Buchanan v. City of Jackson TN Brief on Appeal of Defendant Appellee City of Jackson

    llmti'i) States (Emtrt of Appeals
F ob t h e  F ourth Circuit

No. 11,794

Civil Action No. C 1796

Harold D ouglas C oppedge, a minor, et al.,

U nited States of A merica, by Ramsey Clark,
Attorney General,

Appellees,
—v.—

T he F ran k lin  C ounty  B oard of E ducation , et al.,

Appellants.

A PPE A L FROM  T H E  DISTRICT COURT OF T H E  U N IT E D  STATES 

FOR T H E  EASTERN DISTRICT OF N O R T H  CAROLINA 

R A LE IG H  D IV ISIO N -C IV IL

BRIEF FOR THE UNITED STATES, 
PLAINTIFF-INTERVENOR APPELLEE

S teph en  J. P ollak

Assistant Attorney General

F ran k  E. S chw elb 
F rancis H. K ennedy 

Attorneys,

Department of Justice 
Washington, D.C. 20530

ja m b s



I N D E X

Introductory Statement ................................................... - 1

Proceedings Below ........................................................... - 6

The Evidence........................................................................ 6

I. Defendants’ Adherence to Policies and Prac­
tices Which Perpetuate a Dual System Based 
on R a ce ...................................................................... 6

A. School Organization and Utilization ........... 6

B. Assignment of Staff and Faculty.........................9

C. Disparities ......................................................... - 13

D. Transportation ..................................................  17

II. Pressures Inhibiting the Exercise of Free 
Choice .......................................................................  23

A. Community Attitudes ......................................  24

B. Acts of Intimidation...........................................  26

C. Defendants’ Attempts to Refute the Proof
of Intimidation -.................................................  31

D. The Legal Effect of Community Attitudes
and Intimidation on the Constitutionality of 
the Freedom of Choice P la n ..........................  37

PAGE

Conclusion 44



11

Cases

page

Bowman v. County School Board of Charles City 
County, Va., 382 F.2d 326 (4th Cir. 1967) ....11, 23, 38, 40

Bradley v. School Board, 382 U.S. 103 (1965) .......11,43-44
Brown v. Board of Education, 347 U.S. 483 (1954) 11,13,17

Coppedge v. Franklin County Board of Education,
273 F. Supp. 282 (E.D.N.C. 1967); 12 Race Eel.
L. Eep. 230 (E.D.N.C. 1966) .............................. 1, 3, 6, 37

Corbin and United States v. County School Board of
Loudoun County, V a .,------F. Supp.------- , C.A. No.
2737 (E.D. Va., Aug. 29, 1967) .......................... 19, 20, 22

Cypress v. Newport News Gen. Hospital, 375 F.2d 648 
(4th Cir. 1967) ..............................................................38, 40

Dallas Co. v. Commercial Union Assurance Co., 286
F.2d 388 (5th Cir. 1961) ..............................................  33

Darter v. Greenville Hotel Corp., 301 F.2d 70 (4th
Cir. 1962) .............................................................. ..........  24

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949),
aff’d 336 U.S. 933 (1949) .............................................. 33

Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1965), afif’d 375 F.2d 158 (10th 
Cir. 1967), cert. den. 387 U.S. 931 (1967) ................... 12

Goss v. Board of Education of Knoxville, 373 U.S. 
683 (1963) ..............................................................

Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E.D. La. 1961), aff’d 368 U.S. 515 (1962) ....... 33

Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) 30



I l l

Kelly v. Altheimer, Ark. School Dist., 378 F.2d 483
(8th Cir. 1967) ..............................................9,12,16,17,19

Kelly v. Board of Education of City of Nashville,
270 F.2d 209 (6th Cir. 1959) ......................................  39

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) ........... 22
Kiev v. County School Bd. of Augusta Co., Va., 249

F. Supp. 239 (W.D. Va. 1966) .......................10,12-13, 34

Lee v. Macon County Board of Education, 267 F. Supp.
458 (M.D. Ala. 1967) (three judge court) ...............8, 38

Moses v. Washington Parish, La. School Board, —*—
F. Supp.------ (C.A. No. 15973, E.D. La., October 19,
1967) ........................................................................... 9,21,22

Rogers v. Paul, 382 U.S. 198 (1965) ........................ . 11

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865 (5th Cir. 1966) ..........................9,22

Swann v. Charlotte Mecklenburg Bd. of Educ., 369 
F.2d 29 (4th Cir. 1966) ...................     33

Teel v. Pitt County Board of Education, 272 F. Supp.
703 (E.D.N.C. 1967) ...................................................... 43

Thompson v. County School Board of Hanover County,
252 F. Supp. 546 (E.D. Va. 1966) ............................... 12

United States v. Haywood County Board of Education,
271 F. Supp. 460 (W.D. Term. 1967) .......................41-43

United States v. Jefferson County Board of Education,
aff’d 372 F.2d 836 (5th Cir. 1966), aff’d on reh. en 
banc 380 F.2d 385 (5th Cir. 1967) ....12,13,16,17, 22,40, 41 

United States v. Original Knights of Ku Klux Klan,
250 F. Supp. 330 (E.D. La. 1965) (three-judge 
court) ...............................................................................  24

PAGE



IV

United States v. State of Louisiana, 225 F. Supp. 353
(E.D. La. 1963), aff’d 380 TT.S. 145 (1965) ............... 33

Usiak v. New York Tank Barge Company, 299 F.2d 808 
(2d Cir. 1962) .................................................................. 33

Vick v. County School Board of Obion County, Tenn.,
205 F. Supp. 436 (W.D. Tenn. 1962) ...................... 26, 39

Wheeler v. Durham City Board of Education, 363 F.2d
738 (4th Cir. 1966) .......................................................... 9

Wright v. County School Board, 252 F. Supp. 378 
(E.D. Va. 1966) .............................................................. 37

PAGE

O ther  A uthorities

U. S. Department of Health, Education and Welfare, 
Office of Education: Revised Statement of Policies 
for School Desegregation Plans Under Title .V I of 
the Civil Rights Act of 1964. 45 CFR §181.54 .......40-41

Rep. U. S. Comm, on Civil Rights, Survey of Deseg­
regation in the Southern and Border States, 
1965-66 ........................................................................... 17,40

Rule 52a, Federal Rules of Civil Procedure ............... 23



Initeii States (Umtrt nf Appeals
F ob th e  F ourth  C ircuit 

No. 11,794

Civil Action No. C 1796

H arold D ouglas Coppedge, a m inor, et al.,
U nited S tates oe A merica, by R am sey C lark , 

Attorney General,
Appellees,

T he  F ran k lin  County  B oard op E ducation , et al.,
Appellants.

APPE A L PROM  T H E  DISTRICT COURT OF T H E  U N ITED  STATES 

FOR T H E  EASTERN DISTRICT OP N O R TH  CAROLINA 

RALEIGH  D IV ISIO N -C IV IL

BRIEF FOR THE UNITED STATES, 
PL AINTIFF-INTER YEN OR APPELLEE

Introductory Statement

Defendants, the Board of Education of Franklin County, 
North Carolina and its members, appeal from a decision 
of the Honorable Algernon Butler, United States District 
Judge for the Eastern District of North Carolina,1 hold­
ing that they had made insufficient progress in Franklin 
County towards the disestablishment of a dual school sys­
tem based on race, and directing them to take various 
affirmative steps to assure equal educational opportunities 
to all of the students in the District. The relief ordered 
by the District Court included the requirement that the

1 The decision below is reported at 273 F. Supp. 282 (E.D. N.C. 1967).



2

defendants adopt and implement a plan for desegrega­
tion other than so-called “ freedom of choice,” which the 
Court described as illusory and a misnomer under the 
existing circumstances. The thrust of defendants’ argu­
ment on appeal is that the evidence is said to be insuffi­
cient to sustain those of the District Court’s findings which 
led that Court to hold that extensive intimidation and 
community hostility to desegregation have made so-called 
freedom of choice, in Franklin County, a misnomer and a 
constitutionally inadequate means to achieve desegrega­
tion. We disagree. We think that the District Court dis­
played considerable patience for nearly two years with 
defendants’ inadequate progress towards desegregation 
and with a completely illusory “freedom of choice,” and 
took great pains to try to make this plan work. After its 
efforts failed, the District Court had no constitutional 
alternative to the action which it took.

While defendants dispute the sufficiency of the evidence 
to support the Court’s findings, much of the proof in the 
case is uncontested. Apart from the question of intimida­
tion, the entire structure of the school system has been 
and is such as to keep the schools almost completely 
segregated:

(1) The location of schools and grades is such that there 
are pairs of schools covering grades 1-12 in four separate 
areas of the county, one white2 and one Negro. Each 
Negro school is within a mile or so of a white school 
offering the same grades. Several of the schools have so 
few students in the high school grades that their opera­
tion as separate high schools is educationally indefensible.

2 For purposes of convenience, we will refer to all-white and predomi­
nantly white schools simply as “white”  schools, and the schools heretofore 
maintained for Negroes as “Negro”  schools. We recognize that, techni­
cally, these schools are all “ free choice”  schools, but the statistics in the 
County justify our terminology.



3

In general, the system of side-by-side schools offering the 
same grades is extravagant and unsound, offers no educa­
tional advantage whatever, and is explicable only in racial 
terms. (See pp. 6-9, infra.)

