Norwood v. Harrison Appellants' Brief

    Supreme Court, S.
F I L E D

JAN 2 4  1973

IN THE MICHAEL RDDASC, JR.,CLERK

SUPREME COURT OF THE UNITEFSTATES
OCTOBER TERM, 1972

No. 72-77

DELORES NORWOOD, et al,

v.
Appellants,

D. L. HARRISON, SR., et al.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI

APPELLANTS’ BRIEL

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305

Of Counsel

MELVYN R. LEVENTHAL 
ANDERSON, BANKS, NICHOLS 
& LEVENTHAL

538-1/2 North Farish Street 
Jackson, Mississippi 39202

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

Washington, D C. • T H IEL  PR ESS  • (202) 393 0625



TABLE OF CONTENTS
Page

OPINION B E L O W ................ ......................................  . . .  1

JURISDICTION ..........................................................................   . 1

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS INVOLVED ........... .. .................................................  2

QUESTION PRESENTED.............................................................  3

STATEMENT OF THE CASE:

I. Proceedings B e lo w ...................    3

II. The Growth of Private Academies and Their
Impact on Public Education . . . . . . . . . . . . . . . .  8

A. Statewide Perspective ...............................................  8

B. Impact o f Private Academies on Public 
School Desegregation in Specific School
Districts ..............      . 13

1. Holmes County School District ......................  14

2. Canton Municipal Separate School District . .  15

3. Jackson Municipal Separate School D istrict. . 16

4. Amite County .....................................................  17

5. Indianola Municipal Separate School District . 18

6. Grenada Municipal Separate School District. . 19

III. The State’s Textbook Program .......................................  19

A. The Program Generally ............................................  19

B. The Extent o f Textbook Aid to Private
Racially Segregated Academies ............................... 22

SUMMARY OF ARGUMENT .....................................................  23

ARGUMENT ...........   24

CONCLUSION . . .  .................   34

APPENDIX A — Private Non-Secretarian Academies
Participating in State’s Textbook Program .......................  la

APPENDIX B -  State-Wide Enrollments................................  lb

(i)



TABLE OF AUTHORITIES

Cases:

Aaron v. Cooper, 261 F.2d 97 (8th Ch. 1958) ........... ..  28

Adams v. Richardson,___  F. Supp. ___(D. D. C. 1972). . 25n

Alexander v. Holmes County Board of Education,
396 U.S. 19(1969) ................... ...........................  3, 5, 9, 11

Anderson v. Canton Municipal Separate School 
District & Madison County School Dist., No.
28030 (5th Cir., Dec. 22, 1969) ............................... ..  28

Anderson v. Martin, 375 U.S. 399 (1964) . ...............................  29

Blackwell v. Anguilla Line Consolidated School Dist.,
No. 28030 (5th Cir., Nov. 24, 1969) 28

Board of Education v. Allen, 392 U.S. 236 (1968) . . .  8, 32, 33

Bradford v. Roberts, 175 U.S. 291 (1889) ............................... 31

Brown v. Board o f Education, 347 U.S. 483 ( 1 9 5 4 ) . . . . . . .  5, 9

Brown v. South Carolina Board of Education, 296 F.
Supp. 199 (D. S. C. 1968), affirmed per curiam,
393 U.S. 222 (1968) ..............................................................  27

Burton v. Wilmington Parking Authority, 365 U.S. 715
(1961)        -2 9

Coffey v. State Educational Finance Commission,
296 F. Supp. 1389 (S.D. Miss. 1 9 6 9 ) ................  11, 12, 1 4 ,2 9

Cooper v. Aaron, 358 U.S. 1 (1958) . .................................  24, 29

Evers v. Jackson Municipal Separate School District,
328 F.2d 408 (5th Cir. 1964) ...............................................  9n

Everson v. Board o f Education, 330 U.S. 1 (1947)...................  8

Gilmore v. City of Montgomery, 337 F. Supp. 22
(M.D. Ala. 1 9 7 2 ) ..........................................................................  28

Jo Ann Graham v. Evangeline Parish School Board,
C.A. No. 11053, W.D. La., July 28, 1972, appeal 
pending, 5th Cir. No. 72-3033 ...............................................  24n

Green v. Connally, 330 F. Supp. 1150 (D. D.C.
1971), affirmed sub nom. Coit v. Green, 404 U.S.
997 ( 1 9 7 1 ) .........................................., ..........................

<ii)

25, 26n



Green v. County School Bd. of New Kent County,
391 U.S. 430 (1968) ................. ..  3, 5, 9, 11, 24, 25

Green v. Kennedy, 309 F. Supp. 1127 (D. D.C.
1970), appeal dismissed for want o f jurisdiction,
sub nom. Cannon v. Green, 398 U.S. 956 (1970) . . 14, 25, 26

Griffin v. State Board o f Education, 239 F. Supp.
560(E .D . Va. 1965) ................................................................- 3 1

Griffin v. State Board of Education, 296 F. Supp.
1178 (E.D.Va. 1 9 6 9 ) ..........................................................  2 7 ,2 8

Henry v. Clarksdale Municipal Separate School Dist.,
409 F.2d 682 (5th Cir. 1969), cert, denied, 396
U.S. 940 (1969)  9n

Jackson Municipal Separate School District v. Derek
Jerome Singleton, cert, denied, 402 U.S. 944 (1971) . . . .  17n

Lemon v. Bossier Parish School Board, Civ.
No. 10,687 (W.D. La., Sept. 25, 1 9 7 0 ) ....................................  28

Lemon v. Kurtzman, 403 U.S. 602 (1 9 7 1 ).............................. 31, 32

McGlotten v. Connally, 338 F.Supp. 448
(D.D.C. 1972)............................................................... ................ 30

North Carolina Board o f Education v. Swann, 402
U.S. 43 (1971) ..............................................................................25n

Norwood v. Harrison, 340 F. Supp. 1003 (N.D. Miss.
1972 .....................................................................  7, 8, 21, 29

Palmer v. Thompson, 403 U.S. 217 ( 1 9 7 1 ) ......................... 29, 30

Pierce v. Society o f Sisters, 268 U.S. 510 (1925) ................. • • 33

Poindexter v. Louisiana Financial Assistance Com­
mission, 275 F. Supp. 833 (E.D. La. 1967), 
judgment affirmed, 389 U.S. 571 (1968) ................... ..  • • • 27

Reitman v. Mulkey, 387 U.S. 369 ( 1 9 6 7 ) ....................................  29

Shelley v. Kraemer, 334 U.S. 1 (1948) . .................................. 29

Sherbert v. Verner, 374 U.S. 398 (1963) ..................................... 33

Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 
959, (4th Cir., 1963), cert, denied, 376 U.S.
938 (1 9 6 3 )........................................................................................  31



Singleton v. Jackson Municipal Separate School
District, 348 F.2d 729 (5th Cir. 1 9 6 5 ) ...................... ..  10

Swann v. Charlotte- Mecklenburg Board o f Educa­
tion, 402 U.S. 1 (1971) .....................................................  12, 25n

Taylor v. Coahoma County School District, 345 F.
Supp. 891 (N.D. Miss. 1972) ...................... .. ................ ..  28

Tilton v. Richardson, 403 U.S. 672 ( 1 9 7 1 ) . .................................  31

United States v. Covington County School Dist.,
No. 28030 (5th Cir., Dec. 17, 1969) ........... .. ........................  28

United States v. Hinds County School Board, 433 
F.2d 598 (5th Cir. 1969) ..........................................

United States v. Jefferson County Board of 
Education, 372 F.2d 836, affirmed en banc, 380 
F.2d 385 (5th Cir. 1967) .................................... .. ............. ..  -25n

United States v. Tunica County School Dist., 323 
F. Supp. 1019 (N.D. Miss. 1970), a ffd , 440 F.2d 
377 (5th Cir. 1971) ........... .............................................. 3n, 4n, 5

Wallace v. United States, 389 U.S. 215, affirming per 
curiam, Lee v. Macon County Board of Education,
267 F. Supp. 458 (M.D. Ala. 1967) . .......................................  27

Wright v. City of Brighton, 441 F.2d 447 (5th Cir.), 
cert denied, sub nom. Hoover Academy, Inc. v.
Wright, 404 U.S. 915 (1971) ............................  .......................28

Wright v. City of Emporia, 407 U.S. 451 (1972) . . . .  26, 28, 30 

Statutes:
28 U.S.C. § 1253 ................................................................................ 2

28 U.S.C. § 2101(b) ..................................................................  2

28 U.S.C. § §  2281 ,2284  .............. .. ................................... ............. 1

42 U.S.C. § 2000d-l ........................................................................... 11
Emergency School Assistance Act, 1970 ........... .. ......................21n

Miss. Code, 1942, § 6656 .................................................................. 2
Miss. Code, 1942, § § 6634-6659.5 .........................  19, 20, 21, 22

U.S. Code Congressional & Administrative News, P.L.
91-381 ,84  Stat. 806, September 5, 1970 ...............................21n

(iv)



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972

No. 72-77

DELORES NORWOOD, et al.,
Appellants,

v.

