United States v. The Bossier Parish School Brief for Appellant

    I n  the

t̂afejs (daurt af Appî als
F ob the F ifth Ciecuit

No. 23365

U nited S tates of A mebica,

AppellanUlntervenor,

U ea B ebnaed Lemon, et al.,
Appellants,

-V .-

The B ossieb P akish S chool, et al.,
Appellees.

ON APPEAL FEOM THE UNITED STATES DISTRICT COURT 
FOB THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLANT

Conrad K. H aepeb 
Gerald A. S mith 
A lfred F einbeeg

Of Counsel

J esse N. S tone, J b .
854% Texas Avenue 
Shreveport, Louisiana

J ack Greenberg 
J ames M. N abbit, III  
N orman C. A maker 
Michael Meltsneb 
Leroy D. Clark

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Statement ........................................................................  1
The Present Method of Initial Assignment ..........  5
Teacher and Staff Segregation ..........................   6
School Transportation ........ —............. .................. 6
Unequal Negro Schools ...........................................  7

Specifications of Error ...................   9

A r g u m e n t :

I. The Bossier Parish Plan Ordered by the Dis­
trict Court Palls Short of This Court’s 
Standards With Regard Both to Pupil and 
Staff Desegregation .......................................  11

II. The Inferiority of Negro Schools (1) Entitles 
Negro Students to a Right of Immediate 
Transfer in All Grades and (2) Requires the 
School Board to Devise a Plan Which Max­
imizes Desegregation ....................................... 22

Conclusion......................................................................  25

Certificate of Service ....................... ........... ................... 27

Appendix .....................       la

Table op Cases:
Beckett v. School Board of Norfolk, Civ. No. 2214

(E.D. Va.) ............. ........................... ...... ..................18,19
Boson V. Rippy, 285 F.2d 43 (5th Cir. 1960) ............. . 15
Bradley v. School Board of Richmond, 382 U.S. 103 ....11,15



11

PAGE

Bradley v. School Board of the City of Richmond,
Civ. No. 3353 (E.D. Va., March 30, 1966) .................  19

Brooks V. County School Board of Arlington, Virginia,
324 F.2d 303 (4th Cir. 1963) .......................................  15

Brown v. Board of Education, 347 U.S. 483 (1954) ....14, 22

Carr, et al. v. Montgomery Board of Education, Civ.
No. 2072-N (N.D. Ala., March 22, 1966) .................. 25

Dove V. Parham, 282 E.2d 256 (8th Cir. 1960) ..........  15
Dowell V. School Board of Oklahoma City Public

Schools, 244 E. Supp. 971 (W.D. Okla. 1965) ...... 16,17,
19, 21, 22

Goss V. Board of Education, 373 U.S. 683 ................. 15,19
Griffin v. County School Board of Prince Edward 

County, 377 U.S. 218 ............................................... 15

Houston Independent School District v. Ross, 282 E.2d 
95 (5th Cir. 1960) ......................................................  15

Kemp V. Beasley, 352 P.2d 14 (8th Cir. 1965) ..........  21
Kier v. County School Board of Augusta County,

249 F.2d 239 (W.D. Va. 1966) ......................16,17,19, 22

Missouri, ex rel. Gaines v. Canada, 305 U.S. 337 (1938) 22

Price V. Denison Independent School District, 348 F.2d 
1010 (5th Cir. 1965) ........................................... 2, 4,11, 21

Rogers v. Paul, 382 U.S. 198....................................... 12, 22
Ross V. Dyer, 312 F.2d 191 (5th Cir. 1963) .................  15

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865 (5th Cir. 1966) ............. .11,12,14,15



Ill

PAGE

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (5th Cir. 1965) .............. 1,2,4,14,21

Sipuel V. Board of Regents, 332 TJ.S. 631 (1948) ..........  22
Sweat! v. Painter, 339 TJ.S. 629 (1950) ........... .............  22

Statutes:

Title VI, Civil Eights Act of 1964 (42 U.S.C.A. 
2000d) ..........................................................................  20

Other Authorities:

§181.13 Revised Statement of Policies for School 
Desegregation (1966), Office of Education, Depart­
ment of Health, Education and Welfare ................16, 20

§181.15 Revised Statement of Policies for School 
Desegregation (1966), Office of Education, Depart­
ment of Health, Education, and Welfare .................  25



I n the

IkixUh tomrt of Appeals
F or the F ifth Circuit 

No. 23365

U nited S tates of A merica,

Appellant-Intervenor,

U ra B ernard Lemon, et al.,

----V.—

The B ossier P arish S chool, et al.,

Appellants,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OP LOUISIANA

BRIEF FOR APPELLANT

Statement

This is an appeal from the August 20, 1965, decree 
(R. Vol. II, 261-263), as clarified August 23, 1965 (Ap­
pendix, infra, la)^ of the court below purporting to 
adequately amend and modify a school desegregation plan 
adopted by the district court on July 28, 1965 (R. Vol. II, 
251-258). The modifications of the district court were pur­
suant to an order of remand from this Court (R. Vol. II, 
260-261) to reconsider the July 28, 1965, order in the light 
of Singleton v. Jackson Municipal Separate School Dis-

 ̂Original order filed in the district court, August 23, 1965.



trict, 348 F.2d 729 (5tli Cir. 1965), and Price v. Denison 
Independent School District, 348 F.2d 1010 (5th Cir. 1965).

On December 2, 1964, plaintiffs, Negro parents and their 
children residing at Barksdale Air Force Base in Bossier 
Parish, Louisiana, filed a complaint in the United States 
District Court for the Western District of Louisiana seek­
ing an injunction requiring* appellees. The Bossier Parish 
School Board, and its Superintendent, Emmett Cope, to 
desegregate the school system (E. Vol. 1 ,1-12). The United 
States filed a Motion to Intervene on January 4, 1965 
(R. Vol. I, 19-20).

