Alexander v. Holmes County Board of Education Brief for Petitioners

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    in t h e
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 
NO. 632

BEATRICE ALEXANDER, et al,,
Petitioners,

v.
HOLMES COUNTY BOARD OF EDUCATION, 
et al.

On Writ Of Certiorari To The United States Court 
Of Appeals For The Fifth Circuit

BRIEF FOR PETITIONERS

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
NORMAN J. CHACHKIN 
MELVYN ZARR10 Columbus Circle 

New York, New York 10019
MELVYN R. LEVENTHAL 
REUBEN ANDERSON 
FRED L. BANKS, JR.530^ North Farish Street 

Jackson, Mississippi 39202
CHARLES L. BLACK, JR.

169 Bishop StreetNew Haven, Connecticut" 06511
Attorneys for Petitioners



I N D E X
Page

1
Opinions Below ................
jurisdiction ....................
Constitutional Provision Involved • • * ........
Questions Presented • • • • * * * * ------
Statement ......................
Summary of Argument ..............
Argument

I.

II,

The Time for Delay of School Desegregation
Has Run Out......................
Effective Relief Requires the Immediate 
Suhmitte^Office^of*1 Education^ Plans______
Pendente Lite................

Conclusion

1
2
2
3
18

19

26
34

Table of Cases: .
Adan,s v. Mathews. 403 F.2d 181 (5th Cir. 1968) . . .
Brown v. Board of Education, 347 U.S. 483 (1954) . 4.
Brown v. Board of Education, 349 U.S. 294 (195S)
Coffey v. State Educational ^ ^ 9" ^ ' ------  8

296 F. Supp. 13«y ko.u.
Dowell v. Board of Education °f Oklahoma exty^

Schools 344 F. Supp. °1967), cert.
affirmed 375 F«2d^ y . ^  ..............  32denied, 387 U.S. 931 (1967) . •s srs.’sss......  *

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



Page
Henry v. Clarksdale Municipal Separate School • ..

District, 409 F.2d 682 (5th Cir. 1969) * • • • • *
in re R. Jess Brown, 346 F.2d 903 (5th Cir. 1965) . . 20
Leake County School Board v. Hudson, 357 F.2d 653

(5th Cir. 1966) ................................
McLaurin v. Regents, 339 U.S. 637 (1950)............  ^
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) . . .  20
Singleton v. Jackson Municipal Separate School

District, 348 F.2d 729 (5th Cir. 1965).......... 5,11
Singleton v. Jackson Municipal Separate School

District, 355 F.2d 865 (5th Cir. 1966)..........  3
Sweatt v. Painter, 339 U.S. 629 (1950)..............  19
United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) 4
United States v. Greenwood Municipal Separate School 

District, 406 F.2d 1086 (5th Cir. 1969) ........
United States v. Indianola Municipal Separate School 

District, 410 F.2d 626 (5th Cxr. 1969) ..........
U. S. and Danita Hampton v. Choctaw County Boardof Education, 5th Cir. No. 27297, June 26, 196

Statutes; : 1 • -•
28 U.S.C. § 1254(1) ................ .. 1
28 U.S.C. § 1343(3)! ........

342 U.S.C. § 1981.............................. * ‘ ‘
----- ' r 342 U.S.C. § 1983 ....................................

Other Authority;
United States Commission on Civil Rights FederalEnforcement of School Desegregation (September

11, 1969) ............................ .. * * 11.13,20

• •- ii -



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 
NO. 632

BEATRICE ALEXANDER, et al..
Petitioners,

v.
HOLMES COUNTY BOARD OF EDUCATION, 
et al.

On Writ Of Certiorari To The United States Court 
Of Appeals For The Fifth Circuit

BRIEF FOR PETITIONERS

Opinions Below
The order of the United States Court of Appeals for the 

Fifth Circuit under review is unreported and is set forth in 
Appendix E to the Petition. Earlier opinions of the Court of 
Appeals and of the United States District Court for the Southern 
District of Mississippi are unreported and are set forth in 
Appendices A through D to the Petition.

jurisdiction
jurisdiction of this Court is based upon 28 U.S.C. §1254(1) 

to review the Court of Appeals' order delaying the implementation



of school desegregation plans in 14 school districts in 
Mississippi.

The judgment of the United States Court of Appeals for 
the Fifth Circuit was entered August 28, 1969 (Appendix E to 
the Petition, p. 71a). Petitioners' petition for writ of 
certiorari was filed September 23, 1969 and granted October 
9, 1969.

Constitutional Provision involved 
This case involves the Equal Protection Clause of Section 

1 of the Fourteenth Amendment to the Constitution of the United 
States.

Questions Presented
1. Should this Court permit any further delay, for 

whatever reason, in implementing plans to convert dual school 
systems into unitary systems?

2. Should this Court require as a condition of effective 
relief that educationally sound plans developed by the United 
States Office of Education be implemented immediately pendente 
lite?

2



Statement

These cases test how much longer Negro schoolchildren 
in 14 substantially segregated school districts in Mississippi 
must wait to realize their right to an education in a unitary

1/ These cases were filed in the United States District Court 
for the Southern District of Mississippi between the years 
1963 and 1967. Jurisdiction was predicated upon 28 U.S.C. 
§1343(3) and 42 U.S.C. §§1981, 1983 and the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment. Plain­
tiffs in school desegregation cases in Mississippi often sue 
several school boards located within the same geographical area 
under one civil action number; the nine cases brought here by 
this petition involve fourteen separate school districts.

