Pacific Legal Foundation v. Kayfetz Brief of Amici Curiae

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 85-4804

UNITED STATES OF AMERICA, 

and
ZANDRA PITTMAN, Etc., ET AL., 

versus
THE STATE OF MISSISSIPPI, ET AL., 

and
HATTIESBURG MUNICIPAL SEPARATE 
SCHOOL DISTRICT,

Plaintiff-Appellee,

Plaintiffs-Intervenors-Appellants,

Defendants-Appellees,

Defendant-Intervenor-Appellee.

Appeal from the United States District Court for the 
Southern District of Mississippi

REPLY BRIEF FOR APPELLANTS

JERE KRAKOFF
909 Lindenwood Drive 
Pittsburgh, Pennsyl­
vania 15234

WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN

Lawyers' Committee for Civil 
Rights Under Law 
1400 Eye Street, N.W. , Suite 
400

Washington, D.C. 20005-2203 
(202) 371-1212 

NAUSEAD STEWART
Suite 400 Security Centre South 
200 East Pascagoula Street 
P. 0. Box 2086
Jackson, Mississipoi 39225-2086 
(601) 948-4589

Attorneys for Plaintiff-Inteir/enors-Appellants



Table of Authorities

Cases:
Page

Adams v. Richardson, 356 F. Supp. 92 (D.D.C.)/ 
aff'd en banc, 480 F.2d 1159 (D.C. Cir.
1973) ........................................... 4n

Brunson v. Board of Trustees, 429 F.2d 820 (4th
Cir. 1 9 7 0 ) ......................................  18n

Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975) . . 17n
Carr v. Montgomery County Bd. of Educ., 377 F. Supp.

1123 (M.D. Ala. 1974), aff'd, 511 F.2d 1374 
(5th Cir.), cert, denied, 423 U.S. 986 (1975) 15-16

Cisneros v. Corpus Christi Indep. School Dist.,
467 F.2d 142 (5th Cir. 1972)(en banc), cert.
denied, 413 U.S. 920 (1973) ..................  3a

Clark V. Board of Educ. of Little Rock, 705 F.2d
265 (8th Cir. 1983) ...........................  18

Davis V. East Baton Rouge Parish School Bd.,
721 F.2d 1425 (5th Cir. 1983) ................

Davis V. East Baton Rouge Parish School Bd.,
514 F. Supp. 869 (E.D. La. 1981) .............

Ellis V. Board of Pub. Instruction of Orange Coun­
ty, 465 F.2d 878 (5th Cir. 1972), cert, de­
nied, 410 U.S. 966 (1973) ....................

Ellis V. Board of Pub. Instruction of Orange Coun­
ty, 423 F.2d 203 (5th Cir. 1970) .............

Higgins v. Board of Educ. of Grand Rapids, 508
F.2d 779 (6th Cir. 1 9 7 4 ) ......................  14

Hightower v. West, 430 F.2d 552 (5th Cir. 1970) . . 16
Johnson v.Board of Educ. of Chicago, 604 F.2d 

504 (7th Cir. 1979), vacated, 449 U.S. 915 
(1980), on appeal following remand, 664 F.2d 
1069 (7th Cir. 1981), vacated, 457 U.S. 52 
( 1 9 8 2 )..........................................  14

Kelley v. Metropolitan County Bd. of Educ., 463 
F.2d 732 (6th Cir.), cert, denied, 409 U.S.
1001 (1972)   3a

Kelley v. Metropolitan County Bd. of Educ., 492 F.
Supp. 167 (M.D. Tenn. 1980), rev'd, 687 F.2d 
814 (6th Cir. 1982), cert, denied, 459 U.S.
1183 (1983)   3a

Lee V. Anniston City School Sys., 737 F.2d 952 (5th
Cir. 1 9 8 4 ) ......................................  17n

15, 16n, 17 
6n, 7n

16n
16n



Page
Cases (continued):
Liddell v. Missouri, 731 F.2d 1294 (8th Cir.),

cert, denied, 83 L. Ed. 2d 30 ( 1 9 8 4 )......... 14-15
Mannings v. Board of Pub. Instruction of Hillsbor­

ough County, Civ. No. 3554-T (M.D. Fla. May
11, 1971) ......................................  2a

Milliken v. Bradley, 418 U.S. 717 (1974) .........  3n
Monroe v. Board of Comm'rs of Jackson, 391 U.S.

450 ( 1 9 6 8 )......................................  12, 13
Parent Ass'n of Andrew Jackson High School v. Ainbach,

598 F.2d 705, 719-20 (2d Cir. 1979)   14, 15n
Pate V. Dade County School Bd., 434 F.2d 1151 

(5th Cir. 1970), cert, denied, 402 U.S.
953 ( 1 9 7 1 )......................................  19

Riddick V. School Bd. of Norfolk, No. 84-1815 (4th 
Cir. February 6, 1986) , petition for rehearing
p e n d i n g ........................................  18

Ross V. Houston Independent School Dist., 699 F.2d
218 (5th Cir. 1983) ...........................  17

Seattle School Dist. No. 1 v. Washington, 458 U.S.
457 ( 1 9 8 2 ) ........................................  4a

Seattle School Dist. No. 1 v. Washington, 473 F.
Supp. 996 (W.D. Wash. 1979), aff'd, 633 F.2d 
1338 (9th Cir. 1980), aff'd, 458 U.S. 457 (1982) 4a 

Stout V. Jefferson County Bd. of Educ., 537 F.2d
800 (5th Cir. 1976) ........................... 6n, 13n,

15, 16n
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971)   16n, la
Tasby V. Wright, 713 F.2d 90 (5th Cir. 1983) . . .  16
United States v. Scotland Neck City Bd. of Educ.,

407 U.S. 484 (1972)   12, 13
United States v. Texas Educ. Agency (Port Arthur

ISD) , 679 F.2d 1104 (5th Cir. 1982) .........  18n
Valley v. Rapides Parish School Bd., 702 F.2d 1221

(5th Cir.), cert, denied, 464 U.S. 914 (1983) 6n, 16-17,
Wright v. Council of City of Emporia, 407 U.S. 451

( 1 9 7 2 )............................................  13n

-  11 -



Page
Other Authorities;
Hawley & Rossell, Policy Alternatives for Minimi­

zing VThite Flight, 4 Educ. Evaluation & Pol'y 
Analysis 205 (1982) ......................... 8n

C. Rossell, A School Desegregation Plan for East 
Baton Rouge Parish (submitted to the U.S.
Department of Justice, Washington, D.C., Febru­
ary, 1 9 8 3 ) ......................................  6n, 7n