D. L. HARRISON, SR., et al.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI

APPELLANTS’ BRIEF

OPINION BELOW

The opinion of the United States District Court for the 
Northern District of Mississippi is reported at 340 
F. Supp. 1003 (N.D. Miss. 1972).

JURISDICTION

This is an appeal from a final judgment entered by a 
three-judge district court, convened pursuant to 28 
U.S.C. §§ 2281 and 2284, denying a permanent 
injunction enjoining state officials from enforcing a state

1



2

statute having state-wide application. Jurisdiction accord­
ingly vests in this Court under 28 U.S.C. § 1253.

Final judgment was entered on April 18, 1972. Notice 
of Appeal was filed in the district court on May 16, 
1972—within 60 days from the final judgment (28 U.S.C. 
§ 2101(b)).1 A jurisdictional statement was filed and the 
case docketed in this Court on July 14, 1972—within 60 
days from the filing of the notice of appeal (U. S. 
Supreme Court Rule 13). October 10, 1972, this Court 
noted probable jurisdiction.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

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

This case also involves § 6656 of the Mississippi Code, 
1942 (volume 5, pp. 495-96 of the Mississippi Code, 
1942, Chap. 152, Laws of 1940), which states:

Plan.-This act is intended to furnish a plan for the 
adoption, purchase, distribution, care and use of 
free textbooks to be loaned to the pupils in all 
elementary and high schools of Mississippi.

The books herein provided by the board shall be 
distributed and loaned free of cost to the children of 
the free public schools of the state, and all other 
schools located in the state, which maintain 
educational standards equivalent to the standards 
established by the state department of education for 
the state schools.

JIn accordance with standard practice in three-judge district 
court cases plaintiffs also perfected an appeal to the United States 
Court o f Appeals for the Fifth Circuit.



3

Teachers shall permit all pupils in all grades of 
any public school to carry to their homes, for home 
study, the free text books loaned to them, and to 
carry to their homes, for home study, all other 
regular text books used in the public schools of the 
state whether they be free text books or not. 
(Emphasis added.)

QUESTION PRESENTED

Whether Miss. Code, 1942, § 6656 to the extent that 
it provides for the distribution of state owned textbooks 
to private racially segregated academies formed for the 
purpose and/or having the effect of providing white 
students and faculty with an alternative to public 
integrated schools, violates the Equal Protection Clause 
of the Fourteenth Amendment.

STATEMENT OF THE CASE

I.

PROCEEDINGS BELOW

January 23, 1970, the United States District Court for 
the Northern District of Mississippi entered an order 
requiring the integration of all public schools of Tunica 
County, Mississippi, no later than February 2, 1970, in 
accordance with standards established by this Court in 
Green v. County School Board o f  New Kent County, 391 
U.S. 430 (1968), and Alexander v. Holmes County Board 
o f Education, 396 U.S. 19 (1969).2 Upon the entry of 
this order the parents of all white students of Tunica

2The history of public school desegregation in Tunica County is 
reviewed in United States v. Tunica County School District, 323 F. 
Supp. 1019, 1021-23 (N.D. Miss. 1970).



4

County withdrew their children from public schools and 
formed a private academy housed in church facilities. 
(Petty Deposition, p. 8.) The principal and 17 high school 
teachers of the Tunica County system resigned in 
mid-year to assume positions with the new private school. 
(Isbell Deposition, pp. 16, 28.)

December 4, 1969, the Executive Secretary of the 
Mississippi Textbook Purchasing Board, appellee herein, 
had circulated a memorandum to “County and Separate 
District Superintendents” which stated:

Subject: Textbooks for Private Schools.
We have many disturbed parents since the Court 
decisions. Many of them are going to organize 
private schools, and they are going to need books.
Since all the money has been allotted for this year, 
it will be necessary for the superintendents to 
transfer books with the student as he transfers to 
the private school. . . .
We appreciate your cooperation in this difficult 
situation. (Snowden Deposition, June 28, 1971, 
Exhibit 1)

As a result of this memorandum the textbooks used by 
white students fleeing integrated education in Tunica 
County and throughout the state were transferred from 
public schools to private segregationist academies in 
January, 1970. (Floyd Deposition, pp. 16-17, S3)3

3The first challenge to the transfer of state textbooks from 
public to private schools o f Tunica County was entered in United 
States v. Tunica County Board o f  Education, 323 F. Supp. 1019 
(N.D. Miss. 1970). There, black public school children challenged 
the transfer of state textbooks from Tunica public schools to the 
Tunica Church School which discontinued its program and 
returned all textbooks to the public schools at the conclusion of 
the 1969-70 school year. The issue was, in the context of that 
Mgation, moot. 323 F. Supp. at 1028. f/oomofe continued)



5

October 8, 1970, four black students of Tunica 
County filed this class action to enjoin the Mississippi 
Textbook Purchasing Board and its Executive Secretary 
from distributing state-owned textbooks to the Tunica 
Institute of Learning4 and all other academies of 
Mississippi formed in response to the implementation of 
this Court’s Brown, Alexander and Green decisions.5 
Plaintiffs alleged, inter alia, that:

[T]heir right to a racially integrated and otherwise 
non-discriminatory public school system, vindicated 
by order of . . . [the district court] dated January 
23, 1970 [United States and Driver v. Tunica 
County School District, . . .] and their right to the 
elimination of state support for racially segregated 
schools, have been frustrated and/or abridged by the 
creation of the racially segregated Tunica County 
Institute of Learning and the policies and practices 
of defendants as set forth below. . .

(footnote 3 continued)
The instant lawsuit, however, named the Tunica Institute of 

Learning as the private academy of Tunica County enrolling all 
white students o f the district and receiving state owned textbooks. 
During the 1970-71 school year that academy held in excess of 
2,000 volumes costing the State $7,000. (See Appendix A. hereto, 
p. 2a).

4Tunica County public school officials continued to pay the 
salaries of the white teachers and the principal who abandoned the 
public schools in favor of the newly formed church academy. This 
practice was enjoined and restitution ordered. United States v. 
Tunica County School District, 323 F. Supp. 1019 (N.D. Miss. 
1970), affirmed, 440 F.2d 377 (5th Cir. 1971).

5 Brown v. Board o f  Education, 347 U.S. 483 (1954). (Brown /); 
Alexander v. Holmes County Board o f  Education, 396 U.S. 19 
(1969); Green v. County School Board o f  New Kent County, 391 
U.S. 430 (1968).



6

Beginning with the 1964-65 school year-when 
the first school districts in Mississippi were required 
to integrate under freedom of choice—and through 
the present, numerous private schools and academies 
have been either formed or enlarged, which schools 
have established as their objective and/or have had 
the effect of affording the white children of the state 
of Mississippi racially segregated elementary and 
secondary schools as an alternative to racially 
integrated and otherwise non-discriminatory public 
schools.

The defendants have provided these racially 
segregated schools and academies and the students 
attending such schools, . . . textbooks purchased and 
owned by the State of Mississippi and have thereby 
provided state aid and encouragement to racially 
segregated education and have thereby impeded the 
establishment of racially integrated public schools in 
violation of plaintiffs’ rights assured and protected 
by the Fourteenth Amendment to the Constitution 
of the United States.

