United States v. Hinds County Petition for Rehearing In Banc by the Court of Appeals for the Fifth Circuit

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 28,042 

  

UNITED STATES OF AMERICA Plaintiff-Appellant 

Ve. 

HINDS COUNTY SCHOOL BOARD, et als Defendants-Appellees 

  

(Including Consolidated Cases) 

  

PETITION FOR REHEARING IN BANC BY THE 

COURT OF APPEALS FOR THE FIFTH CIRCUIT 

  

Judge A. F. Summer 
Attorney General of Mississippi 
New Capitol Building 
Jackson, Mississippi 39205 

John C. Satterfield 
Satterfield, Shell, Williams and Buford 

Post Office Box 466 
Yazoo City, Mississippi 39194 

Special Counsel for the Defendants- 
Appellees, in behalf of all other 
attorneys of record in each of the 
Consolidated Cases.  



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIPTH CIRCUIT 

  

  

  

  

  

  

NO. 28042 

UNITED STATES OF AMERICA Plaintiff-Appellant 

v. {Civil Action No. 4075(J)) 

HINDS COUNTY SCHOOL BOARD, et al Defendants-Appellees 

BUFORD A. LEE, et al Plaintiffs-Appellees 

AZ. {Civil Action No. 2034(H)) 

UNITED STATES OF AMERICA Defendant-Appellant 

vv. 

MILTON EVANS, Third Party Defendant-Appellee 

UNITED STATES OF AMERICA Plaintiff-Appellant 

v. {Civil Action No. 1373(R)) 

KEMPER COUNTY SCHOOL BOARD, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

Vv. {Civil Action No. 3807(J)) 

NORTH PIKE COUNTY CONSOLIDATED SCHOOL 

DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

v. {Civil Action No. 1120(W)) 

NATCHEZ SPECIAL MUNICIPAL SEPARATE 
SCHOOL DISTRICT, et al Defendants-Appellees 

   



  

UNITED STATES OF AMERICA Plaintiff-Appellant 

  

  

  

  

  

y, {Civil Action No. 2178(H)) 

MARION COUNTY SCHOOL DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

v. {Civil Action No. 3984(J)) 

SOUTH PIKE COUNTY CONSOLIDATED 
SCHOOL DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

Vv, {Civil Action No. 1396(R)) 

NESHOBA COUNTY SCHOOL DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

7. {Civil Action No. 1372(F)) 

XOXUBEE COUNTY SCHOOL DISTRICT, ‘et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

Vv. {Civil Action No. 1367(E)) 

LAUDERDALE COUNTY SCHOOL 

DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

Vv. {Civil Action No. 2199(RH)) 

COLUMBIA MUNICIPAL SEPARATE 
SCHOOL, et al Defendants-Appellees 

   



  

UNITED STATES OF AMERICA Plaintiff-Appellant 

  

  

  

  

  

  

v. {Civil Action No. 3983{(J)) 

MITE COUNTY SCHOOL DISTRICT, ef al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

1, {Civil Action No. 2148(H)) 

COVINGTON COUNTY SCHOOL 

DISTRICT, etl al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

7, (Civil Action No. 2216{(H)) 

LAWRENCE COUNTY SCHOOL DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

Ve {Civil Action No. 1160(W)) 

WILKINSON COUNTY SCHOOL DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

v, {Civil Action No. 4294(J)) 

LINCOLN COUNTY SCHOOL DISTRICT, ef al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

N. {Civil Action No, 1368(R)) 

PHILADELPHIA MUNICIPAL SEPARATE 

SCHOOL DISTRICT, et al Defendants-Appellees 

UNITED STATES OF AMERICA Plaintiff-Appellant 

i {Civil Action No. 4256(J)) 

FRANKLIN COUNTY SCHOOL DISTRICT, et al Defendants-Appellees 

   



PETITION FOR REHEARING IN BANC BY THE 
court OF APPEALS FOR THE PIFTH CIRCUIT 
  

Te 

PRELIMINARY STATEMENT 
  

This petition for rehearing in banc is filed by all school 

boards and related defendants in the cases captioned above which 

were consolidated in this Court under Docket No. 28042. The dis- 

cussion herein is not applicable to the Wilkinson County Board of 

Education and the North Pike Consolidated School District. As 

private persons intervened in the suits against these two dis- 

tricts, allegations of the petition for rehearing in the cases 

consolidated as Docket No. 28030 will apply to such districts. 

