Petition for Rehearing and, in the Alternative, Clarification of Mandate

    SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1969 

No. 632 

BEATRICE ALEXANDER, et als., 

Petitioners, 

  

  

  

VS. 

HOLMES COUNTY BOARD OF EDUCATION, et als., 

Respondents. 

(IncLuDING CONSOLIDATED CASES) 
  

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FiFTH CIRCUIT 
  

PETITION FOR REHEARING AND, IN THE 

ALTERNATIVE, CLARIFICATION 

OF MANDATE 
  

JupGe A. F. SUMMER 

Attorney General of Mississippi 
New Capitol Building 

Jackson, Mississippi 39205 

JOHN C. SATTERFIELD 
SATTERFIELD, SHELL, WILLIAMS AND BUFORD 

Post Office Box 466 

Yazoo City, Mississippi 39194 

Special Counsel for the Respondents, 
other than the United States of 
America, associated with other at- 
torneys of record in each of the 
Consolidated Cases 

  
  

BE. L. MENDBENHALL, INC., 926 Cherry Street. Kansas City, Mo. 64106, HArrison 1-3030  



    

 



  

INDEX 

Preliminary SIalement .............c.ccocciincnsntiictnenios oxtsizones 1 
I. The Respondents Have Not Been Accorded Due 

Process of Law. There Has Been No Hearing on 
the Merits by Any Court nor Any Opportunity 
for the Litigants to Be Heard on the Merits 
Through Their Atlormeys i... ...... oh 1 

II. The Judgment Now Entered by the Court of 
Appeals Conflicts with Decisions of the Courts 
of Appeal of Other: Circuits oi... iin. il. 8 

III. The Constitutional Duty to Remove Vestiges of 
the Dual System of Public Schools Does Not Re- 
quire the Entry of These Judgments .................... 15 

IV. The HEW Plans, with the Inclusion of the Alter- 
native or “Interim” Steps in Student and Faculty 
Integration, Would Put into Immediate Effect 
Unitary Racially Non-Discriminatory School 
SYSIEME ol. to eee rss nsesssseunans 22 

Exhibit A—Illustrations of “Composite Building In- 
formation”. Contained. in HEW Plans .........cccc. coe. oot. 31 

CONCUSSION .......000. 200 Be... 25a mevese sets rosstisrsnsvensasions 37 

Certificate of Bervice: wo... cirri serorsnisnsves titernes 38 

TABLE oF CASES 

Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968) ........... 
A Et ee, i 8,11,12,13, 24, 25, 26, 27 

Broussard v. Houston Ind. School District, 395 F.2d 

Br re see 21 

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 
658,98 LEA 873 (1054). i... eerie, 13,15 

Carr .v. Montgomery. County, 23 1.84.24 263. ............. 
16,22,23, 24. 29 

  
  

 



    

II INDEX 

Clark v. Board of Education of Little Rock School 
District, 369 F.2d 661, rehearing denied, 374 F.2d 
SR en lil hel 17,13 

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

(6th Cir. 1966), cert. denied, 389 U.S. 847, 83 S.Ct. 
39, 19 T.UA2d 114 (1867) . . ir 10,11 

Downs v. Board of Education of Kansas City, 336 F.2d 
988 (1964), cert. denied, 380 U.S. 914, 85 S.Ct. 898, 
13 L.Ed.2d S00 (1865) ..........ooccncevmenisconsivissitter mis msscsseitnions 13 

Goss v. Board of Education of Knoxville, Tennessee, 
ETA Re ERR 3, 11,17, 13 

Green v. County School Board of New Kent County, 
Virginia 381: US. 430 (1968) +... vvciiiioncnrionns 
i RT ea 9, 10, 15, 22, 23, 24, 25, 26, 28 

Hovey. v. Zllioit, 167 U.S. 408, 42 1. E4. 415 .................. 5 

Mapp v. Board of Education of Chattanooga, Tennessee, 
A 2 Br a 14 

Monroe v. Board of Commissioners of the City of Jack- 

son, Tennessee, 350 F.2d 955: (6th Cit.) .—coveeceeeeenene- 
I a 9.15,16,17,22,23,24. 25,23 

Morgan v. United States of America, 304 U.S. 13, 82 
LEA 1129 6 

Powell v. Alabama, 297 U.S. 45, 77 1. Bd. 153 ........coeooz.-.. 7 

Raney v. Board of Education of Gould, Arkansas, 391 
U.S. 443 (1963)... 9,15, 22 23, 24 25,28 

Springfield School Committee v. Barksdale, 348 F.2d 
3681... WIE I Ee LE 12 

USA. vv. Jejjerson, 3B0:F.2d 305 ........coomnensiseeserneensorcess 1,723 

United States v. Board of Ed. Polk County, 395 F.2d 

SLE EE ei ee CR i 27 

 



  

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

  

  

No. 632 
  

BEATRICE ALEXANDER, et als., 

Plaintiffs-Appellants-Petitioners, 

VS. 

HOLMES COUNTY BOARD OF EDUCATION, et als., 

Defendants-Appellees-Respondents. 

  

JOAN ANDERSON, et als., 

Plaintiffs-Appellants-Petitioners, 

UNITED STATES OF AMERICA, 

Intervenor-Appellant-Respondent, 

VS. 

CANTON MUNICIPAL SCHOOL DISTRICT, et als., and 

MADISON COUNTY SCHOOL DISTRICT, et als., 

Defendants-Appellees-Respondents. 

  

ROY LEE HARRIS, et als., 

Plaintiffs-Appellants-Petitioners, 

VS, 

YAZOO COUNTY BOARD OF EDUCATION, et als, 

Defendants-Appellees-Respondents.  



    
JOHN BARNHARDT, et als., 

Plaintiffs-Appellants-Petitioners, 

VS. 

MERIDIAN SEPARATE SCHOOL DISTRICT, et als, 

Defendants-Appellees-Respondents. 
  

DIAN HUDSON, et als, 

Plaintiffs-Appellants-Petitioners, 

UNITED STATES OF AMERICA, 

Intervenor-Appellant-Respondent, 

; vs. 

LEAKE COUNTY SCHOOL BOARD, et als., 

Defendants-Appellees-Respondents. 
  

JEREMIAH BLACKWELL, JR. et als, 

Plaintiffs-Appellants-Petitioners, 

ISSAQUENA COUNTY BOARD OF EDUCATION, et als., 

Defendants-Appellees-Respondents. 
  

CHARLES KILLINGSWORTH, et als., 

Plaintiffs-Appellants-Petitioners, 

As hand au 

ENTERPRISE CONSOLIDATED SCHOOL DISTRICT and 

QUITMAN CONSOLIDATED SCHOOL DISTRICT, 

Defendants-Appellees-Respondents. 
  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant-Respondent, 

GEORGE MAGEE, JR, 

Intervenor-Petitioner, 

VS. 

NORTH PIKE COUNTY CONSOLIDATED SCHOOL 

DISTRICT, et ole. 