(2) In spite of the entry of the Interim Order in July, 
1966, requiring non-racial assignment of new faculty mem­
bers and the encouragement of faculty and staff members 
already employed to cross racial lines,3 the defendants 
made only minimal progress in faculty desegregation. 
Staff and faculty desegregation for 1966-67 involved five 
individuals of a total faculty of more than 200. The only 
actual classroom teacher desegregation achieved during 
that year consisted of a white lady who taught English at 
an all-Negro high school for five hours per week. Nine of 
the twelve schools in the system were totally unaffected by 
faculty desegregation, and every school in the district re­
mained—and remains today—racially identifiable by the 
composition of its faculty. (See pp. 9-13, infra.)

(3) Substantial educational disparities exist between pre­
dominantly white and Negro schools in Franklin County. 
The summary of the evidence of disparities set forth in 
the District Court’s Findings of Fact (D. App. 27A-28A), 
which is based on defendants’ records and which they 
cannot and do not contest, shows among other things that 
the buildings and equipment in predominantly white schools 
had, at the time this suit was brought, a per pupil valua­
tion more than three times as great as the buildings and 
equipment in the Negro schools. Negro schools have been

3 See Coppedge v. Franlclin County Board of Education, 12 Race Rel. 
L. Rep. 230 (E.D. N.C. 1966), (D. App. 7-A-14-A). References to De­
fendants’ Appendix are indicated herein by D. App. and page numbers. 
References to Appellees’ Appendix are indicated herein by the page 
number followed by the letter “a.”



4

seriously overcrowded, in terms of pupils per classroom, 
pupils per teacher and acreage of site, and Negro pupils 
residing near underutilized white schools have been bused 
fourteen miles, each way, on a daily basis to overcrowded 
Negro schools. Additions to the schools have also been 
made in a manner tending to perpetuate segregation. (See 
pp. 13-17, infra.)

(4) The transportation system which has been utilized 
in Franklin County is unreasonable and uneconomical and 
can be explained only in racial terms. While formerly white 
and Negro schools in this rural county are located prac­
tically side by side, their bus routes are separate and over­
lapping, with the effect that two buses do on a racially 
separate basis what one could do if race were ignored. 
When bus routes of different schools have been combined, 
this has always been done on a racial basis, so that, e.g. 
one Negro elementary school shares a bus route with 
another Negro school 14 miles away rather than with a 
white school half a mile away. (See pp. 17-23, infra.)

It is our basic contention in this case that all of these 
policies and practices are rooted in the dual system, are 
educationally and administratively unsound, and serve 
as devices to keep Negro students separate from white 
students, to preserve all-Negro schools, and to induce 
Negro students to attend them. In Franklin County, the 
annual median Negro family income is $1,281, about 
one-third of the white. When the policies of the school 
board, in such a county, are directed to the one controlling 
end of preserving the racial identities of schools, there 
is little doubt that, even apart from overt intimidation, 
comparatively little desegregation will result. In this case, 
adherence by the defendants to these dual system policies



5

has been accompanied by extensive community hostility to 
desegregation, characterized by bombings, shootings into 
homes, pollution of wells, tacks in driveways, threats, 
harassing telephone calls, economic coercion, and other 
measures, all in a county where the Ku Klux Klan is 
widely known to be powerful. No Negro has been able to 
elect to attend a formerly white school with any confidence 
that he would not suffer serious reprisals.

We believe that it has been and is inevitable under these 
circumstances, that actual desegregation under the “ free 
choice” system would be minimal, and so it has been. 
During the fourth freedom of choice period conducted in 
Franklin County in the spring of 1967, 45 of more than 
3,100 Negro students chose desegregated schools, four 
fewer than in the previous year. All of the white students 
again elected to attend white schools. Had the District 
Court not intervened, 1.5% of the Negro students would 
have attended desegregated schools in 1967-68, while the 
remaining 98.5% of the Negro students and 100% of the 
white students would have attended schools still more or 
less maintained for their color.4

We believe that the testimony and exhibits in this case 
demonstrate why “freedom of choice” had to fail, and that 
the statistical evidence shows the degree to which it has 
failed. Since the Constitution requires that the dual sys­
tem based on race be disestablished, the District Judge 
ordered the defendants to put an end to their educationally 
unsound and race-directed practices and to adopt a system 
which makes educational sense and will desegregate the 
schools as well. We submit that he could hardly have 
ordered less.

4 In North Carolina, as a whole, in 1966-67, 15.4% of the Negro students 
attended desegregated schools. In Mississippi, the corresponding figure 
was 2.5% (D-App. 24A-25A.)



6

Proceedings Below

The history of the action is fully described in the Opinion 
and Order of the Court below (D. App. 15A-17A).6 Since 
Notice of Appeal was filed, a group of Negro parents 
opposed to the District Court’s decree have moved this 
Court for leave to intervene in the action. The facts sur­
rounding this motion, which we oppose as an untimely 
attempt to relitigate what the District Court has already 
decided, are discussed in our Response thereto, filed De­
cember 7, 1967.

THE EVIDENCE

I.
Defendants’ Adherence to Policies and Practices 

Which Perpetuate a Dual System Based on Race.

A. School Organization and Utilization.

A  study of the Franklin County school system was made 
for this case by William L. Stormer, Assistant Chief of 
the School Construction Section of the Division of School 
Assistance, United States Office of Education. Mr. Stormer 
testified in the action (1036a et seq.) and compiled a writ­
ten report which is attached to his deposition (1551a et 
seq.). Despite ample opportunity to do so, defendants de­
clined to cross-examine Mr. Stormer on deposition or at the 
trial and, for the most part, his testimony is uncontradicted.

Mr. Stormer testified, and the evidence shows, that the 
schools in four areas of Franklin County (Louisburg, Bunn, 
Youngsville and Gold Sand) are organized in groups and 
clusters of two or three, one traditionally white and one 5

5 See 273 F. Supp. 289, 292-293 (E.D. N.C. 1967).



7

or more Negro (1040a-1041a). Every Negro school is with­
in a mile or so of a predominantly white school covering 
the same grades (1041a). In two other parts of the county 
—Epsom and the general area of Edward Best High School 
and Edward Best Elementary School—there are white 
schools but no Negro schools (1041a, 1415a-1416a). Several 
of the high schools in the county are very small (Epsom, 
a white school, had 72 children in grades 9-12 last year), 
and only one or two are large enough to mate diversified 
educational opportunities available to students at a reason­
able cost per pupil (217a, 1043a).

Mr. Stormer was asked whether a system in which pairs 
of schools offering the same grades were located in the 
same area presented any educational disadvantages, and 
he listed several:

(a) A more diversified program may be offered in a 
large school than in a small one, particularly in 
the high school grades (1042a). For example, 
Bunn (white) and Gethsemane (Negro) schools 
are located within about a mile of one another. 
Bunn had 229 students in grades 9-12; Geth­
semane 157 students in these grades (217a). Bunn 
offers the following courses which Gethsemane 
does not: Geography, Advanced Trigonometry
and Algebra, Agriculture, Consumer Math, Short­
hand, Spanish I and II, Physical Education and 
Health II, and Chemistry. Gethsemane offers the 
following courses which Bunn does not: Con­
struction industry, Business Communication, and 
Special Education (218a, 1044a). If the high 
school grades of these schools were consolidated, 
each high school student now in either school 
would be able to take any of the above courses 
(1045a).



8

(b) There is a substantially higher cost per pupil in 
attempting to provide a diversified program to a 
small school than a large one. In Mr. Stormer’s 
words, “ the smaller the school, the higher the 
cost per pupil for the educational program being 
offered . . . Because of small total membership, 
you are not able to maintain classes in certain 
subject areas because . . .  it becomes uneconomi­
cal to offer one class for five or six or seven pupils” 
(1043a).

(c) In general, it is possible to secure better utiliza­
tion out of the school facilities if the plants of 
two small schools are combined than if the same 
grades continue to be offered in each school 
(1042a).

When asked if there were any educational advantages to 
this system of pairs of schools, he said he knew of none, 
and that the only explanation for its existence was racial 
segregation (1068a, 1095a).

The situation closely resembles that discussed by the 
Court in Lee v. Macon County Board of Education, 267 
F. Supp. 458, 472 (M.D. Ala., 1967) (three judge court), 
the statewide school desegregation suit in Alabama, in the 
following passage:

. . . Considerations of economy, convenience, and edu­
cation have been subordinated to the policy of racial 
separation; survey approvals of construction sites re­
flect this policy. A  striking instance of this discrim­
inatory conduct is found in the Clarke County survey 
conducted during the 1964-65 school year. At the time 
of the survey, there were twenty-three schools in the 
system attended by approximately 5800 students— 
2400 white and 3400 Negro. Consolidation was clearly



9

called for; yet the survey staff sought to perpetuate 
the segregated system by recommending and approv­
ing that, in each of the three principal towns of the 
county, two separate schools be maintained as perma­
nent school installations, each covering grades 1-12. 
This recommendation in each of these three towns in 
Clarke County, Alabama, can be explained only in 
racial terms . . .

See also Moses v. Washington Parish, La. School Board,
------ F. Supp.------- (No. 15973, E.D. La., October 19, 1967);
Cf. Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865, 871 (5th Cir. 1966); Kelley v. Altheimer, 
Ark School Dist., 378 F.2d 483, 486 (8th Cir. 1967).

Mr. Stormer testified that consolidation of side-by-side 
schools, with the facilities of each used for some grades, 
was feasible and educationally advantageous, and -would 
automatically desegregate the schools (1078a-1079a, 1042a 
et seq.; 1556a). He also explained the administrative con­
venience of geographical zoning, which would likewise 
eliminate the dual system (1074a-1079a). The District 
Court’s order requires the defendants to adopt one or both 
of these methods to desegregate the schools.

