United States v. Montgomery County Board of Education Brief for Petitioners

    i>uprmp OIrmrt of t o  Htttfpii Stall's
October Term, 1968 

Nos. 798, 997

In the

U nited S tates of A merica,

v.
Petitioner,

M ontgomery County B oard of E ducation, et al.,
and

A rlam Carr, Jr., et al.,
Petitioners,

v.

M ontgomery County B oard of E ducation, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONERS ARLAM CARR, JR., ET AL.

F red D. Gray 
S olomon S. Seay, Jr.
Gray, Seay, L angford & P ryor 

352 Dexter Avenue 
Montgomery, Alabama 36104

Jack Greenberg 
James M. N abrit, III 
M elvyn Z arr 
F ranklin E . W hite 
E lizabeth B. D uB ois 

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



I N D E X

PAGE

Opinions Below .................................................................  1

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

Question Presented ...........................................................  3

Constitutional Provisions Involved ..............................  3

Statement ............................................................................. 3

1. Introduction .............................................. 3

2. Proceedings During 1964 .................................... 4

3. Proceedings During 1965 .................................... 5

4. Proceedings During 1966 .................................... 6

5. Proceedings During 1967 .................................... 7

6. Proceedings During 1968 .................................... 10

Summary of Argument .................................................... 17

A rgument—

I. The District Court Ruled Correctly in De­
fining the Goal of Faculty Desegregation as 
the Achievement in Each School of a Ratio 
of White to Negro Teachers Substantially 
the Same as the System-Wide Ratio ............... 20

II. Full Faculty Desegregation Should Be Im­
mediately Implemented......................................  29

Conclusion 33



11

T able of A uthorities

Cases: page

Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968) ......... 30

Bradley v. School Board, 382 U.S. 103 (1965) ........ 6,17,19
Brown v. Board of Education, 347 U.S. 483 (1954) .... 5,

17,19, 25
Brown v. Board of Education, 349 U.S. 294 (1955) ....17, 25

Coppedge v. Franklin County Board of Education, 273 
F. Supp. 289 (E.D. N.C. 1967), aff’d., 394 F.2d 410 
(4th Cir. 1968) ..........    26

Davis v. Board of School Commissioners of Mobile,
364 F.2d 896 (5th Cir. 1966) ....................................... 7

Dowell v. School Board of Oklahoma City, 244 F. 
Supp. 971 (W.D. Okla. 1965), aff’d, 375 F.2d 158 
(10th Cir. 1967), cert, denied, 387 U.S. 931 ...........26,27

Green v. County School Board, 391 U.S. 430 (1968) .. 17,
18,19, 24, 25, 26, 29, 30, 31 

Griffin v. School Board, 377 U.S. 218 (1964) ............... 19

Henry v. Clarksdale Municipal School District (5th 
Cir. No. 23255, March 6, 1969) ..................................  30

Kelley v. Altheimer School District, 378 F.2d 483 (8th
Cir. 1967) .........................................................................  27

Kier v. County School Board, 249 F. Supp. 239 (W.D.
Va. 1966) ....................................................................... 25,28

Lee v. Macon County Board of Education, 267 F. 
Supp. 458 (M.D. Ala. 1967), aff’d sub nom. Wallace 
v. United States, 389 U.S. 215 (1967) ................7,22,26

Raney v. Board of Education, 391 U.S. 443 (1968) ..... 28
Rogers v. Paul, 382 U.S. 198 (1965) ........................ 6,17,19



Ill

PAGE

United States v. Board of Education of the City of
Bessemer, 396 F.2d 44 (5th Cir. 1968) .................... 18, 29

United States v. Greenwood Municipal Separate 
School District (5th Cir. No. 25714, Feb. 4, 1969)..29,30 

United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836 (5th Cir. 1966), atf’d en banc, 380 
F.2d 385 (5tli Cir. 1967), cert, denied sub nom. 
Caddo Parish School Bd. v. United States, 389 U.S.
840 (1967) ..................................................... 7,21,22,26,28

United States v. School District 151 of Cook County, 
Illinois, 286 F. Supp. 786 (N.D. 111. 1968), atf’d, 404 
F.2d 1125 (7th Cir. 1968) ............................................ 27

Wallace v. United States, 389 U.S. 215, affirming per 
curiam Lee v. Macon County Board of Education,
367 F. Supp. 458 (M.D. Ala. 1967) ...................... 7,22,26

Wanner v. County School Board of Arlington County,
357 F.2d 452 (4th Cir. 1966) ........................................ 28

Yarbrough v. Hulbert-West Memphis School District,
380 F.2d 962 (8th Cir. 1967) ........................................  27

Other Authority:

28 U.S.C. § 1254(1) 2



I n  the

(Emtrt of tit? Itntfefr States
October Term, 1968 

Nos. 798, 997

U nited States of A merica,
Petitioner,

M ontgomery County B oard of E ducation, et al.,

and
A rlam Carr, Jr., et al.,

Petitioners,

M ontgomery County B oard of E ducation, et al.

on writ of certiorari to the united states court of appeals 
for the fifth circuit

BRIEF FOR PETITIONERS ARLAM CARR, JR., ET AL.

Opinions Below

The opinion and order of the district court of February 
24, 1968 (R.1 404), is reported at 289 F. Supp. 647 and

1 References to the record “ R.”  throughout the brief refer to the 
pagination in the original record which is indicated by appropriate 
notations throughout the printed Appendix. To expedite filing of 
the brief and appendix and ready the case for consideration at an 
earlier date the brief and appendix were printed simultaneously 
thereby precluding references herein to the appendix pages. How­
ever the index to the Appendix includes an index to original page 
numbers, which, as noted above, appear throughout the appendix 
on each document.



2

the supplemental order entered March 2, 1968 (R. 430), 
is at 289 F. Supp. 657. Another supplemental order of 
March 2, 1968 (R. 428), is unreported. The majority 
opinion of August 1, 1968, by the panel of the Court of 
Appeals (by Circuit Judge Gewin, with District Judge 
Elliott concurring) is reported at 400 F.2d 1. The dis­
senting opinion of October 21, 1968, by Judge Thornberry 
is reported at 402 F.2d 782. The order of the Court of 
Appeals of November 1, 1968, denying rehearing and re­
hearing en banc by an equally divided court, is at 402 F.2d 
784. The opinion dissenting from the denial of rehearing 
en banc (by Chief Judge Brown, with the concurrence 
of Judges Wisdom, Thornberry, Goldberg and Simpson) 
is at 402 F.2d 784. Judge Dyer also dissented from the 
denial of rehearing en banc without opinion at 402 F.2d 
787.

Prior reported opinions and orders of the district court 
at earlier stages of the case are reported as folloAvs: (a) 
July 31, 1964, 232 F. Supp. 705, R. 98; (b) May 18, 1965, 10 
Race Rel. L. Rep. 582, R. 191; (c) March 22, 1966, 253 F. 
Supp. 306, R. 274; (d) August 18, 1966,11 Race Rel. L. Rep. 
1716, R. 285; (e) June 1, 1967, 12 Race Rel. L. Rep. 1200, 
R. 364.