Defendants-Appellees-Respondents. 

 



  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant-Respondent, 

GEORGE WILLIAMS, et als., 

Intervenors-Petitioners, 

VS. 

WILKINSON COUNTY SCHOOL DISTRICT, et als., 

Defendants-Appellees-Respondents. 

 



    

 



  

PETITION FOR REHEARING AND, IN THE 

ALTERNATIVE, CLARIFICATION 

OF MANDATE 

  

PRELIMINARY STATEMENT 

In accordance with the provisions of Rule 58 of the 

Rules of this Court, the respondents filed this petition for 

rehearing and, in the alternative, for clarification of the 

Per Curiam mandate rendered in the above styled consoli- 

dated causes on October 29, 1969, state the grounds for such 

belief as hereinafter set forth. 

I. 

The Respondents Have Not Been Accorded Due Process 

of Law. There Has Been No Hearing on the Merits by 

Any Court nor Any Opportunity for the Litigants to 

Be Heard on the Merits Through Their Attorneys. 

The nine cases consolidated for the purposes of the 

petition for writ of certiorari are a portion of the twenty- 

five cases consolidated under Docket Nos. 28,030 and 

28,042 by the Court of Appeals for the Fifth Circuit. The 

opinion therein was rendered July 3, 1969, and appears 

as U.S.A. et als., v. Hinds County, et als., not yet reported. 

As was found in such opinion, all of these school districts 

had been operating for a number of years under a Jef- 

ferson type decree which provided a freedom of choice 

plan as authorized and delineated in Jefferson II. U.S.A. v. 

Jefferson, 380 F.2d 385. 

The Per Curiam mandate dated October 29, 1969, 

after requiring that the school systems here involved 

  

 



  

  

2 

should not operate as dual school systems based on race 

but should “begin immediately to operate as unitary school 

systems within which no person is to be effectively ex- 

cluded from any school because of race or color”, provided 

as follows: 

The Court of Appeals may in its discretion direct the 
schools here involved to accept all or any part of the 
August 11, 1969, recommendations of the Department 
of Health, Education, and Welfare, with any modifica- 
tions which that court deems proper insofar as those 
recommendations insure a totally unitary school sys- 
tem for all eligible pupils without regard to race or 
color. 

The Court of Appeals for the Fifth Circuit has now 

acted under the circumstances hereinafter fully detailed. 

It has substituted for all of the Jefferson type decrees pro- 

viding for freedom of choice and has rendered a decree, 

the nature of this decree will be hereinafter described. At- 

tached to this decree are the thirty HEW plans filed on 

August 11, 1969. With the very minor exceptions detailed 

in the decree, these are put in full force and effect in every 

particular. The Court did not permit the alternate step 

procedure (referred to in many plans as “interim steps”) 

to be utilized. 

On October 29 the Per Curiam opinion of the Supreme 

Court was rendered. Copies thereof were received by at- 

torneys for the defendants on or about Friday, October 31, 

and Saturday, November 1. 

On Friday, October 31, the Court of Appeals issued its 

order directing all parties to all twenty-five suits to file 

with the Clerk of that Court on or before Wednesday, 

November 5, their recommended and proposed orders to ef- 

fectuate and implement the opinion and decree of this Court. 

Such order was received bythe attorneys for the parties 

in due course of the mails, a few being orally notified. 

 



  

3 

The order of the Court of Appeals issued on Friday, 

October 31, contained the following directions: 

Appellants, appellees and the United States of Amer- 
ica as amicus or intervenor shall file with the Clerk 
of this Court on or before the fifth day of November, 
1969, their recommended and proposed orders which 
will properly effectuate and implement the opinion 
and decree of the Supreme Court of the United States 
rendered on October 29, 1969, in the above named 

cases. 

On Monday, November 3, attorneys for the defend- 

ants were advised by telephone and otherwise to be pres- 

ent in New Orleans before the Court of Appeals at 1:00 

P.M. on Thursday, November 6, to attend a pre-order con- 

ference, and to have the superintendents of the school dis- 

tricts present at that time. 

On Wednesday, November 5, the various districts 

filed their proposed orders embodying plans which had 

been very hastily prepared and revised over the week end, 

these being in the hands of the Court for from twenty- 

four to thirty-six hours prior to the “pre-order conference” 

held at 1:00 P.M. on Thursday, November 6. In the mean- 

while, the attorneys for the private plaintiffs had sent 

to the Court copies of the several plans of desegregation 

filed by HEW on August 11. Hence a very few hours was 

consumed by the Court of Appeals in a comparison of these 

plans. 

The oral notification to attorneys for the school dis- 

tricts to be present at the “pre-order conference” on No- 

vember 6 included a statement that no arguments would 

be received on that date but there would only be a dis- 

cussion of the order. The transcript of the proceedings on 

that date includes the following description of what oc- 

curred at the “pre-order conference’: 

  

 



    

4 

(Page references are to the transcript.) 

(p. 2) Ladies and gentlemen, we have called this 

pre-order conference today for the purpose of making 
some announcements and also to exchange views. Af- 
ter we make some statements, we want everyone to 

feel free to ask questions. We don’t intend to have 
any legal arguments, as such, but we do think it would 
be well for anyone that has questions, that you feel 
free to make such inquiries as you may have. . . . 

(p. 3) We have also studied the Supreme Court de- 
cision in these cases and we are of the view that ac- 
tion is required, and immediate action. . .. 

(p. 5) We have prepared a draft order, it is not a 
final Order. We hope to put the Order out tomorrow. 
We did not want to put an order out until we had this 
conference and we want to tell you generally what is 
in the order now so that you will be advised as to 
what questions you may wish to pose. 

(p. 6) Now, we are going on then, and we say to ef- 
fectuate the conversion of these school systems to 
unitary school systems within the context of the Su- 
preme Court order the following things have to be 
done, and then generally we are putting into effect in 
every case, except the ones I will tell you about, the 
recommended plan of the Office of Education, HEW. 
And that is a permanent plan and not the interim 
plan. 

In accordance with the announcement and require- 

ment of the Court, no argument was presented by any of 

the attorneys. No briefs on the merits were prepared 

within the three business days involved nor permitted to 

be filed by the Court. No hearing of any kind was had in 

the Court of Appeals at this or any other time, concerning 

the judgments proposed to be entered and the specific, 

clear, detailed, and revoluntionary provisions thereof, em- 

bodied therein through attachment of the plans filed by 

HEW on August 11. 

 



  

5 

Never in the history of jurisprudence in the United 

States has the fundamental concept of due process of law 

been so flagrantly violated. The following has occurred: 

1. The original judgment of the Court of Appeals of 

July 3 set up a procedure whereby hearings would be had 

and due process of law completed. 

2. The amendatory order of August 28, 1969, entered 

by the Court of Appeals also set up a procedure whereby 

hearings would be had and due process of law completed. 

