Motion to Vacate Suspension of and Reinstate Order Pending Certiorari

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IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

BEATRICE ALEXANDER, ET AL, 

Ve 

HOLMES COUNTY BOARD OF EDUCATION, ET AL. 

ON MOTION TO VACATE SUSPENSION OF, AND TO REINSTATE 

PENDING CERTIORARI, AN ORDER OF THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT ORDERING 

IMPLEMENTATION OF SCHOOL DESEGREGATION PLANS AT THE 

COMMENCEMENT OF THE 1969-1970 SCHOOL YEAR 

MEMORANDUM FOR THE UNITED STATES 

The court below granted the government's motion for an extension 

* time until December 1, 1969, for the submission of terminal de- 

segregation plans for the school districts involved here. The back- 

ground and the considerations supporting this motion are set forth 

below. 

Following this Court's decision in Green v. New Kent County Board 
  

of Education, 391 U.S. 430, these cases, involving some thirty-three 

school districts in Mississippi, were before the United States Court sch 

Of Appeals for the Fifth Circuit, in Adams v. Mathews, $03 FP. 24 181. 

Prior to that the district court had approved "freedom of choice" plans. 

In the Adams decision, all of these cases, and others, were reversed, 

and sent back to district courts to determine whether the plans would 

lead to "'a unitary system in which racial discrimination would be 

! eliminated root and branch,'" and whether the proposed changes would 

produce "a desegregation plan that "promises realistically to work 

 



  

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On remand, the district court again approved the “freedom of choice” 

plans. The United States again appealed to the court of appeals, and an 

expedited procedure was followed in that court. The United States asked 

for orders which would lead to desegregation in most of the schools 

beginning in the fall of 1969. In the proceedings before the court of 

appeals, the United States stated its belief that such plans could be 

developed and put into effect within the time available, and the United 

States proposed a timetable for the development and implementation of the 

plans. 

In these proceedings in the court of appeals, the United States also 

suggested that the Department of Justice was not expert in educational 

administration, and that better progress might be made if experienced 

educators from the Department of Health, Education and Welfare were 

brought into the picture. 

The court of appeals adopted all of the recommendations of the 

United States. It ordered the district court to formulate plans which 

would "disestablish the dual school systems in question.” It also 

ordered the district court to request "that educators from the Office 

of Education of the United States Department of Health, Education and 

Welfare collaborate with the defendant school boards in the preparation 

of plans" which would carry out the court's order. Finally, it set up 

a timetable--admittedly a very tight one--under which plans should be 

presented to the district court by August 11, 1969, for hearing on 

August 21, 1969, and to be implemented by the district court no later 

than August 25, 1969--a date which was later changed by the court of 

appeals to September 1, 1969. 

The Department of Health, Education and Welfare filed plans by 

August 11, 1969. On August 19, 1969, Robert H. Finch, Secretary of 

Health, Education and Welfare of the United States, sent a letter to 

   



  

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Chief Judge Brown of the court of appeals, and to the three district 

judges involved in the case, requesting the court to grant a further 

delay until December 1, 1969. The court of appeals directed the district 

court to consider this request, and a motion filed by the United States 

based on the request, and to make recommendations with respect to it. 

The district court held a hearing, and recommended that the Secretary's 

request be granted. This has been approved by the court of appeals, which 

has amended its earlier order, by eliminating the September 1, 1969, dead- 

line, and fixing a new deadline of December 1, 1969. The court, at the 

suggestion of the Department of Justice, also ordered each of the Boards, 

in conjunction with the Office of Education, to "develop a program to 

prepare its faculty and staff for the conversion from the dual to the 

unitary system" and to do this by October 1, 1969. Finally, also at 

the suggestion of the Department of Justice, the Boards were ordered 

not to construct any new facilities "until a terminal plan has been 

approved by the court." 