(A. 20-21)
Appellants prayed for an order enjoining the Mississippi 

Textbook Purchasing Board from any further distribution 
of state owned textbooks to segregationist academies and 
for an order recalling state textbooks which had already 
been distributed to such institutions. (A. 21-22) After 
stipulations were filed and depositions taken, appellants 
refined their prayer for relief: we sought an order 
withdrawing state textbook aid from 148 specifically 
named all-white private academies, enrolling 42,000 
students, formed or enlarged for the purpose and/or with 
the effect of providing white students with an alternative



7

to public integrated education. Norwood v. Harrison, 340 
F. Supp. at 1011.6

6There were 202 private schools operating in Mississippi during 
the 1970-71 school year:

Number of Schools Enrollment
Private segregationist 
Academies receiving
State textbooks 107 34,000

(all white)
Private segregationist 
Academies eligible but 
not participating in
State’s program 41 8,000 

(all white)

Sub-Totals 148 42,000

Catholic Schools 47 12,100 
(9,200 white 

2,900 black)

Other 7 1,800

(1,000 white 
800 black)

Sub-Totals 54 13,900

(10,200 white 
3,700 black)

Total for all private 
schools: 202 65,900

(Norwood v. Harrison, supra, 340 F. Supp. at 1011, A. 4 0 4 3 )
Appellants did not challenge textbook aid to the Catholic 

School System o f the State because that system has generally not 
been made available to white students fleeing integrated public 
schools. In addition, we excluded the 7 academies, referred to 
above as “Other,” because they were either all-black, integrated or 
serving the needs o f abandoned, orphaned or retarded children.



8

April 17, 1972, the district court rendered its opinion 
holding that: (a) plaintiffs had failed to demonstrate that 
textbook aid was vital to the private schools, i.e., that 
whites would return to public schools if only textbook 
aid was withdrawn; moreover, public integrated education 
was secure since 90% of the student population of the 
state continued to enroll in public schools; (b) the statute 
under challenge was enacted in 1940 and was hence free 
of any specific intent to aid private racially segregated 
academies; (c) the statute under challenge provides 
textbook aid to students and not to schools; and the 
state’s duty to educate all of its youth permitted the 
distribution of textbooks to students attending segrega­
tionist academies for the very reasons expressed by this 
Court in upholding similar aid to parochial schools against 
a First Amendment challenge, Board o f Education v. 
Allen, 392 U.S. 236 (1968); Everson v. Board o f  
Education, 330 U.S. 1 (1947).

II.

THE GROWTH OF PRIVATE ACADEMIES AND 
THEIR IMPACT ON PUBLIC EDUCATION

A. Statewide Perspective.

The district court found that by the commencement of 
the 1970-71 school year a network of 148 private 
segregated academies enrolling approximately 42,000 
students had been formed in the state to provide white 
students with an alternative to integrated public schools. 
Norwood v. Harrison, supra, 340 F. Supp. at 1011, and 
footnote 5 therein. As we demonstrate below the creation 
and enlargement of these academies occurred simul­
taneously with major events in the desegregation of public



9

schools and frustrated the attainment of fully integrated 
public schools and the promise of Brown, Green and 
Alexander.

The decade immediately following Brown—1954-
1964-was marked by “Massive Resistance” and public 
schools were operated on an absolutely segregated basis. 
Accordingly, as late as the 1963-64 school year there was 
virtually no private segregationist school system in the 
State.7

In 1963, black students in Jackson, Leake County, 
Biloxi and Clarksdale filed the state’s first school 
desegregation suits.8 In 1964, these four districts were 
required to admit black first graders into white schools 
and the private segregationist academy appeared for the 
first time. White Citizens’ Council School #1 and 
Southside Academy opened their doors in Jackson. 
Clarksdale Baptist School began an elementary program 
for the first time; and St. George Day School, also of 
Clarksdale, doubled its enrollment and added three grades 
to its curriculum. The Leake County Academy opened

7 During the 1963-64 school year there were 17 private 
non-Catholic academies enrolling 2,362 students operating in the 
state. Five enrolled black students only; two were schools for 
retarded, orphaned or abandoned children; one was a military 
academy; two were parochial schools now operated on an 
integrated basis; two operated part-time programs enrolling only 25 
students. The five remaining schools enrolled only 722 students. 
(A. 4 0 4 1 )

8Evers v. Jackson Municipal Separate School District; Hudson v. 
Leake County School Board; Mason v. Biloxi Municipal Separate 
School District, 328 F.2d 408 (5th Cir. 1964). The early history of 
school desegregation in Clarksdale is reviewed in Henry v. 
Clarksdale Municipal Separate School District, 409 F.2d 682, 684 
(5th Cir. 1969).



10

with a curriculum limited to first graders.9 These five 
schools were the only new or enlarged private academies 
operating in the state during the 1964-65 school year.10

1965-66 witnessed the implementation of the Civil 
Rights Act of 1964 and the beginning of a concert of 
effort involving the Department of Justice, Department of 
Health, Education and Welfare and private litigants to 
promote integrated public schools. Prodded by Singleton 
v. Jackson Municipal Separate School District, 348 F.2d 
729 (5th Cir. 1965), most public school districts in the 
state integrated at least four grades under freedom of 
choice during the 1965-66 school year. (Henderson 
Deposition, Exhibit 9.) And by 1965-66, Mississippi 
counted 41 private segregationist academies enrolling 
3,841 white students.

9 The Leake County Academy closed after one year of 
operation. It then reopened in January, 1970 upon this Court’s 
order in Alexander. All of the Academy’s 333 students and 13 of 
its 15 teachers had enrolled or taught in the public schools during 
the first semester of the 1969-70 school year. The school is housed 
in an abandoned public school building (Sheppard Deposition, pp. 
5,9-13).

One witness said that the Leake County Academy might have 
opened during the 1963-64 school year, one year before the public 
first grade was desegregated under freedom of choice. (Sheppard 
Deposition, pp. 4-5.) However, the school desegregation suit was 
by then notorious. See footnote 8, above.

10The facts recorded in this paragraph are contained in the 
following parts of the record: Supplement to Record entered in the 
district court on August 10, 1971, Chart, Interdependence o f  
Public School Desegregation and the Formation and Growth o f  
Private Academies; Wright Deposition, Exhibit One, thereto; 
Bounds Deposition, Exhibit 10, thereto; Sheppard Deposition, pp. 
4-10; Oral Argument Exhibit Two, entered into record by order of 
the district court, May 15, 1972.



11

[D]uring the 1965-66 school year twenty new 
private schools . . . were added [to the twenty-one] 
that had been in operation in 1964-65. In each 
instance the new schools opened in public school 
districts which either were under court order to 
desegregate or had submitted voluntary desegre­
gation plans to the United Stated Department of 
Health, Education and Welfare. Coffey v. State 
Educational Finance Commission, 296 F. Supp. 
1389, 1391 (S.D. Miss. 1969).
Green and Alexander, implemented in Mississippi 

during the 1969-70 or 1970-71 school year, signalled the 
end of freedom of choice and token desegregation; all 
students in Mississippi public schools were then assigned 
under “terminal” plans for desegregation. 1969-70 also 
witnessed the opening of 55 new private academies and 
the withdrawal of 21,875 white students from public 
schools. During the 1970-71 school year an additional 
11,061 white students withdrew from public schools to 
enroll in 31 new academies. (Appendix B hereto; A. 42)u 11

11 “Voluntary” desegregation, pursuant to directives of the 
Department of HEW issued under Title VI of the Civil Rights Act 
of 1964 (42 U.S.C. §2000d-l), proceeded at approximately the 
same pace as desegregation mandated by court order. According to 
Dr. Lloyd Henderson, Director, Education Division, Office for Civil 
Rights, the first set of regulations promulgated upon the passage of 
the Civil Rights Act of 1964 were distributed to all school districts 
in the Nation during the 1964-65 school year. The first guidelines, 
requiring the desegregation of several grades under freedom of 
choice, were entered in April, 1965. In March, 1968, immediately 
prior to this Court’s Green, supra, decision, HEW promulgated 
guidelines requiring the formulation of plans which achieved 
desegregation; freedom of choice was thereafter unacceptable 
(Henderson Deposition, pp. 9-10, 20-22, Exhibit 9 thereto).



12

In summary, there were two major thrusts in the 
history of public school desegregation in the state of 
Mississippi. The first occurred in 1965 when freedom of 
choice plans for four grades were implemented in most 
school districts. The second occurred in September and 
December, 1969, or by September, 1970, upon the 
implementation of Green and Alexander. And the record 
shows that virtually all of the 148 segregationist 
academies of the State opened or substantially expanded 
their enrollment or curriculum concurrently with these 
two major events in public school desegregation.12 (A. 
42; Appendix B, hereto.)