School Desegregation, Hearings Before the Subcomm. 
on Civil & Constitutional Rights of the House 
Comm, on the Judiciary, 97th Cong., 1st Sess.
( 1 9 8 1 )..........................................  8n

U.S. Comm'n on Civil Rights, Fulfilling the Letter 
and Spirit of the Law, Desegregation of the 
Nation's Public Schools (1976) ................ 2a

U.S. Comm'n on Civil Rights, Reviewing a Decade of
School Desegregation 1966-1975 (1977) . . . .  lln

U.S. Department of Education/Office For Civil 
Rights, Survey Data Summary of Public Elemen­
tary and Secondary Schools in Selected Districts:
School Year 1982-1983 (n.d.) ..................  la-4a

U.S. Department of Education/Office for Civil 
Rights, Directory of Elementary and Secondary 
School Districts, and Schools in Selected School 
Districts: School Year 1978-1979 (1980) . . . la-4a

U.S. Department: of Health, Education and Welfare/Of- 
fice for Civil Rights, Directory of Elementary 
and Secondary School Districts, and Schools in 
Selected School Districts: School Year 1976- 
1977 (1979) .................................... la-4a

U.S. Department of Health, Education and Welfare/Of- 
fice for Civil Rights, Directory of Public 
Elementary and Secondary Schools in Selected 
Districts, Enrollment and Staff by Racial/Ethnic 
Group, Fall, 1972 (OCR-74-5) (1974) .........  la-4a

U.S. Department of Health, Education and Welfare/Of- 
fice for Civil Rights, Directory of Public 
Elementary and Secondary Schools in Selected 
Districts, Enrollment and Staff by Racial/Ethnic 
Group, Fall, 1970 (OCR-72-5) (1972) .........  la-4a

- Ill -



Page
Other Authorities (continued):

U.S. Department of Health, Education and Welfare/Of- 
fice for Civil Rights, Directory of Public 
Elementary and Secondary Schools in Selected 
Districts, Enrollment and Staff by Racial/Ethnic 
Group, Fall, 1968 (OCR-101-70) (1970) . . . . la-4a

- IV -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 85-4804

UNITED STATES OF AMERICA, 

and
ZANDRA PITTMAN, Etc., ET AL., 

versus
THE STATE OF MISSISSIPPI, ET AL., 

and
HATTIESBURG MUNICIPAL SEPARATE 
SCHOOL DISTRICT,

Plaintiff-Appellee,

Plaintiffs -Int ervenor s -Appel 1 ants,

Defendants-Appellees,

Defendant-Intervenor-Appellee,

Appeal from the United States District Court for the 
Southern District of Mississippi

REPLY BRIEF FOR APPELLANTS

I.

Before turning to the legal arguments advanced by the Hatties­
burg school district and the United States, there are a few factual 
matters which warrant careful consideration by the Court because 
they are critical to an accurate evaluation of the desegregation 
plans between which the district court chose. Appellees slide 
too easily over the distinctions in outcomes which would be pro­
duced by the "Consent Decree" and Stolee plans.



A.
The school district misrepresents the proof and the district

court's conclusions when it asserts that:
The undisputed evidence at the hearing was 
that within two years, more than 30% of the 
black children in the elementary grades would 
be attending schools of 80% or more black 
enrollment under the Stolee Plan, whereas 
under the Consent Decree Plan only 26% of 
the black children would be attending schools 
of 80% or more black enrollment.

(Brief for Appellee HMSSD at 12 [emphasis supplied]; see also, id.
at 14, 17, 25.) The distict court in fact recited that

According to [Dr.] Rossell's projections of 
enrollment two years after implementation,
30.69% of the students would be enrolled in 
schools serving student bodies which are ap­
proximately 80% of one race under the Stolee 
Plan, and, under the Consent Decree Plan,
26.72% of the HMSSD students would be in such 
schools.

(R. 714, R.Exc. 74 [Mem. Op. 12 n.28].) The two sentences quoted 
do not mean the same thing.

The proportions calculated by the district court represent 
the percentage of all students. Black and white, whom Dr. Rossell 
projected would be attending schools "approximately 80% of one 
race" two years after implementation. See R. 626, 629, R.Exc. 170, 
173 [G-X 2, pp. 28, 31]. This raw statistic is not particularly 
illuminating; indeed, it is somewhat misleading since it does 
not distinguish between schools "approximately 80% of one race" 
and schools which are virtually all-Black.

Taking Dr. Rossell's figures at face value, under the Consent 
Decree plan, 732 (or 39.9%) of all the Black elementary-grade 
students will be attending two formerly all-Black schools: Eureka,

-  2 -



which will be 95.8% Black, and Bethune, which will be 86.7% Black 
(R. 626, R.Exc. 170 [G-X 2, p. 28]). Eighty white students will 
be attending these facilities f id. ̂ . In contrast, under the Stolee 
plan, no school will be as much as 85% Black. According to Dr. 
Rossell's figures, under the Stolee plan Bethune will be 79.7% 
Black, Eureka will be 79.0% Black, and Jones will be 78.3% Black 
(R. 629, R.Exc. 173 [GX-2, p. 31]). (These are the three schools 
whose enrollments were combined by the district court in note 28 
of its opinion.) A total of 607 (or 35.5%) of all Black elementary 
students will attend these schools. One hundred fifty-eight white 
students will be enrolled in these facilities f i d . .

B.
Given these results, we think it is quite wrong to say, as 

does the United States (Brief, at 32) that "the two plans the 
court considered promised comparable overall results." The only 
conceivable basis for such a statement assumes that the focus is 
on schools that are "approximately 80% Black." But this masks the 
extent to which the Consent Decree plan fails to dismantle the 
dual system because it provides for the continuation, as severely 
racially isolated schools, of two facilities that have always 
been maintained as Black schools by the HMSSD.

The government's fixation on the "80%" figure for a school 
system in which more than 60% of all elementary students are Black 
is particularly difficult to understand.^

^See Milliken v. Bradley. 418 U.S. 717, 737-41 & n.l9 (1974) 
(existence of predominantly minority schools, without significant 
disparities in racial composition among schools, even in system 
which practiced unconstitutional segregation, does not establish

- 3 -



Moreover, as we indicated in our opening brief, Dr. Rossell's 
enrollment projections for the Consent Decree plan include kinder­
garten students, while the projections for Dr. Stolee's plans do 
not fcompare R. Exc. 170, 173). Because of the change in state 
law, those students should be excluded from the projections for 
the Consent Decree plan. See Brief for Appellants at 11 n.26; 
Brief for the United States, at 26 n.17.̂  when this is done, 
Bethune is projected to be 99.2% Black and Eureka 95.1% Black; 
and thus, 36.6% of all Black elementary students would remain in 
virtually all-Black schools under the Consent Decree plan.^

The realistic comparison in this case is between the plan 
approved below, which leaves two virtually all-Black schools en­
rolling more than a third of all Black elementary students, and

inadequacy of remedy which justifies interdistrict relief); Adams 
V. Richardson. 356 F. Supp. 92, 96-97 (D.D.C.), aff'd en banc. 
480 F.2d 1159 (D.C. Cir. 1973)(federal agency enforcing Title VI 
must require formerly segregated school districts to provide non- 
discriminatory explanation for existence of schools which deviate 
20 or more percentage points from system-wide minority enroll­
ment .)

