been en­
tered, such joinder not being authorized either under 
§ 1391, Title 28, United States Code, or any other venue 
statute, and not being proper under Rule 20 of the Federal 
Rules of Civil Procedure, or any other statute of rule.

5. In ovei’ruling by the said Order and Judgment of 
May 18, 1967, above described, the Objection of the said 
defendant, The Bibb County Board of Education, and the 
other individual appellants named herein, to the Motion 
of the United States (characterized as an “ Objection” ), 
and in the alternative the Motion under Rule 12 (b), 
Rules of Civil Procedure.

6. Holding by the Order and Judgment filed May 18, 
1967, that the Court had jurisdiction of the cause pre­
sented by the Motion of the United States filed April 22, 
1967.

7. Holding by the Order and Judgment filed May 18, 
1967, that the Court had venue of the cause presented by 
the Motion of the United States filed April 22, 1967.

8. Holding by said Decree that the Court had jurisdic­
tion of the defendant, The Bibb County Board of Educa­
tion, and the individuals named herein as appellants.

9. Holding by said Decree that the Court had venue 
of the defendant, The Bibb County Board of Education, 
and the individual appellants named in this notice, all



— 38 —

of whom were shown without dispute to be residents of 
the Northern District of Alabama.

10. Holding by said Decree that the defendant, The 
Bibb County Board of Education, and the individual ap­
pellants named in this Notice, were properly joined as 
parties defendant.

11. In overruling in the hearing on May 13, 1967, be­
fore this Court the objection of the defendant, The Bibb 
County Board of Education, and the other individual de­
fendants, to the introduction of the deposition of the 
Superintendent of Schools of Bibb County, and in receiv­
ing said deposition in evidence over said objection, such 
deposition having been taken prior to any addition of said 
The Bibb County Board of Education and the other ap­
pellants named in this notice, were added or made parties 
defendant, and their being no representation of these 
appellants or presence of them or their representatives 
at the taking of said deposition.

12. Holding by said Order and Judgment, filed May 18, 
1967, that the Motion of the United States seeking to 
require said The Bibb County Board of Education to 
show cause why the said plan of desegregation should 
not be filed, stated a claim upon which relief could be 
granted.