Board of Public Instruction of Bay County, Florida v. Youngblood Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

    IN THE

#>itpnw GJmtrt rtf tip? In tt^  Btut
October Teem , 1970

No.

T h e  B oard of P ublic I nstruction of B at County, 
F lorida, et  al., Petitioners,

v.
J ean Carolyn Y oungblood, et al., and  

U nited S tates of A merica

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

FOR THE FIFTH CIRCUIT

F rederick B ernays W iener ,
1750 Pennsylvania Avenue, N. W., 
Washington, D. C. 20006,

Counsel for the Petitioner.
J ulian Bennett ,
P. O. Box 1177,
Panama City Florida 32401,

Of Counsel.

P ress of B yron S. Adams P rinting, Inc., W ashington, D . C.



INDEX
Page

Opinions below .............................................................  2

Jurisdiction .........................................   2

Questions presented..............................    2

Constitutional provisions and statutes involved.........  3

Statement ......................................................................  4
A. Factual background.............................................  4
B. Earlier proceedings .............................................  5
C. Present appeal and decision below.......................  6
D. Consequences of new plan directed by district

court pursuant to decision below.....................   7

Reasons for granting the w r i t ...................................... 9

Conclusion ...........   15

Appendix A—Opinion below........................................ A1

Appendix B—Order denying rehearing.........................A12

Appendix C—New plan directed by district court pur­
suant to decision below...........................................A13

1. District Court’s o rder..................................... A13
2. District Court’s plan ......................................A15

Appendix D—Legislative history of the anti-busing 
provisos of the Civil Rights Act of 1964 ................ A21



11 Index Continued

AUTHORITIES
Cases : Page

Alexander v. Board of Education) 396 U.S. 1 9 .........  10
Bell v. School City of Gary, Indiana, 324 F.2d 209, 1

certiorari denied, 377 U.S. 924 .............................. A26
Buchanan v. Warley, 245 U.S. 6 0 .............................  14
Carter v. West Feliciana School Bd., 396 U.S. 226 . . .  6
Cassell v. Texas, 339 U.S. 282 ..................................  13
Corrigan v. Buckley, 271 U.S. 323 ............................. 14
Green v. County School Board, 391 U.S'. 430 ............. 5
McDaniel v. Barresi, No. 420, this Term .................... 11
McGhee v. Spies, 334 U.S. 1 ...................................... 14
Pinellas County, Florida v. Bradley, No. 632, this

Term .................................................................9,12,14
Shelley v. Kraemer, 334 U.S. 1 ....... .................. 14
Singleton v. Jackson Municipal Separate School

Dist., 419 F.2d 1211................................................  2, 5
Swain v. Alabama, 380 U.S. 202 ........   13
United States v. Jefferson County Board of Educa­

tion, 372 F.2d 836, on rehearing in banc, 380 F.2d 
385, certiorari denied sub nom. Caddo Parish 
School Board v. United States, 389 U.S. 840 ....... 13,14

Constitution oe the U nited States :
Fourteenth Amendment.............................................  12

Section 1 .................................................................  3
Equal Protection Clause.............................. 3,13,14
Section 5 ................................................................ 2, 3

S tatutes :
Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat.

241 ....................................................... 11,12, A21, A27
Sec. 401(b) .............................................2,3,11, A23,

A24, A25, A27
Sec. 407(a)....................................................3,11,13,

A24, A25, A27
See. 410 ............................................................... 4

42 U.SjC. § 2000c(b) .................................................  3
42 U.S.C. § 2000c-6(a) ..............................................  3
42 U.S.C. § 2000c-9.................................................... 4



Index Continued iii

Miscellaneous : Page
110 Cong. Bee.:

p. 1518....................................................................A23
p. 1598 ............................... ...................................A 24
p, 2280 ....................................................................A24
p. 2805 ....................................................................A24
p. 3719....................................................................A24

pp. 5858-62 ...............................................................A25
p. 6417....................................................................A24
p. 6820 ....................................................................A25

pp. 6839-41 ...............................................................A25
pp. 8357-58 ...............................................................A25
pp. 8615-16 .............................................................. A25
p. 8621 ....................................................................A25
p. 11926 .................................................................. A24
p. 11929 .................................................................. A24

pp. 12436-37 .............................................................A25
pp. 12438-41 .............................................................A25
pp. 12706 et seq..........................................................A25
p. 12714.................................................................. A25

pp. 12715, 12717 ................  A26
p. 12717.................................................................. A26

pp. 12817 et seq..........................................................A27
p. 13310.................................................................. A27
p. 13312............ ................................................... A27

pp. 13819-22 .............................................................A27
p. 14239 ...............................................  A27
p. 14511.................................................................. A27

pp. 14631, 15869 .........................  A27



IV Index Continued

Page
A21, A22. A24, A27H, R. 7152, 88th Cong., 1st sess...

H. R. Doc. 124, 88th Cong., 1st sess.:
p. 6 ........................................................................ A21
p, 7 ..................................................   A21

H. R. Rep. 914, 88th Cong., 1st sess............................. A22
p. 5 ........................................................................ A23
p. 7 ...... A24
p. 8 4 .............  A23
Id., Part 2, pp. 21-22.............................................A23

Sen. 1731, 88th Cong., 1st sess............................. A21, A22



IN THE

iatprem e Gkmrt o f %  lo tte d  States
October Teem , 1970

No.

T h e  B oard of P ublic I nstruction of B ay County, 
F lorida, et al., Petitioners,

v.

J ean Carolyn Y oungblood, et al., and 
U nited S tates of A merica

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

FOR THE FIFTH CIRCUIT

T he B oard of P ublic I nstruction of B ay County, 
F lorida, and others, your petitioners, pray that a writ 
of certiorari issue to review the judgment of the United 
States Court of Appeals for the Fifth Circuit, entered 
in the above-entitled case on July 24, 1970.



2

OPINIONS BELOW

The opinion of the court below on the first appeal is 
reported sub nom. Singleton v. Jackson Municipal Sep­
arate School Dist. at 419 F.2d 1211. The opinion of the 
court below on the present appeal and the dissenting 
opinion on such appeal (Appendix A, infra, pp. Al-All) 
have not yet been reported.

JURISDICTION
The opinion of the court below was entered on July 24, 

1970 (Appendix A, infra, p. Al). Under the present prac­
tice of that court in school board cases, the opinion in 
such cases is issued as and for the mandate. A timely 
petition for rehearing was denied on September 11, 1970 
(Appendix B, infra, p. A12).

QUESTIONS PRESENTED

1. Whether the Constitution requires school boards to 
achieve racial balance in each school in their districts 
in an otherwise unexceptionable unitary school system, 
especially where such racial balancing can only be ob­
tained by busing nearly two thousand kindergarten through 
sixth grade schoolchildren away from their neighborhoods 
for long periods on every school day, and excludes them 
from their neighborhood walk-in schools because of their 
race or color.

2. Whether the court below, which decreed substantial 
dislocations in order to achieve racial balance in each 
school in the school district, improperly disregarded the 
explicit direction of Congress, implementing the XIV 
Amendment under Section 5 thereof in Section 401(b) of 
the Civil Rights Act of 1964, that “ ‘desegregation’ shall 
not mean the assignment of students to public schools in 
order to overcome racial imbalance.”

3. Whether the court below, which decreed substantial 
dislocations in order to achieve racial balance in each



3

school in the school district, improperly disregarded the 
explicit direction of Congress, implementing the XIV 
Amendment under Section 5 thereof in Section 407(a)(2) 
of the Civil Eights of 1964, that “ nothing herein shall 
empower any * * * court of the United States to issue 
any order seeking to achieve a racial balance in any school 
by requiring the transportation of pupils or students from 
one school to another in order to achieve such racial 
balance. ’ ’

CONSTITUTIONAL PROVISIONS AND STATUTES 
INVOLVED

1. Section 1 of the Fourteenth Amendment provides, in 
pertinent part—-

“ nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.”

2. Section 5 of the Fourteenth Amendment provides:
“ The Congress shall have power to enforce, by ap­

propriate legislation, the provisions of this article.”

3. Section 401(b) of the Civil Eights Act of 1964 (42 
U.S.C. § 2000e(b)), provides:

“ 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 na­
tional origin, but ‘desegregation’ shall not mean the 
assignment of students to public schools in order to 
overcome racial imbalance.”