In almost all cases the private segregationist academies 
were opened without any meaningful planning and on the 
“thinnest financial basis.” Coffey v. State Educational 
Finance Commission, 296 F. Supp. 1389, 1392 (S.D. 
Miss. 1969). No less than 19 were opened in obsolete and 
abandoned public school buildings; an additional 26 were 
opened in church facilities intended for Sunday School 
purposes only; seven academies were opened in private 
homes or in buildings that were not constructed to house 
educational facilities. Of the approximately 100 acad­
emies for which information is available through 
deposition, only four opened in newly constructed 
facilities designed to house an educational program. (A. 
44-49) Many of the schools operated without any formal

12 The Jackson Municipal Separate School District was the only 
public school district in the state required to enter substantial 
changes in its plan of pupil assignment upon this Court’s decision 
in Swann v. Charlotte-Mecklenburg Board o f  Education, 402 U.S. 
1 (1971).



13

budget and a few depended upon contributions rather 
than tuition.13

Virtually all of the academies obtained the majority of 
their teachers and administrators from the public school 
systems. Virtually all rely upon opposition to desegre­
gation of public schools and “white flight” for their 
survival.

B. Impact of Private Academies on Public School 
Desegregation in Specific School Districts.

Although the district court found that 90% of the 
state’s school population continues to attend public 
schools it carefully refrained from any specific finding 
that private academies have not undermined public 
integrated education. In fact, the state-wide retention 
statistic of 90% depends upon the inclusion of many 
school districts which have only a token number of black 
students. In the entire “gulf coast” of Mississippi and 
several of the northernmost school districts of the state, 
for example, there has been less resistance to public 
school desegregation.14 But in districts where public

13See, for example, Minor Depositon, p. 16; Wilson Deposition, 
pp. 10, 13. There were a few private schools which were well 
organized and financed but they were exceptions. For an example 
of a segregationist academy with a new physical plant and a 
substantial budget, see Deposition of Dillon, Administrator o f  
Pillow Academy o f Greenwood, Mississippi.

14Indeed, the record shows that such districts were generally 
desegregated without litigation and at least one year in advance of 
compliance in other parts of the state. Biloxi Municipal Separate, 
one of the districts in the original school desegregation cases of 
1963-64, is 85% white and without any private academy. It 
desegregated all twelve grades under freedom of choice by the 
1965-6Tsthbol year although it could have easily obtained a stay 
until the 1967-68 school year. (Henderson Deposition, Exhibit 11.)



14

officials have provided no leadership for desegregation 
and blacks constitute a larger percentage of the student 
population, the implementation of freedom of choice or 
terminal plans of pupil assignment triggered the 
decimation of the white public school enrollment and the 
resegregation of public schools.

The following desegregation histories of specific school 
districts illustrate the pattern which emerged upon 
desegregation in all school districts wherein blacks 
constitute a substantial segment of the student enroll­
ment.

1. Holmes County School District15

In September, 1965, the United States District Court 
for the Southern District of Mississippi ordered Holmes 
County to desegregate grades 1-4 under freedom of 
choice. Concurrently three private academies (Central 
Holmes Academy, Cruger-Tchula Academy, East Holmes 
Academy), limited to grades 1-4 or 1-6 and enrolling 
approximately 450 students, were opened. By the close of 
the 1967-68 school year, when the Holmes County 
system was desegregated under freedom of choice for all 
twelve grades, the private schools had expanded their 
program to twelve grades and their combined enrollment 
to 650 white students.

Holmes County desegregated its schools under a 
terminal plan in September, 1970.16 At that moment one

15 The interdependence o f public school desegregation and the 
formation and growth of private academies in Holmes County was 
discussed in Coffey v. State Educational Finance 
Commission, 296 F. Supp. 1389, 1391, n. 7 (S.D. Miss. 1969), and 
Green v. Kennedy, 309 F. Supp. 1127, 1133 (D.C. 1970).

16Holmes County was one of three districts consolidated under 
the Alexander caption which was given until September 1970 to 
implement a “terminal” plan.



15

additional private school opened in the county (Four 
County Academy) and all but a handfull of white 
students formerly enrolled in the county’s public schools 
withdrew to attend private segregationist academies. 
Holmes County presently has two school systems; one 
public, staffed and attended by blacks; the other private, 
and staffed and attended by whites who abandoned the 
public schools upon this Court’s mandate in Alexander, 
The appellees treat both school systems as equals under 
the state’s textbook program. (Henderson Deposition, 
Exhibits 9 & 10; Chart, Interdependence of Public School 
Desegreation and the Formation & Growth of Private 
Academies.)

2 Canton Municipal Separate School District

The Canton Academy was opened in September, 1965 
concurrently with the implementation of a freedom of 
choice plan for grades 1-4 in the public school system. At 
the close of the freedom of choice stage of desegregation 
(1968-69), the Canton Academy enrolled 140 students in 
curriculum limited to grades 1-8. On January 19, 1970, at 
the precise moment public schools opened under the 
terminal plan of pupil assignment mandated by this Court 
in Alexander, the Canton Academy expanded to serve 
grades 1-12. Its enrollment surged to 1,322, or virtually 
the entire white student body of the Canton Municipal 
Separate School District. At the same moment, the 
academy was moved into an abandoned tent factory with 
a staff of 20 white teachers who had left the public 
schools and with textbooks supplied by appellees herein. 
(The experience of the Tunica County system, wherein 
named plaintiffs attend school, was identical to that of 
Canton and Holmes County; supra, pp. 3-5).



16

3. Jackson Municipal Separate School District

Prior to the 1964-65 school year Jackson and the 
surrounding Hinds County counted only three white 
private academies.17 All were limited to the elementary 
grades and their combined enrollment totaled 411. The 
1964-65 school year witnessed the desegregation of grade 
one under freedom of choice and White Citizen’s Council 
School #1 and Southside Academy opened as small 
elementary schools serving grades 1-4. In September, 
1965, Jackson and Hinds County desegregated four 
grades under freedom of choice and announced that all 
twelve grades would be so desegregated by 1967-68. 
During the same month White Citizen’s Council #1 
expanded its program to all twelve grades and increased 
its enrollment from 25 to 103 students while Southwest 
Academy and First Presbyterian Day School opened for 
the first time. When all twelve grades of the public system 
had been desegregated in 1967-68, there were nine 
segregationist academies enrolling 1,250 students oper­
ating throughout Jackson and Hinds County.

Terminal plans of pupil assignment were implemented 
in Jackson and Hinds County in January and September, 
1970. In September, 1969, the White Citizen’s Council 
operated three schools enrolling 449 students. In 
January, 1970, enrollment at Council Schools rose to 
2,920 and other groups opened three new academies. In 
September, 1970, when further changes in the plans of 
pupil assignment were implemented, the White Citizen’s 
Council opened three new academies while other private 
groups opened two more. By the 1970-71 school year

17St. Andrews Episcopal (integrated), Jackson Academy 
(opened in 1959) and Jackson Christian. (A. 40-41)



17

there were at least 18 private academies18 enrolling over 
10,000 students operating in the Jackson-Hinds County 
area.19 Jackson public school officials recently explained 
the impact of private academies upon their system to the 
court:

For this pattern is emerging: the Courts will attempt 
to achieve a percentage result on the basis of 
projected enrollments; these enrollments will be 
rendered inaccurate by continued loss of white 
students. . . .
It is an undeniable fact that desegregation cannot be 
accomplished without the presence of white 
students in the public schools. Surely it is not 
absolutely necessary for a community to watch 
more than 40% of its white students leave the 
public schools Lto attend private academies] in the 
space of one year. Enrollment of white students in 
the system was 20,966 in September, 1969 and 
12,095 in September, 1970.20

4. Amite County

Amite County was one of the school districts 
consolidated in Alexander v. Holmes County Board o f  
Education, supra. In January, 1970, upon remand from 
this Court, two private schools, the Amite County School 
Corporation and the Pine Hills Academy opened with

1 E xam ples o f Jackson-Hinds academies receiving textbooks 
are: Woodland Hills Baptist, Terry, Bearss, Flowood.

19 These 1970-71 statistics are estimates accepted by the district 
court.

20 Jackson Municipal Seperate School District v. Derek Jerome 
Singleton, cert, denied, 402 U.S. 944 (1971); Petition for Writ of 
Certiorari, pp. 29-30.