3. The mandate of the Supreme Court of October 29, 

1969, provided: 

The Court of Appeals may make its determination and 
enter its order without further arguments or submis- 
sions. 

4. The Court of Appeals having elected to prohibit all 

attorneys from presenting either briefs or oral arguments 

on the merits and not to consider any evidence before a 

Master or otherwise, due process of law was never accorded 

to either the United States as plaintiff or intervenor in 

twenty of these suits, nor to the school districts as defend- 

ants in twenty-five of these suits. (The Court of Appeals 

applied the mandate of this Court to all twenty-five consoli- 

dated cases.) 

Every citizen of the United States is protected by the 

constitutional guarantee of due process of law. This is 

fundamental and has always been one of the basic concepts 

of our system of justice. One of the early statements of 

this fundamental constitutional right, which lives today 

for the protection of every citizen, was made by this Court 

through Justice White in Hovey v. Elliott, 167 U.S. 409, 

42 L.Ed. 415, as follows: 

The fundamental conception of a court of justice is 
condemnation only after hearing. To say that courts 

  

 



    

6 

have inherent power to deny all right to defend an ac- 
tion and to render decrees without any hearing what- 
ever is, in the very nature of things, to convert the 
court exercising such an authority into an instrument 
of wrong and oppression, and hence to strip it of that 
attribute of justice upon which the exercise of judicial 
power necessarily depends. . . 

In Golpin v. Page, 835 US, ........ . 18 Wall, 350 [21:0591, 
the court said (p. 368 (963) ): 

“It is a rule as old as the law, and never more to 
be respected than now, that no one shall be personally 
bound until he has had his day in court, by which is 
meant, until he has been duly cited to appear, and has 
been afforded an opportunity to be heard. Judgment 
without such citation and opportunity wants all the 
attributes of a judicial determination; it is judicial 
usurpation and oppression, and can mever be upheld 
where justice is justly administered.” 

Again, in Ex parte Wall, 107 U.S. 239 [27.582], the 
court quoted with approval the observations as to “due 
process of law” made by Judge Cooley, in his Constitu- 
tional Limitations, at page 353, where he says: 

“Perhaps no definition is more often quoted than 
that given by Mr. Webster in the Dartmouth College 
Coase, 17US..... , 4 Wheat. 518 [4:629]: ‘By the law of 
the land is most clearly intended in the general law; 
a law which hears before it condemns, which proceeds 
upon inquiry and renders judgments only after trial. 
The meaning is that every citizen shall hold his life, 
liberty, property, and immunities under the protection 
of the general rules which govern society.” ” 

In Morgan v. United States of America, 304 U.S. 13, 82 

L.Ed. 1129, this Court said through Chief Justice Charles 

Evans Hughes: 

The right to a hearing embraces not only the right 
to present evidence but also a reasonable opportunity 

 



7 

to know the claims of the opposing party and to meet 
them. The right to submit argument implies that op- 
portunity; otherwise the right may be but a barren 
one. 

Here, there has never been an opportunity for evidence 

to be introduced, there has been no opportunity whatso- 

ever for the parties to be heard by their attorneys, in the 

District Court, in the Court of Appeals or in the Supreme 

Court of the United States as to any matter pertaining to 

the merits of the judgment which has been entered. The 

present judgment sets aside each judgment under which 

each of these school districts had been operating for a num- 

ber of years, a judgment theretofore approved by the Court 

of Appeals of the Fifth Circuit in Jefferson II. It has de- 

stroyed in every district freedom of choice. It has re- 

quired compulsory integration of every faculty and staff to 

the racial balance existing in the entire system. It will 

require compulsory assignment of students by use of pair- 

ing, racial zoning or direct assignment. In most instances 

this will also approach a racial balance and in every in- 

stance it is designed to and will very materially remove 

existing racial imbalance. This action falls squarely with- 

in the rules announced by this Court in Powell v. Ala- 

bama, 287 U.S. 45, 77 L.Ed. 158, in which this Court said: 

... The words of Webster, so often quoted, that by “the 
law of the land” is intended “a law which hears before 
it condemns,” have been repeated in varying forms of 
expression in a multitude of decisions. In Holden wv. 
Hardy, 169 U.S. 366, 389, 42 1..Ed. 780, 790, 18 S.Ct. 

383, the necessity of due notice and an opportunity oy 
being heard is described as among the “immutable 
principles of justice which inhere in the very idea of 
free government which no member of the Union may 
disregard.” 

And Mr. Justice Field, in an earlier case, Galpin v. 
Page, 18 Wall. 350, 368, 369, 21 L.Ed. 959, 963, 964, 

  

 



    

8 

said that the rule that no one shall be personally 
bound until he has had his day in court was as old 
as the law, and it meant that he must be cited to 
appear and afforded an opportunity to be heard. “Judg- 
ment without such citation and opportunity wants all 
the attributes of a judicial determination; it is judicial 
usurpation and oppression, and mever can be upheld 
where justice is justly administered.” 

This Court is not now considering actions taken on or 

prior to July 3, 1969. There has been mo hearing on the 

merits upon any plan of desegregation embodied in the 

judgments entered on November 7. Moreover, no court 

has permitted the plaintiff, the United States of America, 

or the defendants in these cases to be heard on the merits 

by brief or otherwise. Not one iota of testimony has been 

permitted before any court upon any portion of the judg- 

ments and plans now put into effect. 

11. 

The Judgment Now Entered by the Court of Appeals 

Conflicts with Decisions of the Courts of Appeal of 

Other Circuits. 

The judgment entered here results in complete de- 

struction of freedom of choice plans being based upon dicta 

first appearing in Adams: * 

If in a school district there are still all-Negro schools, 
or only a small fraction of Negroes enrolled in white 
schools, or no substantial integration of faculties and 
school activities then, as a matter of law, the existing 
plan fails to meet constitutional standards as estab- 
lished in Green. 

It appears that the entry of this judgment also arises 

from a misunderstanding of what constitutes a dual system 

  

1. Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968). 

 



  

9 

of schools and a misunderstanding of the clause “a unitary 

nondiscriminatory school system”. 

Through a misconstruction of the “trilogy of cases”, 

Green, Monroe and Raney, this panel of the Court of Ap- 

peals now finds itself in direct conflict with decisions of 

other circuits. The panel in Adams had before it a docket 

setting only. Yet, it seized upon numerous elements 

which were considered in combination and separated then, 

so that each separate element is now made the sine qua 

non of continuance of freedom of choice. This is also true 

in the varying definitions of what constitute the “vestiges 

of a dual school system” that must be removed. 

