Singleton v Jackson Municipal School District Petition for Writ of Certiorari

    IN  THE

Supreme (Emtrt of %  llnltib
October Term, 1969 

N o ._________

DEREK JEROME SINGLETON, et al.,

V.

JACKSON M UNICIPAL SEPARATE SCHOOL DISTRICT, et al.

Petitioners,

CLARENCE AN TH ON Y, et al.,

V.

MARSHALL COUNTY BOARD OF EDUCATION.

Petitioners,

LIN D A STOUT, by her Father and Next Friend, BLEVIN  STOUT, et al.,

V.

JEFFERSON COUNTY BOARD OF EDUCATION, et al.

Petitioners,

DORIS ELA IN E BROWN, et al.,

V.
Petitioners,

TH E BOABD OF EDUCATION OF THE CITY OF BESSEMER, et al.

BIRDIE M AE D AVIS, et al.,

V.
Petitioners,

BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al. 

N EE LY BEN NETT, et al., and ALLENE PATRICIA A N N  BENNETT, a minor,
b y  R. B. BENNETT, her Father and Next Friend, 

V.
Petitioners,

R. E. EVANS, et al. and BURKE COUNTY BOARD OF EDUCATION, et al.

SHIRLEY B IVIN S, et al.,

V.
Petitioners,

BIBB COUNTY BOARD OF EDUCATION AND ORPHANAGE FOR 
BIBB COUNTY, et al.

OSCAR C. THOMIE, Jr., et al.,

V.

; HOUSTON COUNTY BOARD OF EDUCATION.

Petitioners,

JEAN  CAROLYN YOUNGBLOOD, et al.,

V.
Petitioners,

THE BOARD OF PUBLIC INSTRUCTION OF B A Y COUNTY, FT.A.

LAVON WRIGHT, et al.,

V.
Petitioners,

THE BOARD OF PUBLIC INSTRUCTION OF ALACHUA COUNTY, FLORIDA, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

(Please see reverse side for names of Attorneys)



JACK GREENBERG 
JAMES M. NABRIT, III  
NORMAN C. AM AKER  
M ELVYN  ZARR 
MICHAEL DAVIDSON  
W IL LIA M  ROBINSON  
JONATHAN SHAPIRO  
NORMAN J. CHACHKIN  
DREW D AYS

10 Columbus Circle 
New York, N. Y . 10019

OSCAR W . ADAMS, Jr.
U. W . CLEMON

1630 Fourth Avenue, N. 
Birmingham, Ala. 35203

D AVIS H. HOOD, Jr.
2001 Carolina Avenue 
Bessemer, Ala. 35020

VERNON Z. CRAWFORD 
FR AN K IE FIELDS  

570 Davis Avenue 
Mobile, Ala. 36603

REUBEN V. ANDERSON  
FRED L. BAN KS, Jr. 
M ELVYN  LEVENTH AL

5 3 8 ^  North Farish Street 
Jackson, Miss. 39202

LOUIS-R. LUCAS
Ratner, Sugarmon, Lucas & Willis 
525 Commerce Title Building 
Memphis, Tenn. 38103

JOHN L. M A X E Y , II
STAN LEY L. TAYLOR, Jr.

North Mississippi Rural 
Legal Services Program 
Holly Springs, Miss. 38635

JOHN H. RUFFIN, Jr.
930 Gwinnett Street 
Augusta, Georgia 30903

THOMAS M. JACKSON  
655 New Street 
Macon, Georgia 31201

THEODORE R. BOWERS
1018 North Cove Boulevard 
Panama City, Fla. 32401

EARL M. JOHNSON
REESE MARSHALL

625 West Union Street 
Jacksonville, Fla. 32202

Attorneys for Petitioners



I N D E X

PAGE

Opinions B elow .................................................................  2

Jurisdiction..................... ..............................— ..............  2

Question Presented ......................    2

Constitutional Provision Involved ................................  3

Statement ..................    3

Reasons for Granting the W rit:

The Court Below Erred in Deciding an Im­
portant Constitutional Issue in a Way in Con­
flict with This Court’s Decision in Alexander v. 
Holmes County Board of Education and in Con­
flict with Decisions of Other Courts of Appeals 7

Conclusion .............................................— ...................... 15

Supplemental Statements of the Cases:

Singleton v. Jackson Municipal Separate School
District ......................... -..........................................  lb

.

Anthony v. Marshall County Board of Educa­
tion .............................................................................  4b

Stout v. Jefferson County Board of Education 
and Brown v. The Board of Education of the 
City of Bessemer..................— ..............................  7b

Davis v. Board of School Commissioners of 
Mobile County............................................................ 12b

Bennett v. Evans and Bennett v. Burke County 
Board of Education..................................................  16b



11

Bivins v. Bibb County Board of Education and 
Orphanage for Bibb County and Thomie v. 
Houston County Board of Education................. 21b

Youngblood v. The Board of Public Instruction 
of Bay County, Florida — ...................................  26b

Wright v. The Board of Public Instruction of 
Alachua County, Florida ......................................  28b

Table of Cases:

Alexander v. Holmes County Board of Education, 24 
L.Ed.2d 41 (Opinion of Justice Black in Chambers)
(1969) ......................................... - ..... - ..........................10,11

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969) ..........2-3,4,5,7,8,9,10,11,12,13,14

Bivins v. Board of Public Education & Orph. for Bibb
Co., Ga., 342 F.2d 229 (5th Cir. 1965) ....................... 14

Brown v. Board of Education, 347 U.S. 483 (1954) .... 11
Brown v. Board of Education, 349 U.S. 294 (1955) .... 9,11

Carter v. West Feliciana Parish School Board No. 944,
Oct. Term, 1969 ...........................................................  4, 7

Charles v. Ascension Parish School Board, 5th Cir.
No. 28573 (Dec. 11, 1969) ..........................................  7

Christian v. Board of Education of Strong School 
District No. 83 of Union County, 8th Cir. No. 20038 
(Dec. 8, 1969) .................................................................  13

Davis v. Board of School Commissioners of Mobile
County, 414 F.2d 609 (5th Cir. 1969) ....................... 11

Dowell v. Board of Education of the Oklahoma City
Public Schools,------ U .S .------- (December 15, 1969)
(No. 603, Oct. Term, 1969) .......................................... 3, 8, 9

PAGE



Ellis v. Board of Public Instruction of Orange County,
Fla., 5th Cir., No. 28262, Dec. 12, 1969 ....................... 8

Harvest v. Board of Public Instruction of Manatee 
County, Florida, 5th Cir. No. 28380, Dec. 12, 1969 .... 8

Lemon v. Bossier Parish School Board, 5th Cir. No. 
28745, Dec. 12, 1969 .......................................................  8

Nesbit v. Statesville City Board of Education, ------
F .2d ------  (4th Cir. No. 13299) ..................................  12

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (5th Cir. 1965); 355 F.2d 865
(5th Cir. 1966) ................................ ............................  14

Steele v. Board of Public Instruction of Leon County,
5th Cir. No. 28143, Dec. 12, 1969 ..............................  8

Sweatt v. Painter, 339 U.S. 637 (1950)..........................  10

Watson v. Memphis, 373 U.S. 526 (1963) ....................... 10
Williams v. Iberville Parish School Board, 5th Cir.

No. 28571, Dec. 12, 1969 .............._............................... 8
Williams v. Kimbrough, 5th Cir. No. 28766, Dec. 10,

1969 .........................................* .....................................  7

Statutes:

28 U.S.C. §1254(1) .......................................................... 2

28 U.S.C. § 1343 ....... ........................................................ 3

42 U.S.C. §§ 1981, 1983 ...................................... ...........  3

I ll

PAGE



IN  THE

Supreme (Eintrt of tlje United Stall's
October Term, 1969 

No.....................

DEREK JEROME SINGLETON, et al.,

V.

JACKSON M UNICIPAL SEPARATE SCHOOL DISTRICT, et al.

Petitioners,

CLARENCE ANTH ONY, et al.,

V.
MARSHALL COUNTY BOARD OF EDUCATION.

Petitioners,

LIN D A STOUT, by her Father and Next Friend, B LEVIN  STOUT, et al.,

V.
JEFFERSON COUNTY BOARD OF EDUCATION, et al.

Petitioners,

DORIS ELAIN E BROWN, et al.,

V.
Petitioners,

THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, et al.

BIRDIE MAE D AVIS, et al.,

V.
Petitioners,

BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.

N EELY BENNETT, et al., and ALLENE PATRICIA A N N  BEN NETT, a minor, 
by R. B. BENNETT, her Father and Next Friend,

V.
Petitioners,

B. E. EVANS, et al. and BURKE COUNTY BOARD OF EDUCATION, et al.

SHIRLEY B IVIN S, et al.,

V.
Petitioners,

BIBB COUNTY BOARD OF EDUCATION AND ORPHANAGE FOR 
BIBB COUNTY, et al.

OSCAR C. THOMIE, Jb ., et al.,

V.

HOUSTON COUNTY BOARD OF EDUCATION.