4. Section 407(a) of the Civil Eights Act of 1964 (42 
U.S.C. 2000c-6(a)) provides in pertinent part:

“ Whenever the Attorney General receives a com­
plaint in writing * # * to the effect that * * * minor 
children, as members of a class of persons similarly



4

situated, are being deprived by a school board of 
the equal protection of the laws * * * the Attorney 
General is authorized * * * to institute for or in 
the name of the United States a civil action * * * 
for such relief as may be appropriate * * * pro­
vided that nothing herein shall empower any official 
or court of the United States to issue any order 
seeking to achieve a racial balance in any school by 
requiring the transportation of pupils or students 
from one school to another or one school district to 
another in order to achieve such racial balance, or 
otherwise enlarge the existing power of the court 
to insure compliance with constitutional standards.”

5. Section 410 of the Civil Rights Act of 1964 (42 
U.S.C. §2000c-9) provides:

“ Nothing in this title shall prohibit classification 
and assignment for reasons other than race, color, 
religion, or national origin.”

STATEMENT

This is another school desegregation case in which racial 
balancing has been judicially decreed. The issue now 
presented is a narrow one, enabling the facts essential 
to its resolution to be presented in brief compass.

A. Factual Background

Bay County is located in northwest Florida, in that 
State’s panhandle. The county has a total population 
of some 70,000, of which 17,000 odd are school children; 
of the latter 18% or about 3,000 are black. Petitioner 
Board of Public Instruction is currently operating two 
senior high schools, four junior high schools, and 19 ele­
mentary schools.

The bulk of the black population of Bay County is 
concentrated in an area in Panama City two miles square, 
where originally Rosenwald Junior High and Oscar Pat­
terson and A. D. Harris elementary schools were built 
to serve black students.



B. Earlier Proceedings

The present action was filed in 1963, resulting in an 
order in July 1964 for a “ grade-a-year transfer plan.” 
This plan was thereafter voluntarily accelerated by the 
Board through desegregation by six grades. The United 
States intervened in the litigation in 1966, and in April 
1967 the district court directed entry of a freedom of 
choice plan.

In that year all the black senior high school students 
were integrated into the two formerly white senior high 
schools. Then, following this Court’s decision in Green 
v. County School Board, 391 U.S. 430, further desegrega­
tion was effected, with the result that, by the school year 
1968-69, 39 per cent of the black students were enrolled 
in formerly white schools, although hardly any white 
students had transferred or been transferred to formerly 
black schools.

In April 1969, the district court entered orders ap­
proving the Board’s plan for further desegregation, but 
this was deemed inadequate by respondents and by the 
United States, both of whom appealed to the court below.

That tribunal, in a consolidated in banc proceeding in­
volving 12 other school cases, said of Bay County (Single- 
ton v. Jackson Municipal Separate School Dist., 419 F.2d 
1211, 1221-22) :

“ This system is operating on a freedom of choice 
plan. The plan has produced impressive results but 
they fall short of establishing a unitary school system.

“ We reverse and remand for compliance with the 
requirements of Alexander v. Holmes County [396 
U.S. 19] and the other provisions and conditions of 
this order.”

The foregoing ruling required further faculty desegre­
gation by February 1, 1970, but deferred further student 
desegregation until September 1, 1970. On December 15,



6

1969, following this Court’s order in another of the con­
solidated oases, Carter v. West Feliciana School Bd., 396 
U.S. 226, Mr. Justice Black ordered further student de­
segregation in Bay County by February 1, 1970, also. 
Faculty desegregation is no longer in issue.

C. Present Appeal and Decision Below

Thereafter the Department of Health, Education and 
Welfare filed a desegregation plan, to which the Board 
objected; the Board filed a plan of its own; and later 
the Board filed an amended plan, based on geographic 
attendance zones for all schools, including the remaining 
black schools; the zone boundaries of the latter had been 
drawn by the black principals of those schools without 
regard to race. As the Board’s superintendent testified 
in district court on the hearing held on those plans (Tr. 
141), “ I wanted to stay out of the statistics business, and 
in the business of children.”

The results of the three plans appear in tabular form 
in the opinion below (Appendix A, infra, p. A4, note 7):

School Cap.
9 /1 9 6 9

E n ro llm en t
H E W  P ro j. 
E n ro llm en t

B d ’s P ro j. 
E n ro llm en t

g /1 9 7 0
E n ro llm en t

W N T W N T W N T W N T

R osenw ald 1000 0 377 377 629 191 820 127 378 505 75 275 350

H a r r is 650 0 595 595 256 82 338 16 593 609 3 472 475

P a tte r so n 680 2 626 628 324 84 408 171 485 656 115 473 508

The district court approved the Board’s amended plan, 
but on appeal the court below once more reversed, saying 
(Appendix A, infra, pp. A10-A11):

“ We again note that the Bay County School Board 
has ‘produced impressive results’ in desegregation. 
At the same time, we have concluded that it has not 
gone far enough. We reverse and remand this case 
for proceedings consistent with this opinion. We 
suggest to the district court that it would be helpful 
to order that the team from HEW work with school



7

officials to revise the geographic zones proposed by 
HEW on the basis of the up to date pupil locator 
maps. These proposals should then be filed with the 
court and the parties permitted to file any objections 
or proposed modifications, after which the district 
court should hold a prompt hearing and shall ap­
prove a more effective' desegregation plan to be put 
into effect in September 1970.

“ In the light of up-dated information and other 
pertinent facts, HEW and the Board should explore 
the feasibility of retaining the classrooms especially 
designed for the Educable Mentally Retarded Unit 
at Rosenwald School. Consideration should also be 
given to retention of the County-Wide Education Media 
Center at Rosenwald or its relocation at another 
school.’’

Judge Coleman, while agreeing that the feasibility of 
retaining the Educable Mentally Retarded Program at 
Rosenwald should be explored, dissented in all other re­
spects (Appendix A, infra, p. A l l ) :

“ It seems to me that this decision again allows sta­
tistics, in isolation, to outweigh all other considera­
tions. I would hold that Bay County in fact does 
have a public school system in which no child is 
deprived of the right to attend a school on account 
of his race or color.

“ I would not further disrupt this school system 
solely to attain a more evenly distributed racial bal­
ance, which, as I understand it, is not required by 
the Constitution if the school system is a unitary 
one. ’ ’

D. Consequences of New Plan Directed by District Court 
Pursuant to Decision Below

Under the terms of the Fifth Circuit’s opinion, the 
“ prompt hearing” that the district court was directed 
to hold in order to “ approve a more effective desegrega­
tion plan to be put into effect in September 1970” was 
held on August 14, 1970. But the only guidance then



8

available to the district court was that contained in the 
following paragraph in the majority opinion (Appendix 
A, infra, p. A7):

“ The record contains suggested alternatives avail­
able to the Board which would totally eradicate all 
vestiges of the dual school system and deal with the 
problems of the flight of white parents and resegre­
gation. This could be accomplished at the junior 
high level simply by drawing a zone on the basis of 
the full capacity of the school. At the elementary 
level, the Negro schools could be paired with white 
schools. ’ ’

At such hearing, the district court with one modification 
approved a plan prepared two years previously by a De­
partment of Justice attorney in this case, which plan 
utilized Area Sixth Grade Centers in order to effect 
desegregation. The district court rejected both the Board’s 
expanded geographic zone plan as well as the HEW pair­
ing plan. The district court’s order and the plan that 
it approved are set out in Appendix C, infra, pp. A13- 
A20.

The substance of the foregoing approved plan is this:
(a) The 453 6th grade children now in six elementary 

schools (Cherry Street, Cove, Lucille Moore, Northside, 
Oakland Terrace, and St. Andrew) will be bused to the 
A. D. Harris school, where, with the 71 6th graders for­
merly there, they will constitute a student body that is 
73% white and 27% black.

(b) The 423 children formerly in A. D. Harris in grades 
from kindergarten to 5th grade will in turn be bused 
to the six schools listed in par. (a).

(c) The 467 6th grade children now in five elementary 
schools (Callaway, Cedar Grove, Millville, Parker, and 
Springfield) will be bused to the Oscar Patterson school, 
where, with the 75 6th graders formerly there, they will



9

constitute a student body that is 87% white and 13% 
black.

(d) The 508 children formerly in Oscar Patterson in 
grades from kindergarten to 5th grade will in turn be 
bused to the five schools listed in par. (c).

The elementary schools listed in par. (a) are from 
4.5 to 1.7 miles distant from A. I). Harris, those in par. 
(b) are between 5.3 to 1.5 miles away from Oscar Pat­
terson.

Those school distances necessarily do not measure the 
busing involved, inasmuch as many of the pupils originally 
attending the outlying schools lived at some distance be­
yond them and thus farther away from that part of 
Panama City where A. D. Harris and Oscar Patterson are 
located.

Consequently the busing required under the approved 
plan involves for some children round trips of 18.5, 15.5, 
14.1, and 12.5 miles. This requires such children to be 
away from their home neighborhoods from 6 :30 or 7 :15 
A.M. until between 4 and 5 :30 P.M. on each school day.