The Office of Education of the Department of Health, Education and 

Welfare was given specific responsibilities by the order of the court 

of appeals entered on July 3, 1969. Although there was no reference to 

the Secretary of Health, Education and Welfare in this order, he is the 

officer who is responsible for the activities of the entire Department, 

including the Office of Education. In effect, the Office of Education, 

and through it, the Secretary of Health, Education and Welfare, were 

made a sort of collective "Special Master" for the purpose of assisting 

the district court in carrying out its undenisbly exceedingly difficult 

task. The Office of Education did endeavor to comply with its assign- 

ment, but when the Secretary had an opportunity to review the plans, he 

concluded that the immediate implementation of the plans would involve 

great difficulties and would be extremely disruptive. Having the 

responsibility which undoubtedly rested upon him, and having no time 

 



  

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at all available, he had little practical alternative but to make the 

report to the court which he did. 

It might be suggested that the Secretary could have written a more 

discriminating and eclectic letter, explaining in more detail the reasons 

for his judgment, saying that some plans were all right, that some others 

needed modification, and that still others required further consideration 

because of special problems which he then pointed out. But the situation 

was far too complex for that. There are thirty-three school systems in- 
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volved, with 166 schools, and close to 2,000 teachers--and there was 

literally no time left in which the Secretary might consider all the 

problems involved. 

Of course there is great pressure to bring desegregation, and to 

bring it now. Fifteen years have passed since this Court's decision in 

the Brown caver hers can be little doubt where the basic fault lies 

in this matter. The reason why the plans are so difficult to formulate 

and to implement is largely because the local school boards involved in 

this case have generally done nothing but resist; they have continuously 

failed and refused to develop plans for the effective desegregation of 

their schools, so as to eliminate the long-established dual school 

System. | The temptation to say that they must obey the law, and that 

Stier Tat do it by an imminent fixed date, is very great. That is 

what the court of appeals did in its original order in these cases. 

But the court of appeals also sought the help of the Department of 

Health, Education and Welfare in implementing its order. When looked 

at in gross the fixed deadline had seemed feasible. When looked at 

in detail by the Secretary, however, he concluded there were too many   

unresolved problems to leave it possible for him to feel conscientiously 

that he could approve the plans. Much experience shows that desegre- 

gation plans are more effective, are more readily accepted and carried 

out, when there is some opportunity for preparation of the community, 

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and particularly when the details of the plans can be explained to the 

teachers involved, and their support enlisted. Under the draconian 

order of the court of appeals--requested by the United States, it is 

true--there was no opportunity for this preliminary groundwork. Be- 
TT ——— pe ——————— ——— 

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cause of the failure of the local Boards to cooperate, none of the 

preliminary planning and work had been done, and when August 19th 

ity there was no time left in which this could be planned and 

carried out. If only a single school system had been involved, or two 

or three school systems, it might have been possible to put on some 

sort of a crash program which would have given some prospect of success. 

But there are thirty-three school systems concerned in these cases. 

There was no prospect at all that the necessary detailed planning and 

work could be done to make the plans ones which would meet this Court's 

directive that there should be a plan of desegregation that "promises 

realistically to work now." 

Neither the courts below nor the Department of Justice are experts 

on education. They are concerned with constitutional requirements, and 

that concern obviously remains a deep commitment. The Office of 

Education does have educational experience, and the Secretary is 

responsible for its actions. What the Secretary has said in substance 

is: "The plans won't work. We need more time, until December lst." 

It is recognized that this means, in most situations, another school 

year, and that is a tragedy and a default. But it may be less of a 
  

default in the long run than would be forcing through plans now which 

are not sufficiently developed, and do not hold out adequate prospect 

of success. At any rate that was the Secretary's considered judgment, 

reached under grea’ difficulties. His recommendation has been sup- 

ported by both courts below. That action, by judges close to the scene, 

should not be interfered with by a Justice of this Court. The court 

below has clearly indicated that it intends the desegregation process to go 

 



  

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forward as quickly as possible. Its conclusion that it should forego 

its original deadline and fix a new one should be given considerable 

weight. | 

The position taken by the Secretary was supported the testimony 

of two government expert witnesses which was given at the hearing in the 

district court on August 25, 1969. The qualifications of these witnesses, 

and their testimony, may be summarized as follows: 

1. Jesse J. Jordan, Senior Program Officer for Title IV, U. S. 

Office of Education, Atlanta, Georgia} Bachelor's Degree in Mathematics 

and Education; Master's Degree in School Administration; three years as 

a teacher and three years as a principal; twelve years as a school 

administrator in elementary and secondary education, including holding 

the position of Assistant Superintendent. 