Petitioners,

JEAN CAROLYN YOUNGBLOOD, et al.,

V.
Petitioners,

THE BOARD OF PUBLIC INSTRUCTION OF B A Y COUNTY, FLA.

LAVON WRIGHT, et al.,

V.
Petitioners,

THE BOARD OF PUBLIC INSTRUCTION OF ALACHUA COUNTY, FLORIDA, et al.



2

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgments of the United States Court of Appeals for 
the Fifth Circuit entered in the above-entitled cases on 
December 1,1969.

Opinions Below

The per curiam opinion of the United States Court of 
Appeals for the Fifth Circuit is unreported and is set forth 
in Appendix 12, pp. llTa-MOa.1 Opinions of the various 
United States District Courts involved are unreported 
and are set forth in Appendices 1 to 11, pp. la-116a.

Jurisdiction

The judgments of the United States Court of Appeals 
for the Fifth Circuit were entered December 1, 1969 (Ap­
pendix 13, pp. 141a-146a).

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1254(1).

Question Presented

Is the Court of Appeals’ ruling that implementation of 
school desegregation plans may be postponed until the fall 
of 1970 in a number of districts which still maintain dual 
segregated systems, in conflict with this Court’s recent de­
cisions in Alexander v. Holmes County Board of Education,

1 Because the material is voluminous, the opinions and judg­
ments below are submitted in a separately bound appendix volume.



3

396 U.S. 19 (1969), and Dowell v. Board of Education of the
Oklahoma City Public Schools,------U.S. -------  (December
15, 1969), that unconstitutional dual school systems must 
be desegregated “ at once” ?

Constitutional Provision Involved

This case involves the Equal Protection Clause of Section 
1 of the Fourteenth Amendment to the Constitution of the 
United States.

Statement

Petitioners are Negro pupils and parents who brought 
these civil actions in federal district courts2 in Mississippi, 
Alabama, Georgia and Florida seeking desegregation of 
their local public school systems as required by the Equal 
Protection Clause of the Fourteenth Amendment. The 
school systems involved in the ten cases serve the following 
communities: (1) Jackson, Mississippi, (2) Marshall
County, Mississippi and Holly Springs, Mississippi (in the 
same case), (3) Jefferson County, Alabama, (4) Bessemer, 
Alabama, (5) Mobile County, Alabama, (6) Burke County, 
Georgia, (7) Bibb County, Georgia, (8) Houston County, 
Georgia, (9) Bay County, Florida and (10) Alachua County, 
Florida. The United States has intervened in the district 
courts as a plaintiff in the cases involving Jefferson County, 
Bessemer, Mobile County, Bay County, and Jackson and 
participated as amicus curiae in the other cases at the 
request of the court of appeals.

2 Jurisdiction in the district courts was predicated upon 28 
U.S.C. § 1343 and 42 U.S.C. §§ 1981, 1983 and the Due Process 
and Equal Protection Clauses of the Fourteenth Amendment to the 
Constitution of the United States.



4

The ten suits were filed at different times during the past 
six years and the litigation has been varied.3 However, they 
were all decided in a single opinion by the court below. In 
order that the Court may have access to a reasonably de­
tailed description of the varied facts and proceedings in the 
ten cases, we attach at the end of this volume a supple­
mentary statement of the cases for each suit. (See pp. lb 
to 29b, infra.) This initial presentation is limited to the com­
mon proceeding and decision, on appeal, which involved the 
common question presented here. Each of the cases was 
pending on appeal by the private plaintiffs (petitioners 
here) in the Court of Appeals for the Fifth Circuit when 
this Court rendered its decision on October 29, 1969, in 
Alexander v. Holmes County Board of Education, 396 U.S. 
19 (1969). On November 17-18, 1969, the Fifth Circuit sat 
en banc to hear arguments in these and five other school 
desegregation cases. Three Louisiana cases heard at the 
same time are pending here on petition for certiorari sub 
nom. Carter v. West Feliciana Parish School Board, No. 
944, Oct. Term, 1969.

Although the facts and issues before the Fifth Circuit in 
these cases varied considerably, that court concluded in 
each of the cases that the district courts should require 
further steps consistent with Alexander to complete the 
disestablishment of the dual segregated school systems. 
The court ordered the preparation of plans by the 
Department of Health, Education, and Welfare in all 
of the cases. However, such HEW plans had already previ­
ously been prepared and submitted in the cases involving 
Burke County, Houston County, Mobile County, Bessemer

3 The Jackson, Mississippi, Mobile, Alabama and Bay County, 
Florida cases were filed in 1963; the Bibb County and Alachua 
eases in 1964; the Jefferson County, Bessemer and Houston County 
eases in 1965; the Marshall County case in 1968; and the Burke 
County case in February 1969.



o

and Jefferson County. Those eases had been appealed be­
cause the trial courts had in the summer of 1969 refused 
petitioners’ requests for complete desegregation in the 
1969-70 year and had either rejected the HEW plan (as 
in Houston County) or approved plans which contemplated 
delays. In the Alachua County, Bay County, Bibb County 
and Marshall County cases the courts had permitted delays 
by continuing modified free choice plans in effect for vary­
ing periods of time (in some cases indefinitely). In the 
Jackson case (from the Southern District of Mississippi 
where the Alexander group of cases originated), the district 
court had never acted on motions seeking modification of 
the free choice plan; the appeal involved a question of the 
effect of school construction on desegregation.

On December 1, 1969, the Fifth Circuit issued an opinion 
deciding that in all of the cases desegregation should be 
completed in two steps, with certain steps primarily involv­
ing faculty desegregation to be accomplished by February 
1, 1970, but with the requirement of complete student de­
segregation postponed until the fall 1970 term of school. 
The court said that although there were plans for desegre­
gation in some of the cases, none of the districts had a plan 
“ submitted in the light of the precedent of Alexander v. 
Holmes County” which the court below correctly observed 
requires that the “ school districts here may no longer oper­
ate dual systems and must begin immediately to operate as 
unitary systems.” However, the court below translated the 
immediacy requirement of Alexander to permit delay until 
next fall in the following paragraph:

Despite the absence of plans, it will be possible to 
merge faculties and staff, transportation, services, ath­
letics and other extracurricular activities during the 
present school term. It will be difficult to arrange the 
merger of student bodies into unitary systems prior to



6

the fall 1970 term in the absence of merger plans. The 
court has concluded that two-step plans are to be im­
plemented. One step must be accomplished not later 
than February 1, 1970 and it will include all steps neces­
sary to conversion to a unitary system save the merger 
of student bodies into unitary systems. The student 
body merger will constitute the second step and must 
be accomplished not later than the beginning of the fall 
term 1970. The district courts, in the respective cases 
here, are directed to so order and to give first priority 
to effectuating this requirement. (Slip Opinion p. 10; 
emphasis added.)

The court ordered that the U.S. Office of Education 
H.E.W. be requested to file plans in all the cases by January 
6, 1970, and that the mergers of faculties and certain other 
activities be accomplished not later than February 1, 1970, 
with the pupil attendance plans to take effect in the fall 
1970 school term.

Petitioners in each of the cases applied to Mr. Justice 
Black, as Circuit Justice for the Fifth Circuit, for an in­
junction pending certiorari to require immediate desegrega­
tion of the school systems. On December 13 and 15, 1969, 
Justice Black entered orders granting interim relief which 
provided in substance that:

1. The school boards “ shall take such preliminary steps 
as may be necessary to prepare for complete student de­
segregation by February 1, 1970” ; and

2. the judgment below was stayed insofar as it defers 
desegregation until the 1970-71 school year; and

3. the school boards are “directed to take no steps which 
are inconsistent with or will tend to prejudice or delay full



7

implementation of complete desegregation on or before 
February 1, 1970” ; and

4. directed the filing of certiorari petitions by December 
19, 1969, and any responses to such petitions by January 2, 
1970.

The Court entered substantially the same order on De­
cember 13, 1969, in the three companion cases from Louisi­
ana, sub nom. Carter v. West Feliciana Parish School 
Board,------ U .S .-------  (December 13, 1969).

REASONS FOR GRANTING THE WRIT

The Court Below Erred in Deciding an Important 
Constitutional Issue in a Way in Conflict With This 
Court’s Decision in Alexander v. Holmes County Board 
of Education and in Conflict With Decisions of Other 
Courts of Appeals.