Subesquently, plaintiffs and intervenor filed Motions 
for Summary Judgment (R. Vol. I, 62, 65). On April 13, 
1965, the district court entered an order granting the 
government’s Motion to Intervene and granting plaintiffs’ 
and intervenor’s Motions for Summary Judgment (R. Vol. 
I, 100-113). At that time the court further ordered the 
appellees to submit a plan for desegregation (R. Vol. I, 
113-116). The school board appealed from that order 
(R. Vol. I, 125). That appeal is presently pending before 
this Court. On July 28, 1965, the court adopted a some­
what modified plan (R. Vol. II, 251-258) submitted by the 
school board (R. Vol. II, 2-12). Plaintiffs and intervenor 
objected to the plan as modified. That plan provided 
for free transfer privileges for the school year 1965-66 
for pupils in the first and twelfth grades to the first or 
twelfth grade of any school of their choice within the 
Bossier Parish School Board jurisdiction (R. Vol. II, 252). 
All other grades were to remain totally segregated. The 
free transfer privilege was superimposed on the already 
existing system of initial student assignment based on race.



“All initial pupil assignments made for the school year 
1965 through 1966 . . . [were] . . . considered adequate 
. . (E. Vol. II, 251).

Twelfth grade pupils were to be advised by mail of their 
right to transfer and of procedures attendant thereto. 
Notification of pupils in the first grade was to be given 
by publication in the Shreveport Times for a period of 
three (3) consecutive days (R. Vol. II, 252). Requests 
for transfers were not to be unreasonably denied hut were 
to be considered in light of the desire of the parents, the 
availability of space in the requested school, the age of 
the transferring pupil compared to the age of pupils in 
the chosen school, and the availability of requested courses 
(R. Vol. II, 253-255). As a further condition, an applicant 
could be assigned to a “comparable school closest to the 
pupil’s residence rather than to the school to which the 
transfer or assignment was requested” (R. Vol. II, 254). 
While the order specifically provided that applications 
for transfer from the twelfth and first grades must be 
made between August 9 and 12, 1965, and August 16 and 
20, 1965, respectively, it also provided that transfers 
would be made in accordance with current transfer pro­
cedures (R. Vol. II, 252-253). These procedures permit 
applications to be made within fifteen (15) days from the 
date of official assignment with certain exceptions for 
hardship cases (R. Vol. I, 59). Students entering the sys­
tem for the first time, regardless of grade, were to be 
accorded their choice of school, Negro or white, closest 
to their home (R. Vol. II, 255).

A different plan for desegregating the first, second, 
eleventh and twelfth grades in the school year 1966-67 
was contemplated. Desegregation of all grades under this 
plan was to be completed by September 1968 (R. Vol. II,



256). The desegregation plan for 1966 through 1968 pro­
vided that school assignments were to be made “purely 
and simply on the basis of individual choice,” however, 
the above described transfer provisions were to be re­
tained as well as the right of the school board to assign 
an applicant to “a comparable school closer to the pupil’s 
residence than is the school of Ms choice” (R. Vol. II, 256).

It was further provided that the system of dual zones 
was to be abolished contemporaneously with the progress 
of grade desegregation (R. Vol. II, 256).

On August 5, 1965, appellant-intervenor appealed the 
order of July 28, 1965, which approved the school board’s 
plan (R. Vol. II, 258). On August 17, 1965, this Court 
vacated the July 28th order and remanded to the district 
court for consideration in the light of Singleton and Price, 
supra.

Pursuant to the order of remand, the district court, on 
August 20, 1965, issued an order limiting the modification 
of its decree solely to increasing the rate of annual de­
segregation so that all grades would be under the desegre­
gation plan by the fall of 1967 (R. Vol. II, 261-263). 
Notification of the newly included grades 2 and 11 for 
1965 w'as to be by a three (3) day newspaper advertise­
ment. “Otherwise, all the terms and conditions of the 
original order of July 28, 1965 . . . [were] . . . reinstated 
. . . [to] . . . remain in full force and effect” (R. Vol. II, 
262). On August 23, 1965, the district court further 
clarified the August 20th order by denying the motion 
of the nominal plaintiffs to attend a formerly all-white 
school, notwithstanding the fact that the desegregation 
plan had not as yet reached their grades (Appendix la).

Under the orders of the court below the following de­
segregation has occurred: Bossier Parish school system



consists of 23 schools and about 4,400 Negro students and 
11,000 whites (E. Vol. I, 45). The system is divided into 
six (6) school districts (R. Vol. II, 48)  ̂ and serves all 
children residing in Bossier Parish (R. Vol. II, 66). Pres­
ently only 31 Negro pupils are enrolled in formerly all- 
white schools.®

The Present M ethod of Initial Assignm ent

Except as qualified by the free choice plan to go into 
effect in the years subsequent to the 1965-66 school year, 
initial assignment of pupils in Bossier Parish schools con­
tinues, as in the past, to be based on race. Students are 
segregated on the basis of dual attendance zones (R. Vol. 
II, 43-45, 75). Mr. Cope, the School Superintendent, con­
cedes that a redrawing of attendance areas based upon 
residence rather than upon race would result in “a possi­
bility” that white students who presently attend distant 
schools would go to schools closer to their homes (R. Vol. 
II, 78). Indeed, he admits that maintaining a dual school 
system has created substantial administrative problems (R. 
Vol. II, 76). Testimony by Mr. Cope indicates that the 
desegregation plan, at least as originally conceived, does

 ̂Bossier Parish is divided into taxing districts used as a rough esti­
mate of attendance areas for schools contained therein (E. Vol. II, 45-50, 
52, 110-111). However, theoretic legal restrictions imposed by district 
lines (R. Vol. II, 54-55) do not in fact limit the discretion of the board 
in the initial assignment of pupils to schools within the Parish (E. Vol 
II, 61, 73-74, 109-110).