^Despite the trial testimony about kindergartens, the school 
district continues to refer to Dr. Rossell’s projections including 
them (see Brief for Appellee HMSSD, at 8, 2a) , as does the govern­
ment (see Brief for the United States, at 11 text at n.lO). This 
is doubly misleading. First, Dr. Rossell's projections include 
white kindergarten students at Bethune as the only source of any 
significant white enrollment at that school. Second, they also 
omit kindergarten enrollments at other schools —  which are now 
likely to occur on a "neighborhood" basis (Tr. 115, 175) and which 
therefore would reinforce the traditional racial identiflability 
of those schools.

^We agree with the government that it is "possible" that 
some white parents will enroll their children in Bethune's extended 
day program (Brief for the United States, at 2 6 n.l7) but we adhere 
to our insistence that this possibility is quite remote under 
the circumstances of this case (see Brief for Appellants, at 30- 
32) .

- 4 -



a system of student assignments (the Stolee plan) under which no 
school would be more than 20 percentage points above or below 
the system-wide proportion of Black students in the elementary 
grades.^

C.
Both the school district (Brief for Appellee HMSSD, at 8, 

14) and the government (Brief for the United States, at 12, 20) 
rely upon Dr. Rossell's prediction that if the Stolee plan were 
implemented, 36.2% of the district's current white elementary 
enrollment would withdraw from the system within two years —  

while under the Consent Decree plan only 8.6% of these white stu­
dents would be lost. Dr. Rossell's testimony and report, however, 
are an inadequate legal justification for the district court's 
decision to leave two historically Black schools segregated in a 
system as small and logistically manageable as Hattiesburg. As 
we said in our opening brief:

White flight resulting from hostility to the 
dismantling of the dual system will obviously 
be greater under a plan which assigns white 
students in substantial numbers to all of 
the formerly Black schools than under a plan 
which leaves two of five all-Black schools 
unchanged. Dr. Rossell's first proposition 
[greater white flight under the Stolee plan] 
simply disregards the law of Monroe. Scotland 
Neck, and their progeny in this Circuit.

(Brief for Appellants, at 42.)

'^Even that comparison does not represent a fully accurate 
portrayal, because Dr. Rossell's "white flight" calculations were 
done for each of two years following implementation of the Stolee 
plan but only once for the Consent Decree plan (see Brief for 
Appellants, at 22, 45 n.86). Since Dr. Rossell could not remember 
the basis for this procedure and did not know what the effect of 
altering it would be (id. at 22 n.56), the actual outcome under 
the Consent Decree plan —  even if Dr. Rossell's "white flight" 
formulas are correct —  is not precisely known.

- 5 -



In addition, for the reasons summarized below, the apparent 
precision of Dr. Rossell's figures is deceptive and they are an 
insufficient basis upon which to uphold the district court's judg­
ment: First, the figures represent predictions about future events 
in Hattiesburg based upon Dr. Rossell's analysis of past experience 
in two quite different systems. Baton Rouge and Los Angeles (Tr. 
560-61).^ The formulas purporting to quantify the extent to 
which white students would fail to report to the schools to which 
they were assigned, dependent upon the projected racial composition 
of those schools (see R. 605, R.Exc. 148 [G-X 2, p. 17]) were 
devised by averacinc the experience at many schools in these two 
districts (Tr. 561), each of which is considerably larger than 
Hattiesburg. Whether the much smaller number of schools in Hat­
tiesburg would have the same experience as this average is not 
at all clear.®

^Compare Valiev v. Rapides Parish School Bd., 702 F.2d 1221, 
1226 (5th Cir.) (withdrawal of whites assigned in past to same 
school), cert, denied. 464 U.S. 914 (1983); Stout v. Jefferson 
County Bd. of Educ.. 537 F.2d 800, 802 (5th Cir. 1976)(same).

®There was, in fact, substantial variation from school to 
school in Baton Rouge. For example, the court-ordered plan paired 
Wildwood Elementary School, 19% Black, and University Terrace, 
78% Black, for an overall enrollment projection of approximately 
31% Black in each facility. Davis v. East Baton Rouge Parish 
School Bd. . 514 F. Supp. 869, 879, 884 (E.D. La. 1981) . According 
to Dr. Rossell's formulas. University Terrace might have been 
anticipated to lose close to 25% of the white students reassigned 
to it (R. 605, R.Exc. 148 [GX-2, p. 7]). However, in Baton Rouge' s 
actual experience. University Terrace enrolled 132% more whites 
than projected in the first year after implementation. C. Rossell, 
A School Desegregation Plan for East Baton Rouge Parish (submitted 
to the U.S. Department of Justice, Washington, D.C., February, 
1983), Table 7.

Many other schools simply did not fit the "averages" which 
Dr. Rossell computed. Goodwood Elementary, for instance, was a 
98%-white school prior to implementation of the court decree which

-  6 -



Second, in both Los Angeles and Baton Rouge the desegregation 
orders were imposed upon school systems and communities which 
had had no prior experience with effective desegregation plans. 
Here, to the contrary, the Hattiesburg secondary schools have 
been operated on a fully desegregated basis since implementation 
of the pairing and grade restructuring plan in 1971.

placed it in a cluster expected to be 41% Black. 514 F. Supp. at 
879, 884. The Rossell formula would project a loss of 10% of 
its white students upon implementation; instead, the white enroll­
ment dropped by only 0.6%. C. Rossell, supra.

Extrapolating from this experience to Hattiesburg seems to 
us to be a venture fraught with uncertainty.

"^The government refers to Dr. Rossell's testimony that the 
HMSSD lost 30% of its white enrollment at the secondary level 
following implementation of this plan (Brief for the United States, 
at 13, 24). However, it does not note Dr. Rossell's admission, 
on cross-examination, that the figures on the historical experience 
of the HMSSD which were contained in her report failed to deduct 
"normal white enrollment decline" (see Tr. 606) experienced by 
nearly every urban school system (Tr. 573). As Dr. Rossell has 
explained.

