Jackson Municipal Separate School District v. Evers Mimeographed Record Vol. IV

    IN THE

UNITED STATES
COURT of APPEALS

FOR THE
F I F T H  C I R C U I T

No. 21851

JACKSON MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL,

APPELLANTS

VERSUS

DARRELL KENYATTA EVERS, ET AL,
APPELLEES

Volume IV

Appeals from the United States District Court 
for the Southern District of Mississippi, 

Jackson Division

MIMEOGRAPHED RECORD



VOLUME IV

I N D E X
Page
No

Transcript of 
Testimony

Intervenor's 
Intervener's 
Intervenor's 
Intervenor's 
Intervenor's

Testimony 
HALFORD SNYDER

Exhibit
Exhibit
Exhibit
Exhibit
Exhibit

No
No
No
No
No

Plaintiff's Exhibit No 4
Othnion of the Court 
Judgment
Desegregation Plan 
Plaintiffs' Object:ons 

by Defendant Boards 
Notice of Appeal

WHITAKER 
24: Sheet 
25• Sample Trac 
26: Sample 
27 A: Article 
27 B: Article 
Report

: ngs 
Tracings

to Desegregation Plans Filed 
and Motion for Revised Plans

Appeal Bond 
Notice of Appeal 
Appeal Bond
Order Tentatively Overruling Objections to Plan 
Designation of Contents of Record on Appeal 
Motion for Original Exhibits To Be Sent To The 

Appellate Court
Designation of Record on Appeal 
Order for Original Exhibits To Be Sent To The 

Appellate Court 
Certificate of Service

574
574

5^4 
584 
608 
613
645
646 
650

652
653 
655
657
662
66
66

669



(R-693 contd.) 
VOLUME IV

574

After Recess

HALFORD SNYDER WHITAKER, called as a witness and having been 

duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. PITTMAN;

Q, Dr. Whitaker, are you a medical doctor?

A. Yes, sir.

Q. Would you state, please, your qualifications as a medical doctor? 

And give your full name.

A. Halford Snyder Whitaker. As qualifications, I have a Doctor of 

Medicine degree, and trained in pediatrics, certified as a specia­

list in pediatrics.

Q. You are a board-qualified pediatrician? (R-594)

A. Yes, sir.

Q. Go ahead.

A. And trained in neurology and EEG, electroencephalogram.

MR. PITTMAN: Your Honor, we tender into the record 

the sheet containing the qualifications and training and experience, 

and the publications by Dr. Whitaker.

THE COURT: Let them be received in evidence.

(Same received in evidence and marked as Intervenor’s Exhibit No. 24) 

(Exhibit is not copied because by order of the Court the original is to 

be inspected.)

Q. Dr. Whitaker, what is neurology?

A. Neurology is the study of the brain and its functions, both at the



575

bedside and as a basic discipline of biology.

Q. Since your graduation from medical school and since your intern­

ship and since your residency in pediatrics, how many years have 

you had in child neurology?

A. Three; two in neurology and one in pediatric neurology.

Q. Where are you now located?

A. I am on the faculty of the Bowman Gray School of Medicine in 

North Carolina.

Q. On the faculty?

A. Yes.

Q. How old -- -  Before we get into the detailed questions, how old is 

the method of study of the brain by electricity, electric study of 

the brain? How old is that system?

A. Well, the first signals from an animal brain were picked up about in 

1379. It has been used on humans since the late (11-695) 1930's, 

and is used every day in hospitals now, since the second world 

war.

Q. Doctor, we have been studying the brains of adults, but the ones 

involved in this case are children, school children.

And I will ask you if there is any relation between the 

brain size of children and the intelligence in children?

A. This has been studied, and actually there is a better correlation 

between estimation of this cranial capacity and intelligence in six 

year old school children than there is in these adult studies.

Q. Now, when you say "better correlation, " do you mean that the

differences are greater in a six year old school child than they are



576

in adults?

A. These were done on English school children, all white, and they 

showed the greater the cranial capacity, the greater the intelli­

gence, and it was measured by several tests.

Q. Are you in agreement with those studies?

A. Yes, sir.

Q. Are there any ways to test the working of the brain other than in­

telligence and sociological testing that we have shown in the trial 

of this case ?

A. Well, a more direct way, it gives a little different information, is 

this electroencephalogram, which I would be more interested in, 

and this is a way like the electrocardiogram which we are familiar 

with.

Q. The electrocardiogram is for the heart? And the (R-696) electro­

encephalogram is for the brain?

A. Yes, sir. There's the difference. And in this case, the wires 

are applied over the head and electricity given off by the brain, — 

the brain functions as an electric organ --  these signals are then 

carried into a machine where they are amplified a million times, 

and they write out a record, and this record makes a different 

pattern, and these can be either analyzed by another machine or 

we can just by direct inspection look at them and compare them 

with the patterns that have been worked out several years ago by 

Gibbs at Harvard and in his 25 or 30 years since. This shows 

normal and abnormal patterns.
Q. Now, this is purely for demonstration, and not for evidence in this



577

case, but did you not hand me some samples of tracings made by 

the electroencephalograph?

A. Yes, sir.

Q. Would you just take one or two of these and explain for the record 

how that machine records these impulses from the brain.

A. These are examples showing the paper which runs through the 

machine itself. The recording, of course, is done without the 

benefit of anyone between the patient and the machine, and the 

machine records this directly.

This shows a child, In a somewhat irregular behavior of 

the waves and these big waves that you see here. (R-697)

And this then shows an adult pattern, as you can see, 

shows a little more regular and faster and smaller waves running 

across the page. And when the eyes are opened, all this stops.

MR, PITTMAN; I believe I will identify the first one for 

the record.

THE COURT: Very well.

MR, PITTMAN: We tender it for identification and part 

of the record. That is a sample of a child’s brain study.

THE COURT: Let It be received in evidence.

(Same received in evidence and marked as Intervenor’s Exhibit No. 251

(Exhibit is not copied because by order of the Court the original is to 

be inspected.)

Q. Now, the next one you have in your hand is a sample of a study of 

an adult brain?

A. Yes, sir. This one I just showed you.



578

Q. Are you through illustrating with this to the Court?

A. Yes.

MR. PITTMAN: I. offer this latter study of an adult brain 

for identification and for the record.

THE COURT: Let it be received in evidence.

(Same received in evidence and marked as Intervenor's Exhibit No 26)

(Exhibit is not copied because by order of the Court the original is to

be inspected.)

Q. Now, in making those recordings, what enters into it? Is that one 

voluntarily or involuntarily, or does the one who is doing the r e ­

cording have any effect upon what those papers show?

A. The patients, you might say, make their own recordings, and these 

are just electrical signals from the different parts of (R-698) the 

brain, picked up by the machine, magnified and written down.

Q. Have standards of normal patterns been worked out over the last 

few years so that that gives a reliable indication of certain phenom­

ena?

A. Standards have been worked out and are published, and there is an 

international classification of these that we all use. And these 

can be done by interpretation of the record, by only counting the 

number of each type of wave and writing them down, and compar­

ing it with the standard.

Q. Are there any studies which have compared the white and Negro 

brains by the methods that you speak of or by electrophysiology?

A. Not in the U. S. There are some studies on African natives and 

African white persons, and these are, one, by the doctors of the



579

French Army, some of whom were electroencephalographers.

Q. Are you familiar with that article, or have you studied it?

A. Yes, sir.

Q. Do you have a copy of that article in French?

A. Yes.

Q. It was published originally in French, was it not?

A. Yes.

Q. Gan you read French?

A. Yes, sir. I have to.

Q. Did you translate that article from French to English?

A. I did for myself; I didn’t make any translation. (A-699)

Q. Do you have a copy of a translation?

A. Yes.

Q. Is that translation correct?

A. It agrees with the original.

Q. Go ahead with your testimony about that study.

A. Well, these findings in this study, which was done with standard 

technique and the standard in the international classifications, and 

some of them were interpreted with the electronic analyzer -- 

that is, the doctor didn't interpret them.

On the natives, on the blacks in Africa, shows one-third 

of them had none of this normal adult rhythm that we show is the 

normal that we usually expect.

Q,. Now, who were these Africans that were being tested that the 

article reports on?
A. These were some troops in the French Army. They were natives



530

who had been taken into the Army, screened for the absence of 

nervous system disease, of course, and any evidence of severe 

head trauma, anything that might have influenced the record.

These hundred soldiers had been in the Army several years and 

had been talien to France, and this is where they happened to be 

when the study was made, in Marseille, France. They had no 

evidence of central nervous system disease, and the study was 

made just as a comparison,

Q. Then you state to the Court what were the findings. (R-700)

A. Well, they say one-third of them did not show the normal alpha 

ryhthm that we see as expected in the adults.

Q. Will you explain what the alpha rhythm is? And you might point to 

one in one of these exhibits so that the Court can better understand 

it.

A. This is a normal adult record (indicating) showing this alpha waves 

all across the record and disappearing when the eyes are opened 

to come back when the eyes are closed.

Q. Explain to the Court what you mean by when the eyes are opened 

and when the eyes are closed, the mechanics of it when testing.

A. During this type of recording, we have the patient lying undisturb­

ed, with his eyes closed. At times during the recording we have 

him open his eyes, and then close them. Very rarely the alpha 

wave will persist. They nearly always go away when the eyes are 

open. This is supposed to be because the tension of the eyes is

arrested at that time. Otherwise, the alpha waves persist through 
the record. This is the adult pattern. As we said, the child does



581

not have this but has a much slower and more irregular record.

Q. Now, the normal white subject, when his eyes are closed, what do 

these lines show? Are they rhythmic?

A. This is a rhythm that runs all across the record in the channels 

that are connected to the back of the head. (R-701)

Q. All right. When the eyes are opened, then what do those lines 

reveal?

A. Well, when the eyes are open, the pattern goes away. The patient 

is no longer resting alert with his eyes closed. It has been seen 

in a few psychiatric subjects —  and this is reported in the Stand­

ards book on EEG, in Hill & Parks, it's called —  there are some 

of these psychiatric subjects whose alpha will go right on when 

their eyes are open, and this is supposed to mean a lack of visual 

imagery, and it's not the usual abstract capacity that other people 

have.

Q. What is the difference between the recordings for those 100 African 

troopers and the normal recordings of the normal group of whites? 

I believe that appears on page 116 of your translation —- I  mean 

on page 16.

A. The things that were found, the most striking is that when the eyes 

are open, the alpha waves rarely disappear; as I say, this does 

happen in white people rarely, that they will persist, but the oppo­

site was true in these troops in that the alpha wave nearly always 

went right on.

I think the way it was said in the conclusions of the author 
was, the author that did this study, it said:



582

"The stoppage reaction Is rarely complete, sometimes 

entirely absent.11

As I said, this is exactly the opposite to the white normal.
( R - 702)
Q. Now, what were the conclusions of this study?

A. Well, to quote the author, he says:

", .We find ourselves in the presence of an accumulation of 

facts, not very detailed, but very expressive in their raw nature."

He calls attention to the fact that this would be, except for 

this business of the alpha persisting, which he says there can be 

no explanation for, if it occurred in all the white persons, — ex­

cept for this complete difference, he says that the other chcarac- 

teristics in these tracings could be explained as immaturity, be­

cause this sort of record is seen in very young children. There 

is a lot of the slow waves, the regular slowing; he found this in 

most of these tracings, and he even found what we call delta waves, 

which are never present in the adult white tracings.

Q. Would it be accurate or inaccurate to say that this study reveals 

evidence of immaturity or childishness in a third of the subjects 

studied?

A. Well, I would modify that to say that two-thirds of them showed 

much more alpha than would be seen in the normal adult tracing 

that we are used to seeing here in the white race. Otherwise, this 

statement would be true. This still does not explain the complete 

difference in alpha blocking which he can have no explanation for; 

it's Just different in these troops tested than in any of the studies



583

that have (R-703) been done on the white race.

Q, I ask you this: Are the slow delta waves which were found in the 

examination of those Africans —  not all of them, but a large por­

tion of them —  are those ever seen in white people except during 

childhood?

A. No.

Q. Now, I read you from page 16, and ask you if that finding is a 

correct finding in the French text which you translated:

"In tailing account of the norms established for the white 

race in important statistical studies to which we shall now return, 

we found only 42% of the tracings in accord with the established 

c rite ria ."

Is that right? Page 16 of the translation.

A. Well, It is true that he found only 42 percent of the tracings in

accord with the established criteria, but he takes into account that 

some of these 42 would be abnormal in the normal adult white, 

but they still wouldn't be completely normal tracings.

Q. Now, on page 2l I read to you:

"This system of interpretation of the electrical details of 

the brain of subjects of the Negro race would bring biological con­

firmation to the work of psychiatric and psychological specialists 

on the black continent, who have already known for a long time a 

psychological immaturity with a tendency toward paroxysmal 

manifestations in the case (R-704) of the forest Negro. "

A. What page is that on?

Q. Page 21. Is that a correct interpretation or, rather, translation,



584

and is that conclusion in accordance with your opinion as a special­

ist?

A. Yes.

MR. PITTMAN: We tender, if Your Honor please, for the 

record and for admission in evidence both the article in the origi­

nal French and the translation. The article is entitled "Introduc­

tion to the otudy of the Electrophysiology of the African Negro, " 

by P. Gailais and G. Miletto.

THE COURT: Let it be marked, and received in evidence.

MR. BELL: Your Honor, let us enter a special objection 

for all these studies of the African Negro. I have great difficulty 

seeing the relevancy of these studies on the African to the Ameri­

can Negro in Mississippi.

THE COURT: I will adhere to the ruling heretofore made 

and overrule the objection.

MR. PITTMAN: If Your Honor please, I would suggest a 

number 27-A and 27-B.

THE COURT: Very well.

(Same received in evidence and marked as Intervenor's Exhibits No.

27-A and 27-B, respectively)

(Exhibits are not copied because by order of the Court the original is

to be inspected.)

Q. So is it or not true, Doctor, that this study shows a distinct and 

confirmed difference in the physiology of the brain? (R-705)

A. Yes.
Q. Is there anything further you wish to state, anything I have failed



to ask you about In connection with the electrical studies?

A. Parts of this have been tested and confirmed, and I apologize that 

there are no studies I know of in the United States.

Q. And that is the only study you know of in the world, of the Negro 

brain as compared with the white?

A. Well, that and the second study done in another part of Africa, 

and this was reported on by the United Nations in one of their re ­

ports, this same study. These are the only ones I know of.

Q. And are all of those studies in accord to the effect that the electro­

physiology of the Negro brain is different from that of the white 

brain?

A. Yes.

MR. PITTMAN: That is all.

THE COURT: Any questions by the defendants?

MR. CANNADA: No, sir.

THE COURT: Any cross examination?

MR. BELL: No cross examination, Your Honor, and the 

same motion to strike the testimony.

THE COURT: For the reasons herefofore stated, I will 

overrule the motion.

MR. CANNADA: May we say, on behalf of the defendants,
(R-706)

we would adopt for the defendants the testimony of the intervenors. 

THE COURT: Yes, sir.

(Witness excused)

THE COURT: Do you rest?

MR. PITTMAN: We rest. The interveners rest.

585



586

THE COURT: I believe all the defendants have now rested. 

Is that correct.

MR. CANNADA: Yes, sir.

THE COURT: Any rebuttal?

MR. BELL; Yes, sir. We would, of course, renew our 

motion to strike from consideration in the record all the testimony 

of the intervenors for the reasons that we gave; and in rebuttal to 

the testimony given in the main by defendants --  although I guess 

the Court can consider this for whatever relevancy it has through­

out the consideration of this case — plaintiffs offer in rebuttal as 

an exhibit to their case a part of the evidence admitted in the case 

of the United Mates of America vs. Mate of Mississippi, Civil 

Action No. 3312, the record in this court, southern District of 

Mississippi; that part of the evidence which is a comparison of the 

education of Negro and white children, white persons, in Missis­

sippi, from 1880 until 1963.