Jurisdiction

The judgment of the Court of Appeals was entered on 
August 1, 1968; rehearing was denied November 1, 1968. 
The petition for certiorari was filed in No. 798 on De­
cember 4, 1968, and in No. 997 on January 30, 1969. 
Certiorari was granted on March 3, 1969. The jurisdiction 
of this Court is invoked under 28 U.S.C. Section 1254(1).



3

Question Presented

Whether in a school district formerly segregated by law 
into a dual system of separate white and Negro schools, 
where only slight desegregation has been achieved despite 
litigation begun in 1964, and where a trial court determined 
that to “pass tokenism” it was necessary to define the 
goal of faculty desegregation as the achievement in each 
school of a ratio of white to Negro teachers substantially 
the same as the system-wide ratio, it was error for the 
Court of Appeals to :

(a) strike down the trial court’s numerical ratios and 
leave the goal of faculty desegregation entirely undefined;

(b) refuse to set a target date for full faculty desegre­
gation ;

(c) refuse to require that faculties in new schools be 
established on a completely desegregated basis.

Constitutional Provisions Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

Statement

1. Introduction.

This is a public school desegregation suit presenting is­
sues relating to the obligation of the Montgomery County, 
Alabama, public school system to desegregate school facul­
ties. The school board appealed seeking reversal of a 
desegregation order entered February 24, 1968, and 
amended March 2, 1968, by District Judge Frank M. John­
son, Jr. By a vote of 2-1, a panel of the Court of Appeals



4

(Circuit Judge Gewin and District Judge Elliott) modified 
the order and eliminated certain provisions relating to 
faculty desegregation. Circuit Judge Thornberry dissented 
from the modifications of the faculty integration order. A 
petition for rehearing en banc was denied by an equally 
divided vote of 6-6, with one Judge not participating due to 
illness.

In No. 997, the Negro pupils and parents who com­
menced the litigation in 1964 seek to reinstate, with some 
modifications, the district court order regarding faculty. 
In No. 798 another petition for certiorari seeking essen­
tially similar relief has filed by the United States which 
has participated in the case throughout by order of the 
District Court.

2. Proceedings During 1964.

The complaint (R. 1-8), filed by a group of Negro pupils 
and parents May 11, 1964, alleged that the Montgomery 
County, Alabama school system was operated on a racially 
segregated basis. It was alleged that Negro students were 
assigned to schools with only Negro students and faculties 
(R. 4). The relief sought included an injunction against 
segregated faculty assignments (R. 7).

An opinion by the district court July 31, 1964, noted that 
the system, which embraces the City of Montgomery and 
surrounding rural areas, served about 25,000 white children 
and 15,000 Negro children (R. 100). The judge found there 
was “a dual school system based upon race and color” and 
that defendants “operate one set of schools to be attended 
exclusively by Negro students and one set of schools to be 
attended exclusively by white students” (R. 100). The judge 
wrote that: “ The evidence further reflects that the teachers 
are assigned according to race; Negro teachers are assigned 
only to schools attended by Negro students and white 
teachers are assigned only to schools attended by white



5

students” (R. 100). The court observed: “ Even the sub­
stitute teachers’ list and attendance records reflect these 
distinctions based upon race” (R. 101). Finding that ten 
years had elapsed since Brown v. Board of Education, 347 
U.S. 483 (1954), without any action to desegregate the 
schools, the court ordered that desegregation begin in 
September 1964 in grades 1, 10, 11 and 12. But, the court 
made no order with respect to faculty integration. There­
after, 29 Negro pupils sought transfers to white schools 
in September 1964. The school board, using the Alabama 
School Placement Law, denied the requests of 21 and ad­
mitted the remaining 8 Negroes to white schools (R. 112). 
The court refused to order the admission of the rejected 
Negro transfer applicants (R. 148).

3. Proceedings During 1965.

On January 15, 1965, the school board filed a proposed 
desegregation plan as required by the judge (R. 155). The 
proposed plan made no mention of faculty desegregation 
and plaintiffs objected on that ground among others 
(R. 169). On May 18, 1965, the trial judge approved the 
proposed plan with amendments to require desegregation 
in grades 1, 2, 9, 10, 11 and 12 in September 1965 (R. 191). 
Again the court entered no order with respect to faculty 
desegregation, but did order that a plan for “ complete elimi­
nation of the biracial school system within a reasonable 
time” be filed in January 1966.2

2 In announcing his ruling from the Bench, May 5, 1965, Judge 
Johnson said: “ The defendants should be ordered to file their plan 
for completion of the desegregated system, including abolition of 
the dual school or biracial school system, which of course still exists. 
I am not naive enough to believe that desegregation of certain 
grades by transfer, such as we are doing here, is full compliance 
with what the law eventually envisions and requires, but I recog­
nize that it is a transition period, and I think that this is reasonable 
for the facts in this case and the circumstances existing in this 
particular school district at this time” (R. 444).



6

In August 1965 the school board reported that it had ac­
cepted 18 of 49 Negro applicants to white schools (R. 195). 
The plaintiffs again objected to the denial of transfer re­
quests, but the court upheld the board’s denials of all ex­
cept 6 applicants who were ordered admitted (R. 232-234).

4. Proceedings During 1966.

On January 14, 1966, the board filed another desegrega­
tion plan making no mention of faculty desegregation 
(R. 250). Again plaintiffs objected to the lack of faculty 
desegregation (R. 265) and this time the United States 
made a similar objection (R. 261). Plaintiffs specifically 
relied on this Court’s faculty desegregation decisions in 
Bradley v. School Board, 382 U.S. 103 (Nov. 1965) and 
Rogers v. Paul, 382 U.S. 198 (Dec. 1965).

On March 22, 1966, the court entered another desegrega­
tion order (R. 274), this time requiring a “ freedom of 
choice” plan generally following guidelines of the Depart­
ment of Health, Education, and Welfare (HEW) (R. 270). 
This order required desegregation of all grades except 5 
and 6 in September 1966, and for those grades to be de­
segregated in September 1967. It directed the closing of 
several small, inadequate all-Negro schools.

For the first time, the March 22, 1966, order also required 
faculty desegregation. It ruled that race and color were 
not to be factors in faculty assignments except to eliminate 
the effects of past discrimination. It ordered that assign­
ments be made so that each school’s “ faculty . . .  is not com­
posed of members of one race.”  Job applicants were or­
dered to be informed of the new policy, and the administra­
tion was ordered to encourage staff transfers to promote 
integration. The school administration, in response, made 
tentative arrangements to place 4 white teachers in black



7

schools and 4 black teachers in white schools (R. 455). How­
ever, after these plans were made, the trial judge, on his 
own motion on August 18, 1966, rescinded the requirement 
and postponed faculty integration another year (R. 285). 
The judge relied on a Fifth Circuit opinion which ordered 
faculty integration for Mobile, Alabama to begin in 1967.3

5. Proceedings During 1967.

On April 11, 1967, plaintiffs moved for modification of the 
desegregation plan to conform to the circuit-wide require­
ments of United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 
385 (5th Cir. 1957), cert, denied, 389 U.S. 840 (1967). Judge 
Jolinson ordered the board to show cause why it should not 
adopt a plan to conform to Jefferson, supra, and to the plan 
ordered by a three-judge court for 99 Alabama counties in 
Lee v. Macon County Board of Education, 267 F. Supp. 458 
(M.D, Ala. 1967), aff’d sub nom. Wallace v. United States, 
389 U.S. 215 (1967).4