Most recently the term "white flight" has 
erroneously been used to describe the decline 
in central city white public school enroll­
ment. Most of this decline is a function of 
the secular suburbanization trend and the 
declining birthrate. . . . There has been an 
annual white enrollment decline of almost 1 
percent in all schools since 1968. It is 
now almost 3 percent. . . . Because they bene­
fit from northern migration to the South, 
some southern countvwide school districts 
have stable or increasing whits enrollment 
in spite of the national decline in birth­
rate . . . .  The normal change in the white 
percentage of school enrollment in northern 
central city school districts should be a 
decline of 2 percentage points annually.
This should also be true for the South. . . . 
Determining the decline in white public school 
enrollment resulting from school desegregation 
requires isolating the impact of policy from 
these long-term demographic trends.

[footnote continued on next page]

- 7 -



Third, as we previously observed (supra note 4) , Dr. Rossell's 
calculations of expected ’’white flight” from Hattiesburg departed 
from the methodology outlined in her own report. For example, 
her Baton Rouge and Los Angeles studies apparently indicated that 
white enrollment projections at formerly white schools should be 
reduced in each of the first two years after implementation (R. 
605, R.Exc. 148 [GX-2, p. 7]; but see Tr. 629-33). For Hatties­
burg, however. Dr. Rossell ’’collapsed” the calculations because 
of uncertainties about the extent of flight which would occur. 
She was unable to provide any credible explanation for this ap­
proach:

Q . . .  So is it not true that the formerly 
white schools which have reassigned blacks 
to them should have two adjustments made, 
one for first-year white flight and one for 
second-year white flight?
A Yes. I would think that’s true.
Q And was that done on this table? . . .
A . . .  Let me explain [w]hat I did on this 
table. Since I don’t know what first-year 
effects are going to be in terms of—  It wasn’t 
clear to me what the first-year effects were 
going to be. I collapsed that into the second 
year. Now, what difference is this going to 
make I don’t know.

Hawley & Rossell, Policy Alternatives for Minimizing White Flight, 
4 Educ. Evaluation & Pol’y Analysis 205, 206-07 (1982)(emphasis 
supplied); accord. School Desegregation, Hearings Before the Sub- 
comm. on Civil & Constitutional Rights of the House Comm, on the 
Judiciary. 97th Cong., 1st Sess. 217, 219-20 (1981)(testimony of 
Christine Rossell).

The limited excerpts from Dr. Rossell’s testimony that are 
attached to the government’s brief are incomplete and we urge 
the Court to read the entire portion of the transcript devoted 
to her examination, Tr. 542-648.

-  8 -



Q Well, I don't want to ask you to calculate 
what difference it makes. In your analysis 
of the Stolee plan, did you—  Let me ask you 
to turn—  Did you apply two years of white 
flight or one year of white flight?
A Two years.

Q So it's really difficult to compare the 
adequacy of the two analyses. You didn't 
apply exactly the same factors to each.
A Let me tell you the difference. These 
are M-to-M transfers as opposed to reassign­
ments, and M-to-M transfers produce less white 
flight, but we don't know how much less. I 
think I just didn't do it the first year be­
cause I assumed by adding 15 percent the second 
year that would take care of whatever differ­
ential white flight there might be from these 
M-to-M transfers.
Q Directing your attention to Grace Christian 
school, under what column do you show 60 black 
students?
A I show them in rezoning.
Q And on the chart that's on the easel there, 
if you look at it, I think in the right-hand 
column you'll agree it shows 60 blacks from 
Jones. And the testimony was that that is a 
portion of the students from Jones who will 
be reassigned mandatorily because only 72 
places will be reserved for former Jones stu­
dents when it's made into a magnet school. 
So those are not M-to-M transfers. Is that 
correct? They're mandatory reassignments?
A That's correct.
Q So we really have two slightly different 
sets of computations applied to the District 
Alternative Plan and the Stolee plan.
A I'm trying to remember the rationale here. 
I simply can't.

(Tr. 640-42)(emphasis supplied.)®

^Similar problems attended all of Dr. Rossell's calculations.
[footnote continued on next page]

- 9 -



Appellants' expert witness, Dr. Stolee, declined to engage
in a guessing game about the extent of "white flight" that might
follow implementation of a pairing and clustering plan. But it
is hardly correct to characterize his testimony by saying that
"he would not dispute the projections of Dr. Christine Rossell"
(Brief for Appellee HMSSD, at 14). What Dr. Stolee said was (Tr.
723)(emphasis supplied):

A No. I've never said I disagree with that, 
because the evidence does show that some whites 
leave no matter what you do. I mean, if you 
desegregate just a little bit, like your [the 
Consent Decree] plan, she said there was going 
to be some white loss. If you [de]segregate 
thoroughly, like the plan we presented, there's 
going to be some white loss.
Q I'm asking about yours, though.
A Oh, I can't argue against her findings 
that there will be some white loss. There 
would be. The magnitude could be, you know, 
the same or more or less than what she says.
The social sciences are not that exact a sci­
ence.

The extent of "white flight" in reaction to desegregation 
decrees varies widely among individual school systems. We attach, 
as an Appendix to this brief, an analysis of publicly available 
data which shows this considerable variation in rates of white 
enrollment loss. From these data, as well as the Baton Rouge 
experience (see supra note 6) it is extremely difficult to discern 
any regular pattern of white withdrawal in relation to desegrega-

See, e.g.. Tr. 634-35 ("I arbitrarily picked five students from
the magnet school. . . . That may be part of one of the problems 
I had with this data, which is that numbers didn't add up. So 
in some cases I had the choice of adjusting their totals, or I 
had the choice of adjusting their reassignments. . . . I just
assumed that half of them would be white")(emphasis supplied).

-  10 -



tion steps, such as Dr. Rossell attempted to extrapolate from 
Baton Rouge and Los Angeles.^ We respectfully submit that, in 
spite of the scientific patina sought to be affixed to them. Dr. 
Rossell's testimony and report provide no sounder basis for refus­
ing to order complete desegregation than did the fervent predic-

^The deficiency of the plan approved below can, however, be 
analyzed statistically;

The Standardized Measure of Segregation (Rbw) 
is that used in previous studies and is a 
function of the measure of interracial school 
contact and the proportion of white children 
in the school district. If the same proportion 
of white children were in each school, then 
Sbw, the measure of interracial school contact 
defined above, would be equal to Pw, the pro­
portion white. If the black and white children 
were each in schools by themselves, then Sbw 
would be zero. Thus, the measure of segrega­
tion may be constructed to indicate how far 
Sbw is from Pw, or the degree to which segre­
gation among schools within a district is 
responsible for the value of Sbw. Hence,
Rbw is defined as:

Rbw = Pw - Sbw 
Pw

U.S. Commission on Civil Rights, Reviewing a Decade of School 
Desegregation 1966-1975 125-26 (1977)(emphasis supplied).

