Brief for Defendants-Appellees-Cross-Appellants

     [||546bfa87-5e5a-496c-a295-512386b5ed40||] Appears FROM THE Unrren Sais DistricT Count 

FOR THE NORTHERN DISTRICT © OF Miss SISSIPPI 

BRIEF FOR DEFENDANTS-APPELLEES. 

CROSS- APPELLANTS 

SEMMES LUCKETT 

121 Yazoo Avenue 

Clarksdale, Mississippi 38614 

Attorney for Defendants- 
Appellees-Cross-Appel- 
lants 

BE. L. ManvpexsaALL, ING., 9268 Cherry Street, Kansss Cry. Ma. 64106, HArrison 1-8030 



Foreward .. 

History of the Case 

An Analysis of the Pertinent Facts with Respect to 

This Particular School District, on the Basis of Which 
the Decision As to the Constitutionality or Unconsti- 

tutionality of Its Desegregation Plan Must Be Based 

Defendants’ Desegregation Plan 

The HEW Plan 

The Court’s Plan As Established by Its Order of Jan- 
uary 10, 1970, and Its Result 

The Special Master’s Plan, and the Court’s New Plan, 
As Established by Its Order of May 8, 1970 

Questions Presented for Review . 

The Decisions of the Supreme Court of the United 
States Validate Defendants’ Desegregation Plan, 

Which Creates a System Not Based on Color Distinc- 
tions. They Do Not Require Racial Balance in the 
Schools of Our District 

The Civil Rights Act of 1964 Validates Bona Fide 
Neighborhood School Lines and Prohibits Court 

Orders Intended to Alleviate Racial Imbalance in 
Neighborhood Schools 

De Facto Segregation—Which Occurs Fortuitously 
Because of Housing Patterns—Does Not Make an 
Otherwise Acceptable Desegregation Plan Unconsti- 
tutional 

The District Court Erred in Not Approving Defend- 
ants’ Desegregation Plan and in Imposing the Re- 

quirements of Its Orders of January 10, 1970, and 
May 8, 1970 .. 

Conclusion 

Certificate of Service ... 



II INDEX 

TABLE oF CASES 

Alabama NAACP v. Wallace, 269 F. Supp. 346 ............ 58 

Alexander v. Holmes County Board of Education, ........ 

us, ..... ,24L.F4.2419 ...... 29, 60 

Augustus v. School Board of Escambia County, Florida, 

299 F. Supp. 1069 (N.D. Fla., April 24, 1969) ........... 51 

Bell v. School City of Gary, Ind., 213 F. Supp. 819 ........ 41 

Bell v. School City of Gary, Ind., 324 F.2d 209, cert. 
den. 377 US. 924 121. Ed. 2d 216 ........ 25, 35, 40-41, 46, 55 

Bivins, et al. v. Bibb County Board of Education, (5th 

Cir., Feb. 5, 1970) 49 

Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 
7 SUS JA 00 BA wes. la 

24,27, 28, 29, 30, 39, 40, 56, 57, 60 
Brown v. Board of Education of Topeka, 139 F. Supp. 

468 40 

Carr v. Montgomery County Board of Education, ........ 
PF. Supp. .....-- (N.D. Ala, Feb. 25, 1970) 93 

Deal v. Cincinnati Board of Education, 369 F. 2d 55; 
419 F. 2d 1387 38, 43, 44, 45, 46, 55 

Downs v. Board of Education of Kansas City, 336 F. 2d 
988, cert. den. 380 U.S. 914, 13 L. Ed. 2d 800 ........ 

Orange County, Florida, (5th Cir., Feb. 17, 1970) 
RS A LL 47, 48, 49 

Gilliam v. School Board of the City of Hopewell, Va., 
B48 10. 20 320... cocoieciradereirosnpinninrninsaiinsnirerosbrossnihus 43, 46, 55 

Goss v. Board of Education, 373 U.S. 683, 10 L. Ed. 2d 

Ln ELS Ce DE re 33, 46 

Goss v. Board of Education, City of Knoxville, Tennes- 
see, 406 TF. 2d 1183... nin ttees in donee 45, 46, 55 

Green v. County School Board of New Kent County, 
Va.,.391 US. 430,20 1. Ed. 2d 716 ............ 29, 30, 31, 46, 60 



INDEX III 

Griggs v. Cook, 272 F. Supp. 163 (N.D. Ga., July 21, 

1967), affirmed (5th Cir,) 384 F. 24 705 ............. 50, 55 

Mannings v. Board of Public Instruction of Hills- 

borough County, Fla., 306 F. Supp. 497 (N.D. Fla., 
August 18, 1969) ..... 52 

Monroe v. Board of Commissioners, 391 U.S. 450, 20 L. 
Bd 2d 733 .... 29, 31, 46 

Moses v. Washington Parish School Board, 276 F. Supp. 
834 (E.D. La., Oct. 26, 1967) ws 51, 55 

Plessy v. Ferguson, 163 U.S, 537,41 1. £4. 250 ............ 32,61 

Raney v. Board of Education, 391 U.S. 443, 20 L. Ed. 
2 T2T ci ei En anid 29, 30, 31, 46 

Smith v. St. Tammany Parish School Board, 302 F. 
Supp. 106 (E.D. La., July 2, 1969) . . 52 

Thomie et al. v. Houston County Board of Education, 

(6th Cir., Feb. 5, 1970) BS etal ssh otgnassensnmwnnninuive 49 

United States v. Jefferson County Board of Education, 

372 B.20 836 (Jefferson 1) ...veonecsnniinns 35, 36, 37, 38 

CONSTITUTIONAL PROVISIONS 

AND STATUTES 

Fourteenth Amendment, Constitution of the United 

re SE AR 28, 32,56 

Civil Rishis Act of 1064... ees 25, 26, 35, 36 

Section 401 ...... oh 28, 36 

BECtion 407 ....coirirrcnrerneissineains 28,38, 37 

Section 21)... iil iyeiniisecrsasianiaens 26, 36, 37 



IN THE 

United States Court of Appeals 
FOR THE FIFTH CIRCUIT 

No. 29.165 

REBECCA E. HENRY, ET AL, 

Plaintiffs-Appellants-Cross-Appellees, 

VS. 

THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL. 

Defendants-Appellees-Cross-Appellants. 

APPEALS FROM THE UNITED STATES Di1STRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

BRIEF FOR DEFENDANTS-APPELLEES- 
CROSS-APPELLANTS 

FOREWORD 

This case presents the most important question trou- 
bling the people of this nation, which can be stated in either 
one of two ways: First, does de facto segregation—which 
occurs fortuitously because of housing patterns—make an 
otherwise acceptable desegregation plan unconstitutional ?, 



2 

or Second, is there a constitutional mandate which requires 

the courts to bring about racial balance in the public 

schools of the nation? 

There are some who will contend that an affirmative 

answer has already been given to the question, regardless 

of the way it is phrased. But we submit that the question 

has not been settled, that the Supreme Court of the United 

States, which is the only tribunal that can really settle it, 

has yet to pass on it. Until that is done, we appeal to this 

court—and we use the term advisedly because regardless of 

the decision of the panel which is to hear these appeals in 

the first instance, the losing party will certainly beg the 

whole court for a rehearing—for a prayerful consideration 

of what we have to say herein. For the welfare of millions 

of children is involved in the court’s answer to the question, 

involving, as it does, the basic structure of our public 

schools. 

To those who say that the question has already been 

answered, we call attention to the fact that we are not the 

only ones who take a contrary position. For instance, when 

James E. Allen, former U. S. Commissioner of Education, 

was recently asked the question: “Do you regard de facto 

segregation as unconstitutional?”, he answered, “No.” When 

Robert H. Finch, former Secretary of Health, Education 

and Welfare, was interviewed recently, the gist of his re- 

marks was embraced in these questions and answers: 

“Q. The Supreme Court has never said that you 

have to integrate, has it? 

“A. The Court has never said that segregation 

itself is unlawful—or at least de facto segregation. 



3 

“Q. Have you decided that de facto segregation 

anywhere in the country is unconstitutional? 

“A. No” 

On January 18th of this year, Robert C. Mardian, General 

Counsel for Department of Health, Education and Welfare, 

made an address which included this statement: 

“The issue of ‘neighborhood schools’ and ‘bussing’ 

are closely intertwined with the most important ques- 

tion yet to be decided by our highest court: What 

is a desegregated school? Until this issue is resolved 

we will continue to have differing views as to the future 

of ‘neighborhood schools.’ ” 

In the brief recently filed by the Department of Justice in 

Swann v. Charlotte-Mecklenburg Board of Education, when 

that case was before the Court of Appeals for the Fourth 

Circuit, the question of “whether school boards were ob- 

ligated to overcome purely adventitious, de facto segrega- 

tion,” was described as a “constitutionally unsettled ques- 

tion.” Richard M. Nixon, President of the United States, has 

recently declared: 

“The Court has dealt only in very general terms 

with the question of what constitutes a ‘unitary’ system, 

referring to it as one ‘within which no person is to be 

effectively excluded from any school because of race 

or color.’ It has not spoken definitely on whether or 

not—or the extent to which— ‘desegregation’ may mean 
‘integration.’ 

“In an opinion earlier this month, Chief Justice 

Burger pointed out a number of ‘basic practical prob- 

lems’ which the Court had not yet resolved, ‘including 

whether, as a constitutional matter, any particular 

racial balance must be achieved in the schools; to what 



4 

extent school districts and zones may or must be altered 

as a constitutional matter; to what extent transporta- 

tion may or must be provided to achieve the ends 

sought by prior holdings of this Court.’ 

“In school districts that previously operated dual 

systems, affirmative steps toward integration are a key 

element in disestablishing the dual system. This posi- 

tive integration, however, does not necessarily have to 

result in ‘racial balance’ throughout the system. When 

there is racial separation in housing, the constitutional 

requirement has been held satisfied even though some 

schools remained all-black.” 

Mr. Chief Justice Burger, in the Memphis case referred 

to by Mr. Nixon, said: 

“(W)e ought to resolve some of the basic practical 

problems when they are appropriately presented in- 

cluding whether, as a constitutional matter, any par- 

ticular racial balance must be achieved in the schools; 

to what extent school districts and zones may or must 

be altered as a constitutional matter; to what extent 

transportation may or must be provided to achieve the 

ends sought by prior holdings of the Court.” 

And there are many federal courts, not only on the 

District Court level but also on the Court of Appeals level, 

which are of the opinion that the question is yet to be 

decided, as demonstrated in the cases we will cite to the 

court. 

Surely, everyone will agree that the Constitution of 

the United States should have uniform application through- 

out the nation. There can be no reasonable excuse for 

the defendant school board to be subjected to more 



5} 

stringent requirements than the Memphis School Board. 

If de facto segregation—which occurs fortuitously because 
of housing patterns—does not make an acceptable school 

plan unconstitutional in the school districts of Tennessee, 

for example, it should not do so in the school districts of 

Mississippi. If Tennessee school districts, for example, are 

not required to bring about racial balance in all of its 

public schools, then Mississippi school districts should not 

be required to do so. 