Now, this data was gathered by the United States Govern­

ment In response to interrogatories of certain of the (R-707) de­

fendants for the State of Mississippi. The data was gathered from 

official state reports. It is fairly lengthy, but I would, as a part 

of my motion to have it admitted, like to point out some of the 

highlights of the information that it contains.

On page 2 of the report, it points out that white public 

school teachers in Mississippi "were and are more highly trained 

than Negro teachers. "

It points out further that this is during this whole period of



587

the study from 1890 to the present. It points out moreover that 

white public school teachers in Mississippi were and are more 

highly paid than Negro school teachers.

As just one example of a lot of the figures it gives, in 

1949-1950 white school teachers averaged $1,805.69 per year, 

and Negro teachers averaged $710. 56 per year.

More white teachers are provided for white child in attend­

ance than for Negro child in attendance in the public schools of 

Mississippi.

In 1931-32 school year the ratio for whites in white schools 

was 23 students for each teacher. During the same period, the 

ratio was for Negroes 34 students for each teacher.

In 1961-62 the ratio for whites was still 23 pupils for each 

teacher, and for Negroes it had dropped down only to 28.5 pupils 

for each teacher.

MR. WATKINS: Pardon me. I want to object to this. It
(R-708)

is clearly inadmissible. We don't know who assembled this data. 

We have no opportunity to cross examine, and counsel is merely 

reading into the record certain statistics alleged to have been ob­

tained by some person from some report, and he will later cite 

from the record those statistics as though it were evidence. We 

don't think this has any place in this record. He is reading what 

are alleged to be findings by some unknown person in some other 

lawsuit.

MR. BELL: I think, if counsel was listening, I pointed out 

that what I'm reading Is part of the record in a case which was



588

heard in this court, and on that basis alone the court could take 

judicial notice of it.

But, moreover, I pointed out that the records were com­

piled by the United States Government in answer to interrogatories 

posed by officials of the State of Mississippi in all of the material 

and all of it set forth here is taken from state reports by state 

officials of the State of Mississippi.

Now, we have gone through here since Monday, almost 

three full days of testimony, all of which has been adopted by the 

defendants, aimed at showing that Negroes are inferior, are less 

educable, have lower scholastic achievement, and in all other 

manner are greatly inferior to white pupils in Mississippi, and 

therefore, a classification based on race, which is the way they 

are operating (R-709) their schools, is. justified under the Con­

stitution.

I am pointing out in sole rebuttal, and I think I am entitled 

to a few minutes after they have taken a few days, one exhibit 

which I think throws more light on inequality between Negro and 

white pupils than all of the information that they have shown.

THE COURT: Of course, the Court takes judicial know­

ledge of its own record and will take judicial knowledge of such 

record, as it is required to take. However, unless it was offered 

in evidence, as you are doing now, I doubt if testimony taken would 

be considered as part of the record of which judicial knowledge 

would be taken.
But at any rate, I will let the offer be made and be a part of



589
the record here in this court in another case —  to which I assume 

these parties in this case were not parties to that suit? What was 

the style of that?

MR. BELL: I think that was the United States versus 

State of Mississippi. I don't know the exact ---  Well, to the ex­

tent that the attorney-general's office is representing the school 

board in accordance with state statute, then to that extent the 

parties would be the same. But I don't think that similar parties 

—  Similar parties is not one of the prerequisites.

THE COURT: I will permit you to make the offer and
(R-710)

call the attention of the Court to the high spots, and I will reserve 

ruling upon the objections of the defendant as to whether or not it 

is admissible, because I am not sure whether that can be admitted 

in that form or not.

So I reserve ruling upon that objection.

MR. GANNADA: Is he permitted to continue to read his 

resume of what the report shows, which we have never seen and 

had no opportunity to cross examine on?

THE COURT: Of course, the record, you are offering —

MR. GANNADA: We have never seen it.

THE COURT: Let counsel opposite see that.

MR. BELL: All right. We haven't seen a great deal of 

some of the latter testimony and we made no similar objection.

Now, I would like to, if I may, if this is going to be so much prob­

lem, continue my resume and then offer this in evidence and let 

them see it for whatever purposes they want, and perhaps after the



590

luncheon break they can make any further objection to It that they 

may see fit.

MR. WATKINS: Your Honor, may I ask a question? I'm 

not too familiar with the record, but, Counsel, isn't it a fact that 

the Court in that case from which that was taken refused to con­

sider the answers to those interrogatories you are reading as evi­

dence, and disregarded it in that lawsuit?

MR. BELL; I'm not certain that that Is so. I am certain
(R-711)

the case is presently pending on appeal before the U. S. Supreme 

Court.

MR. WATKINS: Do you know whether or not the Court 

that heard that case considered that as evidence in the case?

MR, BELL; Now, I'm not going to answer these questions.

THE COURT; The record will show ---

MR. CANNADA: The other question I would like to ask is, 

we are here dealing with the students of the Jackson Municipal 

Separate School District,

MR. BELL: I ’m going to get to that if they will give me the 

courtesy —

MR. CANNADA: and insofar as I have heard, he is

talking about a report we have never seen.

THE COURT: Let me see what you are offering.

{Same is handed to Court)

THE COURT: I see here "Answers to Interrogatories of 

Mate of Mississippi; Mrs. Pauline Easley, Circuit Clerk and 

Registrar of Claiborne County; J. W. Smith, Circuit Clerk and



591

Registrar of Coahoma County; T. E. Wiggins, Circuit Clerk and 

Registrar of Lowndes County.i!

Now, Coahoma County and Lowndes County are not in this 

district.

MR. BELL: I believe that the United States Government 

in that voting suit, which is the type of suit it was, had (R-712) 

joined all of the counties, if I'm not mistaken, as party defendants, 

and these particular party defendants had requested interrogatories 

and asked the United States Government to explain allegations in 

the complaint to the effect that the educational opportunities pro­

vided Negro children in the State of Mississippi were greatly in­

ferior to the educational opportunities provided white children in 

the State of Mississippi. Now, in response to those interrogator­

ies, the Government compiled this document, compiled it com­

pletely from official state reports, reports of the superintendents 
state

of the/educational system, reports of the state body to the legis­

lature biannual reports, a 20-year study and various other studies 

made by officials of the State of Mississippi.

THE COURT: This document that you have handed me 

which you propose to offer in evidence, is this an exact copy of 

the answers to the interrogatories?

MR. BELL: I believe it is, Your Honor, though I imagine 

that can be checked. I received it from an agent of the United 

States Government. Although I didn't think it would be necessary 

to have the seal mark on, I certainly can get that without difficulty, 

or it can be checked with the original in the clerk's office.



592

THE COURT: I think the interrogatories ought to be, 

because this looks like a lot of argument and stuff here (R-713) 

rather than copy.

ME. BELL; No, Your Honor, it is all factual material.

THE COURT: In direct answers?

MR. BELL: That's right. The question was -- There was 

a series of interrogatories, and I believe most of this data was in 

in answer to one particular interrogatory, which requested the 

plaintiff, the United States Government, to explain an allegation in 

the complaint to the effect that Negro educational opportunities in 

Mississippi were inferior to the educational opportunities provided 

for white children. Nov;, all of the materials there is not argu­

ment, but the support for the allegation.

THE COURT: And is the language of the answer?

MR. BE LL: And is the language of the —  Most of it is 

quotes or statistical quotes.

MR. SHAND3: Have you examined that statement to verify 

it?

MR. BELL: what statement?

THE COURT: Just a minute, Gentlemen. One at a time.

I think he ought to be able to verify that these are direct 

answers. I certainly don't know, and it's not certified to by the 

clerk of the Court; but I will let you offer it and, of course, you 

can offer it and it will be come a part of the record whether it is 

competent or not; but I will exclude it just on statements here be­

cause I could not take judicial notice of the records of the Northern



593(R-714)
District of Mississippi because they are not available to me. Now, 

the Court will take judicial knowledge of any record in its own 

district because they are available to the Court for whatever they 

may be worth.

So I think you should just offer them in evidence and —

MR. BELL: Your Honor, I should like to —  I would like 

to have the courtesy that I extended to counsel for defendants and 

counsel for intervenors during the period since about eleven 

o'clock on Monday morning when we rested our case, and that is 

to at least permit me to make my offer on this proof, and at the 

conclusion of it then hear the various objections. I think I am en­

titled to that.

THE COURT: Yes, you are entitled to that, and I am 

going to let you do that.

I am going to let him epitomize what that —

MR. PITTMAN; If Your Honor please, I'd like to make a 

statement in behalf of the intervenors.

MR. BELL: Your Honor, I have been interrupted in the 

course of this thing.

THE COURT: Well, they are entitled to be heard, and then 

I will hear you.

MR. PITTMAN: We object to the admission of any evidence 

or any material derived from any case in which the intervenors 

were not parties and with which they were not (R-715) concerned 

and in which they had no opportunity to present contrary facts or 

evidence of any kind. We insist that under the law we are only



594

bound In cases where the same parties where the evidence was 

offered, where we were parties, or where we were represented by 

parties. And in the matter he speaks of, we were not represented 

directly or indirectly, and had no opportunity to consider or refute 

any of the material in it; so we think now it will be incompetent as 

far as the interveners are concerned.

THE COURT: Very well. Let the objection be noted, and 

I will reserve ruling on it.

Of course, the statement he is reading into the record now, 

if there is a variance from anything in the exhibit —  if the exhibit 

should be received in evidence, the exhibit will control, and the 

balance of the statement would be disregarded. He is simply mak­

ing this as an offer; rather than reading the testimony he is offer­

ing at this time, he is epitomizing the parts he expects or desires 

to call attention to.

You may proceed.

MR. BELL: Thank you, Your Honor.

As I was indicating, during this whole period of the statis­

tics and other reports that have been compiled, more money was 

spent for the instruction of white children in (R-716) the State of 

Mississippi than for Negro children. In 1929-1930 the record In­

dicates that an average of $40.42 was spent for each white child, 

while $7.45 was spent for the education of each Negro child.

By 1956-57 that figure had increased to $128. 50 per white 

child, and had Increased for the Negro child to 378.70.

By 1960-61 the figure for the white children was an average



595

of $173.42; for Negroes, $117.10.

Now, with particular reference to the defendants in this 

case, the exhibit shows at pages 8 to 10 that during the year 1961- 

62 that the defendants boards here spent in the education of each 

child above the stale minimum program: The Jackson board, first 

of all, for white children, $149.64, and for Negro children,

$106.37; for the Leake County board, that figure was above the 

state minimum for the white children, $48.85, and for Negro 

children, $17.37. For the Biloxi Separate .school District, the 

figure was for the same period, 1961-62, for white children 

$128.92, and for Negro children, $86.25.

Now, the figures here give the breakdown for every school 

district in Mississippi, and I certainly won't try to read them all, 

but other typical ones include Clarksdale (R-717) and Coahoma 

County school district, where the Court can take judicial notice 

where school desegregation suits have been filed: for the Clarks­

dale Separate School District, the figure for 1961-62 was $146.06 

for the white children, and $25.07 for Negroes. For Coahoma 

County School District, the figure was $139.33 for each white 

child, and for each Negro child, $12.74.

Just a few other examples: From Madison County, our 

neighboring county here, the figure was $171.24 for the white 

children, while for Negroes it was per child $4.35.

For neighboring Rankin County, we have for white children, 

$72.71 per child, and for Negro children,$14.78, per child.

And one more, Yazoo County, located about 50 miles away,



596

for each white child above the minimum, it was $245.55, for each 

white child, and for Negroes for each child, $2.92.

The report points out at pages 11 to 14 that in 1954-55 

every school district in Mississippi spent more money to educate 

white children than it did for Negro children. During that period 

the Jackson school board, according to the figures given here, 

spent $217.00 for the education of each white pupil and $157.00 for 

the education of each Negro pupil. The Leake County board spent 

$169 for the education of each white pupil, and $104 for the educa­

tion of each Negro. The Biloxi school board spent $191 for the 

education of each (R-718) white pupil, and $141 for the education 

of each Negro.

The county average in county school boards during this 

period throughout the state was $161 for each white child, and 

$87 for each Negro.

For special or separate school districts In the amount of 

money, it was generally a little more. The average was, through­

out the state, $181 for each white child, and $106 for each Negro 

child.

On page 14, the report taken from official state documents 

indicates that white children have generally longer school terms 

than Negroes throughout the State of Mississippi. They give the 

data bringing up to date to the 1961-62 situation, which showed that 

in that period only 2 white school districts had school terms of 

eight months, while during the same period 103 Negro school dis­

tricts had school terms of eight months. During the same period



597

637 white school districts enfoyed full nine-month school terms. 

During that same period only 399 Negro school districts enjoyed 

full nine-month school terms.

On page 15 of the report, it shows that in 1910 Mississippi 

decided that consolidation of rural schools would improve education 

for children, and the report on that indicates the several reasons 

the determination to consolidate was made —  indicated that if the 

teacher was responsible for only one or at the most two (R-719) 

grades, it would be easier to secure good teachers with profession­

al training. It was an economy toconsolidate the schools. "Pupils 

are more interested in school and therefore attend more frequently 

and remain in school and go on to high school. The entire curri­

culum can be enriched. The school building will be much superior. 

Consolidation offers the bases for the solution of more of the rural 

school problems than anything that has yet been offered."

Based on these findings, consolidation of the Mississippi 

schools began in 1910. However, between 1910 and 1930, while 

many white school districts were consolidated, no Negro school 

district was consolidated during that period. Therefore, as of 

1931, there were 959 consolidated white school districts, and 

789 unconsolidated white school districts at that stage. During the 

same period there were only 16 consolidated Negro school dis­

tricts, and 3,484 unconsolidated Negro school districts. The re ­

port points out that the consolidation of Negro schools did not

really get underway until after the Brown decision in 1954, forty 
years after consolidation of white schools.



598
On pages 16 and 17 of the report, it points out that at all 

times in Mississippi "secondary education has been made available 

to more white children than Negro children, " even though there 

have always been more Negro children than white children of 

school age. And the report goes on to give (11-720) the breakdown 

in statistics supporting that statement.

On page 18 the report indicates, giving statistics in sup - 

port, that at all times "more white high schools than Negro high 

schools "have been accredited by either the State of Mississippi or 

by regional accrediting association.

On pages 20-23 of the report there are breakdowns indicat­

ing the wide variation in college training available to whites and 

Negroes in Mississippi.

On page 24 we offer that particularly with reference to the 

fact that school teachers who have to have the training generally 

get it within the state, then come, return to either Negro or white 

school.

On page 24 of the report it points out that officers of the 

state government have recognized that the public educational facil­

ities provided for Negroes were inferior to those provided for 

whites. Now, it gives first of all a number of quotes from various 

governors of the State of Mississippi concerning education, and I 

certainly won't try to read them all. And I think it does show an 

improvement from the early quote by Governor Vardaman back in 

1907 when he is reported to have said, "Here is what I promised to 

do. I said if you elect me Governor and elect a legislature in



599

sympathy with me that I would submit to the people of Mississippi 

an amendment to the State Constitution which would control the 

distribution of a public school fund so (R-721) as to stop the use­

less expenditure In the black counties." . . .

THE COURT: Let me ask you there about that now.

Is that an answer by these registrars?

MR. BELL: No, Your Honor. I was confused on that 

point. The registrars didn't give the answers. The registrars 

filed the interrogatories, and the Government, in answer to the 

registrars' interrogatories, provided these answers, but they 

provided them fro m -----

THE COURT: Well, I'm going to sustain the objection to 

the introduction of that, because I was admitting it upon the theory 

of a statement against interest. Those are self-serving declara­

tions.