When these calculations are performed for the Consent Decree 
plan and the Stolee plan, even accepting Dr. Rossell's '*white 
flight” pronections (R. 626, 629, R.Exc. 170, 173 [G-X 2, pp. 28, 
31]), the results are striking:

Plan
Consent Decree 
Stolee

Second Year After Implementation 
% White Sbw Rbw

39.6
31.3

33.0 
29.8

16.7 
4 .8

In other words, the Consent Decree plan results in more than three 
times as much segregation as the Stolee plan —  and that in the 
form of two virtually all-Black schools (see supra p. 4).

-  11 -



tions of school authorities in Monroe and similar cases, described 
in our opening brief.

II.
The briefs of the appellees present a curious approach to 

the law governing this case. On the one hand, they seek to avoid 
controlling Supreme Court precedent by mischaracterizing it. On 
the other, they gather together virtually every decision of a 
federal court which either allowed a one-race school to exist or 
which stated that "white flight” could be considered in fashioning 
a remedy —  and with little recognition of the salient facts or 
the legal reasoning employed, simply advance these rulings as a 
blanket justification for what occurred below. Neither effort 
is persuasive.

A.
The fundamental legal principle applicable to this appeal 

is that feared, predicted, or fancied "white flight" may not "be 
accepted as a reason for achieving anything less than complete 
uprooting of the dual system. See Monroe v. Board of Commission­
ers . 391 U.S. 450, 459." United States v. Scotland Neck City
Board of Education. 407 U.S. 484, 491 (1972). Appellees each
seek to deflect the force of Scotland Neck by suggesting that in 
that case, "the school district [was] arguing that nothing should 
be done because of the likelihood of white flight," Brief for 
Appellee HMSSD, at 31 (emphasis in original), or that there "the 
local school board had relied on fear of white flight as a basis

-  12 -



for taking no action to desegregate,” Brief for the United States, 
at 39 (emphasis in original).

To the contrary, the Scotland Neck school district officials 
were willing to operate a single school complex for all of its 
students, as well as students who wished to transfer from the 
Halifax County system (407 U.S. at 487) . This Scotland Neck system 
would have been 57% white and 43% Black fid.) —  quite a change 
from the previous circumstances, when all white students attended 
traditionally all-white schools and 97% of the Black students 
were in all-Black schools (id. at 486). Despite this limited 
improvement, the Supreme Court held the plan was unacceptable 
(id. at 489-91) and, citing Monroe, specifically rejected the 
"white flight" thesis even though advised that integration of 
the county school system together with Scotland Neck had been 
accompanied by a substantial drop in the proportion of white stu­
dents (id. at 491 & n.5).^^ Scotland Neck is controlling here.

^*^The government argues that this Court so described Scotland 
Neck in Stout v. Jefferson County Bd. of Educ. , 537 F.2d 800, 
802 n.2 (5th Cir. 1976). That is not quite right, either. What 
Judge Gee's opinion in Stout said was that the school authorities 
in the Scotland Neck case "advanced fear of white flight as a 
reason for refusing to attempt to dismantle an existing dual sys­
tem." As we indicate in text, infra, the scheme which the Supreme 
Court rejected in Scotland Neck involved limited desegregation 
which was, however, inadequate to eliminate the vestiges of the 
dual system —  as in this case —  and not a total refusal to act.

^^Similarly, in the companion case, Wright v. Council of 
City of Emporia. 407 U.S. 451 (1972) , prior to creation of a separ­
ate city district, no whites attended Black schools and only 98 
of 2,510 Black students were in formerly white facilities (id. 
at 455) . The City of Emporia "proposed to operate its own schools 
on a unitary basis, with all children enrolled in any particular 
grade attending the same school" (id. at 457-58) ; only 48% of 
Emporia's school population was white (id. at 457). The Supreme 
Court approved the district court's refusal to permit the carve- 
out. "The District Court, with its responsibility to provide an

- 13 -



B.
Appellees seek to rely upon a wholly inapposite group of 

cases approving limitations on purely voluntary desegregation 
initiatives, adopted in part out of concern about "white flight." 
Whatever the correctness of those decisions as applied to the 
circumstances to which they are addressed they have no bearing 
on the issues here, as the courts involved recognized. See Higgins 
V. Board of Education of Grand Rapids. 508 F.2d 779, 793-94 (6th 
Cir. 1 9 7 4 ) Parent Association of Andrew Jackson High School 
V. Ambach. 598 F.2d 705, 719-20 (2d Cir. 1979) Johnson v. Board 
of Education of Chicago. 604 F.2d 504, 516-17 (7th Cir. 1979), 
vacated. 449 U.S. 915 (1980), on appeal following remand. 664 
F.2d 1069 (7th Cir. 1981), vacated. 457 U.S. 52 (1982) Liddell

effective remedy for segregation in the entire city-county system, 
could not properly allow the city to make its part of that system 
more attractive where such a result would be accomplished at the 
expense of the children remaining in the county" (id. at 4 68) . 
Cf. Tr. 259 (50% cap on enrollment of Black students in magnet 
schools intended "to make those magnet schools more attractive 
to the white community").

^^The court in Higgins suggested that the "authority of school 
officials to formulate plans for achieving an improved racial 
balance should not be as restrictive in the case of a school system 
which has not been found to have engaged in purposeful segregation 
as for a system which has practiced de jure segregation," 508 
F.2d at 793.

^^The Ambach opinion contrasts what "the Constitution com­
mands" of a formerly segregated system with "the limited circum­
stances of purely voluntary action," 598 F.2d at 720.

^^The Seventh Circuit's original opinion expressly distin­
guished between constitutionally mandated and voluntary plans 
and relied on Higgins and Ambach. But since its judgment was 
vacated by the Supreme Court, the opinion in any event has no 
precedential weight.

- 14 -



V. Missouri. 731 F.2d 1294, 1313-14 (8th Cir.)/ cert, denied. 83 
L. Ed. 2d 30 (1984).

C.
Appellees have also collected an assortment of decisions 

allowing the continued operation of all-Black or heavily Black 
schools in districts still in the process of satisfying their 
constitutional obligations, or sanctioning consideration of “white 
flight" in fashioning a remedy. In each of these cases, the reas­
oning of the courts which decided them supports our claims here.