The eleven school systems involved have in common the 
fact that in each case the court of appeals concluded that 
although it was necessary to order further steps to com­
plete the disestablishment of unconstitutional racially seg­
regated school systems, nevertheless, complete desegrega­
tion might be postponed for nine months until the fall 1970 
school term. The court of appeals decision decreeing two- 
step desegregation plans with faculty reorganizations in 
February 1970 and pupil reorganizations in September 1970 
was intended to state a rule for the circuit. The same time 
schedule has already been applied by the Fifth Circuit in 
numerous other cases decided since the decision in these 
cases.4

4 Subsequent cases decided by the Fifth Circuit applying the 
same delay are as follows: Williams v. Kimbrough, 5th Cir. No. 
28766, December 10, 1969; Charles v. Ascension Parish School



8

On two occasions this term this Court has unanimously 
stated the constitutional rule governing the timing of public 
school desegregation. On October 29, 1969, the Court ruled 
that “ the obligation of every school district is to terminate 
dual school systems at once and to operate now and here­
after only unitary schools.” Alexander v. Holmes County 
Board of Education, 396 U.S. 19 (1961). The Court held 
that the court of appeals “ should have denied all motions 
for additional time because continued operation of segre­
gated schools under a standard of allowing ‘all deliberate 
speed’ for desegregation is no longer constitutionally per­
missible” (id.). The cases were remanded with directions 
that orders be issued directing that the school districts 
“begin immediately to operate as unitary school systems 
. . . ” (id.). Then, on December 15, 1969, this Court adhered 
to the rule of Alexander, supra, and wrote that “ The burden 
on a school board is to desegregate an unconstitutional dual 
system at once.” Dowell v. Board of Education of the Okla­
homa City Public Schools, ------  U.S. ------  (No. 603, Oct.
Term, 1969). In Dowell, the court of appeals had vacated 
a desegregation order and thus postponed implementation 
until 1970 or later to afford an opportunity for litigation 
about a full and comprehensive desegregation proposal due 
to be submitted during the current school year. Mr. Justice 
Brennan, as acting Circuit Justice, granted relief pending 
certiorari to reinstate the trial court order. The full Court 
held that the desegregation plan should have been imple­
mented pending appeal.

Board, 5th Cir. No. 28573, December 11, 1969; Williams v. Iber­
ville Parish School Board, 5th Cir. No. 28571, December 12, 1969; 
Harvest v. Board of Public Instruction of Manatee County, Florida, 
5th Cir. No. 28380, December 12, 1969; Steele v. Board of Public 
Instruction of Leon County, 5th Cir. No. 28143, December 12, 1969; 
Lemon v. Bossier Parish School Board, 5th Cir. No. 28745, Decem­
ber 12,1969; Ellis v. Board of Public Instruction of Orange County, 
Fla., 5th Cir. No. 28262, December 12, 1969.



9

With deference to the court below, we do not believe 
that the delay until the fall of 1970 can be squared with the 
plain holding of Alexander and Dowell, supra. We believe 
that delay for nine months does not conform to the Alex­
ander rule that dual systems be terminated “ at once . . . 
now” and “ immediately.” Although we find no ambiguity 
in the Alexander requirement of immediacy, the court of 
appeals has construed it to require prompt action—that is, 
desegregation in less than a year but not desegregation “at 
once.”  It seems evident that after fifteen years the “ all 
deliberate speed” doctrine has become so much a part of 
the law of school desegregation in the lower courts that it 
lingers on in the opinion below even though it is said to 
have been sent “ to its final resting place.”

In commenting on the action of a panel of the court de­
laying desegregation for periods from two to ten months 
in the Mississippi cases, the court of appeals stated approv­
ingly that the court ordered desegregation at “the earliest 
feasible date in the view of the court” (opinion below, slip 
opinion p. 9). This search for the “ earliest feasible date” 
for desegregation was apparently the standard applied in 
the decision setting the fall 1970 deadine. But this search 
does not seem different from the inquiry authorized in 1955 
in Brown II to determine whether “additional time is nec­
essary to carry out the ruling in an effective manner” and 
such “ time is necessary in the public interest and is con­
sistent with good faith compliance at the earliest practicable 
date.” Brown v. Board of Education, 349 U.S. 294, 300 
(1955). The similarity is striking between the Brown II 
standard of “ the earliest practicable date” and the language 
of the court below invoking desegregation at “the earliest 
feasible date.”

This Court’s decision in Alexander is too recent and was 
too emphatic for the court to indulge any reargument of



10

its holding that the deliberate speed doctrine has no more 
place in the law of the land. Constitutional rights, denied 
to the thousands of school children in these districts are 
to be vindicated now. These rights are “personal and 
present.” Sweatt v. Painter, 339 U.S. 637, 642 (1950). “ The 
basic guarantees of our Constitution are warrants for the 
here and now.” Watson v. Memphis, 373 U.S. 526, 533 
(1963).

Moreover, Alexander requires a reversal here because 
the judgments below permit the very same practical re­
sults that the Alexander decree specifically found erroneous 
and forbade, i.e., the postponement of desegregation until 
the fall of 1970 because alleged administrative and educa­
tional obstacles to desegregation were thought to justify 
delay. While the exact delay granted by the court of ap­
peals in the Mississippi cases last August was somewhat 
indefinite, it was perceived by both sides as likely author­
izing at least a year’s delay.5 6 The practical contradiction 
between the judgment below and the Alexander holding 
is all the more emphasized by the fact that in several of 
these cases as in the Alexander group the Fifth Circuit 
once ordered complete desegregation by September 1969 
but delays were thereafter nevertheless permitted by the 
district courts. As we have detailed in the supplemental 
statements of the cases, infra, in both the Mobile and Bes­
semer cases specific September 1969 deadlines were set by 
the Fifth Circuit earlier in 1969 but were not enforced by 
the district courts on remand.6 (See infra, pp. 13b to 15b,

5 In denying temporary injunctive relief, Mr. Justice Black as 
Circuit Justice, observed that a year’s delay was at stake, saying: 
“ Therefore, deplorable as it is to me, I must uphold the court’s 
order which both sides indicate could have the effect of delaying 
total desegregation of these schools for as long as a year.” Alexander 
v. Holmes County Board of Education, 24 L.Ed.2d 41, 44 (Opinion 
of Justice Black in Chambers, September 5, 1969).

6 District courts approved delays also in the Burke County, 
Marshall County, Alachua County and Jefferson County cases.



11

and 7b to 9b; see also, Davis v. Board of School Commis­
sioners of Mobile County, 414 F.2d 609, 611 (5th Cir. 1969), 
and with respect Bessemer see Appendix 5, p. 67a.) The 
difference was that the delay in the Mississippi cases was 
approved by the Fifth Circuit in August, and this Court 
was able to review the matter in October by expediting the 
argument, while in the cases now before the Court the ap­
peals were taken in August 1969 but were not decided by 
the Fifth Circuit until December.

As mentioned previously, we do not believe these cases 
are an occasion for rearguing the holding of Alexander. 
That decision was reached after deliberation and full argu­
ments, and also after fifteen years experience in seeking 
implementation of Brown v. Board of Education, 347 U.S. 
483 (1954). The day after Brown I was decided, it was clear 
that these districts must be desegregated. Many districts 
where there was a will to obey Brown did voluntarily 
desegregate in September 1954 even before this Court’s 
decree on implementation in Brown II. As Mr. Justice 
Black has written, “ ‘All deliberate speed’ has turned out 
to be only a soft euphemism for delay.” (Alexander v. 
Holmes County Board of Education, 24 L.Ed.2d 41, 43, 
Opinion of Justice Black in Chambers, September 5, 1969.)

The court of appeals opinion suggests that the delay 
until the fall of 1970 is justified by the “absence of merger 
plans.” But, of course, as the opinion below also acknowl­
edges, in some of the districts unitary plans have been 
prepared either by the Office of Education or by the school 
boards. And in those cases where there are no H.E.W. 
plans presently available, such plans will be available, un­
der the court of appeals order, no later than January 6, 
1970. We think it inconsistent with Alexander to delay 
implementation of the plans which will be filed January 6 
until next fall.



12

The Solicitor General has filed a memorandum in this 
Court on the Motions for Injunctions which suggest that 
the delay until the fall of 1970 was an appropriate formula­
tion of a circuit-wide rule designed to cover cases in dif­
fering situations, such as those not yet in court, cases not 
yet decided on the merits, and cases without any desegre­
gation plans drawn in light of Alexander. We submit that 
the Alexander rule that such school officials have a duty to 
act at once is the appropriate rule in these varying circum­
stances. Continuing segregation in such school systems 
should not be given even colorable legality fifteen years 
after Brown. The Solicitor General’s memorandum also 
suggests that the September 1970 timetable will enable the 
court of appeals to once again review any decisions in 
these cases concerning the adequacy of the plans before 
they are implemented. The teaching of Alexander, and 
even more pointedly, the teaching of Dowell, supra, is that 
the status quo pendente lite should be implementation of 
the best desegregation plan currently available. We urge 
that the Fifth Circuit should have implemented the best 
desegregation plans available in these cases when it ren­
dered its December 1, 1969, decision. There were Office of 
Education plans in the records in the cases involving Burke 
County, Mobile and Houston County. In Marshall County 
and Holly Springs there were school board plans for pair­
ing and zoning available for implementation. Having 
ordered new plans for all cases prepared by the Office 
of Education by next January 6, there was no justifica­
tion for deferring their implementation until the fall of 
1970.

In the Fourth Circuit the Alexander ruling has been 
applied more literally. On December 2, 1969, in five cases 
decided sub nom. Nesbit v. Statesville City Board of Edu-



13

cation, ------  F.2d ------  (4th Cir. No. 13,299), the Fourth
Circuit ordered that the districts submit plans to the trial 
courts not later than December 8, that hearings be con­
ducted by district judges by December 15, and orders en­
tered by December 19, with the plans to be made effective 
in the North Carolina districts at the end of Christmas 
vacation and in Virginia districts at the end of the semester 
break in January 1970. The Fourth Circuit understood 
Alexander to mean that “ the clear mandate of the Court 
is immediacy.” On December 8, 1969, the Eighth Circuit 
followed Alexander by ordering a district to file a plan by 
January 7, 1970, for complete desegregation at the begin­
ning of the second semester of the present school year. 
Christian v. Board of Education of Strong School District 
No. 83 of Urnon County (8th Cir. No. 20,038, Dec. 8, 1969).