In asking the court not to subject defendant school 

district to more stringent requirements than are imposed 

elsewhere, defendants do not seek an exemption from their 

obligation to provide equal educational opportunities for 

all pupils of the school district, without discrimination on 
account of race, color, religion or national origin. They 

submit that they have fulfilled that obligation by abolish- 

ing their dual zone lines and by formulating a desegrega- 

tion plan on the exact lines called for by Brown, Alexander 

and Green, i.e., a plan whereby compact attendance areas 

or zones, with reasonable, rational and natural bounda- 

ries, are created, and which requires all pupils, without ex- 

ception, to attend the school in the zone wherein he or she 
lives. Their zones are the result of the “normal geo- 
graphic school districting” called for in Brown. Their plan 

achieves “a system of determining admissions to the public 
schools on a nonracial basis,” as required by Brown. Their 

plan creates “a system not based on color distinctions,” 

as commanded by Brown. No person is effectively ex- 

cluded from any of the district’s schools because of race or 

color, in disobedience to Alexander. In other words, the 

schools of the district, to which pupils are assigned by vir- 



6 

tue of their residences and regardless of their race, color, 

religion, or national origin, are “just schools,” as Green 

envisioned they should be. Hence defendants’ desegraga- 

tion plan, since it meets all constitutional requirements, 

as enunciated by the Supreme Court of the United States, 

should be approved by this court, regardless of the racial 

imbalance caused either (1) by the housing patterns of 

the community or (2) by the refusal of whites in the 

mixed neighborhoods of the community to attend the 

schools of the district. 

HISTORY OF THE CASE 

On April 22, 1964, plaintiffs, on behalf of themselves 

and other Negro children similarly situated, brought this 

action wherein they sought, along with certain incidental 

relief, 

1) the establishment of school zones or attend- 

ance areas on a nonracial basis; and 

2) the assignment of pupils to the schools of the 

district on a nonracial basis. 

Defendants did not contest plaintiffs’ right to such 

relief. They proceeded to do that which plaintiffs had 

petitioned them to do, in the manner required by Brown, 

i.e., by, first, abolishing their dual zone lines, and then by 

adopting a desegregation plan which calls for compact at- 

tendance areas or zones, with reasonable, rational and nat- 

ural boundaries, and which includes the requirement that 

all pupils, without exception, attend the school in the zone 

wherein he or she lives, thereby basing their admission 

policy on residence and not on race. 



7 

After hearings in the district court, and after the pair- 
ing of two elementary schools to meet plaintiffs’ objections 
to the line which divided the zones served by them, de- 
fendants’ desegregation plan was approved by an order of 
the district court dated December 13, 1965. 

Plaintiffs appealed to this court from the district 
court’s order of December 13, 1965. Hearing of the appeal 
was expedited so that it would be, and was, argued along 
with the Jefferson cases, in April of 1966. However, it was 
not decided along with the Jefferson cases; probably be- 
cause they were “freedom-of-choice” cases. 

No action was taken on the appeal for almost three 
years. It was not until March 6, 1969, that this court handed 
down its opinion herein. On that same day it handed down 
its judgment, which read as follows: 

“It is now here ordered and adjudged by this 
Court that the judgment of the said District Court 
in this cause be, and the same is hereby, remanded 
to the said District Court for entry of a judgment or 
further proceedings consistent with the opinion of this 
Court.” (Emphasis supplied.) 

Attention is directed to the fact that the judgment of 
the district court was not reversed by the judgment of this 
court. Had it been, the judgment of this court would have 
begun— 

It is now here ordered and adjudged by this court 
that the judgment of the District Court in this cause 
be, and the same is hereby reversed; 

and then would have proceeded to its conclusion. 



8 

The conclusions of this court with respect to defend- 

ants’ desegregation plan were summed up in these state- 

ments of the court: 

“At the time this case was tried Clarksdale still 

had segregated schools. A long time has elapsed 

since the trial, partly because this Court delayed 

rendering its decision in order to obtain further en- 

lightenment from the Supreme Court on the subject 

of attendance zone plans as against freedom of choice 

plans. In view of the delay, we believe that the in- 

terests of justice require that the case be remanded 

for a hearing to determine the effectiveness of the 

Clarksdale plan in today’s factual setting and in the 

light of Green and other decisions of the Supreme 

Court and of this Court.” (Emphasis supplied.) 

Defendants sought, unsuccessfully, to have the March 

6, 1969, decision of this court reviewed by the court en 

banc. It also sought to have the decision reviewed by the 

Supreme Court of the United States, but their petition 

for writ of certiorari was denied. 

When the case again came on for hearing before the 

district court, the court had before it defendants’ desegre- 

gation plan and a plan developed by the United States 

Office of Education, Department of Health, Education and 

Welfare, which the court had had prepared. After hear- 

ing the evidence with respect to them, the district court 

was forced to recognize defendants’ plan as fundamen- 

tally sound. 

“The board’s plan that has evolved has, from the 

very beginning, had certain basic merit in that the 



9 

seven elementary schools, structured on grades one to 
six, are located throughout the different parts of the 
city and they serve areas in which most of the children 
of grades one to six are able to walk to school for dis- 
tances of less than a half a mile. These buildings 
were built, apparently, with that thought of conve- 
nience in mind. They have been structured grades one 
to six because that seems to be the overwhelming 
educational philosophy in the United States, that a six 
grade elementary school is superior to one of a dif- 
ferent grade structure. Not that that is always the 
case, but that seems to be the overwhelming point of 
view. 

“Other advantages deemed to flow from that 
grade structure relate to teaching practices, including 
the ability to check on the child’s progress during 
those critical years, the advantages of having a child 
in conditions with which he is familiar and to which 
he develops an early attachment without being shifted 
too often too soon. 

“The board’s plan as regards the grades one to six 
is based on all of those obvious considerations, as well 
as the boundaries, the natural boundaries, the rail- 
roads, the rivers, and the other obstacles, the traffic 
hazards that have been referred to in this evidence. 

“The city has no public transportation facilities 
that operate on a schedule basis. The district does 
not provide school buses and is without funds to fur- 
nish that facility. This Court knows from observation 
that these children in these elementary grades by and 
large walk to their schools and do not ride. 



one 

10 

“The grades seven, eight and nine are recognized 

in the Clarksdale schools and given the intermediate 

junior high school treatment, or at least they are in 

part. There are many educational advantages in this. 

Here again the board, by the location of its schools, 

has recognized that there is due an increase in the 

walking or travel area over that of the grade school 

by trying to locate the junior highs within one and a 

half miles of the residence of the children attending 

the junior high. Until fairly recent years there was 

one junior high north of the tracks and one south of 

the tracks, and then the Riverton was added south of 

the tracks. 

“The district operates two traditionally dual type 

high schools, with the thought that children of the 

grade age could safely travel up to two miles to attend 

high school. These two high schools, the Clarksdale 

High School and the Higgins High School, are about 

two miles apart.” 

The district court could fault defendants’ plan fo
r only 

thing: it had not produced racially balanced schools. 

“The one defect in that concept is that it hasn’t 

produced an acceptable degree of integration.
 If it had, 

why, that would be an ideal plan.” 

In assessing the HEW plan, the district court fou
nd its 

proposals for the district’s elementary schools to 
border on 

the indefensible and beyond the rule of reason. 

«Under the HEW proposal one of the most seriou
s 

objections is that the walking distance for children 

in grades one to six will be increased to two m
iles or 

more, as against the present average of a
pproximately 

a half a mile. That is a serious factor that rises above 



11 

the role of inconvenience and borders almost on the 
indefensible. I am sure that more study could improve 
that situation. The evidence in the case is that to re- 
cast these grade schools in line with the HEW plan 
would result in great obstacles and great discomfort of 
the children attending school from a purely physical 
standpoint. It would place an undue burden on their 
parents if the grade schools were restructured at this 
time in the light of the HEW proposal. It does seem 
that, while it is necessary to achieve desegregation, a 
better plan could be devised than one which would make 
one child go to three schools to get to the sixth grade. 
That seems to be segmenting it beyond the rule of rea- 
son.” 

The district court, apparently being of the opinion that 
it was foreclosed by this court’s opinion and order of 

March 6, 1969, from approving defendants’ plan in toto, 

thereupon (on January 10, 1970) drew up its own plan, a de- 

scription of which is to follow. It also, “because of the un- 
usual complexities of the Clarksdale school situation, partic- 
ularly due to the location of its various elementary schools,” 
appointed a Special Master “to make full study and proper 
recommendations for student desegregation in all grades 
for the 1970-71 school year as a result of all relevant data.” 

As a result of the decision of the Supreme Court in 

Carter v. West Feliciana Parish School Board, the district 

court’s plan became effective February 2, 1970. Loss of 378 

of the district’s 381 white 7th and 8th grade pupils was 

only the most visible disaster flowing from the implemen- 

tation of the plan. 

After the Special Master had made his study and sub- 

mitted his recommendation, a further hearing was held in 



12 

the district court, with the result that on May 8, 1970, the 

court made certain changes in the plan set forth in its order 

of January 10, 1970. 

Both plaintiffs and defendants are dissatisfied with 

the court’s plan, not only as it was set forth in the order 

of January 10, 1970, but as changed in the order of May 8, 

1970, and the controversy is now before this court for de- 

termination. 

AN ANALYSIS OF THE PERTINENT FACTS WITH RE- 

SPECT TO THIS PARTICULAR SCHOOL DISTRICT, 

ON THE BASIS OF WHICH THE DECISION AS TO THE 

CONSTITUTIONALITY OR UNCONSTITUTIONALITY 

OF ITS DESEGREGATION PLAN MUST BE BASED 

It is axiomatic that since every school district is dif- 

ferent from every other school district and has its own 

peculiar problems—growing out of differences in size, 

shape, topography, the location and adequacy of its facil- 

ities, the number and location of its pupils, the availability, 

or lack of availability, of transportation, the financial re- 

sources upon which it is entitled to draw—its desegrega- 

tion plan “must be assessed in the light of the circumstances 

present.” That is so whether the desegregation plan has 

been formulated along the lines commanded by Brown, i.e. 

by a “revision of school districts and attendance areas in- 

to compact units to achieve a system of determining ad- 

mission to the public schools on a nonracial basis,” as de- 

fendants have understood, or whether the desegregation 

plan should have been formulated so as to bring about “ra- 

cial balance” in each of the schools of the district, as plain- 

tiffs contend. Hence we call attention to the pertinent 

facts with respect to this particular school district. 



13 

Clarksdale is a town of approximately 25,000 inhabi- 
tants. It is bisected by the railroad tracks of the Illinois 
Central Railroad Company which run in an easterly and 
westerly direction from the northeastern to the southwest- 
ern corner of the town, dividing it into approximately equal 
northerly and southerly halves. Accentuating the division 
of the residential areas of the town made by those railroad 
tracks is the fact that throughout a good portion of the 
town the lands adjacent to both the northerly and southerly 
side of those railroad tracks are occupied by commercial 
and industrial establishments. Also adding to such divi- 
sion is the fact that those railroad tracks, located as they 
are in a town situated in the flat lands of the Yazoo-Mis- 

sissippi Delta, are on an embankment. With but one ex- 
ception (which is where Sunflower Avenue crosses over 
the tracks), no one can cross those railroad tracks from one 
residential area to another except through an underpass. 

And throughout the length of those railroad tracks as they 
pass through Clarksdale—some three and a half miles— 
there are but four underpasses, with but one west of the 
Sunflower River and that one right next to the river. (See 
maps.) 

The southerly half of the town is bisected almost 
equally by the railroad tracks of the Illinois Central Rail- 
road Company which run in a southerly direction from 
Clarksdale to Jackson and are referred to in the plans as 
running from Clarksdale to Mattson. Those tracks, which 
create a southwest quadrant and a southeast quadrant, are 
not elevated and one can cross over at grade level at al- 

most every intersection. 