18

enrollments of 597 and 426 white students respectively- 
virtually the entire white student population of the 
school district. (Henderson Deposition, Exhibit 9; Chart, 
Interdependence of Public School Desegregation and 
Formation and Growth of Private Academies; Nowell 
Deposition, pp. 5-6; Home Deposition, p. 5.) The Amite 
County Private School houses grade one in the local 
Mormon Church, grades two and three in the Methodist 
and Presbyterian Churches, grades four and five in the 
“Old Baptist Parsonage,” and grades seven through 12 in 
the Baptist Church.

5. Indianola Municipal Separate School District

Indianola Academy, serving grades 1-2 and enrolling 79 
pupils, opened in September, 1965 concurrently with 
integration of grades 1-4 of the public schools under 
freedom of choice. As additional grades of the public 
schools were desegregated the academy added grades to 
its curriculum and students to its rolls so that by 
September, 1969, it housed 578 students in grades 1-12.

During the first semester of the 1969-70 school year 
the public school district enrolled 991 white students. 
However, in February, 1970, the district was required to 
implement a terminal plan of pupil assignment pursuant 
to Green and Alexander; and at that precise moment all 
white students and 30 white teachers of the district 
withdrew to the security of the segregated Indianola 
Academy. Accordingly, the Indianola Academy’s enroll­
ment surged from 578 white students in December, 1969 
to 1,504 such students by February 9, 1970. (Cain 
Deposition, pp. 5, 9; Floyd Deposition, p. 13; Henderson 
Deposition, Exhibit 9; Chart, Interdependence of Public 
School Desegregation and the Growth of Private 
Academies.)



19

6. Grenada Municipal Separate School District

The failure of HEW to obtain voluntary desegregation 
of the Grenada public schools during the 1965-66 and
1966-67 school year resulted in the termination of all 
federal financial support for this district as of September 
22, 1966. However, a court order was subsequently 
entered requiring freedom of choice desegregation for 
grades 1-12 effective September, 1967. Enter the Kirk 
Academy, in September, 1967, serving grades 1-12 and 
enrolling 133 students. This academy grew to an enroll­
ment of 412 white students by September of 1969, to 
511 by February of 1970, and to 639 by September, 
1970.

Effective March 1, 1970, the public school district was 
required to implement a terminal plan of pupil 
assignment. On the same day a second private academy, 
Grenada Lake Academy, opened in an abandoned public 
school building for 180 white students formerly enrolled 
in Grenada public schools. (Jaudon Deposition, pp. 3, 5.)

The histories reviewed above are not exceptional. The 
pattern—public school desegregation followed by the 
withdrawal of a substantial number of white students to 
private academies and the resegregation of public 
schools—was repeated in school district alter school 
district throughout the state.

III.

THE STATE S TEXTBOOK PROGRAM 

A. T he Program G enerally

Sections 6634-6659.5 of the Miss. Code of 1942 
(Appendix B, Jurisdictional Statement) provide the 
framework for the selection, purchase and distribution of



20

textbooks used in the state’s schools.21 The laws were 
enacted in 1940 and amended, insignificantly, in 1942, 
1944, 1946, 1960 and 1966. Prior to the initiation of the 
free textbook program, parents were required to purchase 
textbooks (§6511). Initially the Act provided textbooks 
for the elementary curriculum only; in 1942, the 
legislature extended the program to high school grades 
(§6658).

Sections 6634 and 6641 establish the Mississippi 
Textbook Purchasing Board and assign to that agency 
plenary authority over the state’s multi-faceted program. 
Board members are the Governor, the State Superin­
tendent of Education, and three others—who must have 
served 5 years in public schools of the State—appointed 
by the Governor for terms of four years. The Board 
employs an Executive Secretary who serves as full-time 
administrator. All members of the Board and the 
Executive Secretary are appellees herein.

Textbooks may only be purchased “for use in those 
courses set up in the state course of study adopted by the 
State Board of Education, or courses established by 
special acts of the legislature” (§6646). For each such 
course of study there is a “rating committee” consisting 
of educators, and other “persons competent in the 
appraisal of books” appointed by the Governor and State 
Superintendent of Education (§6641(d)). No textbook 
may be adopted or purchased by the appellees unless it is 
first approved by the responsible rating committee.

Once approved, textbooks are purchased under 
contracts between appellees and publishers at a price

21 The following nine states provide free textbooks to private 
schools: California, Connecticut, Louisiana, Mississippi, Nebraska, 
New Jersey, New Mexico, New York, Rhode Island.



21

“not . . . higher than the lowest prices at which the same 
books are being sold elsewhere in the United States 
(§6646(1)). The publishers are required to “maintain a 
depository at a place within Mississippi to be named by 
the Board [Jackson] where a stock of books sufficient to 
meet all reasonable and immediate demands [is] kept” 
(§6641(f)).

Appellees send to each school district (and now each 
private school)22 requisition forms which list all 
textbooks available free through the state. The school 
district or private school completes the requisition form 
and returns it to the Purchasing Board where it is

22Prior to 1970 each County Superintendent o f Education was 
required to requisition textbooks for all schools, public and 
private, geographically located within his county. The requisition 
was then approved by the Textbook Purchasing Board and 
thereafter shipment was made by the School Book Depository 
directly to the consignee specified by the County Superintendent 
of Education.

In 1970 Congress enacted the Emergency School Assistance Act 
appropriating funds to aid school districts converting to unitary 
systems. The act made it unlawful for any recipient to “engage . . . 
in the gift, lease or sale of real or personal property or services to a 
non-public elementary or secondary school or school system 
practicing discrimination on the basis of race, color or national 
origin.” P.L. 91-381, 84 Stat. 806, U.S. Code Congressional and 
Administrative News, September 5, 1970, pp. 3318-3319. Public 
school officials wishing to participate in this federal program were 
forced to disassociate themselves from the private segregationist 
academies. As a result, the Textbook Board, in 1970, established 
new distribution regulations which eliminated County Superin­
tendents as conduits for the distribution of textbooks to private 
academies. The distribution regulations are reproduced in the 
district court’s opinion, footnote 2, Appendix A, pp. 5a-6a, 
Jurisdictional Statement. Norwood v. Harrison, 340 F.Supp. at 
1006.



22

reviewed by the Executive Secretary. After approval, the 
form is sent to the Textbook Depository in Jackson 
which fills the order and ships the textbooks directly to 
the school district or private school. All shipping charges 
are billed to the Textbook Purchasing Board 
(§ §6641(f)).

B. The Extent of Textbook Aid to Private 
Racially Segregated Academies.

Appendix A hereto lists the 107 academies which 
receive textbooks from the State of Mississippi and which 
were found by the district court to have been “formed 
throughout the state since the inception of public school 
desegregation.”

During the 1970-71 school year these academies 
enrolled approximately 34,000 students and held 175,- 
000 volumes costing the state of Mississippi approxi­
mately $490,000. The annual per pupil expenditure 
for new or replacement textbooks approximates $6.00, 
which will result in an annual recurring state expen­
diture for these academies of approximately $207,000. 
The total expenditure for textbooks by the appellee 
board for the 1970-71 school year was $2,819,070 
(Snowden Deposition, Exhibit 12).

The district court found that there are 8,000 students 
enrolled in an additional 41 private segregationist 
academies which do not, at this time, participate in the 
state’s program. Accordingly, an additional $120,000 in 23

23There is, o f course, an additional recurring and significant 
expenditure by the state for the shipment o f textbooks from 
Jackson to private schools (§ 6 6 4 1 (l)(f), Appendix B, Juris­
dictional Statement).



23

initial inventories and $50,000.00 annually thereafter is 
available to private segregationist academies.24

SUMMARY OF ARGUMENT

The provision of state owned textbooks to the private 
segregated academies of Mississippi is in conflict with 
appellee’s affirmative duty to promote racially integrated 
public schools and constitutes significant state aid to 
racial segregation in violation of the Equal Protection 
Clause. Neither the absence of a specific intent by the 
legislature to aid the segregationist academies nor the 
absence of proof that textbook aid is vital to such 
academies relieves the state of its Equal Protection 
obligation not to support segregation.

The lower court’s reliance upon the distinction 
between aid to the student and aid to the school, 
recognized by this Court in First Amendment cases, was 
improper because the standards for reviewing state aid in 
the context of Fourteenth Amendment and First 
Amendment challenges differ substantially.

ARGUMENT

The decision of the court below upholds the action of 
the State of Mississippi in providing financial assistance to 
buy textbooks for pupils attending almost 150 racially 
segregated private schools which were formed to promote 
evasion of public school desegregation in the State. The 
court below held inapplicable prior precedents striking

24 The Executive Secretary testified that the program was not 
administered strictly on a per pupil allotment basis. Rather, they 
sought to provide all textbooks requested and a school could 
exceed its allotment by merely filing a supplemental requisition.