To avoid prolixity and possible confusion of issues, there 

is hereby adopted as a part hereof all matters set forth in the 

petition for rehearing in consolidated Docket No. 28030, to the 

extent that the same are applicable here. 

The causes consolidated as Docket No. 28030 and the two suits 

mentioned above were included in the petition for writ of certior- 

ari filed in the Supreme Court of the United States by the private 

plaintiffs and private intervenors. The other sixteen cases cap- 

tioned above were not respondents to such petition and hence were 

not parties to the Per Curiam opinion of the Supreme Court of the 

United States rendered on October 29, 1969.  



Ii. 

THE JUDGMENTS WERE ENTERED OVER THE 
PROTEST OF EVERY PARTY TO EACH sSuUiT 
  

A situation unique in the history of jurisprudence exists in 

these sixteen cases which affect the rights of many defendants and 

of thousands of students in hundreds of public schools. The United 

States of America is the plaintiff, acting through the Attorney 

General of the United States. At the direction of this Court, the 

Secretary of Health, Education, and Welfare is appearing in the 

capacity of a Special Commissioner and is represented by the Attor- 

ney General. The defendants are the members of the school boards 

and trustees of the schools of the various school districts repre- 

sented by the Attorney General of Mississippi and their individual 

attorneys. There are no other parties to these suits. 
  

These suits were filed by the Attorney General of the United 

States under statutory authority. He is acting in the national 

interest and not as a representative of any individual plaintiffs. 

It would seem there could be no greater protection to the educa- 

tional interests of our citizens than to have as parties litigant 

the United States of America, represented by its highest legal 

authority, assisted by the member of the Cabinet charged with the 

duty of safeguarding public education, on the one hand, and on the 

other hand, one of the States, acting through its Attorney General, 

assisting the public officials chosen by the people to be respon- 

sible for the education of their children. 

In these sixteen suits every party to each suit represented 

to this Court that the plans of desegregation now entered are not  



correct and proper. The Secretary of Health, Education and Wel- 

fare, in the capacity of a commissioner requested that he be per- 

mitted to perfect them so that they would be to the best interest 

of the students in all of these schools. The defendants have 

agreed that this is necessary and both the District Court and this 

Court have also thus agreed. 

However, the cases consolidated under Docket No. 28030 (as 

well as the two cases described above) were subject to the writ 

of certiorari granted by the Supreme Court. Upon remand the 

Supreme Court directed this Court to act thereon, granting to this 

Court a broad discretion in the disposition thereof. This Court 

has applied the Per Curiam opinion in those nine cases to the six- 

teen cases here involved. Of course, there was no issue before 

the Supreme Court of the United States concerning the present status 

of desegregation in the school districts included in these sixteen 

cases. The individual and widely varying plans of desegregation 

filed in these cases by HEW on August 11, 1969, were not involved 

therein. Nevertheless, we understand the position of this Court 

that the general principles concerning procedure announced by the 

Supreme Court in those cases should be applied to these sixteen 

cases. 

The material difference is that in the nine cases which were 

the subject of the writ of certiorari, parties thereto represented 

by their counsel moved the Court for the entry of a judgment simi- 

lar to that which was entered. To the contrary, in these sixteen 

cases the only party plaintiff, the United States of America, and 

all of the defendants, asked the Court not to enter the judgments 

which have been entered embodying the plans filed by HEW on 

August 11, 1969,  



None of the differing plans of desegregation which have now 

become judgments in these cases were included in the writ of cer- 

tiorari issued by the Supreme Court of the United States. Not a 

single party to any one of these actions has requested that such 

judgments be entered. Assuming that the direction and broad dis- 

cretion granted by the Supreme Court in the other nine actions 

apply to these cases, on November 7 the status of these suits and 

the parties thereto was as follows: 

(1) The judgments proposed to be entered embodying the de- 

tailed varying plans of desegregation were not presented to this 

Court with a request for adoption or entry by any party to the 

suit. 