Some of the cases involved much larger school districts within 
which the overwhelming majority of schools were fully desegregated; 
allowing a truly "small number of one-race schools" to continue 
under those circumstances —  especially where practical and logis­
tical problems made their desegregation difficult to achieve —  

these courts held, did not make the districts "non-unitary." 
See Davis v. East Baton Rouge Parish School Board. 721 F.2d 1425, 
1433 (5th Cir. 1983);^® Stout v. Jefferson County Board of Educa­
tion. 537 F.2d 800, 802-03 (5th Cir. 1976) Carr V. Montgomery

^^The Liddell court noted, in approving a consent decree set­
tling an interdistrict action prior to a finding of liability, that 
a "secondary remedial objective" of educational improvements re­
quired by the decree was to increase the attractiveness of city 
schools and lessen "white flight," and, citing Higgins and Ambach, 
held this to be permissible in the context of a voluntary plan.

^®The district court in Davis "found itself constrained by 
the facts of geography and by difficulties of transportation to 
allow eleven essentially one-race elementary schools to remain," 
721 F.2d at 1433. As we emphasized in our opening brief, this 
Court's reasoning in Davis strongly supports our position in this 
case. The school district's half-hearted effort to distinguish 
Davis (see Brief for Appellee HMSSD, at 30-31) is unavailing.

17"The unfortunate presence of these three one-race schools,

- 15 -



County Board of Education. 377 F. Supp. 1123, 1135 (M.D. Ala.
1974) , a f f  d . 511 F.2d 1374 (5th Cir.) , cert, denied. 423 U.S. 986 
(1975);^® Hightower v. West. 430 F.2d 552, 555 (5th Cir. 1970). 
Other decisions dealt with districts which, unlike Hattiesburg, 
had taken vigorous and meaningful action to integrate their systems 
in the past, but in which the courts found that post-imolementa- 
tion^® demographic changes had made further efforts impracticable. 
See Tasbv v. Wright. 713 F.2d 90, 99 (5th Cir. 1983) ,*21 Valley

serving just over 1100 total pupils, in a desegregated system 
serving many thousands, is to be deplored. But they are the result 
of demography; the system as a whole is desegregated and the over­
whelming majority of all students attend such facilities . . . ," 
537 F.2d at 803.

18iiThis Court desires to emphasize that the remaining predom­
inantly black schools in this school system under the board's 
plan cannot be effectively desegregated in a practicable and work­
able manner," 377 F. Supp. at 1135.

^®In Hightower the Court concluded that contiguous pairing 
of the few remaining virtually all-Black schools in southern Fulton 
County, Georgia would still produce schools having racially dispro­
portionate enrollments, and noted that most of the school system 
was fully desegregated. Of course, Hightower was decided prior 
to Swann. and this Court did not consider the use of non-contiguous 
zoning or clustering in that case. Indeed, Hightower relied on 
Ellis V. Board of Pub. Instruction of Orange County. 423 F.2d 
203 (5th Cir. 1970), but see. e .g.. id., 465 F.2d 878 (5th Cir. 
1972), cert, denied. 410 U.S. 966 (1973).

^^Compare Davis v. East Baton Rouge Parish School Bd., 721 
F.2d at 1435-36 and cases cited.

"Like the courts in Atlanta and Houston, [the district 
court] was confronted with a school system in which the traditional 
desegregation tools could not be used to eliminate the continued 
existence of one-race schools, and thus it concluded that it should 
do whatever time and distance factors allowed," 713 F.2d at 99. 
Appellees' reliance on Tasbv is surprising. All that the panel 
announced in that case was that a one-year delay in achieving a 
reduction of less than one point in the white student enrollment 
percentage at a high school would not have been impermissible 
even if part of the justification were to limit adverse reaction 
by white parents to school reasignments. That is a far cry from 
the situation here. Moreover, in Tasbv the Court specifically

- 16 -



V. Rapides Parish School Board. 702 F.2d 1221, 1226 (5th Cir.), 
cert, denied. 464 U.S. 914 ( 1 9 8 3 ) Ross v. Houston Independent 
School District. 699 F.2d 218, 228 (5th Cir. 1983).^3 There is 
nothing in these decisions which conflicts with the principles 
upon which we rely, and which were so aptly summarized by this 
Court in Baton Rouge, see Brief for Appellants, at 26-28.^4

upheld the district court's refusal to allow a resegregation plan 
prompted by the desires of some Black parents in Dallas to have 
"neighborhood schools," 713 F.2d at 97.

22"Various plans approved by the district court over the 
long history of this litigation did not realize one of their pri­
mary goals: desegregation of the Cheneyville schools," 702 F.2d 
at 1226. Again, appellees' reliance cn Valiev is quixotic, since 
the Court there sanctioned, on the school board's appeal, consid­
eration of the possibility of "white flight" which led the district 
court to select an alternative plan which integrated all schools 
remaining open in the area, at all grade levels, see 702 F.2d at 
1226-28.

23This Court in Ross noted that "HISD is a singular district, 
with unusual, perhaps unique, problems" and relied upon "the undis­
puted fact that HISD is unitary in every aspect but the existence 
of a homogeneous student population; the intensive efforts that 
have been made to eliminate one-race schools; and the district 
court's conclusion that further measures would be both impractical 
and detrimental to education . . . ," 699 F.2d at 228. Cf. Calhoun 
V. Cook. 522 F.2d 717, 719 (5th Cir. 1975) (" . . .  in Atlanta, 
the unique features of this district distinguish every prior school 
case pronouncement").

24t w o  further comments are appropriate.
(1) Lee V. Anniston City School Svs. . 737 F.2d 952 (11th 

Cir. 1984) , cited by appellees, has nothing to do with the issues 
here. It was a challenge to a school board decision to close a 
junior high school in a Black neighborhood and replace it with a 
middle school on a neutral site. Plaintiffs challenged the deci­
sion not to build the new school on the same site as "racially 
motivated and based on an impermissible fear of 'white flight' 
from the system," 737 F.2d at 955. The district court found no 
racial motive and the Court of Appeals affirmed, id. at 956-57. 
These conclusions were unaffected by the district court's obser­
vation that when the new school opened —  on a fully integrated 
basis —  there would be "greater promise for future desegregation 
by attracting more white students from the surrounding area," 
id. at 957. Since no facility was to remain segregated (the opin-

- 17 -



Finally, appellees cite two decisions of other Circuits which 
permitted school systems that had implemented extensive desegre­
gation plans to engage in the deliberate resegregation of some 
schools, purportedly to keep others integrated, Riddick v. School 
Board of Norfolk. No. 84-1815 (4th Cir. February 6, 1986), petition 
for rehearing pending; Clark v. Board of Education of Little Rock. 
705 F.2d 265 (8th Cir. 1983) . These rulings are of dubious valid­
ity and the cases are in any event easily distinguishable from
this one.25

ion refers only to some unspecified level of adverse impact on 
the "racial mix" of an elementary school, id.), the relevance of 
this decision to Hattiesburg is slight.

