Wallace v. Lee Motion to Affirm

    i&uprpm? fflmurt of tip' Itnitcit States
O cto ber  T e r m , 1967

No. 489

In th e

GOVERNOR LURLEEN BURNS W ALLACE, in her capacity as Governor of the State of 
Alabama, and as President of Alabama State School Board of Education; A LA B A M A  
STATE BOARD OF ED UCATION ; ERNEST STONE, Secretary and Executive Officer 
of Alabama State Board of Education; JAM ES D. NETTLES, ED D AN N ELLY, MRS. 
CARL STRANG, FRED L. MERRELL, W . M. BECK, VICTOR P. POOLE, W . C. 
D AVIS, CECIL W ARD and HAROLD C. M ARTIN, as members of Alabama State 
Board of Education,

Appellants,
-v.-

AN TH O N Y T. LEE and H EN R Y A. LEE, by Detroit Lee and Hattie M. Lee, their parents 
and next friends; PALMER SULLINS, JR., A L A N  D. SULLINS and MARSHA M ARIE  
SULLINS, by Palmer Sullins and Della D. Sullins, their parents and next friends; 
GERALD W ARREN B ILLES and HELOISE E LAIN E BILLES, by I. V. Billes, their 
father and next friend; W IL L IE  M. JACKSON, JR., by Mabel H. Jackson, his mother 
and next friend; W IL L IE  B. W Y A T T , JR., and BRENDA J. W Y A T T , by Willie B. 
Wyatt and Thelma A. Wyatt, their parents and next friends; NELSON N. BOGGAN, 
JR., bv Nelson Boggan, Sr., and Mamie Boggan, his parents and next friends; W IL L IE  
C. JOHNSON, JR., BRENDA F A Y E  JOHNSON and DW IGHT W . JOHNSON, by 
Willie C. Johnson and Ruth Johnson, their parents and next friends, and W IL L IA M  
H. MOORE and E D W IN A  M. MOORE, by L. James Moore and Edna M. Moore, their 
parents and next friends,

and

U N ITED  STATES OF AMERICA,
Appellees.

ON APPEAL FROM THE U N ITED  STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF A L A B A M A

MOTION TO AFFIRM

FRED D. GRAY
352 Dexter Avenue 
Montgomery, Alabama 36104

JACK GREENBERG  
JAM ES M. NABRIT, II I  
CHARLES H. JONES, JR. 
CHARLES STEPHEN RALSTON  
M E L V YN  ZARR

10 Columbus Circle
New York, New York 10019

Attorneys for Appellees 
Anthony T. Lee, et al.



I N D E X

PAGE

Citations to Opinions Below .........................................  2

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

Question Presented ........................................................... 2

Statement of the Case .....................................................  3

A rgument

The Court Below Was Clearly Correct in Order­
ing the Appellants to Implement the School De­
segregation Decisions of This Court ....................... 9

A. The Court Below Correctly Appraised Ap­
pellants’ Power Over Public Education in 
Alabama and Correctly Found That That 
Power Had Been Exercised to Thwart Rather 
Than to Promote Desegregation ....................... 10

B. The Relief Fashioned by the Court Below
Represents a Measured and Carefully Con­
sidered Judicial Response to Years of Foot- 
Dragging and Defiance by State Officials Re­
sponsible for School Desegregation in Ala­
bama .................................................................  12

Co n clu sio n ............................................................................ 15



11

T able of Cases

PAGE

Brown v. Board of Education, 347 U. S. 483 (1954) .... 9
Brown v. Board of Education, 349 U. S. 294 (1955) .... 9
Bradley v. School Board of Richmond, 382 U. S. 103 

(1965) ..............................................................................  9

Cooper v. Aaron, 358 U. S. 1 (1958) ..............................  9

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960), cert, 
den. 364 U. S. 933 (1961) .......................................... 9

Griffin v. County School Board of Prince Edward 
County, 377 U. S. 218 (1964) ..................................  9

Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E. D. La. 1961), aff’d, 368 U. S. 515 (1962) .... 9

Lee v. Macon County Board of Education, 221 F.
Supp. 297 (M. D. Ala. 1963) .....................................  3

Lee v. Macon County Board of Education, 231 F. 
Supp. 743 (M. D. Ala. 1964) .......................2,3,4,5,6,13

NAACP v. Wallace, 269 F. Supp. 346 (M. D. Ala. 
1967) ................................................................................  7

United States v. Rea, 231 F. Supp. 772 (M. D. Ala.
1964) ................................................................................  3

United States v. Wallace, 222 F. Supp. 485 (M. D. Ala. 
1963) ................................................................................  3

Wallace v. Lee, 387 U. S. 916 (1967) ............................  3



Ill

Statutes

page

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

Code of Ala. Tit. 52, §61(8) .........................................  9

Act No. 252, 1966 Special Session of the Alabama 
Legislature ......................................................................  6, 7

Act No. 266, 1967 Special Session of the Alabama 
Legislature ......................................................................  9

Act No. 285, 1967 Special Session of the Alabama 
Legislature ......................................................................  11

M iscellaneous

Report of the United States Commission on Civil 
Rights, Southern School Desegregation, 1966-67 .... 10

. j



In the

Sntprmt (Emtrt of tip Unite State
O ctober  T e r m , 1967 

No. 489

G o v e r n o r  L u r l e e n  B u r n s  W a l l a c e , in her capacity as Governor 
of the State of Alabama, and as President of Alabama State 
School Board of Education; A l a b a m a  S t a t e  B oard or E d u ­
c a t i o n ; E r n e s t  S t o n e , Secretary and Executive Officer of 
Alabama State Board of Education; J a m e s  D . N e t t l e s , E d 
D a n n e l l y , M r s . C a r l  S t r a n g , F red  L . M e r r e l l , W . M . B e c k , 
V icto r  P . P o o le , W .  C . D a v is , Ce c il  W ard  and H arold  C. 
M a r t in , as members of Alabama State Board of Education,

Appellants,
-v-

A n t h o n y  T . L e e  and H e n r y  A. L e e , by Detroit Lee and Hattie 
M. Lee, their parents and next friends; P a l m e r  S u l l in s , J r ., 
A t,a n  D. S u l l in s  and M a r s h a  M ar ie  S u l l in s , by Palmer 
Sullins and Della D. Sullins, their parents and next friends; 
G er a ld  W a r r e n  B il l e s  and H elo ise  E l a in e  B il l e s , by I. V. 
Billes, their father and next friend; W il l ie  M. J a c k s o n , J r ., 
by Mabel II. Jackson, his mother and next friend; AVil l ie  B. 
W y a t t , J r ., and B r e n d a  J. W y a t t , by Willie B. AAryatt and 
Thelma A. Wyatt, their parents and next friends; N e l s o n  N. 
B o g g a n , J r ., by Nelson Boggan, Sr., and Mamie Boggan, his 
parents and next friends; AVil l ie  C. J o h n s o n , J r ., B r e n d a  
F a y e  J o h n s o n  and D w i g h t  AV. J o h n s o n , by AVillie C. Johnson 
and Ruth Johnson, their parents and next friends, and W il l ia m  
II. M oore and E d w in a  M. M oore , by L. James Moore and Edna 
M. Moore, their parents and next friends,

and
U n it e d  S t a t e s  of  A m e r ic a ,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF ALABAMA

MOTION TO AFFIRM



2

Appellees Anthony T. Lee et al.1 respectfully move the 
Court, pursuant to Eule 16(1) (c) of the Eules of the Court, 
to affirm the judgment below, and in support thereof would 
show that plenary consideration of this appeal is unneces­
sary because the decision below is clearly correct.

Citations to Opinions Below

The decision below is reported at 267 F. Supp. 458 (M. D. 
Ala. 1967). An earlier, highly relevant decision of the 
court below in this case is reported at 231 F. Supp. 743 
(M. D. Ala. 1964).