(2) The United States of America, as plaintiff, being more 

familiar with these plans than any other litigant submitted a pro- 

posed order and judgment as requested by this Court. This proposed 

order provided for an expedited disposition of all matters but per- 

mitted a reasonable opportunity for the defendants to be heard and 

to collaborate with HEW within the bounds of the Per Curiam order 

of the Supreme Court. This proposed order was rejected. 

{3) In accordance with the direction of the Court the defen- 

dants filed proposed orders to effectuate and implement the action 

of the Supreme Court of the United States on November 5, having been 

granted three business days in which so to do. They were rejected. 

(4) While the attorneys for the defendants were in the process 

of preparing proposed orders embodying plans which complied with 

the action of the Supreme Court, they were advised on Monday, 

November 3, to be present at a pre-order conference on Thursday, 

November 6. This conference was held. As requested by this Court 

4  



  

the school districts had filed on the preceding day proposed 

orders containing desegregation plans in conformity with the Per 

Curiam order of the Supreme Court. 

(5) Without any motion by any party to the suit and contrary 

to the proposed orders submitted by every party to every suit here 

involved, detailed and differing judgments were entered in each of 

these sixteen suits. 

(6) This action was taken without any opportunity for any 

party to be heard, other than to ask questions or to point out 

items which were physically impossible to perform. 

Under these circumstances, we respectfully submit that a re- 

hearing should be granted, or, in the alternative, that relief 

should be granted as hereinafter set forth. 

1t1. 

THE PLAINTIFF AND THE DEFENDANTS HAVE NOT BEEN 

ACCORDED DUE PROCESS OF LAW. THERE HAS BEEN NO 
HEARING ON THE MERITS. BY ANY COURT, 
  

Since the entry of the judgment by this Court on July 3 and 

until this Court entered its order on November 7 (entering as judg- 

ments all of each HEW plan in each district, with a few minor ex- 

ceptions), this Court has been careful to afford to all litiganis 

the right to a hearing on the merits. Through a combination of 

the Per Curiam opinion of the Supreme Court and the construction 

thereof by this Court on November 7, no hearing whatsoever on the 
  

merits has been accorded any party in any suit in any court. This 
  

has arisen either (a) through a misunderstanding of the extent to 

which the Supreme Court restricted the discretion of this Court, 

or (b) through action of this Court which has embraced the outer 

Bw  



  

limits of the finding of the Supreme Court. Regardless of the 
  

cause, all litigants here have been wholly and completely denied 
  

due process of law. 
  

Even as "it raineth upon the just and the unjust", the con- 

stitutional guaranty of due process protects white students as 

well as Negro students, white teachers and Negro teachers, local 

public officials and national public officials. 

This Court is not now considering actions taken on or prior 

to July 3, 1969. There has been no hearing on the merits upon any 
  

plan of desegregation included in the judgments entered on November 
  

7. Moreover, no court has permitted the plaintiff (the United 

States of America) or the defendants in these cases to be heard 

on the merits by brief or otherwise. Not one iota of testimony 

has been permitted before any court upon any portion of the judg- 

ments and plans now put into effect. 

The procedural steps were as follows: 

l. On July 3 the judgment of this Court set up a time sche-   

dule. This permitted all parties to file agreed or varying plans 

of desegregation and to file objections if agreement was not reached. 

Hearings on the merits in the District Court were provided. 

2. On August 11, plans were filed by HEW and differing plans 
  

were filed by the districts (time not permitting full collaboration 

with HEW). Objections to the plans of HEW were filed by the dis- 

tricts on or before August 21. The United States of America, the 

Secretary of Health, Education, and Welfare, the defendant school 

districts and their attorneys, all acted swiftly and conformed to 

the schedule set up by this Court.  



3. On August 21 the United States of America, through the 
  

Attorney General of the United States (acting in behalf of the 

United States and as attorney for the Secretary of Health, Educa- 

tion, and Welfare in performance of their duty to protect the 

national interest) moved that the time schedule be revised to 

permit preparation of proper plans and collaboration between the 

national and state educational officials. The catastrophe to 

public education which would result without this opportunity was 

clearly demonstrated to the Court both by the motion and the sup- 

porting evidence introduced by the United States. 