The Court of Appeals of the Sixth Circuit determined 

on February 10, 1969, in Goss v. Board of Education of 

Knoxville, Tennessee, 406 F.2d 1183, that the elimination 

of all-Negro and all-white schools is not a condition pre- 

cedent to either the establishment of a unitary, nonracial 

school system, or to the continuation of a freedom of 

choice plan of desegregation. In the Knoxville system 

there were five all-Negro schools and twenty-nine schools 

having faculties of only one race. It also found that in 

1960 the district had “a school system completely and de 

jure segregated both as to students and faculty”. In 

holding that the Knoxville school system was constitu- 

tionally acceptable, the Court of Appeals said: 

Preliminarily answering question I, it will be sufficient 
to say that the fact that there are in Knoxville some 
schools which are attended exclusively or predomi- 
nantly by Negroes does mot by itself establish that 
the defendant Board of Education is violating the 
constitutional rights of the school children of Knox- 
ville. Deal v. Cincinnati Bd. of Education, 369 F.2d 
55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 
39, 19 LLEd.2d 114 (1967); Mapp v. Bd. of Education, 
373 F.2d 75, 78 (6th Cir. 1967). Neither does the fact 

  

 



    

10 

that the faculties of some of the schools are exclu- 
sively Negro prove, by itself, violation of Brown. 

The Court then discussed the rule set forth in Green, 

including in the statement that the school boards are 

“charged with the affirmative duty to take whatever 

steps might be necessary to convert to a unitary system 

in which racial discrimination would be eliminated root 

and branch”. In applying this to the Knoxville District 

and discussing its effect, the Court of Appeals of the Sixth 

Circuit said: 

The Court further said that it would be their duty 
“to convert to a unitary system in which racial dis- 
crimination would be eliminated root and branch.” 
391 U.S. at 437-438, 88 S.Ct. at 1694. We are not sure 
that we clearly understand the precise intendment of 
the phrase “a unitary system in which racial dis- 
crimination would be eliminated,” but express our 
belief that Knoxville has a unitary system designed 
to eliminate racial discrimination. 

The Court brushed aside the position that different 

constitutional principles should be applied to southern 

states where there had been in the past de jure segrega- 

tion as contrasted to northern states where there had been 

in the past de facto segregation. This was of particular 

importance as Deal involved formerly de facto segregation 

and Goss involved formerly de jure segregation. The 

Court said: 

In Monroe v. Bd. of Commissioners, 380 F.2d 955, 958 
(6th Cir. 1967), we expressed our view that the end 
product of obedience to Brown I and II need mot be 
different in the southern states, where there had been 
de jure segregation, from that in morthern states in 
which de facto discrimination was a fortuity. Our 

observations in that regard were not found invalid 
by the Supreme Court’s opinion reversing our Monroe 

 



13 

decision. See Monroe v. Board of Commissioners, 391 
U.S. 450, 83 S.Ct. 1700, 20 1.Ed.2d 733 (1963). 

The constitutional principles thus found to be applica- 

ble to both southern states and northern states were 

stated by the Sixth Circuit in Deal, cited as supporting 

authority in Goss. Deal involved the Cincinnati school 

system in which de facto segregation had resulted in 

heavy racial imbalance in the schools.? Racial discrimina- 

tion may be removed by different methods, including 

freedom of choice plans, validly set up, properly admin- 

istered, with choices freely exercised without external 

pressures so that the plan itself (without regard to the 

statistical results produced by choices thereunder) is 

constitutionally acceptable. Adams and Hinds County 

are actually bottomed solely upon statistics and are in 

direct conflict with both Goss and Deal. In Deal the 

Sixth Circuit said: 

The cases recognize that the calculus of equality is 
not limited to the single factor of “balanced schools”; 
rather, freedom of choice under the Fourteenth 
Amendment is a function of many variables which 
may be manipulated differently to achieve the same 
result in different contexts. . . . 

This is in accord with our holding that bare statistical 
imbalance alone is mot forbidden. There must also 

be present a quantum of official discrimination in 
order to invoke the protection of the Fourteenth 
Amendment. . . . 

  

2. The report of the Cincinnati school system to HEW for the 

school year 1968 revealed that of the 106 schools in the Cincinnati 

Public School System, forty were composed of students of one 
race (i.e., more than 99 per cent Negro or 99 per cent white 

students), of which thirteen schools were Negro and twenty- 

seven schools were white. 

  

 



  

12 

Finally, in the one case in which a district court ap- 
parently accepted the appellants’ theory of racial 
imbalance, Barksdale v. Springfield School Comm., 
237 F.Supp. 543 (D.Mass. 1965), the first Circuit, in 
vacating the decision and dismissing the complaint 
without prejudice specifically rejected any such as- 
serted constitutional right. Springfield School Comm. 
v.. Barksdale, 348 B2d 261, 264 (1st Cir. 1965). 

Adams and its progeny, including Hinds County, are 

in direct conflict with Springfield School Committee v. 

Barksdale, 348 F.2d 361, rendered by the Court of Appeals 

of the First Circuit in 1965. The district court found that 

two of the elementary schools had over 80 percent Negro 

pupils, that fourteen elementary schools had no Negro 

pupils or less than one per cent Negro pupils, and that 

the school system was racially imbalanced. The Court of 

Appeals said: 

Having reached its conclusions, the court ordered the 
defendants to submit a plan to correct racial im- 

balance in the Springfield schools. 

The Court vacated the order of the district court and 

reversed, stating the constitutional principles as follows: 

Certain statements in the opinion, notably that 
“there must be no segregated schools,” suggest an ab- 
solute right in the plaintiffs to have what the court 
found to be “tantamount to segregation” removed at 
all costs. We can accept no such constitutional right. 
C1. Bell v. School City of Gary, 7 Cir., 1963,:324 F.24 
209, cert. den. 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.24 
216; Downs v. Board of Education, 10 Cir., 1945, 336 
F.2d 988, cert. den. 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 
300.5. 

But more fundamentally, when the goal is to equalize 
educational opportunity for all students, it would be 
no better to consider the Negro’s special interests 

   



13 

exclusively than it would be to disregard them com- 
pletely. 

The hard and fast Adams rule, the statistically-based 

Hinds County decision, and like decisions conflict with 

United States v. Cook County, 404 F.2d 1125, 1135, decided 

by the Court of Appeals of the Seventh Circuit on De- 

cember 17, 1968. The panels of this Circuit have brushed 

aside good faith. They require hard and fast statistical 

results now. To the contrary, the Court said in Cook 

County: 

There is no hard and fast rule that tells at what 
point desegregation of a segregated district or school 
occurs. The court in Northcross said the “minimal 
requirements for non-racial schools are geographic 
zoning, according to the capacity and facilities of the 
buildings and admission to a school according to 
residence as a matter of right.” 333 F.2d at 662. 
On the other hand, “The law does not require a 
maximum of racial mixing or striking a rational 

balance accurately reflecting the racial composition 
of the community or the school population.” United 
States v. Jefferson County Board, 372 F.2d 836, 847, 
n. 5 (5th Cir. 1966) oif'd en bane, 330 F.2d 385 
(5th Cir.), cert. denied, Cado Parish School Board 
vy, United States, 389 U.S. 840, 83 5.Ct. 67, 19 L.Ed.2d 
103 (1967). 