First, there are three cases wherein suit was brought by 
Negro schoolchildren against six separate school districts: 
Harris v. Yazoo Counts Board of Education, Yazoo City Board 
of Education and Holly Bluff Line consolidated School District? 
Alexander v. Holmes Countv Board of Education; Kiilingswortn 
v# The Enterprise consolidated School District and Quitman 
Consolidated School District.

Second, there are four cases wherein suit was brought by 
Negro schoolchildren against six school districts and the Unite:. 
States subsequently intervened: Hudson and United _ States v. 
Leake County School Board; Blackwell and United States v. 
Isseguena County Board of Education and Anguilla Line__gcns_g_li 
dated School District; Anderson and United States v. Canton 
Municipal Separate School District and Madison county School. 
District-; Barnhardt and United States v. Meridian separate 
School District.

Third, there are two cases which were filed by the United 
States wherein Negro schoolchildren subsequently intervened: 
United States and George Williams v. Wilkinson County Board 
of Education; United States and George Magee, Jr. v. North 
Pike Countv Consolidated School District.

This petition formally embraces only school desegregation 
suits involving private plaintiffs. But the disposition of 
this petition will govern an additional 16 suits involving 19 
school districts against whom the United States is the sole 
plaintiff in companion cases below.

3



school system decreed by this Court more than 15 years ago in
2/

Brown v. Board of Education.
For 10 years after Brown v. Board of Education, the public 

schools of Mississippi remained totally segregated. Although 
Mississippi state officials had initially experimented with 
open defiance to defeat this Court's ruling, see United States, 
v. Barnett, 330 F.2d 369 (5th Cir. 1963), they soon turned to 
less obvious —  and sometimes ingenious —  devices for delay.

A pupil placement law was passed, which established a 
labyrinth of administrative procedures to ensnare those Negro 
students hardy enough to attempt to desegregate white schools. 
For a season that worked. The first public school desegregation 
suits brought in federal court in Mississippi were dismissed 
for failure to exhaust administrative remedies under the Pupil 
Placement Law. So it was that while this Court, in 1964, was 
holding that "the time for mere 'deliberate speed' has run 
out" (Griffin v. School Board, 377 U.S. 218, 234 (1964)), not a 
single child in Mississippi attended an integrated school.

That year, the Court of Appeals reversed the district 
court's dismissal of the first school desegregation suits.
Evers v. Jackson Municipal Separate School District, 328 F.2d 
408 (5th Cir. 1964). Upon remand, the school boards and white 
intervenors delayed the trials with voluminous testimony as 
to the innate inferiority of Negroes as a rational basis for 
continued segregation. The district court, after further delay, 
entered findings of fact supporting the defendants' theories

2/ 347 U.S. 483 (1954)(Brown I); 349 U.S. 294 (1955) (Brown
II) •

4



of racial superiority, but held that it was compelled by the 
Court of Appeals to require a grade-a-year plan —  thus seeking 
to insure that the time for "deliberate speed" would run until 
1976. That decision was overturned in Singleton v. Jackson 
Municipal Separate School District, 348 F.2d 729 (5th Cir.
1965)(injunction pending appeal); 355 F.2d 865 (5th Cir. 1966).

The school boards involved in this litigation next turned 
to "freedom of choice" plans to delay real desegregation. Then 
came this Court's decision in Green v. County School Eoard of 
New Kent County. 391 U.S. 430 (1968). The petitioners moved 
the district court to require each respondent school board to 
adopt a new desegregation plan which "promises realistically 
to work, and promises realistically to work now" (Green, supra, 
391 U.S. at 439 (1968)(Emphasis Court's)). Petitioners were 
prepared to show that these freedom of choice plans did not 
work to disestablish the dual school systems-. Indeed, 
petitioners were prepared to show that the token results 
achieved by these plans were even less than the results held

5



3/ But the district court refused toinsufficient in Green, 
schedule an early hearing on petitioners' motions, thus allowing 
the 19G8-69 school year to start under these defective freedom 
Of choice plans.

3/ The extent of student desegregation in the school districts 
at bar is shown in the following table:
District Percentage of Negroes Percentage of Negroes

in All-Negro Schools in Predominantly
White Schools

1968-69* 1969-70** 1968-69* 1969-70**
(Projected) (Projected)

Anguilla 94.4% 96.1% 5.6% 3.9%
Canton 99.5% 99.9% 0.5% 0.1%
Enterprise 84% 16%
Holly Bluff 98.9% 1.1%
Holmes County 95.5% 4.5%
Leake County 97.1% 95.7% 2.9% 4.3%
Madison County 99.1% 99.1% 0.9% 0.9%
Meridian 91.4% 84.8% 8.6% 15.2%
North Pike County 99.2% 99.7% 0.8% 0.3%
Quitman 96.1% 3.9%
Sharkey-Issaquena 94.6% 93.6% 5.4% 6.4%
Wilkinson County 981% 97.3% 1.9% 2.7%
Yazoo 91.2% 8.8%
Yazoo County 93.3% 6.7%

* These figures are based upon the school districts’ reports 
to the district court.