4. On August 26 a hearing on this motion was held at the re- 
  

quest of this Court and on August 28 this Court followed the recom-   

mendation of the United States of America, the Secretary of Health, 

Education, and Welfare, and the Attorney General of the United 

States. The new schedule permitted full collaboration between the 

federal and local public authorities, who were the only parties to 

these sixteen suits, as well as collaboration between all parties 

in the other suits. This schedule would have permitted (a) the 

preparation of feasible plans by collaboration between HEW and the 

school districts, and (b) due process of law if agreement was not 

reached. 

5. From August 28 to Qctobex 29, all of the litigants in these 
  

cases, including the plaintiff, the defendants, and the Special Com- 

missioner, conformed to the Court's order and took no action to set 

the same aside. The United States of America as plaintiff, the 

Secretary of Health, Education, and Welfare, as Special Commis- 

sioner, represented by the Attorney General of the United States, 

and the local public officials responsible for administration of 

=7= 

  

  

 



  

schools, continued to work conscientiously and "around the clock" 

to meet the schedule set up by this Court. 

6. On October 1 the initial step in the new schedule was met   

through the collaboration of HEW and the local educational offi- 

cials. On that date there were filed agreed and very detailed pro- 

grams, including many steps in the preparation of the faculty and 

staff and other phases of school administration for the operation 

of a completely unified system of schools. No objections were 

raised to any of these plans by the attorneys for the private plain- 

tiffs in the other cases. 

7. Prior to the action of the Supreme Court, numerous confer- 
  

ences were held between the representatives of the sole plaintiff 

here, the United States of America, the Secretary of Health, Educa- 

tion, and Welfare, and all local defendants. They were collaborat- 

ing to devise terminal plans which were "realistic" and "feasible", 

meeting the constitutional mandates and preserving public education 

in this state. This work was interrupted when the Supreme Court 

granted a writ of certiorari and set it for immediate hearing on 

October 23. 

8. On October 9 the Supreme Court of the United States granted 
  

petition for writ of certiorari filed by the private plaintiffs in 

the other cases and denied cross-petition for writ of certiorari 

filed by those respondent school districts. This limited the issue 

formed solely to whether or not this Court's order of August 28 

(which set up a time schedule for revision of the initial HEW plans 

and objections and hearings if agreement was not reached) should 

be reversed. 

   



  

9. On October 23 the Supreme Court of the United States con-   

sidered briefs and heard oral argument limited by the pleadings 

and the action of the Court to the above issue.l/ 

10. On October 29 the Per Curiam opinion of the Supreme Court 
  

was rendered. Copies thereof were received by attorneys for the 

defendants on or about Friday, October 31, and Saturday, November 1. 

On Priday, October 31, this Court issued its order directing all 

parties to all twenty-five suits to file with the Clerk of this 

Court on or before Wednesday, November 5, their recommended and   

proposed orders to effectuate and implement the opinion and decree 

of the Supreme Court of the United States. This was received by 

the attorneys for the parties in due course of the mails, some of 

the attorneys for the school boards being advised orally on Friday 

afternoon that such order had been entered. On Monday, November 3, 
  

  

1. The petition for certiorari was directed to the narrow issue of 
the order dated August 28, 1969. The cross-petition for writ of 
certiorari was directed to the judgment of July 3, as amended, and 
was overruled October 9 under Rule 21 of the Supreme Court which 
requires that any cross-writ of certiorari be limited to "the same 
judgment" which is the subject of the original petition. Also, 
petition for rehearing in banc of the judgment of July 3 was then 
pending but a petition for rehearing concerning the order of August 
28 had not been filed. The record filed with the petition for writ 
of certiorari was limited to the proceedings in this Court of Ap- 
peals. It did not include the appellate record from the District 
Court, which would include evidence, pleadings, plans of desegrega- 
tion filed by HEW on August 11, and subsequent pleadings. At the 
oral argument counsel for the private petitioners held up a blue 
folder which he said contained copies of plans of desegregation 
(presumably for the districts involved in the writ of certiorari). 
When asked by a Justice of the Supreme Court whether he expected 
the Court to study and review each of these plans, he responded in 
the negative. Under these circumstances, the Supreme Court necessa- 
rily granted this Court full discretion to determine whether or not 
to direct the schools to accept all or any part of the August ll 
recommendations of HEW with any modifications which the Court might 

deem proper. 