Jurisdiction

Jurisdiction of this appeal is founded upon 28 U. S. C. 
§1253, in that injunctive relief was sought and obtained 
from a three-judge district court constituted pursuant to 
28 U. S. C. §§2281, 2284 against the enforcement of a stat­
ute of the State of Alabama on the ground of its federal 
unconstitutionality.

Question Presented

Did the court below abuse its discretion in requiring ap­
pellants to exercise their power over public education in 
Alabama in such a way as to implement, rather than de­
feat, the school desegregation decisions of this Court?

1 Appellees Lee et al. are the original plaintiffs in this ease. On 
behalf of the class of all Negro schoolchildren in Alabama, they 
filed the supplemental complaint and motion requesting the court 
below to order the state-wide desegregation plan in issue here 
(see 267 F. Supp. 458, 461-62). Thus they clearly are appellees 
here, despite unfounded assertions to the contrary by appellants 
in their jurisdictional statement (see pp. 7-8, 14, 45). In the in­



3

Statement of the Case

This case originated in January, 1963 as a simple school 
desegregation case brought by the appellees, Negro chil­
dren and their parents residing in Macon County, Ala­
bama.2 3 * After hearing, the district judge ordered the de­
fendant school board to begin desegregation of the county 
school system by September, 1963. Lee v. Macon County 
Board of Education, 221 F. Supp. 297 (M. D. Ala. 1963). 
In compliance with that order, the defendant school board 
assigned 13 Negro students to a white high school. On Sep­
tember 2, 1963, these Negro pupils were denied entrance 
to the white high school by Alabama state troopers acting 
pursuant to an executive order of Governor George C. 
Wallace (see 231 F. Supp. at 747). Subsequently, on Sep­
tember 9, 1963, state troopers again prevented entrance of 
the Negro pupils to the white high school—again upon the 
order of Governor Wallace (ibid.). The United States then 
applied to the district court for injunctive relief against the 
Governor, which was granted. United States v. Wallace, 222 
F. Supp. 485 (M. D. Ala. 1963).

In January, 1964, the State Board of Education closed 
the desegregated high school and transferred the Negro 
students to an all-Negro high school (see 231 F. Supp. at 
748). The district court then ordered that the Negro stu­
dents be admitted to two all-white high schools (ibid.).8

stant appeal, appellees Lee et al. have heretofore filed an opposition 
to appellants’ application for a stay pending appeal, Wallace v. 
Lee, 387 U. S. 916 (1967).

2 In July, 1963, the United States Avas added as a party plaintiff 
and as amicus curiae.

3 Official resistance to that order was enjoined in United States
v. Rea, 231 F. Supp. 772 (M. D. Ala. 1964).



4

In February, 1964, appellees filed a supplemental com­
plaint, adding as defendants the Governor, the Executive 
Officer and Secretary of the Alabama State Board of Edu­
cation (also known as, and herein referred to as, the State 
Superintendent of Education) and the other members of 
the State Board of Education. In this supplemental com­
plaint appellees requested the district court (1) to enjoin 
these defendants from operating a dual school system based 
upon race throughout the State of Alabama; (2) to enter 
an order requiring state-wide desegregation of public 
schools in the State of Alabama; (3) to enjoin the use of 
state funds to perpetuate the dual school system and (4) to 
enjoin as unconstitutional the tuition grant law of 1957 
(Code of Ala., Title 52 §§61 (13)-61 (21)). Thereupon the 
chief judge of the Court of Appeals for the Fifth Circuit, 
in response to the request of the district judge, constituted 
a three-judge court pursuant to 28 U. S. C. §§2281, 2284 
(231 F. Supp. at 746). The three-judge court continued in 
effect, pending full hearing and determination, the tem­
porary restraining order issued by the single district judge 
enjoining the state officials from their various forms of 
interference with the peaceful and orderly desegregation of 
the public schools.