Consolidation of school districts has resulted in the present distribution 
of school Districts 1, 2, 3, 13, 26 and 27 of the original 27 districts (R. 
Vol. II, 45-49).

2 Afhdavit of St. John Barrett, attached to the Motion to Consolidate 
and Expedite Appeals (Nos. 23173, 23192, 23274, 23331, 23335, 23345 
and 23365) filed by the United States in this Court April 4, 1966.



not contemplate any change in the method of initial assign­
ment even in those grades reached by the plan.^

Teacher and Staff Segregation

Notwithstanding that Negro and white teachers are com­
parably qualified to teach in the Bossier Parish School 
System (E. Vol. II, 85-87) teaching staffs remain completely 
segregated (R. Vol. II, 179). While it is true that three 
years of service gives a teacher tenure providing a certain 
amount of protection against an undesired transfer to 
another school, of the some seven hundred (700) teachers 
in the school system, two hundred (200) to two hundred 
and fifty (250) have either not been employed for three 
years or have just come into the ŝ ŝtem. These teachers 
have no legal option to determine where they will be as­
signed to teach (R. Vol. II, 175-178). Negi’o and white 
supervisory personnel not only have different jurisdictions, 
they also are segregated from each other; thus white per­
sonnel work at the central office in Benton and Negro 
personnel are located at Butler Elementary School in Bos­
sier City (R. Vol. I, 51).

School Transportation

Negro and white children in Bossier Parish are trans­
ported separately to their respective schools (R. Vol. I, 
52). There are only six (6) Negro schools out of a total of 
twenty-three (23) schools (R. Vol. I, 45-46) and only about

Q. How does this plan change the method of assignment currently 
existing under the dual system? A. Maybe I can answer the question by 
this method; From May 1 to May 15 every student we have in the Bossier 
Parish School System is assigned to the particular school which he attends.

Q. In the ease of a Negro student it is a Negro school and in the ease 
of a white student it is a white school? A. Yes.

Q. Isn't that the system you are operating under now? A. Yes. (R. 
Vol. II, 88-89.)



4,000 Negro pupils out of a total of nearly 15,000 (E. Vol. I, 
45), yet forty-one (41) buses are needed to transport Negro 
children and fifty-two (52) buses are required for white 
children (R. Vol. I, 52). Although testimony in the record 
indicates that buses going to formerly all-white schools 
would carry Negroes who had integrated into those schools 
(E. Vol. II, 101), the integration of buses is neither offered 
by appellees’ desegregation plan (R. Vol. II, 101), nor 
incorporated by the district court in its desegregation order 
(R. Vol. II, 251-258).

Unequal ISegro Schools

The schools operated for white and Negro children in 
Bossier Parish show considerable disparity in a number 
of qualitative aspects. The white high school (Bossier) 
for one district offers 53% courses over a four year period, 
including two years of Latin, two years of French, two 
years of Spanish, and three years of art (R. Vol. II, 184- 
185). However, the Negro high school (Stikes) for the 
same district offers only 28 courses, and offers no Latin, 
French, or Spanish (E. Vol. II, 186). Another district’s 
white high school (Airline) offers 43.5 courses, while the 
Negro high school (Mitchell) offers 30.5 (R. Vol. II, 189). 
Similarly, the white high school (Haughton) for a third 
district offers 40.5 courses, while the Negro high school 
(Princeton) offers 34 (R. Vol. II, 192). The Superintend­
ent stated that the criterion for offering a course was:

if a course is requested on the senior high level by 
as many as ten students we attempt to offer that course 
in that particular school. Yet, at the same time, there 
are other factors where maybe ten students have not 
applied as far as conditions are concerned in the other 
schools and I think that situation has to be taken into 
consideration (R. Vol. II, 100).



8

Disparities are found in other respects in addition to the 
number of course offerings. While there are two full time 
guidance counselors at Airline (white), there are none at 
Mitchell (Negro) (R. Vol. II, 190). In fact, while there 
generally are guidance counselors at the schools for whites 
in the parish, there are none at any of the Negro schools 
(R. Vol. II, 187, 194). At the Princeton school (Negro), 
there are 3.8 volumes of “approved books in good condi­
tion” per pupil, while at Haughton (white) in the same 
district there are 6.3 per pupil (R. Vol. II, 190-191).

At the hearing on the objections to the plan, Mr. William 
Stormer, Specialist, School Housing Statistics, United 
States Office of Education, Department of Health, Educa­
tion, and Welfare, an expert in the evaluation of the qual­
ity of school plants, testified on his findings during an 
inspection of the Bossier Parish schools in the summer of 
1965 (R. Vol. II, 195-198). Using the Lynn-McCormick 
Rating System developed at Teachers College of Columbia 
University which combines a number of weighted ratings 
of different aspects into an overall rating which allows 
numerical comparisons between schools, he determined 
that the highest white school (Airline) ranked at 82 on the 
scale, while the highest Negro school (Mitchell) ranked 
at 16 (R. Vol. II, 199, 202). Fifteen of the seventeen white 
schools rated above the first Negro school (R. Vol. II, 202). 
When challenged upon cross-examination that there was 
really no dramatic difference between the Negro and white 
schools, he responded: “Yes, there is. I beg your pardon. 
For example, the Avooden structures used at Stikes for 
what I presume to be elementary classrooms . . . there are 
no wooden structures at Curtis” (R. Vol. II, 209). Simi­
larly, the structures used for elementary grades at Irion 
(Negro) are wooden, while those used for the same purpose 
at Benton (white) are not (R. Vol. II, 209). The home



economics facilities at Stikes high school (Negro) are in 
a wooden frame two story structure, whereas similar 
facilities at Bossier high school (white) are in a modern 
main building (R. Vol. II, 200). All of the Negro schools 
must use their gymnasiums as auditoriums, while Airline, 
Bossier, Benton, and Haughton schools which are all white 
have separate auditorium facilities (R. Vol. II, 200-201). 
The gymnasium floors in all of the Negro high schools are 
constructed of cement or asphalt tile surface, compared to 
wooden floors in all of the vdiite high schools (E. Vol. II, 
200).