MR. BELL: They are not self-serving declarations, Your 

Honor, when they are made by officials of the State of Mississippi. 

If anything, they are declarations against interest, at least in this 

regard.

THE COURT: As I understand, the State of Mississippi 

didn't give that information.

MR. BELL: But the information that was given, Your 

Honor, is taken from official reports of the state of Mississippi.

THE COURT: I ’d like to see that report where it is stated.

Anyway, that wouldn't be competent. I knew Governor Vardanian 
personally. He was campaigning, and that's (R-722) what he was



600

doing in the campaign.

MR. BELL; Well, let me strike the statement of Governor 

Vardaman which tends to be a campaign statement and go along to 

another statement, Your Honor, which was the only other one I 

was going to mention.

THE COURT: I believe I will sustain the objection to that 

document in the form it is. I would like to see those records of 

which I could take judicial notice, rather than to have a copy that 

is prepared by someone other than the official custodian of the 

records. Now, if that had been certified to by the clerk of the 

court, then, of course, under that doctrine a certificate would 

certify to its accuracy.

MR. BELL: Well, Your Honor, let me interrupt, if I may.

I wasn't basing the admissibility of this solely on the fact 

that it was admitted in another case. I think that was a certainly 

firm basis, and if you prefer it on there, there would certainly be 

no difficulty in getting the clerk within a very few minutes, I'm 

sure, unless the record has already been sent up on appeal, to have 

her certify that this is a true copy of the document that was filed. 

Now, it certainly purports to be a true copy from the face of it,

I'm sure you will admit. Moreover, you have the word of counsel 

and I have certainly, in all of the years I've been coming (R-723) 

down here, and I pride myself on being a member of this court, 

and I say to the Court that it is a true and correct document of a 

part of a record of a case in this court. Now, we have not, during 

all these few days, required any of these books, this information,



601

or at least these graphs which have been shown to the Court, to be 

certified in any such fashion. We assumed that because these 

attorneys who are members of this bar had indicated that they were 

what they were, that that was good enough. Now, I can't see why 

we should have to be held to a higher standard, Your Honor.

THE COURT: Because I'm not satisfied, when you start 

quoting there from political speeches, that — -

MR. BELL: —  It was a statement to the legislature, Your 

Honor; not a political speech.

Let me return to the statistics and let me ask you to re ­

serve the decision until I finish.

THE COURT: All right, you can do that.

MR. WATKINS: Your Honor, before he commences, let 

me point out once more that these are statements of some person 

with the United States, purported to have been lifted from the pub­

lic records of Mississippi. Now, we are not complaining because 

we don't think that is what is reflected in the records of that law* 

suit, but we complain, as we would have in that lawsuit if there 

had been public facts alleged (R-724) to have been produced by 

the United States without certification of the facts as produced; 

and we think the record is being cluttered by a form of evidence 

that is not proper here, would not even have been proper in the 

case in which it was offered, and it is my advice from the attorney- 

general's office that it was ruled incompetent in that case for the 

very reason I am stating. And I don't think we ought to clutter the 

record with alleged facts found by the United s ta te s -----



602

THE COURT: Well, I believe he's nearly through, aren't

you?

MR. BELL: I am, Your Honor. May I continue?

Now, every two years the State Superintendent of Public 

Education in Mississippi reports to the Mississippi Legislature. 

Following are excerpts from some of the reports, many of which 

are set out in fairly good detail here. These reports indicate that 

the public education for Negroes has been inferior to that provided 

for whites.

Now, an early report, at page 25 and 26 of the exhibit, is 

quoted, as follows:

"In many counties, particularly in rural areas, Negro 

children are forced to attend school in mere shacks or in church 

houses... Consolidation has done away with practically all of the 

one and two-teacher schools. In fact, this year there are less 

than ten percent of the white children CR-725) of the rural dis­

tricts attending these old type schools. The other ninety percent 

have the advantage of modern high schools, in many of which, not 

only the college preparatory course is given but also work in vo­

cational agriculture, home economics and business training...  "

Now, this was taken from the Biennial Report 1929-31, 

page 11 of that report.

Another report indicated that 83 percent of all colored 

children enrolled in school were in open country rural schools,

the great majority of which were of the one and two teacher type so 
common in Mississippi in both races prior to 1910.



603

That statement was taken from a document titled TWENTY 

YEARS OF PROGRESS 1910-1930 AND A BIENNIAL SURVEY 

SCHOLASTIC YEARS 1929-30 AND 1930-31 OF PUBLIC EDUCA­

TION IN MISSISSIPPI, Issued by W. F, Bond, State Superintendent 

of Education.

Now, from the same report by W. F. Bond, he states at 

page 90:

"The quality of work done in the school room by the ma­

jority of Negro teachers would not rank very high when measured 

by any acceptable minimum known to the leaders in educational 

thought. There is a growing sentiment among the white people 

and the Negroes in Mississippi favorable to improvement in school 

plants, in the training of Negro teachers which will guarantee a 

better quality of work in (R-726) the schoolrooms for the Negro 

ra c e ."

At Page 28 from the Biennial Report to the State Legisla­

ture of 1933-35, the report says:

"There is also dire need for school furniture and teaching 

materials - comfortable seating facilities, stoves, blackboards, 

erasers, crayon, supplementary reading materials, maps, flash 

cards, and charts.

"In many of the 3,763 colored schools of the state there is 

not a decent specimen of any one of the above-mentioned items.

In hundreds of rural schools there are just four blank, unpainted 

wails, a few old rickety benches, an old stove propped up on brick­

bats, and two or three boards nailed together and painted black for



604

a blackboard. In many cases, this constitutes the sum total of the 

furniture and teaching equipment. “

Now, the next biennial report, for 1935-37, indicates that 

"high school advantages for Negroes in Mississippi are very 

meager. Ninety-four percent of the educable Negro population of 

high school age is not in school. ..  .There are twenty-eight 

counties in Mississippi which do not have any recognized high 

school facilities for Negroes. Fifteen counties make absolutely 

no provision whatever for high school training of Negro children. 

Of the fifty-four recognized four-year high schools for Negroes, 

fifteen are privately owned and supported... Only eighteen Negro 

high schools in Mississippi.. . " —  (R-727)

THE COURT: I believe, Mr. Bell, that is all I care to 

hear from that. You may offer it and let It be marked as an exhi­

bit. And I sustain the objection to it and will exclude it from con­

sideration in reaching a judgment in this case for more reasons 

than one.

I think it is not between the parties that are in this litiga­

tion, and they are not bound by it extra judiciary. I would have 

to be proven by witnesses because there is a lot of material in 

there that is so far back that —

MR. BELL: Well, I was going to bring it up to date, Your 

Honor, if you will give me the minimum of the time that the de­

fendants have had. I was going to bring that right up to date and 

show that there has been an improvement but that there was an 

admission by the state legislators up to the present day that there



605

was still a lot of work to be done before the Negro schools in the 

State of Mississippi are on a par with the white schools. I was 

going to bring it up to date.

Now, we’ve gone clear back to dark Africa to show that 

Negroes are inferior.

THE COURT: Yes, but that was by competent evidence, 

and I don’t think this is competent. If you had competent evidence 

here to establish those facts where it would be subject to cross 

examination by the attorneys in this case who are conducting the 

trial of this case and were not connected-----that is all the inter­

veners; none of them (R-728) were connected with that case, and 

none of the other defendants were connected with those cases. So 

it is not admissible in evidence.

Now, part of it would be competent testimony if a witness 

were here subject to cross examination, but the document in its 

present form is not competent, in my judgment, and for that rea­

son I will sustain the objection; but, of course, it will go into the 

record, and if I am wrong about it, then it would be erroneous and 

the courts would probably reverse any judgment that I might ren­

der in the case, or they might, considering the record itself, 

might conclude that whatever judgment I rule would be correct re ­

gardless of whether that was competent or not competent.

Now, you have your record complete by offering it in evi­

dence, and since I am going to exclude it for the reasons I have 

stated, it is not necessary for you to take up any more time read­

ing that. So I sustain the objection to it.



606

MR, BELL: Gould I make a further statement, Your

Honor ?

THE COURT: Yes.

MR, BELL: When we returned with this case from the 

Fifth Circuit and the motion to intervene was made, and the plain­

tiffs objected to such intervention on the basis that it was a mere 

attempt to relitigate the issues that had already been settled in the 

Brown decision by the United 0 7 2 8 ) Jtates .supreme Court, and

moreover that subsequent similar efforts had been knocked out
by

either/the district courts or by the Fifth Circuit in a number of 

cases, the Court pointed out that nevertheless the intervenors 

were entitled to make their record.

Now, one of the bases for objection to permitting that rec­

ord to be made, notwithstanding the unlikelihood that the position 

could be sustained, was that we had to face the fact that Missis­

sippi not accidentally was the last of the states to initiate at least 

token desegregation, and that we were hopeful that this inevitable 

change could be brought about in as peaceful and orderly fashion 

as possible. We pointed out to the Court that the introduction of 

all of this mass of material, with die importance that the case has 

generally and with the tremendous play that it will be given in the 

newspapers and news media all over the state, as it has been given, 

would rnalee more difficult rather than less difficult the job of 

initiating and carrying through compliance with the d upreme 

Court's decision of 1954.
Now, it was the opinion of plaintiffs, as we have pointed



607

out several times, one, that all of such data was irrelevant to the 

issues in this case, and

THE COURT: I have already ruled on those and-----

MR. BELL: —- This is preparatory to making a further
(R-730)

offer on that, Your Honor, if I may.

THE COURT: Well, you needn’t remind me of everything 

—  Certainly I don't want to shut you off on anything you want to 

say that I don't already know, but we have taken up some time 

here, and we have two more cases to go on to pretty soon, so 

what is it?

MR. BE LL: Well, what I want to say is that it was my 

hope to, since we must be cognizant of the fact, while we are try­

ing the case to the Gourt, that the Mate of Mississippi as a whole 

is following this case with avid interest, to at least be able to in­

dicate part of the reason, in rebuttal, why, if there is any dis­

parity between Negro and white achievement, our reason for be­

lieving that it is due to the long and rather unhappy history of un­

equal educational opportunities that have been provided for Negro 

children in the state.

For that reason we wish to offer this, and it is for that 

reason that I would permit the Court to permit counsel for plain­

tiff under Rule 43-c of the Federal Rules to continue making their 

offer in order to make the record. —

THE COURT: Well, you've already made your offer, and 

it is there and speaks for itself. And I have sustained the objection 

for the reasons I've already stated, so it is not necessary to make



608

any offer of what you expect to prove, because there it Is. Now, 

if you have any other evidence you (R-731) want to offer in re ­

buttal, of course, if it is competent certainly you are entitled to 

get it in and I will hear It. I don’t want to shut you off from any­

thing I think you’re entitled to and which you want to do; that's not 

my purpose. I am simply ruling here upon the admissibility of 

evidence, and in my judgment that is not admissible. As I say, 

though, it is there and will become a part of the record upon 

appeal in the event there is an appeal from whatever decision the 

Court makes; so it is there, and it is not necessary for you to say 

anything on what is in there.

MR. BELL: All right, Your Honor. We have nothing 

further.

THE COURT: Very well. Let it be marked, and the 

objection is sustained.

(Same was marked as Plaintiff's Exhibit No. 4.)

THE COURT: It will not be taken into consideration in 

reaching a judgment in this case.

Anything further, Mr. Bell?

MR, BELL: Nothing further, Your Honor. The plaintiffs

rest.

THE COURT: I believe everybody has rested. Is that 

correct?

MR. LEONARD: The intervenors rest, but I would like to 

point out in connection with the statement which has just been made 

to the Court by Mr. Bell that we have (R-732) presented here in



609

court the actual witnesses and documents of which we spoke, and 

we put them on under the common laws of evidence, and that they 

were open both to rebuttal and to cross examination, and that Mr. 

Bell's choice not to cross examine has not been a matter of cour­

tesy on his part; it has been an unwillingness to meet this proof.

THE COURT: Very well. Everyone has his statement in 

the record now.

It is nearly adjourning time, so let me ask about the next 

case, the Leake County case.

MR. BELL: Yes, Your Honor. On this case, counsel for 

plaintiffs and defendants have been making some efforts to shorten 

the proceeding by preparing and agreeing to a group of stipulated 

facts which can be submitted to the Court as the factual record of 

this case, some of which would be attached, exhibits, and other 

documents.

Now, we are in sort of a draft stage at this time, and I 

believe with a little longer than ordinary lunch break —-

THE COURT: Very weH. What about three o'clock?

MR. WELLS: I think by three o'clock we will be able to 

come into court with a complete stipulation and eliminate any tak­

ing of any evidence whatsoever.

THE COURT: Very well. The next case will be the Biloxi 

case. What about it?

MR. WATKINS: I don't think the Biloxi case will take
(R-733)

long, Your Honor. We will probably have one witness. We expect 

to adopt the evidence offered in the Jackson case, to which I under*



610

stand counsel has no objection.

MR. BELL: We have the regular objection to Its compe­

tency, but we have no further objection.

THE COURT: I see. You rely upon the same objections 

you have heretofore entered.

All right. Let me ask this now: I don’t believe these cases 

have been consolidated, but as I recall it, it was agreed here when 

we started that all the evidence that was taken in this Jackson case, 

so far as was relevant to the issues in the other cases, would be 

considered as apart of the evidence in each one of those cases.

Is that the understanding?
the

MR. BELL: I think that was/under standing.

THE COURT: Is that your understanding?

ME. WATKINS: Yes, sir.

MR. BELL: I did have one witness on the Biloxi case, one 

of the plaintiffs who is a medical doctor and one of the few Negro 

medical doctors in the community, and I thought there was a 

possibility he could get on today, but rather than take his time, I 

had asked him to be prepared for nine o’clock tomorrow morning. 

Now, I was wondering if we could finish up Leake County this 

afternoon and if it would be possible to come back tomorrow morn­

ing with the hope of finishing up within a very few hours. (R-734)

MR-. WATKINS: If counsel would reduce to writing what 

Dr. Mason — - Is it Dr. Mason?

MR. BELL: Yes.

MR. WATKINS: —  what Dr. Mason plans to testify to,



611

we may be able to agree that would be his testimony. I would like 

to get through this afternoon on the Biloxi case, if we could.

THE COURT: I imagine you know, in substance, what 

Dr. Mason would testify to, don't you, Mr. Bell?

ME. BELL: Yes, Your Honor. I was hoping the Court 

would get a chance to see Dr. Mason, in view —

THE COURT; Oh, I know Dr. Mason.

MR, BELL: Oh, you know Dr. Mason? Then — Some­

times I begin to wonder myself, after two or three days of this, 

and I thought Dr. Mason was a prime example to the contrary.

—  But if you know him, perhaps we could get together and make 

stipulations similar to those that we are preparing with Mr. Wells.

THE COURT; Very well. We will take a recess until 

three o'clock, and see what you can work out in that time.

(Whereupon the court was recessed until 3:00 P . M . )

*  Sf- *



612(R-735)
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF MISSISSIPPI, JACKSON DIVISION

DARRELL KENYATTA EVERS and KEENE DENISE EVERS, 
minors, by MEDGAR W. EVERS and MRS. MYRL3E 
B. EVERS, their parents and next friends, ET AL,

Plaintiffs,

Vs.

JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT,
KIRBY P. WALKER, Superintendent of Jackson City 
Schools; LESTER ALVIS, Chairman; C‘. II. KING,
Vice-Chairman; LAMAR. NOBLE, Secretary; V/. G. MIZE 
and J. W, UNDERWOOD, Members,

Defendants,

JIMMY PRIMOS, ET AL,

Intervenors.