After extensive trial and briefing, the court rendered its 
decision of July 13, 1964, 231 F. Supp. 743. The court 
found interference by the state officials with local school 
desegregation—and more. The court found that appellants 
possessed “ general control and supervision over all the 
public schools in the State of Alabama” and that these 
powers were exercised to promote and maintain, rather



5

than to eliminate, segregation (231 F. Supp. at 756).4 The 
court directed appellants to recognize that “ in the exercise 
of their general control and supervision over all the public 
schools in the State of Alabama and particularly in the allo­
cation and distribution of state funds for school operations, 
they have an affirmative duty to proceed with ‘deliberate 
speed’ in bringing about the elimination of racial discrimi­
nation in the public schools of this State” (231 F. Supp. at 
756). Appellants were ordered “ to formulate and place 
into effect plans designed to make the distribution of public 
funds to the various schools throughout the State of Ala­
bama only to those schools and school systems that have 
proceeded with ‘deliberate speed’ in the desegregation of 
their schools and school systems as required by Brown v. 
Board of Education”  (231 F. Supp. 756-57). But the court 
withheld state-wide desegregation, preferring to rely for a 
season upon the good faith of appellants (231 F. Supp. at 
756):

For the present time, this Court will proceed upon the 
assumption that the Governor, the State Superinten­
dent of Education and the State Board of Education 
will comply in good faith with the injunction of this 
Court . . . and, through the exercise of considerable 
judicial restraint, no state-wide desegregation will be 
ordered at this time.

4 The Court found (231 F. Supp. at 750-51):
The evidence in this case is clear that over the years the 

State Board of Education and the State Superintendent of 
Education have established and enforced rules and policies 
regarding the manner in which the city and county school 
systems exercise their responsibilities under state law. This 
control relates, among other things, to finances, accounting 
practices, textbooks, transportation, school construction, and 
even Bible reading.



6

Appellants were ordered to desist from interfering with 
local desegregation attempts “— either directly or indirectly 
—through the use of subtle coercion or outright interfer­
ence” (231 F. Supp. at 756). Moreover, appellants were 
enjoined from (order of July 13, 1964, paragraph 6):

Failing, in the exercise of its control and supervi­
sion over the public schools of the State, to use such 
control and supervision in such a manner as to pro­
mote and encourage the elimination of racial discrimi­
nation in the public schools, rather than to prevent and 
discourage the elimination of such discrimination.

The court also concluded that Alabama’s tuition grant law 
was nothing more than a sham established for the purpose 
of financing with state funds a white school system in the 
State of Alabama and enjoined its continued operation 
(231 F. Supp. at 754). 2  £ 7

On September 1, 1965, a new tuition grant statute was 
approved5 which was challenged by a supplemental com­
plaint filed by the United States.6

On September 2, 1966, Act No. 252, 1966 Special Ses­
sion, was approved, which purported to nullify the school 
desegregation efforts by local public school officials pur­
suant to Title VI of the Civil Rights Act of 1964 and the 
regulations and guidelines promulgated thereunder by the 
United States Department of Health, Education and Wel­
fare.7

5 Code of Ala. Tit. 52, §61(8).
6 The supplemental complaint was filed in August, 1966 and 

alleged that the new tuition grant statute wras for no purpose 
other than to perpetuate segregation in the public schools of 
Alabama.

7 The Act provided, in relevant part: “Any agreement or assur­
ance of compliance with the guidelines heretofore made or given



In September and November, 1966, appellees tiled an 
additional supplemental complaint and a motion for further 
relief challenging Act No. 252 and “ again asking for a 
state-wide desegregation order and an injunction against 
the use of state funds to support a dual school system” 
(267 F. Supp. at 461-62). Following extensive discovery, 
trial and briefing, the court rendered its decision on March 
22, 1967, 267 F. Supp. 458.

The court’s opinion confirmed its earlier findings that 
the appellants had enormous authority and power over the 
actual operation of the various local school systems 
throughout the state. “ This conclusion was based on the 
actual assumption or usurpation of authority by these [ap­
pellants] over the local school boards, exemplified by their 
total control, when they chose to exert it, over the Macon 
County school system, and also by the general statutory 
power granted to these various officials to supervise and 
control the public schools in the State of Alabama” (267 
F. Supp. at 462).