14 

The northerly half of the town is bisected by the Sun- 

flower River. The central business district of the town is 

in the northerly half of the town east of the river. There 

are two bridges over the river in that section of the town 

(just as there are two bridges over the river in the south- 

erly half of the town) which enable those elementary 

school pupils who live in the northeast quadrant of the town 

and north of First Street to pass over into the northwest 

quadrant of the town (which is entirely residential) without 

passing through the central business district. (See maps.) 

Prior to the time defendants’ desegregation plan was 

formulated, the district’s facilities included— 

1) A high school north of the east-west railroad tracks 

which was adequate—but not more than adequate—for 

those high school pupils who lived north of those railroad 

tracks. 

2) A more than adequate high school south of those 

railroad tracks which was modern in every particular— 

much more so than the high school north of the tracks— 

for those high school pupils who lived south of those rail- 

road tracks. 

3) A junior high school north of those railroad tracks 

which was also adequate, although obsolete, for those junior 

high school pupils who lived north of those railroad tracks. 

4) A modern and adequate junior high school south 

of those railroad tracks for those junior high school pupils 

who lived south of those railroad tracks. Now there are two. 

5) Two modern elementary schools in the southwest 

quadrant of the town which could adequately tak
e care 

of the pupils in that neighborhood. 



15 

6) Three elementary schools in the southeast quad- 
rant of the town—one quite modern—which could ade- 

quately provide for the pupils in that neighborhood. 

7) Three elementary schools in the northwest quad- 
rant of the town. The northeast quadrant had none. 

The district now has the same facilities as it had when 
its desegregation plan was formulated, with the exception 

of the additional junior high school south of the tracks, al- 
though some of them are now being used, pursuant to the 

directions of the trial court, in a manner different from 

then. 

Racially, Clarksdale is almost evenly divided between 

Negroes and whites, and, of course, as in all other towns 

and cities where there is a bi-racial population there is an 
uneven distribution of the races throughout the community. 
A majority of the whites live north of the east-west rail- 

road tracks. Practically all of the Negroes live south of 

those tracks. But there are sizable areas where the races 
are mixed. Both Sub-District S-1, which is the High 
School district south of those tracks, and Sub-District J-1, 

which is the Junior High School district south of those 

tracks, have a substantial amount of racial mixture in 

their population. In Zone E-2-B, which is served by the 

Riverton Elementary School, about half of the area is com- 

posed of white residences and a considerable proportion of 

the population is white. In the consolidated Zone E-1-B, 
which is served by Myrtle Hall Elementary Schools I and 

II, there is a substantial number of whites. Zone E-1-A, 

which is served by the Oliver Elementary School, has a 

considerable number of whites among its predominantly 

Negro population. 



16 

DEFENDANTS’ DESEGREGATION PLAN 

This is the first school desegregation case brought in 

the Northern District of Mississippi. It was begun April 

22, 1964, by the filing of a complaint, accompanied by a 

motion for a preliminary injunction, wherein plaintiffs, on 

behalf of themselves and other Negro children similarly 

situated, demanded, among other things— 

a) the end of all racial designations and consid- 

erations in the budgets, expenditures, programs, pol- 

icies and plans of the school district; 

b) the establishment of school zones or attend- 

ance areas on a nonracial basis; and 

¢) the assignment of pupils to the schools of the 

school district on a nonracial basis. 

Defendants did not question the right of plaintiffs to 

such relief. Nor did they seek to avoid their responsibil- 

ities under Brown by taking refuge in the “freedom-of- 

choice” approach then being utilized almost universally 

throughout the South but which was clearly not the method 

for operating schools called for by Brown. Instead, they 

faced up to their responsibilities under Brown by, first, 

abolishing their dual zone lines, and then by adopting a 

desegregation plan which calls for compact attendance 

areas or zones, with reasonable, rational and natural bound- 

aries, and which includes the requirement that all pupils, 

without exception, attend the school in the zone wherein 

he or she lives—thus basing their admission policy on resi- 

dence and not on race. By their plan every white pupil 

in a racially mixed neighborhood was, and is, assigned 



17 

by virtue of his or her residence to a formerly all-black 
school. 

Specifically, defendants’ desegregation plan calls for 
the establishment of two high school sub-districts and two 
junior high school sub-districts, with the east-west railroad 
tracks the dividing line between the sub-districts. (See 
maps.) And it calls for the establishment of two elemen- 
tary sub-districts south of the east-west railroad tracks, 
with the north-south railroad tracks of the Illinois Central 
Railroad Company as the dividing line between them, and 
with each of those sub-districts divided into attendance 
areas or zones; the southwest quadrant into two attendance 
areas or zones, with an elementary school in each of those 
attendance areas or zones; and the southeast quadrant into 
two attendance areas or zones, with an elementary school 
in each of those attendance areas or zones. (See maps.) 

(Originally, defendants’ desegregation plan called for 
the southeast quadrant to be divided into three attendance 
areas or zones, with an elementary school in each of those 
attendance areas or zones, but a controversy developed 
over the dividing line between two of those three at- 
tendance areas or zones and so defendants, to meet that 
problem, simply merged the two attendance areas or zones 
into one and “paired” the elementary schools in that con- 
solidated zone.) 

Defendants’ desegregation plan also calls for two 
elementary sub-districts in the northerly half of the town, 
with Sunflower River as the dividing line between them; 
divides the northwest quadrant of the town into three at- 
tendance areas or zones, with an elementary school located 



18 

in each of them; and provides that those elementary school 

pupils in the northeast quadrant of the town (where there 

was no elementary school) can—for the present—attend 

either Oakhurst Elementary School (the easternmost ele- 

mentary school in the northwest quadrant) or Eliza Clark 

School (the northernmost elementary school in the south- 

east quadrant). 

THE HEW PLAN 

The HEW Plan, which was before the court when it 

handed down its orders of January 10, 1970, and May 8, 

1970, calls for 

a) A single high school, to serve grades 9-12 and to 

be located at the Higgins Sr.-Jr. High School and 

Oliver Elementary School complex. 

b) A single junior high school, to serve grades 7-8 

and to be located in the Clarksdale Sr.-Jr. High 

School buildings. 

c¢) The retention of Booker T. Washington Elementary 

School, to serve grades 1-6 in its neighborhood. 

d) The conversion of Heidelberg Elementary School 

from a school serving grades 1-6 in its neighbor- 

hood to a school serving grades 3-4 in its neigh- 

borhood and in the neighborhoods served by Kirk- 

patrick Elementary School and Riverton Ele- 

mentary School. 

e) The conversion of Kirkpatrick Elementary School 

trom a school serving grades 1-6 in its neighbor- 

hood to a school serving grades 5-6 in its neigh- 

borhood and in the neighborhoods served by Hei- 

delberg Elementary School and Riverton Ele- 

mentary School. 



19 

f) The conversion of Riverton Elementary School 
from a school serving grades 1-6 in its neighbor- 
hood to a school serving grades 1-2 in its neighbor- 
hood and in the neighborhoods served by Heidel- 
berg Elementary School and Kirkpatrick Ele- 
mentary School. 

g) The conversion of Oakhurst Elementary School 
from a school serving grades 1-6 in its neighbor- 
hood to a school serving grades 4-6 in its neigh- 
borhood and in the neighborhood served by Myrtle 
Hall Elementary School. 

h) The conversion of Myrtle Hall Elementary School 
from a school serving grades 1-6 in its neighbor- 
hood to a school serving grades 1-2 in its neigh- 
borhood and in the neighborhoods served by Oak- 
hurst Elementary School and Oliver Elementary 
School. 

i) The conversion of Riverton Junior High School 
from a school serving grades 7-9 in its neighbor- 
hood to a school serving grades 3-6 from the neigh- 
borhood served by Oliver Elementary School and 
grade 3 from the neighborhoods served by Oak- 
hurst Elementary School and Myrtle Hall Ele- 
mentary School. 

THE COURT’S PLAN AS ESTABLISHED BY ITS ORDER 

OF JANUARY 10, 1970, AND ITS RESULT 

On January 10, 1970, the district court, with defend- 

ants’ desegregation plan and a plan developed by the 

United States Office of Education, Department of Health, 

Education and Welfare, at the instance of the district court, 

before it, chose to adopt a plan of its own, the salient fea- 

tures of which were as follows: 

(a) A single senior high school was established 
in the buildings that constituted the Clarksdale Senior 



20 

and Junior High Schools, made up as follows: grades 

10, 11 and 12 from Higgins Senior High School and 

Clarksdale Senior High School, and also the then 9th 

grade in Clarksdale Junior High School. 

(b) A single junior high school was established 

in the buildings that constituted Higgins Jr.-Sr. High 

School and the Oliver Elementary School, made up 

as follows: Grades 7, 8 and 9 from Riverton Junior 

High School, Higgins Junior High School and grades 

7 and 8 from Clarksdale Junior High School. 

(c) Elementary pupils in grades 1 through 6 pres- 

ently attending Oliver Elementary School, who were 

displaced by the above assignment, were assigned 

either to Myrtle Hall Elementary School or Riverton 

Junior High School in accordance with proximity of 

students’ residence. 

(d) The remainder of the elementary schools, 

grades 1 through 6, remained unchanged. 

In simple terms, the court consolidated the districts 

two high schools and three junior high schools, with the 

exception of the 9th grade at Clarksdale Junior High 

School. That grade, because there was not sufficient 

space at Higgins Sr.-Jr. High School and Oliver Elemen- 

tary School complex to accommodate all of the district’s 

junior high school pupils, had to be left at Clarksdale Sr.-Jr. 

High School. The Oliver Elementary School children who 

were dispossessed by the consolidation were assigned to 

two other elementary schools. 

As a result of the decision of the Supreme Court in 

Carter v. West Feliciana Parish School Board, the court’s 

plan became effective February 2, 1970. Implementation 



21 

of the plan had the effect of eliminating all of the ad- 
vantages of the neighborhood school concept for many of 
the pupils of the district. Among other things, it— 

a) unnecessarily forced the elementary pupils 
who formerly attended Oliver Elementary School to 
walk or travel excessive distances in order to get to 
and from school, at considerable inconvenience to 
themselves or their parents and at considerable hazard 
to their safety; 

b) unnecessarily forced the junior high school 
pupils who formerly attended Riverton Junior High 
School to walk or travel excessive distances in order 
to get to and from school, at considerable inconven- 
ience to themselves or their parents and at consider- 
able hazard to their safety; 

c) unnecessarily forced the 7th and 8th grade 
junior high school pupils who formerly attended 
Clarksdale Junior High School, if they continued to 
attend a junior high school of the district, to walk or 
travel excessive distances in order to get to and from 
school, at considerable inconvenience to themselves 
or their parents and at considerable hazard to their 
safety. As a matter of fact, of the 378 7th and Sth 
grade junior high school pupils who attended Clarks- 
dale Junior High School during the fifth month of the 
1969-70 school year, all but three chose to withdraw 
from school rather than attend school under said 
plan; 

d) unnecessarily forced the senior high school 
pupils who formerly attended Higgins High School 
to walk or travel excessive distances in order to get 
to and from school, at considerable inconvenience to 
themselves or their parents and at considerable haz- 
ard to their safety. 