(Civil Action No. 3379)

COURT REPORTERS CERTIFICATE 

I, D. B. JORDAN, Official Court Reporter for the Southern 

District of Mississippi, do hereby certify that the above-entitled cause 

came on for hearing before the Honorable S. C. Mize, United States 

District Judge for the Southern District of Mississippi, at Jackson, 

Mississippi, in the Jackson Division, on the 18th day of May, 1964, 

and that the foregoing pages constitute a true and correct transcript 

of the testimony and proceedings.

WITNESS my signature, this the 2nd day of July, 1964.

/ s /  D. B. Jordan 
D. B. JORDAN

*  *  *



CR-170)

OPINION OF THE COURT 
(Title omitted-Filed July 7, 1964)

613

The complaint in this case was filed on behalf of several minors 

and their parents. It was alleged that the plaintiffs were all members 

of the Negro race and that the action was being brought on their behalf 

and on behalf of all other Negro children and their parents in Jackson, 

Mississippi.

The defendants are designated as the Jackson Municipal Sepa­

rate School District, the individual members of the Board of Trustees 

of the Jackson Municipal Separate School District, and Kirby P. "Walk­

er, Superintendent of Schools.

The relief sought was that the defendants be enjoined from 

operating a compulsory biracial school system in Jackson, Mississippi, 

and in the alternative that the Court order the defendants to present a 

plan to "desegregate" the schools within the Jackson Municipal Sepa­

rate School District.

iifter alleging that the defendants did maintain a compulsory 

biracial school system in the Jackson Municipal Separate School Dis­

trict, the plaintiffs alleged that they were "injured by the refusal of 

the defendants to cease operation of a compulsory biracial school 

system in Jackson, Mississippi." It was further (R-171) alleged that 

the operation of a compulsory biracial school system violated the 

rights of the plaintiffs and the members of the class which they pur­

ported to represent which were secured to them by the due process 

and equal protection clauses of the Fourteenth Amendment to the Fed­

eral Constitution.



614

The defendants filed their answer to the complaint. In this 

answer it was admitted that, with respect to all schools under their 

supervision and control, there were no schools attended by members 

of both the white race and the Negro race. The defendants denied, 

however, that they maintained or operated a compulsory biracial 

school system and further denied that the fact that no schools were 

attended by members of both the white race and the Negro race came 

into existence pursuant to the requirements of state law and denied 

that such condition was continued, perpetuated or maintained as a mat­

ter of state lav;, policy, custom or usage.

Defendants, in their answer, alleged that the schools in said 

District were being operated, to the best of their abilities, for the 

benefit and best interest of all pupils of the District; that the defen­

dants were and are vested with the exercise of judgment and discretion 

in connection with the assignment of pupils to schools within the Dis­

trict, and that many factors were taken into consideration in connection 

with their exercise of such judgment and discretion; that one of the 

factors taken into consideration was the differences and disparities 

between the ethnic group allegedly represented by plaintiffs and the 

Caucasian children in the District; that such racial differences are 

factual in nature, and, as such, can and should be taken into considera­

tion by the defendants in the operation of the schools of the District.

In short, the defendants planted themselves firmly upon the 

proposition that instead of being injured by separate schools for the

members of the Negro and white races that, as a matter of fact, such 

schools were advantageous to the pupils of both races, and that in the



615

conduct and exercise of their responsibility and duties (R-172) in 

connection with the operation of said schools the defendants were act­

ing within their judgment and discretion in taking into consideration the 

educational characteristics of the Negro and white races.

Thus, the issues were clearly presented by the pleadings. The 

fact that members of both the white and the Negro races do not attend 

the same schools was alleged by the plaintiffs and admitted by the de­

fendants. Thus, this is not an issue. The controlling issues are:

1. Are the plaintiffs, or the members of the class they pur­

port to represent, as a matter of fact, injured by the 

operation of separate schools for the races in the Jackson 

Municipal Separate School District?

2. Are those charged with the responsibility for the mainte­

nance and operation of the schools within the Jackson 

Municipal Separate School District authorized to take into 

consideration the educational characteristics of the mem­

bers of the Negro race and the educational characteristics 

of the members of the white race in connection with the 

operation of such schools?

A petition to intervene was filed in this cause on behalf of cer­

tain minor children and their parents. In this petition it was alleged 

that the intervenors were members of the white race. The petition to 

intervene was approved by this Court and the intervenors filed an ans­

wer to the complaint, oaid answer sets forth in some detail alleged 

differences and disparities between members of the Negro race and 

members of the white race and alleges affirmatively that should those



616

charged with the responsibility of the operation and maintenance of the 

schools of the Jackson Municipal Separate School District ignore or not 

consider such differences between members of the two races such 

would cause irreparable injury to the intervenors and to the class they 

purported to represent, as (R-173) well as to the plaintiffs and to the 

class the plaintiffs purported to represent.

Plaintiffs therefore contend that the operation of separate 

schools for members of the Negro race and members of the white race 

has resulted and is resulting in injury to the members of the Negro 

race. The intervenors contend that the operation of schools which 

members of both the white race and the Negro race attend would result 

in irreparable damage to the members of both races. The defendants, 

those charged with the responsibility of the operation and maintenance 

of said schools, contend that the educational characteristics of and the 

differences between the two races should be taken into consideration 

as factual matters and the schools operated in such a manner as to give 

good faith consideration to these factors, along with all other proper 

factors.

If, as a matter of law, there are no circumstances or conditions 

under which the educational characteristics of or the differences be­

tween the white race and the Negro race as they now exist within the 

bounds of the Jackson Municipal Separate School District can be con­

sidered by those charged with the responsibility of administering such 

schools, then the preliminary injunction heretofore entered by this 

Court should be made final. On the other hand, if those charged with 

the responsibility of administering such schools are to be permitted to



617

take into consideration, along with all other proper factors, the educa­

tional characteristics of or the differences between the members of 

the white and Negro races, then the issues were clearly presented by 

the pleadings.

The Court was and is of the opinion that in the exercise of their 

discretion and judgment, such exercise being in good faith and in ac­

cord with the principles heretofore enunciated by the Supreme Court 

of the United States, those responsible for the administration of such 

schools may take into consideration, along with all other proper fac­

tors, the educational characteristics of or the differences between the 

members of any ethnic groups, including the (R-174) Negro race and 

the white race. Therefore, the Court permitted the parties to submit 

evidence pertaining to the issues as heretofore set forth.

Plaintiffs submitted as witnesses the parents of some of the 

minor plaintiffs. The substance of the testimony by such witnesses 

was to the effect that they desired that their children attend "mixed 

schools, " that is, attend schools that were attended by members of 

both the white race and the Negro race. These witnesses testified that 

even though it could be shown that separate schools for the members 

of the Negro race and members of the white race were actually educa­

tionally superior for their children, that, nevertheless, such would 

not be satisfactory since they desired that their children attend "mixed 

schools. " These witnesses testified, without exception, that their 

business contacts, their employers, their customers and their busi­

ness associates were all members of the Negro race. Yet, they in­

sisted that their children attend "mixed schools. "



618

The plaintiffs also placed on the stand Kirby P. Walker, Super­

intendent of Schools of the Jackson Municipal Separate School District. 

Mr. Walker testified, in substance, that there were no schools in the 

District attended by members of both the white and Negro races, inso­

far as he knew, and that in making temporary assignments to the 

schools he did take into consideration the educational characteristics 

of and the differences between the members of the white and Negro 

races. He testified that of the approximately 37,000 pupils enrolled 

in the Jackson Municipal oeparate school District, approximately 6093 

were members of the white race and approximately 4093 were members 

of the Negro race; that because of the numbers in both races it was 

economically possible and feasible to have separate schools for the 

races, and that this was, in his opinion as an educator, highly advis­

able and desirable. He further testified that there were no real differ­

ences between the facilities, program of studies or courses available 

as between the various (R-175) schools within the District, whether 

they be attended by members of the white race or attended by members 

of the Negro race.

The plaintiffs then introduced the interrogatories propounded 

by plaintiffs to defendants and the answers to these interrogatories by 

the defendants.

Thereupon, the plaintiffs rested. There was no showing nor, 

in fact, was there any effort to show that the separate schools were 

unequal or that such actually caused injury to the plaintiffs or to any

members of the class which the plaintiffs purported to represent. The 
plaintiffs obviously rested their case upon the contention and position



619

that any recognition or cognizance of the characteristics of or differ­

ences between the members of the various races was not within the 

scope of the judgment or discretion to be exercised by those charged 

with the responsibility of administering the schools.

There was no evidence or testimony showing or tending to show 

injury resulting to plaintiffs or the class purportedly represented by 

plaintiffs resulting from separate schools, nor was there any showing 

of any advantage or merit in the so-called "mixed schools" insofar as 

plaintiffs were concerned.

Defendants first presented evidence pertaining to the scholastic 

achievement and mental ability {!. ■>.) of the members of the white and 

Negro races, as reflected by the records maintained by the Jackson 

Municipal Separate School District, and pertaining to such pupils within 

such District. These records disclose that there is a wide discrepancy 

between the scholastic achievement and the mental ability, as shown by 

recognized tests used nationally.

These records disclosed a noticeable and substantial difference 

in the scholastic achievement of the members of the Negro and white 

races and a difference in the scores attained on the nationally recog­

nized mental ability tests, with the white pupils consistently scoring 

above the national average and the Negro pupils consistently scoring

below the national average. The disparity between the members 
(R-176)
of the two races as reflected by the mental ability tests became more 

pronounced as the age of the pupils increased.

J. D. Barker testified that this same difference or disparity 
existed between the members of the two races for as far back as the



620

records of the Jackson Municipal Separate school District were avail­

able, which was for a number of years.

This testimony was placed into the record without any objection, 

cross-examination or contradiction other than the objection as to ma­

teriality or relevancy.

The defendants then presented two witnesses who testified as to 

facts concerning public schools that have been changed from all-white 

or all-Negro schools to schools serving members of both races. Con­

gressman John Bell Williams, as a member of a Congressional Inves­

tigating Committee, testified concerning the results found by his Com­

mittee investigating the public schools of Washington, D. C. after same 

had been "mixed” for a number of years. His testimony was to the 

effect that the schools, after the "mixing," were inferior to the schools 

which had been operated in such a manner as to have the members of 

the two races attend separate schools. Unquestionably, his testimony 

was to the effect that the "mixing" of the races in the schools had been 

injurious to members of both races.

W. S. Milburn testified as a retired educator. He had served 

as principal of a large high school in Louisville, Kentucky. He had 

been President of the Southern Association of Colleges and Universi ­

ties, had served as a member of the Board of Aldermen of Louisville, 

Kentucky for a number of years, and had extensive experience as an 

educator. He testified that the "mixing" of the races in Male High 

School of Louisville, Kentucky had resulted in a deterioration of the

school and injury to members of both races.
Thus, the uncontradicted testimony was to the effect that the



621

"mixing" of the races in the same school was injurious to the members 

of both races. (R-177)

The defendants also called as witnesses Kirby P. Walker, 

Superintendent of Schools of the Jackson Municipal Separate School 

District, and James Gooden, retired Director of the Negro Schools of 

the Jackson Municipal Separate School District. Each of these wit­

nesses testified, without contradiction, that, in his judgment, as an 

educator, the operation of separate schools for the members of the 

Negro and white races within the bounds of the Jackson Municipal Sepa­

rate School District was for the best interest of the members of both 

races.

Mr. Gooden is a member of the Negro race. He holds a mas­

te r 's  degree in school administration from Northwestern University, 

Evanston, Illinois, and has served in the public schools of the Jackson 

Municipal Separate ochool District for many years. He testified that, 

in his opinion, the schools in the Jackson Municipal separate school 

District were excellent and that it was best for the members of both 

races that they attend separate schools.

Mr. Walker testified that he had been connected with a study 

made by M. V. O'Shea, Professor of Education, University of Wiscon­

sin, the results of which were published in 1927, pertaining to the 

school systems within the State of Mississippi; that such study had been 

impartially and fairly made and that the ultimate recommendation and 

conclusion of such study was to the effect that separate schools for 

members of the white and Negro races were desirable. He further 

testified that this study disclosed a marked and substantial difference



622

in the scholastic achievement and mental ability of the members of the 

two races, as reflected by various tests given.

Mr. Walker further testified that as Superintendent of the pub­

lic schools of the Jackson Municipal Separate School District he has 

been and is conscious of the differences between the members of the 

two races, and that In 1954 when the Board of Trustees of the Jackson 

Municipal Separate School District placed upon him the responsibility 

of temporarily assigning all applying pupils within the District he did 

and has taken such knowledge into consideration in making the tempor­

ary assignment of such pupils. (R-178)

Mr. Walker's testimony in this regard is that it was his under­

standing that after the decision of the United States Supreme Court in 

the Brown case, in 1954, the Board of Trustees of the Jackson Munici­

pal Separate School District eliminated any and all attendance areas 

and placed upon him, as Superintendent of Schools, the responsibility 

of making temporary assignments; that he was given no instructions 

pertaining to whether he should or should not take into consideration 

the race of any prospective pupil, but was charged with the responsi­

bility of using his judgment, as an educator, in making the temporary 

assignments. That, in the exercise of this responsibility, he realized, 

at that time, that members of both races were not attending the same 

schools, and he therefore analyzed the situation to see if there should 

be any change; that based upon the best information available to him as 

it pertained to the pupils In the Jackson Municipal .Separate School

District, and based upon his own knowledge as an educator, he con­
cluded that it was best for both races that all temporary assignments



623

be made so as not to temporarily assign pupils of both races to the 

same school.

Mr. Walker's testimony was to the effect that it would be educa­

tionally unsound and unfair to mix members of both races in the same 

school within the bounds of the Jackson Municipal Separate School Dis­

trict, which judgment was supported by records maintained in his 

office. He further testified that in the event the educational level or 

achievement on intelligence tests of the members of the races should 

become more nearly equal, then he would certainly take such into con­

sideration in making assignments at that time.

Mr. Walker and Mr. Gooden emphasized the difference between 

the relationships of teachers and pupils as contrasted with the relation­

ships of teachers and students. They testified that the children attend­

ing the public schools of the Jackson Municipal Separate School District 

are pupils, and, as such, are entitled (R-179) to and do receive from 

their teachers much more than formal academic instruction; that the 

relationship is one of in loco parentis and the teachers have a very 

personal relationship with the pupils, involving personal habits, de - 

sires, attitudes and behavior; that an understanding by the teacher of 

his pupil is an essential preliminary to successful learning and facili­

tates educational progress. They pointed out that not only were discip­

linary problems minor where there were separate schools for the 

races, but that such schools had a much higher holding power over the 

pupils. In confirmation of this statistics were introduced showing a 

greater average number of years of education attained by the adults in 

the City of Jackson than in comparable cities throughout the nation,



624

and also more than In the large metropolitan areas of the nation where 

there have been "mixed schools" even though Mississippi does not have 

a compulsory education law.

Mr. Walker supported his claim of educational benefit to be 

secured from separate schools for the two races by pointing out that 

the Negro pupils of the District were actually over-achieving in many 

subject matters. He pointed out that a teacher of the same race as the 

pupil is much more likely to develop the substitute parent, or in loco 

parentis, relationship with the pupil, to understand the pupil and to 

obtain maximum effort from the pupil without antagonizing the child, 

creating an educational rejection, or inflicting psychological injury to 

the child.

In short, the testimony of Mr. Walker and Mr. Gooden was to 

the effect that in their judgment, based upon the facts as they exist in 

the Jackson Municipal Separate School District, separate schools for 

members of the Negro and white races were highly desirable and were 

beneficial to members of both races. Their testimony was to the effect 

that to mix the races in the same schools would be highly injurious, 

from an educational standpoint, to the members of both races.