By the entry of this judgment there arises a conflict 

with the opinion of the United States Court of Appeals 

for the Tenth Circuit in Downs v. Board of Education 

of Kansas City, 336 F.2d 988 (1964), cert. denied 380 

U.S. 914, 35 S.Ct 898,.13 1.¥d.2d :.300..(19865). : This 

involved the public schools of the Kansas City, 

Kansas, school system, which was operated on a 

segregated basis prior to Brown I. Thereafter the schools 

were integrated based chiefly upon zones and neighbor- 

  

 



    

14 

hood school systems including the right of transfer. The 

Court held: 

There is. to be sure, a racial imbalance in the public 
schools of Kansas City. . . . 

Appellants also contend that even though the Board 
may not be pursuing a policy of intentional 

seosregation, there is still segregation in fact in the 
school svstem and under the principles of Brown 
v. Board of Education, supra, the Board has a 

positive and affirmative duty to eliminate segrega- 
tion in fact as well as segregation by intention. 
While there seems to be authority to support that 
contention, the better rule is that although the 
Fourteenth Amendment prohibits segregation, it does 
not command integration of the races in the public 

schools and Negro children have mo constitutional 
right to have white children attend school with 
them. (Citing authorities). 

See also Mapp v. Board of Education of Chattanooga, 

Tennessee, 373 F.2d 75, rendered by the United States 

Court of Appeals for the Sixth Circuit. This involved a 

school system in which de jure segregation continued until 

it was removed by a grade-to-grade extension of a freedom 

of choice plan resulting in “full integration of all grades in 

September 1966”. In response to an attack upon the plan 

by the plaintiffs, the Court upheld the plan and said: 

To the extent that plaintiffs’ contention is based on 
the assumption that the School Board is under a con- 
stitutional duty to balance the races in the school sys- 
tem in conformity with some mathematical formula, 
it is in conflict with our recent decision in Deal wv. 
Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 
1966). 

 



  

15 

1M. 

The Constitutional Duty to Remove Vestiges of the 

Dual System of Public Schools Does Not Require the 

Entry of These Judgments. 

The Court of Appeals has construed the Per Curiam 

order as either overruling or substantially modifying Green, 

Raney and Monroe. It has also construed such order to 

require entry of judgments resulting in compulsory integra- 

tion of students and faculty and the elimination of all fre- 

dom of choice. Confusion has arisen from the various in- 

terpretations of the duty of school boards articulated in 

Green:   
School boards such as the respondent then operating 
state-compelled dual systems were nevertheless 
clearly charged with the affirmative duty to take 
whatever steps might be necessary to convert to a 
unitary system in which racial discrimination would be 
eliminated root and branch. See Cooper v. Aaron, su- 
pra, at 7, 3 L.Ed.2d at 10; Bradley v. School Board, 
33217.8. 103, 15 1.E4d.2d 137, 86 S.Ct. 224: cf. Watson 
v. City of Memphis, 373 U.S. 526, 10 1.Ed.2d 529, 33 
S.Ct. 1314. The constitutional rights of Negro school 
children articulated in Brown I permit no less than 
this; and it was to this end that Brown II commanded 
school boards to bend their efforts. . . . Note. “We 
bear in mind that the court has not merely the power 
but the duty to render a decree which will so far as 
possible eliminate the discriminatory effects of the 
past as well as bar like discrimination in the future.” 
Louisiana v. United States, 380 U.S. 145, 154, 13 L.Ed. 
2d 709, 715, 85 S.Ct. 817. 

Although the passage of time now requires more real- 

istic results and more comprehensive steps without further 

delay, the basic constitutional principles originally an- 

nounced in Brown I have not been changed in the succeed-  



  

16 

ing pronouncements by the Supreme Court up to and in- 

cluding Carr? 

Monroe v. Board of Commissioners of the City of 

Jackson, Tennessee, 380 F.2d 955 (6th Cir.), involved 

a formerly racially segregated de jure school sys- 

tem. Because of its significance here and its direct con- 

flict with these judgments, we quote from such decisions: 

Appellants argue that the courts must now, by recon- 
sidering the implications of the Brown v. Board of Edu- 
cation decisions in 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873 (1954) and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1033 
(1955), and upon their own evaluation of the com- 
mands of the Fourteenth Amendment, require school 
authorities to take affirmative steps to eradicate that 
racial imbalance in their schools which is the product 
of the residential pattern of the Negro and white 
neighborhoods. The District Judge’s opinion discusses 
pertinent authorities and concludes that the Fourteenth 
Amendment did not command compulsory integration 
of all of the schools regardless of an honestly composed 
unitary neighborhood system and a freedom of choice 
plan. We agree with his conclusion. ... He concluded 
“We read Brown as prohibiting only enforced segre- 
gation.” 369 F.2d at 60. We are at once aware that 
we were there dealing with the Cincinnati schools 
which had been desegregated long before Brown, 
whereas we consider here Tennessee schools desegre- 
gated only after and in obedience to Brown. We are 
not persuaded, however, that we should devise a math- 
ematical rule that will impose a different and more 
stringent duty upon states which, prior to Brown, 
maintained a de jure biracial school system, than upon 
those in which the racial imbalance in its schools has 
come about from so-called de facto segregation—this 
to be true even though the current problem be the same 
in each state. 

  

3. Carr v. Montgomery County, 23 1. Ed.2d 263. 

   



17 

However ugly and evil the biracial school systems ap- 
pear in contemporary thinking, they were, as Jeffer- 
son, supra, concedes, de jure and were once found law- 
ful in Plessy v. Ferguson, 163 U.S, 537, 16 S.Ct. 1138, 
41 L.Ed. 256 (1896), and such was the law for 58 years 
thereafter. To apply a disparate rule because these 
early systems are now forbidden by Brown would be 
in the nature of imposing a judicial Bill of Attainder. 
Such proscriptions are forbidden to the legislatures of 
the states and the nation—U.S. Const. Art. I, Section 
9, Clause 3 and Section 10, Clause 1. Neither, in our 
view, would such decrees comport with our current 
views of equal treatment before the law. 

A writ of certiorari was granted by the Supreme Court 

in this case and the decision appears as Monroe. The sole 

issue in that case was the constitutionality of a “free trans- 

fer” provision in the plan of desegregation. The same suit 

again came before the Court of Appeals of the Sixth Cir- 

cuit on February 10, 1969, as Goss. The Court construed 

the holding of the Supreme Court in Monroe as follows: 

In Monroe v. Bd. of Commissioners, 380 F.2d 955, 159 
(6th Cir. 1967), we expressed our view that the end 
product of obedience to Brown I and II need not be 
different in the southern states, where there had been 
de jure segregation, from that in morthern states in 
which de facto discrimination was a fortuity. Our ob- 
servations in that regard were mot found invalid by 
the Supreme Court’s opinion reversing our Monroe de- 
cision. See Monroe v. Board of Commissioners, 391 
U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). 