REASONS FOR GRANTING THE WRIT

This case presents essentially the same issues as does 
Pinellas County, Florida v. Bradley, No. 632, this Term, 
now pending on petition for certiorari, but with this vari­
ant, that while in the Pinellas County case the Fifth 
Circuit decreed massive busing to eliminate nine all-black 
or almost all-black schools found to be the result of housing 
patterns in St. Petersburg, here the same tribunal has 
directed extensive busing over longer distances, requiring 
young children to be away from their homes for long 
periods every day, in order to eliminate black-majority 
schools in the smaller black residential section of Panama 
City.



10

Thus in this case the court below has ruled that, even 
without any all-black schools, a unitary school system, 
ceases to be such if it includes any black-majority schools.

The dispassionate observer may well inquire, What 
constitutional, legal, or educational value is being served 
by the consequent uprooting of nearly 2000 small children 
from their homes, some of them for 10 hours each school 
day? He may similarly ask, "What rights are being vindi­
cated, what constitutional principles are being effectuated, 
by a judicial order whose traumatic effect operates only 
on the very young, beginning with kindergarten and 
stopping with the 6th grade?

It is petitioners’ view that the order in this case issued 
under compulsion of the opinion below is not required 
by anything in the Fourteenth Amendment, runs directly 
counter to the solemn direction of Congress in its im­
plementation of that Amendment, and moreover violates the 
direction of this Court (Alexander v. Board of Education, 
396 U.S. 19, 20) for “ unitary school systems within which 
no person is to be excluded from any school because of 
race or color”—for here many hundreds of school children 
are being moved long distances from their neighborhood 
schools in order to satisfy the Fifth Circuit’s predilec­
tions in respect of racial classification and percentages.

First. The public importance of the busing issue is 
attested by this Court’s order of August 31 that set for 
early argument in October a sextet of school busing cases.

Second. Up to now, however—or at least up to mid- 
September, when this petition received its final substan­
tial revision—up to then, the materials on file in those 
six cases did not fully, or, in our view, adequately, reflect 
the impressive legislative history underlying the two anti­
busing provisos now in question, a history showing with 
peculiar clarity that the concept of racial balancing as a 
form of desegregation was explicitly and emphatically



11

disapproved by Congress when it enacted the Civil Rights 
Act of 1964.

At the outset, in asking Congress to assert its authority 
to enforce the Fourteenth Amendment, the President noted 
the educational problems flowing from racial imbalance. 
The first bills thereafter introduced contained numerous 
provisions dealing with those problems, but the House 
Judiciary Committee struck out every one of them. The 
anti-racial-balancing clause now in Section 401(b) was 
accepted on the House floor by the Chairman of the 
Judiciary Committee, in charge of the bill. Following 
complaints by Southern senators that the bill as it reached 
the Senate would permit transportation of school children 
back and forth to achieve racial balance, the anti-racial- 
balancing proviso now in Section 407(a) was drafted by 
the four bipartisan civil rights leaders who directed the 
measure through the Senate. One of those leaders said 
that “ if the bill were to compel [the busing of children 
to achieve racial balance] it would be a violation, be­
cause it would be handling the matter on the basis of 
race and would be transporting children because of race.” 
An amendment to strike both anti-busing provisos, pro­
posed by the leader of the Senate opposition to the 
Civil Rights Act as a whole, was defeated 18-71.

In order to avoid unduly lengthening the body of this 
petition, we have set forth the essential features of the 
foregoing legislative history in Appendix I), infra, pp. 
A21-A27. It follows fairly closely what already appears 
in the Pinellas County petition in No. 632 at pp. 14-22, 
but adds a number of items not included there.

Third. In the Memorandum for the United States as 
Amicus Curiae filed in McDaniel v. Barresi, No. 420 of 
this Term, it is said at p. 6 (footnote omitted) :

“ 2. Equally unsound is the Georgia Supreme Court’s 
notion that the school board’s plan violates Sections 
401(b) and 407(a) of the Civil Rights Act of 1964. 
Those provisions, applying only to federal courts and



12

officials, do not purport to be prohibitions but are 
simply disclaimers of granting new power to federal 
authorities to deal with purely adventitious, de facto 
segregation. Thus, they have no effect whatever on 
the powers of a school board. See, e.g., United 
States v. Jefferson County Board of Education, supra, 
372 F.2d at 878-886; United States v. School District 
151, 286 F. Supp. 786 (N.D. 111.), affirmed, 404 F. 2d 
1125 (C.A. 7); Spangler v. Pasadena City Board of 
Education, 311 F. Supp. 501 (C.D. Cal.); Keyes v. 
School District Number One, Denver, Colo., 303 F. 
Supp. 289 (D. Col.); Sivann v. Charlotte-Mecklenburg 
Board of Education, No. 14,517 at 20-21 (C.A. 4, May 
26, 1970). See, also, 110 Cong. Rec. 1518, 1598, 12714, 
13820 (1964).”

The foregoing excerpt places the United States in the 
position of directly contradicting the civil rights leaders 
who succeeded in placing the Civil Rights Act of 1964 on 
the books, and of adopting instead the views of that 
measure’s principal opponent, who complained that it was 
a sectional bill aimed only at the South. Thus the Gov­
ernment reads the statute, not as written, but as though 
Senator Russell and his followers had succeeded in strik­
ing both anti-busing provisos from the bill, success that 
so notably eluded them in the Senate.

Otherwise stated, the Government rejects the interpre­
tation of the anti-busing provisos formulated by the spon­
sors and supporters of the Civil Rights Act of 1964 and 
instead adopts the position of the opponents of that 
measure.

Moreover, the references to legislative history in the 
quoted extract are so very fragmentary as to be com­
pletely misleading, as will be seen from the short sum­
mary in Point Second above and particularly from the 
more extended treatment appearing below in Appendix 
D, pp. A21-A27.

Fourth. This case raises the same questions regarding 
the effect to be given Congressional formulations of 
Fourteenth Amendment requirements as does the Pinellas



13

County petition in No. 632 in its Point Fourth at pp. 22- 
23. It therefore seems to us unnecessary to repeat here 
the framing of those issues already presented to the 
Court.

The Board is fully aware of the final clause of § 407(a), 
“ or otherwise enlarge the existing power of the court 
to insure compliance with constitutional standards.” The 
Board’s position is that nothing in the Constitution re­
quires racial balancing any more than anything in that 
instrument requires economic balancing or social bal­
ancing. Those are concepts that do not flow from the 
Equal Protection Clause, they are ideas sought to be 
read into that Clause by their egalitarian proponents.

In short, it is the Board’s view that, just as the Equal 
Protection Clause does not require racial balancing in 
jury selection (Cassell v. Texas, 339 U.S. 282, 286-287, 
290-291; Swain v. Alabama, 380 U.S. 202, 208-209), so 
likewise it does not require racial balancing in school ad­
ministration. Indeed, when racial balancing is undertaken 
as it has been here, there is being operated a unitary 
school system in which almost two thousand children are 
effectively excluded from the schools nearest their homes, 
simply because their race or color does not otherwise 
achieve the optimum racial percentages favored by the 
Fifth Circuit.

Fifth. As has been seen, Bay County’s school system 
is a unitary one, except, in the view of the court below, 
with respect to the schools in the black residential section 
of Panama City, whose zone boundaries resulting in black- 
majority student bodies were drawn by those schools’ 
black principals without regard to racial percentages.

The court below in the Jefferson County case (United 
States v. Jefferson County Board of Education, 372 F.2d 
836, on rehearing in banc, 380 F.2d 385, certiorari denied 
sub nom. Caddo Parish School Board v. United States, 
389 U.S. 840) drew a distinction between so-called de facto



14

segregation in the North and so-called de jure segregation 
in the South. But in situations involving school systems 
that are unitary except for the make-up of pupil popu­
lations that reflect residential patterns, such as this one 
and the Pinellas County case (No. 632, this Term), that 
distinction is demonstrably fallacious.

Residential segregation de jure emanating from legis­
lative enactment has been recognized as illegal since 1917. 
Buchanan v. Warley, 245 TJ.S. 60. Residential segregation 
stemming from private agreement in the form of restric­
tive covenants was sustained by this Court as recently as 
1926 (Corrigan v. Buckley, 271 TJ.S. 323), nor were such 
covenants outlawed until 1948. Shelley v. Kraemer, 334 
TJ.S. 1. Significantly, the companion case in that same 
litigation (McGhee v. Spies, No. 87, Oct. T. 1947) arose 
in Michigan.