** The projections are based for the most part upon the freedom 
of choice forms completed during the Spring of 1969, as 
compiled by the United States and submitted to the Court of 
Appeals.

6



Accordingly, petitioners moved the Court of Appeals for
summary reversal of the district court's refusal to grant
expeditious relief for the 1968-69 school year. On August 20,
1968, the Court of Appeals ordered the district court to
conduct hearings no later than November 4, 1968 and to provide
relief effective with the 1968-69 school year. Adams v.
Mathews, 403 F.2d 181 (5th Cir. 1968).

Upon remand, the district court consolidated these school
desegregation cases brought by the Negro plaintiffs with those
brought by the United States and conducted hearings, en banc,

4 /
starting in October, 1968. At these hearings, the respond­
ent school boards presented extended testimony to the effect 
that achievement test results justified the continued use of
free choice assignments and concomitant token integration of5/
white schools and perpetuation of all-Negro schools. Indeed,

4/ The consolidated cases proceeded under the caption United 
States v. Hinas County Board of Education and Alexander v. 
Holmes Countv Board cf Education. They embraced 19 districts 
against whom the United States was the sole plaintiff, plus 
the 14 districts at bar. See note 1, supra.
5/ This position was urged by Mississippi school districts 
and white parent intervenors in 1964 to retain totally segre­
gated schools. Lengthy expert testimony was presented and the 
district court entered findings of fact supporting the pro-^ 
position that Negroes were innately inferior; but the district 
court felt bound by Court of Appeals' rulings to deny defend­
ants' request that Brown v. Board of Education be overruled.
The defendants appealed and the Court of Appeals ordered an 
end to such efforts to justify segregation. Jackson Municipal. 
Separate School Districts v. Evers; Biloxi Municipal Separate 
School District v. Mason; and Leake County School Board v. 
Hudson, 357 F.2d 653 (5th Cir. 1966). The last case cited, 
Hudson, is the same case before the Court in this petition.

7



the cases were consolidated primarily to permit the school
boards to join in this "expert" testimony. The respondent
school boards also resisted any alteration of the free choice
plans on the ground that more than token integration would
be followed by withdrawal of white children from the public6/
schools and the proliferation of private schools.

The hearings dragged on into December, well past the
Court of Appeals' hearing deadline of November 4, 1968.
Thereafter, the district court waited until May 13, 1969 to
rule, notwithstanding the Court of Appeals had directed it
to treat the cases "as entitled to the highest priority"
and to provide relief effective with the 1968-69 school
year (403 F.2d at 188) . It approved freedom of choice plans

7/
for all the respondent school districts.

6/ Mississippi's first effort to retain segregated schools 
through tuition grant legislation was held unconstitutional 
on the ground that the legislation's purpose and effect was 
to perpetuate segregation. Coffey v. State Educational 
Commission, 296 F. Supp. 1389 (S.D. Miss., 1969)(3-judge court)-

The Mississippi legislature recently enacted a new tuition 
grant program, in the nature of student loans, to enable white 
students to attend private schools (House Bill No. 67). Also 
passed by the House of Representatives (under consideration by 
the Senate) is a bill which would grant up to $500 in credits 
toward Mississippi income taxes for all payments or donations 
to schools, "public or private."
2/ The opinion and orders of the district court are set forth 
in Appendix A to the Petition. The order in Alexander v.
Holmes County Board of Education is set forth at p. 20a and is 
representative of the orders entered in eight of these nine 
cases. The ninth order, entered in Killingsworth v. Enterprise 
Consolidated School District is set forth at p. 21a. It 
differed from the others in that it dismissed the petitioners' 
motion on the ground, later held erroneous by the Court of 
Appeals, that the petitioners had not explicitly authorized 
their attorney to file the motion.

8



Promptly thereafter, in June, 1969, the petitioners
and the United States moved the Court of Appeals for summary8/
reversal or expedited consideration of the cases. On June 
25, 1969, the Court of Appeals entered a 3.etter directive 
expediting consideration of the cases, see Appendix B to 
Petition, pp. 24a-27a.

On July 3, 1969, the court of Appeals held that the 
freedom of choice plans were not working to disestablish 
the dual school systems at bar and directed the district 
court to require from the school boards plans of desegrega­
tion other than freedom of choice, Appendix B to the Petition,
pp. 28a-37a. The Court found:

(a) that not a single white child attended 
a Negro school in any of the districts;

(b) that the percentage of Negro children 
attending white schools ranged from 
zero to 16 per cent;9/

(c) that token faculty integration continued 
in force; and,

(d) that school activities continued sub­
stantially segregated.

Quoting Adams v. Mathews, supra, the Court held that "as a 
matter of law, the existing plan fails to meet constitu­
tional standards as established in Green" (Appendix B to

8/ petitioners moved for summary reversal on June 10, 1969; 
the United States moved for summary reversal or, in the 
alternative, for expedited consideration on June 23, 1969.
9/ in the districts at bar, the percentages ranged from 
0.1% to 8.8%, with the lone exception of Meridian, which had 
a projected percentage of 15.2%. See note 3, supra.