When Cooper again reached the Court of Appeals of 

the Eighth Circuit the opinion was rendered as Clark v. 

Board of Education of Little Rock School District, 369 F.2d 

661, rehearing denied, 374 F.2d 569. The Court delineated 

a school system and its operation which falls within the 

constitutional mandate of the Supreme Court as follows: 

  

 



  

18 

The Constitution prohibits segregation of the races, the 
operation of a school system with dual attendance 
zones based upon race, and assignment of students on 
the basis of race to particular schools. If all of the 
students are, in fact, given a free and unhindered 
choice of schools, which is honored by the school board, 
it cannot be said that the state is segregating the 
races, operating a school with dual attendance areas 
or considering race in the assignment of students to 
their classrooms. We find no unlawful discrimination 
in the giving of students a free choice of schools. 

The school system of Little Rock had been a dual seg- 

regated school system. Hence, the decisions of the Eighth 

Circuit in Clark as well as the decision in Goss (both con- 

sidering formerly de jure segregated systems) are directly 

applicable to this judgment. 

The rule applied in Clark to the Little Rock school sys- 

tem is certainly applicable to the thirty districts here: 

Though the Board has a positive duty to initiate a plan 
of desegregation, the constitutionality of that plan does 
not necessarily depend upon favorable statistics indi- 
cating positive integration of the races. ... The sys- 
tem is not subject to constitutional objections simply 
because large segments of whites and Negroes choose 
to continue attending their familiar schools. It is true 
that statistics on actual integration may tend to prove 
that an otherwise constitutional system is not being 
constitutionally operated. However, these statistics 
certainly do not conclusively prove the unconstitution- 
ality of the system itself. . .. 

In short, the Constitution does mot require a school 
system to force a mixing of the races in school accord- 
ing to some predetermined mathematical formula. 
Therefore, the mere presence of statistics indicating 
absence of total integration does not render an other- 
wise proper plan unconstitutional. 

   



19 

The initial step to determine what are vestiges of a 

racially discriminatory dual school system (in which sep- 

aration of the races has been de jure) as distinguished 

from racially nondiscriminatory unitary school systems 

(in which separation of the races has been de facto) is to 

eliminate those elements common to both. 

Compilations before the Court of Appeals were as- 

sembled from the statistical information filed with the 

Department of Health, Education and Welfare and show 

the racial composition of schools in the one hundred largest 

school districts in this nation as of October 15, 1968. They 

were filed by school districts under the requirements of 

Title VI of the Civil Rights Act of 1964 and are upon Civil 

Rights Forms OS/CR 102-1 and OS/CR 101. Most of these 

districts have never had a dual system. 

Assuming that a school with less than one percent of 

the minority race is an all-white or all-Negro school, of the 

12,497 schools in the one hundred largest school districts in 

the United States 6,137 schools are either all-white or all- 

Negro. Thus, more than forty-eight percent of the schools 

in these districts are either all-white or all-Negro. It is 

also found that in districts having as much as twenty per- 

cent or more Negro student enrollment, only one district 

does not have within it all-Negro schools. This is the 

Rochester, New York, Monroe County School District. In 

the consolidated cases at bar only one of the thirty districts 

has less than twenty percent Negro student enrollment. 

These facts cannot be a “vestige of the dual system of 

schools” but resulted from the natural process of education 

in a unitary, non-racial school system: 

  

 



    
20 

    

Schools 

with 

Faculty Schools 

Total of of All- 

Schools One One Negro 
District in Dist. Race Race Schcols 

Chicago Public Schools, 
Chicago, Ill. 610 236 392 208 

Indianapolis Public Schs., 
Indiana 119 L 52 17 

Des Moines Community A 
Schs., Iowa 81 52 36 _. 

Boston School Dept., 
Massachusetts 196 108 56 11 

Detroit Public Schools, 
Michigan 302 10 98 67 

Special School Dist. No. 1, 
Minneapolis, Minn. 98 52 42 na 

St. Louis City Sch. Dist., 
Mo. 164 81 114 83 

Kansas City School Dist., 
Mo. 99 14 43 19 

Newark Public Schools 
Newark, N. J. 80 1 2 27 

Oklahoma City Public Sch. 
Dist., I-89, Okla. 115 5 71 15 

Dallas Indep. Sch. Dist., 
Texas 173 149 117 26 

Los Angeles School Dist., 

Calif. 591 229 359 65 

Sch. Dist: No.''1, City 
& Co. of Denver, Colo. 116 32 54 3 

District of Columbia 
Public Schools 188 26 114 114 

Gary Community Schools, 
Cary, Ind. 45 6 25 21 

Cleveland, Ohio, 
Cuyahoga Co. 180 38 115 57 

 



21 

New York City Public Schs. 
NY; N.Y. 853 221 158 113 

Houston Indep. Schools, 
Houston, Texas 225 9 139 61 

School Dist. of 
Philadelphia, Pa. 278 3 37 63 

Broussard* approved the Houston Independent School 

District as being in compliance with constitutional re- 

quirements under a freedom of choice plan. According to 

its official report as of October 15, 1968, there then re- 

mained sixty-one all-Negro schools, seventy-eight all-white 

schools, and there were eighty-six desegregated schools. 

It is clear that the following do not constitute vestiges 

of a de jure racially discriminatory dual school system: 

(1) All-Negro schools and all-white schools, identi- 

fiable as being attended by students of only one race or by 

students predominantly of one race. 

(2) Schools being served by faculty and staff com- 

posed of members of one race or composed predominantly 

of members of one race. 

(3) Schools in which the number of students of the 

two races do not materially vary from year to year, i.e, 

in which statistics do not demonstrate that the number of 

Negro students is increasing in a school attended pre- 

dominantly by white students or in which Negro teachers 

are not increasing where the faculty is composed pre- 

dominantly of members of the white race. 

We respectfully submit that the entry of these judg- 

ments was the result of a misconstruction of the Per 

Curiam order dated October 29, 1969. It is clear that the 

Court of Appeals believed it had been expressly directed 

  

4. Broussard v. Houston Ind. School District, 395 F.2d 817. 

  

 



  

22 

to enter the judgments now in effect. A clarification of 

the mandate removing this belief would permit the Court 

of Appeals to enter judgments in accordance with Green, 

Monroe, Raney and Carr and other applicable decisions of 

this court. The entry of proper judgments within the scope 

of such decisions and what we believe to be the meaning 

of the Per Curiam order would remove the above conflicts 

with other Circuits. 

ky. 

The HEW Plans, with the Inclusion of the Alternative 

or “Interim” Steps in Student and Faculty Integration, 

Would Put into Immediate Effect Unitary Racially 

Non-Discriminatory School Systems. 

The HEW plans of August 11, 1969 all included a two- 

step procedure. As to students, the first step (in most of 

the plans called an “interim” step) will result in substantial 

integration of students and faculty. These alternative or 

initial steps modify the freedom of choice plans in various 

ways including pairing of grades, closing of schools, zoning 

to bring about fixed student attendance patterns, etc. They 

generally required faculty integration to the extent of one- 

half of the ultimate requirement. 