Specifications o f  E rro r

The district court erred in;

1. Refusing to find that the Bossier Parish School 
Board, having established and maintained a racially segre­
gated school system, is constitutionally obligated to submit 
a desegregation plan which, in fact, completely disestab­
lishes segregated patterns and eradicates Negro and white 
schools.

2. Approving the so-called free choice provisions con­
tained in the district court’s desegregation plan over ob­
jections that such provisions failed to disestablish racial 
segregation and despite undisputable evidence that:

a. Approval of the plan retains virtually intact Negro 
and white schools;

b. The alleged free choice provisions are in reality a 
transfer scheme perpetuating dual zone lines;

c. The plan fails to permit students attending inferior 
schools, whether in the segregated or desegregated grades,



10

to transfer to schools from which they have been excluded 
because of race;

d. The plan fails to provide for desegregation of facili­
ties such as bus transportation;

e. The plan fails to provide notice of its provisions 
other than in a newspaper of general circulation for the 
years subsequent to the 1965-66 school year;

f. The plan fails to provide for the upgrading of Negro 
schools so as to make transfers a realistic consideration 
for all pupils;

g. The plan fails to provide for alternative assignment 
criteria where facts reveal that it would lead to significant 
desegregation.

3. Approving a gradual so-called free choice desegrega­
tion plan despite the absence of valid administrative fac­
tors justifying such delay and despite the fact that Negro 
educational facilities are clearly inferior.

4. Refusing to find that staff desegregation is a pre­
requisite for effective school desegregation requiring the 
immediate submission of a specific plan providing for both 
(a) nonracial hiring and assignment of staff personnel to 
effect desegregation, and (b) assignment of staff personnel 
based on race in order to correct the past effects of segrega­
tion and discrimination.



11

ARGUMENT

I.

T he B ossier P a rish  P lan  O rd ered  by th e  D istric t C ourt 
Falls S hort o f T his C ourt’s S tandards W ith  R egard  B oth 
to  P u p il and  Staff D esegregation.

In Price v. Denison Independent School District, 348 
F.2d 1010 (5th Cir. 1965), this Court adopted the United 
States Office of Education’s Statement of Policies for 
School Desegregation under Title VI of the Civil Rights 
Act of 1964 (April 1965) as its minimum desegregation 
standards. In March 1966, a Revised Statement of Policies 
for School Desegregation was issued, which revised state­
ment is no less appropriate to current school desegrega­
tion questions than was the statement issued in April 1965. 
See, Bradley v. School Board of Richmond, 382 U.S. 103 
and Singleton v. Jackson Municipal Separate School Dis­
trict, 355 P.2d 865 (5th Cir. 1966).

The minimum standards for school desegregation plans 
were set out in extenso in Singleton v. Jackson Municipal 
Separate School District, 355 F.2d 865, 870-871 (5th Cir. 
1966). Those standards briefly are as follows:

1. All grades must be desegregated by September 1967;

2. Individuals in segregated grades are permitted to 
transfer to schools from which they were originally ex­
cluded or would have been excluded because of their race;

3. Services, programs and activities, including buses, 
shall be available without discrimination on the basis of 
race;



12

4. An adequate start must be made toward elimination 
of race as a basis for staff employment so that school 
systems will be totally desegregated by September 1967;

5. Proper notice, including use of newspapers, radio 
and television facilities, must be given to children and their 
parents of the desegregation plan;

6. Dual geographic zones must be abolished as a basis 
for assignment;

7. Additional choices of schools must be made available 
where the first choice is unavailable.

The Bossier plan fails to meet these criteria. Although 
it provides for complete pupil desegregation by Septem­
ber, 1967, the plan has no provision permitting individuals 
in segregated grades to transfer to schools from which 
they were originally excluded or would have been excluded 
because of their race. Thus the plan, in this regard, is not 
only deficient under the criteria of the second Singleton 
decision, but also under Rogers v. Paul, 382 U.S. 198. The 
plan makes no provision for the desegregation of services, 
programs, and activities, such as bus transportation.

The plan fails to provide for proper notice of the plan’s 
contents to children and parents. The second Singleton 
decision found notice adequate where radio and television 
facilities were used in addition to newspaper announce­
ments. The Bossier Parish plan provides for notification 
to twelfth grade pupils by mail but merely provides for 
three newspaper announcements to pupils in grades two, 
eleven, and those entering grade one in the fall of 1965. 
The plan also provides that applications for transfer from 
the twelfth and first graders must be made between August 
9 and 12, 1965 and August 16 and 20, 1965, respectively.



13

Transfers for the 1965-66 school year were subject to 
“current” transfer procedures, i.e., applications could gen­
erally be made within fifteen days from the date of official 
assignment to a particular school. In short, parents seek­
ing to obtain transfers for their children for the fall of
1965 were, except for the twelfth-grade students, forced to 
rely upon a three-day newspaper announcement and a com­
parably short period of time for filing applications. What­
ever the defects of the fall 1965 procedure may be, they 
are slight in view of the complexity and obscurity of the 
plan’s notice provisions regarding the school years 1966-67 
and 1967-68.