9



Petition, p. 32a). The Court of Appeals directed that the 
respondent school boards be required to collaborate with the 
United States Office of Education in formulating new desegre­
gation plans effective for the 1969-70 school year (Appendix 
B to Petition, pp. 35a-36a). A precise timetable for the 
submission and implementation of the plans was established 
to protect petitioners' right to relief effective for the 
1969-70 school year (Appendix B to Petition, pp. 36a~37a).
The Court directed that the mandate^be issued forthwith
(Appendix B to Petition, p. 37a).

The collaboration with the Office of Education was 
required because the court "deem[ed] it appropriate for the 
Court to require these school boards to enlist the assistance 
of experts in education as well as desegregation? and to 
require the school boards to cooperate with them in the 
disestablishment of their dual school system" (Appendix B 
to Petition, p. 32a).

Collaboration with the Office of Education was especially 
appropriate because the Department of Health, Education and 
Welfare, pursuant to Title VI of the Civil Rights Act of 
1964, fixed minimum administrative standards to be applied 
in determining the qualifications of schools applying for 
federal financial aid. This administrative enforcement by 
HEW had, since 1964, produced a dramatic increase in the level 
of desegregation in the South. See United States Commission

10/ The respondent school boards filed a petition for 
rehearing en banc, which was denied on October 9, 1969.

10



on civil Rights, Federal Enforcement of School Desegregation, 
p. 31 (September 11, 1959). The courts accorded "great 
weight" to those minimum standards and established "a close 
correlation , , . between the judicial's standards in 
enforcing the national policy requiring desegregation of 
public schools and the executive department's standards in 
administering this policy" (Singleton v. Jackson Municipal 
Separate School District, 348 F.2d 729, 731 (5th Cir. 1965). 
This united action of the courts and the executive in 
advancing toward their common objective of school desegrega­
tion made it possible for the Court of Appeals to set the 
constitutional deadline for compliance at the 1969-70 school 
year. See Adams v. Mathews, supra; United States v. Greenwood 
Municipal Separate School District, 406 F.2d 1086 (5th Cir. 
1969); Henry v. Clarksdale Municipal Separate School District, 
409 F.2d 682 (5th Cir. 1969); United States v. Indianola 
Municipal Separate School District, 410 F.2d 626 (5th Cir. 
1969).

Accordingly, in its modified order of July 25, 1969, the 
Court of Appeals made clear that September 1, 1969 was to be 
the final date of implementation of plans "to immediately 
disestablish the dual school system[s] in question" (Appendix 
B to Petition, p. 39a).

On August 11, 1969, the deadline established for sub­
mission of the new desegregation plans, the Office of Education 
submitted plans of desegregation for the 33 school districts

11



t

to the district court.'W  Thirty of the 33 plans provided
for implementation of pairing and/or zoning plans of desegre­
gation to be effective with the commencement of the 1969-70 
school year.-7 In his transmittal letter of August 11 (See 
Appendix C to Petition, pp. 40a-42a), Dr. Anrig. the (then) 
Director of the Equal Educational Opportunities Division of 
the Office of Education —  the educational expert responsible 
for the final review of the plans -  stated to the district

H i o n Y o ^£ * ! £ > “  Theseplans fall loughly into 3 categorxes.
First some boards proposed the implementation of a 

"tracking" system, ^ ef ^ J ^ ud^ 3?gned1?ob? n r o f t ^  schools

students. The beards proposed t 1969-70 school yearto implement the plans, so that during the 1969 ™  school ye 
only grades 1-4 would be "desegregated1 through achievement 
testing, while freedom of choice remained m  ef.ect *n th 
grades not yet reached.

Second, some boards proposed geographic zoning or pairing
plans, with achievement test results being used for stude
assignments within each school. Thus, . , one forgrades in each school: one for bright students and one for
the others. _ __

Third, some boards proposed plans provided for continued 
of freedom of choice, but assuring that a substantial 

-percentage of the enrollment of formerly all-white schools 
would be Neqro through administrative assignments. These 
p?ais did n o r Providl for the assignment of whites to Negro
schools.
!•>/ The exceptions were for Hinds County, Holmes County and 
Meridian in which it was asserted that problems peculiar t 
those districts required postponing full implementation until 
the beginning of the 1970-71 school year.

12



court (Appendix C to Petition, p. 44a) :
I believe that each of the enclosed plans 
is educationally and administratively sound, 
both in terms of substance and in terms of 
timing. In the cases of Hinds County,
Holmes County and Meridian, the plans that 
we recommend provide for full implementation 
with the beginning of the 1970-71 school year.
The principal reasons for this delay are con­
struction, and the numbers of pupils and 
schools involved. In all other cases, the 
plans that we have prepared and that we 
recommend to the court provide for complete 
disestablishment of the dual school system 
at the beginning of the 1969-70 school year.

But on August 19, 1969, there occurred 11 a major retreat 
in the struggle to achieve meaningful school desegregation 
(Statement of the United States Commission on Civil Rights, 
p. 2, September 11, 1969).