24

down as unconstitutional other forms of state aid to 
these same segregationist academies. It upheld the 
supplying of textbooks, bought with tax money and 
distributed by state officials to these segregationist 
institutions, on the grounds that the state acted under a 
statute which had no racial motive, that the textbook aid 
was not essential to continued operation of the 
segregationist academies, and that similar aid has been 
held consistent with the Establishment of Religion Clause 
of the First Amendment.

We believe that the first ground is legally insufficient. 
The second ground is both incorrect and legally irrelevant 
because the Constitution forbids all public support of 
school segregation. Cooper v. Aaron, 358 U.S. 1, 19 
(1958). The third ground relating to the Establishment 
Clause is not decisive of racial discrimination issues under 
the Equal Protection Clause.25

The State of Mississippi and all of its agencies must be 
guided by their “affirmative” and continuing duty to 
remedy and undo the effects of past racial discrimination 
and convert school systems from dual to unitary 
operation. The provision of free textbooks to academies 
which drain public schools of white students and faculty 
and which thereby frustrate the attainment of fully 
integrated public schools is inconsistent with this 
paramount duty.

In Green v. County School Board o f New Kent 
County, 391 U.S. 430, 437-38, the Court was confronted

25 Relying on Judge Coleman’s opinion in this case, a district 
court in Louisiana has approved state textbook and transportation 
aid for the segregationist academies of that state. Jo Ann Graham, 
v. Evangeline Parish School Board, Civil Action No. 11053, W.D. 
La., July 28, 1972, appeal pending, 5th Cir. No. 72-3033.



25

with the very argument relied upon by the court below. 
There the defendant school board asserted that its only 
duty under the Equal Protection Clause was to adopt a 
neutral stance and permit “every student regardless of 
race . . . [to] ‘freely’ choose the school he will attend.” 
The Court held that the state could not remedy its long 
history of support and encouragement for racial 
segregation by standing neutrally aside. Rather, state 
agencies were charged with an “affirmative” duty to take 
whatever steps might be necessary to convert to a unitary 
system.26

This mandate which commands appellees to align 
themselves unequivocally with public integrated educa­
tion was recently imposed upon the federal government 
in Green v. Kennedy, 309 F.Supp. 1127 (D. D.C. 1970), 
appeal dismissed for want o f jurisdiction, sub nom. 
Cannon v. Green, 398 U.S. 956 (1970); and see Green v. 
Connally, 330 F.Supp. 1150 (D. D.C. 1971), affirmed 
sub nom. Coit v. Green, 404 U.S. 9 97 (1971 ).27 There

26In Swann v. Charlotte-Mecklenburg Board o f Education, 402 
U.S. 1 (1971), the Court again relying upon the state’s duty to 
formulate a meaningful remedy for past policies and practices of 
segregation, upheld the use of a variety o f techniques aimed at 
uprooting an entrenched dual system. In North Carolina Board o f  
Education v. Swann, 402 U.S. 43 (1971), a statute tending to 
interfere with the formulation of a remedy for racial segregation 
was held unconstitutional.

See also United States v. Jefferson County Board o f  Education, 
372 F.2d 836, 869, affirmed en banc, 380 F.2d 385 (5th Cir. 
1967);

“The only adequate redress for a previously overt system-wide 
policy of segregation directed against Negroes as a collective 
entity is a system-wide policy of integration.” (Emphasis in 
original)

27See also Adams v. Richardson, ___  F. Supp. -----  (D. D.C.
1972).



26

the Court was confronted with mere indirect aid to 
private academies and with a neutral statute enacted 
without any discriminatory motive. The Court held on 
motion for preliminary injunction—28that donations to 
segregationist academies of Mississippi could not be offset 
against income as charitable contributions for federal 
income tax purposes because:

Where there is a showing, as here, that a dual system 
of segregated schools was established and main­
tained in the past either under State mandate or 
with substantial help from State involvement and 
support, the State and the school districts are under 
a present, continuing and affirmative duty to 
establish a “unitary, non-racial system of public 
education * * * a system without a ‘white’ school 
and a ‘Negro’ school, but just schools.” * * * The 
Federal Government is not constitutionally free to 
frustrate the only constitutionally permissible state 
policy, of a unitary school system, by providing 
government support for endeavors to continue 
under private auspices the kind of racially segregated 
dual system that the state formerly supported. 
{Green v. Kennedy, 309 F.Supp. 1127 at 1137) 
(Emphasis added).
The affirmative duty principle of Green, supra, 

underlies the recent decisions of this Court holding that 
the constitutionality of a state policy in the context of 
dual school systems is measured by “whether it hinders 
or furthers the process of school desegregation.” Wright 
v. City o f Emporia, 407 U.S. 451 (1972). The same 
affirmative duty principle underlies the decisions of this 
Court holding unconstitutional legislation providing

28The final decision reached the same result on statutory rather 
than constitutional grounds, but the decision has obvious strong 
constitutional overtones. See Coit v. Green, supra.



27

tuition grants for students attending private segregated 
academies. Brown v. South Carolina Board o f Education, 
296 F.Supp. 199 (D. S.C. 1968), affirmed per curiam, 
393 U.S. 222 (1968); Poindexter v. Louisiana Finance 
Commission, 275 F.Supp. 833 (E.D. La. 1967), affirmed 
per curiam, 389 U.S. 571 (1968). See Wallace v. United 
States, 389 U.S. 215 (1967), affirming Lee v. Macon 
County Board o f Education, 267 F.Supp. 458, 475 (M.D. 
Ala. 1967). And relying entirely upon this Court’s 
decisions in Brown and Poindexter, a district court stated 
the rule of law in Griffin v. State Board o f Education, 
296 F.Supp. 1178, 1181 (E.D. Va. 1969):

“ [T] he validity of a tuition plan is to be tried on a 
severer issue: whether the arrangement in any 
measure, no matter how slight, contributes to or 
permits continuance of segregated public school 
education.

*  *  *  *  *

To repeat, our translation of the imprimatur placed 
upon Poindexter by the final authority is that any 
assist whatever by the State towards provision of a 
racially segregated education, exceeds the pale of 
tolerance demarked by the Constitution. In our 
judgment, it follows that neither motive nor purpose 
is an indispensable element of the breach. The effect 
of the state’s contribution is a sufficient determi­
nant. . . .” (Emphasis in original)
Under this test the Court held that the Virginia 

statutes were void:
Indisputably, the State supplies the money; it comes 
from the public treasury; it goes to individual 
residents who may expend it for a segregated 
classroom. Thus, the Virginia payments are made 
available to help in giving life to an educational 
forum decried by the Federal Constitution. . . .



2 8

An absolute and unequivocal prohibition is the 
logical effectuation of the intendment flowing from 
the recent rulings of the Supreme Court. . . .
(Griffin supra, at 1181)

The courts have similarly outlawed a variety of other 
forms of public aid to private racially segregated schools. 
See Wright v. City o f  Brighton, 441 F.2d 447 (5th Cir.), 
cert, denied sub nom. Hoover Academy, Inc. v. Wright, 
404 U.S. 915 (1971); Aaron v. Cooper, 261 F.2d 97 (8th 
Cir. 1958); United States v. Hinds County School Board, 
433 F.2d 598 (5th Cir. 1969). Accord: Blackwell v. 
Anguilla Line Consolidated School Dist., No. 28030 (5th 
Cir., Nov. 24, 1969) (“No abandoned school facility 
under this plan, if any, shall be used for private school 
purposes”); United States v. Covington County School 
Dist., No. 28030 (5th Cir., Dec. 17, 1969) (“It is further 
ordered that the Lincoln Elementary School facility shall 
not be used, leased, or sold for private school purposes”); 
Anderson v. Canton Municipal Separate School Dist. & 
Madison County School Dist., No. 28030 (5th Cir., Dec. 
22, 1969) (rule to show cause why injunction should not 
issue); Lemon v. Bossier Parish School Board, Civ. No. 
10,687 (W.D. La., Sept. 25, 1970) (granting injunction 
against use of public school athletic field for game 
between two private schools; field had been leased by 
Lions Club, sponsor of game); Taylor v. Coahoma County 
School District, 345 F.Supp. 891 (N.D. Miss. 1972); 
Gilmore v. City o f Montgomery, 337 F.Supp. 22 (M.D. 
Ala. 1972).