22 

THE SPECIAL MASTER'S PLAN, AND THE COURT'S 

NEW PLAN, AS ESTABLISHED BY ITS ORDER 

OF MAY 8, 1970 

In its order of January 10, 1970, the district court, 

“pecause of the unusual complexities of the Clarksdale 

school situation, particularly due to the location of its 

various elementary schools,” appointed a Special Master 

“to make full study and proper recommendations for 

student desegregation in all grades for the 1970-71 school 

year as a result of all relevant data,” and in connection 

therewith directed the Special Master to confer with and 

consider suggestions by the School Board, the United 

States Office of Education, Department of Health, Educa- 

tion and Welfare, and the bi-racial advisory committee 

created by the order. 

On March 11, 1970, the Special Master submitted A 

Plan for the Continued Operation of the Clarksdale Munic- 

ipal Separate School District of Clarksdale, Mississippi. 

Objections thereto were thereafter filed by both plain- 

tiffs and defendants. After a hearing, the district court, 

by its order of May 8, 1970, overruled such objections and 

incorporated the recommendations of the Special Ma
ster 

into its order of that date. By that order, “the prior order 

of this court with respect to public school desegregation
 en- 

tered January 10, 1970, (was) supplemented and am
ended 

to provide for student desegregation to be instituted
 in all 

of the district schools effective September 1970, and to 

continue thereafter until further order of this court as 

follows: 



23 

“(a) A single senior high school, to be known 
as Clarksdale High School, shall be constituted for all 
students enrolled in grades 10, 11 and 12, in the build- 
ing complex consisting of Bobo, Elizabeth Dorr, the 
Annex and supplemental units, located at 100 Second 
Street. (These buildings formerly housed the Clarks- 
dale Sr.-Jr. High School.) 

“(b) A single junior high school, to be known as 
Clarksdale Junior High School, shall be constituted for 
all students enrolled in grades 8 and 9 in the buildings 
known as the Higgins Junior-Senior High School Com- 
plex. 

“(c) All students enrolled in grade 7 shall attend 
the building known as Riverton Junior High School, 
which shall be known as Riverton Intermediate School. 
The Intermediate School shall be a part, and subject 
to the administration, of the Clarksdale Junior High 

School. 

“(d) All students enrolled in grades 1-6 shall be 
assigned to elementary schools: Heidelberg, Kirk- 

patrick, Oliver, Oakhurst, Myrtle Hall, Riverton and 
Washington, nearest each student’s residence, regard- 
less of zone, present or previous racial enrollment of 

the school. In case the capacity of any school is ex- 

ceeded, the student shall then attend the school next 

nearest his residence, regardless of any zone line, pres- 

ent or previous racial enrollment; provided, however, 

that the attendance of any child at the school nearest 

his residence is subject to a paramount, absolute right 

ordered for any student transferring in accordance 

with the next paragraph of this order. 

“(e) Any student transferring from an elemen- 

tary school, the majority of whose students are of his 



24 

same race, to another elementary school, the majority 

of whose students are of a different race, shall be 

granted an absolute right for transfer, regardless of 

space, and his right to transfer shall not be depend- 

ent upon available space. Any student thus displaced 

from an overcrowded school must attend the next near- 

est elementary school.” 

In addition, defendants were ordered “to appoint a 

Director of Elementary School Desegregation, who shall 

serve as the coordinator and promoter of inter-school ac- 

tivities among and between the elementary schools, and 

such person shall be charged solely with duties relating to 

inter-grade school operation and activities. The Director 

shall be charged with the responsibility for preparing an 

effectual and purposeful exchange program among and be- 

tween children attending the various elementary schools.” 

The biracial committee created by the court’s order of 

January 10, 1970, was continued in existence. 

QUESTIONS PRESENTED FOR REVIEW 

In Brown I and Brown II (347 U.S. 483, 98 L. Ed. 873; 

349 U.S. 294, 99 L. Ed. 1083), the Supreme Court called for 

the cessation of the practice of segregating children solely 

on the basis of their race, and the establishment of sys- 

tems whereby the admissions of children to public schools 

would be determined on a nonracial basis. In spelling out 

how those objectives could be accomplished, it authorized 

the revision of school districts and attendance areas, with- 

in the limits set by normal geographic school districting, 

into compact units, to bring about a system mot based on 



25 

color distinctions. In addition, the Congress and the Pres- 
ident of the United States, through the enactment of the 
Cwil Rights Act of 1964, placed their approval on the hold- 
ing of the Court of Appeals for the Seventh Circuit in Bell 
v. School City of Gary, Ind., 324 F.2d 209 (certiorari de- 

nied 377 U.S. 924, 12 L. Ed. 2d 216) wherein the fact of de 

facto segregation which fortuitously resulted from housing 
patterns was held not to invalidate a school system de- 

veloped on the neighborhood school plan, honestly and 
conscientiously constructed with no intention or purpose to 

segregate the races. Consequently, a desegregation plan 
such as defendants’ desegregation plan which provides for 

the creation of attendance areas or zones fairly arrived at, 
bounded by natural, nonracial monuments which defines, 

in truth and in fact, true neighborhoods, and directs that 
all children living in an attendance area or zone, without 
exception should attend the appropriate school in his or her 
attendance area or zone, is in accord with both Brown and 

the Civil Rights Act of 1964, even though some of the at- 
tendance areas or zones are populated, as a result of housing 
patterns in the community, with people of one race. 

Yet despite the fact that when this Court spoke in 
Brown of attendance areas, it said that such areas should 

be “compact units” constructed “within the limits set by 
normal geographic school districting,” and when it spoke 
in Brown of the type of school system which should be 

created, it said that such system should be “a system not 
based on color distinctions,” and when it spoke in Brown 

of admission policies which should be achieved, it said that 
admissions of children to public schools should be on “a non- 



26 

racial basis,” and despite the fact that the thrust of Bell— 

“which was that if school districts were drawn without 

regard to race, . . . those districts are valid even if there 

is racial imbalance caused by discriminatory practices in 

housing”—was written into the Civil Rights Act of 1964, and 

despite the provisions of Sections 401, 407 and 410 of the 

Civil Rights Act of 1964, wherein school districts were au- 

thorized to assign students according to their residences 

and courts were prohibited from shifting students in order 

to achieve racial balance, the district court believed, and 

acted on such belief when it consolidated defendants’ 

senior high schools and junior high schools for no other 

reason than to create a “racial balance” in those schools, 

that defendants’ zone lines, to be valid, had to be gerry- 

mandered, and that the district’s secondary schools had 

to be consolidated, in order to alleviate racial imbalance 

resulting from housing patterns. 

We submit: 

1. That de facto segregation which occurs fortui- 

tously because of housing patterns does not render an 

otherwise acceptable desegregation plan unconstitutional; 

9. That the Fourteenth Amendment to the Constitu- 

tion of the United States does not require a school district 

to gerrymander its attendance area or zone lines so as to 

include pupils of a certain race within an attendance area 

or zone, who would not be included therein if its attendance 

area or zone lines were drawn in a reasonable, rational and 

nonracial fashion; and 

3. That the courts, in view of the provisions of the 

Civil Rights Act of 1964, do not have authority to issue 



27 

orders seeking to achieve a racial balance in neighborhood 
schools. 

The question which inheres in those statements can 

be stated in either one of two ways: 

1. Does de facto segregation—which occurs fortui- 

tously because of housing patterns—make an otherwise ac- 

ceptable desegregation plan unconstitutional? 

2. Is there a constitutional mandate which requires 
racial balance in the public schools of the nation? 

In addition, we have in this case the question: 

3) Does a district court have the authority to direct 

the employment of school personnel and define the duties 

of such personnel? 

THE DECISIONS OF THE SUPREME COURT OF THE 
UNITED STATES VALIDATE DEFENDANTS’ DESEG- 
REGATION PLAN, WHICH CREATES A SYSTEM NOT 
BASED ON COLOR DISTINCTIONS. THEY DO NOT 
REQUIRE RACIAL BALANCE IN THE SCHOOLS OF 

OUR DISTRICT 

In Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 

873; 349 U.S. 294, 99 L. Ed. 1083, the Supreme Court of the 

United States directed the “revision of school districts and 

attendance areas into compact units to achieve a system 

of determining admission to the public schools on a non- 
racial basis.” 

The sort of attendance areas which the court had in 

mind was indicated in one of the questions propounded 

for reargument as attendance areas resulting from 

“normal geographic school districting.” 



28 

In fashioning their desegregation plan, defendants car- 

ried out those directives of Brown. They revised their 

school district and attendance area into compact units, by 

establishing compact attendance areas or zones with rea- 

sonable, rational and natural boundaries, free of any ef- 

forts at gerrymandering, and they achieved a system of 

determining admissions to the public schools on a non- 

racial basis, by requiring that all pupils, without excep- 

tion, attend the school in the zone wherein he or she lives. 

It is true that little racial mixing in the schools of the 

district resulted from the operation of defendants’ de- 

segregation plan. Two reasons, for neither of which are 

defendants responsible, brought about that result. The 

first, of course, is the housing patterns which exist in the 

community. The second was the refusal of the white 

pupils who lived in our racially mixed neighborhoods to 

continue in our schools after they had been assigned, by 

reason of their residences, to formerly all-black schools. 

But Brown did not command racial mixing in public 

schools. It outlawed segregation of children in public 

schools solely on the basis of race, and it directed school 

boards “to achieve a system of determining admission to 

the public schools on a nonracial basis.” 

That the systems to be created pursuant to its direc- 

tions should be free of racial considerations was made clear 

by the Court in one of the questions propounded for rear- 

gument when it described the sort of system it desired as— 

“a system not based on color distinctions.” 



29 

The mandate of Brown clearly was— 

a) To cease the practice of segregating children solely 
on the basis of race; 

b) To revise school districts and attendance areas “in- 
to compact units;” 

c) “To achieve a system of determining admissions 
to the public schools on a nonracial basis;” and 

d) To create “a system mot based on color distine- 
tions.” 

The next time the court spoke to this point was when, 
in deciding Alexander v. Holmes County Board of Educa- 
ton, ....... US, in , 24 L. Ed. 2d 19, it said, in the first 
paragraph of its order: 

“The Court of Appeals’ order of August 28, 1969, 
is vacated, and the cases are remanded to that court 
to issue its decree and order, effective immediately, 
declaring that each of the school districts here in- 
volved may no longer operate a dual school system 
based on race or color, and directing that they begin 
immediately to operate as unitary school systems 
within which no person is to be effectively excluded 
from any school because of race or color.” (Emphasis 
added.) 

Cases such as Green v. County School Board of New 
Kent County, Va., 391 U.S. 430, 20 L. Ed. 2d 716; Raney v. 
Board of Education, 391 U.S. 443, 20 L. Ed. 2d 727; and 
Monroe v. Board of Commissioners, 391 U.S. 450, 20 L. Ed. 
2d 733, did not bear on this point because they were “free- 
dom-of-choice” cases wherein the question presented was 
whether, and on what conditions, the defendant district 
would be permitted to operate its schools by a method de- 



30 

signed to avoid the zoning requirements of Brown. Such 

question is, of course, vastly different from the question
 of 

whether a district organized and operating under an at- 

tendance area plan in accordance with the require
ments 

of Brown can ignore the race of its pupils in creatin
g its 

attendance areas or zones, or has to take the race 
of its 

pupils into account when creating its attendance area
s or 

zones. 