Consequently the segregated housing patterns out of 
which this and many other school-busing cases arise had 
until twenty years or so ago quite as complete a de jure 
basis in the North as in the South, and therefore plainly 
can not justify different treatment in different portions 
of the country. Indeed, the line of decision in the court 
below that began with Jefferson County involves one un­
edifying paradox compounded by another equally distaste­
ful: First, an unequal sectional application of the Equal 
Protection Clause; second, classification of school children 
by race in order to end the evils of racial classification.

Sixth. It follows that the decision below runs counter 
to a solemn pronouncement made by the Congress in the 
exercise of a power specifically conferred by the Consti­
tution, does a disservice to the cause of education, and, 
by directing that children of tender school age be shipped 
back and forth like so many bags of meal, simply to re­
flect particular racial percentages, commits a present act 
of obvious cruelty in the guise of rectifying an ancient 
wrong.



15

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

Respectfully submitted.

F rederick B ernays W iener ,
1750 Pennsylvania Avenue, 1ST. W., 
Washington, D. C. 20006,

Counsel for the Petitioner.
J ulian B ennett ,
P. O. Bos 1177,
Panama City Florida 32401,

Of Counsel.

October 1970.



APPENDIX



A1

APPENDIX A 

OPINION BELOW

1ST T H E  U N IT E D  STA TES COURT OF A PPEA LS 

FO R  T H E  F IF T H  C IR C U IT

No. 29369

J ean Carolyn Y oungblood, et al.,
Plaintiffs-Appellants,

U nited S tates of A merica,
Plaintiff -Intervenor-Appellant,

versus
B oard of P ublic I nstruction of 

B ay County, F lorida, et al.,
Defendants-Appellees.

Appeals from the United States District Court for the 
Northern District of Florida

(July 24, 1970)

Before W isdom, Coleman, and S impson,
Circuit Judges.

W isdom, Circuit Judge: The Board of Public Instruction 
of Bay County, Florida, faces fewer desegregation problems 
than do most school boards. This Court found, last Decem­
ber, that the freedom of choice plan in Bay County “ has 
produced impressive results” ,1 although “ it fall[s] short 
of establishing a unitary school system”.2 As of February

1 This is one of the en bane school eases decided by this Court on
December 1, 1969. Singleton v. Jackson Municipal Separate School 
District, 5 Cir. 19 , F.2d [No. 26,285, ], rev’d in part,
Carter v. West Feliciana Parish School Board, 38 U.S.L.W. 3265, 
January 14, 1970.

2 Id.



A2

6, 1970, there were only 3,028 blacks (17%) as compared 
with 14,629 whites (83%) enrolled in public schools.3 There 
are only three schools (Rosenwald Junior High and Harris 
and Patterson elementary schools) that pose a serious 
problem. These were originally built to serve Negroes in 
a Negro residential area in Panama City, hut the area is 
not extensive and the combined enrollment of pupils in 
these schools is only 1,413 or less than seven per cent of 
the total school population of the district. There is no 
serious busing problem.4 Bay County, located in the 
Florida panhandle, has a population of 70,000. Most of 
its residents and schools are in the Panama City area.

After the Supreme Court’s holding in Carter v. West 
Feliciana Parish School Board, 1970, H.S. ,
S.Ct., 24 L.Ed. 2d 477, a companion case to this case, and 
after remand of this case to the district court, the School 
Board and Health, Education, and Welfare Department 
filed desegregation plans. HEW acted through the Florida 
School Desegregation Consulting Center, University of 
Miami. The Center is partially funded by HEW and 
works with the Office of Education in school desegregation 
matters within the State of Florida to devise desegrega-

8 The Bay County school system is composed of 2 senior high 
schools, 4 junior high schools, 19 elementary schools and 1 voca­
tional school.

4 The record is not fully developed on the amount of transporta­
tion required under the two plans. The Superintendent testified 
that implementation of the HEW plan would require the busing 
of 897 students more than the 5,134 being bused under free choice. 
However, of the students being bused, only 3,117 lived more than 
2 miles from school and so were required by Florida law to be 
transported.

In this regard, the record indicates that Bay County transported 
6,297 students in 1968-69. For that year, only four schools in the 
system had no transported students. Harris was the only Negro 
school without bused students. The system currently operates 45 
buses.



A3

tion plans. A plan was formulated by a team from the 
Center, headed by Dr. Gordon Foster of the University of 
Miami, who is Director of the Center, and composed of 
eleven staff members, and nine special consultants, includ­
ing educators from two other Florida school districts and 
from faculties of several universities both in Florida and in 
other states.5

The Board filed objections to the HEW plan and on 
January 14 filed a proposed plan which called for the 
conversion of the three remaining black schools to special 
centers and the assignment of regular black students to 
white schools. On January 26, the day before the hearing 
in the district court, the school board filed an Amended 
Proposed Plan, which provides for geographic attendance 
zones for all schools of the system. This Amended Plan 
stated that the Board had formally rescinded its previous 
plan.

Under all three plans, the school board would move from 
a free choice system to a geographic zoning system. The 
essential difference in the plans is that under the Board’s 
plan there would be little desegregation in the remaining

5 The desegregation plan prepared by the Florida School De­
segregation Consulting Center (HEW) had three key objectives:

(1) Moving the Bay County schools from a freedom of choice 
assignment pattern at the junior and senior high and ele­
mentary grade levels to assignments by geographic zones at 
all levels;

(2) Desegregating the student bodies at the three schools which 
were currently all-black or nearly so—Harris Elementary, 
100% black; Patterson Elementary, 99.7% black; and Rosen- 
wald Junior High, 100% black; and

(3) Desegregating the schools in such a manner as to minimize 
additional transportation Costs and at the same time lessen 
the probability of “ white flight” or the transfer of students 
to private schools.



A4

Negro schools6 and for at least one of these schools it 
appears the zone was drawn in a manner that restricts 
desegregation. In contrast, under the HEW plan an af­
firmative effort is made to desegregate the three schools 
and to do so in such a manner as to “ minimize additional 
transportation costs and at the same time lessen the prob­
ability of ‘white flight’ or the transfer of students to 
private schools. ’ ’7

We turn now to the three problem schools, traditionally 
all-Negro. Rosenwald, which originally served grades 7-12, 
has a capacity for 1,000 students. Since the high school 
grades were phased out, the school has served only 350 
Negro junior high students. At the same time the three 
white junior highs have been filled to capacity for several 
years. However, rather than assign white students to 
Rosenwald to relieve overcrowding, the Board established 
seventh grades at two white elementaries, Millville and 
Hutchison Beach, which enroll about 450 junior high age 
students.

The Board’s zone for Rosenwald is not based on the 
school’s full capacity, but rather duplicates the limited

6 The Superintendent testified that the zones for the black schools 
were drawn by the principals of these schools and were drawn 
without regard to race. He testified no attempt was made to de­
termine how many blacks and whites were in each zone; that no 
attempt was made to draw zones so as to have both, blacks and whites 
represented; and that no attempt was made to draw the zones so 
they would affirmatively promote desegregation.

7 The effect of the two plans on the three traditionally Negro 
schools is shown by the following chart:

School Cap.
9 /1969

E n ro llm en t
H E W  P ro j. 
E n ro llm en t

B d ’s P ro j. 
E n ro llm en t

2 /1 9 7 0
E n ro llm en t

W N T W N T W N T W N T

B osenw ald 1000 0 377 377 629 191 820 127 378 505 75 275 350

H a r r is 650 0 595 595 256 82 338 16 593 609 3 472 475

P a tte rso n 680 2 626 628 324 84 408 171 485 656 115 473 508



A5

enrollment of tlie school under free choice. Thus, while 
the school has a capacity of 1,000, the Board’s zone was 
drawn to fill the school to half that number (505), and the 
actual enrollment in February (350) constitutes about % 
of the school’s full capacity. The effect is to restrict the 
geographic area which the school serves, with the result 
that the school remains predominantly black.

In contrast, HEW proposed zoning 820 students into 
Rosenwald, about 180 less than the full capacity (which 
would leave space for some special classes or projects, isuch 
as the Educable Mentally Retarded Unit). Thus, the at­
tendance zone would necessarily cover a larger geographic 
area, with the result that a greater number of white stu­
dents would be within the Rosenwald zone. There would be 
sufficient space in the junior highs for the special seventh 
grades at Millville and Beach elementaries to be absorbed 
in the regular junior high program.

Under the Board’s plan, Patterson and Harris would 
each serve grades K-6. Because of residential patterns 
both schools remain majority Negro. As of February 6, 
Harris had only 3 of a projected 16 whites enrolled, while 
Patterson was attended by 115 of a projected 171 whites.

In order to reduce the probability of white flight from 
these schools and their re-segregation, HEW proposed that 
Harris and Patterson schools be paired with nearby white 
elementaries. Under this proposal, Patterson would be 
paired with Millville (approximately 2 miles away) in a 
single geographic zone. Harris would be paired with North- 
side, approximately 2% miles away, in a similar large zone.