B. Assignment of Staff and Faculty.

Prior to the commencement of the 1966-67 school year, 
all white teachers in the Franklin County system taught 
at white schools, and all-Negro teachers taught at Negro 
schools (D. App. 6A). On July 27, 1966, the District Court 
entered an Interim Order which included a faculty provi­
sion based on Wheeler v. Durham City Board of Educa­
tion, 363 F.2d 738 (4th Cir. 1966). The defendants were 
ordered to fill all faculty and professional staff vacancies 
on a nonracial basis and to encourage transfers across



10

racial lines by present members of the faculty. The de­
fendants were also required to file Objective Standards 
for Employment, Assignment and Retention of Teachers6 
(D. App. 8A-10A).

The District Court found, on the basis of ample evi­
dence, that the defendants had failed, under the Interim 
Order, to take adequate affirmative steps to accomplish 
substantial staff and faculty desegregation. This failure 
did not result from inadequate opportunity. Of a total 
1966-67 faculty of 232 (112 white, 120 Negro), 49 (25 white, 
24 Negro) were newly employed that year, and could have 
been assigned to any school in the system (215a). Nor 
was there a scarcity of teachers already employed who 
were prepared to transfer. Five such teachers testified on 
deposition, three for defendants and two for plaintiff- 
intervenor, and all of them stated that they would have 
been willing to cross racial lines but had not been asked 
by the defendants to do so (999a-1000a; 1018a-1020a; 1216a; 
1222a-1223a; 1226a-1229a). Nevertheless, nine of the twelve 
schools in the system remained totally segregated with 
respect to faculty (1408a-1409a). In the remaining three, 
Negro librarians were assigned to each of two white 
schools7 and a white librarian and white English teacher 
(who taught for five hours a week) were assigned to an 
all-Negro school. Except for these assignments, the only

6 A provision of these Standards, which provided that teachers would 
be assigned, if possible, to the school of their choice, and which sought 
to delegate to them the Board’s duty to desegregate the faculty, was 
properly disapproved by the District Court as tending to perpetuate 
segregation, Kier v. County School Bd. of Augusta Cty, Va., 249 F. Supp. 
239, 248 (W.D. Va. 1966).

7 One of these Negro librarians at a white school became sick and the 
defendants replaced her during the course of the year and was replaced 
by a white woman. (1409a) This totally resegregated the faculty of a 
tenth school.



11

“encouragement” given by the defendants to teachers to 
cross racial lines was to notify them, orally and in writing, 
that they might apply to cross racial lines (1228a-1229a).

Defendants contend (Brief, p. 40) that they could not 
desegregate more during 1966-67 because only five or six 
vacancies remained at the time of the Interim Order of 
July 27, 1966, Even assuming that defendants had the 
right to ignore Supreme Court decisions requiring deseg­
regation generally, Brown v. Board of Education, 347 U.S. 
483 (1954), and in faculty assignments in particular, Brad­
ley v. School Board, 382 U.S. 103 (1965) and Rogers v. 
Paul, 382 U.S. 198 (1965), until they were personally sued 
and enjoined—and we cannot assent to such a proposition 
-—this “inadequate time” explanation is annihilated by 
what took place thereafter. Superintendent Smith testified 
at the trial, on July 26, 1967, that only five teachers had 
been hired to cross racial lines for 1967-68, an increase of 
one over the previous year. These five included one Negro 
who had testified on behalf of plaintiff-intervenor that 
she would be willing to transfer and one whose husband 
testified that he believed she would be willing to do so. 
Apart from these two teachers, who were in effect found 
for defendants by the Government, there would actually 
have been a decrease in faculty desegregation for 1967-68 
(1467a-1468a).

Two principal consequences flow from the defendants’ 
failure to accomplish significant faculty desegregation un­
der the District Court’s Interim Order of July 27, 1966. 
The first is that a more specific and a more comprehen­
sive decree directing substantial faculty desegregation is 
now required. Bowman v. County School Board of Charles 
City County, Va., 382 F.2d 326, 329 (4th Cir. 1967). 
Judge Butler’s order, which requires affirmative encour­



12

agement of teachers to cross racial lines, the assignment 
of at least two minority race teachers to each school in 
the district for 1967-68, and substantial progress there­
after, is a temperate but firm reflection of what the courts 
have been requiring under similar circumstances. Dowell 
v. School Board of Oklahoma City, 244 F. Supp. 971 
(W.D. Okla. 1965), aff’d. 375 F.2d 158 (10th Cir. 1967), 
cert. den. 387 U.S. 931 (1967); Kelley v. Altheimer, Ark. 
School Dist., 378 F.2d 483, 498 (8th Cir. 1967); United 
States v. Jefferson County Board of Education, 380 F.2d 
385, 394 (5th Cir. 1967) (en banc), aff’g. 372 F.2d 836 (5th 
Cir. 1966); Kier v. County School Board, 249 F. Supp. 
239, 247 (W.D. Va. 1966). The second consequence of the 
defendants’ failure to make progress on faculty desegre­
gation is its bearing on the appropriateness of the “ free 
choice” method of desegregation. As Judge Butzner said 
in Thompson v. County School Board of Hanover County, 
252 F. Supp. 546, 551 (E.D. Ya. 1966), quoting from Kier, 
supra:

Freedom of choice, in other words, does not mean a 
choice between a clearly delineated ‘Negro school’ 
(having an all-Negro faculty and staff) and a ‘white 
school’ (with all-white faculty and staff). School au­
thorities who have heretofore operated dual school 
systems for Negroes and whites must assume the duty 
of eliminating the effects of dualism before a free­
dom of choice plan can be superimposed upon the 
preexisting situation and approved as a final plan of 
desegregation. It is not enough to open the previously 
all-white schools to Negro students who desire to go 
there while all-Negro schools continue to be main­
tained as such. Inevitably, Negro children will be en­
couraged to remain in ‘their school,’ built for Negroes 
and maintained for Negroes with all-Negro teachers



13

and administrative personnel . . . This encouragement 
may be subtle but it is nonetheless discriminatory. The 
duty rests with the School Board to overcome the 
discrimination of the past, and the long-established 
image of the ‘Negro school’ can be overcome under 
freedom of choice only by the presence of an integrated 
faculty.

See also Judge Wisdom’s majority opinion in Jefferson, 
supra, 372 F.2d at 890, wherein it was said

Freedom of choice means the maximum amount of 
freedom and clearly understood choice in a bona fide 
unitary system where schools are not white schools 
or Negro schools—just schools.

C. Disparities.

Segregated schools are inherently unequal. Even if there 
were no tangible disparities in Franklin County, the all- 
Negro schools would still be inferior to the all-white schools. 
Brown v. Board of Education, 347 U.S. 483 (1954). In 
this case, however, the evidence—largely the defendants’ 
own reports to the State Department of Education—show 
that reliance on presumptions and psychological damage is 
unnecessary. As the District Court found (D. App. 27A- 
28A), the disparities—tangible, physical, bread and butter 
disparities—have been imposing.

At the time this action was started,8 all white children 
and a few Negroes were attending schools at which the 
school buildings and equipment were worth $913.44 per 
pupil. At the Negro schools, the corresponding figure was

8 The details of the disparities are set forth in our motion to eliminate 
them, which, in turn, was computed from materials filed by the defen­
dants with the State Board of Education and introduced into evidence 
in this case. (185a-203a) See also Mr. Stormer’s Report (1551a-1566a).



14

$285.18 per pupil. Two small Negro schools, Youngsville 
Elementary and Cedar Street, were worth $93.77 and 
$133.49 per pupil respectively.

At the predominantly white schools, there was a class­
room for every 22.8 students. At the Negro schools, the 
corresponding figure was 34.9.

Predominantly white schools had 24.9 pupils for every 
acre of site. Negro schools had 94.7 pupils per every acre 
of site. Riverside High School (Negro), with twice as 
many students as predominantly white Louisburg High 
School, has one-quarter of the acreage.

White children had nine library volumes per pupil. 
Negro children had four. There was a white teacher for 
every 25 white children enrolled, and there was a Negro 
teacher for every 35 Negro children enrolled. Since segre­
gation was the practice in North Carolina at the time these 
teachers were trained, the Negro teachers had, for the 
most part, attended segregated, inferior Negro schools.

All the predominantly white elementary schools are ac­
credited by the State. No Negro elementary school has 
accreditation. The predominantly white high schools have 
all been accredited since the 1920’s. The three Negro high 
schools were accredited in 1933, 1960, and 1961 respectively.

Two of the Negro schools—Youngsville Elementary and 
Cedar Street—are, so Mr. Stonner testified, simply in­
adequate (1061a-1062a). Cedar Street has four teachers 
for seven grades (1058a). Children eat lunch in the class­
room, and this lunch is shipped in by truck from all-Negro 
Riverside, past predominantly white Louisburg (1434a). 
The situation at Youngsville Elementary is similarly poor 
(1058a, 1098a).



15

The problems are many, but the most acute is over­
crowding. During 1966-67, the Franklin County Board of 
Education was receiving federal assistance under the 
Elementary and Secondary Education Act (1422a). There 
are mobile classrooms—nicknamed “portables”—all over 
the already overcrowded Negro school sites, and there is 
other federal equipment (1050a-1053a, 1423a-1425a). This 
federal assistance has increased the value of buildings and 
equipment per pupil at the Negro schools, and has re­
duced to some limited extent the number of pupils per 
classroom at Negro schools (D. App. 28A).

However, even after the addition of portable classrooms, 
ail of the Negro schools except Cedar Street remain over­
crowded, and Cedar Street would be without its portable 
(1063a). White Epsom High, on the other hand, with 72 
students in grades 9 through 12, all white, is at 39.5% 
of reasonable capacity (1560a). To run a high school of 
that size is so expensive that teacher salaries are $350.30 
per pupil in the class, compared with $188 at Bunn, $231.09 
at Perry’s and $235.91 at Riverside (1566a). Neverthe­
less, the Negro students living in Epsom are carried 13 
miles to Riverside High School, at which students number 
126.4% of capacity even with the portable. Similarly, 
Negro students living near under-utilized white Youngs- 
ville High travel 14 miles to Riverside, and those in the 
vicinity of under-utilized and white Edward Best High 
ride a similar distance to overcrowded all-Negro Perry’s 
(1415a-1417a).