The court found from the actions of appellants since July 
13, 1964 that its reliance upon the good faith of the ap­
pellants had been misplaced (267 F. Supp. at 465): “ Not 
only have these [appellants], through their control and 
influence over the local school boards, flouted every effort 
to make the Fourteenth Amendment a meaningful reality 
to Negro school children in Alabama; they have apparently 
dedicated themselves and, certainly from the evidence in 
this case, have committed the powers and resources of their

by a local, county or city board of education is null and void and 
shall have no binding effect.” This Act was struck down in 
NAACP  v. Wallace, 269 F. Supp. 346 (M. D. Ala. 1967).



8

offices to the continuation of a dual public school system 
such as that condemned by Brown v. Board of Education, 
347 U. S. 483.”

Therefore, the court concluded that an order granting 
state-wide desegregation should no longer be withheld (267 
F. Supp. at 465):

Based upon this fact and a continuation of such con­
duct on the part of these state 'officials as hereafter 
outlined, it is now evident that the reasons for this 
Court’s reluctance to grant the relief to which these 
plaintiffs were clearly entitled over two years ago 
are no longer valid.

The court set forth in its opinion striking examples of 
appellants’ actions constituting “ dramatic interference with 
local efforts to desegregate public schools” (267 F. Supp. 
462-470). But, the court concluded, “ the most significant 
action by these [appellant] state officials, designed to main­
tain the dual public school system based upon race, is found 
in the day-to-day performance of their duties in the gen­
eral supervision and operation of the system” (267 F. Supp. 
at 470). The court then summarized the appellants’ “wide 
range of activities to maintain segregated public educa­
tion throughout the State of Alabama” (267 F. Supp. 470- 
78). “ These activities have been concerned with and have 
controlled virtually every aspect of public education in 
the state, including site selection, construction, consolida­
tion, assignment of teachers, allocation of funds, trans­
portation, vocational education and the assignment of stu­
dents” (267 F. Supp. at 478).

Because it could “ conceive of no other effective way to 
give the [appellees] the relief to which they are entitled



9

under the evidence in this case” (267 F. Supp. at 478), the 
court ordered a uniform state-wide plan for school desegre­
gation.

The court also enjoined the 1965 version of the Alabama 
tuition grant statute,8 finding that “ [i]t is clear that the 
present tuition statute was born of the same effort to dis­
criminate against Negroes, and was designed to fill the 
vacuum left by this Court’s injunction against the 1957 
tuition statute” (267 F. Supp. at 477).9

On May 22, 1967, this Court denied a stay of the district 
court’s injunction, Wallace v. Lee, 387 U. S. 916.

A R G U M E N T

The Court Relow Was Clearly Correct in Ordering the 
Appellants to Implement the School Desegregation Deci­
sions of This Court.

The court below correctly concluded that this Court’s 
school desegregation decisions10 would continue to have little

8 Code of Alabama, Title 52, §61(8) (Act No. 687, approved 
September 1, 1965).

9 On August 31, 1967, appellant Wallace approved a new tuition 
grant statute to fill the vacuum left by the court’s injunction in 
issue here (Act No. 266).

10 See, e.g., Brown v. Board of Education, 347 U. S. 483 (1954); 
Brown v. Board of Education, 349 U. S. 294 (1955); Cooper v. 
Aaron, 358 U. S. 1 (1958); HaU v. St. Helena. Parish School Board, 
197 F. Supp. 649 (E. D. La. 1961), aff’d, 368 U. S. 515 (1962) ; 
Griffin v. County School Board of Prince Edward County, 377 
U. S. 218 (1964); Bradley v. School Board of Richmond, 382 U. S. 
103 (1965). See also Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 
1960), cert. den. 364 U. S. 933 (1961).