When the Per Curiam opinion is construed in the con- 

text of previous decisions of this Court its description of 

a unitary school system is clear. The mandate would re- 

quire the Court of Appeals to enter an order as to the 

school districts: 

. . . directing that they begin immediately to op- 

erate as unitary school systems within which mo 

person should have to be effectively excluded from 

any school because of race or color. 

   



23 

The key is the removal of all discrimination, in com- 

pulsory and complete integration attained by various 

forms of mandatory asignment of students. 

It does not seem to have been generally recognized 

that the Supreme Court of the United States in Green, 

Raney, Monroe and Carr not only failed to place its stamp 

of approval upon Jefferson II, but affirmatively declined 

to hold that the Fourteenth Amendment requires com- 

pulsory integration in public schools. These cases clearly 

and unmistakably describe the school system which meets 

all constitutional guarantees. 

The key is complete and immediate removal of racial 

discrimination, and not complete compulsory integration 

of students through mandatory assignment of students by 

various means. 

In Green such system is described as: “A racially 

nondiscriminatory school system”—“a unitary, nonracial 

system of public education” —*a unitary system in which 

racial discrimination would be eliminated root and branch.” 

In Raney such system is described as: “A wunitary, 

nonracial school system”. 

In Monroe such school system is described as: “A 

racially non-discriminatory system”—"“a unitary system in 

which racial discrimination would be eliminated root and 

branch”—“a system without a ‘white’ school and a ‘Negro’ 

school, just schools”. 

In Carr such school system is described as: “A sys- 

tem of public education free of racial discrimination”—"“a 

completely unified unitary nondiscriminatory school sys- 

tem”—*“a racially nondiscriminatory school system”. 

The Supreme Court affirmatively declined to hold in 

Green that the Fourteenth Amendment requires ‘“com- 

pulsory integration”, saying: 

  

 



  

24 

The Board attempts to cast the issue in its broadest 
form by arguing that its “freedom-of-choice” plan may 
be faulted only by reading the Fourteenth Amendment 
as universally requiring “compulsory integration”, a 
reading it insists the wording of the Amendment will 
not support. But that argument ignores the thrust of 

Brown II. In the light of the command of that case, 
what is involved here is the question whether the 

Board has achieved the “racially mon-discriminatory 
school system” Brown II held must be effectuated in 

order to remedy the established unconstitutional de- 
ficiencies of its segregated system. 

The Adams dicta upon which these judgments are 

based arose through the consideration of one paragraph, 
one sentence or even a portion of one sentence in Green, 

Raney, or Monroe. A study of these opinions as a whole 

(supplemented by Carr) reveal the fallacy of the reasoning 

upon which the Adams dicta was based. The panels of 

this Court have failed to follow the teachings of these 

cases. It is only by a consideration of the many complex 

factors entering into the educational process and par- 

ticularly into the desegregation of a formerly de jure 

and formerly de facto segregated schools, that we are able 

to chart the course which is in the best interest of the 

students and of our public schools. This was the objec- 

tive stated by Mr. Justice Black in Carr. 

In Green the Supreme Court found that the school sys- 

tem of New Kent County was a dual school system and 

described such system as follows: 

. . . Racial identification of the system’s schools was 
complete, extending not just to the composition of 
student bodies at the two schools but to every facet of 
school operations—faculty, staff, transportation, ex- 
tracurricular activities and facilities. 

   



25 

In Green, Raney and Monroe there was considered 

many of the factors which, when taken as a whole and in 

combination, should be utilized in determining the applica- 

tion of the following test: 

Where the Court finds the board to be acting in good 
faith and the proposed plan to have real prospects of 

dismantling the state-imposed dual system ‘at the 
earliest practicable date” then the plan may be said 
to provide effective relief. . . . Moreover, whatever 
plan is adopted will require evaluation in practice. . . . 
The elements elucidated in these cases included: 

1. 

11 

12. 

Every facet of school operations; 

. Faculty, staff and student body; 

. Transportation and construction of new buildings; 

2 

3 

4. 

5} 

6 

7 

Extracurricular activities and facilities; 

. Majority to minority transfer; 

. Method of exercising the freedom of choice; 

. Assignment of students who did not exercise the 
freedom of choice; 

. Whether or not the “public school facilities for 
Negro pupils (were) inferior to those provided for 
white pupils”; 

. Operation of the freedom of choice plan “in a con- 
stitutionally permissible fashion”; 

. “All aspects of school life including faculties and 
staffs’; 

Whether “the board had indeed administered the 
plan in a discriminatory fashion”; 

The comparative treatment of students attempting 
“to transfer from their all-Negro zone schools to 
schools where white students were in the ma- 
jority’; 

  

 



    

26 

13. The comparative treatment of “white students 
seeking transfers from Negro schools to white 
schools”; 

14. Whether “the transfer (provision) lends itself to 

perpetuation of segregation”. 

Within the broad statements of Green fall the follow- 

ing additional phases of a school system: 

15. Athletic activities within the schools; 

16. Parent-teacher associations; 

17. Faculty and staff meetings within schools and of 
faculties and staffs of the various schools at the 
elementary, junior high school and high school 
levels; 

18. School-sponsored visitation of student body of- 
ficers and student committees; 

19. In-service training of teachers and staff to assist 
in the desegregation process; 

20. Participation by students in various types of stu- 
dent organizations. 

Yet under the Adams dicta, upon which this judg- 

ment is based (thereafter quoted by several panels) any 

one of the following factors standing alone will outlaw 

freedom of choice and require compulsory integration by 

mandatory student assignment (racial zoning or racial in- 

dividual assignments). 

If there is an all-Negro school in the district freedom 

of choice is “impermissible”; or 

If “only a small fraction of Negroes [have] enrolled 

in white schools” freedom of choice is impermissible; or 

If “no substantial integration of faculties and school 

activities” has been attained, freedom of choice is imper- 

missible. 

 



27 

On April 18, 1968, it was held in United States v. Board 

of Ed. Polk County, 395 F.2d 66, 69: 

The record here discloses what the courts have pre- 
viously commented on, that is it is rare, almost to the 
point of nonexistent, that a white child, under a free- 
dom of choice plan, elects to attend a “predominantly 
Negro” school. As this court said in the first Jeffer- 
son case: 

“In this circuit white students rarely choose to 
attend schools identified as Negro schools. . . .” 

Yet on August 20, 1968, only four months later, the 

Adams dicta outlawed any freedom of choice plan “if in a 

school district there are still all-Negro schools”. 

Again on September 24, 1968, in Graves the panel 

said: 

In its opinion of August 20, 1968, this Court noted that, 
under Green (and other cases), a plan that provides 
for an all-Negro school is unconstitutional. 