All of this evidence stands uncontradicted in the record. (R-180)

Interveners produced seven distinguished scientists, a number

of whom were shown to have been among the leaders of and recipients

of major honors in their professions. Their areas of specialization

included differential and social psychology, biology, genetics and

child neurology. Each of these witnesses testified to the existence of 
such differences between the two groups to constitute a rational basis



625

for separate schooling. Plaintiffs challenged neither their qualifica­

tions nor the truth of the matters and conclusions which their testimony 

and exhibits established or supported.

Accordingly, the Court finds from this uncontradicted evidence 

that the Negro and Caucasian races developed in different geographic 

areas under differing climatic conditions over periods of time measur­

able only in geologic terms.

Physical and mental variations exist between the two groups 

which necessarily include differences in traits of temperament, thought 

patterns, learning capacities, and other elements directly affecting the 

educational potential of the group members. In the case of Caucasians 

and Negroes, such differences may be directly confirmed by compara­

tive anatomical and encephelographic measurements of the correlative 

physical structure of the brain and of the neural and endocrine systems 

of the body. The evidence was conclusive to the effect that the cranial 

capacity and brain size of the average Negro is approximately ten per 

cent less than that of the average white person of similar age and size, 

and that brain size is correlated with intelligence.

The differences in some of these varying elements of mentality 

are subject to evaluation by observation and testing. While not all 

aspects of an individual's learning pattern are susceptible to precise 

measurement, a number of factors which have a high correlation with 

scholastic success such as mental maturity, learning achievement, 

motor control and the like can be objectively scored against nationally

standardized norms. (R-131)
Starting with the Army alpha tests during World War I, and



626

continuing since, several hundred major tests in all parts of this coun­

try and abroad have been made to determine the relative aptitudes of 

Negro and white children. With no exceptions and regardless of 

whether the testing was done in a segregated or integrated community, 

between white and Negro groups matched for equivalent socio-economic 

circumstances, the results have been substantially identical with those 

testified to as resulting from the tests in Jackson from 1927 to the 

present. The witnesses specifically referred to results reported from 

such testing in the schools of New York, Washington, Charleston, 

Birmingham, Mobile, Wilmington, Savannah, Atlanta and Dallas, all 

of which had patterns similar to those measured in Jackson, and all of 

which showed that the average Negro pupil falls behind the average 

white pupil more than one year in every four, so that when the average 

white child reaches the 12th grade level, the average Negro child has 

not yet reached the Sth grade level.

The differences so measured were not limited to the change of 

learning rate and ultimate difference in relative mental age or I.Q. 

which the Court has previously noted, but included as well an even 

more fundamental distinction in educational patterns, that of subject 

interest and problem approach. The witnesses were unanimous that 

these differences were not only substantial in themselves but were of 

major importance in determining the method of teaching, the selection 

and content of courses and fixing the progress norms. This was true 

even though an individual of one group would overlap the other in one 

or more of the measured factors since these did not show a change in 

the over-all pattern. To test this, a large number of Negro and white



627

children were paired in one study for identical scoring on I.Q. tests 

and remeasured annually thereafter for a number of years. Instead of 

staying the same, the two groups drifted apart at a rate which was a 

characteristic of normal group variation and after three years (R-182) 

they were the typical one year apart in terms of I .- - . , measured by the 

same tests.

It was testified that there has never been any substantial scien­

tific argument as to the correctness of such test results, but that a 

number of sociologists and psychologists have argued an "environmen­

tal" or a "Cultural Hypothesis" to the effect that the Negro result will 

approach the white norm to the degree that the socio-economic and 

cultural status of the Negroes involved in the testing have been raised 

to the comparable white group. To the contrary, it was shown by the 

witnesses that these differences in educability are not and cannot be 

changed either by a change of the student's environment or the better­

ment of his social condition or intimate associations with members of 

the white race. They reviewed a number of studies which had been 

made on the basis of matching Negro and white children so as to bring 

about socio-economic equality in integrated communities. In each 

such study the differences between the two groups was slightly less in 

the lower socio-economic levels than in the higher, and hence the 

"Cultural Hypothesis" was shown to be both unsupported and negated by 

the facts. The witnesses emphasized that the widespread economic 

and cultural improvement in the status of the Negro population in

America over the past half century had not diminished the differences 
shown to exist between Negroes and whites.



628

The differences measured by the Army in 1917 are virtually 

identical to those shown by the latest comparative studies. Both in 

Wilmington, North Carolina, and Jackson, Mississippi, comparisons 

were made over a 40-year period which showed no change, although it 

appears that in both Wilmington and Jackson there have been major 

improvements made over this period not only in the relative economic 

position of the Negro but also great improvements in the Negro schools, 

in teaching, plant and in per capita pupil expenditure as between Negro 

and white--to the point that there is no substantial difference at the 

present time. Mr. Gooden, the former Director (R-183) of Negro 

schools, testified that when he came into service in Jackson 35 years 

ago there was not a single Negro teacher holding a college degree, 

while today there is not one who does not. Yet the tests that measure 

learning potential and which have a high national correlation with suc­

cess in the public schools, today still show the same variations between 

these two groups as existed in 1927.

A special test was also made to determine whether intelligence 

tests unduly favored white pupils because of containing cultural ques­

tions which might be less familiar to Negro families. The results were 

again contrary to the "Cultural Hypothesis" in that the Negro group 

scored relatively higher on those questions which had been rated by 

educators as being most highly cultural in content.

The Court concludes that white and Negro pupils of public school 

age have substantially different educational aptitudes and learning pat­

terns which are innate in character and do not arise out of economic or 

social circumstance and which cannot therefore be changed or overcome



629

by Intermixed schooling or other change of condition or environment 

within the powers of tills Court to decree. The Court finds such differ­

ences to be racial traits so directly related to the learning process as 

to reasonably require separate forms of instruction in separate schools 

if equal educational opportunity is to be made available to the children 

of both races.

Apart from any differences in learning aptitude between white 

and Negro pupils, the evidence showed without contradiction that effect­

ive learning can only occur under conditions in which the individual's 

attention can be given to study without unnatural distractions. Such 

receptivity occurs only when the learner Is in a group with which he 

has an empathic relation, such as with his family, his kind, his neigh­

bors of like interests, or other groups with which he identifies himself 

as an Individual and in which, because of his similarity of characteris­

tic, he is an accepted group member. (R-184)

Negro and white children identify themselves in terms of race, 

and other obvious physical characteristics in the early pre-school 

years. They assume intuitively that things that do not look alike are 

not alike, that things that look alike are alike, and that thhgs are what 

they seem. It does not appear that this identification is caused either 

by school or society but rather arises primarily from a natural biologi­

cal selection mechanism which plays a part in maintaining evolutionary 

diversity of type and is described scientifically as ethnocentrism.

While race preferences resulting from gross race differences may be

consciously overriden by mature individuals, they remain as an inher­
ent mechanism so that no individual ever becomes completely uncon­



630

scious of such a difference.

In the classroom, the Intermingling of two groups, each having 

a high degree of self-identity, causes a heightening of consciousness 

of group, a result which grows as the number of contacts between them 

is increased. Compulsory intermixing there-fore exaggerates rather 

than diminishes any divisive forces which exist.

This is particularly the case where one of two different groups 

differ in performance in a common effort or endeavor such as learning 

in schoolrooms. In such a common environment or class, the slower 

of the two groups would be driven to compensate for their comparative 

shortcoming either by rationalization in the form of discrediting educa­

tional values and dropping out of school, or by substitution of diver­

sionary, attention-seeking delinquent behavior.

Apart from the success of separate classes in the Jackson 

schools, from the evidence I find that separate classes allow greater 

adaptation to the differing educational traits of Negro and white pupils, 

and actually result in greater scholastic accomplishments for both. 

Results were reported from other areas which prove this to be the case 

generally. Jack Greenberg, General Counsel of the NAACP, the organ­

ization conducting this litigation for (R-185) plaintiffs, andK. B.

Clark, the principal expert witness relied on by that organization In the 

school cases underlying Brown vs. Board of Education. 347 U. 8. 483 

(1954), and named in Footnote 11 thereof as an authority, were shown 

to have published reports to the effect that a substantially greater per­

centage of Negro pupils from segregated southern schools are able to 

meet minimal national college entrance standards than those from



631

Northern integrated schools, and that Negro pupils from Southern seg­

regated high schools have shown greater academic success in Northern 

inter-racial colleges than those who graduate from intermixed schools 

in the North.

Finally, it was shown that Negro pupils educated in separate 

schools enjoy a much higher degree of mental orientation, personal 

assurance and peace of mind than those forced to compete in mixed 

schools. It was pointed out in this case that in the cases underlying 

Brown vs. Board of Education of Topeka, supra, in order to prove 

injury resulting from segregation, the witness, Dr. Kenneth B. Clark, 

referred to a test conducted by him on only 16 children in a segregated 

school, which was said by him to show that a majority of Negro chil­

dren in a segregated school identified themselves with a white rather 

than a Negro doll, and that it could be concluded from this that they 

had suffered a loss of racial identity which injured their personality.

By comparison, the same test was shown to have been conducted by a 

Negro principal of unquestioned integrity on 85 Negro school children 

in the segregated schools in Jackson. Ninety-five per cent of those in 

Jackson identified themselves with the Negro doll and showed a com­

plete absence of the personality injury which Dr. Clark testified that 

he found in his test of 16 which formed the sole basis for his testimony 

as to personality damage in Brown. In another study by the same Dr. 

Kenneth B. Clark, not called to the attention of the Supreme Court in 

Brown, involving many scores of Negro children in integrated and seg­

regated situations in the North and .South, (R-186) it was reported 
that injury from personality conflict, if any, is suffered primarily by



632

Negro children reared and schooled in integrated classes of the North 

--not in the segregated schools of the south. From this corroborating 

evidence, I am forced to find that the principal evidence of injury re ­

lied on by the Supreme Court in Brown was unworthy of belief.

The witnesses also were unanimous to the effect that there is 

no known scientific study showing the existence of injury resulting to 

Negro children through separate education. It was in fact pointed out 

that the two principal authors of the Social Science Statement submitted 

to the supreme Court as an "Appendix" to the brief of counsel for the 

Negro children in Brown, Drs. Clark and Klineberg, have each since 

that time stated that nothing presented to the Supreme Court in that 

case was intended to mean injury to a Negro child arising from segre- 

gation per se. This shows what appears to have been a pattern of eva­

sion of fact, if not an actual misleading concealment of fact in that case.

While race or color as such or "alone" has been held not to be

a valid basis for the separation of Negro and white school children,

nevertheless, it is well established, contrary to plaintiffs' position,

that there is no affirmative obligation imposed by the Constitution to

compel Intermixing of school children. Bell v. School City of Gary.

324 F. 2d 209 (7th C ir., 1963), Cert. Den. ____ U. S ._____ ; Be son

v. Bippy, 285 F. 2d 43, 45-6 (5th C ir., I960); Kelley v. Board E d .,

270 F. 2d 209, 229 (6th C ir., 1959), Cert. Den. 361 U. S. 924;

Borders v. Hippy, 24? F. 2d 268, 271 (5th C ir., 1957), 250 F. 2d 690,

692-3 (1957); Avery v. Wichita Falls Indep. School D ist., 241 F. 2d

230, 233 (5th C ir., 1957), Cert. Den. 353 U. S. 938. Separation of 
races by law or custom in and of itself is not proof of an unconstitu­



633

tional discrimination, unless it appears that there exists no valid

ground for such separation. Arnold v. N, Carolina. _____ U. S .___

32 L. W. 4340 (Apr. 6, 1964); Wright v. Rockefeller, 376 U. 3._____

32 L. W. 4157 (Feb. 17, 1964), Hernandez v. Texas, 347 U. 3.475 

(1954). iR-107)

Same things must be treated the same, but as the Supreme 

Court pointed out in Perkins v. Lukens Steel Co., 3l0 U. S. 113, 147, 

1948 (1940):

"The Constitution does not require things which are 

different in fact or opinion to be treated in law as though 

they were the sam e."

Public authorities may exercise a wide scope of discretion in 

classifying people and things where there is a reasonable basis for so 

doing. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); 

Morey v. Doud, 354 U. S, 457, 463-64(1957). Discrimination or 

classification, to be in conflict with the equal protection clause of the 

14th Amendment, must be arbitrary, unreasonable, irrational or in­

vidious. As held in Morey v. Doud, supra (463-464):

"The rules for testing a discrimination have 

been summarized as follows:

'"1. The equal protection clause of the 

Fourteenth Amendment does not take from the State 

the power to classify in the adoption of police laws, 

but admits of the exercise of a wide scope of 

discretion in that regard, and avoids what is done 

only when it is without any reasonable basis and



therefore Is purely arbitrary. 2. A classification 

having some reasonable basis does not offend against 

that clause merely because it is not made with 

mathematical nicety or becuase in practice It results 

in some inequality. 3. When the classification in 

such a law is called in question, if any state of 

facts reasonably can be conceived that would sustain 

It, the existence of that state of facts at the time 

the law was enacted must be assumed. 4. One who 

assails the classification in such a law must carry 

the burden of showing that it does not rest upon any 

reasonable basis, but is essentially arbitrary .' (R-188)

Lindsley v. Natural Carbonic Gas Go., 220 U, 3. 61, 78-79,

31 S. Ct. 337, 340, 55 L. Ed. 309. "

Courts take judicial notice of tine fact that there are such in­

trinsic differences between Caucasians and other ethnic groups as to 

constitute a rational basis for legislative or administrative classifica' 

tion between them. Gong hum vs. Rice, 275 U. .3. 78, 86 (1927), 

Farrington vs. Tokushige, et al, 11 F. 2d 710 (C.A. 9,1927); Wolfe 

vs. GeorgiaR. &Blec. Co., 2 Ga. App. 499 (1907). Typical is the 

statement of former Chief Justice Richard B. Pais sell in the latter 

case:

(lCertainly every court Is presumed to know the 

habits of the people among which It is held, and 

their characteristics, as well as to know leading

634

historical events and the law of the land. . .



635

"We are not compelled to plant our decision 

on the ground of inequality or inferiority. We 

take judicial notice of an intrinsic difference 

between the two races. Gertainly, if a court can 

take judicial notice of near a thousand things, 

some even of slight importance, which have been 

judicially recognized without proof, this court 

may be presumed to observe that there is a marked 

difference between a Caucasian and an African.

Notice of tills difference does not imply legal 

discrimination against either, and for that reason 

cannot . . . impugn or oppose the 14th and 15th 

Amendments . . . "  {Emphasis supplied)

Mr. Justice Frankfurter expressed a great truth when he said 

in Beauharnais vs. People, 343 U. 3. 250, 262:

"Only those lacking responsible humility 

will have a confident solution for problems as 

intractable as the frictions attributable to 

differences of race, color or religion." (R-189)

In U. S. vs. Carolene Prod. Co., 304 U. S. 144, 153 {1938), 

the court said:

"Where the existence of a rational basis for 

legislation whose constitutionality is attacked depends 

upon facts beyond the sphere of judicial notice, such 

facts may properly be made the subject of judicial inquiry,

. . .  and the constitutionality of a statute predicated upon the



636

existence of a particular state of facts may be challenged 

by showing to the court that those facts have ceased to 

exist. “

In this case the evidence as to racial differences of such signifi­

cance as to reasonably require separation of school children for educa­

tional purposes is overwhelming, undisputed and unchallenged.