The proper inquiry, then, is whether state textbook 
aid “contributes to” or “furthers” (Griffin, supra, 
Emporia, supra) public school segregation. The question 
almost answers itself: textbook aid enables private 
segregationist academies operating on the “thinnest



2 9

financial basis” (Coffey, supra, 296 F.Supp. 1389, 1392 
(S.D. Miss. 1969)) to avoid expending sums for a vital 
aspect of their educational programs; it obviously aids the 
segregationist schemes to have textbooks selected, 
purchased and distributed by the State. And it places the 
State’s “power, property and prestige behind the . . . dis­
crimination,” 0Burton v. Wilmington Parking Authority, 
365 U.S. 715, 725 (1961)), thereby frustrating the 
paramount objective of the Fourteenth Amendment.

In the face of these authorities the district court has 
held that, to prevail, plaintiffs must prove textbook aid 
vital to segregationist academies, i.e., that whites would 
return to public schools if only textbooks were 
withdrawn. Norwood v. Harrison, 340 F.Supp. at 1013. 
However, in neither the tuition grant nor tax exemption 
case was there any evidence that whites would return to 
public schools if only such benefits were terminated. In 
fact, segregationist academies persisted after tuition 
grants and tax exemptions were withdrawn. Accord­
ingly, the district court’s standard would argue for the 
restoration of tuition grants and tax benefits to the 
academies of Mississippi. The absurdity of this result and 
the authorities cited above are sufficient answer to the 
test advanced by the district court.

Moreover, the Equal Protection inquiry is not whether 
the state by withdrawing aid can destroy private racial 
discrimination; rather the question is whether the state is 
lending its support to racial discrimination “through any 
arrangement, management, funds or property.” Cooper v. 
Aaron, 358 U.S. 1, 19 (1958). Palmer v. Thompson, 403 
U.S. 217 (1971); Anderson v. Martin, 375 U.S. 399 
(1964); Reitman v. Mulkey, 387 U.S. 369 (1967); Burton 
v. Wilmington Parking Authority, supra; Shelley v. Krae- 
mer, 334 U.S. 1 (1948). Judge Bazelon phrased it thusly 
in holding tax benefits to segregated fraternal orders 
unconstitutional:



3 0

We have no illusion that our holding today will put 
an end to racial discrimination or significantly 
dismantle the social and economic barriers that may 
be more subtle, but are surely no less destructive. 
Individuals may retain their own beliefs, however 
odious or offensive. But the Supreme Court has 
declared that the Constitution forbids the Govern­
ment from supporting and encouraging such beliefs.
By eliminating one more of the “nonobvious 
involvements of the State in private conduct” we 
obey the Court’s command to quarantine racism. 
(Citing Burton, supra.) McGlotten v. Connally, 338 
F.Supp. 448, 462 (D. D.C. 1972).
The district court also upheld Mississippi’s textbook 

statute on the grounds that the statute is neutral on its 
face and devoid of any purpose to aid private 
segregationist academies. But this Court has made it 
abundantly clear that state legislation and policy, 
especially in the field of education and in the context of 
a state converting from dual to unitary operation, must 
be measured by its effect rather than its purpose:

[A] n inquiry into the “dominant” motivation of 
school authorities is as irrelevant as it is fruitless. 
The mandate of Brown II was to desegregate schools 
and we have said that “the measure of any 
desegregation plan is its effectiveness.” . . . Thus, we 
have focused upon the effect—not the purpose or 
motivation—of a school board’s action in deter­
mining whether it is a permissible method of 
dismantling a dual system. The existence of a 
permissible purpose cannot sustain an action that 
has an impermissible effect. Wright v. Council o f the 
City o f Emporia, supra, 407 U.S. 451 (1972). 
(Citing Palmer, supra, 403 U.S. at 225.)



31

The district court’s holding, that aid to students (as 
opposed to schools) shields the state from an Equal 
Protection challenge, is transparent. “ [I]t is the right of 
the State . . .  to make, and not the right of the pupils, 
parents or schools to take” the textbook grants which is 
at issue. Griffin v. State Board o f Education, 239 F.Supp. 
560, 563 (E.D. Va. 1965). All of the tuition grant 
legislation provided grants directly to students and not to 
schools and all such legislation has been held 
unconstitutional by this Court. Although the distinction 
between aid to a student and aid to a school may be 
relevant in the context of aid to parochial education and 
the First Amendment, it finds no support in the Equal 
Protection decisions of this Court.

This Court has never confused or found interchange­
able equal protection and establishment of religion 
standards. Thus, a “federal construction grant to a 
hospital operated by a religious order” is not 
unconstitutional (Tilton v. Richardson, 403 U.S. 672, 
679 (1971) (opinion of the Chief Justice, citing Bradford 
v. Roberts, 175 U.S. 291 (1899), but racial discrimina­
tion by a hospital so constructed is unconstitutional 
(Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 
959, (4th Cir., 1963), cert, denied 376 U.S. 938 (1963). 
And in Lemon v. Kurtzman, 403 U.S. 602, 611. f.n. 5, 
671, f.n. 2, the Chief Justice, speaking for the Court, and 
Mr. Justice White, both recognize that the considerations 
controlling in establishment of religion cases are quite 
distinct from those controlling in equal protection cases.29

29“ [I]f the evidence in any of these cases showed that any of 
the involved schools restricted entry on racial or religious grounds 
. . . the legislation would to that extent be unconstitutional.” 
Lemon, supra, 403 U.S. at 671, f.n. 2.



3 2

Board o f  Education v. Allen, supra, 392 U.S. at 245 
and cognate Establishment Clause cases proceed from the 
premise that “religious schools pursue two goals, religious 
instruction and secular education,” and that the State 
may assist the second so long as it does not thereby 
become entangled in the first. The function of the 
“entanglement” doctrine and the aid “to student vs. 
school” distinction is to identify the line between the 
two missions of a parochial school, and to keep the state 
on the permissible side—the secular side—of the line. But 
education and segregation are inextricably interwoven in 
a school restricted to whites; and there can be no 
permissible role for the State in such a school. 
“Entanglement” doctrines and aid to “student vs. 
school” distinctions are therefore meaningless in an Equal 
Protection Clause context-as a comparison of Allen, 
supra, and Lemon, supra, makes clear. The Court 
distinguished textbooks from teachers in those First 
Amendment cases primarily because a textbook could be 
confined to its secular role but a teacher could not. A 
similar distinction for Equal Protection purposes would 
be inconceivable: state-paid teachers and state-paid
textbooks reserved for whites in a school that excludes 
blacks both violate the Equal Protection Clause i f  either 
does. The rules for First Amendment cases, therefore, 
cannot rationally be mirrored in racial segregation cases; 
the issues are, very simply, noncomparable.

The First Amendment is designed to protect religion: 
it recognizes the value of religion, as nothing in the 
Constitution recognizes any value in racial discrimination. 
Under the First Amendment, the State may no more 
forbid parochial schools than it may establish them; and 
its denial of generally available benefits to parochial 
school students because they attend parochial schools



3 3

would at least trench upon, if it would not invade, Free 
Exercise concerns. Cf. Sherbert v. Verner, 374 U.S. 398 
(1963). This consideration no doubt informs both the 
reference in Allen (392 U.S., at 245-47) to Pierce v. 
Society o f Sisters, 268 U.S. 510 (1925), and Allen's 
conclusion that the “line between state neutrality to 
religion and state support of religion is not easy to 
locate” (392 U.S. at 242).

However, while the State must tolerate religious 
instruction in private educational institutions, it need not 
tolerate racial discrimination by them (cf Allen, supra, 
392 U.S. at 247); and a segregated school-especially one 
providing whites with an alternative to public integrated 
schools-unlike a religious school, can invoke no 
legitimate interest that the State may even acknowledge. 
Moreover, religious schools may well perform, “in 
addition to their sectarian function, the task of secular 
education,” (Allen, supra, 392 U.S. at 248), and thereby 
“serve a ‘public purpose’.” But schools which exclude 
blacks and provide a segregationist alternative to public 
schools serve no public purpose that the Equal Protection 
Clause allows; and an underwriting of any part of then- 
segregated educational function by the State is 
constitutionally forbidden.

In short, the court below was plainly wrong in holding 
that the present case could be resolved by reference to 
Allen and First Amendment principles.