During 1966-67, using 25 pupils as the capacity per class­
room, the Negro schools were overcrowded by a total of 
392 pupils, whereas five of the predominantly white schools 
—Edward Best Elementary, Edward Best High, Epsom, 
Gold Sand and Louisburg High—were under-utilized by a



16

total of 492 places.9 Even if choice in Franklin County had 
really been free, the defendants would still have been under 
the obligation to assure approximately equal pupil-class­
room ratios.10 Quite apart from the effect of intimidation 
on the amount of desegregation in Frankin County, Judge 
Butler’s Order directing defendants to transfer a sufficien t 
number of Negro pupils to white schools for 1967-68 to 
assure that a total of at least 10% attend desegregated 
schools, was an appropriate response to the overcrowding 
problem alone.

The existence of these uncontested disparities required 
the District Court to include in its Order a strong equali­
zation provision, and the Court did so (D. App. 35A-36A). 
The significance of so extreme a denial of equal educa­
tional opportunities, however, goes beyond that portion of 
the decree, and affects the principal issue of the constitu­
tional adequacy in Franklin County of desegregation under 
“free choice.” In Franklin County, private sources make 
major contributions to the schools, and, since white people 
in the county are generally much wealthier than Negroes, 
the white schools reecive most of the benefit (1400a-1401a). 
Since, under freedom of choice plans, schools tend to 
retain their racial identities, and formerly Negro schools 
remain all-Negro for lack of white pupils electing to at­

9 These statistics include the portable classrooms provided by the Fed­
eral Government and located at overcrowded Negro school sites (1423a- 
1425a). The only possible justification for further overcrowding the 
Negro sites by locating the portables there is racial. I f  the portables had 
been placed where there was room for them, it would have been even 
more imperative to transfer Negro pupils to white schools. The author­
ities require, as did the District Court here, that any substantial additions 
to existing schools be made with the “ objective of eradicating the ves­
tiges of the dual system.”  Jefferson, supra, 380 F. 2d at 394, Kelley, 
supra, 378 F. 2d at 499.

10 See the Fifth Circuit’s Model Decree in Jefferson, 380 F. 2d at 393- 
394; Kelley v. Altheimer, supra, 378 F. 2d at 499.



17

tend them,11 contributions, under such a system, are likely 
to continue to go to predominantly white schools, and the 
existence of inferior and sub-standard schools readily 
identifiable as Negro institutions will tend to continue. 
Consequently, as Judge Wisdom observed in Jefferson, 
supra,

A freedom of choice plan will be ineffective if the 
students cannot choose among schools that are sub­
stantially equal. 372 F.2d at 891.

D. Transportation.

In Kelley v. Altheimer, Ark. School District, supra, 378 
F.2d at 497, the Court of Appeals for the Eighth Circuit 
said:

The Board of Education transports rural students 
to and from their homes precisely as it did during 
the many years it operated a segregated school sys­
tem. It was inefficient and costly then. It is just as 
inefficient and costly now. Running two school buses 
down the same country road, one to pick up and de­
liver Martin students and the other to pick up and 
deliver next door neighbors attending Altheimer, is 
a luxury that this impoverished school board could 
not afford in the past and cannot afford now. The 
difference is that, before Brown the Board had the 
same right to operate segregated school buses as it 
had to operate segregated schools. While we have no 
authority to strike down transportation systems be­
cause they are costly and inefficient, we must strike 
them down if their operation serves to discourage the 
desegregation of the school system.

11 United States v. Jefferson County Board of Education, supra, 372 
F. 2d at 889; Rep. U. S. Comm, on Civil Rights, Survey of Desegregation 
in the Southern and Border States, 1965-66, p. 33.



18

The organization of the Franklin County district pur­
suant to a system of side-by-side schools makes the cited 
language of the Kelley case particularly applicable to the 
facts at bar. In the rural areas of Franklin County, whites 
and Negroes live side-by-side (1418a). Since the white and 
Negro schools are also located, for practical purposes, side 
by side, and since, except as indicated below, each school 
has its own bus routes, substantial overlapping results 
(1418a).

The feasibility and desirability of consolidating bus 
routes—a step which would end unnecessary duplication— 
has been recognized by the defendants by their conduct. 
Since Franklin County employs high school students as 
drivers, it has been necessary to provide pupils from other 
schools to drive school buses, for three elementary schools 
—Edward Best Elementary (white) and Cedar Street and 
Youngsville Elementary (Negro). Accordingly, the bus 
routes of each of these schools have been combined with 
those of schools which offer high school grades. It is 
in this context that the dual system orientation of the 
defendants is most clearly exposed; the Negro elementary 
schools have common bus routes with other Negro schools, 
and the white elementary school has a common route with 
white Edward Best High. The most extreme example has 
been the consolidation of the routes of all-Negro Youngs­
ville Elementary with those of all-Negro Riverside, four­
teen miles away, rather than with all-white Youngsville 
High School, half a mile away (1418a). Similarly, all- 
Negro Cedar Street was combined with Riverside rather 
than with predominantly white Louisburg (which is lo­
cated between the two), not only for transportation of 
pupils (1418a-1422a), but also with regard to the lunch 
program; lunch is trucked in from Riverside past Louis­
burg to Cedar Street (1434a).



19

Defendants’ transportation policy carries with it all of 
the usual incidents of racial discrimination. Not only do 
the Negroes attending Negro schools—98.5% of all the 
Negroes—ride separate buses, but their transportation is 
inferior. When suit was brought, the average load on buses 
at Negro schools was 64.1, for buses at white schools 43 
(D. App. 27A).12 13 Negro bus routes are longer in mileage 
and time spent than those of white schools; e.g., the longest 
bus route for Negro Youngsville Elementary takes 120 
minutes each way, the longest for white Youngsville High 
fifty-five. At all-Negro Riverside, fourteen of sixteen buses 
make more than one trip per day; at predominantly white 
Louisburg, none (Government’s Trial Exhibits 24 and 32: 
not reproduced in appendix). Consequently, we believe 
that Franklin County is a prime example of the principle, 
restated by the Court in Kelley, supra, that

the school bus is a principal factor in perpetuating 
school segregation in many areas of the South. 378 
F.2d at 497.

Conversion to a system of nonracial geographic attendance 
zones, or to school or grade consolidation, as directed by 
the District Court, will, of course, not only eliminate the 
irrationality and wastefulness of the present transporta­
tion system, but provide meaningful opportunities for a 
desegregated education as wTell.18

12 A year later the figures were 54.7 to 40.2 (D. App. 28A).
13 In Corbin and United States v. County School Board of Loudoun

County, Va., ------  F. Supp. ------ , C.A. No. 2737 (E.D. Ya. August 29,
1967), United States District Judge Oren R. Lewis ordered, among other 
things, that

As soon as practicable during the 1967-68 school year, and consistent 
with economy and efficiency, all transportation of pupils shall be 
desegregated and, to that end, the defendants shall forthwith dis­
continue the practice of limiting any particular bus route to any 
particular school whenever such limitation results in unreasonable 
overlapping between the routes of buses serving traditionally white 
schools and those serving traditionally Negro schools.



20

In two recent decisions, District Courts in Virginia and 
Louisiana have ordered the abandonment of the “ free 
choice”  system of desegregation even without proof of 
intimidation. In Corbin and United States v. County School
Board of Loudoun County, Va., ——  F. Supp. ------ , C.A.
No. 2737 (F..D. Va. August 29, 1987), the proof showed 
that in Loudoun County, Negroes, who comprised about 
15% of the student population, were scattered throughout 
the county and, under a somewhat informal “ free choice” 
system, rode long distances past predominantly white 
schools to all-Negro schools. The Superintendent admitted 
that most of the Negro pupils could be accommodated at 
predominantly white schools close to their homes. There 
was gross duplication in white and Negro bus routes. 
Progress towards disestablishing dual school zones had 
been halting. Judge Oren E. Lewis, accepting the Govern­
ment’s argument that there was no rational non-racial 
basis for continued adherence to any system, including 
“free choice,”  which would preserve the existence of all- 
Negro schools, entered an Order which included the follow­
ing provisions:

Effective for the 1967-68 school year, the defendants 
shall assign all Negro elementary school students in 
the system who reside outside the town limits of Lees­
burg to the schools nearest their homes having the 
capacity to accommodate them.

•  #  #  #  #

No later than the commencement of the 1968-69 school 
year, the Loudoun County Elementary Schools shall 
be operated on the basis of a system of compact, uni­
tary, non-racial geographic attendance zones in which 
there shall be no schools staffed or attended solely by 
Negroes. Upon the completion of the new Broad Eun



21

High. School, the high schools shall be operated on a 
like basis.

In Moses v. Washington Parish, La. School Board,------
F. Supp, ------ , CA No. 15973 (E.D. La. October 19, 1967),
the Court, noting the existence of some of the educational 
and administrative disadvantages of the “free choice” sys­
tem which are proved by the record here, ordered “the 
abandonment of the so-called ‘free choice’ method of pupil 
assignment for the Washington Parish school system and, 
in its place, the institution of a geographical zoning plan.” 
Judge Heebe traced the origins of the free choice system 
and expressed the view that it was a logical interim 
measure:

In the process of grade by grade desegregation, it is 
not difficult to imagine the hardships inherent and 
indeed the practical impossibility of requiring shifting 
geographical zones for desegregated grades, while al­
lowing maintenance of the segregated assignments for 
grades not yet reached by the desegregation proc­
ess. . . .