  

  

  

  

  

   



  

attorneys for the defendants were advised by telephone and other- 

wise to be present in New Orleans before this Court at 1:00 P.M. 

on Thursday, November 6, to attend a pre-order conference , and 

to have the superintendents of the school districts present at 

that time, 

11. On November 6 at the pre-order conference , proceedings 

were had as detailed in petition for rehearing filed by the defen- 

dants-appellees in the cases consolidated as Docket No. 28,030, the 

2/ 
same being made a part hereof by reference.— 

Every citizen of the United States is protected by the con- 

stitutional guarantee of due process of law. This is fundamental 

and has always been one of the basic concepts of our system of 

justice. One of the early statements of this fundamental consti- 

tutional right, which lives today for the protection of every 

  

citizen, was made by this Court through Justice White in Hovey v. 

Bliiott, 167 B.8. 409, 42 L. Fd. 415 as follows: 

The fundamental conception of a court of justice is 
condemnation only after hearing. To say that courts 
have inherent power to deny all right to defend an 
action and to render decrees without any hearing 
whatever is, in the very nature of things, to convert 
the court exercising such an authority. into an instru- 
ment of wrong and oppression, and hence to strip it 
of that attribute of justice upon which the exercise 
of judicial power necessarily depends. . . . 

  

  

  

InGalpin'v, Page, 85 U.S. 13 Wall. 350 [21:959), the 
conrt said {(p. 368 (963)): 

"It is a rule as old as the law, and never more to 
be respected than now, that no one shall be personally 
bound until he has had his day in court, by which is 
meant, until he has been duly cited to appear, and has 
been afforded an opportunity to be heard. Judgment 
without such citation and opportunity wants all the 

| attributes of a judicial determination; it ig judicial 
| usurpation and oppression, and can never be upheld 

where justice is justly administered.? 

  

  

  

  

  

2. Petition for Rehearing in Docket No. 28,030 filed today. 

-10- 

   



  

Again, in Ex parte Wall, 107 U.S. 289 [27:562], the 
court quoted with approval the observations as to "due 
process of law" made by Judge Cooley, in his Constitu- 
tional Limitations, at page 353, where he says: 

  

"Perhaps no definition is more often quoted than that 
given by Mr. Webster in the Dartmouth College Case, 17 

u.s. 4 Wheat. 518 [4:629]: ‘By the law of the land 
1s most clearly intended in the general law; a law 
which hears before it condemns, which proceeds upon 
inquiry and renders Judgments only after trial, The 
meaning is that every citizen shall hold his Tife, Tiber~- 
ty, property, and immunities under the protection of the 

general rules which govern society.'" 

  

  

  

  

  

  

In Moroan v. United Stateg of America, 304 U.S. 13, 82 1L..EQ. 
  

1129, this Court said through Chief Justice Charles Evans Hughes: 

The right to a hearing embraces not only the right to 
present evidence but also a reasonable opportunity to 
know the claims of the opposing party and to meet them. 
The right to submit argument implies that opportunity; 
otherwise the right may be -but-a barren one. 

  

  

  

  

Here, there has never been an opportunity for evidence to be 

introduced, there has been no opportunity whatsoever for the par- 

ties to be heard by their attorneys, in the District Court, in 

the Court of Appeals or in the Supreme Court of the United States 

as to any matter pertaining to the merits of the judgment which 

has been entered. The present judgment sets aside each judgment 

under which each of these school districts had been operating for 

a number of years, a judgment theretofore approved by the Court 

of Appeals of the Fifth Circuit in Jefferson 11. 1t has destroyed 
  

in every district freedom of choice. It has required compulsory 

integration of every faculty and staff to the racial balance 

existing in the entire system. It will require compulsory assign- 

ment of students by use of pairing, racial zoning or direct assign- 

ment. In most instances this will also approach a racial balance 

and in every instance it is designed to -and will very materially 

-11= 

   



  

remove existing racial imbalance. This action falls squarely within 

the rules announced by this Court in Powell v. Alabama, 287 U.S. 45, 
  

77 L.Ed. 158 in "which this Court said: 

...The words of Webster, so often quoted, that by "the 
law of the land" is intended "a law which hears before 
it condemns," have been repeated in varying forms of 
expression in a multitude of decisions. In Holden v. 
Hardy, 169 U.S. 366, 389, 42 1L,..ed., 780, 790, 18 S.Ct. 
383, the necessity of due notice and an opportunity of 
being heard is described as among the "immutable prin- 
ciples of Justice which inhere in the! very idea of free 
government which no member of the Union may disregard. 