3 4

CONCLUSION

For the foregoing reasons the opinion and judgment ot 
the court below should be reversed and the case 
remanded with instructions to enter an order enjoining 
appellees from distributing textbooks to the private 
segregated academies of Mississippi.

Respectfully submitted,

MELVYN R. LEVENTHAL 
ANDERSON, BANKS, NICHOLS 

& LEVENTHAL 
538% North Farish Street 
Jackson, Mississippi 39202

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305 
Of Counsel



la

APPENDIX A*

PRIVATE NON-SECTARIAN ACADEMIES PARTICIPATING 
IN STATE’S TEXTBOOK PROGRAM1 

1970-71

Name of School2
1. Adams County Christian
2. Adams County Private
3. Amite School Corporation
4. Bearss Academy
5. Beeson, J.A. Academy
6. Benton Academy
7. Bentonia Academy
8. Brandon Academy
9. Brookhaven Academy

10. Calhoun Academy
11. Canton Academy
12. Carroll Academy
13. Central Academy
14. Central Delta Academy
15. Central Holmes
16. Centreville Academy
17. Chamberlain Hunt Academy
18. Chickasaw Academy
19. Children’s Academy (The)
20. Christ Episcopal Day School
21. Citizens School
22. Claiborne Educational Foundation
23. Clarke Academy
24. Clarksdale Baptist
25. College Hill Academy
26. Columbia Academy
27. Copiah Academy
28. Covington School Foundation
29. Cruger-Tchula Academy
30. Deer Creek School
31. East Holmes Academy
32. East Lowndes Academy
33. East Rankin Academy
34. First Baptist Parochial
35. First United Methodist
36. Flowood Academy
37. Four County Academy
38. Gospel Lighthouse Crhistian
39. Gray Academy

Number of Number of
Books Cost to State Students'
3,452 $ 8,918.07 535
2,513 8,327.34 1,006
3,950 11,875.26 581

417 1.146.18 117
1.531 4,229.04 265
3.148 8,432.85 421

874 1,951.35 82
3,912 11,447.46 589
2,675 6,457.74 307

294 655.14 127
8,437 25,506.60 1,225

358 1,084.83 305
1,858 5,329.29 751
1,933 4,878.66 216
3,861 12,787.11 501
3,750 10,295.55 407

829 3,398.82 360
1,420 3,586.17 164

726 2,588.70 148
2,075 5,218.28 265
1.776 4,589.91 255
2,032 4,792.38 253

387 1,478.04 340
2,356 5,937.45 427

513 1,701.51 199
1,514 4.914.35 379
2,472 7,312.20 483

512 1,494.36 75
2,299 7,712.64 438
1,821 5,126.76 496
2,776 7,791.60 619
1,745 5,056.02 247
1,341 3,149.16 180

630 1,499.64 78
1,305 3,029.25 169

443 1,251.93 227
815 1,905.90 76
119 472.95 22

1,320 3,932.43 177

This Appendix is identical to Appendix “D” ol the Jurisdictional Statement except that schools have been 
arranged in alphabetical order.

!This Appendix derives entirely from compilation filed by appellees in the District Court (entered by order 
of District Court, August 9, 1971). (A. 32-37)

2The District Court found that all of the “ church schools” recorded herein are essentially non-sectarian and 
were formed in response to the desegregation of public schools.

All students (and all faculty members) are white except for “ 15 Chinese, 16 Oriental, 2 Indians and 2 Latin 
American" students.



2 a

40. Greenwood Private Jr. High
41. Grenada Lake Academy
42. Happy Day School
43. Heidelberg Baptist Academy
44. Heritage Academy
45. Highway Baptist School
46. Hillcrest Academy
47. Humphreys Academy
48. Indianaola Academy
49. Jackson Academy
50. Jefferson Davis Academy
51. Jesus Name Faith
52. Kemper Academy
53. Kirk Academy
54. Lawrence County Academy
55. Leake Academy
56. Live Oak Academy
57. M & L Academy
58. Magnolia Heights
59. Madison-Ridgeland Academy
60. Manchester Academy
61. Marshall Academy
62. Montgomery Carroll Academy
63. Mount Pleasant Christian Academy
64. Newton County Academy
65. North Central Miss. Schools
66. North Delta Schools, Inc.
67. North Miss. Academy
68. North Sunflower Academy
69. Northwest Academy
70. Oak Hill Academy
71. Paynes Academy
72. Parklane Academy
73. Pearl River Academy
74. Pheba Academy
75. Pillow Academy
76. Pine Hills Academy
77. Pines Academy
78. Pioneer Academy
79. Prentiss Christian Schools
80. Presbyterian Day School
81. Presbyterian Day School
82. Quitman County Educational Foundation
83. Rankin Academy
84. Saint George Episcopal
85. Saint John’s Day School
86. SanFcrd Academy
87. Scott County Christian
88. Sharkey-Issaquena Academy
89. Shaw Educational Foundation
90. Simpson Academy
91. Southwest Academy
92. Southwest Christian Academy
93. Starkville Academy
94. Sylvarena Baptist Academy
95. Terry Academy
96. Tri-County Academy
97. Tunica Institute
98. Union Private
99. Walnut Hills School

1,160 4, 288.95 330
2,523 7, 119.58 381

652 884.73 110
1,993 5, 557.50 295
1,593 4 ,029.81 350
1,304 2, 839.83 104

547 1,495.26 165
3,480 10,000.71 398
7,985 24,029.01 1,209
3,071 6, 652.56 575
1,054 3 ,701.10 356

85 170.70 44
3,849 10,654.85 432

842 3 ,061.74 639
717 2, 149.32 177

2,369 6 ,809.19 500
218 822.21 412
844 2 ,013.18 42

1,930 5, 674.80 228
448 1, 151.01 136

1,004 2, 356.92 550
1,153 3 ,012.36 600

699 1, 629.49 174
1,254 3,498.30 149
887 2 ,046.92 78
723 1, 602.87 67

1,021 3, 373.19 268
442 1,230.96 95

2,243 7, 841.28 626
1,613 4 , 347.15 239
2,348 6,739.17 450
1,288 3, 635.73 96
1,539 3, 887.01 228

660 1, 209.06 104
675 1, 636.14 133

2,453 7,802.87 1,189
1,839 5, 194.44 328

156 404.82 44
438 922.65 45
779 1,975.95 180
264 576.45 135

1,247 2 ,323.11 141
727 3 ,008.91 480

1,510 5, 302.47 284
1,340 2 ,885.54 169
1,130 2 ,465.85 184

787 2 , 277.54 136
2,235 6,325.58 320
1,051 3 , 815.35 664
1,480 4 ,443.00 905
1,266 3 ,427.89 270
1,167 2,649.12 131

564 1, 689.09 361
3,229 9 , 562.77 553
1,671 4 ,255.77 236
1,378 3 ,884.61 157
1,217 4 ,327.71 438
2,189 6 , 851.52 495
1.578 4 , 526.16 202

317 816.42 114



3 a

100. Wayne County School Foundation
101. West Marion Academy
102. Westminister Academy
103. West Panola School
104. West Tallahatchie Academy
105. Wilkinson County Christian
106. Winston Academy
107. Woodland Hills Baptist Academy

TOTALS

814 2,064.21 103
2,073 6,336.78 383

252 773.86 132
1,143 3,134.67 203

666 1,856.85 178
4,002 11,359.74 404
1,781 5,036.76 288
2,279 5,598.42 428

73,424 $490,292.39 34,532



lb

APPENDIX B 1 2

STATEWIDE ENROLLMENTS 

Private
Non-Sectarian Pufo!fg

Total
Change

No. of No. of Schools Opened 
Schools for First Time Change

1963-64 2,362 173 570,000
1964-65 2,408 + 46 21 4 576,000 + 6,000
1965-66 3,841 + 1,433 41 20 583,000 + 7,000
1966-67 5,452 + 1,611 49 8 582,500 -  500
1967-68 6,546 + 1,094 58 9 582,500 —
1968-69 9,064 + 2,518 69 11 581,500 -  1,000
1969-70 30,939 +21,875 124 55 550,500 -31,000
Sept. 1970 42,0002 +11,061 155 31 534,500 -16,000

‘This Appendix derives entirely from an exhibit offered and received into evidence by supplemental order of 
District Court.

2Estimate based on stipulation; the exact figure lies somewhere between 41,000 and 43,000.
3See page 9, f.n. 7, of this brief for a further breakdown of 1963-64 enrollment statistics.