(2) United States v. Texas Educ. Agency (Port Arthur ISP). 
679 F.2d 1104 (5th Cir. 1982), cited by the government, surely 
did not enunciate any rule about the constitutional validity of 
a phase-in period for magnet schools. The Court there merely 
approved a stipulation withdrawing the appeal on the basis of a 
settlement between the United States and the school district, in 
a case in which there were no private parties and the issue was 
apparently not raised.

25secause Hattiesburg has never implemented an effective 
elementary-level desegregation plan, we do not think Riddick and 
Clark have any application to this case. Indeed, the Riddick 
panel explicitly limited its holding to "school systems which 
have succeeded in eradicating all vestiges of de jure segregation," 
slip op. at 59; compare Brief for Appellants, at 7 n.l7. But we 
are also firmly convinced that these two rulings, taken on their 
own merits, are incorrect and ought not be followed. The consti­
tutional requirement of desegregation "is not founded upon the 
concept that white children are a precious resource which should 
be fairly apportioned." Brunson v. Board of Trustees. 429 F.2d 
820, 826 (4th Cir. 1970)(Sobeloff, J., concurring).

- 18 -



Conclusion
For the foregoing reasons, and for those set forth in our 

opening brief, appellants respectfully pray that the judgment 
below be reversed and the case remanded with instructions to order 
the implementation, in the 1986-87 school year, of the Stolee 
plan —  or of an equally effective mandatory student reassignment 
plan, see. e.g., Pate v. Dade County School Board. 434 F.2d 1151, 
1158 (5th Cir. 1970), cert, denied. 402 U.S. 953 (1971).

Respectfully submitted.

JERE KRAKOFF
909 Lindenwood Drive 
Pittsburgh, Pennsyl­
vania 15234

WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN

Lawyers' Committee for Civil 
Rights Under Law 
1400 Eye Street, N.W., Suite 
400

Washington, D.C. 20005-2208 
(202) 371-1212 

NAUSEAD STEWART
Suite 400 Security Centre South 
200 East Pascagoula Street 
P. 0. Box 2086
Jackson, Mississippi 39225-2086 
(601) 948-4589

Attorneys for Plaintiff-Intervenors-Appellants

- 19 -



A P P E N D I X



APPENDIX
Loss of White Students in Other School Districts

In Charlotte, North Carolina, meaningful desegregation began 
in the early 1970's.26 charlotte's experience, while not atypical 
of court-ordered districts, appears to be quite different from 
Baton Rouge and Los Angeles; the immediate post-implementation 
years appear to indicate reduced, rather than increased, loss of 
white students. An analysis of publicly available statistics'^ 
shows the following:

^^See Swann v. Charlotte-Mecklenbura Board of Education, 402 
U.S. 1 (1971).

27Sources of data: U.S. Department of Health, Education, 
and Welfare/Office for Civil Rights, Directory of Public Elementary 
and Secondary Schools in Selected Districts. Enrollment and Staff 
by Racial/Ethnic Group, Fall, 1968 (OCR-101-70)[hereinafter cited 
as 1968 OCR Data! 1057 (1970); U.S. Department of Health, Educa­
tion, and Welfare/Office for Civil Rights, Directory of Public 
Elementary and Secondary Schools in Selected Districts, Enrollment 
and Staff by Racial/Ethnic Group, Fall. 1970 (OCR-72-5) [hereinafter 
cited as 1970 OCR Data! 2037 (1972); U.S. Department of Health, 
Education, and Welfare/Office for Civil Rights, Directory of Public 
Elementary and Secondary Schools in Selected Districts, Enrollment 
and Staff by Racial/Ethnic Group, Fall, 1972 (OCR-74-5) [hereinafter 
cited as 1972 OCR Datal 1002 (1974) ; II U.S. Department of Health, 
Education, and Welfare/Office for Civil Rights, Directory of Ele­
mentary and Secondary School Districts, and Schools in Selected 
School Districts; School Year 1976-1977 [hereinafter cited as 1976 
OCR Data! 1321 (1979); II U.S. Department of Education/Office
for Civil Rights, Directory of Elementary and Secondary School 
Districts, and Schools in Selected School Districts; School Year 
1978-1979 [hereinafter cited as 1978 OCR Datal 1014 (1980); II
U.S. Department of Education/Office for Civil Rights,Survey Data 
Summary of Public Elementary and Secondary Schools in Selected 
Districts; School Year 1982-1983 [hereinafter cited as OCR 1982 
Datal 664 (n.d.).

- la -



Charlotte;

Year
# VThite 
Pupils

% White 
Pupils

Loss 
(Gain) 

Of White 
Pupils

Annualized 
% Loss % Loss 
(Gain) (Gain)

Of White Of White 
Pupils Pupils

1968 58,623 70.5
1970 56,819 68.9 1,804 3.1/2 yr. 1.6
1972 53,629 67.2 3,190 5.6/2 yr. 2.8
1976 50,656 64 2,973 5.5/4 yr. 1.4
1978 47,831 62 2,825 5.6/2 yr. 2.8
1982 42,473 58 5,358 11.2/4 yr. 2.8

Similarly, Tampa, Florida, which desegregated completely in 
1971,28 indicates considerable stability:29

Tampa:
Annualized

Year
# White 
Pupils

% White 
Pupils

Loss 
(Gain) 

Of White 
Pupils

% Loss 
(Gain) 

Of White 
Pupils

% Loss 
(Gain) 

Of White 
Pupils

1968 74,629 73.9
1970 77,794 73.8 (3,165) (4.2)/2 yr . (2.1)
1972 80,136 74.5 (2,342) (3.0)/2 yr . (1.5)
1976 86,686 76 (6,550) (8.2)/4 yr . (2.1)
1978 83,100 74 3,586 4.2/2 yr. 2.1
1982 81,793 74 1,307 1.6/4 yr. 0.4

Other school districts subject to mandatory desegregation
orders appear to have had more white loss initially but their
experience is inconsistent with Dr. Rossell's prediction that 
white flight continues at high levels for many years after imple-

28see Mannings v. Board of Public Instruction of Hillsborough 
County. Civ. No. 3554-T (M.D. Fla. May 11, 1971); U.S. Commission 
on Civil Rights, Fulfilling the Letter and Spirit of the Law, 
Desegregation of the Nation's Public Schools 54-55 (1976).