10

meaning and effect in Alabama11 unless appellants were or­
dered to apply the same ingenuity, effort and resources to 
eradicate the dual school system in Alabama that they had 
applied to create and maintain it. The court correctly ap­
praised appellants’ power over public education in Ala­
bama and fashioned a remedy adequate to reverse the 
thrust of that power, requiring appellants to promote de­
segregation rather than fight a rearguard action against it.

A. The Court Below Correctly Appraised Appellants’
Power Over Public Education in Alabama and Cor­
rectly Found That That Power Had Been Exercised 
to Thwart Rather Than to Promote Desegregation.

“ To maintain the racial characteristics of the Alabama 
public school system, the [appellant] state officials have 
used their power in essentially two ways. First, they have 
used their authority as a threat and as a means of punish­
ment to prevent local school officials from fulfilling their 
constitutional obligation to desegregate schools, and, second, 
they have performed their own functions in such a way as 
to maintain and preserve the racial characteristics of the 
system” (267 F. Supp. at 466).

The evidence as to appellants’ interference with local de­
segregation attempts is overwhelming. The record is re­
plete with outrageous examples of “ dramatic interference 
with local efforts to desegregate public schools” (267 F. 
Supp. at 470); a few are detailed in the court’s opinion, 
267 F. Supp. 462-70. They reveal persistent pressure on

11 The extent o f school desegregation in Alabama has been piti­
fully small. In the Fall of 1966, 95% of the state’s Negro pupils 
were attending totally segregated schools. Report of the United 
States Commission on Civil Rights, Southern School Desegregation, 
1966-67, pp. 8-11.



11

local school officials to maintain segregation, including 
threats to cut off state funds (see, e.g., Plaintiff’s Exhibit 
11),12 to use the state police power (see 267 F. Supp. at 469) 
and to expose local officials to public hostility (see Tran­
script, pp. 61-62) and demands that the local officials resist 
“ illegal” desegregation, that is, desegregation beyond the 
minimum requirements of the federal courts (see 267 F. 
Supp. at 467-68; see also Government’s Exhibits 6-11, 94; 
Transcript, p. 33). Local officials who avoided desegrega­
tion were rewarded with additional state funds (see 267 
F. Supp. at 469-70; Government’s Exhibits 95-97; Defen­
dants’ Exhibit 5).

But, the court found, “ the most significant action by these 
[appellant] state officials, designed to maintain the dual 
public school system based upon race, is found in the day- 
to-day performance of their duties in the general super­
vision and operation of the system” (267 F. Supp. at 470). 
“ These activities have been concerned with and have con­
trolled virtually every aspect of public education in the 
state, including site selection, construction, consolidation 
[see 267 F. Supp. at 470-72], assignment of teachers [see 
267 F. Supp. at 472-73], allocation of founds [see 267 F. 
Supp. at 469-70], transportation [see 267 F. Supp. at 473- 
74], vocational education [see 267 F. Supp. at 474-75], and 
the assignment of students” (267 F. Supp. at 478).

12 Subsequent to the court’s decision, on September 1, 1967, ap­
pellant Wallace approved an Act (No. 285) requiring all students 
to designate the race of their teacher and providing for the cut-off 
of state funds to local school boards which did not require and 
enforce those designations. On application by appellees, the three- 
judge court bekm issued a temporary restraining order against 
the Act’s enforcement on September 5, 1967.



12

B. The Relief Fashioned by the Court Below Represents 
a Measured and Carefully Considered Judicial Re­
sponse to Years of Foot-Dragging and Defiance by 
State Officials Responsible for School Desegregation 
in Alabama.

The court below acted on the principle that the equitable 
remedy must be coextensive with the wrong suffered by 
appellees and members of their class. Having examined 
the wide range of appellants’ activities, see Part A, supra, 
the court decided that “ [t]he remedy to which these [ap­
pellees] are constitutionally entitled must be designed to 
reach the limits of the [appellants’] activities in these sev­
eral areas and must be designed to require the [appellants] 
to do what they have been unwilling to do on their own— 
to discharge their constitutional obligation to disestablish 
in each of the local county and city school systems in Ala­
bama that are not already operating under a United States 
court order, the dual public school system to the extent 
that it is based upon race or color” (267 F. Supp. at 478). 
The court’s decree does just that (see 267 F. Supp. at 
480-91).