But the usefulness of such plans logically ended with 
the end of the desegregation process. With all grades 
desegregated, there is no apparent reason for the 
continued use of the purely interim and temporary 
free choice system.

Expounding at some length on the educational shortcom­
ings of “ free choice,” including its disruption of the “first 
principle of pupil assignment . . . [which] ought to be 
to utilize all available classrooms and schools to accommo­
date the most favorable number of students,”  and on its 
inherent uncertainties, as a result of which “the board 
cannot make plans for the transportation of students to



22

schools,14 plan curricula, or even plan such things as lunch 
allotments and schedules,” the Court found that the School 
Board was adhering to “ free choice” not because of real 
concern about the pupil’s volition, which had been deemed 
irrelevant prior to desegregation, but rather for the pur­
pose of “ shifting to both white and Negro students the 
hoard’s own burden to run honestly and actually desegre­
gated truly non-racial systems.” The Court concluded that 
since “the implementation of the absurd system of free 
choice on a permanent basis has followed closely on the 
heels of the imperative to desegregate,”  and since the 
School Board had not shown any valid non-racial purpose 
for continuing to this system, the “ free choice” plan would 
be disapproved and geographic zoning ordered.

The holdings in the Corbin and Moses cases, and the 
remarks of appellate courts in others,15 16 suggest that it is 
at least arguable that the uncontested facts of this case, 
even absent any intimidation, would make Franklin 
County’s “ free choice” plan constitutionally inadequate. 
We think these dual system facts important because they 
illustrate the extent to which conversion to a unitary sys­
tem will eliminate the administrative and educational as 
well as racial burdens which Franklin County has had to 
bear for so long. This Court need not decide here, how­
ever, whether the Board’s “dual system” policies and prac­
tices would invalidate free choice in a free and uninhib­
ited atmosphere, for in Franklin County there has been 
no such atmosphere. In this County, racial intimidation 
has been such that “ freedom of choice” has been, in the

14 See in this connection the testimony of Thaddeus Jerome Cheek
(627a, 632a).

16 Jefferson, supra, 372 F. 2d at 889; Kemp v. Beasley, 352 F. 2d 14, 
21 (8th Cir. 1965); Singleton v. Jackson Municip. Separate School Dist., 
355 F. 2d 865, 871 (5th Cir. 1966).



23

District Court’s words, both an illusion and a misnomer, 
and the choice has not been free in the practical context 
of its exercise. Bowman v. County School Board of 
Charles City County, 382 F.2d 326, 327-328 (4th Cir. 1967).

n.
Pressures Inhibiting the Exercise of Free Choice.

The District Court’s decision holding unconstitutional 
Franklin County’s “ free choice” plan was principally 
grounded on the existence of community hostility to de­
segregation and on numerous acts of violence and intimi­
dation directed against Negroes seeking a desegregated 
education for themselves or for their children. While 
there are suggestions in defendants’ brief that the District 
Court erred on the law, and that the “free choice” plan 
should be allowed to stand even if choice was effectively 
inhibited by intimidatory acts of third parties,16 the thrust 
of their argument appears to be that the evidence was 
insufficient to support Judge Butler’s findings of commu­
nity hostility and intimidation.16 17 We submit that this con­
tention is completely without substance. While, under Rule 
52(a) of the Federal Rules of Civil Procedure, the Court 
of Appeals will sustain the District Court’s factual de­
terminations, unless they are “clearly erroneous,” and will

16 See Defendants’ brief, pp. 33-34, 37.

17 Defendants also (brief, pp. 11-13) attack the sufficiency of Judge 
Butler’s finding that the defendants failed, in 1965, to give parents in 
still segregated grades notice of criteria for transfer to desegregated 
schools. They claim that this finding is at odds with the Court’s earlier 
Order of February 24, 1966. Actually, the two orders are perfectly con­
sistent; compare Conclusion No. 6 of the 1966 order (D. App. 4A) 
with pertinent language in the 1967 Order (D. App. 15A-16A, 19A). 
Moreover, Rev. Latham, who discussed desegregation both with the 
Board and with Negro leaders as a kind of informal emissary, tes­
tified, after the date of the earlier order, that the criteria were not 
determined until after the Negroes had applied (492a, 498a).



24

not disturb the trial court’s findings merely because it may 
doubt their correctness, Darter v. Greenville Hotel Corp., 
301 F.2d 70, 72-73 (4th Cir. 1962), questions about the 
scope of review appear almost academic in this case. The 
intimidation proved in this record is uncontradicted, and 
its volume is probably unparallelled in the history of 
school desegregation litigation.18 Its effects are apparent 
from the 1.5% pupil desegregation achieved on the fourth 
try in Franklin County—less than one tenth of the North 
Carolina average.

A. Community Attitudes.

At pages 13-14 of their brief, defendants attack as un­
supported by the evidence the District Court’s finding that 
there is “ marked hostility to school desegregation in Frank­
lin County.” We submit that they know better. On Octo­
ber 20, 1964, Mr. Clinton Fuller, one of the defendants 
in this action, who wears two hats as Vice President of the 
School Board and editor of the county newspaper, wrote 
in a rather sympathetic Franklin Times editorial about a 
large Klan rally that

The Klan has been strong in this county for many 
years. By the nature of the organization, this has 
been kept secret. It will undoubtedly gain strength 
now following the rally (1571a).19

The Board of Education minutes of April 12, 1965, reflect 
the filing of a petition with the Board, signed by 767 
persons, stating that

18 A partial chronology of intimidatory incidents or events, as presented 
to the trial court, is set forth at pp. 238a, et seq. of our Appendix.

19 For an illuminating discussion o f what the presence of a strong 
Klan means to Negroes seeking to exercise civil rights, see United States 
v. Original Knights of Ku Klux Klan, 250 F. Supp. 330 (E.D. La. 1965) 
(three-judge court).



25

We, the undersigned people of Franklin County, do 
hereby express our preference to forfeit Federal Aid 
to the schools of said county rather than to support 
integration. We suggest this be put to a vote by the 
people to maintain and operate our school system by 
a tax on each and every adult taxpayer (1539a).

On August 5, 1965, Mr. Fuller remarked, in a Franklin 
Times editorial about school desegregation headlined 
“Frustration Is The Word” , that

Most local citizens oppose integration of the schools. 
We do ourselves. We don’t believe it will work (1581a).

In September of 1966, a citizens’ petition signed by 584 
persons, together with other pressures, prompted the re­
versal of the decision by the school board of the admin­
istratively separate Franklinton unit in Franklin County 
of an initial decision to agree to requests by the U. S. Office 
of Education for further desegregation (854a, 1606a); the 
Franklin Times of September 8, 1966 headlined the occa­
sion “FRANKLINTON BOARD VOTES NO” (1602a). On 
December 1, 1966, Mr. Fuller’s headline read: “FRANK­
LINTON BUS USE LIFTED FOLLOWING K KK  
THREAT” (1610a). Finally, on November 22, 1967, Ne­
gro applicants for intervention who seek to return to all- 
Negro schools, and on whose intervention defendants claim 
to rely (brief, pp. 29, 35), alleged in their motion “ that 
they are being forced to go to schools where they have 
no friends; and that they are nervous and upset”—a posi­
tion which can hardly be reconciled with the supposed 
non-existence of community hostility.

Even without actual violence, this strong and highly 
publicized community feeling would make freedom of 
choice less than free in fact. Negroes in the county are



26

in general much poorer than white persons and are eco­
nomically dependent on them,20 and poverty and depend­
ence restrict the range of choice. Cf. Vick v. County School 
Board of Obion County, Tenn., 205 F. Supp. 436, 440 (W.D. 
Tenn. 1962). In Franklin County, however, choice has 
not been inhibited simply by community attitudes. The 
underlying hostility has been implemented by pervasive 
acts of violence and intimidation which have jeopardized 
the safety and well-being of any Negro who might seek a 
desegregated education.

B. Acts of Intimidation.

Since defendants attack the sufficiency of the evidence 
to support the findings of intimidation, we have found it 
necessary to print in our Appendix most of the proof we 
have adduced with respect thereto, so that the Court may 
judge for itself. We believe that the Chronology of In­
timidation (238a et seq.) provides the Court with a useful 
perspective as to the obstacles Negroes seeking a deseg­
regated education have had to meet, and we will only 
provide a brief outline here.

The evidence of intimidation in this record begins in 
1963, with a bomb threat to Eev. Dunston, NAACP leader

20 The 1960 Census, extracts from which are in the record (259a et 
seq.) shows the following data for Franklin County:

% of All
White % of All

Persons Nonwhites
Category in Category in Category

Family income over $3,000 per year ........... 58.3% 13.2%
Family income over $5,000 per year ........... 29.5% 2.7%
Family income over $7,000 per year ........... 12.1% 0.7%
Persons with income over $3,000 per year —. 27.8% 4.9%
Persons residing in owner occupied units .... 63% 29%
Median Income—Families ............................ $3,507 $1,281
Median Income—Persons ............................... $1,701 $595



27

who had presented a 130-name petition for desegregation 
to the School Board (274a, 412a). In 1964 an unsuccessful 
attempt was made by a group of Negroes to transfer to 
desegregated schools; the parents involved were promptly 
warned to stay off a white man’s land (421a; 451a). In
1964, considerable publicity was given to Klan activity, 
including cross burnings, rallies, and the successful in­
timidation of the Chairman of the annual Christmas parade 
for not putting Negroes in the back of the procession 
(363a-364a, 1567a-1573a). Accordingly, in the spring of
1965, when the defendants elected to desegregate by the 
“ freedom of choice” method, they knew that the Klan was 
active in the county and that some opponents of deseg­
regation had violent tendencies, and they might well have 
anticipated just how free “ free choice” would be.