On that day, the Secretary of the Department of Health, 
Education and Welfare sent a letter to the Chief Judge of 
the Court of Appeals and the judges of the district court 
requesting that the plans submitted by the Office of Education 
be withdrawn and that the 1969—70 deadline for implementation 
of plans be rescinded (Appendix C to Petition, p. 54a)• The 
Secretary did not dispute Dr. Anrig's view that the plans 
were "educationally and administratively sound." Instead, 
the Secretary noted that he had reviewed these plans "as the 
Cabinet officer of our Government charged with the ultimate 
responsibility for the education of the people of our Nation" 
(Appendix C to Petition, p. 52a). He continued (Appendix C

13



to Petition, p. 54a) :
In this came capacity, and bearing in mind 
the great trust reposed in me, together with 
the ultimate responsibility for the education 
of the people of our Nation, I am gravely con­
cerned that the time allowed for the develop­
ment of these terminal plans has been much too 
short for the educators of the Office of 
Education to develop terminal plans which can 
be implemented this year. The administrative 
and logistical difficulties which must be 
encountered and met in the terribly short 
space of time remaining must surely in my 
judgment produce chaos, confusion, and a 
catastrophic educational setback to the 135,700 
children, black and white alike, who must look 
to the 222 schools of these 33 Mississippi dis­
tricts for their only available educational 
opportunity.

The Secretary requested that the Office of Education and 
the respondent school boards be given until December 1, 1969 
to formulate new plans for desegregation, with implementation 
of those plans to be left to an unspecified future time 
(Appendix C to Petition, p. 52a).

The next day, August 20, 1969, the Court of Appeals 
entered an order acknowledging receipt of the Secretary's 
letter (Appendix C to Petition, p. 55a). August 21, 1969, 
the Department of Justice filed a motion in the Court of 
Appeals requesting modification of the Court's order of 
July 3, 1969, based upon the Secretary's letter, and 
petitioners filed their opposition thereto. The next day, 
the Court of Appeals orally granted leave to the district 
court "to receive, consider and hear the Government's motion 
for extension time until December 1, 1969" (see order of 
the Court of Appeals of August 28, 1969, Appendix E to Petition,

14



13/p. 75a). On August 25, 1969, the district court held a
hearing on the Government's request.

At the hearing, the Government presented testimony of 
two of Dr. Anrig's subordinates at the Office of Education. 
They testified "that the HEW plans in question are basically 
sound" (Opinion of the district court of August 26, 1969, 
Appendix D to petition, p. 64a; Tr. 96, 142, 173, 180-82). 
Moreover, they testified that these would likely be the plans 
submitted if the submission date was delayed until December 1,
1969 (Tr. 113-14, 122, 142) .

The delay was to be used for "the in depth peripheral 
studies such as curricular studies and financial studies 
required to implement these new plans" (Opinion of the dis­
trict court of August 26, 1969, Appendix D to Petition, pp. 
64a-65a). Moreover, the delay "would allow collaboration 
between the Office of Education and the defendant school 
districts to prepare for implementation of the terminal plans, 
thus resulting in better education and better community 
relations and consequently, an effective, workable desegrega­
tion of the defendant school districts and the conversion from 
a dual to a unitary system" (Appendix D to Petition, p. 65a).

Although the letter of the Secretary of the Department 
of Health, Education and Welfare had referred to "adminis­
trative and logistical difficulties" requiring delay (Appendix 
C to Petition, p. 54a), no particular difficulty with respect

13/ Circuit Judge Gevin indicated his disagreement with this 
procedure and voted to grant the respondent school boards' 
petition for rehearing en banc in order to review it.

15



to any particular school system was presented to, or found by,
the district court. Instead, the district court found only
the generalized and long anticipated need to redraw bus routes,
reassign teachers, convert classrooms, adjust curricula and
engage in "faculty and student preparation, including various
meetings and discussions and the solutions therefor" (Opinion
of the district court of August 26, 1S69, Appendix D to

14/
Petition, p. 65a).

The Government recommended to the district court, in 
addition to the delayed submission date of December 1, 1969, 
that each school district, in conjunction with the Office of 
Education, develop a program for this preparatory work and 
report to the Court no later than October 1, 1969.

The next day, August 26, 1969, the district court entered 
its findings of fact and conclusions of law, recommending that 
the Government's motion be granted (see Appendix D to Petition, 
pp. 56a-70a).

Two days later, on August 28, 1969, the Court of Appeals
granted the Government's request for delay (Appendix E to
Petition, pp. 71a-78a). Specifically, the court of Appeals
withdrew the firm implementation date of September 1, 196915/
"to immediately disestablish the dual school system[s]" and 
substituted in its place the date of December 1, 1969, for

14/ The petitioners' education expert testified that this 
type of in-service training program "is often much more helpful 
to people who are actually grappling with any problems, if there 
are any that occur, than something that may happen a year from 
now or for all they know, may not happen. So . . . there are 
educational advantages of that nature to implementing the plans 
immediately" (Transcript 221).
15/ Order of Court of Appeals of July 25, 1969 (Appendix B 
to Petition, pp. 38a-39a).- 16 -



submission of the Office of Education plans, with implementa­
tion to be left to a later date. All the Court of Appeals 
required of these plans for the school year 1969-70 was some 
significant action toward disestablishment of the dual school 

system" (Appendix E to Petition, p. 78a). it also required 
reports by October 1, 1969 of the school boards' programs to 
"prepare its faculty and staff for the conversion from the 
dual to the unitary system" (Appendix E to Petition, p. 77a).