Here plaintiffs have conceded, by their unwillingness or Inabil­

ity to contest the issues of which they had been seasonably informed, 

first, that the learning traits which are characteristic of Negro chil­

dren do differ to an educationally significant degree from those which 

are typical of white pupils; second, that separate classes with teachers 

of the same race are academically superior and maintain abetter dis­

ciplinary status; third, that such classes substantially diminish the 

number of delinquents and drop-outs in the schools; fourth, that such 

separate classes alone can be adapted to the difference in instruction 

which Is necessary to realize for the learning patterns of both groups 

the equality of educational opportunity which the Constitution requires; 

fifth, that differences between Caucasians and Negroes are genetically 

determined and cannot be changed materially by environment; and, six­

th, that integration -- not segregation-- injures the Negro school child.

Physical and mental traits are appropriate bases for the reason­

able classification of individuals under the equal protection clause;

West Coast Hotel Co. vs. Parrish, 300 U. S. 379 (1937); Muller vs. 

Oregon, 208 U. S. 412 (1908); Quong Wing vs. Kirkendall, (R-190)

223 U. S. 59 (1912); Fahr and Ojemann, "The Use of Social and Be­

havioral Science Knowledge in Law," 48 Iowa L. R. 59 (1962); Team­



637

sters Union vs. Vogt, Inc., 354 U. S. 284 (1957), Approving Note,

(F. Frankfurter), 28 Harv. L. R. 790 (1915), and may be used to 

overcome a judicial presumption, United States vs. Provident Trust 

Company, 291 U. 3. 272 (1934); Beach vs. Beach, 114 F. 2d 479 

(C.A.D.C., 1940).

The supreme Court in Brown specifically limited Its holding to 

white and Negro children of "the same age and qualifications'1 who are 

treated differently "solely on the basis of race" or “solely because of 

their race" (347 U. 3. 483, 493-4). This accords with the ruling in 

Hernandez vs. Texas. 347 U. 3. 475 (1854) noted above, decided two 

weeks before Brown, that in racial matters, invidious discrimination 

exists only when there is ", . . different treatment not based on some 

reasonable classification . . . "

In this Circuit the standard of proof In such cases has been 

set as "any reasonable classification of students according to their 

proficiency or health . . . "  Orleans Parish School Board vs. Bush.

242 F. 2d 156 (5th CIr., 1957).

Here the proof called for by the Circuit Court has been given 

and, as the record now stands, It is conclusive that the existing assign­

ment of children in the schools of Jackson constitutes a reasonable 

classification of these children. To change to mixed schools, such as 

plaintiffs demand in their complaint, would substantially destroy the 

present levels of academic achievement in the school district and deny 

to plaintiffs' class the equality of educational opportunity, which they 

are entitled to have.

During the trial, plaintiffs requested and were given a continu­



638

ing objection to the Introduction ox any evidence which would tend to 

show a reasonable classification on the basis of educationally signifi­

cant traits or otherwise.

It was the contention of plaintiffs that the decision of the Su­

preme Court in Brown vs. Board of Education is "the law of the land, " 
(R-191)
binding on all courts and all people in this nation. Since plaintiffs 

ground their ease on that proposition, we must discuss it. A decision 

of the Supreme Court interpreting a constitutional provision has such 

binding effect, but a decision which simply applies a well-recognized 

constitutional provision to a state of facts is not binding on persons 

not parties or privies to the record In that particular case and is only 

persuasive even where the facts In another case are similar. One of 

the best discussions of this proposition to be found Is that by Mr. Jus­

tice Brandeis in his dissenting opinion in Burnet vs. Coronado Oil & 

Gas Co,, 285 U, S. 393, which cites 'with approval an article appear­

ing in 14 Harvard Law Review 273, by Arthur W. Machen, Jr. Justice 

Brandeis stated:

"Stare decisis is not, like the role of res judicata. 

a universal inexorable command. ’The rule of stare 

decisis, though one tending to consistency and uniformity 

of decision, is not inflexible. . . . 1

"In the cases which now come before us there 

is seldom any dispute as to the interpretation of any 

provision. The controversy is usually over the 

application to existing conditions of some well- 

recognized constitutional limitation. This is strikingly



639
true of cases under the due process clause when the 

question Is whether a statute Is unreasonable, arbitrary, 

or capricious; of cases under the equal protection clause 

when the question is whether there Is any reasonable basis 

for the classification made by a statute; and of cases 

under the commerce clause when the question Is whether 

an admitted burden laid by a statute upon Interstate com­

merce is so substantial as to be deemed direct. These 

issues resemble, fundamentally, that of (R-192) reasonable 

care In negligence cases, the determination of which is 

ordinarily left to the verdict of the jury. In every such 

case the decision, in the first instance, is dependent upon 

the determination of what in legal parlance is called a 

fact, as distinguished from the declaration of a rule of 

law. When the underlying fact has been found the legal 

result follows inevitably. The circumstance that the 

decision of that fact Is made by a court, instead of by 

a jury, should not be allowed to obscure its real character.!I 

(pp.410, 411)

Continuing, he said:

11 The doctrine of res judicata demands that a 

decision made by the highest court, whether it be a 

determination of a fact or a declaration of a rule of law, 

shall be accepted as a final disposition of the particular 

controversy, even if confessedly wrong. But the decision
of the court, if, in essence, merely the determination of a



640

fact, is not entitled, In later controversies between other 

parties, to that sanction which, under the policy of stare 

decisis, is accorded to the decision of a proposition 

purely of law. For not only may the decision of the fact 

have been rendered upon an inadequate presentation of 

then existing conditions, but the conditions may have 

changed meanwhile. Compare Abie State Bank v.Bryan,

282 U. ,3. 765, 772, 51 S. Ct. 252, 75 L. Ed. 690.

Moreover, the judgment of the court in the earlier 

decision may have been influenced by prevailing views 

as to economic or social policy which have since been 

abandoned. 11 (p. 412) Emphasis supplied) (R-193)

Later cases citing the foregoing with approval are: National 

Mutual Insurance Company vs. Tidewater Transfer Co. ,  3 3 7  

U. S. 582, 616, 617 (Footnote 11); Smith vs. Allwright, 321 

U. 3. 649, 664-685 (Footnote 11); Helvering vs. Griffiths,

318 U. 3. 371, 400, 401; and Monroe vs. Pape, 365 U. S. 167, 

220, 222.

The difference between the "interpretation" of a. constitutional 

provision as distinguished from the "application1' of a constitutional 

provision to varying facts, is commented on by Arthur W. Machen, 

J r ., in the article mentioned above, cited with approval by Justice 

Brandeis:

" . . .  The law of the Constitution remains 

forever unchanging; the facts to which it must be applied 

are infinitely various.



641

“The distinction between law and fact is, however, 

often so difficult and illusory that constitutional cases which 

really turn on matters of fact sometimes seem to establish 

some novel proposition of law. Hasty inferences, therefore, 

in regard to such matters should, be avoided. For such 

decisions are often thought to prove that the interpretation 

of the Constitution may vary--a position which has already 

been proved untenable. . . . "  (p. 273)

“One result of confusion of law and fact in 

constitutional cases is that decisions rendered upon one 

state of facts are cited for authority under totally different 

circumstances. . . . Indeed, one unfortunate consequence 

of the reverence of the common law for judicial precedent 

Is the likelihood that decisions on matters of mere fact 

will be treated as establishing a rule of law. This is exemp­

lified wherever a court is called upon to decide questions 

of fact. . . . 11 (p. 275) (R-194)

"The difficulty of determining the precise point 

at which the changes in the facts of the case may properly 

make a difference in the decision of the court is unques­

tionably enormous. It is always extremely difficult to draw 

a sharp line between cases which gradually shade into 

one another. One cannot say precisely what statutes should 

be held arbitrary even on a given state of facts; and the

difficulty Is intensified a hundredfold where the facts are 
constantly changing, now slowly, now with almost startling



rapidity. Indeed, the Supreme Court expressly refuses 

to lay down any general rule, and contents itself with 

determining, as each case is presented, on which side of 

the line it falls. This is clearly the proper mode of 

procedure." (p. 273}

This case, like the four underlying Brown cases, involves the 

application of the equal protection clause of the 14th Amendment to a 

factual situation. Interpretation is not involved. In this case, as in 

Brown, the decision of the court was "dependent upon the determina­

tion of what in legal parlance is called a fact, as distinguished, from 

the declaration of a rule of law. " The findings of fact in the four under- 

lying Brown cases were based solely upon evidence adduced in behalf 

of Negro school children and not rebutted by any evidence adduced by 

the defendant school boards. Neither school authorities nor school 

children of Jackson were parties or represented by parties in any of 

those cases. Therefore, Brown does not bind them either under the 

doctrine of res judicata or stare decisis. The due process clause of 

the 14th Amendment requires that they have the same opportunity to be 

heard as those school boards and children Involved in the four under- 

tying Brown cases. Pennoyer vs. Neff, 95 U. 3. 714. (R-195)

During the trial, the plaintiffs requested and were given a con­

tinuing objection to the introduction of any evidence Involving educa­

tionally significant traits of the Negro and white races which were con­

sidered by Superintendent K. P. Walker in making temporary assign­

ments of pupils of the District. This Court is of the opinion that such 

evidence is admissible and should be considered by the Court. Accord­

642



643

ingly, that objection is now overruled.

Although the findings of fact and conclusions of law as set out in 

the foregoing opinion would require a dismissal of the complaint, this 

Court is mindful of the decisions rendered by the United dtates Court of 

Appeals for the Fifth Circuit on June 1 8 , 1964, in Stell vs, .davannahr 

Chatham Board of Education, No. 20,557, Armstrong vs. The Board 

of Education of the City of Birmingham, No. 20, 595, and Davis vs. 

Board of School Commissioners of Mobile County, No. 20,657. It 

appears from the opinions of the Fifth Circuit in those cases that evi­

dence similar to that presented in this case was considered by the 

Fifth Circuit. There appear to be, however, some basic differences 

in the evidence submitted in this case and that considered by the Fifth 

Circuit. As an illustration, in the 3tell case the Fifth Circuit stated 

as follows:

"The real fallacy, Constitution-wise, of the 

classification theory is that many of the Negro pupils 

overlap many of the white pupils in achievement and 

aptitude but are nevertheless to be segregated on the 

basis of race. They are to be separated, regardless of 

how great their ability as individuals, into schools with 

members of their own race because of the difference in 

test averages as between the races. Therein is the 

discrimination. The individual Negro student is not to 

be treated as an individual and allowed to proceed along 

with other individuals on the basis of ability alone without

regard to race.



(R -196) 644

The facts in this case are to the effect that even though there is 

an "overlap" of certain Negro pupils with white pupils in achievement 

and aptitude, nevertheless such pupils do not progress at the same rate 

and therefore even though a Negro pupil and a white pupil may be simi­

lar in achievement and aptitude at the beginning of the school term, 

such would not hold true throughout the school year and the difference 

or disparity would become even more marked with each subsequent 

year.

Nevertheless, this Court feels that it is bound by what appears 

to be the obvious holding of the United States Court of Appeals for the 

Fifth Circuit that if disparities and differences such as that reflected 

in this record are to constitute a proper basis for the maintenance of 

separate schools for the white and Negro races it is the function of the 

United States Supreme Court to make such a decision and no inferior 

federal court can do so. Although it is contrary to the facts and the 

law applicable thereto, this Court feels that it is required to enter an 

order making permanent the temporary injunction heretofore entered 

herein and denying the injunction prayed for by the intervenors in this 

case.

In the opinion of this Court, the facts in this case point up a 

most serious situation, and, indeed, "cry out" for a reappraisal and 

complete reconsideration of the findings and conclusions of the United 

States Supreme Court in the Brown decision, as interpreted by the 

United States Court of Appeals for the Fifth Circuit. Accordingly, 

this Court respectfully urges a complete reconsideration of the decis­

ion in the Brown case.



645

Due to the equitable nature of this case and the facts as pre­

sented herein, the Court does not feel that costs should be awarded 

to any party as against any other party.

RENDERED, this the 6th day of July, 1964.

/ s /  S. C. Mize _____________
UNITED STATES DISTRICT JUDGE

* * *
(R-197)

J U D G M E N T  
(Title omitted-Filed July 7,1964)

Pursuant to and in accordance with the opinion this day entered

in this cause, it is ordered, adjudged and decreed as follows:

1. The temporary injunction heretofore entered herein is here­

by made permanent.

2. The injunction prayed for by the intervenors is denied.

3. No costs are awarded to any party as against the other.

4. The Court reserves jurisdiction in this cause for the pur­

pose of approving, disapproving, altering, amending or changing any 

plan submitted to this Court pursuant to and in accordance with the 

temporary injunction heretofore issued and hereby made permanent, 

such jurisdiction being reserved as long as this injunction remains in 

effect.

ORDERED, ADJUDGED AND DECREED, this the 6th_ day of 

July, 1964.

/s /  S. C. Mize 
UNTIED STATES DISTRICT JUDGE ~

O.B., 1964, Page 422
*  * *



(R -1 9 8

DLi JE GEE G ATI ON P lF d J 
(Title omitted-Filed July 15, 1834/

646

NOW COME the defendants in the above styled and numbered 

action, by their attorneys, and submit the following plan under which 

said defendants propose to make an immediate start in the desegrega­

tion of the schools of said 'School District in accordance with that cer­

tain preliminary injunction order entered by this Court under date of 

March 4, 1964, and subsequently made permanent by order of this 

Court, as follows, to-wit:

1 . That the maintenance of separate schools for the 

Negro and white children of said School District shall be 

completely ended with respect to the first grade during the 

school year commencing September, 1964, and with re ­

spect to at least one additional grade each school year 

thereafter.

2. That for the school year beginning in liepternber, 

1964, all pupils entering the first grade shall be admitted 

to the various elementary schools without (E-199) regard 

to race, giving primary consideration to the choice of the 

pupil or his parent or legal guardian.

3. That among those pupils in a desegregated 

grade applying for admission to a particular school, where 

adequate facilities are not available for all applying pupils, 

priority of admission shall be based on the proximity of the 

residence of the pupil to the school, provided that for 

justifiable administrative reasons other factors not related



647

to race may be applied.

4. That where a pupil in a desegregated grade, or 

his parent or legal guardian, has indicated his choice of 

schools, as herein provided, and has been notified of his 

admission to such school, transfer to another school will 

be permitted only in a hardship case or for valid reasons 

unrelated to race.

5. That not later than August 10, 1964, the de­

fendant Board will publish this plan in a newspaper having 

a general circulation throughout the School District so as 

to give all pupils and their parents or legal guardian, 

notice of the rights that are to be accorded them.

Attached hereto marked Exhibit "A" is a certified copy 

of a Resolution of the Board of Trustees of said School District autho­

rizing the adoption of said plan.

JOE T. PATTERSON, ATTORNEY GENERAL
Jackson, Mississippi
DUGAS SHANDS, ASSISTANT ATTORNEY
GENERAL
Jackson, Mississippi
E. W. STENNETT, SPECIAL COUNSEL
Jackson, Mississippi
THOMAS H. WATKINS, SPECIAL COUNSEL 
Jackson, Miss iss ipp i
ROBERT G. CANNADA, SPECIAL COUNSEL 
Jackson, Miss iss ipp I

BY /s /  Thos. H. Watkins________ _______
ATTORNEYS FOR DEFENDANTS

(R--200 Certificate of Service, which is not copied here.)