Judge Bell sounded a warning in Jefferson IV which is 

accentuated by the decision in these twenty-five consoli- 

dated cases. The deviation from accepted constitutional 

principles and the destructive effect upon the desegregation 

process is increasing with every decision by a panel of this 

Court. On July 1 of this year, Judge Bell said in Jefferson 

IV: 

I concur in the opinion and the result thereof except 
to the extent, if any, that the decisions of this court 
cited therein may exceed the requirements laid down 
by the Supreme Court in Green v. County School Board 
of New Kent County, Virginia, 391 U.S. 430 (1963); 

Raney v. Board of Education of Gould, Arkansas, 391 
U.S. 443 (1968); Monroe v. Board of Commissioners 
of the City of Jackson, Tennessee, 391 U.S. 450 (1968), 
to-wit: that the dual school systems be disestab- 

  

 



  

  

  

28 

lished. I am in fundamental disagreement with the 
approach of an appellate court stipulating the details of 
transition plans where couched in terms of constantly 
escalating interim demands. The specter of escala- 
tion, with no end in sight, retards the disestablishment 
process. 

Congress has never acted as it could have under Section 
5 of the Fourteenth Amendment to set uniform stand- 
ards for disestablishing dual school systems. Mean- 
while, no court has defined “disestablishment”. My 
view continues to be that school systems are entitled 
to know the ultimate standard. United States v. Jef- 
ferson County Board of Education, 5 Cir., 1967, 380 
F.2d 385, dissenting opinion at p. 413. 

It is clear that when the HEW plans are put into ef- 

fect as terminal plans, including the alternate or “interim 

steps” in student and faculty integration, these plans will 

be operated as unitary non-racial non-discriminatory uni- 

tary school systems, unless the Court holds that every 

single element mentioned in Green, Raney and Monroe is 

a separate sine qua non of such system. 

We respectfully submit that even if the most extreme 

interpretation were correct, alternate or “interim steps” are 

permitted. There is little difference betwen the word “im- 

mediately” used in the Per Curiam order of October 29 and 

the word “now” as was said in this connection by Judge 

Bell at the Pre-Order hearing (Tr. p.6): : 

Now, that is the language of the Supreme Court deci- 
sion. It is a little different from some of the language 
used in the other Supreme Court decisions but prob- 

ably means the same thing. 

We attach as “Exhibit A” hereto, several typical illus- 

trations of “composite building information” contained in 

the HEW plans showing the ultimate effect thereof with- 

out using the interim or alternate steps. It will be noted 

   



29 

that the student integration is substantially to a racial bal- 

ance. 

All of the 25 judgments entered in these cases 

(through attachment of detailed plans made a part of the 

general judgment) contain the ultimate mandatory provi- 

sion that “principals, teacher-aides and other staff” shall 

be assigned: 

. . . that the ratio of negro to white teachers in each 
school, and the ratio of other staff each are substan- 
tially the same as each such ratio is to teachers and 
other staff, respectively in the entire school system. 

The initial or alternative step in these judgments re- 

quired a ratio balance to the extent of 50% of the ultimate 

goal. When the Court of Appeals put into effect the ulti- 

mate goal it has resulted in judgments violating the teach- 

ing of Carr. 

  

 



  
 



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Ey, 
oat: _[haTecded 1969-40   

COMPOLLLE SLIDING TWEORMATION FORM 

Lincaln County 

BE i om id ASSERT BR LE ESE BA 

  

  

  

  

  

  

  

  

  GE
 

  

  

  

  

Capacity Students Staff 

Name of School Grades Perm, W. Ports. W N T N T Comments 

Eva Hares Hich /o—-12 5 4p Clo Bsa 2ol \ LoL au Xi 1dr ehosinm 

Loyd Staw Tr. Hyél, 4-9 2D 209 | [85 274 

LE eras Fo vs, {= 210 /2 Ef) 79 247. 

Meet Lincoln /=9 TA 222] 135) ru) 

[Fp ue Chitto 2-9 10 Fr 22/362/ 

TE Ae I 2/0 JIE a7 lpn 

Enter prise / =2 260 220 /25| B55] 

Wi 167/\ 10/2268 
  

  

                            
  

    
 



LUiLPIIG INFORMATION FORM (NEUSE 

Vr a = Thies 

  

DAEs J 24 2 2.4 
  

  

  

  

  

  

  

  

  

  

  

  

Capacity Students i! 

Name of School Grades Perm. W. Ports. W N T | Comments 
3 8] Take HAE 

dle 
| I 

Dnt sill tl te LY TL of 0 T T0220 ooo | i 
Vi - plinihe | 

Frere alll | 7-8 217 10 £27 97) rami sods | I 
H 

. | {i 

rrr BELA Ln $433 of LRA 20024 2|082 | i 
=f sing LY fr AS | 

fol a tt A Ste Vr FAVE dab-3 7 3 
GAD. Jitter ; 
ff le PTD AA RE TAAL REAL 

| 

Arr EAS 20 =02 | ets Fro | te s|agn | Fo; | db 
ND 

27.7.3 233” Ress LZ 79 £l 20 oh 
  

  

  

        

  

  

  

V4                            



  

37 

The result of the alternate or interim steps is the 

equivalent of pairing of three out of seven schools in Leake 

County; pairing of grades one through six in Franklin 

County; pairing of four out of seven schools in Lincoln 

County; pairing of seven out of twelve grades in the Holly 

Bluff District; pairing of students in three out of seven 

school buildings in the Yazoo City District and equivalent 

effect in Lauderdale County. As thus modified, freedom 

of choice would remain until September 1970 when the 

ultimate steps would be taken. 

CONCLUSION 

We respectfully submit that a rehearing should be 

granted in this matter or at least that the mandate be 

amended so as to clarify the discretion vested in the Court 

of Appeals and to also make it clear that complete integra- 

tion of students and faculty comparable to the racial com- 

position of the school system is not required. 

We hereby certify as attorneys of record for the Re- 

spondents that this Petition for Rehearing is presented in 

good faith and not for delay. 

Respectfully submitted, 

JOHN C. SATTERFIELD 

and 

JupGgeE A. F. SUMMER  



  

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Motion 

for Rehearing were served on the opposing counsel on this 

21st day of November, 1969, by mailing copies of same, 

postage prepaid, at the last known address as follows: 

Melvyn R. Leventhal 
Reuben V. Anderson 
Fred L. Banks, Jr. 

John A. Nichols 

538-1/2 North Farish Street 

Jackson, Mississippi 39202 

Jack Greenberg 
Jonathan Shapiro 
Norman Chachkin 

Suite 2030 

10 Columbus Circle 

New York, New York 

Jeris Leonard 

Assistant Attorney General 

Department of Justice 

Washington, D. C. 

Erwin N. Griswold 

Solicitor General of the U. S. Department of Justice 

Washington, D. C. 

Robert E. Hauberg 

United States Attorney 

Post Office Building 

Jackson, Mississippi 

JOHN C. SATTERFIELD 

Jupce A. F. SUMMER