On June 1, 1967, the court entered an order conformable 
to Jefferson, supra, and Lee, supra (R. 364). The provision 
for faculty desegregation, which is quoted in full in the

3 Davis v. Board of School Commissioners of Mobile, 364 F.2d 
896 (5th Cir., 1966).

4 The Lee opinion recites in detail the background of official 
resistance by the Governor of Alabama and state education officials 
to prevent public school desegregation in the State. The three-judge 
court found that the desegregation efforts of Negroes in Alabama 
“ have met the relentless opposition of these defendant state officials” 
(267 F. Supp. at 465; K. 318). The opinion recites in detail one 
series of episodes in August 1966 when the State Superintendent 
of Education and Governor George C. Wallace worked to prevent 
faculty desegregation in Tuscaloosa County (267 F. Supp. at 469). 
The court found that these “ state officials also made it clear that 
similar measures would be taken in other communities if Negro 
teachers were assigned to teach white students” (id.).



8

footnote below,5 adopted the objective that “ the pattern of 
teacher assignment to any particular school shall not be

5 “ VI
“Faculty and Staff

“A. Faculty Employment and Assignment. Race or color 
will not be a factor in the hiring, assignment, reassignment, 
promotion, demotion or dismissal of teachers and other pro­
fessional staff members, including student teachers, except that 
race will be taken into account for the purpose of counteracting 
or correcting the effect of the past segregated assignment of 
teachers in the dual system. Teachers, principals, and staff 
members will be assigned to schools so that the faculty and 
staff is not composed exclusively of members of one race. 
Wherever possible, teachers will be assigned so that more than 
one teacher of the minority race (white or Negro) will be on 
a desegregated faculty. The school board will take positive and 
affirmative steps to accomplish the desegregation of its school 
faculties, including substantial desegregation of faculties in 
as many of the schools as possible for the 1967-68 school year, 
notwithstanding that teacher contracts for the 1967-68 or 
1968-69 school year have already been signed and approved. 
The objective of the school system is that the pattern of teacher 
assignment to any particular school shall not be identifiable 
as tailored for a heavy concentration of either Negro or white 
pupils in the school. The school system will accomplish faculty 
desegregation in a manner whereby the abilities, experience, 
specialties, and other qualifications of both white and Negro 
teachers in the system will be, insofar as administratively 
feasible, distributed evenly among the various schools of the 
system.

“B. Dismissals. Teachers and other professional staff mem­
bers will not be discriminatorily assigneg, dismissed, demoted, 
or passed over for retention, promotion, or rehiring on the 
ground of race or color. In any instance where one or more 
teachers or other professional staff members are to be displaced 
as a result of desegregation, no staff vacancy in the school 
system will be filled through recruitment from outside the 
system unless no such displaced staff member is qualified to 
fill the vacancy. If, as a result of desegregation, there is to 
be a reduction in the total professional staff of the school sys­
tem, the qualifications of all staff members in the system will 
be evaluated in selecting the staff member to be released with­
out consideration of race or color. A  report containing any 
such proposed dismissals, and the reasons therefor, shall be 
filed with the Court, and copies served upon opposing counsel



9

identifiable as tailored for a heavy concentration of either 
Negro or white pupils in the school” (R. 370).

On August 17, 1967, the United States filed a motion to 
require further faculty desegregation in view of the fact 
that the school board planned to assign only 5 white teach­
ers of 804 to two Negro high schools and 5 Negro teachers 
out of 554 to two predominantly white high schools (R. 376). 
The plaintiffs joined in the motion (R. 379), and the court 
held an evidentiary hearing September 5, 1967.

School Superintendent McKee testified that it was de­
cided to limit faculty desegregation at the beginning to 
high schools because he anticipated less objection since one 
teacher would not have the pupils for as much of the day in 
high school classes (R. 459-460). He also decided to inte­
grate faculties only in schools within the city limits because 
of the need for close supervision and special protection 
which was more difficult in sparsely settled areas of the 
county (R. 461). The superintendent said he was having 
some difficulty finding white teachers who would agree to 
assignments in Negro schools, although there was no dif­
ficulty finding Negroes willing to teach in white schools 
(R. 466, 469, 470). The superintendent had engaged 12 or

within five (5) days after such dismissal, demotion, etc., is 
proposed.

“ C. Notice to New Staff Members. In the recruitment and 
employment of teachers and other professional personnel, all 
applicants or other prospective employees will be informed that 
Montgomery County operates a racially desegregated school 
system and that members of its staff are subject to assignment 
in the best interest of the system and without regard to the 
race or color of the particular employee.

“D. Encouragement of Voluntary Faculty Transfer. The 
Superintendent of Schools and his staff will take affirmative 
steps to solicit and encourage teachers presently employed to 
accept transfers to schools in which the majority of the faculty 
members are of a race different from that of the teacher to be 
transferred.”



10

13 white teachers for Negro schools, but only 5 of them actu­
ally finally accepted the assignment (E. 468). All 5 Negroes 
initially picked for white schools actually undertook such 
assignments (R. 468-469). Mr. McKee indicated that he 
had not assigned more Negro teachers, even though they 
were available, because he had not been able to get more 
Avhites to volunteer for assignments to Negro schools 
(R. 469), and he wanted to keep the number of Negroes 
and whites in balance (R. 481). The annual faculty turn­
over or replacement rate in Montgomery is about 10% of 
the total staff (R. 478).

At the end of the hearing the court heard arguments, but 
took no action to make a ruling to affect the 1967-68 school 
year. The matter was kept under advisement without ac­
tion by the court. During argument the judge made it 
plain that he had little “ sympathy” with the request for 
relief at that time (R. 484).

6. Proceedings During 1968.

a. In the District Court. On February 1, 1968, the board 
filed a further pleading asserting it had 32 faculty em­
ployees teaching in schools predominantly of the other race, 
and that it planned further efforts for the coming year. 
The United States filed a motion (R. 389), joined by the 
private plaintiffs (R. 394), seeking further relief on the 
faculty question as well as relief on several other issues 
affecting desegregation. The court heard evidence Febru­
ary 9, 1968 (R. 495-694).

Superintendent McKee and Associate Superintendent 
Garrett testified that they had decided that in September 
1968 they would assign Negro teachers to all of the white 
schools at once in “ one fell swoop” (R. 556, 579). Mr. Gar­
rett described the plans for faculty desegregation in the 
following testimony:



11

Q. How many teachers do you estimate you will have 
in minority situations this coming year? A. Well, we 
have about thirty-five now. We are going to attempt— 
our plan is to try to get at least one into every junior 
high and every elementary, and then start—once we 
accomplish that, start around with the second one and 
the third one and so on, rather than to have three in 
one school and none in another.

Q. Well based on your— A. Roughly speaking, a 
minimum or—with thirty-five already there, we have 
fifty schools or thereabouts; I would say about a hun­
dred or better.