  

  

  

  

And Mr. Justice Field, in an earlier case, Galpin v. 
Page, 18 Wall. 350, 363, 369, 2 L.ed. 959, 963, 964, 
said that the rule that no one shall. be personally 

bound until he has had his day in court was as old 
as the law, and it meant that he musi be cited to 
appear and afforded an opportunity to be heard. 
"Judgment without such citation and opportunity 
wants all the attributes of a judicial determination; 
it is judicial usurpation and oppression, and never 
can be upheld where justice is justly administered.” 

  

  

  

  

Iv. 

THIS COURT HAS OUTLAWED FREEDOM OF CHOICE AND REQUIRED 
TOTAL COMPULSORY INTEGRATION OF STUDENT BODIES AND 
FACULTIES OF ALL SCHOOLS, WITHOUT BEING DIRECTED SO TO 

DO BY THE SUPREME COURT OF THE UNITED STATES, 
  

Subsequent to the Per Curiam order in the other consolidated 

cases, this Court has taken the following action as an exercise of 
  

its own discretion without being directed so to do by the Supreme 
  

Court of the United States: 
  

(a) The Supreme Court said: "The Court of Appeals may in its 
  

discretion direct the schools" to accept any part or all of the HEW 
  

  

August 11, 1969, plans. This Court was not required to direct 

acceptance of any part of such plans. Nevertheless it entered 

judgments putting into effect the August 11, 1969, HEW plans. 

(b) This Court in its own discretion entered judgments re- 

quiring the schools to accept all of the August 11, 1969, recommen- 

dations of HEW (with a few minor exceptions). It took such action 

~12~    



  
  

in spite of the fact that (to use the words of the private plain- 

tiffs in their petition for writ of certiorari) the Secretary of 

HEW asked that such plans be withdrawn. He advised the Court that 
  

the same must be improved as they would otherwise have a devastat- 
    

ing effect upon the educational opportunities of the school children. 
  

(c) This Court determined not to use that "part of the August 

11, 1969, recommendations" which consisted of alternate or interim 

steps (with minor exceptions). 

(d) This Court has exercised its discretion not to modify 

such plans (again, with a few minor exceptions). 

Apparently this Court is of the opinion that the Per Curiam 

order overruled or materially modified Green 37, Raney 47, Monroe 2/ 

and carr &/. 

Integration of Faculties and Staffs 
  

Each of the twenty-five judgments entered in this case (through 

attachment of detailed plans made part of the general judgment) con- 

tain the mandatory provision that "the principals, teacher-aides 

and other staff who work directly with the children at a school" 

shall be assigned: 

... So that the ratio of Negro to white teachers in each 
school, and the ratio of other staff in each, are substan- 
tially the same as each such ratio is to the teachers and 
other staff, respectively, in the entire school system. 

  

3. Green v. County School Board, 391 U.S. 430. 
  

4. Raney vy. Gould, 391 U.S. 443,:20 L.B4.24 727. 
  

5..Monroe wv, City of Jackson, Tennr., 391 U.S. 450, 20 1L..E4.24 733. 
  

6. Carr v. Montgomery Ctyv., 23 L.EA.24 263. 
  

-]13~  



With reference to compulsory integration of faculty and staff, 

Judge Bell said (Tr. p.9): 

In every other respect the HEW plan will have to be put into 
effect, which means faculty, and I ought to say now for the 
Court that when we say faculty ... you are going to have a 
ratio of almost equal to that in the faculty population of 
the system. 