On August 30, 1969, petitioners applied to Mr. Justice 
Black for an order vacating the Court of Appeals' suspension 
of its July 3rd order. On September 5, 1969, Mr. Justice 
Black denied the application, but stated that his disposition 
did not "comport with my ideas of what ought to be done in 
this case when it comes before the entire Court. I hope 
these applicants will present the issue to the full Court 
at the earliest possible opportunity" (Appendix F to Petition, 
p. 83a).

Petitioners' petition for writ of certiorari was filed
September 23, 1969, and granted by the Court on October 9.16/1969.

Respondents' cross—petition for writ of certiorari was filed October 8, 1969, and denied October 9, 1969.

17



Summary of Argument

The respondent school districts have had 15 years to solve 
the administrative problems which this Court foresaw might 
require the granting of "additional time" to those districts 
which made a "prompt and reasonable start toward full 
compliance" (Brown II, 349 U.S. at 300). But these districts 
have done nothing but resist. This resistance has not been 
in the form of open defiance? rather, it has been in the form 
of adopting the trappings of desegregation rather than the 
substance, and in implementing successful tactics for delay.
In this, they have been materially assisted by the district 
court. Now, for the first time, the Government has become 
an apologist for delay.

If the dual school systems in question are ever to be 
successfully disestablished, this court must make it 
unmistakably clear that there can be no more delays. But not 
only must the Court make the law of the Constitution clear 
beyond peradventure, it must also adapt federal equity procedure 
to that end: it must act to discourage recalcitrant school 
boards from seeking refuge from desegregation in protracted 
litigation. In other words, integration, not segregation, 
must be the status quo pendente lite.

18



Argument

I
The Time For Delay Of School 
Desegregation Has Run Out.

For the past 15 years, each of the respondent school dis­
tricts has been on notice that it would have to convert classrooms. 
redraw bus routes, and prepare its faculty and staff for the 
disestablishment of its dual school system. But for 15 years 
these school boards have done nothing but resist disestablish­
ment, while Negro school children have waited to realize what, 
but for Brown II, would have been their "personal and present" 
right to equal protection of the laws. Sweatt v. Painter, 339 
U.S. 629, 635 (1950); McLaurin v. Regents, 339 U.S. 637, 642 
(1950).

During roughly the first 10 years after Brown I, there was 
no litigation pending against these districts, and they did not 
see fit to take any steps on their own toward disestablishment 
of their dual systems. Once litigation began, they evaded dis­
establishment through one delaying tactic after another; from 
the pupil placement scheme through grade-a-year plans to "freedom 
of choice."

In this, they were materially aided by the district court, 
which repeatedly took unwarranted delays in hearing and determin­
ing the cases, approved obviously inadequate plans of desegrega­
tion, and went so far as to persistently harass civil rights

19



lawyers. In the latest round of litigation, following this 
Court’s decision in Green, supra, requiring plans which promise 
realistically to work "now” (391 U.S. at 439 (emphasis Court’s)), 
the district court refused to schedule an early hearing on peti­
tioners’ motions for the adoption of such plans, required the 
Court of Appeals to set a deadline for it for hearing the motions, 
failed to meet that deadline and then took another 5 months to 
uphold the same old, obviously inadequate freedom of choice plans,
insuring that no relief would be possible during the 1968-69

19/
school year.

In this sorry chronicle of footdragging by these school 
boards and the district court, the last thing that was needed was 
the federal government’s own initiative for delay. Up to August 
19, 1969, that had never occurred. But with the letter from the 
Secretary of the Department of Health, Education and Welfare of 
August 19, 1969, there occurred "a major retreat in the struggle 
to achieve meaningful school desegregation" (Statement of the 
United States Commission on Civil Rights, p. 2, September 11, 
1969) .

17/ See In re R. Jess Brown, 346 F. 2d 903 (5th Cir. 1965); Sand£^. 
77 Russell, 401 F.2d 24l"T b th Cir. 1968); United States Commission 
on Civil~Rights, Federal Enforcement of School Desegregation, 
pp. 39-41, 45-46 (September 11, 1969).
18/ That the district court is capable of moving swiftly is 
attested bv the fact that, with the prospects of remaining unre- 
^ersed substantial at last, the district court was able to produce 
a lengthy opinion in one day —  a devastating hurricane n°twith 
standing. See opinion of August 26, 1969, Appendix E to Petitio .
19/ For overall progress in school desegregation following this 
Court's decision in Green, supra, see Federal Enforcement_of 
School Desegregation, supra, p. 36, Chart A.

20



Although the Secretary's letter cited "administrative and 
logistical difficulties” requiring delay (Appendix C to Petition, 
p. 54a), the Government's witnesses before the district court did 
not cite a single specific difficulty with respect to any specific 
school system. Rather, they cited, and the district court found, 
only the long anticipated need to conduct "the in depth peripheral 
studies such as curricular studies and financial studies required 
to implement these new plans" (Opinion of the district court of 
August 26, 1969, Appendix D to Petition, pp. 64a-65a). Moreover, 
the district court found that the delay "would allow collaboration 
between the Office of Education and the defendant school districts 
to prepare for implementation of the terminal plan, thus result­
ing in better education and better community relations and conse­
quently, an effective, workable desegregation of the defendant 
school districts and the conversion from a dual to a unitary 
system" (ibid.).