On June 8, 1965, following the defendants’ adoption of 
the “ freedom of choice” plan, the Franklin Times dis­
closed the names and schools of the Negroes who applied 
to attend previously all-white schools (D. App. 69A-71A).21 
Following the release of these names, the intimidation be­
came particularly intense. There were shootings into 
homes (372a, 414a, 424a-428a, 1575a, 1596a); explosions at 
Negro residences, (605a; 674a; 760a-761a; 888a-890a; 
1587a); well poisonings and similar incidents (398a, 569a, 
629a, 886a); the scattering of nails in driveways; (411a, 
499a, 567a); threatening or obscene notes (596a, 667a, 628a,. 
927a, 960a, 1109a); hundreds of threatening or abusive 
telephone calls (277a, 329a, 429a, 487a; 499a; 564a-565a; 
884a-885a; 1278a-1279a); cross burnings (310a, 499a, 535a,

21 On other occasions, Mr. Fuller also published the addresses of some 
or all families involved in desegregation, or in incidents arising there­
from (426a, 721a, 1568a, 1575a, 1582a, 1584a), and he told a fellow 
board member who tried to restrain him from such publication to “ mind 
his own business.”  (495a-496a)



28

565a, 730a, 890a); and economic reprisals of various kinds 
(282a; 335a-337a; 410a-411a; 566a-567a; 691a-693a; 742a 
et seq.; 907a et seq.; 1591a et seq.).

The result was, as Judge Butler found, that while 76 
of approximately 3,100 Negro pupils applied to attend 
previously all-white schools, and 31 were accepted, all but 
six -withdrew before the close of the 1965-66 school year 
(D. App. 19A).22 Several of the Negro students who did 
attend desegregated schools in 1965-66 were treated un­
kindly by their fellow pupils; some received threatening 
and abusive notes, and one was pushed around so much 
in the first few days that he dropped out of school (628a, 
926a, 1589a). The same period also witnessed Klan-type 
harassment of Superintendent Rogers of the Franklinton 
schools, who was trying to comply with federal desegre­
gation requirements, and of two white ministers, Robert 
Latham and Frank Wood, who were openly trying to im­
prove race relations (499a-500a, 530a-536a, 730a-731a).

It was in July, 1966, immediately following the most 
recent of these events, that this case was initially scheduled 
for trial. Only 23 Negroes had elected to attend deseg­
regated schools for 1966-67, and both plaintiffs and the 
United States were ready to present the evidence of in­
timidation which we have just described and to contend 
that it had made “free choice” constitutionally inadequate 
in Franklin County. After discussions between the District

22 Margaret Crudup, whose testimony defendants seek to minimize 
(brief, pp. 23-24), wrote a letter withdrawing her application to a white 
school after her parents received the following anonymous note:

Dear Mr. and Mrs. Crudup. We hear that you are sending a child 
to Youngsville School. Well we are giving you 30 days to get out 
of Franklin County. Pay your landlord what you owe him if any. 
Leave your crop. We are not going to warne you agane. We will 
start in your family and will start with you to killing. (667a; see 
also 649a, 661a)



29

Court and counsel, however, trial on the merits was post­
poned, and an Interim Order was entered in which defen­
dants were required to conduct a new “ freedom of choice” 
period for Negroes with such safeguards against intimi­
dation as could reasonably be put in a decree of this type 
(D. App. 8A-14A). Following the entry of the Order, 
counsel for all parties met with representative community 
groups to try to make free choice work (D. App. 24A- 
25A), and the plaintiffs, the ministers interested in better 
race relations, and others did their best to cooperate in 
all ways with the District Court’s Order (742a-744a, 912a, 
1265a). A new choice period ensued, and a total of 49 
Negro pupils elected to attend desegregated schools (D. 
App. 19A).

The hopes that the intimidation would cease and that 
choice would become free in fact did not, however, ma­
terialize. Immediately after the court-ordered free choice 
period, shots were fired into a Negro home, and, while the 
victim of this shooting did not have children in a desegre­
gated school, the Franklin Times immediately associated 
the incident with school desegregation and speculated as 
to its effect on the Interim Order (1212a, 1596a). Soon 
after school opened, shots were fired into the home of a 
Negro whose two daughters had just enrolled for the first 
time at a desegregated school (822a-823a).23 Negro pupils

23 One of the more bizarre of defendants’ contentions on appeal (brief, 
pp. 19-20) is that the District Court should not have considered this 
incident because the Government proved it through the testimony of one 
of the teenaged students instead of through the father or mother. They 
suggest that if the parents had testified this would have shown that some 
nonracial reason lay behind the shooting. Actually, defendants did not 
call any other family member although they certainly could have done 
so, and there is not one shred of evidence in the record to support defen­
dants’ speculations. The reason we called the daughter rather than the 
father was that she could, and did, testify to other intimidatory and 
related incidents at the desegregated school, which would have been hear­
say from her parents (825a et seq.).



30

continued to receive unfriendly treatment from fellow stu­
dents at white schools (791a-792a; 825a; 927a-928a; 960a- 
961a). The racial troubles of the Franklinton system to 
which we have referred earlier were front page news, and 
every Negro in the County could read in the Franklin 
Times and elsewhere that intensive community pressure 
had forced the Franklinton Board to capitulate to persons 
hostile to desegregation (1602a), and that Mr. Rogers’ 
home was under guard (1600a).24 25 Within a few months 
of the opening of school, both of the white clergymen 
whose concern for racial equity had led them to speak out 
for their convictions and to testify for the United States 
had been forced out of their pulpits, one formally by a 
lop-sided vote of his congregation (749a), and one by the 
accumulation of race-connected pressures which impeded 
his ministry and threatened his family (911a).26 Super­
intendent Rogers of Franklinton also resigned after he was 
subjected to civil and criminal charges and described in 
the Franklin Times as the center of controversy over in­
tegration (1600a), so that by the date of the 1967 trial, 
all of the Government’s white witnesses at the 1966 depo­
sitions had lost their jobs or resigned under pressure.

24 In an editorial about the Franklinton situation entitled “ Pressure in 
a Thicket,”  the Raleigh News and Observer o f September 10, 1966, pre­
dicted that “ the extraordinary citizen pressure generated against the 
school board is going to be evidence as to why a ‘freedom of choice’ plan 
of desegregation has not worked there. It is doubtful whether any court 
would believe ‘freedom of choice’ is possible where such pressure has 
been demonstrated.”  (1606a-1607a)

25 While defendants, (brief, pp. 21-22) consider it “ extremely unjust 
for any person to even guess at the real reason”  why these ministers lost 
their pulpits, we submit that a reading of their depositions (each testified 
twice, once before and once after the loss of his pulpit; 483a et seq., 907a
et seq.; 526a et seq., 742a et seq.) and a consideration of their racial 
activities, the harassment, and the sequence of events leaves no doubt as 
to why they are no longer in Franklin County. Cf. Johnson v. Branch, 
364 F. 2d 177, 182 (4th Cir. 1966).



31

In the spring of 1967, Franklin County held its “ free 
choice” period for 1967-68—the fourth such period in two 
years. The choice period coincided with an abrupt increase 
in the level of harassment. In the first week in March, 
an explosion took place outside the Coppedge home; this 
incident is corroborated, despite defendant’s pleas to the 
court to disregard it (Brief, pp. 20-21), not only by the 
Government’s witnesses (1130a, D. App., 83A, 90A) but 
also, except as to details, by defendants’ witnesses (D. 
App. 221A-228A). Prior to the choice period, there had 
been some let-up in the number of threatening and harass­
ing telephone calls to the Coppedges, but after the period 
began, the number rose to a peak of perhaps seven or 
eight such calls per day (1278a-1280a). These calls con­
tinued throughout the year and the last as to which there is 
testimony took place three days before the trial (1280a).26 
The choice period which was conducted under these condi­
tions resulted in 45 Negroes selecting desegregated schools 
—less than 1.5% of the total and a drop of four from the 
previous year (D. App. 19A).

C. Defendants5 Attempts to Refute the Proof 
of Intimidation.

The melancholy history represented by our Chronology 
of Intimidation is uncontradicted, and no arrests have been 
made of the perpetrators of any of these acts of violence 
(370a-379a, 1482a). Unable to meet the proof of unchecked

26 Assorted other incidents, during the 1966-67 school year, including 
one additional shooting into a Negro home, are listed in our Chronology 
of Intimidation (249a et seq.). Unfortunately, the publicized intimida­
tion did not end with the entry of the decree, and the Franklin Times 
of September 14, 1967, reported a new shooting into the Coppedge resi­
dence under the telling headline “ SHOTS FIRED INTO HOME OF 
SCHOOL SUIT PLAINTIFF.”  Further shots were fired into the Cop­
pedge home on Christmas Eve, 1967.

(Franklin Times, December 28,1967.)