The plan grandly declared that school assignments from
1966 through 1968 were to be made “purely and simply 
upon the basis of individual choice” and that dual racial 
zones are to be abolished contemporaneously with the 
progress of grade desegregation. Nonetheless, for the 
school years subsequent to 1965-66, the plan provides no 
procedures whereby the alleged free choice option is to be 
processed and provides no indication that any publicity 
will be given to the fact that freedom of choice is possible. 
Furthermore, students, in accordance Avith the usual school 
board procedures,^ will be assigned on a racial basis to 
their respective schools betAveen May 1 and May 15 of 1966 
and 1967.

Incontrovertibl}', therefore, the plan at best envisions an 
unpublicized transfer procedure from an initial racial as­
signment masquerading as “pure” free choice.

The plan fails to specify that additional choices of schools 
are available where pupils’ first choices are not. Indeed,

5 The court-ordered plan was quite explicit in providing that “All 
initial pupil assignments [based on race] made for the school year 1965 
through 1966 . . . [are] . , . considered adequate . . . ” (R. Vol. II, 251).



14

the plan specifically provides that a pupil’s request to 
transfer is subject to the school board’s discretion to assign 
the applicant to a “comparable school” closer to the stu­
dent’s residence than the student’s chosen school. Thus the 
plan, rather than seeking to give its transfer provisions 
wide latitude by vesting discretion in the student applicant, 
affirmatively looks toward school board actions which might 
well perpetuate segregation by pupil assignment. Such 
perpetuation would, of course, insure the immortality of 
dual zoning. This Court has now clearly held that school 
boards operating a dual system are constitutionally re­
quired not merely to eliminate the formal application of 
racial criteria to school administration, but must also by 
affirmative action seek the complete disestablishment of 
segregation in the public schools. Singleton v. Jackson 
Micnicipal Separate School District, 348 F.2d 729 (5th Cir. 
196o), 3o5 F.2d 865 (5th Cir. 1966). As succinctly stated 
in the first Singleton opinion, “ . . . the second Brown 
decision clearly imposes on public school authorities the 
duty to provide an integrated school system.” 348 F 2d at 
730, n. 5.

The Bossiei Parish plan does not effectively desegregate 
its pupil population. Presently, only thirty-one Negro 
pupils are enrolled in formerly all-white schools in the 
school system which has nearly 15,000 pupils, of whom 
some 4,000 are Negroes.® The record reveals that many 
of the board’s assignment policies have as their sole justi­
fication the perpetuation of segregation. Thus, for example, 
Negro children residing in District No. 26, where 
the only school is one for whites, attend school in other 
Districts where Negro schools are located (R. Vol. II, 51-

® Affidavit of St. John Barrett, attached to the Motion to Consolidate 
and Expedite Appeals (in Nos. 23173, 23192, 23274, 23331, 23335, 23345 
and 23365) filed by the United States in this Court April 4, 1966.



15

52, 109-110). The School Siipermtendent frankly admitted 
that dual zoning was an administratively difficult proce­
dure (E, Vol. II, 76). These facts demonstrate that the 
so-called freedom of choice plan has not worked and that 
either extensive revision of it is needed, or another method 
of desegregation should be adopted, e.g., assignment on 
the basis of race to effect desegregation, unitary non-racial 
geographic zoning. This Court and other courts have fre­
quently held that if the application of educational prin­
ciples and theories results in the preservation of an existing 
system of imposed segregation, the necessity of vindicat­
ing constitutional rights will prevent their use. Ross v. 
Dyer, 312 F.2d 191, 196 (5th Gir. 1963); Dove v. Parham, 
282 F.2d 256 (8th Cir. I960); Brooks v. County School 
Board of Arlington, Virginia, 324 F.2d 303, 308 (4th Cir 
1963).

The district court’s desegregation order reflects its fail­
ure to grasp the considered principle that schemes which 
technically approve desegregation but retain the school 
s3̂ stem in its dual form must be struck down. Goss v. 
Board of Education, 373 U.S. 683; Griffin v. County School 
Board of Prince Edward County, 377 U.S. 218; Boson v. 
Rippy, 285 F.2d 43 (oth Cir. 1960); Houston Independent 
School District v. Ross, 282 F.2d 95 (5th Cir. 1960).

B.

The district court’s order failed to require desegregation 
of staff personnel and is therefore in conflict with the 
settled rule that desegregation plans must make an ade­
quate start toward the elimination of teacher and other 
staff segregation. Bradley v. School Board of Richmond, 
382 U.S. 103; Singleton v. Jackson Municipal Separate 
School District, 355 F.2d 865, 870 (5th Cir. 1966).



16

Prompt faculty desegregation is also required by revised 
school desegregation guidelines, issued by the United States. 
Office of Education, which make each school system respon­
sible for correcting the effects of all past discriminatory 
teacher assignment practices and call for “significant prog­
ress” toward teacher desegregation in the 1966-67 school 
year. Thus, new assignments must be made on a nonracial 
basis “ . . . except to correct the effects of past discrim­
inatory assignments.” Revised Statement of Policies for 
School Desegregation (March 1966), §181.13(b). The pat­
tern of past assignments must be altered so that schools 
are not identifiable as intended for students of a particular 
race and so that faculty of a particular race are not con­
centrated in schools where students are all or prepon­
derantly of that race. Id. at Sec. 181.13(d).