(R -201) 648

EXHIBIT "A"

RESOLUTION OF BOARD OF TRUSTEES OF 

JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT 

ADOPTED JULY 14, 1964

WHEREAS, in the United States District Court for the Southern 

District of Mississippi, Jackson Division, in the case of Darrell Ken- 

yatta Evers, et al v. Jackson Municipal separate school District, et al, 

Civil Action No. 3379, the Court, under date of March 4, 1964, en­

tered its preliminary injunction order requiring the Board of Trustees 

of the Jackson Municipal Separate School District to submit to said 

Court, not later than July 15, 1964, apian under which said Trustees 

would make an immediate start in the desegregation of the schools of 

said School District; and

WHEREAS, said preliminary injunction order of said District 

Court also required said plan to include a statement that the mainte­

nance of separate schools for the Negro and white children of said 

School District shall be completely ended with respect to at least one 

grade during the school year commencing in September, 1964, and 

with respect to at least one additional grade each school year there­

after; and

WHEREAS, said preliminary injunction order has now been 

made permanent by said U. o. District Court,

NOW, THEREFORE, BE IT RESOLVED that the following plan 

be filed with said U. S. District Court as compliance with its said In­

junction order:
"1 . That the maintenance of separate schools for the



649

Negro and white children of said School District shall be com- 

pletely ended with respect to the first grade during the school 

year commencing September, 1964, and with respect to at 

least one additional grade each school year thereafter.

112 . That for the school year beginning in September, 

1964, all pupils entering the first grade shall be admitted to 

the various elementary schools without regard to race giving 

primary consideration to the choice of the pupil or his parent 

or legal guardian. (R-202)

"3. That among those pupils in a desegregated grade 

applying for admission to a particular school, where adequate 

facilities are not available for all applying pupils, priority of 

admission shall be based on the proximity of the residence of 

the pupil to the school, provided that for justifiable administra­

tive reasons other factors not related to race may be applied.

"4. That where a pupil in a desegregated grade, or his 

parent or legal guardian, has indicated his choice of schools, 

as herein provided, and has been notified of his admission to 

such school, transfer to another school will be permitted only 

in a hardship case or for valid reasons unrelated to race.

"5. That not later than August 10, 1964, the defendant 

Board will publish this plan in a newspaper having a general 

circulation throughout the School District so as to give all 

pupils and their parents or legal guardian, notice of the rights 

that are to be accorded them ."

BE IT FURTHER RESOLVED that a certified copy of this



Resolution be furnished to the attorneys for transmission to the U. 3. 

District Court for the Southern District of Mississippi in accordance 

with its direction.

I, the undersigned Atssistanfc Secretary of the Board of Trustees of The 

Jackson Municipal Separate School District, do hereby certify that the 

above and foregoing is a true and correct copy of the resolution of the 

Board of Trustees of said District adopted on the 14th day of July, 1964, 

as the same appears on record in Minute Book of said Board.

Given under my hand this the 14th day of July, 1964.

(SEAL}
M .__ L arnar Noble__________________

Secretary, Board of Trustees

EXHIBIT !lA;i 

* * *
(R-203)

PLAINTIFFS’ OBJECTIONS TO DEGEGLEGATION PLANS 
FILED BY DEFENDANT BOARDS AND MOTION FOR 

REVISED PLANS 
(Title omitted-Filed July 15,1964)

Plaintiffs in the above cases having reviewed the defendant

Boards plans of desegregation filed on July 15, 1964, as required by

the orders of this Court, have concluded that such plans fail to meet

the minimum standards for initial desegregation plans as set by the

United States Supreme Court and the United States Court of Appeals for

the Fifth Circuit, and therefore move the Court to require defendant

Boards to prepare and file revised plans correcting the failures set

f°rth below: (R-204)

1. The plans filed by defendant Boards have failed to show why



651
no more than one grade can be entirely desegregated in September, 

1964, nor do the plans clearly indicate that more than one grade will 

be desegregated in subsequent years.

2 . The plans filed by defendant Boards fail to specifically and 

clearly provide for the elimination of all dual school districts based on 

race through the assignment of all children within the grade(s) to be 

desegregated according to a single set of zone lines, which failure 

places the burden of seeking desegregated assignments on Negro par­

ents and children.

3. The plans filed by defendant Boards are too vague in pro­

viding that desegregated assignments may be denied "where adequate 

facilities are not available for all applying pupils," and "for justifiable 

administrative reasons (and) other factors not related to race . . . "

4. The plans filed by defendant Boards fail to Include provision 

for all students entering the systems for the first time to be assigned 

on a non-racial basis, and further fails to provide a procedure by 

which students presently attending the school systems, but not eligible 

for attendance at a grade being entirely desegregated, may apply for 

desegregated transfers and have such transfers applications reviewed 

and determined according to standards not based on race and no differ­

ent than are applied to children admitted to the schools where transfers 

are sought.

Plaintiffs' omission of other aspects of the relief requested in 

their complaints, including desegregation of faculties Is not intended 

by Plaintiffs' to constitute a waiver of such relief.

Plaintiffs pray that a hearing can be promptly had on their



652

objections and motions so that defendants can prepare, file and place 

in operation a revised plan that accords with the provisions set forth 

above.

R. JESS BROWN
125 1/2 North Farish Street 
Jackson, Mississippi 39201

(R-205)
JACK H. YOUNG

115 1/2 North Farish Street 
Jackson, Mississippi 39201

JACK GREENBERG 
CONSTANCE BAKER MOTLEY 
DERRICK A. BELL, JR.

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs

By / s /  Derrick A Bell Jr._____

(R-205 Notice of Motion and Certificate of Service, which are not

copied here.)
* * *

(R-736 Civil Subpoena, which is not copied here.)

(R-737)
NOTICE OF APPEAL 

(Title omitted-Filed Aug. 3,1964)

Notice is hereby given that Jackson Municipal Separate School 

District, Lester Alvis, C. H. King, Lamar Noble, W. G. Mize, and 

E W. Underwood, as Trustees and as comprising the Board of Trust- 

ees of the Jackson Municipal Separate School District, and Kirby P. 

Walker, Superintendent of Schools, Jackson Municipal Separate School 

District, the defendants In the above styled and numbered action, here' 

by appeal to the United States Court of Appeals for the Fifth Circuit 

from the final judgment entered in tills action on the 6th day of July, 

'1964, which made permanent the temporary injunction order entered



653

in this action on the 4th day of March, 1964.

JOE T. PATTERSON 
Attorney General 
Jackson, Mississippi

DUGAS SHANDS 
Assistant Attorney General 
Jackson, Mississippi

E. W. STENNETT, Special Counsel 
C ity Hall
Jackson, Mississippi

THOMAS H. WATKINS, Special Counsel 
800 Plaza Building 
Jackson, Mississippi

ROBERT C. CANNADA, Special Counsel 
700 Petroleum Building 
Jackson, Mississippi

BY / s /  Thos. H. Watkins_______
ATTORNEYS FOR DEFENDANTS

* * *
(R-738)

APPEAL BOND
(Title omitted-Filed August 3,1964)

KNOW ALL MEN BY THESE PRESENTS, that we, Jackson 

Municipal Separate School District, Lester Alvis, C. H. King, Lamar 

Noble, W. G. Mize, and J. W. Underwood, as Trustees and as com­

prising the Board of Trustees of the Jackson Municipal Separate School

District, and Kirby P. Walker, Superintendent of Schools, Jackson 

Municipal Separate School District, as Principals, and United States 

Fidelity & Guaranty Company, as Surety, are held and firmly bound 

unto the plaintiffs in the above styled and numbered action in the penal 

sum of TWO HUNDRED AND FIFTY ($250.00) DOLLARS for the pay­

ment of which we well and truly bind ourselves, our successors, and 

assigns;



654

HOWEVER, THIS OBLIGATION IS UPON THE FOLLOWING 

CONDITION:

WHEREAS, on the 6th day of July, 1964, the District Court of 

the United States for the Southern District of Mississippi, Jackson 

Division, entered a Judgment making permanent a temporary injunction 

order theretofore entered in this action, and said defendants, feeling 

aggrieved at said judgment, have perfected an appeal to the United 

States Court of Appeals for the Fifth Circuit from said Judgment of 

July 6, 1964.

NOW, THEREFORE, if said Principals shall prosecute said 

appeal with effect and shall make payment of costs if said appeal is 

dismissed or the judgment affirmed, or make payment of such costs 

as the Appellate Court may award if the judgment is modified, then 

this obligation shall be null and void and of no force and effect; other- 

wise, to remain in full force and effect.

WITNESS OUR SIGNATURES, this 3rd day of August, 1964.

JACKSON MUNICIPAL SEPARATE SCHOOL 
DISTRICT, LESTER ALVIS, C. H. KING,
LAMAR NOBLE, W. G. MIZE, J. W. UNDER­
WOOD, KIRBY P. WALKER, PRINCIPALS

BY: ROBERT C. CANNADA 
THOMAS H. WATKINS

BY / s /  Thos. H. Watkins_________
ATTORNEYS FOR PRINCIPALS

UNITED STATES FIDELITY & GUARANTY 
COMPANY, SURETY

(SEAL)
BY / s /  Dan Bottrell

ATTORNEY-IN-FACT, DAN BOTTRELL

* * *



NOTICE OF APPEAL 
(Title omitted-Filed August 4,1964)

Notice is hereby given that Jimmy Primes, Claudia Primos 

and Gale Primos, minors, by Aleck Primos, their father and next 

friend, and Aleck Primos, individually, and Billy Claude Pierce P ri- 

mos, individually; and Doyle Goodman and Gale Goodman, minors, by 

James Goodman, their father and next friend, and James Goodman, 

individually; Alex Little, J r . ,  minor, by Wilton Little, his father and 

next friend, and Wilton Little, individually, and Mrs. Wilton Little, 

individually; and John Harold spears, minor, by lit s . Joy spears, 

his mother and next friend, and Mrs. Joy spears, individually; and 

William Christopher Keyes, minor, by Mrs. W. C. Keyes, his mother 

and next friend, and Mrs. W. C. Keyes, individually; and Jan Carol 

Hills and Parker Hills, minors, by Charles Hills, their father and 

next friend and Charles Hills, individually, and Mrs. Charles Hills, 

individually; and Linda Herren Errington and Howard Errington, 

minors, by Mrs. James Errington, their mother (R-740) and next 

friend and Mrs. James Errington, individually; Tom Gates, W. T. 

Gates, Jr. and Beverly Gates, minors, by W. T. Gates, their father 

and next friend and W. T. Gates, individually; Danny Gates, minor, 

byW. J. Gates, his father and next friend, and W. J. Gates, individ- 

uaHy, and Mrs. W. J. Gates, individually; Johnny Walker, Cathy 

walker and Jim Walker, minors, by Hiram Walker, their father and 

next friend, and Hiram Walker, individually, and Mrs. Hiram Walker, 

individually; Howard Coon and Susan Coon, minors, by Edward Goon, 

their father and next friend, and Edward Coon, individually, and Mrs.

(R -739) 655



Edward Coon, Individually; Lynn Hutchens and Alyce Hutchens, 

minors, by Mrs. Marjorie Hutchens, mother and next friend, and 

Mrs. Marjorie Hutchens, individually; Sammy Garrett and Betty Gar­

ret, minors, by Howard Garrett, their father and next friend, and 

Howard Garrett, individually, and Mrs. Howard Garrett, individually; 

Lynda Payne, minor, by Hoyt Payne, her father and next friend, and 

Hoyt Payne, Individually, and Mrs. Hoyt Payne, individually; and 

Margaret Ann Whitt and Ruth Jimelle Whitt, minors, by J. A. Whitt, 

their father and next friend, and J. A. Whitt, individually, and Mrs.

J. A. Whitt, individually; Tommy Case and Frank Case, minors, by 

Frank Case, their father and next friend, and Frank Case, Individually, 

Mrs. Frank Case, individually; and Jerry Lea Reynolds, minor, by 

Seab Reynolds, father and next friend, and Seab Reynolds, individually, 

and Mrs. Seab Reynolds, individually, the intervenors in the above 

styled and numbered cause, do hereby appeal to the United States 

Court of Appeals for the Fifth Circuit from a part of the final Judg­

ment, that part being making the temporary injunction heretofore en­

tered herein permanent and denying the injunction prayed for by the 

intervenors, which Judgment was entered and (R-741) became effect­

ive on the 6th day of July, A. D ., 1964, as to the plaintiff, Darrell 

Kenyatta Evers, Et Al.

/ s /  Dan H. shell 
DAN II. SHELL
340 First National Bank Building 
Jackson, Mississippi

R. CARTER PITTMAN 
108 1/2 South Hamilton Street 
Dalton, Georgia

656



GEORGE S. LEONARD 
1730 K Street, N. W.
Washington, D. C.

ATTORNEYS FOR THE APPELLANTS- 
INTERVENORS

(This instrument carries proper Certificate of .Service, which is not 

copied here.)
* * *

(R-742)
APPEAL BOND

(Title ornitted-Filed August 4,1964)

KNOW ALL LIEN BY THESE PRESENTS, That we, Jimmy 

Primos, Claudia Primos, Gale Primes, minors, by Aleck Prirnos, 

their father and next friend, and Aleck Primos, individually, and Billy 

Claude Pierce Primos, individually; and Doyle Goodman and Gale 

Goodman, minors, by James Goodman, their father and next friend, 

and James Goodman, individually; Alex Little, J r . , minor, by Wilton 

Little, his father and next friend, and Wilton Little, individually, and 

Mrs. Wilton Little, individually; and John Harold Spears, minor, by 

Mrs. Joy Spears, his mother and next friend, and Mrs. Joy Spears, 

individually; and William Christopher Keyes, minor, by Mrs. W. C. 

Keyes, his mother and next friend, and Mrs. W. C. Keyes, individ­

ually; and Jan Carol Hills and Parker Hills, minors, by Charles Hills, 

their father and next friend and Charles Hills, individually, and Mrs. 

Charles Hills, individually; and Linda Herren Errington and Howard 

Errington, minors, by Mrs. James Errington, their mother and next 

friend and Mrs. James Errington, individually; and Tom Gates, W. T. 

Cates, Jr. and Beverly Gates, minors, by W. T. Gates, (R-743) 

their father and next friend and W. T. Gates, individually; and Danny

657



658

Gates, minor, by W. J. Gates, his father and next friend, and W. J. 

Gates, individually, and Mrs. W. J. Gates, individually; and Johnny 

Walker, Cathy Walker and Jim Walker, minors, by Hiram Walker, 

their father and next friend, and Hiram Walker, individually, and Mrs. 

Hiram Walker, individually; and Howard Coon and Susan Coon, min­

ors, by Edward Coon, their father and next friend, and Edward Coon, 

individually, and Mrs. Edward Coon, individually; and Lynn Hutchens 

and Alyce Hutchens, minors, by Mrs. Marjorie Hutchens, mother and 

next friend, and Mrs. Marjorie Hutchens, individually; and Sammy 

Garrett and Betty Garrett, minors, by Howard Garrett, their father 

and next friend, and Howard Garrett, individually, and Mrs. Howard 

Garrett, individually; and Lynda Payne, minor, by Hoyt Payne, her 

father and next friend, and Hoyt Payne, individually, and Mrs. Hoyt 

Payne, individually; and Margaret Ann Whitt and Ruth Jimelle Whitt, 

minors, by J. A. Whitt, their father and next friend, and J. A. Whitt, 

individually, and Mrs. J. A. Whitt, individually; and Tommy Case and 

Frank Case, minors, by Frank Case, their father and next friend, 

and Frank Case, individually, Mrs. Frank Case, individually; and 

Jerry Lea Reynolds, minor, by Seab Reynolds, father and next friend, 

and Seab Reynolds, individually, and Mrs. Seab Reynolds, individually, 

Principals, and Fidelity & Deposit Company of Maryland a surety 

company duly authorized and empowered to execute judicial bonds with- 

^ fee state of Mississippi, as surety, are held and firmly bound unto 

the Plaintiff, in the principal sum of Two Hundred and Fifty and No/100 

Dollars ($250.00), for the payment of which well and truly to be made



659

we bind ourselves, our successors, executors and admin- (R-744) 

istrators firmly by these presents.