The following significant colloquy occurred between the 
Assistant Attorney General in charge of the Civil Rights Division 
and the chief Government witness (Tr. 122):
_ BY MR. LEONARD:

Q. Mr. Jordan, I want to clarify to be sure the 
Court and Counsel all understand your position 
with respect to the delay. Should the Court 
grant a delay, am I clear that it is your posi­
tion that even with the delay that in all 
likelihood the plans will be very much similar 
and that these officials of the school boards 
should start to work with the Office of Educa­
tion now, in fact by October 1st, to prepare 
for the movement from a dual to a unitary 
system, is that your position?

21



A. That is correct.
Q. Thank you, that is all.

On or about October 1, 1969, the local school boards reported
to the district court on their progress toward devising programs 
to prepare faculty and staff for disestablishment of the dual 
systems. These reports indicate that the Government's initiativ 
for delay has not failed to produce the predictable effect of ^  
inspiring the local boards to adopt a more resistant position. 
Moreover, they show that the delay has produced nothing of educa 
tional significance. For example, the report of the Sharkey- 
Issaquena Line Consolidated School District gives the following 
"personalized In-Service Training Program for Staff and Faculty 
With Activities To Pectin October 16, 1969, To Prepare Them To
Work or Teach With Those of a Different Race :

District faculty meetings will be held for the 
purpose of discussing the problem. Teachers who have 
had experience in working in schools and classes 
where they were of the minority race will share experiences and ideas with their fellow teachers.

Small discussion group meetings will be held in 
each school within the district to afford staff 
members time and opportunities for free discussion 
and to ask questions. Teachers of both races w n l  
continue to work on preparation and ^ i s i o n  ° .courses of study. These activities will contribute 
to overcoming and removing language barriers among 
teachers, students and parents.

90/ For example, in its report to the Court of its program for 
libult? preparation? as required by the Court of Appeals' order 
of August Is? ?96?? see PP? 16-17, su^ra, the Yazoo County Board 
of Education stated that the policies which it ^ l ^ v e s  now aovern the elimination of its dual school system are. [F]irot, 
9 tSe quaJity of education offered to all of the children in 
i ^ d i ^ i c t ;  second, ... staff backgrounds and ““ itudes; and 
third, and most important, ... community mores and attitudes.

-  22



It is hard to see why these meetings could not have been 
conducted in the context of ongoing significant desegregation.
See note 14, suora.

This record therefore reveals that, notwithstanding the 
Solicitor General's statement to the Court that the law is clear 
that "school boards today are constitutionally obligated to devise 
and implement plans that will accomplish [disestablishment] now" 
(Memorandum for the United States, p. 4), the law is apparently 
not clear to the respondent school boards, the Department of 
Health, Education and Welfare, the Department of Justice, the 
district court and the Court of Appeals. This Court must there­
fore make unmistakably clear that there are to be no more delays:

No more delays to solve "administrative and 
logistical difficulties";

No more delays to promote "better community rela-21/
tions";

No more delays for "faculty and student prepara­
tion, including various meetings and discussions of 
the problems to be presented and the solutions therefor."

This Court should hold "that there is no longer the slightest 
excuse, reason, or justification for further postponement of the 
time when every public school system in the United States will be 
a unitary one" (Opinion in Chambers of Mr. Justice Black, Appendix 
F to Petition, p. 81a).

22/ As the Brief Amicus Curiae of the Lawyers' Committee for
Rights Under Law has pointed out, "better community rela­tions often means community resistance.

- 23



This is the only rule of law which will effectively dis­
establish the dual school systems: 15 years is enough to solve 
administrative problems.

This is the only rule of law which will effectively deal 
with the problem of evasion: 15 years is enough to tolerate 
defiance of the Constitution.

Petitioners are advertent to the statements ascribed to 
the Assistant Attorney General in charge of the Civil Rights 
Division that such a declaration by this Court would change 
nothing because "Somebody would have to enforce that order.
There just are not enough bodies and people [in the Civil Rights 
Division of the Justice Department] to enforce that kind of a 
decision" (see Appendix A to Brief Amicus Curiae of the 
Lawyers' Committee for Civil Rights Under Law).

There is no little irony in this, for the Government's 
initiative for delay has intensified the very resistance it 
professes to seek to overcome.

Community hostility to desegregation in these districts
has been placated only at an awful cost: the burdening of both
judicial and administrative enforcement, as local school boards
renew their efforts to clog the courts and the administrative

22/
process with excuses for delay. The possibilities for
fashioning such excuses are enormous, and so any judicial or

22/ For example, in U. S. and Danita Hampton v. Choctaw County 
Board of Education, 5th Cir. No. 27297, June 26, 1969, the 
Choctaw County, Alabama Board was ordered to abandon freedom of 
choice and to adopt a zoning plan. But following the Court of 
Appeals' decision below, the board moved the district court for 
additional time in which to develop a "workable desegregation 
plan," with interim reinstatement of freedom of choice, citing 
developments in "adjacent counties" (Choctaw County is on the 
Mississippi line). 24



administrative recognition of a justification for further delay 
is bound to inspire the wholesale production and assertion of 
these excuses. In the long view, delay does not obviate 
community hostility; it only creates more persistent and 
widespread demands for greater concessions. Merely by the 
assertion of these newly inspired claims for delay, adminis­
trative and judicial enforcement is impeded.