Q. Based on your— A. I think that is practical; I 
believe we can accomplish that (R. 584).

# # #
The Court: My understanding, now, you are going 

to have this next year teachers of the minority race in 
every school in your system?

Witness: As far as humanly possible.
The Court: And how many do you expect to have in 

your—in your elementary schools, a minimum per 
school?

Witness: Two, at least.
The Court: And howT many in your junior high, your 

minimum?
Witness: Tw o; maybe more.
The Court: All right.
Witness: Depending on what we come—
The Court: Now, let’s go to percentages; what per­

centage do you expect to have in your high schools?
Witness: I just don’t know. We haven’t actually dis­

cussed that up to this point. I—I couldn’t say.
The Court: Well, your race—your student popula­

tion is sixty-forty?



12

Witness: Yes, sir.
The Court: Ultimately, that will be your optimum 

if you are going to eliminate the racial characteristics 
of your school through faculty—

Witnes: (Nodded to indicate affirmative reply.)
The Court: —wouldn’t it? It would have to be. 

(R. 598-599.)
# # #

Q. Mr. Garrett, I believe you testified when I was 
examining you that you were going to have at least— 
at least one in each school, or am I wrong on that? 
A. I said we would try to start with one in every ele­
mentary school and then come back around with two, 
and if we were successful, maybe three; I don’t have 
any preconceived notion about maximums, but I would 
rather have these distributed rather than to have three, 
say, in one school and none in another (R. 600).

Associate Superintendent Garrett, who was in charge of 
faculty assignments, testified that he did not know the 
goal of the court’s prior faculty desegregation orders:

Q. As part of your duties, have you been given the 
responsibility, primarily, of carrying out faculty de­
segregation? A. Well, the superintendent has dele­
gated the recommending of the best faculty members 
that I can come by, and desegregation is a large— 
our faculty is a large part of my responsibilities; not 
the only one, but that has been discussed and—with 
the Board and with the superintendent, and we have 
a plan to accomplish this, have been working on it all 
year.

Q. Well, under your plan, when do you estimate that 
faculty desegregation will be finally accomplished in 
terms of the objective of the court order removing—



13

A. Well, now, that is something I don’t know, because 
I don’t know what the objectives of the court order 
are. That has never been laid down in any percentage 
fashion that I know of. It says that you will have rea­
sonable desegregation of faculty and that you will 
strive toward having each faculty not recognizable 
as being staffed for a particular race. That is what I 
get out of it.

Q. Well, let— A. So I—I can’t—this court order is 
in fairly general terms; I can’t answer that question.

Q. Well, you made the statement about having 
schools staffed so that they will not be recognizable 
as for a particular race; when do you expect that 
that will be accomplished? A. Well, that would de­
pend on what the Board’s definition of that is, the 
court’s definition of that.

Q. Do you have a definition of that? A. Not at this 
point; we have discussed that many times, and I do 
not have a definition of—of what that would mean.

Q. No one has told you, given you a definition in 
terms of mechanics, in terms of numbers, none of your 
superiors? A. No, as far as I know, no other school 
personnel man in America has. I have talked to many 
of them. What we are striving to do is to make 
progress and keep going and hope that somewhere 
along the line we will have achieved the—what the 
court has in mind. But if you will look at that court 
order, you will see it doesn’t lay down the precise 
terms exactly what that means; it is a broad definition.

(R. 585-587)

In a memorandum opinion filed February 24, 1968, the 
court made findings that there were still about 15,000 Negro 
children and 25,000 white children in the system; that only 
550 Negro children were attending traditionally white 
schools and no whites were in the Negro schools under the



14

freedom of choice plan; that 32 classroom teachers were 
teaching pupils in schools predominantly of the opposite 
race; that the system employed about 550 Negro teachers 
and 815 white teachers; that most faculty desegregation 
was in the high schools and there was little, if any, faculty 
desegregation in the county’s rural schools (R. 406). The 
court also noted that the vast majority of teachers newly 
hired after the June 1, 1967, faculty desegregation order, 
were still assigned to schools where their race was in the 
majority; that no Negro has yet been a substitute in a white 
school; that during a semester where white substitute 
teachers were employed 2,000 times, only 33 white sub­
stitutes were employed in Negro schools; that there was 
“no adequate program for the assignment of student 
teachers on a desegregated basis” ; and that there was no 
faculty desegregation in night schools (R. 406-407). The 
court concluded: “The evidence does not reflect any real 
administrative problems involved in immediately desegre­
gating the substitute teachers, the student teachers, the 
night school faculties, and in the evolvement of a really 
legally adequate program for the substantial desegregation 
of the faculties of all schools in the system commencing with 
the school year 1968-69” (R. 407).

Judge Johnson, during the hearing, in a colloquy with 
Superintendent McKee, expressed the position, “ I have gone 
along with this transition business for a good long while, 
but we have passed the transition period” (R. 544). Finding 
that the board had “failed to discharge the affirmative duty 
. . .  to eliminate the . . . dual school system,” the court held 
it was “necessary and entirely appropriate to establish now 
more specific requirements governing minimum amounts 
of progress in the future . . .” (R. 409).

The order of February 24, 1968 (R. 413-414), as amended 
(R. 429), supplemented the desegregation plan approved



15

June 1,1967. The order, which is quoted below,6 defined the 
objective of eliminating the racial identifiability of school

6 <ij

“Faculty and Staff

“A. Statement of Objective. In achieving the objective of 
the school system, that the pattern of teacher assignments to 
any particular school shall not be identifiable as tailored for 
a heavy concentration of either Negro or white pupils in the 
school, the school board will be guided by the ratio of Negro 
to white faculty members in the school system as a whole.

“ The school board will accomplish faculty desegregation by 
hiring and assigning faculty members so that in each school 
the ratio of white to Negro faculty members is substantially 
the same as it is throughout the system. At present, the ratio 
is approximately 3 to 2. This will be accomplished in accord­
ance with the schedule set out below.

“B. Schedule for Faculty Desegregation. 1. 1968-69. At 
every school with fewer than 12 teachers, the board will have 
at least one full-time teacher whose race is different from the 
race of the majority of the faculty and staff members at the 
school.

“ At every school with 12 or more teachers, the race of at 
least one of every six faculty and staff members will be dif­
ferent from the race of the majority of the faculty and staff 
members at the school. This Court will reserve, for the time 
being, other specific faculty and staff desegregation require­
ments for future years.

“ C. Means of Accomplishment. I f the school board is un­
able to achieve faculty desegregation by inducing voluntary 
transfers or by filing vacancies, then it will do so by the as­
signment and transfer of teachers from one school to another.

“D. Substitute Teachers. Commencing in September, 1968, 
with the 1968-69 school year, the ratio of the number of days 
taught by white substitute teachers to the number of days 
taught by Negro substitute teachers at each school during each 
semester will be substantially the same as the ratio of white 
substitute teachers to Negro substitute teachers on the list of 
substitute teachers at the beginning of the semester.

“ Commencing with the 1968-69 school year, the board will 
not use an individual as a substitute teacher in the Mont­
gomery Public Schools if he will consent to substitute only at 
predominantly white schools or only at predominantly Negro 
schools.