In Green, according to this court— 

“The question for decision (was) whether, under 

all the circumstances here, respondent School Board
’s 

adoption of a ‘freedom-of-choice’ plan which allows
 a 

pupil to choose his own public school constitutes ad
e- 

quate compliance with the Board’s responsibility ‘to 

achieve a system of determining admissions to the 

public schools on a nonracial basis. . . Si 

That the answer to that question did not depend on 

facts which are present in zone cases such as this, is
 amply 

shown by this paragraph from the court’s opinion:
 

“There is no residential segregation in the county
; 

persons of both races reside throughout. The school 

system has only two schools, the New Kent sch
ool on 

the east side of the county and the George W. Wa
tkins 

school on the west side. . . . The School Board operates 

one white combined elementary and high schoo
l (New 

Kent) and one Negro combined elementary
 and high 

school (George W. Watkins). There are no attend- 

ance zones. Each school serves the entire county.” 

The first paragraph in Raney V. Board of E
ducation, 

391 U.S. 443, 20 L. Ed. 2d 727, shows that i
t is subject to 

the same comments as were applied to Gre
en: 



31 

“This case presents the question of the adequacy 

of a ‘freedom-of-choice’ plan as compliance with Brown 
v. Board of Education 349 U.S. 294, 99 L. Ed. 1083, 

75 S. Ct. 753 (Brown II), a question also considered 

today in Green v. County School Board of New Kent 
County, 391 U.S. 430, 20 L. Ed. 2d 716, 88 S. Ct. 1689. 
The factual setting is very similar to that in Green.” 
(Emphasis added.) 

In Monroe v. Board of Commissioners, 391 U.S. 450, 20 

L. Ed. 2d 733, the question, according to the court, was sim- 

ilar to the question decided in Green and Raney in that the 

“free transfer” provision in the plan then before the court, 

which operated as a device to allow resegregation of the 

races to the extent desegregation would be achieved by 

geographically drawn zones, converted the plan into what 

was essentially a “freedom-of-choice” plan, subject to the 

same tests as were applied in Green and Raney. 

In addition to the fact that Green dealt with a question 

entirely dissimilar to the point under consideration, it can 

be pointed out that it did not call for integration as such; 

with painstaking care, its aim was repeatedly stated in 

terms of “desegregation.” The opinion could not have been 

more clear. The obligation on school boards, it said, is to 

produce effective plans “achieving desegregation.” They 

must make progress “toward disestablishing state-imposed 

segregation.” They must “dismantle the state-imposed 

dual system.” Lower courts should make certain that 

“state-imposed segregation has been completely removed.” 

In brief, according to Green, the responsibility of the 

Southern school boards is “to effectuate conversion of a 

state-imposed dual system to a unitary, nonracial system.” 



32 

And this conversion means “a system without a ‘white’ 

school and a ‘Negro’ school, but just schools.” 

The proposition that the Fourteenth Amendment to 

the Constitution of the United States forbids a state from 

taking race or color into account when defining rights to 

the enjoyment of public facilities has often been an- 

nounced by the Supreme Court of the United States. It 

was probably born in the dissenting opinion of Mr. Justice 

Harlan in Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 

which reads, in part, as follows: 

“In respect of civil rights, common to all citizens, 

the Constitution of the United States does not, I think, 

permit any public authority to know the race of those 

entitled to be protected in the enjoyment of such 

rights. . . . I deny that any legislative body or judicial 

tribunal may have regard to the race of citizens when 

the civil rights of those citizens are involved. 

“These notable additions to the fundamental law 

(the 13th, 14th and 15th Amendments to the Con- 

stitution of the U.S.) were welcomed by the friends 

of liberty throughout the world. They removed the 

race line from our governmental systems. 

“There is no caste here. Our Constitution is 

color-blind, and neither knows nor tolerates classes 

among citizens. In respect of civil rights, all cit- 

izens are equal before the law. . . . The law regards 

man as man, and takes no account of his surroundings 

or of his color when his civil rights as guaranteed 

by the supreme law of the land are involved.” 



33 

When the transfer provisions incorporated into the de- 
segregation plans of the public school systems of Knox- 

ville, Tennessee, which were based solely on racial fac- 

tors, came on for review in Goss V. Board of Education, 

373 U.S. 683, 10 L. Ed. 2d 632, the Supreme Court, in in- 

validating them, borrowed from the language in one of 

its prior decisions to say— 

“Racial classifications are ‘obviously irrelevant 

and invidious.’ ”’ 

And then went on to capsulize a history of those of its 

decisions which demonstrated its animosity toward racial 

classifications: 

“. . . The cases of this Court reflect a variety of 
instances in which racial classifications have been 
held to be invalid, e.g., public parks and playgrounds, 
Watson v. Memphis, 373 U.S. 526, 10 L. Ed. 2d 529, 
83 S. Ct. 1314 (1963); trespass convictions, where 
local segregation ordinances pre-empt private choice, 
Peterson v. Greenville, 373 U.S. 244, 10 L. Ed. 2d 323, 
83 S. Ct. 1119 (1963); seating in courtrooms, Johnson 
Vv. Virginia, 373 US. 61, 10. L. Bd. 24 193, 83 S. Ci. 
1053 (1963); restaurants in public buildings, Burton 
v. Wilmington Parking Authority, 365 U.S. 715, 6 L. 
Ed. 2d 45, 81 S. Ct. 856 (1961); bus terminals, Boynton 
v. Virginia, 364 U.S. 454, 5 L. Ed. 2d 206, 81 S. Ct. 
182 (1960); public schools, Brown v. Board of Educa- 
tion, 347 U.S. 483, 98 1. Fd. 873, 74 S. Ct. 636, 33 
A.L.R. 2d 1180, supra; railroad dining car facilities, 
Henderson v. United States, 339 U.S. 816, 94 L. Ed. 
1302, 70 S. Ct. 843 (1950); state enforcement of re- 
strictive covenants based on race, Shelley v. Kraemer, 
334 US. 1,921. Ed. 1161, 63 S. C1. 836, 3 ALR. 24 



34 

441 (1948); labor unions acting as statutory represent- 

atives of a craft, Steele v. Louisville & N. R. Co,, 

323 U.S. 192, 89 L. Ed. 173, 65 S. Ct. 226, supra; voting, 

Smith v. Allwright, 321 U.S. 649, 88 L. Ed. 987, 64 

S. Ct. 757, 151 A.L.R. 1110 (1944); and juries, Strauder 

v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1879).” 

It followed with a gist of a decision by the Court of 

Appeals for the Fifth Circuit: 

“_.. The recognition of race as an absolute criter- 

jon for granting transfers which operate only in the 

direction of schools in which the transferee’s race is 

in the majority is no less unconstitutional than its 

use for original admission or subsequent assignment 

to public schools. See Boson v. Rippy, 285 F. 2d 43 

(C.A. 5th Cir.).” (Emphasis added.) 

In that case which the Supreme Court cited with ap- 

proval, this court had said: 

« .. Negro children have no constitutional right 

to the attendance of white children with them in the 

public schools. Their constitutional right to ‘the equal 

protection of the laws’ is the right to stand equal be- 

fore the laws of the State; that is, to be treated simply 

as individuals without regard to race or color. The 

dissenting view of the elder Mr. Justice Harlan in 

Plessy v. Ferguson, 1895, 163 U.S. 537, 559, 16 S. Ct. 

1138, 1146, 41 L. Ed. 256, has been proved by history 

to express the true meaning of our Constitution: 

«¢ There is no caste here. Our constitution 

is color-blind, and neither knows nor tolerates classes 

among citizens. In respect of civil rights, all citizens 

are equal before the law. The humblest is the peer 

of the most powerful. The law regards man as man, 



35 

and takes no account of his surroundings or of his 
color when his civil rights as guaranteed by the su- 
preme law of the land are involved.’ ” 

THE CIVIL RIGHTS ACT OF 1964 VALIDATES BONA 
FIDE NEIGHBORHOOD SCHOOL LINES AND PRO- 
HIBITS COURT ORDERS INTENDED TO ALLEVIATE 
RACIAL IMBALANCE IN NEIGHBORHOOD SCHOOLS 

As we have pointed out, Bell v. School City of Gary 

holds that de facto segregation which occurs fortuitously 

because of housing patterns is not unconstitutional. Now 

we point out that the gist of that holding was incorpo- 

rated into the Civil Rights Act of 1964. This is clear from 

the language of Senator Humphrey, floor manager of the 

bill, as quoted in Jefferson I (372 F. 2d 836): 

“Senator Humphrey explained: 

“ ‘Judge Beamer’s opinion in the Gary case is sig- 

nificant in this connection. In discussing this case, as 

we did many times, it was decided to write the thrust 

of the court’s opinion into the proposed substitute.’ 

(Emphasis added.) 

“‘The bill does mot attempt to integrate the 

schools, but it does attempt to eliminate segregation 

in the schools. The natural factors, such as density 

of population, and the distance that students would 

have to travel are considered legitimate means to de- 

termine the validity of a school district, if the school 

districts are not gerrymandered, and in effect delib- 

erately segregated. The fact that there is a racial im- 

balance per se is mot something which is unconstitu- 

tional. That is why we have attempted to clarify it 

with the language of Section 4.” (Emphasis added).” 



36 

The pertinent provisions of the Civil Rights Act of 

1964 are, of course, Sections 401, 407 and 410 which read 

as follows: 

“Sec. 401. As used in this title— 

“(b) ‘Desegregation’ means the assignment of 

students to public schools and within such schools 

without regard to their race, color, religion, or national 

origin, but ‘desegregation’ shall not mean the assign- 

ment of students to public schools in order to over- 

come racial imbalance. 

“Sec, 407 . .. 

“ . . nothing herein shall empower any official 

or court of the United States to issue any orders seek- 

ing to achieve a racial balance in any school by re- 

quiring the transportation of pupils or students from 

one school to another or one school district to another 

in order to achieve such racial balance. 

“Sec. 410. 

“Nothing in this title shall prohibit classification 

and assignment for reasons other than race, color, 

religion, or national origin.” 

This court, in Jefferson I, recognized that the fore- 

going provisions of the Civil Rights Act of 1964 validated 

bona fide neighborhood schools, even though accompanied 

by racial imbalance resulting from housing patterns. After 

defining the latter part of Section 401— 

“but desegregation shall not mean the assignment of 

students to public schools in order to overcome racial 

imbalance,” 



37 

this court, in Jefferson I, said: 

“The negative portion, starting with ‘but’, ex- 
cludes assignment to overcome racial imbalance, that 

is acts to overcome de facto segregation.” 

In support of its conclusion that the prohibition in 

Section 407 against assignment of students to overcome 

racial imbalance was related solely to racial imbalance re- 

sulting from de facto segregation this Court, in Jefferson I, 

went on to say this about the undefined term “racial im- 

balance’: 

“It is clear however from the hearings and de- 
bates that Congress equated the term, as to commen- 
tators, with ‘de facto segregation’ that is, nonracially 
motivated segregation in a school system based on a 
single neighborhood school for all children in a de- 
finable area.” 

In recognition of the fact that “classification and as- 

signment for reasons other ‘than race, color, religion, or 

national origin,” as used in Section 410, includes classifi- 

cation and assignment on the basis of residence, this Court, 

in Jefferson I, said: 

“The thrust of the Gary case (Bell) was that if 

school districts were drawn without regard to race, 
but rather on the basis of such factors as density of 
population, travel distances, safety of the children, 

costs of operating the school system, and convenience 

to parents and children, those districts are valid even 
if there is a racial imbalance caused by discriminatory 
practices in housing.” 