All students within each zone would attend grades K-3 at 
the white school, and grades 4, 5, and 6 at the Negro school. 
Under such a combination geographic zone-pairing assign­
ment provision, each school would have a substantial white 
enrollment. HEW projected that under its proposed zones, 
each school would be about 75% white.

As Florida law requires students living more than two 
miles from their school to be transported, the pairing



A6

proposal would necessitate the transportation of a number 
of students. Of these schools, only Patterson has had a 
substantial number of its students transported in the past.

At the elementary level, HEW also proposed retaining 
two “ transportation islands”, or small non-contiguous 
zones, previously employed by the Board to implement dis­
trict court orders directing that Negro schools be closed 
and their students reassigned to white schools. The limited 
number (not more than 71) Negro students from these 
-small zones would be transported to two traditionally white 
elementaries. However, even if these students were as­
signed to the schools nearest their homes, the HEW pro­
jections indicate it would not affect the majority white 
enrollments at the schools.

Despite the circumstances which suggest that a plan 
could be devised which would eliminate vestiges of discrimi­
nation in Bay County, the Board adopted a student assign- 
ment plan that to a great extent perpetuates ‘ ‘ the comfort­
able security of the old, established discriminatory pat­
tern”. Monroe v. Board of Commissioners, 1968, 391 U.S. 
450, at 459, 88 S.Ct. 1700, 20 L.Ed. 2d 733.

According to the testimony of the Superintendent at the 
February hearing only 385 of the approximately 2530 Negro 
junior high and elementary students would be zoned into 
white schools under the Board’s plan. This number is 
substantially less than the number of Negro students en­
rolled in these -schools in September 1969 under the free 
choice plan. Thus, strict adherence to the geographic zones 
would have the effect of trapping Negro students in Negro 
schools. However, the Board adopted the policy of assign­
ing to white schools all Negro students who had chosen to 
attend these schools under free choice, regardless of the 
location of their residences. Thus, the 1286 Negro students 
shown in the February report to be enrolled in white 
schools represents not only those zoned into white schools, 
but also all others who had selected them under free 
choice. At the same time, the three remaining Negro 
schools have enrollments of 60%-99% black.



A7

The report with the court shows that as of February 6, 
of the 314 whites which the Board projected would be zoned 
into black schools only 193 of these were actually in attend­
ance. This is hardly unexpected in light of the fact that 
in the past no whites (other than a handful of kindergarten 
students) had chosen to attend Negro schools, despite the 
Board’s proposal to improve Negro schools in order to 
attract whites.

As we see it, the zone for Rosenwald should be based on 
the full capacity or nearly full capacity of that school, as 
proposed by HEW. (But see the last paragraph of this 
opinion.) Such a zone could, as the HEW proposal sug­
gests result in a majority white student population at the 
school. At the elementary level, the Board made no affirma­
tive effort to desegregate the two remaining Negro schools. 
Indeed, as the Superintendent testified, no attempt was 
made to determine the effect the Board’s zones would have 
on desegregation and the Board rejected reasonably avail­
able alternatives proposed by HEW which would have 
totally desegregated these 'Schools.

The record contains suggested alternatives available to 
the Board which would totally eradicate all vestiges of the 
dual school system and deal with the problems of the flight 
of white parents and resegregation. This could be accom­
plished at the junior high level simply by drawing a zone on 
the basis of the full capacity of the school. At the elemen­
tary level, the Negro schools could be paired with white 
schools.

This Court requires school boards to draw zone lines so 
as to affirmatively promote desegregation of racially dual 
school systems. Valley v. Rapides Parish School Board, 5 
Cir. 1970, F.2d [No. 29,237, March 6, 1970;] United 
States v. Indianola Municipal Separate School District, 5 
Cir. 1969, 410 F.2d 626 cert, denied 38 L.W. 3254; United 
States v. Greemvood Municipal Separate School District, 5 
Cir. 1969, 406 F.2d 1086; Davis v. Board of School Com­
missioners of Mobile County, 5 Cir. 1968, 393 F.2d 690,



A8

694; Henry v. Clarksdale Municipal Separate School Dis­
trict, 5 Cir. 1969, 409 F.2d 682; United Slates v. Choctaw 
County Board of Education, 5 Cir. 1969, 417 F.2d 838; 
Braxton v. Board of Public Instruction of Duval County, 5 
Cir. 1968, 402 F.2d 900. We approve the pairing of schools 
to promote desegregation. See, e.g., Hall v. St. Helena 
Parish, 5 Cir. 1969, 417 F.2d 801 at 809; United States v. 
Choctaw County, 5 Cir. 1969, 417 F.2d 838 at 842; Dowell v. 
Board of Education of Oklahoma City, 10 Cir. 1967, 375 
F.2d 158. See also Green v. County School Board of New 
Kent County, , 391 U.S. at 442, n. 6; Raney v. Gould 
School District, , 391 U.S. at 448.

This Court’s decisions in United States v. Greenwood 
Municipal Separate School Dist., 5 Cir. 1969, 406 F.2d 
1086; Henry v. Clarksdale Municipal Separate School Dist., 
5 Cir. 19 , 409 F.2d 682, cert, denied, 1969, 396 TJ.S. 940;
and United States v. Indianola Municipal Separate School 
Dist., 5 Cir. 1969, 410 F.2d 626, cert, denied, 1970, 24 L.Ed. 
2d 503; accord, Valley v. Rapides Parish School Bd., 5 Cir. 
1970, F.2d [No. 29,337, March 6, 1970], makes 
abundantly clear that a school board does not meet its con­
stitutional duty to disestablish the dual school system by 
drawing geographic attendance zones according to every 
other possible criterion except promotion of desegregation. 
Without such a consideration of a plan’s ability to effect 
desegregation, geographic zoning is no more acceptable 
constitutionally than freedom of choice.

In Greenwood, we said:
Counsel for the school board argues that a geographic 
zone does not contravene the Fourteenth Amendment 
if it is drawn according to objective criteria and not 
along racial lines. This assessment of the equal protec­
tion clause as it applies to school desegregation fails 
to take into account the affirmative duty of school 
boards in this Circuit to abolish state-compelled educa­
tional segregation and establish in its place a unitary 
system. This affirmative duty was spelled out in Jef­
ferson and reaffirmed in Green and Raney.

Id. at 1093.



A9

And in Henry v. Clarks dale, this Court declared a geo­
graphic zoning plan constitutionally impermissible where 
it was ishown to freeze in past discrimination and to be 
formulated with concern for disturbing the patrons as 
little as possible in their established ischool attendance pat­
terns rather than effecting desegregation. In a context 
where residential segregation was apparently present, the 
Court indicated that that factor was irrelevant to the con­
stitutional issues:

. . . The ultimate inquiry is not whether the school 
board has found some rational basis for its action, but 
whether the Board is fulfilling its duty to take affirma­
tive steps, spelled out in Jefferson and fortified by 
Green, to find realistic measures that will transform 
its formerly de jure dual segregated school system into 
a unitary, non-racial system of public education.

Id. at 687.

This Court went on to hold that basic criteria such as maxi­
mum utilization of school buildings, density of population, 
proximity of pupils to schools, natural boundaries and wel­
fare of students could be used by school boards to deter­
mine zoning configuration, except where the net effect 
would be to freeze in past discrimination. In no event 
were “ historical boundaries” —• those that historically 
separated white and Negro residential areas — to be con­
sidered natural boundaries in arriving at attendance zones. 
Id., 687-688. But these were not the only criteria neces­
sary to meet the constitutional requirements. As this 
Court indicated:

. . . '[T]here is a sixth basic criterion . . . promotion 
of desegregation. Jefferson, Stell, Davis, Braxton, 
Polk County, Carr, Bessemer, Adams, Graves and 
Greenwood and other cases decided by this Court, and 
now Green v. County School Board of New Kent 
County, require school authorities to take affirmative 
action that will tend to eradicate all vestiges of the dual 
system. For example, given a choice of alternatives, 
a school board should draw zone lines, locate new 
schools, consolidate schools, change feeder patterns,



A10

and resort to other measures that will reduce the effect 
of past patterns tending to maintain segregation (or 
token desegregation). ‘ ‘Where the board is under com­
pulsion to desegregate the schools . . .  we do not think 
that drawing zone lines in such a manner as to disturb 
the people as little as possible, is a proper factor in 
rezoning the schools.”

Id., at 688.

We reiterate what was said in United States v. Jefferson 
County, 5 Cir. 1966, 372 F.2d 836, 876.