“ E. Student Teachers. Commencing in September, 1968, 
with the 1968-69 school year, the ratio of white to Negro



16

faculties as requiring the assignment of faculty such that 
the ratio of Negro to white faculty members in each 
school would be substantially the same throughout the 
system. For the year 1968-69 the court ordered at least 
one minority race (white or black) teacher in each school 
with less than 12 teachers, and in larger schools at least 
one minority race teacher of every six teachers. The 
court reserved judgment on detailed requirements for fu­
ture years. The court also ordered that substitute teachers, 
student teachers, and night school teachers should be as­
signed so that there was substantially the same racial ratio 
in each school.

On the school board’s application for a stay pending ap­
peal, a part of the faculty desegregation order was stayed 
by Judge Johnson.

b. Action of the Court of Appeals. On August 1, 1968, 
the Court of Appeals, by a divided vote, modified the faculty 
desegregation order.7 The court struck from the decree all 
numerical ratios except the interim 1968-69 goal—a five-to- 
one ratio in large schools and a more liberal ratio in 
smaller schools—which was modified to read “ substantially 
or approximately five to one” (emphasis added). The court 
also rejected the plaintiffs’ argument that the trial court 
should have set a target date for full integration and should 
have required immediate total desegregation of faculties 
in several new schools to be opened in 1968.

student teachers each semester in each school that uses student 
teachers will be substantially the same as the ratio of white 
and Negro student teachers throughout the system.

“ F. Night Schools. Commencing June 1, 1968, the ratio of 
white to Negro faculty members at each night school will be 
substantially the same as the ratio of white to Negro faculty 
members throughout the night-school program.”

7 Trial court rulings pertaining to special efforts to desegregate 
a new high school were affirmed on appeal.



17

Judge Thornberry dissented, finding no basis in the 
record or the prior decisions for modifying the trial judge’s 
experiment in establishing numerical ratios for faculty de­
segregation. Chief Judge Brown’s dissent from the denial 
of rehearing en banc (joined in by Judges Wisdom, Thorn- 
berry, Goldberg and Simpson) argued that there was a 
need for specific numerical targets for faculty desegre­
gation plans to define the goal of schools unidentifiable 
as to race, as well as a need for specific target dates 
for compliance.

Summary of Argument

This case involves issues of considerable practical im­
portance to achieving transition from a state-imposed dual, 
segregated school system to a unitary, non-racial system 
as required by Brown v. Board of Education, 347 U.S. 483 
(1954) (Brown I), 349 U.S. 294 (1955) (Brown 77); and 
Green v. County School Board, 391 U.S. 430 (1968). The 
court below struck down the district court’s attempt to 
define in meaningful terms the goal of faculty desegrega­
tion, an essential aspect of the over-all goal of a desegre­
gated school system. See Bradley v. School Board, 382 
U.S. 103 (1965); Rogers v. Paul, 382 U.S. 198 (1965). The 
district judge had ruled that in each school the ratio of 
white to Negro faculty members should be substantially 
the same as the ratio throughout the system which he 
found was at the time approximately 3 to 2.8 By striking 
such “numerical ratios,” the court below rejected this goal 
and left the faculty desegregation objective so vaguely 
defined as to impair the ability of district courts to as­
sure substantial progress. Petitioners submit that the re­
fusal to give meaningful definition to the objective of fac­
ulty desegregation, especially where the trial court found

8 Comparable rulings were made with regard to night schools, 
and to student and substitute teachers. See n. 10, pp. 20-21, infra.



18

such definition necessary in order to avoid further delay 
by school authorities, is inconsistent with this Court’s de­
mand in Green v. County School Board, supra, 391 U.S. 
at 439, for desegregation plans that promise “realistically 
to work now”

In addition to striking down the district court’s attempt 
to define the goal of faculty desegregation in terms of a 
system-wide racial ratio, the court below made three sig­
nificant subsidiary rulings. It failed, as did the trial court 
(except in the case of night schools, and student and sub­
stitute teachers), to set any target date for the achieve­
ment of full faculty desegregation. (After the trial court 
decision, but prior to the Court of Appeals decision, an­
other panel of the Fifth Circuit set September 1970 as “ C” 
—for “ compliance”—day for full faculty desegregation. 
United States v. Board of Education of the City of Besse­
mer, 396 F.2d 44, 52 (5th Cir. 1968).) The court below also 
amended the trial judge’s minimum interim requirement 
that schools with 12 or more faculty members begin the 
school year 1968-69 with at least one of every six faculty 
members of a race different from the majority, by adding 
the qualifying phrases “approximately” and “ substan­
tially.” Finally, the court below upheld the trial court’s 
failure to require that faculties in new schools be estab­
lished on a completely desegregated basis.

Petitioners contend that under Green v. County School 
Board, supra, full faculty desegregation should be imple­
mented immediately in all schools throughout the system. 
Therefore, while we believe that the court below erred in 
modifying the district’s court’s specific minimum interim 
goals, we do not consider it necessary to argue that point 
here. Petitioners further contend that the courts below 
erred in not requiring that faculties in neiv schools be 
established on a completely desegregated basis.



19

The issues in this case should be viewed in the practical 
context of Montgomery County, Alabama. When this law 
suit was filed in May 1964, ten years after Brown I, the 
public schools were still totally segregated. No progress 
had been made voluntarily. In Montgomery, as was true 
in a Virginia county brought before this Court last term: 
“Racial identification of the system’s schools was complete, 
extending not just to the composition of student bodies 
. . . but to every facet of school operations—faculty, staff, 
transportation, extracurricular activities and facilities.” 
Green v. County School Board, 391 U.S. 430, 435 (1968). 
As this Court stated in Green, “ [t]he transition to a uni­
tary, nonracial system of public education was and is the 
ultimate end to be brought about . . .”  (391 U.S. at 436). 
In Montgomery County, Alabama it became the task of 
District Judge Frank M. Johnson, Jr. to supervise that 
transition.

The very same month this case was filed, this Court de­
clared in Griffin v. School Board, 377 U.S. 218, 234 (1964) 
that “ the time for mere ‘deliberate speed’ has run out. . . .” 
Yet, for four more years the District Judge patiently per­
mitted the respondent school board to delay desegregation 
with a variety of transitional devices until he finally de­
cided “We have reached the point where we must pass 
‘tokenism.’ ” (R. 431). The beginning of faculty desegre­
gation had been repeatedly postponed until September 1967, 
although petitioners sought such relief from the outset of 
the case. Even after this Court ruled in late 1965 that 
faculty segregation must be considered in connection with 
school desegregation plans, in Bradley v. School Board, 382 
U.S. 103 (1965), and Rogers v. Paul, 382 U.S. 198 (1965), 
Judge Johnson felt constrained by a ruling of the Fifth 
Circuit involving Mobile, Alabama, to delay faculty inte­
gration in Montgomery County until 1967 (R. 285). Finally, 
after four years of litigation, at a 1968 hearing, Judge



20

Johnson warned the school officials that: “I have gone 
along with this transition business for a good long while, 
but we have passed the transition period” (R. 544). In his 
decision rendered February 24, 1968, amended March 2, 
1968, Judge Johnson made findings regarding the inade­
quacy of steps taken by the school officials involved toward 
faculty desegregation, held that they had failed to elim­
inate the dual school system and, indeed, had acted to 
perpetuate this system in the construction and location of 
new schools.9 Petitioners believe that the need for specific 
directives defining the objective of faculty desegregation 
is evident from the record in this case, as well as from 
the long history of delay by school hoards throughout the 
South in implementing school desegregation.