38 

In Deal (419 F. 2d 1387), the Court of Appeals for the 

Sixth Circuit said the same thing, when, in answering the 

contention of appellants— 

“that the Board owed them a duty to bus white and 

Negro children away from the districts of their resi- 

dences in order that the racial complexion would be 

balanced in each of the many public schools in Cin- 

cinnati,” 

it said: 

“It is submitted that the Constitution imposes no 

such duty.” 

And then went on to say: 

“In the Civil Rights Statute, Congress has ex- 

pressed itself rather clearly on this subject in 42 U.S.C. 

#2000 c, 2000 c-6 and 2000 c-9.” 

It follows from the decision in Jefferson I and the 

express words of the Civil Rights Act of 1964, that defend- 

ant district’s attendance areas or zones are valid even if 

there is a racial imbalance therein, and that the district 

court was without authority to issue any order design
ed 

to achieve a racial balance in defendants’ schools. 

DE FACTO SEGREGATION—WHICH OCCURS FOR- 

TUITOUSLY BECAUSE OF HOUSING PATTERNS—
 

DOES NOT MAKE AN OTHERWISE ACCEPTABLE DE-
 

SEGREGATION PLAN UNCONSTITUTIONAL 

The controlling question in this case, which is whether 

a desegregation plan constructed on a nonracia
l basis is 

constitutional, regardless of the fact that all-black and 
all- 

white schools result therefrom because of the residenti
al 



39 

patterns in the community, or whether a desegregation 

plan must result in racially balanced schools, even though 

to achieve that result wholesale assignments by race must 

be made, is essentially the same as the question of whether 

de facto segregation—which occurs fortuitously because of 

housing patterns—makes an otherwise acceptable desegre- 

gation plan unconstitutional. We submit that question 

should be answered in the negative. 

As we have pointed out, the directives for the con- 

struction of attendance areas or zones, as set forth in 

Brown, are— 

First, the attendance areas or zones must be “com- 

pact units,” and 

Second, the system thus created must be “a sys- 

tem not based on color distinctions.” 

Brown necessarily was to the effect that de facto 

segregation—that which occurs fortuitously because of 
housing patterns—does not make an otherwise acceptable 
desegregation plan unconstitutional. For if an area around 

a school is inhabited solely by whites or blacks, the crea- 

tion of the “compact units” required by Brown will nec- 

essarily result in racially imbalanced attendance areas or 

zones. And only by the drawing of zone lines without 

regard to color can “a system not based on color consid- 

erations” be devised. For only if attendance areas or zones 

are set up as they should be: through the drawing of 

reasonable, rational and nonracial lines, without regard to 

the race of the pupils enclosed thereby, will admissions to 

the school of that zone be determined on a nonracial basis, 

i.e., the residence of the pupils. But if the boundaries of 



40 

the attendance areas or zones must be gerrymandered so 

as to include certain pupils within the zone who would not 

be included therein if those boundary lines were drawn in 

a reasonable, rational and nonracial fashion, then the ad- 

mission into the school of the zone of those pupils artificially 

brought into the zone will be based on racial considera- 

tions, in defiance of the command of Brown. 

From the very beginning—in fact, in Brown after re- 

mand to the trial court—it has been held that if attendance 

areas or zones are fairly arrived at, and all children living 

in each attendance area or zone are required to attend the 

school in that area or zone, no violation of the Fourteenth 

Amendment results even though the concentration of chil- 

dren of one race in particular areas or zones results in 

racial imbalance in the schools. Brown v. Board of Educa- 

tion. of Topeka, 139 F. Supp. 468. To quote from the trial 

court’s opinion: 

“It was stressed at the hearing that such schools 

as Buchanan are all-colored schools and that in them 

there is no intermingling of colored and white chil- 

dren. Desegregation does not mean that there must 

be intermingling of the races in all school districts. 

It means only that they may not be prevented from 

intermingling or going to school together because of 

race or color. 

“If it is a fact, as we understand it is, with re- 

spect to Buchanan School that the district is inhabited 

entirely by colored students, no violation of any con- 

stitutional right results because they are compelled 

to attend the school in the district in which they live.” 

At least four Courts of Appeals have reached the same 

conclusion. The Seventh, in Bell v. School City of Gary, 



41 

Ind., 324 F. 2d 209 (certiorari denied 377 U.S. 924, 12 L. Ed. 

2d 216), which first appeared in 213 F. Supp., at page 

819, was presented the question whether the schools of 
Gary, with some having all-white and some all-colored 

student bodies, met the requirements of Brown. After 

pointing out that the composition of those student bodies 
was the result of the concentration of the city’s Negroes 

in certain sections, the court added: 

“Plaintiffs argue that Brown v. Board of Educa- 
tion, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, pro- 
claims that segregated public education is incom- 
patible with the requirements of the Fourteenth 
Amendment in a school system maintained pursuant 
to state law. However, the holding in Brown was that 
the forced segregation of children in public schools 
solely on the basis of race, denied the children of the 
minority group the equal protection of the laws granted 
by the Fourteenth Amendment. 

“We approve . . . the statement in the District 
Court’s opinion, ‘Nevertheless, I have seen nothing in 
the many cases dealing with the segregation problem 
which leads me to believe that the law requires that 
a school system developed on the neighborhood school 
plan, honestly and conscientiously constructed with 
no intention or purpose to segregate the races, must be 
destroyed or abandoned because the resulting effect 
is to have a racial imbalance in certain schools where 
the district is populated almost entirely by Negroes 
or whites, * * #7» 

The Tenth Circuit Court of Appeals reached the same 
conclusion in Downs v. Board of Education of Kansas City, 

336 F. 2d 988 (certiorari denied 380 U.S. 914, 13 L. Ed. 2d 



42 

800), which involved a broad attack on the administration 

of the Kansas City, Kansas, school system, and particularly 

on the action of the school board in defining school bound- 

ary lines and requiring students to attend the school in 

the district in which they lived, with the result that some 

of the schools were all-white and some all-Negro. But, 

said the court: 

“The neighborhood school system and other school 

systems, by which admission to the school is deter- 

mined upon the basis of similar criteria such as resi- 

dence and aptitude, are in use in many parts of the 

country. . . . In the second Brown case, supra, the 

Supreme Court appears to have recognized that school 

admissions may be based upon such factors as resi- 

dence. It said that in determining ‘good faith com- 

pliance at the earliest practicable date,” the lower 

courts might take into account problems arising from 

the “* * * revision of school districts and attendance 

areas into compact units to achieve a system of de-
 

termining admission to the public schools on a non- 

racial basis * * *, 

“The drawing of school zone lines is a discretion- 

ary function of a school board and will be revie
wed 

only to determine whether the school board acted ar- 

bitrarily. 

«We conclude that the decisions in Brown and the 

many cases following it do not require a scho
ol board 

to destroy or abandon a school system devel
oped on 

the neighborhood school plan, even though i
t results 

in a racial imbalance in the schools, where, 
as here, 



43 

that school system has been honestly and conscien- 
tiously constructed with no intention or purpose to 
maintain or perpetuate segregation.” 

The Fourth Circuit Court of Appeals reached the same 

conclusions in Gilliam v. School Board of the City of Hope- 

well, Va., 345 F. 2d 325, which involved a neighborhood 

school plan which inevitably resulted in some all-Negro 

schools because of “the fact that the surrounding res- 

idential areas are inhabited entirely by Negroes.” In re- 

jecting the objections thereto, the court said: 

“The plaintiffs object that the result of the geo- 

graphic zoning is a large measure of de facto segrega- 

tion. It is true that it is, but this is because of the 

residential segregation that exists. The Harry E. 

James School zone, for instance, bounded in part by 

Hopewell’s city limits, is otherwise largely surrounded 

by railroad classification yards and industrial tracks, 

with adjacent industrialized areas, which isolate the 

residential portions of that zone from all other res- 

idential areas. De facto segregation could be avoided 

for those pupils only by transporting them to distant 

schools. 

“The Constitution does not require the abandon- 

ment of neighborhood schools and the transportation 

of pupils from one area to another solely for the purpose 

of mixing the races in the schools.” 

Deal v. Cincinnati Board of Education, 369 F. 2d 55, 

decided by the Sixth Circuit Court of Appeals on Decem- 

ber 6, 1966, is also to the same effect. In it, the appel- 

lants posed the question— 



44 

“Whether the neighborhood system of pupil place- 

ment, fairly administered without racial bias, comports 

with the requirements of equal opportunity if it 

nevertheless results in the creation of schools with pre- 

dominantly or even exclusively Negro pupils.” 

In responding, the court said: 

“The neighborhood system is in wide use through- 

out the nation and has been for many years the basis 

of school administration. This is so because it is 

acknowledged to have several valuable aspects which 

are an aid to education, such as minimization of safety 

hazards to children, in reaching school, economy of 

cost in reducing transportation needs, ease of pupil 

placement and administration through the use of 

neutral, easily determined standards, and better home- 

school communication. The Supreme Court in Brown 

recognized geographic districting as the normal 

method of pupil placement and did not foresee chang- 

ing it as the result of relief to be granted in that 

case. 

“Because of factors in the private housing market, 

disparities in job opportunities, and other outside in- 

fluences (as well as positive free choice by some Ne- 

groes), the imposition of the neighborhood concept 

on existing residential patterns in Cincinnati creates 

some schools which are predominantly or wholly of 

one race or another. Appellants insist that this situa- 

tion, which they concede is not the case in every 

school in Cincinnati, presents the same separation and 

hence the same constitutional violation condemned 

in Brown. We do not accept this contention. The 

element of inequality in Brown was the unnecessary 



45 

restriction on freedom of choice for the individual, 
based on the fortuitous, uncontrollable, arbitrary fac- 
tor of his race. The evil inherent in such a classifica- 
tion is that it fails to recognize the high value which 
our society places on individual worth and personal 
achievement. Instead, a racial characterization treats 
men in the mass and is unrelated to legitimate gov- 
ernmental considerations. It fails to recognize each 
man as a unique member of society. 

“In the present case, the only limit on individual 
choice in education imposed by state action is the use 
of the neighborhood school plan. Can it be said that 
this limitation shares the arbitrary, invidious char- 
acteristics of a racially restrictive system? We think 
not. In this situation, while a particular child may 
be attending a school composed exclusively of Negro 
pupils, he and his parents know that he has the choice 
of attending a mixed school if they so desire, and they 
can move into the neighborhood district of such a 
school. This situation is far removed from Brown, 
where the Negro was condemned to separation, no 
matter what he as an individual might be or do. 
Here, if there are obstacles or restrictions imposed 
on the ability of a Negro to take advantage of all the 
choices offered by the school system, they stem from 
his individual economic plight, or result from private, 
not school, prejudice. We read Brown as prohibiting 
only enforced segregation.” (Emphasis supplied). 

The Sixth Circuit Court of Appeals, on February 10th, 
1969, reaffirmed its holding in Deal. In Goss v. Board of 
Education, City of Knoxville, Tennessee, 406 F. 2d 1133, it 

had this to say of a plan which required each student to 

be assigned to the school in the district in which he or she 
resides: 



46 

“Preliminarily answering question I, it will be 

sufficient to say that the fact that there are in Knox- 

ville some schools which are attended exclusively or 

predominantly by Negroes does not by itself estab- 

lish that the defendant Board of Education is violat- 

ing the constitutional rights of the school children of 

Knoxville. Deal v. Cincinnati Bd. of Education, 369 

F. 2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 

88 S. Ct. 39, 19 L. Ed. 2d 114 (1967); Mapp. v. Bd. of 

Education, 373 F. 2d 75, 78 (6th Cir. 1967). Neither 

does the fact that the faculties of some of the schools 

are exclusively Negro prove, by itself, violation of 

Brown.” 