29sources: 1968 OCR Data, at 245; 1970 OCR Data, at 253 ; 
1972 OCR Data, at 240; I 1976 OCR Data, at 308; I 1978 OCR Data, 
at 265; I 1982 OCR Data, at 193.

- 2a -



mentation. Two examples, for which data are given b e l o w , a r e  
Corpus Christi^^ and Nashville.

Corpus Christi;

Year
# White 
Pupils

% White 
Pupils

Loss 
(Gain) 

Of White 
Pupils

Annualized 
% Loss % Loss 
(Gain) (Gain)

Of White Of White 
Pupils Pupils

1968 22,097 47.9
1970 20,901 45.2 1,196 5.4/2 yr. 2.7
1972 18,798 41.3 2,103 10.1/2 yr. 5.1
1976 13,952 34 4,846 25.8/4 yr. 6.5
1978 11,994 31 1,958 14.0/2 yr. 7.0
1982 10,224 27 1,770 14.8/4 yr. 3.7

Nashville;

Year
# White 
Pupils

% White 
Pupils

Annualized
Loss % Loss % Loss
(Gain) (Gain) (Gain)

Of White Of White Of White 
Pupils Pupils Pupils

1968 71, 039 75.8
1970 71, 603 75.1 (564) (0.8)/2 yr. —
1972 61, 402 71.9 10,201 14.2/2 yr. 7.1
1976 53, 665 69 7,737 12.6/4 yr. 3.2
1978 50, 021 68 3,644 6.8/2 yr. 3.4
1982 42, 538 65 7,483 15.0/4 yr. 3.8

^^Sources: 1968; OCR Data . at 1385. 1479; 1970 OCR Data, at
1346, 1377; 1972 OCR Data. at 1301, 1329; II 1976 OCR Data, at
1673, 1710; II 1978 OCR Data, at 1320. 1363: II 1982 'OCR Data,
at 837, 872 •

2 ̂ See Cisneros V . Corpus Christi Indep. School Dist.. 467
F.2d 142 (5th Cir. 1972^ fen banc) . cert. denied, 413 U.S. 920
(1973) .

^^See Kelley v. Metropolitan County Bd. of Educ., 463 F.2d 
732 (6th Cir.), cert, denied. 409 U.S. 1001 (1972). Subsequent 
to this ruling, the district court approved an incomplete and 
inadequate plan for further desegregation in part because of his 
concern about "white flight," but this decision was reversed by 
the Court of Appeals. See Kelley v. Metropolitan County Bd. of 
Educ. . 492 F. Supp. 167, 189-92 (M.D. Tenn. 1980), rev'd , 687
F.2d 814, 823 n.l2 & accompanying text (6th Cir. 1982), cert, de­
nied. 459 U.S. 1183 (1983).

- 3a -



Seattle, Washington did not implement any mandatory desegrega­
tion until 1972-73, when it began a middle school program;^^ man­
datory reassignments at other levels did not take place until 
the 1978-79 school year.^'^ Its rate of white enrollment decline 
has been significantly higher than Dr. Rossell's "normal decline" 
figure, both before and after desegregation:^^

Seattle;

Year
# White 
Puoils

% White 
Puoils

Loss 
(Gain) 

Of White 
Puoils

Annualized 
% Loss % Loss 
(Gain) (Gain)

Of White Of White 
Puoils Puoils

1968 77,293 82.2
1970 66,905 79.7 10,388 13.4/2 yr. 6.7 %
1972 58,024 77.1 8,881 13.3/2 yr. 6.7
1976 41,767 68.0 16,257 28.0/4 yr. 7.0
1978 34,091 62 7,676 18.4/2 yr. 9.2
1982 21,994 52 12,097 35.5/4 yr. 8.9

Finally, we present statistics for Newark, New Jersey, a 
school system which to our knowledge has never been the subject 
of a desegregation order from a court or administrative agency. 
Like Seattle, the available data^^ show declines in the proportion

^^See Seattle School Dist. No. 1 v. Washington. 473 F. Supp. 
996, 1005-06 (W.D. Wash. 1979), aff»d. 633 F.2d 1338 (9th Cir. 
1980), aff'd. 458 U.S. 457 (1982).

34See 458 U.S. at 461; 473 F. Supp. at 1007.
25sources: 1968 OCR Data, at 1563; 1970 OCR Data, at 1524; 

1972 OCR Data, at 1457; II 1976 OCR Data, at 1913; II 1978 OCR 
Data, at 1542; II 1982 OCR Data, at 1001.

^^Sources; 1968 OCR Data, at 869; 1970 OCR Data, at 887; 
1972 OCR Data, at 854; II 197 6 OCR Data, at 1175; II 1978 OCR 
Data, at 886; II 1982 OCR Data, at 577.

- 4a -



of white enrollment which exceed the "normal” declines about which 
Dr. Rossell has written and testified:

Newark:

Year
# White 
Puoils

% White 
Pupils

Loss 
(Gain) 

Of White 
Pupils

Annualized 
% Loss % Loss 
(Gain) (Gain)

Of White Of White 
Pupils Pupils

1968 13,716 18.1
1970 11,188 14.3 2,528 18.4/2 yr. 9.2
1972 9,638 12.3 1,550 13.9/2 yr. 7.0
1976 7,109 10 2,529 26.2/4 yr. 6.5
1978 6,096 9 1,013 14.2/2 yr. 7.1
1982 4,993 9 1,103 18.1/4 yr. 4.5

- oa -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 85-4804

UNITED STATES OF AMERICA, Plaintiff-Appellee,
and

ZANDRA PITTMAN, Etc., ET AL., Plaintiffs-Intervenors-Appellants,
versus

THE STATE OF MISSISSIPPI, ET AL., Defendants-Appellees, 
and

HATTIESBURG MUNICIPAL SEPARATE
SCHOOL DISTRICT, Defendant-Intervenor-Appellee.

Appeal from the United States District Court for the 
Southern District of Mississippi

CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of March, 198 6, I served 

two copies of the Reply Brief for Appellants in the above-cap­
tioned matter upon counsel for the appellees by depositing the 
same in the United States mail, first-class postage prepaid, ad­
dressed as follows:
Moran M. Pope, Jr., Esq.
100 Professional Building 
210 West Front Street 
Hattiesburg, Mississippi 39401

Hon. Sara E. DeLoach 
Assistant Attorney General 
5th fl.. Justice Building 
450 High Street 
Jackson, Mississippi 39205

Mark L. Gross, Esq.
Appellate Section, Civil Rights Division 
U.S. Department of Justice 
Room 5718 Main Justice Building 
10th and Pennsylvania Avenue, N.W. 
Washington, D.C. 20530

Norman J. Chachkin