The Department of Health, Education, and Welfare, 
which plays a crucial role in the desegregation process, 
also needs guidance in whether the law really requires 
immediate desegregation or not. The Department deals 
with hundreds of districts. I f it enforces Alexander faith­
fully as written, H.E.W. can effect great changes in many 
districts not involved in litigation as well as many that 
are under court decrees. The decision below discourages 
H.E.W. from requiring immediate steps by suggesting that 
all the law requires in student desegregation is plans 
effective in the fall of 1970.

Even though the Court has spoken so recently on this 
subject, the case has continuing public importance. It is 
true here, as it was in the Alexander case, that the case 
inescapably involves whether the courts of the United 
States will make good on the constitutional promise of 
equal protection of the laws for Negro school children in 
racially segregated school systems. Many of these young-



14

ters will have read or been told that this Court ruled on 
October 29, 1969, that the law requires desegregation “ at 
once . . . now,”  “ immediately.” These cases furnish re­
peated instances of the law’s promises being broken.7 Un­
less these judgments are reversed, the promise of Alex­
ander will be another broken promise.

7 In March 1965, the district court set a September 1969 desegre­
gation deadline for the Jackson, Mississippi case; subsequent deci­
sions on appeal advanced the deadline to state the objective of 
“ total school desegregation by September 1967” for the Jackson 
schools. See Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (5th Cir. 1965); 355 F.2d 865, 869 (5th Cir. 
1966). A  1968 deadline for desegregation was set in the Bibb 
County case in a decision rendered on February 24, 1965. Bivins 
v. Board of Public Education & Orph. for Bibb Co., Ga., 342 F.2d 
229, 231 (5th Cir. 1965).



15

CONCLUSION

For the foregoing reasons, it is respectfully prayed that 
the petition for a writ of certiorari should be granted and 
the judgments below should be reversed. It is requested 
that the matter be advanced for consideration and deter­
mination expeditiously

Respectfully submitted,

JACK GREENBERG 
JAMES M. N ABRIT, III  
NORMAN C. AM AKER  
M ELVYN  ZARR 
MICHAEL DAVIDSON  
W IL LIA M  ROBINSON  
JONATH AN SHAPIRO  
NORMAN J. CHACHKIN  
DREW D AYS

10 Columbus Circle 
New York, N. Y . 10019

OSCAR W . ADAMS, Jr.
U. W . CLEMON

1630 Fourth Avenue, N. 
Birmingham, Ala. 35203

D AVIS H. HOOD, Jr.
2001 Carolina Avenue 
Bessemer, Ala. 35020

VERNON Z. CRAWFORD 
FR AN K IE FIELDS  

570 Davis Avenue 
Mobile, Ala. 36603

REUBEN V. ANDERSON  
FRED L. BAN KS, Jr. 
M E LVYN  LEVENTH AL

538% North Farish Street 
Jackson, Miss. 39202

LOUIS R. LUCAS
Ratner, Sugarmon, Lucas & Willis 
525 Commerce Title Building 
Memphis, Tenn. 38103

JOHN L. M A XE Y, II
STANLEY L. TAYLOR, Jr.

North Mississippi Rural 
Legal Services Program 
Holly Springs, Miss. 38635

JOHN H. RUFFIN, Jr.
930 Gwinnett Street 
Augusta, Georgia 30903

THOMAS M. JACKSON  
655 New Street 
Macon, Georgia 31201

THEODORE R. BOWERS
1018 North Cove Boulevard 
Panama City, Fla. 32401

EARL M. JOHNSON
REESE MARSHALL

625 West Union Street 
Jacksonville, Fla. 32202

Attorneys for Petitioners



SUPPLEMENTAL STATEMENTS OF THE CASES



SUPPLEMENTAL STATEMENTS OF THE CASES

Singleton v. Jackson Municipal Separate School District
(S.D. Miss.)

Petitioners have sought in this case to desegregate the 
public schools of Jackson, Mississippi since this suit was 
filed in March 1963. In 1968-69 there were about 20,000 white 
and about 18,000 Negro students in the system and only 
about 5% of the Negroes (around 900) were enrolled in 
traditionally white schools. Since 1967 the city has oper­
ated under a freedom of choice plan decreed more or less 
in accordance with the Fifth Circuit’s model Jefferson 
County decree.

This is one of a long series of appeals of this case to the 
Fifth Circuit. When the action was filed the trial judge dis­
missed for failure of the plaintiffs to exhaust administrative 
remedies; the Fifth Circuit reversed in 1964. Evers v. 
Jackson Municipal Separate School District, 328 F.2d 408 
(5th Cir. 1964). On remand the trial judge held a long hear­
ing at which intervenors and the board attempted to over­
turn the Brown decision by a factual showing of claimed 
innate dfferences of the races. The trial judge felt com­
pelled by precedents to deny relief and the Fifth Circuit 
affirmed, stating its impatience with the board. Jackson 
Municipal Separate School Dist. v. Evers, 357 F.2d 653 (5th 
Cir. 1966), cert. den. 384 U.S. 961 (1966). The trial Court 
ordered desegregation to begin in September 1964 in one 
grade only after tentatively approving the hoard’s grade-a- 
year plan. Finally in March 1965, the trial court approved 
a plan for desegregating a few grades each year until all 
grades were desegregated in September 1969 (see account 
of this 355 F.2d at 867). Plaintiffs appealed and sought an

lb



2b

injunction pending appeal. The United States intervened 
in the action. On June 22, 1965, the Fifth Circuit granted 
an injunction pending appeal requiring desegregation to 
be accelerated and setting a target date for desegregation 
to be completed in Jackson in 1967. Singleton v. Jackson 
Municipal Separate School District, 348 F.2d 729 (5th Cir. 
1965). The objective of “total school desegregation by Sep­
tember 1967” for the Jackson schools was reaffirmed by the 
Court of Appeals opinion on the merits. Singleton v. Jack- 
son Municipal Separate School District, 355 F.2d 865, 869 
(5th Cir. 1966). The case was remanded for further con­
sideration in light of the court’s opinion. On July 6, 1967 
the trial court entered an order generally in conformity 
with the model Jefferson County decree, but modified the 
Fifth Circuit’s uniform decree in a number of respects. 
Plaintiffs appealed protesting the changes of the uniform 
decree, and prevailed when the Fifth Circuit again reversed. 
Singleton v. Jackson Municipal Separate School Dist., 5th 
Cir. No. 25,780, Oct. 11, 1968 (per curiam order).

The present appeal results from a motion filed by peti­
tioners on March 18, 1968 to enjoin certain construction of 
new facilities planned by the district, specifically 22 added 
classrooms at four all-Negro schools on the claim that this 
plan violated a provision of the model Jefferson decree and 
was calculated to perpetuate segregation. After a hearing, 
the trial judge filed an opinion denying injunctive relief 
against the construction project. See opinion of May 10, 
1968, Appendix 1.

Plaintiffs then sought and obtained an injunction pending 
appeal from a panel of the Court of Appeals which entered 
its order on June 24, 1968. During the pendency of the ap­
peal in 1968 petitioners moved in the District Court for 
further relief challenging the district’s freedom-of-choice

Supplemental Statements of the Cases



3b

plan under the doctrine of Green v. County School Board 
of New Kent County, 391 U.S. 430 (1968), but were unable 
to obtain a ruling on their motion. Because of a court re­
porter’s illness the appeal was delayed and the case was 
finally argued on November 17, 1968 along with more than 
a dozen other cases considered by the court en banc.

On December 1, 1969 the Fifth Circuit issued its per 
curiam decision covering this and the other cases. The Court 
stated that even though the appeal involved only the con­
struction issue it was bound to consider the intervening 
decision of this Court in Alexander v. Holmes County Board 
of Education, supra, and accordingly remanded the case to 
the district court for the entry of an order consistent there­
with. With respect to the construction dispute the court 
stated that its temporary order enjoining the proposed 
additions to all-Negro schools was “continued in effect until 
such time as the district court has approved a plan for con­
version to a unitary system.” (slip opinion p. 16).

The United States filed a brief in the Court of Appeals 
arguing that the District Court had erred in refusing to 
enjoin the construction project, and urging that the in­
junction be continued in effect until the district court has 
ruled on plaintiffs’ motion challenging the freedom of choice 
system. (Brief of the United States, pp. 7-8).

Supplemental Statements of the Cases



4b

Anthony v. Marshall County Board of Education 
(N.D. Miss.)

This action was filed by petitioners in May 1968 to 
desegregate the two public school systems in Marshall 
County, Mississippi, e.g., the Marshall County system and 
the separate system in Holly Springs, the county seat. 
On July 6, 1968, the district court approved a freedom of 
choice plan (see the Order, Findings and Conclusions, 
Appendix 2, p. 8a).