Deal has been recently again before the Sixth Circuit
 

Court of Appeals, with the same result. In an opinion 

handed down March 23, 1970, which can be found in
 419 

F. 2d at 1387 et seq., it said: 

“Tt is the contention of appellants that the Board 

owed them a duty to bus white and Negro children 

away from the districts of their residences in o
rder 

that the racial complexion would be balanced in
 each 

of the many public schools in Cincinnati. It is sub- 

mitted that the Constitution imposes no such duty.”
 

And in its opinion the court agreed with 
our answer to 

the argument that the rule enunciated in
 Bell and followed 

in Downs, Gilliam, Deal, Goss and oth
ers, was changed 

by what the Supreme Court said in Green,
 Raney and Mon- 

After stating that: 

“In the first appeal which involved a claim of 

alleged de facto rather than de jure se
gregation, we 

affirmed the judgment of the District C
ourt on the is- 

sue of racial imbalance, holding that th
e Board of Edu- 



47 

cation was not required by the Constitution to bus Ne- 
gro or white children out of their neighborhoods, or 

to transfer classes, for the sole purpose of alleviating 

racial imbalance which was not caused by any act of 

discrimination on the part of the Board but resulted 

from the racial concentrations in the neighborhoods in 

which the schools were located,” 

the court went on to say: 

But 

“Appellants petitioned the Supreme Court for cer- 

tiorari in the first appeal and it was denied. Cer- 

tiorari was also denied in Downs and Bell, supra. 

The denial of certiorari in the present case ought to 

constitute our opinion in the first appeal as the law of 

the case, but appellants contend that the law has been 

changed by the recent decisions of the Supreme Court 

in Green v. County School Bd. of New Kent County, 

391 U.S. 430, 88 S. Ct. 1689, 20 1. Ed. 2d 716 (1968); 

Raney v. Bd. of Educ. of Gould School District, 391 U.S. 

443, 88 S. Ct. 1967, 20 L. Ed. 2d 727 (1968); Monroe 

v. Bd. of Comm’rs of City of Jackson, 391 U.S. 450, 88 

S. Ct. 1700, 20 L. Ed. 24 733 (1968).” 

said the court: 

“In our opinion, these three decisions did not 

change any law applicable to our case and appellants’ 

reliance on them is misplaced. The gist of the holdings 

in these cases was that in desegregating a dual school 

system, a plan utilizing ‘freedom of choice’ or a vari- 

ant ‘free transfer’ is not an end in itself and would be 

discarded where it did not bring about the desired re- 

sult.” 

On February 17, 1970, this court decided Ellis, et al. V. 

The Board of Public Instruction of Orange County, Florida, 

in which it held— 



48 

“ .. (S)tudent desegregation will be accomplished 

once the district court requires and ascertains as a fact 

that the neighborhood student assignment system, 

based on the definition herein contained, is invoked 

and the transfers made necessary thereby have been 

made.” 

Prior to reaching that conclusion, the court has said: 

“In the typical southern dual school system in op- 

eration prior to Brown I and II, the student was as- 

signed to attend the school nearest his or her home. 

This so-called neighborhood assignment system was 

designed to eliminate transportation costs and to per- 

mit the student to remain as near home as possible. 

Under the dual system as ruled unconstitutional, a Ne- 

gro student would be assigned to the nearest Negro 

school to his or her home and a white student would 

be assigned to the nearest white school. Negro stu- 

dents might pass a white school or schools en route to 

a Negro school. White students might pass a Negro 

school or schools en route to the white school. Under 

a neighborhood assignment basis in a unitary system, 

the child must attend the nearest school whether it be 

a formerly white school or a formerly Negro school. 

(Emphasis added.) 

“Under equi-distance assignment, zone lines 

would be located equi-distant between two schools 

and all students within the zone would attend a given 

school without regard to the capacity of the school. 

On the other hand, under the nearest school to student 

assignment basis, the assignment would be limited by 

the capacity of the school, and those unable to be ac- 

commodated would go to the next nearest school to 



49 

the home. We hold that the assignment system must 
take into consideration the existing capacity of the 
schools. Whether to expand present facilities is a 
question for the school authorities. (Emphasis added.) 

“We also hold that the neighborhood system 
based on school capacity, must be observed without 
exception. . . . If Orange County wishes to maintain 
a neighborhood assignment system, then it must do so 
without variances. Each student in the system must 
be assigned to attend the school nearest his or her 
home, limited only by the capacity of the school, and 
then to the mext nearest school.” (Emphasis added.) 

Bivins, et al. v. Bibb County Board of Education and 
Thomie, et al. v. Houston County Board of Education, de- 

cided by this court February 5, 1970, are equally as signif- 

icant as Ellis, for in them— 

“The district (was) directed to enter its order 
approving the plans proposed by the respective 
School Boards and directing the appellee Boards to 
put the plans into effect by or before February 16, 
1970.” 

The significance of the cases can be appreciated only 
by understanding that the court chose the geographic zone 
plans of the School Boards over plans proposed by HEW 

which hoped to achieve their effectiveness through bus- 
sing and arbitrary assignments. The first paragraph of the 

School Board’s plan in Houston gives the general nature 

of the plans approved by this court: 

“Defendant’s plan is based upon geographic zones 
solely. There is no ‘pairing’ of schools. There is no 
assignment of students. All students within a zone 



50 

will attend the school in their zone. The zones are 

drawn so as to utilize the ‘neighborhood school’ con- 

cept, with students attending the school nearest to 

home. The zones are drawn fairly and impartially, 

beginning with the facility itself and its capacity and 

extending therefrom for distances necessary to em- 

brace the number of students required to reach a 

reasonable capacity.” 

The criteria used in establishing the geographic zones 

approved for Bibb County were: 

“a. proximity of students to schools 

“b. natural boundaries (rivers, creeks, railroads, high-
 

ways, and county boundaries) 

“c. school capacity according to school standards.” 

There are comparatively recent district court cases 

from this circuit to the same effect. In Griggs V. Cook, 

272 F. Supp. 163 (N.D. Ga., July 21, 1967), affirmed by 

this court in 384 F. 2d 705, it was said: 

«_. . the sole question here is whether the loca- 

tion of a neighborhood school, ipso facto, is uncon- 

stitutional, because it will result in a predominantly 

all-negro enrollment.” 

“The dilemma arises from the legal application of 

a decree directed at de jure situations upon facts 

which plaintiffs themselves assert are de facto prob- 

lems. It is apparent to all that the difficulty here arises 

out of residential racial patterns in the City of At
lanta. 

That such residential segregation actually produces 

educational segregation and renders the task of schoo
l 

integration extremely difficult is obvious. However, 



a1 

it is impossible for the court in this action to abolish 

the Atlanta housing problem by judicial solution of 

the school problem. Such result must await effec- 

tive legislation and social maturity on the part of 

many parties not remotely concerned with this suit. 

“. .. The establishment of a school on nonracially 

motivated standards is not unconstitutional because 

it fortuitously results in all-negro or all-white en- 
rollment.” 

In Moses v. Washington Parish School Board, 276 F. 

Supp. 834 (E.D. La., Oct. 26, 1967), it was said: 

“... This Court’s considered position is that sep- 

aration which occurs fortuitously is mot ‘inherently’ 

unequal. 

(14 
. . . this Court cannot sanction a rule of law 

which places the legal burden on the state to correct 

the effects on one class of individuals of chance oc- 

currences or of the free exercise by another group of 

their rights of free association.” 

In Augustus v. School Board of Escambia County 

Florida, 299 F. Supp. 1069 (N.D. Fla., April 24, 1969), a 

desegregation plan was approved despite the fact— 

“That there will be some 20 or 21 schools in which 

there is little or no integration gives concern. But 

it appears, and the Court finds, this results from popu- 

lation location and from natural and geographic, rather 

than historical, boundaries.” 



52 

In Smith v. St. Tammany Parish School Board, 302 F. 

Supp. 106 (E.D. La., July 2, 1969), the court, in approv- 

ing the school board’s desegregation plan, had this to say: 

“Although the assignment of students to attend 

schools in the wards they reside in will result in the 

continuation of Lee Road Consolidated and Sixth Ward 

Junior High as all-white schools, this results only from 

residential patterns—not any racial discrimination— 

and is therefore acceptable.” 

In Mannings v. Board of Public Instruction of Hills- 

borough County, Fla., 306 F. Supp. 497 (N.D. Fla., August 

18, 1969), objections were made to a plan which provided 

for the assignment of students in every school of the dis- 

trict on the basis of geographical attendance areas, on the 

ground that some schools of the district would remain all- 

black under the plan. 

In disposing of those objections, the court said: 

“Although a few schools in the Tampa area are 

completely or predominantly black as to student com- 

position, this is only the result of neighborhood hous- 

ing patterns and not designed by the Board. 

“With the faculty changes and the neighborhood 

school areas determining the complexion of the stu- 

dent bodies, the Board has discharged its Constitu- 

tional duty as set out in the decisions of the higher 

courts. It has considered the problems involved with 

each school and has completely eliminated any dual 

system of schools so that there are now no ‘white 

schools’ or ‘Negro schools’ but just ‘schools’ open to 

every child in the neighborhood.” 



93 

In Carr v. Montgomery County Board of Education, 

EAT, F. Supp. ....... (N.D. Ala., February 25, 1970), it was 

“Plaintiffs’ objections and the few proposals made 
by the Office of Education, Department of Health, 
Education and Welfare, that differ from the plan as 
proposed by the Montgomery County Board of Edu- 
cation appear to be based upon a theory that racial 
balance and/or student ratios as opposed to the com- 
plete disestablishment of a dual school system is re- 
quired by the law. Such is not this Court’s concept of 
what the law requires. Complete disestablishment of 
the dual school system to the extent that it is based 
upon race is required. ‘While pairing of schools may 
sometimes be required to disestablish a dual system, 
the pairing of schools or the bussing of students to 
achieve a racial balance, or to achieve a certain ratio 
of black and white students in a school is not required 
by the law.” 

We live in a pluralistic society. Our communities are 
as diverse as the races and the ethnic groups which popu- 
late them. All-white communities abound in sections out- 
side the South. A few all-Negro communities can be found 

in the South. Towns made up of French-speaking citizens 

exist in Louisiana. Scandinavian groups compose com- 

munities located in the Mid-West. Perhaps the same can 

be said about German and Italian groups. For this country 

has provided a refuge for those of every race and nation- 
ality, with no restrictions on where they should settle. And 
since like attracts like, our various racial and ethnic groups 
have inevitably moved into those communities which num- 

bered among their inhabitants those of their own group 



54 

and have shunned those communities which do not have 

those of their background. For instance, while Mississippi 

has, along with its many Anglo-Saxons, those of German 

and Italian stock, it has no Scandinavians or Poles. It has 

Chinese but not Japanese. And other illustrations could be 

given. 

Where communities have sizable racial or ethnic 

groups, those groups tend to congregate in identifiable sec- 

tions of their community. In parts of Boston, none but 

Irish can be found. The same can be said of New York, 

which also includes sections composed exclusively of Ital- 

jans. In San Francisco, Chinese have their own part of 

the city. Those are but examples of a phenomena well 

known to those familiar with American communities. 