ARGUMENT

I.

The District Court Ruled Correctly in Defining the 
Goal of Faculty Desegregation as the Achievement in 
Each School of a Ratio of White to Negro Teachers 
Substantially the Same as the System-Wide Ratio.

District Judge Frank M. Johnson, Jr. ruled that in 
achieving the objective of faculty desegregation, the school 
board should “be guided by the ratio of Negro to white 
faculty members in the school system as a whole,” and 
should hire and assign faculty members “ so that in each 
school the ratio of white to Negro faculty members is 
substantially the same as it is throughout the system,” 
which he found was at the time approximately 3 to 2. 
He made comparable rulings regarding substitute teach­
ers, student teachers and night school faculty members.10

9 See opinion of the district court at 289 F. Supp. 647, 649-52.
10 Order of February 24, 1968 (R. 413-414), as amended (R. 

429). The relevant portions of the court’s order regarding student 
and substitute teachers and night school faculty members follow:



21

The court below eliminated this attempt to define further 
the objective of faculty desegregation outlined in United 
States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th 
Cir. 1966) (Jefferson 1), aff’d en ban-c, 380 F.2d 385 (5th 
Cir. 1967) (Jefferson II),  cert, denied sub nom. Caddo 
Parish School Bd. v. United States, 389 U.S. 840 (1967), 
as requiring that “ the pattern of teacher assignment to 
any particular school not be identifiable as tailored for a 
heavy concentration of either Negro or white pupils in the 
schools” (380 F.2d at 394).

D. Substitute Teachers. Commencing in September, 1968, 
with the 1968-69 school year, the ratio of the numbers of days 
taught by white substitute teachers to the number of days 
taught by Negro substitute teachers at each school during each 
semester will be substantially the same as the ratio of white 
substitute teachers to Negro substitute teachers on the list of 
substitute teachers at the beginning of the semester. . . .

E. Student Teachers. Commencing in September, 1968, 
with the 1968-69 school year, the ratio of white to Negro 
student teachers each semester in each school that uses student 
teachers will be substantially the same as the ratio of white 
and Negro student teachers throughout the system.

F. Night Schools. Commencing June 1, 1968, the ratio of 
white to Negro faculty members at each night school will be 
substantially the same as the ratio of white to Negro faculty 
members throughout the night-school program.

The district court specifically found that:
The evidence does not reflect any real administrative prob­

lems involved in immediately desegregating the substitute 
teachers, the student teachers, the night school faculties, and 
in the evolvement of a really legally adequate program for 
the substantial desegregation of the faculties of all schools in 
the system commencing with the school year of 1968-69. (289 
F. Supp. at 650)

Respondents apparently have no specific objection to the provi­
sions regarding substitute and student teachers, and night school 
faculty members, beyond their general objection to all mathemati­
cal ratios. Our discussion will therefore focus generally on the 
issue of the propriety of the district court’s use of racial ratios, 
without any attempt to discuss separately regular faculty members, 
night school faculty members, student teachers and substitute 
teachers, since we believe no significantly different questions are 
involved in the use of the ratio formula in these different categories.



22

Petitioners contend that the district court’s approximate 
proportional formula is the appropriate standard for mea­
suring whether faculty segregation has been disestablished. 
Certainly this is true where, as here, the trial court finds 
that specific directives are necessary in order to accom­
plish desegregation, and that there are no significant ad­
ministrative barriers to implementation of the formula.

At an earlier stage (in the June 1, 1967 order) Judge 
Johnson had defined the goal more generally, in language 
patterned on Jefferson, supra.

The objective of the school system is that the pattern 
of teacher assignment to any particular school shall 
not be identifiable as tailored for a heavy concentra­
tion of either Negro or white pupils in the school. 
The school system will accomplish faculty desegrega­
tion in a manner whereby the abilities, experience, 
specialties, and other qualifications of both white and 
Negro teachers in the system will be, insofar as ad­
ministratively feasible, distributed evenly among the 
various schools of the system. (R. 370)

This identical language was implicitly approved by this 
Court in Wallace v. United States, 389 U.S. 215 (1967), 
affirming per curiam Lee v. Macon County Board of Edu­
cation, 267 F. Supp. 458, 489 (M.D. Ala. 1967). It was 
after this Court’s action in Wallace, supra, on December 
4, 1967 that Judge Johnson entered the more specific order 
requiring that the white-Negro faculty ratio in each school 
be substantially the same as the system-wide ratio. For 
this relatively precise goal the Court of Appeals substi­
tuted only vague generalities:

There must be a good faith and effective beginning 
and a good faith and effective effort to achieve faculty 
and staff desegregation for the entire system. . . .



23

It is hoped and believed that experience will teach 
effective ways and means of achieving an ideal racial 
balance . . . They [school boards] have the responsi­
bility and should exercise the ingenuity to achieve a 
proper racial balance (400 F.2d at 9.)

A failure to give any more meaningful definition to the 
goal of faculty desegregation will leave school boards and 
trial judges confused as to the ultimate goal to be achieved, 
and justify those officials who resist desegregation in con­
struing the goal as requiring no more than tokenism. This 
is illustrated by the record in this case. As the dissent­
ing opinion to the 5th Circuit denial of rehearing en banc 
pointed out:

Superintendent Garrett explicitly states that he does 
not even know what the objectives of the earlier Dis­
trict Court order are, when faculty desegregation will 
be complete, and that he and the Board have been 
unable to arrive at a workable definition of the model 
decree’s standard of a “ faculty not recognizable as 
being staffed for a particular race.”

Specifics are needed. Specifics are needed by the 
school administrators. Specifics are needed by the 
Negroes who have waited these 14 years for “a bona 
fide unitary system where schools are not white schools 
or Negro schools—just schools”— and who must now 
wait for an undefined time for the tell-tale mark of 
segregated faculties to pass away. Specifics are needed 
by children, Negro and white alike, who are entitled 
to witness, feel, and participate in the continuing 
lesson of a constitutional order that is color free.11 
(402 F.2d at 785)

11 Even the court below noted that the testimony of school officials 
demonstrated the need for specific directives. At the hearing be­
fore the district court, Associate Superintendent W. S. Garrett,



24

In Green v. County School Board, 391 U.S. 430 (1968), 
this Court placed new emphasis on the end result of any 
desegregation plan. Yet the decision below defines no 
ascertainable goal toward which progress can be measured 
now or later. As the dissenting opinion of the Fifth Cir­
cuit denial of rehearing en banc points out:

Loath as Judges are to articulate constitutional goals 
or actions, in the oft-disparaged mechanical terms of 
arithmetic, this is an area where it is not the spirit, 
but the bodies which count. Any less inevitably leaves 
performance to good faith. Good faith is, of course, 
needed. But good faith is not, and cannot be, the 
standard. Now, and each term, each school year it 
comes down to figures. The result is in figures. If 
the result is satisfactory it is because of numbers, not 
the effort or subjective motivation. If the result is 
unsatisfactory it is likewise because of numbers. The 
numbers—i.e. the numerical percentage ratios—need 
to be fixed. Once fixed, the Court can always deter­
mine whether a good faith effort of compliance has 
been made. But good faith there is relevant to com­
pliance, not as an element in fixing the standard. (402 
F.2d at 786)

asked when he estimated that faculty desegregation would be 
accomplished, testified:

A. Well, now, that is something I don’t know, because I don’t 
know what the objectives of the court order are. That has 
never been laid down in any percentage fashion that I 
know of. # # #

A. . . .  I can’t— this court order is in fairly general terms; I 
can’t answer that question.

Q. Well, you made the statement about having schools staffed 
so that they will not he recognizable as for a particular 
race; when do you expect that that will be accomplished?