The Constitution is both color blind and color con­
scious. To avoid conflict with the equal protection 
clause, a classification that denies a benefit, causes 
harm, or imposes a burden must not be based on race. 
In that sense, the Constitution is color blind. But the 
Constitution is color conscious to prevent discrimina­
tion being perpetrated and to undo the effects of past 
discrimination. The criterion is the relevancy of color 
to a legitimate governmental purpose.

At this point, and perhaps for a long time, true nondis­
crimination may be attained, paradoxically, only by taking 
color into consideration. Accord, Board of Public Instruc­
tion of Duval County v. Braxton, 5 Cir. 1968, 402 F.2d 900; 
United States v. Board of Public Instruction of Polk Coun­
ty, 5 Cir. 1968, 395 F.2d 66; Wanner v. County School Bd. 
of Arlington County, 4 Cir. 1966, 357 F.2d 452; Dowell v. 
School Bd. of Oklahoma City, W.D. Okla. 1965, 244 F. 
Supp. 971, aff’d 375 F.2d 158 (10th Cir.)., cert, denied, 
1967, 389 U.S. 847.

We again note that the Bay County School Board has 
“ produced impressive results” in desegregation. At the 
same time, we have concluded that it has not gone far 
enough. We reverse and remand this case for proceedings 
consistent with this opinion. We suggest to the district 
court that it would be helpful to order that the team from 
HEW work with school officials to revise the geographic



A l l

zones proposed Tby HEW on the basis of the up to date 
pupil locator maps. These proposals should then be filed 
with the court and the parties permitted to file any objec­
tions or proposed modifications, after which the district 
court should hold a prompt hearing and shall approve a 
more effective desegregation plan to be put into effect in 
September 1970.

In the light of up-dated information and other pertinent 
facts, HEW and the Board should explore the feasibility 
of retaining the classrooms especially designed for the 
Educable Mentally Retarded Unit at Rosenwald School. 
Consideration should also be given to retention of the 
County-Wide Education Media Center at Rosenwald or its 
relocation at another school.

The judgment is REVERSED and REMANDED for 
proceedings consistent with this opinion.
Coleman, Circuit Judge, Concurring in part and dissenting 
in part:

In this case, the Department of Health, Education and 
Welfare recommended that the Bay County Educable 
Mentally Retarded Program, established in 1967 at Rosen­
wald, be relocated. The majority of this Panel directs that 
the feasibility of retaining this program at Rosenwald be 
explored. In this I heartily concur.

In all other particulars I respectfully dissent. It seems 
to me that this decision again allows statistics, in isolation, 
to outweigh all other considerations. I would hold that 
Bay County in fact does have a public school system in 
which no child is deprived of the right to attend a school 
on account of his race or color.

I would not further disrupt this school system solely to 
attain a more evenly distributed racial balance, which, as I 
understand it, is not required by the Constitution if the 
school system is a unitary one.

I would affirm the Judgment of the District Court.



A12

APPENDIX B

ORDER DENYING REHEARING

U N IT E D  STA TES COU RT OE A PPEA L S 

F IF T H  C IR C U IT  

O F F IC E  OF T H E  C LER K

September 11, 1970
Edward W. Wadsworth 

Clerk
Room 408-400 Royal St. 
New Orleans, La. 70130 
(504) 527-6514

To A ll P arties L isted B elow

R e : No. 29369—Youngblood, et al v. Board of Public 
Instruction of Bay County, Fla., et al

Gentlemen:
You are hereby advised that the Court has today entered 

an order denying the Petition ( ) for Rehearing in the
above case. No opinion was rendered in connection there­
with. See Rule 41, Federal Rules of Appellate Procedure 
for issuance and stay of the mandate.

Coleman, Circuit Judge, dissents.

Very truly yours,

E dward W . W adsworth,
Clerh

By F rances W olff 
Deputy Clerh



A13

APPENDIX C
NEW PLAN DIRECTED BY DISTRICT COURT 

PURSUANT TO DECISION BELOW
I. District Court's Order

IN ' T H E  U N IT E D  STATES D ISTR IC T  COURT EOR T H E  

N O R T H E R N  D ISTR IC T  OE FLORIDA 

M A R IA N N A  D IV ISIO N

Marianna Civil Action No. 572 
J ean Carolyn Y oungblood et al, Plaintiffs,

U nited S tates of A merica, Plaintiff-hitervenor,
vs.

T he B oard of P ublic I nstruction of B ay County, F lorida 
et al, Defendants.

Order

Pursuant to the order of this Court entered in the above 
styled cause on August 3, 1970, representatives of the Office 
of Education, Department of Health, Education and Wel­
fare met with defendant school officials to attempt to work 
out a plan to convert the existing Bay County system to 
a unitary system in light of the July 24, 1970 decision of 
the United States Court of Appeals for the Fifth Circuit. 
The defendants and officials of the Office of Education were 
unable to agree to a desegregation plan. Therefore, the 
defendant school board submitted a proposed plan to the 
Court and HEW prepared and submitted its proposed plan. 
The Court held a pretrial conference followed by a hearing 
in open Court to consider these plans and held that both 
jilans were unacceptable. An alternate plan was presented 
to the Court which all parties agree can establish a unitary 
school system in Bay County, Florida, a copy being at­
tached hereto and made a part hereof.

The Court having considered said plan, it is hereby 
ordered:

1. That the attached plan is hereby approved and shall 
be implemented by the Bay County School Board immedi­
ately.



A14

2. The school board shall prepare and lute in. this Court 
with copies to all counsel a report on the usual forms here­
tofore required in this case by this Court, on or before 
September 15, 1970.

3. The attached plan is hereby modified and amended 
to substitute a new zone for the Parker Elementary 
School zone as follows:

Beginning at the intersection of Martin Bayou Bridge 
and Cherry Street, East on Cherry Street to TJ. S. 
Highway 98, South on TJ. S. Highway 98 to Hickory 
Street, East on Hickory Street and Hickory Street 
Extension to mouth of Bailey Bayou, East down the 
middle of Bailey Bayou to Callaway Bayou, South 
along the center of Callaway Bayou to East Bay, East 
through the center of East Bay, East through the 
center of East Bay to Bay-Gulf County Line, 
South on the County Line to the Gulf of Mexico, West 
along the shoreline of the Gulf of Mexico to the easterly 
border of Tyndall Air Force Base Reservation, North 
along easterly border of the Tyndall Air Force Base 
Reservation to East Bay, West through the center of 
East Bay and St. Andrew Bay to the mouth of Martin 
Bayou, North along the center line of Martin Bayou to 
point of beginning.

4. The Court reserves jurisdiction of this cause to evalu­
ate the plan in practice to determine that a unitary school 
system is established in Bay County, Florida.

5. All other provisions of this Court’s order of January 
30, 1970, except as herein specifically modified, shall remain 
in full force and effect.

DONE and ORDERED in Chambers in Tallahassee, 
Florida, this 14th day of August, 1970.

/s /  David L. Middlebbooks 
David L. Middlebrooks 

United States District Judge



A15

2. District Court's Plan

[Caption Omitted]
PROPOSED DESEGRATION PLAN 

UTILIZING AREA SIXTH GRADE CENTERS 
AT HARRIS ELEMENTARY SCHOOL AND 

PATTERSON ELEMENTARY SCHOOL

Prepared by:
T he B ay County S chool B oard 

( F ormerly
T he B oard of P ublic I nstruction 

of B ay County, F lorida)

August 14, 1970

BAY C O U N T Y  SC H O O L BOARD REV ISED  JU S T IC E  

D E PA R T M E N T  P L A N

August 1970 
A. D. Harris Area 6th Grade Center
All students and teachers from the sixth grades of the 
following elementary schools shall attend A. D. Harris 
Area 6th Grade Center:

SCHOOL NUMBER OF STUDENTS
Cherry Street 98
Cove 64
A. D. Harris 71
Lucille Moore 95
Northside 77
Oakland Terrace 83
St. Andrew 36

T otal 524



White
Black

A16

73%
27%

385 
139

Total 524 100%
Capacity 527
Total K-5 Students Transferring Out 423

The Board shall assign the pupils and teachers of grades 
K-5 at Harris to the elementary schools listed above. Ad­
joining school zones will be adjusted and transportation 
islands developed in re-assigning the K-5 students to the 
nearest school center.



A17

BAY C O U N T Y  SC H O O L BOARD REV ISED  JU S T IC E  

D E PA R T M E N T  P L A N

August 1970
Oscar Patterson Area Sixth Grade Center
All students and teachers from the sixth grades of the fol­
lowing elementary schools shall attend the Oscar Patterson 
Area Sixth Grade Center :

SCHOOL NUMBER OF STUDENTS
Callaway 110
Cedar Grove 61
Millville 54
Parker 111
Patterson 75
Springfield 131

T o t a l 542

White 469 8 7 %
Black 73 1 3 %

Total 542 100%
Capacity 618
Total K-5 Students Transferring Out 508

The Board shall assign the pupils and teachers of grades 
K-5 at Patterson to the elementary schools listed above. 
Adjoining school zones will be adjusted and transportation 
islands developed in re-assigning the K-5 students to the 
nearest school center.