Other such examples can easily be given. 

Negroes have the same tendencies as the white groups. 

Where they form a sizable proportion of the population, 

whether it be in the South, North, East or West, they nat- 

urally, and of their own volition, create their own neigh- 

borhood. It can be safely said that there is not a commu- 

nity in this country where Negroes, if there are enough of 

them, do not congregate into a particular section of their 

community. The instincts which motivate their white 

counterparts to do so, also impel Negroes to live together. 

There is de facto segregation in Clarksdale, just as 

there is in every community in this nation where there is 

a sizable proportion of Negro population. Given the hous- 

ing patterns which prevail in towns and cities throughout 

the country, any other result would be inconceivable. But 

the de facto segregation found in Clarksdale is fortuitous de 



99 

facto segregation and not the result of any law or ordi- 
nance. It is, in every essential respect, the same type of de 
facto segregation as prevails in Gary, Indiana, which was 

before the court in Bell; as prevails in Kansas City, Kan- 
sas, which was before the court in Downs; as prevails in 
Hopewell, Virginia, which was before the court in Gilliam; 
as prevails in Cincinnati, Ohio, which was before the court 
in Deal; as prevails in Knoxville, Tennessee, which was be- 
fore the court in Goss v. Board of Education, City of Knox- 
ville, Tennessee, 406 F. 2d 1183; as prevails in Atlanta, 
Georgia, which was before the court in Griggs v. Cook, 
272 F. Supp. 163, 384 F. 2d 705; as prevails in Washington 
Parish, Louisiana, which was before the court in Moses v. 
Washington Parish School Board, 276 F. Supp. 834; as pre- 

vails in Orange County, Florida; Bibb County, Georgia; 

Houston County, Georgia; Atlanta, Georgia; Escambia 
County, Florida; St. Tammany Parish, Louisiana; which 

were before the courts in the cases above referred to, and 

as prevails in numerous other communities whose plans 

have been validated by the courts even though they encom- 

passed areas where de facto segregation prevailed. 

Where such de facto segregation exists, and a district’s 

zones are set up as they should be: through the drawing 

of reasonable, rational and nonracial lines, without regard 

to the race of the pupils enclosed thereby, there will be, 

of necessity, some all-black and some all-white schools. 

There is no escape from such an inevitable result, except the 

racist solution advanced by the court below. But we sub- 

mit that neither race, nor religion, should be acknowledged 

as constituting in any way a valid condition or measure, in 

this nation of a person’s access to public facilities, posi- 



56 

tions or activities of any sort. Those who would make it 

such ought to be rejected with finality because, in racial 

matters, enduring progress and justice will come about only 

under rules of law which unswervingly treat all men as 

equal before the law, regardless of race, color or national 

origin, and which do not take into account their race, color 

or national origin. 

THE DISTRICT COURT ERRED IN NOT APPROVING 

DEFENDANTS’ DESEGREGATION PLAN AND IN IM- 

POSING THE REQUIREMENTS OF ITS ORDERS OF 

JANUARY 10,1970, AND MAY 8, 1970 

If we be right in our position that the correct inter- 

pretation of the Fourteenth Amendment to the Constitu- 

tion of the United States, as interpreted by the Supreme 

Court of the United States in Brown and the cases which 

have followed in its wake, is that it commands the ces- 

sation of the practice of segregating children solely on the 

basis of their race, and the establishment of school systems 

whereby the admissions of children to public schools are 

determined on a nonracial basis, in the manner described 

in Brown, then certainly defendants’ desegregation plan 

meets that command and is therefore constitutional. For 

no one disputes the fact that defendants’ desegregation 

plan complies with the directives of Brown. 

Disapproval of defendants’ desegregation plan can be 

justified only on the ground that the Fourteenth Amend- 

ment to the Constitution of the United States requires a 

“racial balance” in each of the public schools of the nation, 

which in turn requires the establishment of school systems 

based on color distinctions and the assignment of pupils to 



oT 

schools on the basis of their race. But we submit that 

such is not the true interpretation of our Constitution. 

It involves, in fact, a repudiation of the basic premise of 

Brown, i.e. that the Constitution of the United States 

does not permit public authorities to know, or to take into 

account, the race of citizens when their civil rights are 

involved, and it actually validates the premise on which 

the “separate-but-equal” doctrine was bottomed. It sim- 

ply is a fallacious interpretation of the true meaning of our 

Constitution. 

What we have just said should not be equated with 

a segregationist’s argument. All defendants are saying is 

that integration per se should not be the sina qua non 

of their desegregation plan. They believe that fair minded 

jurists will concede that the Supreme Court has not de- 

creed a requirement of racial balance, for the sake of 

racial balance. As Judge Coleman has so well put it: 

“The High Court has never arbitrarily com- 

manded that there must be racial balance in the 

student body of any school purely for the sake of racial 

balance. It has never commanded that little chil- 

dren be required to walk unreasonable distances, or 
be bussed to strange communities just to obtain racial 

balance.” 

This is not to contend that a school board is not re- 

quired to compel compulsory association of the races if 

such be necessary for the purpose of desegregating its 

schools. For instance, where there are racially mixed 

neighborhoods which include pupils of both races who, 

within the limits of normal geographical limits, would nat- 

urally be assigned to the same school, the school board 



58 

must require all in that neighborhood, both white and 

black, to attend the same school. That is exactly what 

defendants’ plan does. Every pupil, both white and black, 

in every mixed neighborhood of the district is re- 

quired by defendants’ plan to attend the same school. 

But such responsibility, in the words of Alabama 

NAACP v. Wallace, 269 F. Supp. 346, “does not call for 

any further or more complete mixing or balancing of the 

races than may be appropriate for the purpose of correct- 

ing discrimination.” It does not require the abandonment 

of the concept of neighborhood schools in order to correct 

racial imbalance caused by housing patterns. 

Defendants know, of course, that there is a school of 

thought which maintains that there are benefits to chil- 

dren of both races when they are thoroughly mixed in 

the schools. That may, or may not be true, so far as they 

are concerned. All that concerns them now is the salva- 

tion of their public school system, which they know cannot 

be managed if they are burdened with requirements over 

and above the essential requirements of the Constitution 

of the United States. The circumstances which prevail 

in defendant district, although not different from those in 

other communities where the school population is predom- 

inantly black, do not add up to a favorable climate 

for experimentation. 

Proof of what has just been said lies in the wide- 

spread record of progression from segregation to desegre- 

gation to resegregation (in reverse) which has character- 

ized almost every section of the country in which whites 

and Negroes are present in substantial numbers. Once a 

school becomes as much as 30 per cent black through the 



29 

enforcement of administrative or judicial decrees, it rap- 

idly approaches the point of becoming almost all black. 

This phenomenon shows every sign of continuing so long 

as white parents retain their freedom to pick up stakes and 

move elsewhere. 

Quite obviously, there is a persistent reluctance, in- 

deed a refusal, of most white parents to accept desegre- 

gation if it involves the likelihood of their children’s be- 

coming members of a white minority in a predominantly 

black school. Until that ceases to be true, experimenta- 

tion, such as the “racial balance” requirements of the 

court’s order of January 10, 1970, and May 8, 1970, should 

not be indulged in. 

The search, then, must not be so much for solution 

of the problem inherent in de facto segregation as for 

changing patterns of adjustment and readjustment in re- 

lationships between the races. A guideline to aid in that 

quest was given in 1896 by a much-maligned U. S. Supreme 

Court in words which are as valid now as then: 

“If the races are to meet upon terms of social equality, 

it must be the result of natural affinities, a mutual appre- 

ciation of each other’s merits, and a voluntary consent of 

individuals. . . . Legislation is powerless to eradicate racial 

instincts based upon physical differences, and the attempt 

to do so can only result in accentuating the difficulties of the 

present situation.” 

For the present, the survival of the public schools of 

defendant district requires that a desegregation plan such 

as defendants’ desegregation plan, which fulfills all of the 

requirements of the Constitution of the United States, 

should be approved by this court, and that the require- 



60 

ments of the district court’s orders of January 10, 1970, 

and May 8, 1970, which emanated from the mistaken view 

that “racial balance” must be achieved in public schools, 

should be annulled. 

Included in the parts of the orders which should be 

annulled is the provision directing the employment of a 

Director of Elementary School Desegregation, and fixing 

his duties. The creation of such a position, and the per- 

formance of the chores assigned, are not necessary to the 

validity of a desegregation plan. They are functions, or 

prerogatives, which reside with defendant Board of 

Trustees. The district courts have not yet been author- 

ized to take over our school districts and to serve as a sort 

of super school board. Nor should they be so authorized, 

for as it has often been remarked by jurists who seek to 

restrain the judiciary from overstepping the limits of their 

constitutional authority, the courts are ill-equipped to run 

the public schools of the nation. 

CONCLUSION 

Any fair reading of Brown, Green, Alexander and the 

vast majority of the other cases should convince anyone 

that what is outlawed is segregation based solely on race 

and what is commanded is admissions to public schools 

on a nonracial basis. The doctrine of “separate but equal,” 

which did nothing but legitimatize classifications by race, 

has been abandoned in favor of Mr. Justice Harlan’s doc- 

trine that “our Constitution is color-blind, and neither 

knows nor tolerates classes among citizens.” It is not 

seriously questioned that defendants’ desegregation plan 

meets the requirements of Brown and the Harlan doctrine. 



61 

But it appears that plaintiffs now repudiate the basis 

of their attack on Plessy v. Ferguson. They argue in favor 

of their brand of racial classification—that defendant be 

required to take the race of the pupils into consideration 

when structuring their schools and when fixing zone lines. 

While decrying racism, they ask this court, at the very 

least, to hand down a racist judgment. 

The vice of their argument is classification by race. 

But again we say that race, or religion, ought never to be 

acknowledged as constituting in any way a valid condi- 

tion or measure, in this nation, of a person’s access to 

public facilities, positions or activities of any sort. Those 

who would make it such ought to be rejected with finality 

because, in racial matters, enduring progress and justice 

will come about only under rules of law which unswerv- 

ingly treat all men as equal before the law, regardless of 

race, color or national origin, and which do not take into 

account their race, color or national origin. 

It is submitted that defendants’ desegregation plan, 

which provides equal treatment for all pupils in the dis- 

trict, regardless of their race, should be approved by this 

court, and that the requirements of the district court’s 

orders of January 10, 1970, and May 8, 1970, should be 

set aside. 

Respectfully submitted, 

SEMMES LUCKETT 
121 Yazoo Avenue 
Clarksdale, Mississippi 
Attorney for Defendants- 

Appellees-Cross-Appel- 
lants 



62 

CERTIFICATE OF SERVICE 

Copies of the foregoing BRIEF FOR DEFENDANTS- 

APPELLEES-CROSS-APPELLANTS were mailed, air 

mail, to— 

MELVYN R. LEVENTHAL 

REUBEN V. ANDERSON 

FRED L. BANKS, JR. 

53814 North Farish Street 

Jackson, Mississippi 39202 

JACK GREENBERG 

JAMES NABRIT III 

NORMAN CHACHKIN 

JONATHAN SHAPIRO 

Suite 2030 

10 Columbus Circle 

New York, New York 10019 

On July 8, 1970. 

SEMMES LUCKETT 
Attorney for Defendants-Appellees- 

Cross-Appellants [||546bfa87-5e5a-496c-a295-512386b5ed40||]