In view of the desired goal of desegregation, whether 
by free choice or unitary geographic zoning, it is impera­
tive that the Bossier Parish School Board be required 
promptly to adopt effective faculty desegregation plans. 
See Dowell v. School Board of Oklahovia City Public 
Schools, 244 P. Supp. 971 (W.D. Okla. 1965), on appeal 
to the 9th Circuit, No. 8523; and Kier v. County School 
Board of Augusta County, 249 F. Supp. 239 (W.D. Va. 
1966).

In the Oklahoma City case, the court, adopting the rec­
ommendations of educational experts retained with the 
court’s approval by plaintiffs to study the system and pre­
pare an integration report, set a goal of 1970 by which 
time there should be “ . . . the same approximate percentage 
of nonwhite teachers in each school as there now is in the 
system. . . . ” The 1970 date was keyed to personnel turn­
over figures indicating that approximately 15% of the 
total faculty is replaced each year, and to permit the ac-



17

complishment of faculty integregation by replacements to 
the faculty as well as by transfers. 244 F. Supp. at 977-78.

In the Augusta County case, the district court noting the 
small number of Negro teachers in the system, ordered 
faculty desegregation to be completed by the 1966-67 school 
term. Referring to the Oklahoma City case, supra, the 
court said:

Insofar as possible, the percentage of Negro teachers 
in each school in the system should approximate the 
percentage of Negro teachers in the entire system for 
the 1965-66 school session. Such a guideline can not 
be rigorously adhered to, of course, but the existence 
of some standard is necessary in order for the Court 
to evaluate the sufficiency of the steps taken by the 
school authorities pursuant to the Court’s order. 249 
F. Supp. at 247.

The court acknowledged that the standard for teacher 
assignments is race-conscious, but justified such relief as 
necessary to correct discrimination practiced in the past. 
Quoting from a 1963 opinion on the subject by the Attorney 
General of California, 8 Race Rel. L. Rep. 1303 (1963), 
the court held that:

Clearly, defendants may consider race in disestab­
lishing their segregated schools without violating the 
Fourteenth Amendment’s equal protection clause. The 
admonition of the first Mr. Justice Harlan in his dis­
senting opinion in Plessy v. Ferguson, 163 U.S. 537, 
559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) that ‘Our Con­
stitution is color-blind’ was directed against the ‘sepa­
rate but equal’ doctrine, and its rejection in Brown 
V. Board of Education, 347 U.S. 483, 74 S.Ct. 6 8 6 , 98 
L.Ed. 873, was an explicit recognition that separate



18

educational facilities are inherently unequal, and did 
not convert Justice Harlan’s metaphor into constitu­
tional dogma barring affirmative action to accomplish 
the purposes of the Fourteenth Amendment. Thus, 
racial classifications which effect invidious discrimina­
tion are forbidden but may be upheld if deemed neces­
sary to accomplish an overriding governmental pur­
pose.

Recently, in Beckett v. School Board of Norfolk, Civ. 
No. 2214 (E.D. Va.) where the faculty is 40% Negro, a 
district court entered a consent order on March 17, 1966 
approving a plan submitted by the Board containing pro­
visions for teacher desegregation which in addition to 
recognizing its obligation to take all reasonable steps to 
eliminate existing racial segregation of faculty that has 
resulted from the past operation of a dual school system 
based upon race or color, committed the Board, inter alia, 
to the following;

The Superintendent of Schools and his staff will take 
affirmative steps to solicit and encourage teachers 
presently employed in the System to accept transfers 
to schools in which the majority of the faculty mem­
bers are of a race different from that of the teacher 
to be transferred. Such transfers will be made by 
the Superintendent and his staff in all cases in which 
the teachers are qualified and suitable, apart from 
race or color, for the positions to which they are to 
be transferred.

In filling faculty vacancies which occur prior to the 
opening of each school year, presently employed 
teachers of the race opposite the race that is in the 
majority in the faculty at the school where the vacancy 
exists at the time of the vacancy will be preferred in



19

filling such a vacancy. Any such vacancy will be 
filled by a teacher whose race is the same as the race 
of the majority on the faculty only if no qualified 
and suitable teacher of the opposite race is available 
for transfer from within the System.

Newly employed teachers will he assigned to schools 
without regard to their race or color, provided, that 
if there is more than one newly employed teacher who 
is qualified and suitable for a particular position and 
the race of one of these teachers is different from 
the race of the majority of the teachers on the faculty 
where the vacancy exists, such teacher will be assigned 
to the vacancy in preference to one w-hose race is the 
same.’

An effective faculty desegregation plan must establish 
specific goals to be achieved by affirmative policies ad­
ministered with regard to a definite time schedule. The 
plans in the Oklahoma City, Augusta County and Norfolh 
cases supra, meet these criteria. The Bossier Parish School 
Board for valid constitutional and educational reasons 
should be required to submit faculty desegregation plans 
patterned after those in the Oklahoma City, and Augusta 
County cases.

Faculty segregation impedes the progress of pupil de­
segregation. Where, as here, students and parents are 
given a choice of schools under the Bossier Parish plan, 
faculty segregation influences a racially based choice. Ar­
rangements which work to promote segregation and hamper 
desegregation are not to be tolerated, Goss v. Board of 
Education, 373 U.S. 683.

’ A similar plan was approved on March 30, 1966, by the district court 
in Bradley v. School Board of City of Richmond, Civ. No. 3353 (E.D. 
Va.) where about 50% of the teachers are Negro.



20

The United States Office of Education has noted the 
negative consequences of pupil desegregation without con­
current faculty desegregation. Thus, in further implement­
ing Title VI of the Civil Rights Act of 1964 (42 U.S.C.A. 
2000d) the Office of Education in its March, 1966 Revised 
Statement of Policies requires school districts submitting 
plans for desegregation to comply with the following 
policies:

§181.13 Faculty and Staff
(a) Desegregation of Staff. The racial composition 

of the professional staff of a school system, and of 
the schools in the system, must be considered in 
determining whether students are subjected to dis­
crimination in educational programs. Each school sys­
tem is responsible for correcting the effects of all past 
discriminatory practices in the assignment of teachers 
and other professional staff.