32

intimidation directly, the defendants have attacked it from 
all directions. They allege that the District Judge should 
not have considered some, or any, of the evidence (brief, 
pp. 17, et seq.), or should not have believed the Govern­
ment’s witnesses (p. 25), or should have disregarded tes­
timony because plaintiffs or the Government called the 
wrong witnesses (pp. 19-21), or used the wrong kind of 
evidence (p. 34). They ask this Court to find that Judge 
Butler was clearly erroneous in finding a relation between 
the minimal progress in desegregation and the evidence 
of intimidation—he should, they say (brief, p. 28), have 
attributed this meager progress to lack of federally spon­
sored “free lunch” programs at white schools, even though 
not a single witness mentioned this consideration, and 
even though it is the policy of HEW to assure that benefits 
“ follow the eligible child who has transferred under the 
school desegregation program” (1427a-1428a). Finally, 
defendants called witnesses of their own and claim on 
appeal to have proved that nobody was afraid of the in­
timidations and that the reprisals did not have any effect.27

This case being on appeal, we believe that additional 
discussion of credibility and like issues is superfluous. We 
do wish to comment, however, on defendants’ claim (brief, 
p. 26) that “ the learned trial Judge has in his findings of 
fact been unduly influenced by sensational-sounding, hear­
say, newspaper articles.” First, the articles in evidence are 
not hearsay. They were not introduced to prove the truth 
of their contents, but rather to show the publicity given

27 Defendants say (brief, p. 30) that plaintiffs and the Government 
failed to produce a single witness who was influenced by fear during the 
1967 choice period. While we think it unnecessary to call numerous wit­
nesses to prove that shootings and bombings intimidate, defendants’ 
statement is simply inexplicable in the light of the testimony of Rev. 
Arthur L. Morgan (1096a-1100a) and Ossie Lynn Spivey (1127a-1133a).



33

to intimidatory incidents in Franklin County. In most 
instances, the fact of a shooting or bombing or similar 
event was proved by competent testimony, and the news­
paper article was introduced simply to show that news of 
the incident was widely disseminated and therefore likely 
to influence more people. In the few instances where 
newspaper articles were used without independent proof 
of the incident—e.g., the two shootings into plaintiff Cop- 
pedge’s home after Judge Butler’s decision—their rele­
vance was to show that people in Franklin County were 
reading in their newspaper of intimidatory incidents, for 
such reading alone may well inhibit choice. Finally, al­
most all of the “ sensational sounding” articles are from 
the Franklin Times, which is edited and controlled by the 
defendant Fuller. See also Usiak v. New York Tank Barge 
Company, 299 F.2d 808, 810 (2d Cir. 1962).28

This brings us to what the defendants apparently con­
sider to be their affirmative non-intimidation case. A  num­
ber of Negro parents and students testified on behalf of 
the defendants to the effect that it was not fear, but rather 
preference for schools with which they were familiar and 
in which they or their children had friends, that led them 
to return to all-Negro schools (D. App. 102A; D. App. 
197A; 1163a, 1183a, 1189a). W hile many of the witnesses 
had heard of some or all of the acts of violence or intimida­
tion which had occurred in the county, they testified that

28 Newspapers have been admitted or used for various purposes in 
assorted civil rights cases. See, e.g., Swann v. Charlotte Mecklenburg Bd. 
of Educ., 369 F.2d 29, 31 (4th Cir. 1966); Davis v. Schnell, 81 F. Supp. 
872, 879-881 (S.D. Ala. 1949), aff’d. 336 U.S. 933 (1949); United States 
v. State of Louisiana, 225 F. Supp. 353, 375-376 (E.D. La. 1963); aff’d. 
380 U.S. 145 (1965); Hall v. St. Helena Parish School Board, 197 F. 
Supp. 649 (E.D. La. 1961), aff’d. 368 U.S. 515 (1962). Cf. Dallas Co. 
v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961).



34

they would have returned to all-Negro schools anyway 
(D. App. 100A; D. App. 1Q2A-103A; D. App. 133A-134A; 
D. App. 152A). Much of this is inevitable; where, as here, 
a school board, as a result of its faculty assignment and 
other dual system policies, offers Negroes a choice be­
tween schools identifiable as white or Negro (1175a, 1236a, 
1285a), rather than between genuinely desegregated 
schools, Negro pupils will inevitably be encouraged to 
select the schools maintained for them. See Kiev v. County 
School Board of Augusta Cty., Va., 249 F. Supp. 239, 247- 
248 (W.D. Va. 1966).

The testimony adduced by defendants may support a 
contention that intimidation and fear were not the only 
reasons for Negroes remaining at all-Negro schools. It 
could even be argued that such evidence would have sup­
ported a finding (had the District Court made it) that 
there were some Negroes who were so brave that the 
prospects of shootings, explosions, telephone harassment, 
well pollution and the rest would not make them hesitate 
to elect desegregated schools for their children, although 
even here several of the witnesses conceded that they had 
no way of knowing if they would suffer reprisals or not, 
and it is incredible that they did not care (1232a, 1236a, 
1255a).29 What these witnesses could not, and did not, 
show was that choice in Franklin County was free. Their 
testimony does not support the contention that it was 
sheer coincidence that the amount of desegregation was 
low where the level of intimidation was so high. In fact,

29 Mrs. Ollie Strickland, a Negro mother, was one of those who testified 
that she was not afraid, but on cross-examination acknowledged that 
Negroes get along fine if they stay in their place, and that she was not 
afraid because she did not plan to get out of her place (1241a). Much 
of the testimony of lack of fear is most readily understandable in the 
context that Negroes who chose Negro schools had nothing to be afraid 
of (1252a-1253a).



35

many of the defendant’s witnesses conceded the contrary. 
A  few examples follow:

(a) Gladys Hayes, Negro mother, sent her children 
to all-Negro Perry’s because that was where they 
wanted to go, but admitted that in fact they did 
not know how they would be treated at a white 
school and that they were “kind of afraid to find 
out” (1243a-1244a).

(b) Evelyn Harris, Negro high school honor student 
who selected all-Negro Riverside school, acknowl­
edged that the Klan is strong in Franklin County, 
that she knew of numerous incidents of intimida­
tion which happened to Negroes who elected de­
segregated schools, that she attributed these in­
cidents to their choice of white schools, that some 
Negroes were certainly afraid to select white 
schools, and that their number might well be 
quite substantial (1246a-1251a). See also the simi­
lar testimony of fellow student Veronica Hawkins 
(1252a-1255a),

(c) Ira Bowden, white, aged 66, a neighbor of the 
Coppedges who has lived in Franklin County all 
his life, acknowledged that the Klan had been 
strong in Franklin County for years, that it was 
known to be against integration generally and 
school integration in particular, and that he, like 
the Negro mother Ollie Strickland, was not afraid 
of the Klan simply because he was doing nothing 
to offend it (1158a-1162a).

(d) Mrs. Mattie W. Crudup, Negro grandmother, testi­
fied that she sent her grandchildren to all-Negro 
Gethsemane voluntarily and felt that the small 
number of Negro teachers and pupils at Bunn



36

was a significant factor influencing her choice; if 
there were more Negro pupils and teachers at 
white schools, the Negro children would feel “more 
free” (1180a).

(e) Mrs. Mattie 6. C. Harris, a Negro mother with 
some college training, elected Gethsemane rather 
than Bunn for her children because they preferred 
it, although she recognized that Bunn had a 
broader curriculum and that attendance there 
would have obviated a long bus ride; she had 
heard of some intimidatory incidents and was 
familiar with the Klan; she believed the acts of 
violence happened to people with children in white 
schools, and that the white community was hostile 
to desegregation; in general, she would prefer 
each child to attend the school nearest to his home 
(1165a-1170a).

(f) Melissa Dean, Negro mother, elected to send chil­
dren to all-Negro Perry’s school because she even 
prefers a bad Negro school to a good white school; 
she knew of several intimidatory incidents which 
happened to Negroes with children in white 
schools; she refused to answer the question 
whether she thought such incidents would dis­
courage integration, but admitted that she wanted 
to help counsel for defendants and admitted that 
she knew the answer to the question which she 
refused to answer (1240a-1242a).

We believe that if the testimony by defendants’ wit­
nesses is read as a whole, rather than conveniently charac­
terized as at page 29 of defendants’ brief, its impact on 
the District Court’s finding that choice in Franklin County 
was not free in fact was minimal, and the Court was justi-



37

fled in reaching its conclusion without explicit reference 
to it.

D. The Legal Effect of Community Attitudes and 
Intimidation on the Constitutionality of 
the Freedom of Choice Plan.

In setting aside “freedom of choice” in Franklin County, 
the Court below said, citing numerous authorities:

Every freedom of choice plan must be judged on a 
case by case basis. “ The plan must be tested not 
only by its provisions, but by the manner in which it 
operates to provide opportunities for a desegregated 
education.”  Wright v. County School Board, 252 F. 
Supp. 378, 383 (E.D. Va. 1966). It is a permissible 
plan so long as it comports with constitutional stan­
dards. It is constitutionally impermissible and, in­
deed, a misnomer when the choice is not free in fact.

This Court has found that community attitudes and 
pressures in the Franklin County School system have 
effectively inhibited the exercise of free choice of 
schools by Negro pupils, and their parents. So-called 
“ freedom of choice” under such circumstances is an 
illusion. * * * (D. App. 30A-31A; 273 F. Supp. at 299).

Defendants apparently disagree with this statement of 
the law. They contend (Brief, p. 37) that intimidation by 
third parties is in effect irrelevant in that it does not 
constitute state action but private conduct. Carried to its 
logical conclusion, this argument means that if a county 
has a “ free choice” plan, and every Negro who elects to 
attend a previously all-white school is shot to death, this 
does not affect the plan’s constitutionality. Such a doc­
trine would, in effect, be an invitation to hostile elements 
to destroy a desegregation plan, and is not supported by 
reason or authority. It is now settled law that “If choice



38

influencing factors are not eliminated, freedom of choice 
is an illusion,” 30 that an atmosphere of fear and intimida­
tion makes “free choice” impermissible, and that an in­
ordinately low amount of pupil desegregation is persuasive 
evidence that the plan is not operating constitutionally.