At the time of the 1968 hearing in the district court 
each school board presented two plans—a pairing plan 
and a geographic zoning plan. Either plan would fully 
desegregate the school systems. But the boards’ purpose 
and argument in presenting the plans was to show that 
since these were majority black districts the desegregation 
plans would put white students in the minority in every 
school in the systems and that this would cause whites 
to flee the school systems. The district judge accepted 
this reasoning and approved freedom of choice plans not­
withstanding this Court’s decision in Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968).

The Holly Springs Municipal Separate School District 
has four schools, two predominantly white schools at one 
location serving grades 1-6 and 7-12 and two Negro 
schools serving the same grades at another campus about 
a mile away. The district court found that there is no 
substantial residential segregation in the district. Under 
a free choice plan the black schools remained all black, 
and a handful of Negroes attend the white school. In 
1967-68 there were 1,868 Negroes and 875 white pupils; 
60 Negroes or 3.2% attended the white schools.

The Marshall County school system which serves all 
of the county not covered by the Holly Springs Municipal

Supplemental Statements of the Cases



5b

district has 3 white schools and 4 Negro schools serving 
(in 1967-68) 3,606 Negro students and 1,193 white students. 
In 1967-68 only 22 Negroes or 0.6% attended white schools, 
and the black schools remained all-Negro. As described 
in the amicus curiae brief of the United States in the 
court below, the schools are arranged as follows:

In Potts Camp, about 15 miles southeast of Holly 
Springs, there is a traditionally white school serving- 
grades 1-12 and a Negro school for grades 1-8. The 
Negro high school students in this area are bussed to 
Holly Springs. In Slayden, which is about 15 miles 
north of Holly Springs, and in Byhalia, which is 
about 18 miles northwest of Holly Springs, there are 
two 12 grades schools in each community, one tradi­
tionally for each race. The other Negro school serves 
grades 1-8 and is located in Galena, about 12 miles 
southwest of Holly Springs. The white students and 
the Negro high school students who live in this area 
are bussed to Holly Springs. (Brief of the United 
States, in Court of Appeals, pp. 10-11.)

The Fifth Circuit reversed in April 1969, finding that 
the free choice plan had failed to desegregate the system. 
Anthony v. Marshall County Board of Education, 409 
F.2d 1287 (1969). The district court on remand approved 
a plan which was designed to replace freedom of choice 
over a three year period (on a basis of four grades a 
year) with a plan for assigning pupils according to 
achievement test scores (see Appendix 2). Under this 
plan, which would not reach all grades until the school 
year 1971-72, a specified quota of the pupils scoring high­
est on the tests would be assigned to the previously white 
school and those with lower scores would be assigned to 
the present all-Negro schools.

Supplemental Statements of the Cases



6b

On plaintiffs’ appeal the court of appeals again re­
versed on December 1, 1969. As to the testing plan the 
court said: “ We pretermit a discussion of the validity 
per se of a plan based on testing except to hold that test­
ing cannot be employed in any event until unitary school 
systems have been established.”

In the Fifth Circuit the United States filed a brief 
amicus curiae urging reversal and the immediate imple­
mentation of the pairing or zoning plans devised by the 
school boards. The brief of the United States said:

It is recommended that this Court remand the case 
to the district court with instructions to implement 
forthwith plans based on pairing or zoning or both. 
Such plans should stay in effect until the school 
boards propose an alternative and can establish con­
clusively that such alternatives will result in unitary 
school systems in which racial segregation is neither 
compelled nor encouraged. (Brief for the United 
States, p. 15.)

Supplemental Statements of the Cases



7b

Stout v. Jefferson County Board of Education, et al.
(N.D. Ala.) and

Brown v. The Board of Education of the City of Bessemer, 
et al. (N.D. Ala.)

These suits involve the speed of public school desegre­
gation in Jefferson County, Alabama and the City of 
Bessemer, Alabama where these two cases were com­
menced by the petitioners, Negro pupils and parents in 
1965. In both cases the United States intervened as a 
plaintiff in the same year. The litigation has been ex­
tensive, including repeated appeals, and the progress has 
been slow. The Court of Appeals opinion in these two 
cases issued on June 26, 1969 collects the citations to the 
prior reported opinions and describes the course of the 
litigation briefly (see Appendix 3). On April 17, 1967 both 
systems were ordered to begin operating under the model 
freedom of choice decree promulgated by the Fifth Cir­
cuit in United States v. Jefferson County Board of Edu­
cation, 372 F.2d 836, (5th Cir. 1966) affirmed on rehearing, 
380 F.2d 385, (5th Cir. 1967), cert, denied, 389 U.S. 840 
(1967). When the case came before the Fifth Circuit in 
June 1969 that Court described the facts:

. . . The model decree has resulted in 3.45 per cent 
of the Negro students in the Bessemer system attend­
ing school with white students for the year 1968-69. 
There are eleven schools in Bessemer; one all-white, 
four all-Negro, and six desegregated. The school pop­
ulation of the Bessemer system for the year 1968-69 
was 8,615; 6,360 Negroes and 3,255 whites.

In the Jefferson County system, 3.43 per cent of 
the Negro students attended previously all-white 
schools in the year 1968-69. The school population

Supplemental Statements of the Cases



8b

Supplemental Statements of the Cases

was 65,659; 47,830 whites and 17,829 Negroes. There 
were 105 schools; 48 remained all-white, 28 all-Negro 
and 29 were desegregated.

In no school in either system has a white student 
chosen to attend a Negro school. There has been some 
assignment both of white and Negro teachers in each 
system to teach in schools where their race is in the 
minority but not a marked degree. (Emphasis Added).

A separate appeal involving faculty desegregation in 
these systems was also decided on July 1, 1969, and the 
case remanded with instructions on that issue. Sub nom. 
United States v. Board of Education of the City of Bes­
semer, 5th Circuit No. 26,582, July 1, 1969 (consolidated 
with Jefferson County and Birmingham cases).

Faced with two systems where over 96% of Negro pupils 
still attended all-Negro schools despite numerous appeals 
and four years of litigation the Court of Appeals in June 
1969 remanded the cases to the district court with specific 
directions including among others, that:

(a) the cases be given the “highest priority” ;

(b) the district court request HEW to prepare plans 
to be “ effective for the beginning of the 1969-70 
school term” and to be “approved by the district 
court no later than August 5, 1969” ;

(c) Any appeals to be expedited according to a pre­
scribed schedule.

The proceedings following remand require separate treat­
ment.

Bessemer A fter Remand,

After the remand the Bessemer Board filed an interim 
plan for the 1969-70 school year and the Department of



9b

HEW advised the Court that it needed more time to pre­
pare a final plan. The district court entered an order and 
opinion on August 5, 1969 (Appendix 5, pp. 67a-72a) which 
approved the Bessemer interim plan and delayed final 
desegregation. The court justified this because HEW pol­
icies did not require total integration in 1969-70 in districts 
that were more than 50% Negro or in districts where there 
was construction of schools in progress which would af­
fect the desegregation plan. The court justified the delay 
saying: “ The Bessemer School System meets both of these 
tests.” (Appendix 5, p. 69a).

The petitioners filed objections to the temporary plan. 
Petitioners also filed two alternative plans for desegre­
gation prepared by one of petitioners’ attorneys, Mr. Hood 
a long-time resident of the city. However, as stated the 
court approved the board’s interim plan and allowed the 
board and HEW until November 15, 1969 to file a final 
desegregation plan. The interim plan ordered for 1969-70 
required that some Negroes would be transferred to the 
white schools to fill them to capacity.

Jefferson County Upon Remand

The Jefferson County Board and the Department of 
HEW both filed plans on August 1, 1969. The plans were 
identical in terms of school zone lines, grade alignments 
and the usage of schools. The HEW plan continued a num­
ber of features absent from the county board’s plan includ­
ing a racial majority to minority transfer plan, a detailed 
plan for faculty desegregation, and suggestions for ex­
plaining the plan in the community and enlisting support. 
Some features of the plan were contingent upon future 
school construction, and the school board did not project 
full implementation until 1971-72, while H.E.W. provided

Supplemental Statements of the Cases



10b

for completion in the 1970-71 school year. The private 
plaintiffs filed objections to the plans and the United 
States also filed objection, pointing out shortcomings of 
the Board’s plan. Most of the objections were rejected and 
the board’s plan was approved on August 5, 1967 (Ap­
pendix 4).

The Court predicted that under the board’s plans 74.29% 
of the Negroes would be in integrated schools in 1969-70, 
that 85.16% would be integrated in 1970-71, and that 
100% would be in integrated schools in 1971-72. The court 
found that the plan abolished all the vestiges of the dual 
school system and established a unitary system.

Plaintiffs appealed under the expedited schedule pre­
viously fixed.

Jefferson County and Bessemer on Appeal

The cases were heard on appeal en banc along with a 
dozen other districts. After mentioning its opinion of 
June 26, 1969 (see Appendix p. 133a), the Court stated:

The record does not reflect any substantial change 
in the two systems since this earlier opinion, and it 
is therefore unnecessary to restate the facts. The 
plans approved by the district court and now under 
review in this court do not comply with the standards 
required in Alexander v. Holmes County.