A18

BAY C O U N TY  SC H O O L BOARD REVISED JU S T IC E  

D E PA R T M E N T  PL A N

August 1970
J unior H igh S chools 

Everitt Junior High School
Beginning at the intersection of East Avenue and Easterly 
extension of 19th Street, proceeding easterly along the 
easterly extension of 19th Street to the Bay-Gulf County 
Line, South on the County Line to the Gulf of Mexico, West 
along the shoreline of the Gulf of Mexico to the Eastern 
border of Tyndall Air Force Base Reservation, North along 
the eastern border of the Tyndall Air Force Base Reserva­
tion to East Bay, West through the center of East Bay and 
St. Andrew Bay to the mouth of Watson Bayou, North up 
the center of Watson Bayou to Business Highway 98, East 
on Business Highway 98 to East Avenue, North on East 
Avenue to point of beginning.

White 996 91%
Black 103 9%

Total 1099 100%
Capacity 1465

Mowat Junior High School
Begin at a point on the Gulf and Bay County Line, on a 
line projected easterly from the junction of Highway 231 
and State Road 77, proceed west to the junction of U. S. 
Highway 231 and State Road 77, south on Highway 231 to 
the junction of the St. Andrew Bay Railroad. Follow St. 
Andrew Bay Railroad westerly to the east shore of St. 
Andrew Bay, west to a projected point in the center of 
Hathaway Bridge, northerly through the center line of 
North Bay to a center line of the junction of North Bay 
and West Bay, proceed through the center line of West 
Bay to a projected line east and west from Breakfast



A19

Point, west to the Walton County Line, proceed north and 
clockwise to Washington, Jackson, Calhoun, and Gulf Coun­
ties to a point of beginning.

White 1161 97%
Black 41 3%

Total 1202 100%
Capacity 1184

BA T C O U N T Y  SC H O O L BOARD REV ISED  JU S T IC E  

D E PA R T M E N T  P L A N

August 1970
J unior H igh S chools 

Jinks Junior High School
Beginning at a point where Business Highway 98 crosses 
Watson Bayou, proceed west on Business Highway 98 to 
Cove Boulevard, North on Cove Boulevard to Highway 231, 
Southwest on Highway 231 to the junction of the St. Andrew 
Bay Railroad, follow St. Andrew Bay Railroad westerly 
to the east shore of St. Andrew Bay, West to a projected 
point in the center of Hathaway Bridge, Northerly through 
the center line of North Bay to a center line to the junction 
of North Bay and West Bay, proceed through the center 
line of West Bay to a projected line east and west from 
Breakfast Point, West to the Walton County Line, South 
on the Walton County Line to the Gulf of Mexico, follow 
the shoreline of the Gulf of Mexico easterly to St. Andrew 
Bay, East through St. Andrew Bay to the projected center 
point of Watson Bayou, Northerly in Watson to the point 
of beginning.

White 1111 77%
Black 332 23%

Total
Capacity

1443
1670

100%



A20

Rosenwald Junior High School
Beginning at the intersection of Cove Boulevard and Busi­
ness Highway 98, north on Cove Boulevard to intersection 
of Bay Line Railroad, east on an easterly extension of 19th 
Street to East Avenue, south on East Avenue to Business 
Highway 98, west on Business Highway 98 to the point of 
beginning. All junior high school students residing on Tyn­
dall Air Force Base Reservation will attend Rosenwald Jr.
High School.

White 359 56%
Black 284 44%

Total 643 100%
Capacity 663

The Board shall adjust zones and assignments in accord­
ance with the capacity of this school center, provided a ma­
jority white regular Grades 7-9 enrollment is maintained 
at Rosenwald; provided further, that the Board is not re­
quired to move the existing Media Center and Special 
Education Center from Rosenwald.
The Board shall have the authority to adjust zones and 
assignments in accordance with the capacity of each school 
center in the county, provided such adjustments do not 
affect the desegregation intent of this order.
The Board shall have the right to allow any student to 
attend a school outside their attendance zone for compelling 
physical and emotional disabilities.
The Board shall endeavor to maintain the current student 
capacity at Rosenwald.



A21

APPENDIX D
LEGISLATIVE HISTORY OF THE ANTI-BUSING 

PROVISOS OF THE CIVIL RIGHTS 
ACT OF 1964

1. The measure that became the Civil Rights Act of 
1964 was recommended to Congress by President Kennedy. 
He requested Congress to “ assert its specific constitutional 
authority to implement the 14th Amendment” (H.R. Doc. 
124, 88th Cong., 1st sess., June 19, 1963, p. 6) with respect 
to achieving desegregation in the public schools, first by 
accelerating the litigation process, second by a program 
of technical and financial assistance to school districts ‘ ‘ en­
gaged in the process of meeting the educational problems 
flowing from desegregation or racial imbalance * * * ” 
(id., p. 7; italics added).

2. The first version of the bills introduced immediately 
thereafter and designed to effectuate the Presidential 
message (H.R. 7152, Sen. 1731; both 88th Cong., 1st sess.) 
had identical provisions. Title III of each, entitled “ De­
segregation of Public Education,” contained no less than 
five subsections specifically looking to the correction of 
racial imbalance (italics added):

“ Sec. 303. (a) The commissioner is authorized,
upon the application of any school board, State, mu­
nicipality, school district, or other governmental unit, 
to render technical assistance in the preparation, adop­
tion, and implementation of plans for the desegrega­
tion of public schools or other plans designed to deal 
with problems arising from racial imbalance in public 
school systems. Such technical assistance may, among 
other activities, include making available to such agen­
cies information regarding effective methods of coping 
with special educational problems occasioned by de­
segregation or racial imbalance, and making available 
to such agencies personnel of the Office of Education 
or other persons specially equipped to advise and 
assist them in coping with such problems.

“ (b) The Commissioner is authorized to arrange, 
through grants or contracts, with institutions of higher 
education for the operation of short-term or regular



A22

session institutes for special training designed to im­
prove the ability of teachers, supervisors, counselors, 
and other elementary or secondary school personnel to 
deal effectively with special educational problems oc­
casioned by desegregation or measures to adjust racial 
imbalance in public school systems. * * *

“ Sec. 304 (a) A school board which has failed to 
achieve desegregation in all public schools within its 
jurisdiction, or a school board which is confronted 
with problems arising from racial imbalance in the 
public schools within its jurisdiction, may apply to 
the Commissioner, either directly or through another 
governmental unit, for a grant or loan, as hereinafter 
provided, for the purpose of aiding such school board 
in carrying out desegregation or in dealing with prob­
lems of racial imbalance.

“ (b) The Commissioner may make a grant under 
this section, upon application therefor, for—

“ (1) the cost of giving to teachers and other 
school personnel inservice training in dealing with 
problems incident to desegregation or racial imbal­
ance in public schools; and

“ (2) the cost of employing specialists in problems 
incident to desegregation or racial imbalance and of 
providing other assistance to develop understanding 
of these problems by parents, schoolchildren, and the 
general public.
“ (c) * # * In determining whether to make a grant, 

and in fixing the amount thereof and the terms and 
conditions on which it will be made, the Commissioner 
shall take into consideration * * * the nature, extent, 
and gravity of its problems incident to desegregation 
or racial imbalance, and such other factors as he finds 
relevant. ’ ’

3. Sen. 1731 never got off the ground, despite its sponsor­
ship by no less than 45 senators, while H.R. 7152 was, fol­
lowing extensive hearings, completely rewritten in com­
mittee. There was reported out an entirely new measure, 
see H.R. Rep. 914, 88th Cong., 1st sees., in which former 
Title III was renumbered Title IV, and in which every 
mention of “ racial imbalance” was deleted. The justifi-



A23

cation for such deletion was set forth in the additional 
views of Messrs. McCulloch of Ohio, Lindsay of New York, 
Cahill of New Jersey, Shriver of Kansas, MacGregor of 
Minnesota, Mathias of Maryland, and Bromwell of Iowa 
(id., Part 2, pp. 21-22) :

“ The committee failed to extend this assistance to 
problems frequently referred to as ‘racial imbalance’ 
as no adequate definition of this concept was put 
forward. The committee also felt that this could lead 
to the forcible disruption of neighborhood patterns, 
might entail inordinate financial and human cost and 
create more friction than it could possibly resolve.”