In Cypress v. Newport News Gen. Hospital, 375 F.2d 
648, 653 (4th Cir. 1967), a hospital discrimination case in 
which the defendants sought to attribute the lack of Negro 
doctors on the staff to lack of interest rather than to dis­
crimination, this Court held that the fact “ that so few 
Negroes have applied is no indication of lack of interest,” 
and noted by analogy that the former U. S. Commissioner 
of Education “ recently observed that a ‘Freedom of Choice’ 
plan is meaningless in many cases because people are in 
fear of reprisals should they attempt to exercise a choice.” 
Developing this theme further in its most recent decision 
on “ freedom of choice,” this Court said:

Whether or not the choice is free may depend upon 
circumstances extraneous to the formal plan of the 
school board. I f there is a contention that economic 
or other pressures in the community inhibit the free 
exercise of the choice, there must be a judicial ap­
praisal of it, for “ freedom of choice” is acceptable 
only if the choice is free in the practical context of 
its exercise. If there are extraneous pressures which 
deprive the choice of its freedom, the school board 
may be required to adopt affirmative measures to 
counter them. Bowman v. County School Board of 
Charles City County, 382 F.2d 326, 327-28 (4th Cir. 
1967).

30 Lee v. Macon County Board of Education, 267 F. Supp. 458, 479 
(M.D. Ala. 1967) (three judge court).



39

Other courts have reached the same conclusion. In 
Kelly v. Board of Education of City of Nashville, 270 F.2d 
209, 229-230 (6th Cir. 1959), the Court, in upholding a 
“free choice” transfer provision in a desegregation plan 
based on geographic attendance zones, held assignment 
pursuant to choice to be lawful, but observed:

*' * * It is conceivable that the parent may have made 
the choice from a variety of reasons—concern that 
his child might otherwise not be treated in a kindly 
way, personal fear of some kind of economic reprisal; 
or a feeling that the child’s life will be more har­
monious with members of his own race. In common 
justice, the choice should be a free choice, uninfluenced 
by fear of injury, physical or economic, or by anxieties 
on the part of a child or his parents.

*  *  #  #  *

* * * But if it should appear, upon a showing, that 
there are impediments to the exercise of a free choice, 
and that a change should be made in the plan to carry 
out, in good faith, and with every safeguard to the 
children’s rights, the mandate of the Supreme Court, 
the district court, having retained jurisdiction during 
the entire period of the process of desegregation under 
the Board’s plan, shall make such modification in its 
decree as is just and proper.31

In Vick v. County School Board of Obion County, Ten­
nessee, 205 F. Supp. 436, 440 (W.D. Tenn. 1962) the 
Court, in upholding the facial constitutionality of a “ free­
dom of choice” plan, cautioned that

31 The Court in the Kelly case upheld the validity of the minority to 
majority transfer rule, since declared unconstitutional by the Supreme 
Court as preservative of segregation. Goss v. Board of Education of 
Knoxville, 373 U.S. 683 (1963).



40

* * * In the event that, upon the registration of the 
Negro students in June, it should appear that eco­
nomic or other pressure, overtly or covertly, is 
brought to bear on the Negro parents and students, 
this Court, having retained jurisdiction, might find it 
necessary to eliminate the choice provision from the 
plan in order to effectuate the mandate of the Supreme 
Court in the Brown decisions.

The two federal agencies which have had occasion to 
consider this problem concur with the above-cited deci­
sions. In its “ Survey of School Desegregation in the 
Southern and Border States, 1965-66,” the U. S. Commis­
sion on Civil Rights, following a study of the operation 
of “ free choice” plans, recommended their disapproval by 
the Department of Health, Education and Welfare in dis­
tricts where “there is evidence that Negro parents have 
been intimidated, threatened or coerced as a result of ex­
ercising rights under the plan or in order to deter the 
exercise of such rights.” Similarly, the Revised Desegrega­
tion Guidelines of HEW’s Office of Education, to which the 
courts give respectful consideration,32 provide as follows:

A  free choice plan tends to place the burden of de­
segregation on Negro or other minority group stu­
dents and their parents. Even when school authorities 
undertake good faith efforts to assure its fair opera­
tion, the very nature of a free choice plan and the 
effect of longstanding community attitudes often tend 
to preclude or inhibit the exercise of a truly free 
choice by or for minority group students.

#  *  #  #  #

32 Bowman v. County School Board of Charles City County, 382 F.2d 
326, 328 (4th Cir. 1967); Cypress v. Newport News Gen. Hospital, 375 
F.2d 648, 656-657 (4th Cir. 1967); United States v. Jefferson County 
Board of Education, 372 F.2d 836 (5th Cir. 1966), aff’d en banc 380 
F.2d 385 (5th Cir. 1967).



41

The single most substantial indication as to whether 
a free choice plan is actually working to eliminate the 
dual school structure is the extent to which Negro or 
other minority group students have in fact transferred 
from segregated schools. Thus, when substantial de­
segregation actually occurs under a free choice plan, 
there is strong evidence that the plan is operating 
effectively and fairly, and is currently acceptable as 
a means of meeting legal requirements. Conversely, 
where a free choice plan results in little or no actual 
desegregation, or where, having already produced 
some degree of desegregation, it does not result in 
substantial progress, there is reason to believe that 
the plan is not operating effectively and may not be 
an appropriate or acceptable method of meeting con­
stitutional and statutory requirements. (45 CFR 
§181.54)

The Guidelines also contain the general yardstick for as­
sessing the success of a free choice plan to which the Dis­
trict Court referred to in its third Conclusion of Law, 
(D. App. 28A-29A; 273 F. Supp. 298) and the contrast 
between the progress made by Franklin County and that 
contemplated by the Guidelines is a telling measure of the 
effect of intimidation and of the defendants’ dual system 
policies. See also Jefferson, supra, 372 F.2d at 886-888, 
and cases there cited.

The only authority cited by the defendants in support 
of their apparent theory that intimidation is irrelevant is 
United States v. Haywood County Board of Education, 271 
F. Supp. 460 (W.D. Tenn. 1967). In that case the Court, 
after admitting evidence of intimidation and of the sub­
jective state of mind of the Negroes on the theory that 
“ a freedom of choice plan is constitutional only if, in its 
actual operation, the Negro pupils and their parents are



42

truly free to choose . . . in effect found a failure of proof 
and therefore sustained the Board’s “free choice” plan. 
The Court stated that the white citizens of the county dis­
approved of the alleged acts of intimidation, that the 
county’s business leaders were trying to promote equal 
opportunities for Negroes, and that a biracial committee 
was now effectively dealing with complaints of discrimi­
nation. The Court concluded:

In short, while Haywood County has had some shame­
ful incidents in its past history, the situation is improv­
ing and we believe, from the evidence, will continue 
to improve. (271 F. Supp. at 464)

That the Haywood County decision is not authority for 
the defendants’ “ intimidation is irrelevant” theory is estab­
lished by the following remarks made by the District Judge 
from the bench in that case during the course of the trial :

* m * We have always made it clear that a freedom of 
choice plan can be constitutional if, and only if it truly 
is a free choice plan, and if there is any impediment 
to the freedom of choice, from whatever source, which 
is substantial, then the freedom of choice plan does 
not meet the constitutional requirement to abolish 
compulsory segregation, based on race. It’s as simple 
as that.

#  #  #  *  #

* * * I think in order to bring yourself within the 
requirement, that segregation based on race, which is 
compulsory, that that be abolished, it is necessary if 
you are going to go to the freedom of choice route, 
to show that it is absolutely free and there is no sub­
stantial impediment, and as I also indicated, it doesn’t 
make any difference where the impediment comes from. 
The School Board, for example, can be completely



43

honest and diligent in its effort to bring about a true 
freedom of choice situation, but if others not within 
the School Board’s control prevent that from taking 
place, it’s just as if the School Board had done it, in 
the Court’s view and, of course, as to the Constitu­
tion. (Transcript, United States v. Haywood County 
Board of Educ., pp. 31, 32)

While we do not agree with the District Court’s assess­
ment of the evidence in the Haywood County case, and 
have appealed the decision, we believe that the opinion 
may fairly be considered an expression of the understand­
able reluctance of courts to set aside desegregation plans 
before every effort has been expended to make them work. 
Judge Butler’s entry of his Interim Order in July, 1966 
in the face of the Government’s readiness at that time to 
prove widespread intimidation reflected a similar deter­
mination to try to save “ freedom of choice” in Franklin 
County before condemning it.83 In 1967, however, Judge 
Butler faced a situation different in kind from that before 
Judge Brown in Haywood County—a year had passed 
under court-ordered “ free choice,” the intimidation had 
continued, and the projected desegregation for 1967-68 was 
even smaller than the negligible degree attained the previ­
ous year. In that context, and since “delays in desegre­
gating school systems are no longer tolerable,” Bradley 33 * * * * * * * *

33 In Teel v. Pitt County Board of Education, 272 F. Supp. 703, 707
(E.D. N.C. 1967), Judge John D. Larkins, in tentatively upholding Pitt
County’s “ freedom of choice” plan for another year, warned that:

It may be that, because of community hostilities and ineffective
operation of the plan by the School Board another year under free­
dom of choice (as modified) in Pitt County will convince the Court
that some altogether different mode of pupil assignment must be
thrust upon the Board in order to eliminate the continuing vestiges
of racial discrimination.



44

v. School Board, 382 U.S. 103, 105 (1965), it was simply 
too late to give Franklin County’s illusory “ freedom of 
choice” plan still another chance.

CONCLUSION

For the reasons stated, we respectfully request that the 
judgment of the District Court be affirmed.

Respectfully submitted,

S teph en  J. P ollak

Assistant Attorney General

F kank  E. S chw elb 
F bancis H . K ennedy 

Attorneys,

Department of Justice 
Washington, D.C. 20530



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