This is in direct violation of the teaching of Carr decided 

on June 2, 1969. Although the Supreme Court reversed this Court 

in such case and upheld the order of the District Court, it did so 

on the ground that District Judge Johnson had demonstrated that 

his order was not "rigid or inflexible", and because Judge Johnson 

had, on his own motion, modified orders which had proved to be too 

rigid. Actually, in Carr the Court stated that in Judge Johnson's 

original order, "at least one out of every six faculty and staff 
  

members was required to be different from the race of the majority 

Of the faculty and staff members at that school”. It then recited 

that about a week later Judge Johnson amended that part of the 

original order to provide a ratio of one out of twelve. Judge 
  

Johnson set as an ultimate goal that in each school the ratio of 

white to Negro faculty members be substantially the same as it is 

throughout the system. However, the Supreme Court was careful to 

note as to specific ratios that: 

The goals to be required for future years were not speci- 
fied but were reserved for later decision. 

Full immediate integration of the faculties to a racial balance 

is not required by the October 29 Per Curiam opinion of the Supreme 

Court. It is in violation of Carr. 

-14-    



Compulsory Integration of Students By 
Pairing, Racial Zoning or Direct Assignment 
  

This judgment has completely outlawed freedom of choice and 

substituted complete, absolute compulsory assignment of students to 

attain maximum integration through pairing schools, shifting student 

bodies by assignment, and zoning upon racial lines. Fixed "student 

attendance patterns" specified in each plan must be attained. 

It is In conflict with Downs v. Bd, of Ed, of Kansas City, 
  

336 F.2d 988. This involved the public schools of Ransas City, 

which were operated on a segregated basis prior to Brown I. The 

Eighth Circuit Court of Appeals held: 

There is, to be sure, a racial imbalance in the public schools 
of Kansas City.... While there seems to be authority to sup- 
port that contention, the better rule is that although the 
Fourteenth Amendment prohibits segregation, it does not com- 
mand integration of the races in the public schools and Negro 
children have no constitutional right to have white children 
attend school with them. 

This judgment 1s in direct conflict with Clarls v, Bd, of E4,, 
  

369 F.2d 661 {(Bighth Ciyc.): 

We find no unlawful discrimination in the giving of students 
a free choice of schools. The system is not subject to con- 
stitutional objections simply because large segments of 
whites and Negroes choose to continue attending their familiar 
schools. 

In Mapp 'v. Bd, of vd. of Chattanooga, 373 7.24 75, the Sixth 
  

Circuit Court of Appeals considered a formerly de jure segregated 

school system. It sustained freedom of choice, saying: 

To the extent that plaintiffs' contention is based on the as- 
sumption that the School Board is under a constitutional duty 
to balance the races in the school system in conformity with 
some mathematical formula, it is in conflict with our recent 
decision in Deal v. Cincinnati Board of Education, 369 F.24 
55«{6th Cir. 1966). 

We submit that this petition should be sustained, or, in the 

alternative, that the "interim" HEW steps be permitted. 

=15=    



Respectfully submitted, 

[iF nts 

  

    

JUDGE A. F. SUMMER JOEN C. SATTERFIELD 

Attorney General of Post Office Box 466 
Mississippi Yazoo City, Mississippi 39194 
New Capitol Building Special Counsel for the 
Jackson, Mississippi 39205 Respondents, other than 

the United States of 
America, associated with 
other attorneys of re- 
cord in each of the Con- 

solidated Cases. 

IN BEHALF OF ALL ATTORNEYS OF 

RECORD IN THE ABOVE STYLED CAUSES. 

CERTIFICATE OF SERVICE 
  

I hereby certify that copies of the foregoing Petition for 

Rehearing were served on the Plaintiff-Appellants and Intervenors 

on this 20th day of November, 1969, by mailing copies of same, 

postage prepaid, to their counsel of record at the last known 

address as follows: 

Melvyn R. Leventhal Jeris Leonard 
Reuben V. Anderson Assistant Attorney General 

Fred L. Banks, Jr. Department of Justice 
John A. Nichols Washington, D. C. 20530 

538-1/2 North Farish Street 

Jackson, Mississippi 39205 :- David L. Norman 
: Deputy Assistant Attorney General 

Jack Greenberg Department of Justice 
James M. Nabrit, III Washington, D. C. 20530 
Norman C. Amaker 
Norman J. Chachkin Robert E. Hauberg 

10 Columbus Circle United States Attorney 
Suite 2030 Post Office Building 
New York, New York 10019 Jackson, Mississippi 39205 

This the 20th day of November, 1969.    
  

Of Counsel