A. Well, that would depend on what the Board’s definition of 
that is, of the court’s definition of that (E. 586).



25

Further, Green stressed the need to end school segrega­
tion now. Failure to adopt specific directives will, as ar­
gued above, only encourage delay that Green said could 
no longer be tolerated.

Petitioners contend that not only are specific directives 
necessary if the goal of faculty desegregation is to be 
achieved, but that the directives laid down by the district 
judge were the proper directives. The court below ex­
pressed distaste for stating the objective of faculty de­
segregation in mathematical ratios, but it suggested no 
other formulation. Nor have respondents, at any state in 
these proceedings, suggested any formulation that would 
require more than token desegregation. We submit that 
it is difficult if not impossible to suggest another formula­
tion equally compatible with the constitutional command 
to eliminate the effects of school segregation formerly 
established by law, and to create in its place a unitary, 
non-racial system. Brown v. Board of Education, 347 U.S. 
483 (1954) (Broivn I), 349 U.S. 294 (1955) (Broivn I I ) ; 
Green v. County School Board, 391 U.S. 430 (1968).

In ruling that the ratio of white to Negro faculty mem­
bers in each school ought to approximate the system-wide 
white-Negro faculty member ratio, the district judge mere­
ly required what would presumably have resulted had 
teachers been assigned in the past on a non-racial, random 
basis. As pointed out by Judge Michie in Kier v. County 
School Board, 249 F. Supp. 239, 248 (W.D. Va. 1966), in 
imposing a similar formula,

. . . [T]he order of the court is merely intended to 
give redress for former faculty segregation on the 
premise that, had there been no discrimination to be­
gin with, the Negro teachers employed by the county 
would have been as evenly distributed throughout the



26

various schools in the system as, for want of a better 
analogy, those teachers with blue eyes or cleft chins.

Further, a requirement that the faculty in each school 
reflect the racial composition of the faculty of the entire 
system is the only practical way to ensure that “ the pat­
tern of teacher assignment to any particular school not 
be identifiable as tailored for a heavy concentration of 
either Negro or white pupils in the school.” United States 
v. Jefferson County Bd. of Educ., supra, 380 F.2d at 394; 
Lee v. Macon County Bd. of Educ., 267 F. Supp. 458, 489 
(M.D. Ala.), aff’d sub nom Wallace v. United States, 389 
U.S. 215 (1967). Indeed as we read it, the order approved 
by this Court in Wallace (quoted supra at p. 22), cover­
ing 99 Alabama counties, calls for a faculty desegregation 
plan where teachers of differing races and qualifications 
are “evenly distributed” among the various schools of a 
system. The order involved here merely defines that goal 
more precisely. It is only if the “ identifiability” of facul­
ties in individual schools is eliminated that a system based 
on freedom of choice can work to produce desegregation 
of student bodies as required by Green v. County School 
Board, 391 U.S. 430 (1968), since a faculty tailored for 
one race or another is obviously a significant choice-influ­
encing factor. See Lee v. Macon County, 267 F. Supp. 458, 
479 (1967).

Significantly, the action of the Fifth Circuit is in conflict 
with decisions in four other circuits approving faculty 
desegregation orders requiring that teachers of both races 
be distributed approximately evenly throughout the sys­
tems. See Dowell v. School Board of Oklahoma City, 244 
F. Supp. 971, 978 (W.D. Okla. 1965), aff’d, 375 F.2d 158, 
164, 167 (10th Cir. 1967), cert, denied, 387 U.S. 931; Cop- 
peclge v. Franklin County Board of Education, 273 F. Supp. 
289, 300 (E.D. N.C. 1967), aff’d 394 F.2d 410 (4th Cir.



27

1968); United States v. School District 151 of Cook County, 
Illinois, 286 F. Supp. 786, 798, 800 (N.D. 111. 1968), aff’d, 
404 F.2d 1125 (7th Cir. 1968). The Eighth Circuit has 
said that the use of such a formula “ comports with Broivn” 
in Kelley v. Altheimer School District, 378 F.2d 483, 498, 
n. 24 (8th Cir. 1967); cf. Yarbrough v. Hulbert-West 
Memphis School District, 380 F.2d 962, 968-969 (8th Cir. 
1967).

It is important to emphasize that the percentage goals 
adopted by the district court were sufficiently flexible to 
accommodate administrative difficulties. The goal was not 
an exact percentage but “ substantially the same” ratio. 
Petitioners would have no objection to defining more pre­
cisely the area of leeway, as for example was done in 
Doivell, supra, where the court allowed a ten percent 
margin for individual school variations (375 F.2d at 164).

It is notable that the percentage formula was first pro­
posed by an expert panel of educators and not by lawyers. 
Dowell was the first reported case in which a district court 
required that the percentage of Negro teachers in each 
school should approximate their percentage in the entire 
system. The court in Doivell made its ruling for the Okla­
homa City system on the recommendations of a distin­
guished panel of educational administrators who devised 
the integration plan for that city at the court’s invitation.

In concluding, it is important to note what the district 
court’s formula does not do. It does not impose a require­
ment that the ratio of white to Negro faculty members in 
each school and in the entire system remain the same 
in the future as it is at present. It is therefore not neces­
sary, under this formula, that any particular quota or 
percentage of Negroes (or whites) be on the faculty in 
each school. It is only necessary that the percentage in



28

each school approximate the percentage in the system as 
a whole, whatever that may be.

Nor does the district court’s formula import any perma­
nent notion of race or ratio consciousness into the school 
system. As the Court in Kiev v. County School Board, 
249 F. Supp. 239, 248 (W.D. Va. 1966) stated,

. . . the order of the court to be entered here envisions 
no . . . permanent race consciousness. It is merely 
intended to give redress for former faculty segrega­
tion. . . .

The fact that racial ratios may be necessary and appro­
priate as remedial measures to disestablish a system for­
merly segregated by law does not mean that once such 
disestablishment has been achieved such ratios would be 
either necessary or appropriate. Finally, approval of the 
use of such percentages as remedial measures to assure 
the “disestablishment of state-established segregated school 
systems,” Raney v. Board of Education, 391 U.S. 443, 449 
(1968), offends no constitutional rule against considera­
tion of racial factors. United States v. Jefferson County 
Board of Education, 372 F.2d 836, 876 (5th Cir. 1966), 
adopted en banc, 380 F.2d 385, cert, denied, 389 U.S. 840 
(1967); Wanner v. County School Board of Arlington 
County, 357 F.2d 452 (4th Cir. 1966).