We reverse and remand for compliance with the 
requirements of Alexander v. Holmes County and the 
other provisions and conditions of this order, (slip 
opinion p. 17).

In both cases the United States filed briefs in the court 
of appeals. In Bessemer the United States argued that 
the case should be remanded for adoption of a new system

Supplemental Statements of the Cases



l ib

of desegregation in view of the Alexander decision and 
in view of the fact that both the school board and HEW 
filed new plans in the district court on November 15, 1969 
while the case was pending on appeal. In Jefferson the 
United States argued that it was necessary to devise a 
plan for a unitary system in the case “during the period 
prior to the completion of the construction projects upon 
which the present terminal plan depends.” The United 
States also said the zone lines previously recommended 
should be reevaluated in light of experience.

The brief of the United States in the Jefferson County 
case pointed out that during the pendency of the appeal, 
on October 3, 1969 the United States moved the district 
court for an order requiring the school board to show 
cause why they should not be adjudged in contempt for 
their failure to follow the desegregation plan approved 
for 1969-70. The district court had not ruled on the mo­
tion to show cause.

Supplemental Statements of tlw Cases



12b

Birdie Mae Davis v. Board of School Commissioners of 
Mobile County (S.D. Ala.)

On August 1, 1969, the District Court for the Southern 
District of Alabama approved in part a desegregation plan 
recommended for Mobile County by the Department of 
Health, Education, and Welfare. The H .EW . plan provided 
arrangements for virtually complete desegregation,* but 
deferred desegregation in the eastern portion of metropoli­
tan Mobile, where 86% of the Negroes in the county live, 
until the 1970-71 school year and leaves in effect in the in­
terim pupil assignment arrangements which have been pre­
viously ruled impermissible by the Fifth Circuit. Peti­
tioners, Negro pupils and parents who have sought the de­
segregation of the system in this case since 1963, objected 
to the delay and appealed when the plan was approved by 
the trial judge without a hearing.

This case involves when school desegregation will be com­
pleted in Mobile County, Alabama, a large district involving 
both rural and urban areas. In the six years since the case 
began it has been reviewed by the Fifth Circuit on at least 
seven occasions.** The reported decisions in this case dem­
onstrate the school board’s unremitting resistance to com­
pliance with Brown v. Board of Education, 347 U.S. 483 
(1954).

Supplemental Statements of the Cases

* The plaintiffs (petitioners here) do object that the H.E.W. 
plan fails to provide for desegregation of five large all-black 
schools, but the H.E.W. arrangements for most of the county 
provide for satisfactory desegregation in plaintiffs’ view.

** The Fifth Circuit opinions, prior to the one now sought to 
be reviewed, are reported sub nom. Davis v. Board of School Com­
missioners of Mobile County, 318 F.2d 63 (1963); 322 F.2d 356 
(1963), stay denied by Mr. Justice Black, 11 L.Ed.2d 26, 84 S.Ct. 
10 (1963), cert, denied, 375 U.S. 894 (1963), rehearing denied, 
376 U.S. 898 (1964); 333 F.2d 53 (1964), cert, denied, 379 U.S. 
844 (1964) ; 364 F.2d 896 (1966); 393 F.2d 690 (1968) ; 414 F.2d 
609 (1969).



13b

On June 3, 1969, the Fifth Circuit held, for the second 
time—the first time being in March 1968*—that the de­
segregation plan approved by the trial judge for Mobile was 
not adequate for several reasons, including that:

(1) attendance zones for the elementary and junior high 
schools in metropolitan Mobile were “ constitutionally un­
acceptable” ; and

(2) the continued use of a free choice plan for high school 
assignments in this area also violated the court’s 1968 man­
date (see 414 F.2d 609).

Yet the proceedings which followed, and which we now 
seek to have reviewed here resulted in these very same 
attendance zones and free choice system being continued in 
effect during the 1969-70 school year. This is true notwith­
standing the fact that an H.E.W. plan which would almost 
complete the job of desegregation was submitted to the 
district court on July 10, 1969.

The Fifth Circuit order of June 3, 1969, directed that the 
district court order the school board to request H.E.W. to 
collaborate in preparing a plan “ to fully and affirmatively 
desegregate all public schools in Mobile County, urban and 
rural . . . ” (414 F.2d at 611). The court of appeals said 
that the new plan must be “ effective for the beginning of 
the 1969-70 school term” (id.). The court set a timetable 
for submission and consideration of either an agreed plan 
or H.E.W.’s independent recommendations, stipulated that 
no plan should be approved without a hearing, and that the 
district court should order some plan no later than August 
1, 1969 (414 F.2d at 611).** On July 10, 1969, H.E.W. sub­

* See 393 F.2d 690 (1968).
**M r. Justice Black, in July 1969, denied the board’s applica­

tion for a stay of the Fifth Circuit order.

Supplemental Statements of the Cases



14b

mitted its plan, a large volume containing 116 pages fol­
lowed by a series of maps. The H.E.W. plan eliminated 
freedom of choice and, through zoning, grade restructuring, 
pairing and transportation of students would substantially 
integrate the system.

However, in the plan, H.E.W. proposed that the court 
defer implementation in the eastern part of metropolitan 
Mobile until 1970-71. Plaintiffs immediately filed objec­
tions to this feature (and also to the plan’s failure to inte­
grate five large all-black schools) noting that the deferral 
of the plan would limit its immediate application to only 
4,500 or 14% of Mobile’s black students. Over 26,000 or 
86% of Mobile’s Negro students live in the eastern metro­
politan area, and of this number only 3,000 attended white 
schools in 1968-69 under the present arrangement.

The school board also objected to the entire H.E.W. plan. 
The United States moved for an order accepting the plan 
without modification thereby assenting to the proposed de­
lay until 1970-71.

Despite the fact that the court of appeals had explicitly 
ordered a hearing on objections, the district court, without 
an evidentiary hearing,* entered an order on August 1, 
(Appendix 6). Petitioners have no objection to the order 
as it relates to the relatively small number of Negroes in 
rural Mobile and the western part of metropolitan Mobile. 
The difficulty concerns the eastern part where the bulk of 
the black community resides. The district court said it was 
“not satisfied” with the H.E.W. plan. Although there had

* The school board’s attorney filed an affidavit in this Court, 
when seeking a stay from Mr. Justice Black in July 1969, stating 
■under oath that Judge Thomas, the district judge, had a conference 
in chambers with the school board’s attorney, members of the 
school board and two representatives of the Department of Health, 
Education, and Welfare, on July 3, 1969. The plaintiffs’ attorneys 
had no notice of this meeting and were not present.

Supplemental Statements of the Cases



15b

been no hearing, the court found the H.E.W. plan “ contains 
some provisions which I think are both impractical and 
educationally unsound.” No examples, no elaboration was 
offered. As for timing, the court approved the delay until 
1970-71, leaving the existing arrangement intact in eastern 
Mobile, and ordered the school board to file another plan 
by December 1, 1969.

Plaintiffs promptly appealed. The school board did not 
file a formal cross-appeal but argued that certain parts of 
the order should be reversed. The United States urged ap­
proval of the delay.

On December 1, 1969, the Fifth Circuit affirmed the order 
of the district court, “with directions to desegregate the 
eastern part of the metropolitan area of the Mobile County 
School System and to otherwise create a unitary system in 
compliance with the requirements of Holmes County and in 
accordance with the other provisions and conditions of this 
order” (slip opinion pp. 18-19).

According to school board reports submitted in the trial 
court November 26,1969, there are now 73,504 pupils in the 
Mobile system; 42,620 white pupils and 30,884 Negro pupils. 
At the present time 21,557 Negro pupils (69.7%) attend 
either 15 schools that are all-Negro (15,125 students or 
48.9%) or 7 schools that are about 99% Negro (6,432 Ne­
groes and 17 whites).

In early December 1969, the school board and H.E.W. sub­
mitted separate desegregation plans to the district court 
in accordance with the direction in the August 1, 1969, 
order. Petitioners’ counsel have not yet been served with 
copies of these proposals. Our view is that implementation 
of the H.E.W. plan of July 10,1969, which will substantially 
desegregate the system, should not be delayed pending liti­
gation about objections to the new H.E.W. and school board 
proposals.

Supplemental Statements of the Cases



16b

Bennett v. Evans and Bennett v. Burke County Board 
of Education (S.D. Ga.)

The case involves when school desegregation will be 
completed in Burke County, Georgia, a district with eleven 
schools and (during 1968-69) 5,433 students of whom 1,586 
were white and 3,847 were black. The District Court for 
the Southern District of Georgia found on June 20, 1969, 
that the system “is organized, and always has been, as 
a dual one based upon race”  in violation of the constitu­
tional rights of the petitioners who are Negro students 
and their parents. The District Court ordered that a 
desegregation plan for Burke County be submitted July 
30, 1969, by the Department of Health, Education, and 
Welfare (HEW ). As ordered, HEW filed a plan which in 
a single document included both an interim plan and a 
complete desegregation plan. Over plaintiffs’ objections, 
the district court on August 22, ordered the implementa­
tion of only the interim plan and ordered that the school 
board and HEW submit a further plan for the 1970-71 
year without setting any deadline for such submission.