Even so, the elimination of the references to racial im­
balance did not satisfy one of the dissenting members, 
who complained (H.R. Rep. 914, supra, at p. 84) that 
‘‘this action [i.e., such elimination] is a matter of ‘public 
relations’ or semantics, devised to prevent the people of 
the United States from recognizing the bill’s true intent 
and purpose. The administration apparently intends to 
rely upon its own construction of ‘discrimination’ as in­
cluding the lack of racial balance as distinguished from a 
statutory reference to ‘ racial imbalance ’ * *

4. As reported out by the Judiciary Committee on No­
vember 20, 1963 (H.R. 914, supra, at p. 5), Section 401(b) 
provided that

“ ‘Desegregation’ means the assignment of students 
to public schools and within such schools without re­
gard to their race, color, religion, or national origin.”

On January 31, 1964, in the course of an explanation of 
the committee substitute, Chairman Celler of the Judiciary 
Committee said (110 Cong. Rec. 1518) :

“ There is no authorization for either the Attorney 
General or the Commissioner of Education to work 
toward achieving racial balance in given schools. Such 
matters, like appointment of teachers and all other 
internal and administrative matters, are entirely in 
the hands of the local boards. This bill does not 
change that situation.”



A24

On February 6, 1964, Mr, Cramer of Florida, who had 
earlier expressed concern lest the bill as rewritten by the 
Judiciary Committee had failed to eliminate racial bal­
ancing from its proposals for desegregation (110 Cong. 
Rec. 1598), moved an amendment to provide that “ ‘de­
segregation’ shall not mean the assignment of ;students to 
public schools in order to overcome racial imbalance.” 
Chairman Celler accepted that amendment (110 Cong. Rec. 
2280), and, as thus amended, Section 401(b) was adopted 
by the House.

5. The House passed H.R. 7152 on February 10, 1964 
(110 Cong. Rec, 280'5). In the Senate, the measure was 
placed on the calendar without reference to committee (id. 
3719, Feb. 26), and was taken up for consideration on 
March 26 (id. 6417). As is well known, three months of 
debate ensued.

Because of the absence of committee action, H.R. 7152 
was rewritten by the joint leadership in the course of the 
debate, and on May 26, Amendment No. 656 in the nature of 
a substitute was offered by Senators Dirksen (Minority 
Leader), Mansfield (Majority Leader), Humphrey (Ma­
jority Whip), and Kuchel (Minority Whip) (110 Cong. Rec. 
11926). Included in Amendment No. 656 was a new proviso 
to Section 407(a) reading as follows (id. at 11929):

“ provided that nothing herein shall empower any offi­
cial or court of the United States to issue any order 
seeking to achieve a racial balance in any school by re­
quiring the transportation of pupils or students from 
one school to another in order to achieve such racial 
balance, or otherwise enlarge the existing power of 
the court to insure compliance with constitutional 
standards.”

This proviso did not appear either in H.R. 7152 as re­
ported out by the House Judiciary Committee (H.R. Rep. 
914, 88th Cong., 1st sess., p. 7) or in H.R. 7152 as it reached 
the Senate. Chronology indicates that the proviso was 
drafted to allay the fears of numerous opponents of the 
measure as a whole, who had earlier argued that, as it



A25

passed the House, it would permit the transportation of 
school children back and forth to achieve racial balance 
(110 Cong. Rec. 5858-62, 6820, 6839-41, 8357-58, 8615-16, 
8621).

6. On June 2, Senator Russell of Georgia introduced 
Amendment 766, which had two parts. The first proposed 
to strike from Section 401(b) the House-approved Cramer 
amendment providing that desegregation was not to mean 
overcoming racial imbalance, the second proposed to delete 
the anti-busing proviso to Section 407(a) that had first 
appeared in the Dirksen-Mansfield-Humphrey-Kuchel sub­
stitute (110 Cong. Rec. 12436-37). Senator Russell argued 
at some length that deleting the proviso would eliminate the 
sectional aspects of the pending bill and would give the 
Attorney General authority to integrate outside the South. 
Senator Russell contended that, with the proviso included, 
the Attorney General would act only in the South, and the 
courts would be powerless to touch de facto segregation in 
the North. (110 Cong. Rec. 12438-41.)

7. Two days later, Senator Humphrey undertook to ex­
plain Title IV of the bipartisan substitute contained in 
Amendment 656 (110 Cong. Rec. 12706 et seq.). He said 
on the matter now in issue (id. at 12714) :

“ Next, changes are made to resolve doubts that have 
been expressed about the impact of the bill on the 
problem of correcting alleged racial imbalance in 
public schools. The version enacted by the House was 
not intended to permit the Attorney General to bring 
suits to correct such a situation, and, indeed, said as 
much in section 401(b). However, to make this doubly 
clear, two amendments dealing with this matter are 
proposed.

‘ ‘ The first provides that nothing in title IV ‘ shall em­
power any court’ or official of the United States to 
issue ‘any order’ seeking to achieve ‘a racial balance 
in any school by requiring the transportation of pupils 
or students from one school to another or one school 
district to another in order to achieve such racial bal­
ance or otherwise enlarge the existing power of the



A26

court to insure compliance with constitutional stand­
ards.’ This addition seeks simply to preclude an in­
ference that the title confers new authority to deal with 
‘racial imbalance’ in schools, and should serve to 
soothe fears that title IV might be read to empower 
the Federal Government to order the busing of children 
around a city in order to achieve a certain racial bal­
ance or mix in schools.

“ Furthermore, a new section 410 would explicitly 
declare that ‘nothing in this title shall prohibit classi­
fication and assignment for reasons other than race, 
color, religion, or national origin.’

“ Thus, classification along bona fide neighborhood 
school lines, or for any other legitimate reason which 
local school boards might see fit to adopt, would not 
be affected by title IV, so long as such classification 
was bona fide. Furthermore, this amendment makes 
clear that the only Federal intervention in local schools 
will be for the purpose of preventing denial of equal 
protection of the laws.”

Shortly thereafter this additional colloquy took place 
(id. at 12715, 12717):

“ Mr. B ybd of West Virginia. Can the Senator from 
Minnesota assure the Senator from West Virginia that 
under title VI school children may not be bused from 
one end of the community to another end of the com­
munity at the taxpayers’ expense to relieve so-called 
racial imbalance in the schools?

“ Mr. H umphrey . I do. * * * (p. 12717) I should 
like to make one further reference to the Gary case.1 
This case make it quite clear that while the Constitu­
tion prohibits segregation, it does not require integra­
tion. The busing of children to achieve racial balance 
would be an act to effect the integration of schools. 
In fact, if the bill were to compel it, it would be a 
violation, because it would be handling the matter on 
the basis of race and we would be transporting chil­
dren because of race. The bill does not attempt to 
integrate the schools, but it does attempt to eliminate

1 Bell v. School City of Gary, Indiana, 324 F.2d 209 (C.A. 7), 
certiorari denied, 377 U.S. 924.



A27

segregation in the school systems. The natural fac­
tors such as density of population, and the distance 
that students would have to travel are considered 
legitimate means to determine the validity of a 
school district, if the school districts are not gerry­
mandered, and in effect deliberately segregated. The 
fact that there is a racial imbalance per se is not some­
thing which is unconstitutional. That is why we have 
attempted to clarify it with the language of section 
4.” 2

8. Senator Dirksen, another co-sponsor, explained Amend­
ment 656 on the following day (110 Cong. Rec. 12817 
et seq.). Thereafter, on June 10, Senator Dirksen intro­
duced Amendment 1052, which was in the nature of a sub­
stitute for Amendment 656, designed to include Senator 
Morton’s amendment on jury trials (110 Cong. Rec. 13310); 
the proviso to Sec. 407(a), see id. at 13312, was left un­
changed from what it had been in the earlier version.

9. On June 15,1964, Senator Russell called up his Amend­
ment No. 766, to strike out both anti-busing provisos, the 
Cramer amendment to Sec. 401(b) as well as the Dirksen- 
Mansfield-Humphrey-Kuehel proviso in Sec. 407(a). In 
the time available to him—at this juncture the Senate had 
imposed cloture—he repeated the substance of what he had 
said nine days earlier, to the effiect that both provisos made 
the bill a measure directed solely against the South. On 
a roll-call vote, the Russell amendment was rejected, 18-71. 
(110 Cong. Rec, 13819-22.)

The remainder of the legislative process requires no 
special comment. Amendment 1052 was agreed to on June 
17 by a vote of 76-18 (110 Cong. Rec. 14239), and the bill 
as thus amended passed the Senate on June 19, the final 
vote being 73-27 (Id. at 14511). The House ultimately con­
curred in the Senate amendment (id. 14631, 15869), and 
H. R. 7152 became law on July 2, 1964 (Pub. L. 88-352, 78 
Stat. 241).

2 Presumably Title IV rather than section 4 was intended.