29

n.
Full Faculty Desegregation Should Be 

Immediately Implemented.

Neither the district court nor the Court of Appeals 
established any deadline for achieving full desegregation 
of the regular school faculties. And they refused to order 
that faculties in new schools be established from the begin­
ning on a desegregated basis.

Petitioners contend that it is essential that some date 
for compliance with the goal of faculty desegregation be 
clearly established if defining the goal is to ensure progress 
toward it. To tell school boards that ultimately they must 
establish a certain Negro-white faculty ratio but leave them 
free to determine the pace at which to approach that ratio 
would be meaningless. Certainly in the Fifth Circuit, in 
light of United States v. Board of Educ. of Bessemer, 396 
F.2d 44 (5th Cir. 1968), a case decided after the district 
court’s ruling, the date for ultimate compliance can be no 
later than the beginning of school year 1970-71. See also 
United States v. Greenwood Municipal Separate School 
District (5th Cir. No. 25714, Feb. 4, 1969). Indeed, respon­
dents concede as much in their Brief in Opposition to the 
Petition for Certiorari, No. 798.

However, petitioners contend that under this Court’s 
decision in Green v. County School Board, 391 U.S. 430, 
438, 439 (1968), compliance with the goal of full faculty 
desegregation should be immediately required.12 In Green,

12 Petitioners recognize that there may be instances, perhaps in 
small schools, in which immediate implementation of the goal of 
faculty desegregation would not be practicable. Exceptions from 
the general rule could, of course, be made in such eases. But a 
heavy burden should be on the school officials to make a showing 
in each case that such an exception is necessary.



30

this Court ruled that in effecting the transition to a uni­
tary, non-racial system, “delays are no longer tolerable,” 
and “ the burden on a school board is to come forward 
with a plan that promises realistically to work, and prom­
ises realistically to work now.”  And Green made no dis­
tinction between faculty and student desegregation. There 
is no indication in this record that compliance by the open­
ing of school year 1969-70 would not be feasible. The dis­
trict court failed to set a timetable on the basis of a 
philosophy of “ gradualism” completely inconsistent with 
this Court’s subsequent decision in Green, supra.™ Since 
Green, the Fifth Circuit has held that schools must com­
plete full conversion to a unitary, non-racial system by 
the beginning of school year 1969-70 at the latest, and has 
specifically insisted that plans provide for the elimination 
of all-Negro schools, as well as predominantly white schools, 
in which only a small fraction of Negroes are enrolled. 
Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968); United 
States v. Greenwood Municipal Separate School District 
(5th Cir. No. 25714, February 4, 1969); Henry v. Clarks- 
dale Municipal School District (5th Cir. No. 23255, March 
6, 1969). Since the alleged difficulties in desegregating 
faculties have been primarily related to the segregated 
nature of student bodies, the Fifth Circuit’s implementa­
tion of Green’s required transition to “a system without 
a ‘white’ school and a ‘Negro’ school, but just schools” (391 
U.S. at 442) ought to facilitate faculty desegregation.13 14

13 “ [Gradualism has been found to work quite successfully in 
the past in this type case and particularly with the Montgomery 
County Board of Education, and gradualism is contemplated by 
this Court in accomplishing this ‘ultimate objective.’ ” (289 F. 
Supp. at 658).

14 The district court had ruled that schools with 12 or more 
faculty members begin the school year 1968-69 with at least one 
of every six faculty members of a race different from the majority. 
The Court of Appeals modified this in holding that “ because of



31

Whatever the merits of requiring immediate compliance 
with the goal of faculty desegregation in all schools, there 
can be no question that the faculties of new schools ought 
be established on a completely desegregated basis. How­
ever, the court below upheld the district court’s failure 
to require full faculty desegregation immediately in such 
schools. Neither court gave any adequate explanation. 
The Court of Appeals ruling was on the grounds that 
the district court had spoken approvingly of permitting 
the school board “ to achieve the ultimate objective of a 
completely desegregated school system gradually. . . . ” 
(400 F.2d at 9-10). But the district court discussed the 
benefits of gradualism in explaining its failure to set a 
deadline for faculty desegregation throughout the school 
system, not in the particular context of the new schools. 
Most traditional arguments for gradualism are inapplicable 
where new schools are concerned. No problems of trans­
ferring faculty members out of such schools are presented. 
Problems involved in creating new faculties are comparable 
to those of filling vacancies; courts traditionally have rec­
ognized the obligation to fill vacancies on a non-racial basis. 
Moreover, administrative problems are magnified by al­

the difficulties inherent in achieving a precise five-to-one ratio, 
this part of the district court’s order should be interpreted to mean 
substantially or approximately five to one” (400 F.2d at 8). Peti­
tioners contend that this modification was clearly erroneous. While 
it is appropriate that the ultimate objective be defined as an ap­
proximate requirement, there is no reason that interim goals should 
not express fixed minimal requirements. Such requirements do 
not pose insuperable administrative problems by their rigidity 
because nothing prohibits having more than one of every six 
teachers of a minority race. And they may be necessary, as 
the district court apparently felt they were, to prod reluctant 
officials into action. However, since school year 1968-69 has by 
now almost come to a close, and since as we read Green v. County 
School Board (text, supra, pp. 29-30), full faculty desegregation 
is required now, the issue of interim targets for faculty desegrega­
tion no longer seems relevant.



32

lowing establishment of an essentially all-white (or all- 
Negro) faculty since school officials will he faced with the 
problem in future years of transferring out white (or 
Negro) teachers.15 16

In any event, since the district court found specifically 
that the manner in which the school board had constructed 
these schools was designed to perpetuate, and had the 
effect of perpetuating, the dual school system (289 F. Supp. 
at 652), full faculty desegregation should have been re­
quired immediately in these schools in order to counter 
school officials’ attempts to establish the new schools as 
segregated institutions.

15 Significantly, the 1968-69 figures show that in the three new 
schools named in the district court opinion— Crump, Jefferson 
Davis and Southlawn— there were as of September 15, 1968, a 
total of 9 Negro teachers assigned as against 48 white teachers. 
The individual ratios were, respectively, 1 :10, 7 :29 and 1 :9.
(Brief of Respondents in Opposition to Petition for Certiorari, 
No. 798; Appendix A.)



33

CONCLUSION

The trial court ruled correctly in defining the goal of 
faculty desegregation as the achievement in each school 
in the system of a ratio of white to Negro teachers sub­
stantially the same as the system-wide ratio. Under Green 
v. County Board of Education, 391 U.S. 430 (1968), com­
pliance with this goal should be immediately required. 
Accordingly, the judgment below should be reversed.

Respectfully submitted,

F eed D. Gray 
Solomon S. Seay, Jr.
Gray, Seay, L angford & P ryor 

352 Dexter Avenue 
Montgomery, Alabama 36104

Jack Greenberg 
James M. N abrit, III 
M elvyn Z arr 
F ranklin E. W hite 
E lizabeth B. D u B ois 

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners



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