The Negro students promptly appealed to the Fifth 
Circuit and moved for injujnctive relief pending appeal 
or, alternatively, for summary reversal which was denied 
September 22, 1969. On October 2, 1969, the Court of 
Appeals expedited the case for hearing en banc with 
other pending cases.

This case was filed in the Southern District of 
Georgia in February, 1969, was consolidated with another 
case challenging the Georgia laws for selecting school 
boards, and was brought on for trial on June 17, 1969.

Thereafter, on June 20, 1969, the district judge en­
tered an order including findings of fact and conclusions 
of law (Appendix 7). The court concluded that the

Supplemental Statements of the Cases



17b

Burke County system was a dual system based on race; 
that under a freedom of choice system only 30 or 0.7% 
of the 3,847 black students attended school with whites; 
that the school faculties were completely segregated with 
no white teachers in black schools or vice versa; that the 
bus system was maintained on a “ segregated, duplicative 
and overlapping basis” ; that in 1966 HEW cut off fed­
eral financial assistance because of the failure to de­
segregate; that mainly because of overcrowding six of 
the seven all-Negro schools had lost accreditation; and 
that the “ existing freedom of choice approach offers 
no hope of achieving at any time in the near future the 
degree of integration necessary to satsfy the demands 
of the Fourteenth Amendment . . (See Appendix 7).

The court found that during 1968-69 the school enroll­
ments were as follows:

Supplemental Statements of the Cases

School Grades
Pupils
White

Pupils
Black

Cousins (Sardis) ............ .... 1-8 0 366
Girard (Girard) ................ .... 1-8 0 336
S.E. Dinkins (Midville) ........ 1-8 0 359
Palmer (Keysville) .......... .... 1-8 0 214
Gough (Gough) ................ .... 1-7 0 349
Blakeney Elementary ........... 1-7 0 1126
(Waynesboro)
Blakeney High .................. .... 8-12 0 915
(Waynesboro)
Waynesboro Elementary ... .... 1-8 755 27
Waynesboro H igh .............. .... 9-12 377 3
Sardis-Girard-Alexander ..... 1-12 357 0
(Sardis)
Midville Elementary ............. 1-7 49 0



18b

The court ordered that the board submit its data to 
the U.S. Office of Education, HEW and seek to develop 
a plan in collaboration with HEW. The court said that 
if a plan could be agreed on between the board and HEW 
by July 30, 1969, it would be approved unless plaintiffs 
showed that it did not meet constitutional standards, and 
that if no plan were agreed on HEW should submit a plan.

HEW prepared and recommended a desegregation plan 
which would have completely integrated the faculty and 
students of the district beginning with the 1969-70 school 
year. However, HEW also attached an interim plan for 
“ partial desegregation” which provided only for assign­
ing Negroes from overcrowded Negro schools to bring 
the 4 white schools up to their capacity while permitting 
the 7 all-Negro schools to remain all-Negro. As to faculty 
assignments, the interim plan provided for 7 white and 14 
Negro teachers to be assigned across racial lines, whereas 
the terminal plan provided for faculty assignments so that 
the racial ratio in each school would equal that in the entire 
system. The HEW document made clear that HEW recom­
mended the complete plan but that the interim steps were 
presented in the event that the court decided to defer 
complete desegregation beyond September 1969.*

* The plan stated at page 3a under the heading “ Possible In­
terim Steps” :

“ The plan that we have prepared and that we recommend 
to the Court provides for complete disestablishment of the dual 
school system in this District at the beginning of the 1969-70 
school year. Because of the number of children and schools 
in this district, and because of the proximity of the scheduled 
opening of the school year, implementation of our recom­
mended plan may require delay in that scheduled opening. 
Should the Court decide to defer complete desegregation of 
this school district beyond the opening of the coming school 
term, the following steps could in our judgment be taken this 
fall to accomplish partial desegregation of the school system 
without delay or with very minimal delay, in the scheduled 
opening of the school year.”

Supplemental Statements of the Cases



19b

After a hearing on August 15, 1969, the court on August 
22, 1969, filed an order approving implementation of the 
interim plan only during the 1969-70 school year and over­
ruling plaintiffs’ objections to the interim plan. The court 
left future desegregation to be accomplished on an in­
definite timetable directing that a further plan for 1970-71 
be submitted as soon as the board and HEW could agree, 
or if there was no agreement that HEW should file a plan 
“within a reasonable time.” The August 22 order is at­
tached as Appendix 7, p. 85a.

As stated above, the Court of Appeals denied relief pend­
ing appeal and summary reversal during September 1969, 
and then after expediting the appeal reversed on December 
1, 1969.

With respect to Burke County, the Court of Appeals 
concluded as follows:

No. 28409—Burke County, Georgia

The interim plan in operation here, developed by 
the Office of Education (HEW ), has not produced a 
unitary system. The district court ordered prepara­
tion of a final plan for use in 1970-71. This delay is 
no longer permissible.

We reverse and remand for compliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

However, as stated previously, the Fifth Circuit order 
required faculty desegregation and certain other steps to 
be taken by February 1, 1970, but permitted student de­
segregation arrangements to remain unchanged until the 
fall of 1970.

Supplemental Statements of the Cases



20b

In the Fifth Circuit the United States filed a brief amicus 
curiae urging that the Court of Appeals order immediate 
integration, and stating:

“ The district court’s approval of the interim plan 
should be reversed, and the district court should be 
directed to order full implementation of the HEW 
plan at once.” (Brief of United States, pp. 57-58).

Supplemental Statements of the Cases



21b

Bivins v. Bibb County Board of Education and Orphanage 
for Bibb County, et al. (M.D. Georgia), and 

Thomie v. Houston County Board of Education 
(M.D. Georgia)

Introduction

These cases involve the speed of school desegregation in 
two counties in the Middle District of Georgia. In both 
counties the district court, by orders entered August 12, 
1969 (Appendices 8 and 9), approved the continuation 
of freedom of choice desegregation plans with certain 
modifications in each case. In the Houston County case the 
court requested the submission of an H.E.W. plan, and the 
plan was submitted on July 28, 1969. However, when the 
school board objected to the H.E.W. plan the court per­
mitted a continuation of a modified free choice plan. In the 
Bibb County case the court approved a modified free choice 
plan proposed by the school board. In both cases the peti­
tioners, Negro pupils and parents, appealed and sought in­
junctions pending appeal which were denied. The cases were 
then set for a hearing en banc with other pending cases.

Houston County, Georgia

Suit was filed to desegregate the public schools of Hous­
ton County, Georgia in April 1965. The district court en­
tered an order requiring implementation of a freedom of 
choice plan on May 20,1965, and subsequently amended that 
order, while retaining the free choice approach, on April 
24, 1967, and again on June 22, 1967. The Houston County 
system has 23 schools (5 all-Negro schools and 17 predomi­
nantly white schools) serving (in 1968-69) 12,217 (78%) 
white pupils and 3,295 (22%) Negro students.

No whites attend the five all-Negro schools which were 
attended by about 83% of the Negro students in 1968-69

Supplemental Statements of the Cases



22b

under the free choice plan. About 17% of the Negroes at­
tend predominantly white schools. During argument in the 
court below, counsel for the board said that currently in 
1969-70 there are about 2,500 Negroes (73%) in all-Negro 
schools and 944 (27%) attending predominantly white 
schools. (Transcript of argument, p. 8.)

On July 8, 1969, the district court directed the defendants 
to file proposed amendments to their plan and invited the 
Department of Health, Education, and Welfare to submit a 
plan. On July 28, 1969, H.E.W. submitted a plan providing 
for complete desegregation of the school system in the 1969- 
70 term which provided for zoning most elementary schools 
and feeder systems and pairing of schools in the upper 
grades. The school board objected to the H.E.W. plan and 
proposed to continue the freedom of choice plan with certain 
proposed amendments.

On August 12, the court entered an order approving the 
school board’s proposed amendment to the free choice plan 
which provided for increasing desegregation somewhat by 
closing a Negro school and discontinuing certain grades in 
another, for holding inter-school class exchanges on a part- 
time basis in such things as driver education and industrial 
arts and home economics, and for certain additional faculty 
desegregation steps. The plan left the several all-Negro 
schools still all-Negro.

Plaintiffs appealed, and the court of appeals reversed 
directing complete student desegregation in the fall of 1970. 
While the case was pending on appeal the United States 
filed a brief amicus curiae urging the court of appeals to 
order immediate desegregation in these words:

In light of the recent decisions, we think that the 
order of the district court approving the modified free­
dom of choice plan should be reversed with directions 
to implement, at once, the HEW desegregation plan.

Supplemental Statements of the Cases



23b

The district court’s approval of free choice was in 
error. E.g., Adams v. Mathews, 403 F.2d 181 (5th Cir. 
1968); United States v. Greenwood Municipal Separate 
School District, 406 F.2d 1086 (5th Cir. 1969). The 
modifications of the free choice plan produce only a 
small increase in the number of Negroes who will attend 
white schools and no desegregation of Negro schools.