Preliminarily, it should be noted that the decree is di­
rected specifically and solely to the appellant state officials, 
and not to local school boards. All the decree requires is 
that the appellants use their undoubted power to imple­
ment a state-wide desegregation plan.13

13 Appellants see a due process violation in the fact that the 
local school boards were not made formal parties to the suit. This 
contention was effectively dealt with by the court below (267 P. 
Supp. at 479) :

The argument that this Court is proceeding without juris­
diction over indispensable parties to this litigation, to-wit, 
local school boards throughout the state, is not persuasive. We 
are dealing here with state officials, and all we require at



13

The decree requires the appellants to exercise their clearly- 
established powers, which heretofore have been used to 
frustrate desegregation, to effectuate the disestablishment 
of the dual school system in Alabama by taking the follow­
ing actions (267 F. Supp. at 480-91):

1. To require that all local school boards not under court 
desegregation order adopt uniform plans for desegregation 
that meet minimum constitutional standards;

2. To plan school construction and consolidation so as 
to promote desegregation;

3. To encourage and assist faculty desegregation;

4. To exercise their supervision over proposed school 
bus routes so as to eliminate race as a basis for assigning 
students to school buses and to eliminate overlapping and 
duplicative bus routes based upon race;

this time is that those officials affirmatively exercise their con­
trol and authority to implement a plan on a state-wide basis 
designed to insure a reasonable attainment of equal educa­
tional opportunities for all children in the state regardless 
o f their race. It may be that in some instances a particular 
school district will need to be brought directly into the liti­
gation to insure that the defendant state officials have im­
plemented this Court’s decree and that the state is not 
supporting, financially or otherwise, a local system that is 
being operated on an unconstitutional basis. Hopefully, these 
instances will be the exception and not the rule. Clearly this 
possibility does not diminish the propriety of the state-wide 
relief to be ordered. Having already resolved this issue of 
state-wide relief against the defendants in the order made and 
entered in Lee, et al. (United States of America, Amicus 
Curiae) v. Macon County Board of Education, July 13, 1964, 
231 P. Supp. 743, further discussion and analysis is not 
necessary.



14

5. To terminate all forms of segregation and discrimina­
tion in all educational institutions under the direct control 
of the State Board of Education, including trade schools, 
junior colleges and state colleges;

6. To formulate a detailed program for equalizing Negro 
schools with white schools;

7. To refrain from interfering with local officials in their 
attempt to eliminate the dual school system; and,

8. To submit periodic detailed reports of their progress 
to the court and to the parties.

Appellants urge the court to note probable jurisdiction 
to eliminate “ the chaos now existing in the field of public 
education” (Jurisdictional Statement, p. 59). Any chaos 
which may exist in public education in Alabama is of the 
appellants’ own making. It is they who have employed every 
resource at their command to circumvent, and sometimes 
defy, the school desegregation decisions of this Court. 
When the appellants abandon the segregation policies which 
they have imposed upon the State of Alabama, then local 
school officials will “be able to return to the teaching of 
students and dealing with the related educational problems 
rather than expending their time and energies trying to 
tread the difficult ‘middle ground’ between conflicting fed­
eral and state demands” (267 F. Supp. at 478-79). To 
hasten that day, the decision below should be affirmed.



15

CONCLUSION

For the foregoing reasons, the decision below should 
be affirmed.

Respectfully submitted,

F eed D. Gray

352 Dexter Avenue 
Montgomery, Alabama 36104

Jack Greenberg 
James M. Nabrit, III 
Charles H. Jones, Jr.
Charles Stephen Ralston 
M elvyn Z arr

10 Columbus Circle
New York, New York 10019

Attorneys for Appellees 
Anthony T. Lee, et al.



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