2. Howard O. Sullins, Program Officer, Office of Education, 

Charlottesville, Virginia} Bachelor's Degree in English and History; 

Master's Degree, Columbia University, in Education; completed all re- 

quirements for a Doctorate in Education from the University of Virginia 

in the field of administration and supervision, except for completion 

of his dissertation which is currently being written; four years a 

classroom teacher; thirteen years a high school principal; three years 

superintendent of schools. 

Jordan served as a member of the committee which reviewed all of 

the plans in the instant cases, talked with and worked closely with 

those educators who were in the field actually Sovaleting both the 

facts for and the plans themselves. 

Sullins testified that he had Geo the team leader that developed 

the plans for the Hinds, Madison and Canton school districts; that he 

had personally gathered the facts, interviewed the superintendent and 

other administrators within these districts and discussed the entire 

 



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problem with the school boards of the districts involved. His testimony 

shows that he was as familiar with the details of these three districts 

as one could rogsivie be within the short period of time that was 

allotted to him to undertake the investigation, and to analyze the 

information and draft a desegregation plan. 

_ Both witnesses testified that in general they believe that the 

plans prepared by the Office of Education experts were reasonable, 

educationally sound and would result in an administratively feasible 

unitary school organization. Both agreed, however, that they did not 

have sufficient time to conduct detailed studies of such things as 

curriculum, finances and transportation which would ordinarily be done 

when reorganizing a school system. 

These witnesses testified that a unitary school system is superior 

educationally to a dual school system. These witnesses further testi- 

fied that, in their judgment, there was insufficient time to implement 

the Office of Education plans in time for this school year. For example, 

Sullins testified: 

Since there is then a rather massive job of reorganization 

and in most cases restructuring of the grades in a parti- 

cular school, considerable time should be spent in properly 

planning the educational program which will be made avail- 

able for the boys and girls in these schools. (Tr. 1khh.) 

Sullins went on to describe problems with respect to revamping the 

transportation routes (Tr. 1L4), reorganizing the faculties (Tr. 145), 

preparing the students (Tr. 145-146), replanning federally funded projects 

(Tr. 146-147), and rescheduling of high school classes (Tr. 187-188). He 

testified that in the school systems in which he Wane he saw no evidence 

of any planning for the implementation of his desegregation plan or any 

other desegregation plan which would disestablish the dual school system 

(Tr. 186). According to Sullins, "It is my professional judgment that in 

order to make a desegregation plan work, it must be properly planned" 

(Tr. 186). Jordan and Sullins both testified that the transition from 

dual to unitary school systems is smoother if school districts move to- 

gether. (Tr. 97-98, 148.) 

 



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The petitioners offered the testimony of a highly-qualified edu- 

cator but on cross-examination it was established that this witness 

had no experience whatsoever in local, elementary and secondary school 

administration and had no particular knowledge of the school districts 

involved. 

The duty of a school board in these cases is to convert from a 

dual to a unitary school system. The objective is the disestablishment 

of the dual school system through the use of plans "realistically" 

designed to work. Where the local school districts refuse to come for- 

ward with such plans, as the vast majority did here, the United States, 

in order to aid the district courts in the desegregation process, must 

take upon itself the additional burden of designing such plans. The 

United States has done so, willingly and with every hope of success, 

but this is no easy task and it is sometimes fraught with the frus- 

trations of unfamiliarity and the pressures of time. The Secretary of 

the Department of Health, Education and Welfare, as the Cabinet officer 

charged with implementing the federal government's interests in elementary 

and secondary education, takes upon himself in these situations a tremen- 

dous burden, for his obligation is to achieve a sound, feasible, realistic 

program of education for all the children, both Negro and white, in these 

school districts, unfortunately presided over by recalcitrant and re- 

luctant public officials, whose duties and functions must be carried out 

by others. 

In this situation, great weight and consideration should be given 

to the opinion of the Secretary whose Department was brought into the 

situation by the court below. 

We respectfully submit that the judgment of the court of appeals-- 

a court which has shown particular sensitivity to the need and importance 

of prompt and vigorous action to accomplish effective desegregation--should 

not be suspended. 

ERWIN N. GRISWOLD, 
Solicitor General. 
  

SEPTEMBER 1969.