In these circumstances, it is appropriate for this 
Court to direct immediate implementation of the HEW
plan. Alexander v. Holmes County School Board,------
U .S .------  (1969) (per curiam). (Brief for the United
States, p. 67.)*

Bibb County, Georgia

Desegregation began in Bibb County under a court order 
entered in this case April 24, 1964, when the trial court 
approved a stair-step desegregation plan which began with 
the twelfth grade in 1964 and required a projected nine 
years to complete the transition period. The plaintiffs ap­
pealed to the Fifth Circuit which reversed as to the timing 
of desegregation and on February 24, 1965, ordered that 
the dual system be completely abolished in all grades by 
September 1968. Bivins v. Board of Public Education & 
Orph. for Bibb Co., Ga., 342 F.2d 229, 231 (5th Cir. 1965). 
The court set the 1968 deadline for desegregation in these 
words (342 F.2d at 231):

Four years including September 1965, that is by Sep­
tember 1968, is that maximum additional time to be

Supplemental Statements of the Cases

* The above quoted brief was submitted in the Fifth Circuit on 
or about November 13, 1969, by Assistant Attorney General Jerris 
Leonard and other attorneys of the Department of Justice. The 
portion quoted is the entire argument submitted with respect to 
the Houston County case in the government’s brief.



24b

allowed for the inclusion of all grades in the plan. The 
dual or biracial school attendance system, i.e., separate 
attendance areas, districts or zones for the races, shall 
be abolished contemporaneous with the application of 
the plan to the respective grades when and as reached 
by it. Also, students new to the system must be assigned 
on a non-racial basis to grades not reached by the plan.

The order was later amended to conform to subsequent de­
cisions of the Fifth Circuit, but freedom of choice was con­
tinued as the method of assignment. On June 28, 1968, pe­
titioners filed a motion seeking a plan other than freedom 
of choice, relying on this Court’s decision in Green v. School 
Board of New Kent County, 391 U.S. 430 (1968). On Sep­
tember 16, 1968, after a hearing, the court issued an “ in­
terim order” calling on the board to reassess its plans. 
But freedom of choice remained in effect, and in November 
1968 the board affirmed its request that the free choice 
method be retained. On June 4, 1969, petitioners again 
moved for abolition of the free choice plan, and after a 
hearing on July 7-8, 1969, the board submitted proposed 
modifications of the plan.

On August 12, 1969, the district court entered an order 
approving the continued use of freedom of choice with cer­
tain modifications mentioned below (Appendix 8). The 
amendments approved were actions to :

(1) limit free choice by refusing Negroes enrollment in 
white schools if accepting their applications would make 
the schools more than 40% Negro;

(2) schedule part-time white classes in Negro schools;
(3) study which Negro schools might be closed;

(4) increase faculty desegregation somewhat.

Supplemental Statements of the Cases



25b

The trial judge approved the freedom of choice system 
as modified.

Petitioners appealed to the Fifth Circuit, and on appeal 
the United States as amicus curiae joined them in urging 
reversal of the approval of free choice and reversal of the 
quota system which was applied only in the white schools.

The school hoard’s latest annual desegregation report, 
filed in October 1969, indicates that there are still 19 all- 
Negro schools and another school that is virtually all-Negro 
(671 Negroes and 1 white), and that these 20 black schools 
enroll about 10,990 pupils or approximately 78% of the 
approximately 14,190 Negroes in the system.* There are 
about 20,246 white pupils in the system by our tabulation 
of the board’s report.**

The court of appeals reversed the judgment in light of 
Alexander v. Holmes County Board of Education, supra, 
but praised the district court for employing “bold and imagi­
native innovations” stating that the plan “aproaches a uni­
tary system.” Apparently the court relied for this conclu­
sion on the fact that on a part-time basis whites were attend­
ing some of the all-Negro schools for certain exchange 
classes. The court refused to prohibit the provision limiting 
Negro enrollment in white schools to a maximum of 40%. 
As in the other cases, further student desegregation was 
deferred until September 1970.

Supplemental Statements of the Cases

* The board’s report contains apparent mathematical errors, so 
these figures must be regarded as approximate. By our tabulations 
based on the board’s report, there are somewhat less than 3,200 
Negroes in white schools, or about 22.5% of the total number of 
Negroes.

** The board’s report gives totals of 20,060 whites and 12,944 
Negroes, but these figures seem to be incorrect tabulations.



26b

Youngblood v. The Board of Public Instruction of 
Bay County, Florida (N.D. Fla.)

This case was filed by private plaintiffs in 1963, and 
subsequently the United States intervened. Since April, 
1967 the district has operated under a decree requiring a 
freedom of choice desegregation plan substantially the 
same as the Fifth Circuit’s model decree approved in the 
Jefferson County case. In July 1968 the private plaintiffs 
and the United States requested that the court require 
some alternative to the free choice plan to disestablish the 
dual system. The court finally ordered a new plan filed 
by January 1969, at which time the board filed a report 
indicating it proposed to continue freedom of choice. Pe­
titioners and the United States objected and the court 
held a series of hearings but refused to hear any evidence 
and entered an order refusing to convene an evidentiary 
hearing requested by the plaintiffs (Appendix 10).

On February 19, 1969 the board filed a plan which pro­
posed to adhere to the free choice system with certain 
modifications to attempt to attract white students to four 
remaining all-Negro schools. The District Court on April 
3, 1969 approved the board’s proposals and plaintiffs ap­
pealed.

In the District Court a Department of Justice attorney 
submitted an alternative proposal for desegregation to 
establish a feasible alternative to freedom of choice. But 
the district court refused to hear any evidence on the 
board’s plan or with respect to alternatives.

The school board’s reports show the present status of 
desegregation in the system during the 1969-70 school 
term; this data was made available to the court of ap­
peals. Bay County has 14,651 white students, and 3,010 
Negro students (17%), a total of 17,661. There are three

Supplemental Statements of the Cases



27b

schools remaining which are all-Negro or virtually all- 
Negro. All high school students attend desegregated 
schools. At the junior high school level there are a total 
of 813 Negroes and 377 of them or 46% attend one all-black 
school (Rosenwald Junior High). At the elementary level 
there are 1,681 Negroes and 1,221 or 72.6% of the elemen­
tary grade Negroes attend two Negro schools (one all- 
Negro and the other with 2 white pupils). The total number 
of Negroes in Negro schools is 1,598 which constitutes 64% 
of the number of elementary and junior high school Ne­
groes and 53% of the total Negroes in the system.

As the result of a supplemental order of April 10, 1969 
another Negro elementary school was transformed into a 
county-wide kindergarten center and thus desegregated.

The private plaintiffs appealed and both the plaintiffs 
and the United States moved in the Court of Appeals for 
summary reversal, in June 1969. On July 23, 1969 the mo­
tion for summary reversal was denied. On December 1, 
1969, the Court of Appeals ruled en banc that the system 
was not yet converted to a unitary system and reversed 
for compliance with Alexander and the other terms of its 
order applicable to this and the other cases including the 
delay of student desegregation until the fall of 1970.

Supplemental Statements of the Cases



28b

Wright v. The Board of Public Instruction of 
Alachua County, Florida (N.D. Fla.)

Petitioners filed this suit in 1964. Since 1967 the district 
has operated under a free choice plan decreed April 25,1967 
following the model of the Jefferson County case. In Octo­
ber 1968 petitioners moved for an order to require a new 
plan in view of the experience with free choice. In 1968-69 
the district had 21,708 students; about one-third of them 
were Negroes (7,008) and there were 14,700 white pupils. 
The county operated 27 schools, including 19 formerly white 
schools and 8 schools which were either all-Negro or 99% 
Negro. Of the 7,008 Negroes a total of 5,496 (78%) at­
tended the eight Negro schools (3,929 in five all-Negro 
schools, and 1,567 in three schools attended by a total of 
five whites).

In January 1969 the district court entered an order re­
quiring that a new plan be filed by the board. The peti­
tioners request for an evidentiary hearing on the plan was 
denied (see Appendix 11), and after petitioners objected to 
the plan the district court entered an order approving the 
plan for the years 1969-70, 1970-71 and 1971-72. (See Ap­
pendix 11).

The Court approved plan continued free choice in all 
schools except for elementary schools in the City of Gains- 
ville. The plan proposed further steps in 1970-71 involving 
certain area-wide schools under construction, attendance 
zones and changing school building usages. The plan states 
that it was predicated upon completion of the new buildings 
within the time schedule.

The district court approved the plan April 3, 1969 (Ap­
pendix 11). Plaintiffs appealed and unsuccessfully moved 
for summary reversal.

Supplemental Statements of the Cases



29b

The Court of Appeals ruled en banc that the system was 
not yet converted to a unitary system and reversed for com­
pliance with Alexander. With respect to the timing of de­
segregation, the court of appeals in this case, and the other 
dozen or so cases heard with it, ruled that student desegre­
gation did not have to be completed until the fall 1970 term 
of school.

Supplemental Statements of the Cases



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