The condition of this obligation is such that the above bound 

principals have placed on file Notice of Appeal from the Final Judg­

ment rendered in this cause, and are taking all steps necessary to 

perfect such an appeal.

NOW, THEREFORE, if the above bound principals shall pay 

all costs if the appeal is dismissed or the judgment affirmed, or such 

costs as adjudged against them if the judgment is modified on decision 

which may be rendered by the United States Court of Appeals for the 

Fifth Circuit, this obligation is to be void; otherwise, It is to remain 

in full force and effect.

WITNESS OUR SIGNATURES, this the 3rd day of August,

A. D., 1964.

JIMMY PRIMOS, CLAUDIA PRIMOS AND
GALE PRIMOS, MINORS, BY ALECK PRIMOS,
THEIR FATHER AND NEXT FRIEND;

ALECK PRIMOS, INDIVIDUALLY;

BILLY CLAUDE PIERCE PRIMOS, INDIVIDUALLY;

DOYLE GOODMAN AND GALE GOODMAN, MINORS,
BY JAMES GOODMAN, THEIR FATHER AND NEXT
FRIEND;

JAMES GOODMAN, INDIVIDUALLY;

ALEX LITTLE, JR ., MINOR, BY WILTON LITTLE,
HIS FATHER AND NEXT FRIEND;

WILTON LITTLE, INDIVIDUALLY;

MRS. WILTON LITTLE, INDIVIDUALLY;



660

JOHN HAROLD OPE ARB, MINOR, BY MRS. JOY 
SPEARS, HIS MOTHER AND NEXT FRIEND;

MRS. JOY SPEARS INDIVIDUALLY;

WILLIAM CHRISTOPHER KEYES, MINOR, BY 
MRS. W. C. KEYES, HIS MOTHER AND NEXT 
FRIEND;

MRS. V/. C. KEYES, INDIVIDUALLY;

JAN CAROL HILLS AND PARKER HILLS, MINORS, 
BY CHARLES HILLS, THEIR FATHER AND NEXT 
FRIEND;

CHARLES HILLS, INDIVIDUALLY;

MRS. CHARLES HILLS, INDIVIDUALLY;
(R-745)

LINDA HERREN ERRINGTON AND HOWARD ERRING - 
TON, MINORS, BY MRS. JAMES ERRINGTON,
THEIR MOTHER AND NEXT FRIEND AND

MRS. JAMES ERRINGTON, INDIVIDUALLY;

TOM GATES, W. T. GATES, JR AND BEVERLY 
GATES, MINORS, BY W. T. GATES, THEIR FATHER 
AND NEXT FRIEND AND

V/. T. GATES, INDIVIDUALLY;

DANNY GATES, MINOR, BY W. J. GATES, HIS 
FATHER AND NEXT FRIEND;

W. J. GATES, INDIVIDUALLY AND

MRS. W. J. GATES, INDIVIDUALLY;

JOHNNY WALKER, CATHY WALKER AND 
JIM WALKER, MINORS BY HIRAM WALKER, 
THEIR FATHER AND NEXT FRIEND;

HIRAM WALKER, INDIVIDUALLY; AND

MRS. HIRAM WALKER, INDIVIDUALLY;

HOWARD COON AND SUSAN COON, BY EDWARD 
COON, THEIR FATHER AND NEXT FRIEND;

EDWARD COON, INDIVIDUALLY AND



661

MRS. EDWARD GOON, INDIVIDUALLY;

LYNN HUTCHENS AND ALYCE HUTCHENS, MINORS, 
BY MRS. MARJORIE HUTCHENS, MOTHER AND 
NEXT FRIEND;

MRS. MARJORIE HUTCHENS, INDIVIDUALLY;

SAMMY GARRETT AND BETTY GARRETT, MINORS, 
BY HOWARD GARRETT, THEIR FATHER AND NEXT 
FRIEND;

HOWARD GARRETT, INDIVIDUALLY;

MRS. HOWARD GARRETT, INDIVIDUALLY;

LYNDA PAYNE, MINOR, BY HOYT PAYNE, HER 
FATHER AND NEXT FRIEND;

HOYT PAYNE, INDIVIDUALLY;

MRS. HOYT PAYNE, INDIVIDUALLY;

MARGARET ANN WHITT AND RUTH JIMELLE WHITT, 
MINORS, BY J. A. WHITT, THEIR FATHER AND 
NEXT FRIEND;

J. A. WHITT, INDIVIDUALLY;

HRS. J . A. WHITT, INDIVIDUALLY;

TOMMY CASE AND FRANK CASE, MINORS, BY 
FRANK CASE, THEIR FATHER AND NEXT FRIEND;

(R-746) FRANK CASE, INDIVIDUALLY;

MRS. FRANK CASE, INDIVIDUALLY;

JERRY LEA REYNOLDS, MINOR, BY SEAB . 
REYNOLDS, FATHER AND NEXT FRIEND;

SEAB REYNOLDS, INDIVIDUALLY; AND

MRS. SEAB REYNOLDS, INDIVIDUALLY.

PER:
SATTERFIELD, SHELL, WILLIAMS & BUFORD

By / s /  Dan H, Shell ...... .
DAN H. SHELL 
Agent and Attorney



662

FIDEUTY & DEPOSIT COMPANY OF MARYLAND 
SURETY

Bv / s /  W. M. Buie
Attorney in Fact (SEAL)

Countersigned in Mississippi by:

W. M. BUIE INSURANCE AGENCY

/s / W. M. Buie _______ ____
Jackson, Mississippi

* * *
(R-747)

ORDER TENTATIVELY OVERRULING 
OBJECTIONS TO PLAN 

(Title omitted-Filed August 5, 1964)

THIS ACTION came on for hearing on the plaintiffs' objections

to the desegregation Plan filed by the defendant Board and on plaintiffs*

motion for a revised Plan, and the Court having heard evidence, both

oral and documentary, and having considered same, is of the opinion

that said objections and motion should be tentatively overruled and

denied and said Plan should be tentatively approved, with this hearing

recessed for further hearing on a day during the month of February,

1965 for such action as this Court may then deem appropriate.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED

that plaintiffs' objections to the desegregation Plan filed herein by the

defendant Board and the plaintiffs' motion for a revised Plan be and

the same are hereby tentatively overruled and denied, and that the

desegregation Plan filed herein by the defendant Board be and the same

is hereby tentatively approved subject to the further orders of this

Court.



663

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that 

this Court retains jurisdiction over this action, and that this (R-748) 

hearing be and the same is hereby recessed to a day to be subsequent­

ly fixed by order of this Court during the month of February, 1965, 

for approval of said Plan or for consideration of any revisions of, or 

amendments or additions to, or deletions from said Plan which this 

Court may then deem appropriate in the light of developments.

ORDERED, ADJUDGED, AND DECREED this 29th day of 

My, 1964.

/ s /  S. C. Mize___________________
UNITED STATES DISTRICT JUDGE

0 B, 1964, Pages 491 and 492

* * *
(R-749)

DESIGNATION OF CONTENTS OF 
RECORD ON APPEAL 

(Title omitted-Filed August 8, 1964 )

NOW COME Jackson Municipal Separate School District,

Lester Alvis, C. H. King, Lamar Noble, W. G. Mize, and J. W.

Underwood, as Trustees and as comprising the Board of Trustees of

the Jackson Municipal Separate School District, and Kirby P. Walker,

Superintendent of Schools, Jackson Municipal Separate School District,

Defendants and Appellants, by their attorneys, and hereby designate

for inclusion in the record on appeal the complete record and all the

proceedings and evidence in the action, pursuant to Rule 75(a) of the

Federal Rules of Civil Procedure.

JOE T. PATTERSON, Attorney General 
Jackson, Mississippi



664

DUGAS SHANDS, Assistant Attorney General 
Jackson, Mississippi

E. W. STENNETT, Special Counsel 
City Hail
Jackson, Mississippi

ROBERT G. CAJNNADA, Special Counsel 
700 Petroleum Building 
Jackson, Mississippi

THOMAS H. WATKINS, special Counsel 
800 Plaza Building 
Jackson, Mississippi

BY / s /  Tiios. H. Watkins _______________ _
ATTORNEYS FOR DEFENDANTS AND 
aPPE LM -..NT S

(R-750 Certificate of service, which is not copied here.)

* * *
(R-751)

MOTION FOR ORIGINAL EXHIBITS TO 
BE SENT TO THE APPELLATE COURT 

(Title omitted- Filed August 10, 1964 )

NOW COME the Defendants and Appellants in the above styled 

and numbered action, by their attorneys, and respectfully move the 

Court to enter an order requiring all of the original Exhibits in this 

action to be sent to the United States Court of Appeals for the Fifth 

Circuit, as part of the record on appeal in this case, and in support 

thereof would show unto the Court that said Exhibits should be inspect­

ed by the Appellate Court and that it would be difficult, if not impos­

sible, to obtain or prepare copies of said Exhibits.

Respectfully submitted,

JOE T. PATTERCON, Attorney General 
Jackson, Mississippi



665

DUGAS SHANDS, Assistant Attorney General 
Jackson, Mississippi

E. W. STENNETT, Special Counsel 
City Hall
Jackson, Mississippi

ROBERT C. CANNADA, Special Counsel 
700 Petroleum Building 
Jackson, Mississippi

THOMAS H. WATKINS, Special Counsel 
800 Plaza Building 
Jackson, Mississippi

BY / s /  Thos. H. W a t k i n s ____________
ATTORNEYS FOR DEFENDANTS AND 
APPELLANTS

(R-752 Certificate of Service, which is not copied here.)

* * *
(R-753)

DESIGNATION OF RECORD ON APPEAL 
(Title omitted-Filed August 11, 1964}

The appellants, being the intervenors, Jimmy Primos, Claudia 

Primos and Gale Primos, minors, by Aleck Primos, their father and 

next friend, and Aleck Primos, Individually, and Billy Claude Pierce 

Primos, individually; and Doyle Goodman and Gale Goodman, minors, 

by James Goodman, their father and next friend, and James Goodman, 

individually; Alex Little, J r . ,  minor, by Wilton Little, his father and 

next friend, and 'Wilton Little, individually, and Mrs. Wilton Little, 

individually; and John Harold Spears, minor, by Mrs. Joy Spears, his 

mother and next friend, and Mrs. Joy spears, individually; and Will­

iam Christopher Keyes, minor, by Mrs. W. C. Keyes, his mother 

mid next friend, and Mrs. W. C. Keyes, individually; and Jan Carol 

Hills and Parker Hills, minors, by Charles Hills, their father and



666

next friend and Charles Hills, individually, and Mrs. Charles Hills, 

individually; and Linda Herren Errington and Howard Errington, min­

ors, (R-754) by Mrs. James Errington, their mother and next friend 

and Mrs. James Errington, individually; Tom Gates, W. T. Gates,

Jr. and Beverly Gates, minors, by V/. T. Gates, their father and next 

friend and W. T. Gates, individually; Danny Gates, minor, by W. J. 

Gates, his father and next friend, and W. J. Gates, individually, and 

Mrs. W. J. Gates, individually; Johnny Walter, Cathy Walker and 

Jim Walker, minors, by Hiram Walter, their father and next friend, 

and Hiram Walter, individually, and Mrs. Hiram walker, individually; 

Howard Coon and jusan Coon, minors, by Edward Coon, their father 

and next friend, and Edward Goon, individually, and Mrs. Edward 

Coon, individually; Lynn Hutchens and Alyce Hutchens, minors by 

Mrs. Marjorie Hutchens, mother and next friend, and Mrs. Marjorie 

Hutchens, individually; Sammy Garrett and Betty Garrett, minors, 

by Howard Garrett, their father and next friend, and Howard Garrett, 

individually, and Mrs. Howard Garrett, individually; Lynda Payne, 

minor, by Hoyt Payne, her father and next friend, and Hoyt Payne, 

individually, and Mrs. Hoyt Payne, individually; and Margaret Ann 

Whitt and Ruth Jimelle Whitt, minors, by J. A. Whitt, their father and 

next friend, and J. A. Whitt, individually, and Mrs. J. A. Whitt, in­

dividually; and Tommy Case and Frank Case, minors, by Frank Case, 

their father and next friend, and Frank Case, individually, Mrs. Frank 

Case, individually; and Jerry Lea Reynolds, minor, by oeab Reynolds, 

father and next friend, and 3eab Reynolds, individually, and Firs. Seab 

Reynolds, individually, designate, pursuant to Rule 75(a) of the Rules



667

of Civil Procedure, the complete record and all the proceedings, ex­

hibits and evidence, to be included in and incorporated as the record 

on appeal to the United States Court of Appeals for the Fifth Circuit. 

(R-755) Due to the fact that the defendants and appellants, Jackson 

Municipal Separate School District, Lester Alvis, C. H. King, Lamar 

Noble, W. G. Mize and J. W. Underwood, as Trustees and as com­

prising the Board of Trustees of the Jackson Municipal Separate School 

District, and Kirby P. Walker, Superintendent of Schools, Jackson 

Municipal Separate School District, have heretofore filed with their 

Designation of Contents of Record on Appeal a copy of the reporter's 

transcript of the evidence in the above cause, the intervenors and 

appellants, herein, pursuant to Rule 75(b) of the Rules of Civil Proce­

dure, do not include herewith any additional copies of said reporter's 

transcript of the evidence.

This the 11th day of August, A. D., 1964.

/ s /  Dan H. Shell___________________
DANE. SHELL
340 First National Bank Building 
Jackson, Mississippi

R. CARTER PITTMAN 
108 1/2 South Hamilton Street 
Dalton, Georgia

GEORGE S. LEONARD 
1730 K Street, N. W.
Washington, D. C.

ATTORNEYS FOR THE APPELLANTS- 
INTERVENORS

^his instrument carries proper Certificate of Service, which is not

c°pied here.



6 6 8

(R-756 Continuation of Certificate of service, which is not copied here.) 

(R-757 & R-758 Amendment to Certificate of Service on Notice of 

Appeal, which is not copied here.}

(R-759 Certificate of Service, which is not copied here.)
S({ Jj! Jfc

(R-760)

ORDER FOR ORIGINAL EXHIBITS 
TO BE SENT TO THE APPELLATE
_______  COURT__ ____ _________ _
( Title omitted-Filed August 13, 1964 )

THIS ACTION carne on for hearing on the motion of the Defend­

ants and Appellants that the original Exhibits in this action be sent to 

the United States Court of Appeals for the Fifth Circuit as a part of the 

record on appeal in this case, and the Court having considered same 

is of the opinion that said motion should be and the same is hereby 

granted.

IT IS, THEREFORE, ORDERED that all of the original Exhibits 

in tills action be sent to the Appellate Court as a part of the record on 

appeal of this action.

ORDERED, this 11th day of August, 1964.

/ s /  3. C. Mize___________________
UNITED STATES DISTRICT JUDGE

OB, 1964, Page 475

*  *  *



669

CERTIFICATE OF SERVICE

I, Theresa Herbert, hereby certify that, having made up the 

appeal record In the case of JACKSON MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL, Appellants versus DARRELL KENYATTA 

EVERS, ET AL, Appellees, No. 21851 on the docket of the United 

States Gourt of Appeals for the Fifth Circuit, I have, acting for 

Honorable Thomas H. Watkins, of counsel for Appellants, served 

upon Honorable Derrick A, Bell, Honorable R. Jess Brown and 

Honorable Jack Young, of counsel for Appellees, one copy each of the 

record, in accordance with the Rules of the United States Court of 

Appeals for the Fifth Circuit, by sending same to them via REA 

Express, addressed to their respective addresses as shown by the 

court file.

THERESA HERBERT