(b) New Assignments. Race, color, or national 
origin may not be a factor in the hiring or assign­
ment to schools or within schools of teachers and 
other professional staff, including student teachers and 
staff serving two or more schools, except to correct the 
effects of past discriminatory assignments.

(d) Past Assignments. The pattern of assignment 
of teachers and other professional staff among the 
various schools of a system may not be such that 
schools are identifiable as intended for students of 
a particular race, color, or national origin, or such 
that teachers or other professional staff of a particular 
race are concentrated in those schools where all, or



21

the majority, of the students are of that race. Each 
school system has a positive duty to make staff as­
signments and reassignments necessary to eliminate 
past discriminatory assignment patterns. Staff de­
segregation for the 1966-67 school year must include 
significant progress beyond what was accomplished 
for the 1965-66 school year in the desegregation of 
teachers assigned to schools on a regular full-time 
basis. Patterns of staff assignment to initiate staff 
desegregation might include, for example: (1) Some 
desegregation of professional staff in each school in 
the system, (2) the assignment of a significant portion 
of the professional staff of each race to particular 
schools in the system where their race is a minority 
and where special staff training programs are estab­
lished to help with the process of staff desegregation, 
(3) the assignment of a significant portion of the staff 
on a desegregated basis to those schools in which the 
student body is desegregated, (4) the reassignment 
of the staff of schools being closed to other schools in 
the system where their race is a minority, or (5) an 
alternative pattern of assignment which will make 
comparable progress in bringing about staff desegre­
gation successfully.

These Office of Education standards for faculty desegre­
gation are entitled to great weight. See Singleton v. Jack- 
son Municipal Separate School District, 348 F.2d 729, 731 
(5th Cir. 1965); Price v. Denison Independent School Dis­
trict Board of Education, 348 F.2d 1010, 1013 (5th Cir. 
1965); Kemp v. Beasley, 352 F.2d 14, 18-19 (8th Cir. 1965). 
Significantly, at least two district courts had fashioned 
orders before the Office of Education adopted its Revised 
Statement which complement the neAv regulations. Dowell



22

V. School Board of Oklahoma City Public Schools, 244 F. 
Supp. 971, 977-78 (W.D. Okla. 1965) (appeal pending), 
and Kier v. County School Board of Augusta County, 
Virginia, 249 F. Supp. 239, 247 (W.D. Va. 1966), both 
require plans under which the percentage of Negro teachers 
assigned to each school would result in an equal distribu­
tion of Negro teachers throughout the system. This or 
similar relief is necessary to eliminate the problem of 
faculty segregation in Bossier Parish. The School Board 
should be required to submit an administrative plan for 
faculty desegregation in accord with such definitive guide­
lines.

II.

The Inferiority of Negro Schools (1 )  Entitles Negro 
Students to a Right o f Immediate Transfer in All Grades 
and (2 )  Requires the School Board to Devise a Plan 
Which Maximizes Desegregation.

Well before Brown v. Board of Education, 347 U.S. 483 
(1954), it was clear that disparities in educational facilities 
required immediate desegregation. Of. Missouri ex rel. 
Gaines v. Canada, 305 U.S. 337 (1938), Sipuel v. Board of 
Regents, 332 U.S. 631 (1948), Sweatt v. Painter, 339 U.S. 
629 (1950). Recently in Rogers v. Paul, 382 U.S. 198, 199, 
200 (1965), the Supreme Court held that pending the com­
plete desegregation of Fort Smith, Arkansas, high schools, 
Negro students enrolled at schools with less extensive cur­
ricula were entitled to “immediate transfer to the high 
school that has the most extensive curricula and from Avhich 
they are excluded because of their race.”

In Bossier Parish, the Superintendent admitted the sub­
stantially smaller number of course offerings at the Negro



23

high schools generally compared to the white high schools 
(R. Vol. II, 184-194). It is submitted that the inequality 
between Negro and Avhite high schools located in one dis­
trict while dismissed by appellees as being caused by the 
disparity in enrollment between the schools (R. Vol. II, 
186) is, more fundamentally, the result of a decision to 
maintain a segregated school system. Furthermore, simi­
lar substantial disparities in course offerings are found 
in districts in which enrollments in Negro and white high 
schools are nearly identical (R. Vol. II, 191).

The Superintendent’s statement that the general rule 
for determining whether to offer a course is receipt of 
requests by ten students, but that there are “other factors” 
which may cause a course to be offered even where ten 
students have not so requested (R. Vol. II, 100) strongly 
suggests that this “rule” is rigidly applied in Negro schools 
to justify the lack of course offerings while generally 
waived in white schools. In the latter schools, the board 
apparently undertakes its educational responsibility to 
stimulate the students by presenting a large variety of 
course offerings on the theory that students may not be 
aware that a course would be valuable if they don’t know 
it exists, but feels no such similar responsibility in the 
Negro schools.

The complete lack of guidance counselors in Negro high 
schools compared to their presence at most white high 
schools (R. Vol. II, 187-194) is a further illustration of 
the general policy of the School Board to regard the 
schools intended for Negroes as a separate and second 
class school system with whose educational adequacy they 
need be only minimally concerned. That this attitude un­
derlies virtually all board policies is confirmed by the 
extensive testimony offered by Mr. William Stormer, an



24

expert in evaluating school physical plants, that the physi­
cal facilities of the Negro schools are generally quite 
inferior to those of the white schools (E. Vol. II, 195-209). 
The fact that fifteen of the seventeen white schools in the 
parish ranked higher on the Columbia Teachers College 
scale than the highest Negro school is eloquent testimony 
to the situation of Negro students in Bossier Parish.

On the basis of the evidence, plaintiffs were clearly en­
titled to a plan which included the right of immediate 
transfer out of an inferior Negro school. The failure of 
the district court to so order condemns Negro students in 
the grades unaffected by the desegregation plan until 1967- 
68 to at least another year at clearly inferior schools.

However, even if all students in the still segregated 
grades were granted a right of immediate transfer, it is 
probable that only token desegregation would occur. The 
inferiority of Negro schools turns the desegregation process 
approved in Bossier Parish into a one-way process. White 
students could hardly be expected to abandon the superior 
facilities and instructions available at white schools by 
transferring to Negro schools. Thus, Negro students’ right 
to transfer under the plan is circumscribed by the amount 
of space available at white schools.

In recognizing the Negro students’ right not to be re­
stricted to inferior schools, quite apart from their right 
to a desegregated education, the Supreme Court clearly 
intended school boards to devise plans which maximized 
the extent of desegregation. Although a school board is 
entitled to devise a desegregation plan which is geared to 
the special circumstances of a particular school system, a 
school board cannot select a desegregation process which 
plainly restricts the amount of desegregation that will 
occur.



25

Until Negro schools are brought up to par with white 
schools and freedom of choice becomes meaningful to both 
white and Negro students, a school board is obligated to 
take further steps to maximize desegregation. Indeed, 
just recently, unequal Negro schools were closed in three 
Alabama counties to protect Negro students’ right to an 
equal as well as a desegregated education. In Carr, et al. 
V. Montgomery Board of Education, Civ. No. 2072-N (N.D. 
Ala. March 22, 1966). Judge Johnson’s order further re­
quired :

The Montgomery County Board will design and pro­
vide remedial educational programs to eliminate the 
effects of past discrimination, particularly, the results 
of the unequal and inferior educational opportunities 
which have been offered in the past to Negro students 
in the Montgomery County School System.
Expansion of existing school plants to accommodate 
displaced students will be designed to eliminate the 
dual school system.

Similarly, the revised Health, Education and Welfare 
school desegregation guidelines now require that “inade­
quate” Negro schools be discontinued. §181.15, Eevised 
Statement of Policies For School Desegregation Plans 
Under Title VI of The Civil Eights Act of 1964.

CONCLUSION

For the reasons stated in this brief the desegregation 
order entered by the lower court should be reversed and 
the cause remanded with specific directions to the district 
court to enter an order requiring the abolition of separate 
zones, the establishment of unitary, geographic attendance 
areas or other alternative assignment criteria which would



26

lead to significant desegregation, the desegregation of 
faculty and professional staff, integrated bus transporta­
tion, and the right of children in grades not yet reached 
by the plan or children assigned to inferior schools to 
transfer to schools from which they have been excluded 
because of race.

Respectfully submitted.

Conrad K. H arper 
Gerald A. S mith 
A lfred F einberg

Of Counsel

J esse N. S tone, J r.
854% Texas Avenue 
Shreveport, Louisiana

J ack Greenberg 
J ames M. N abrit, III 
N orman C. A maker 
Michael Meltsner 
Leroy D. Clark

10 Columbus Circle
New York, blew York 10019

Attorneys for Appellants



27

Certificate o f Service

This is to certify that I have this 23rd day of April, 
1966 served one copy of the foregoing Brief for Appellants 
upon each of the attorneys for the appellees and the United 
States as listed below, by depositing true copies of same 
in the United States mail, air mail, postage prepaid.

Hon. Jack P. F. Gremillion 
Attorney General 
State Capitol 
Baton Rouge, Louisiana
Hon. William P. Schuler 
Assistant Attorney General 
201 Trist Building 
Arabi, Louisiana 70032
Hon. Louis H. Padgett, Jr. 
District Attorney 
Bossier Bank Building 
Bossier City, Louisiana

Mr. J. Bennett Johnston, Jr. 
Special Counsel for Defendants 
930 Giddens Lane Building 
Shreveport, Louisiana
Hon. John Doar 
St. John Barrett 
Peter Smith 
Department of Justice 
Washington, D.C. 20530
Mr. Edward L. Shaheen 
United States Attorney 
Federal Building 
Shreveport, Louisiana

Attorney for Appellants



la

APPENDIX

Ruling on Motion to Clarify and/or Amend 
Previous Order and Decree

[CAPTIOK omitted]

Filed August 23, 1965

B en C. D awkins, J e., Chief Judge.

The named minor plaintiffs have sought to by-pass the 
plan of desegregation entered and approved herein by 
having the Court declare that they now" are entitled to 
attend a formerly all-white school of their choice, even 
though the over-all plan has not reached their grade level.

For this Court to rule to that effect w"ould be to give 
an unfair advantage to the named minor plaintiffs over 
the other members of the class they represent, something 
which was never intended by the Court to be done, and 
which we cannot do in good conscience even though the 
parents of these children took the initiative in instituting 
this suit. To do so would disrupt the orderly implementation 
of the plan of desegregation, and we cannot allow this 
to happen.

For these reasons, sitting as a court of equity of whom 
evenhandedness is demanded, w"e must rule that the named 
minor plaintiffs must await their turn, as all others in 
their class must do, until their grade level is reached, 
either in 1966 or 1967, as the case may be, before they 
will be entitled to transfer to a formerly all-white school 
of their choice.

Thus done and signed, in Chambers, at Shreveport, 
Louisiana, on this 23rd day of August, 1965.

Chief Judge



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