Petitioners do not doubt that the Civil Rights Division 
will be burdened in- attempting to turn back the flood of 
renewed litigation. So will the attorneys for the private 
plaintiffs, who represent Negro schoolchildren in hundreds 
of school desegregation cases throughout the South.

This Court can make administrative and judicial enforce­
ment of desegregation work:

M) by making unmistakably clear that the time for 
23/

delay has run out; and,
(2) by shifting the burden of litigation from Negro

achoolchildren to the school boards, requiring that integration, 
not segregation, be the status quo pendente lite, so that 
protracted litigation loses its attractiveness as a tactic
for delaying desegregation.

To the matter of shifting the burden of litigation
petitioners now turn.

23/ This will mean dispelling the notion that there is any 
longer a "transition period" during which federal courts or 
H.e Iw . may continue to grant delays of desegregation (See 
Opinion in Chambers of Mr. Justice Black, Appendix F to Petition.
p. 81a).

25



II
Effective Relief Requires The Immediate 

Implementation Of The Previously Submitted 
Office Of Education Plans Pendente Lite.

The opinion of Mr. Justice Black as Circuit Justice in this 
case states the principles we think ought to govern the Court in 
fashioning relief in these cases permanently and pendente liter

... I would hold then that there are no longer any 
justiciable issues in the question of making effective 
not only promptly but at once —  now —  orders suffi­
cient to vindicate the rights of any pupil in the 
United States who is effectively excluded from a 
public school on account of his race or color.

It has been 15 years since we declared in the two 
Brown cases that a law which prevents a child from 
going to a public school because of his color violates 
the Equal Protection Clause. As this record conclu­
sively shows, there are many places still in this 
country where the schools are either "white1 or Negro 
and not just schools for all children as the Constitu­
tion requires. In my opinion there is no reason why 
such a wholesale deprivation of constitutional rights 
should be tolerated another minute. ...

Applying these principles to the cases at hand, petitioners 
urge that the Court enter a decree which would order:

1. That the Court of Appeals order of August 28, 1969, which 
amended its order of July 3, 1969, as modified July 25, 1969, be 
reversed and vacated, and the order of July 3, 1969, be affirmed 
in part and amended to conform to the principles stated below;

2. That the Court of Appeals be directed to amend its 
mandate to the District Court for the Southern District of 
Mississippi in order to require th&t pending further litigation 
the desegregation plans developed by the United States Office of

-  26



Education and filed in the District Court be implemented imme­
diately by the school authorities in these cases (with exceptions 
noted in paragraph 3 below);

3. That in the cases of Holmes County Board of Education and 
the Meridian Separate School District, where the plans submitted 
by the United States Office of Education required delay of desegre­
gation until the 1970-71 term, the Court of Appeals forthwith 
proceed to enter a pendente lite order requiring immediate desegre­
gation under such plans as the Court may devise either with the 
assistance of the Office of Education or special masters to be
appointed by the Court of Appeals;

4. That the plans now ordered in accordance with 2 and 3 
above will remain in effect pending further litigation in the dis­
trict court on the parties1 objections, alternate proposals or 
other submissions, and will remain in effect pending appellate 
review of any amendments or alternate plans ordered by the dis­
trict court, except where amendments are agreed to by the parties;

5. That the Court award costs to petitioners and direct that
the courts below award them reasonable counsel fees.

We believe that the pendente lite immediate relief sought by 
petitioners is entirely justified in these cases. In this case 
the ultimate problem faced by the Court is the administration of 
pendente lite relief since it is inherent in the nature of the 
judicial process that one side or the other shall be protected 
in its position while litigation is going on toward the end of 
determining the parties' ultimate rights. What a court of equity

- 27



must ask Itself is whether the one party or the other should be 

put at this risk?
in these cases, first of all, the major evil to which the 

defendants might be subjected, should this Court decree immediate 
implementation of the H.B.W. plans, would be that they might pre­
vail either on their claims in the case of some boards that their 
new freedom of choice plans are valid notwithstanding Green v. 
o-.-ty school Board. 391 U.S. 430 (1968). or the claims in the 
cases of other boards that their plans for assigning pupkls on the 
basis of achievement or other tests might be found to satisfy the 
requirement of plans which completely disestablish the dual school 
system. Both proposition- seem entirely unlikely to be sustained 
considering the fact that freedom of choice has produced so little 
actual desegregation, and the fact that the school boards so 
recently urged in these cases that academic achievement tests 
proved the need for and rationality of racial segregation and the 
validity of freedom of choice plans resulting in such segregation.
It is true that the disestablishment and later reconstitution of 
the dual school system now operated in Mississippi would entail 
very considerable inconvenience. But this inconvenience must be 
assessed against the probability that defendants can actually 
prevail in view of Green. This probability is so low as to be 
virtually negligible. The practical difficulty of first following 
the H.E.W. plans and then reverting to freedom of choice or 
assignments by test scores is therefore virtually negligible and 
should be discounted by a court of equity.

28 -



This leaves several questions which the Court in the exercise 
of its equitable discretion must take into account in deciding 
whether the plaintiffs or the defendants are to suffer in the 
interval between the administration of relief at this time and 
the final adjudication of all claims. The first concerns the 
question whether the present plans are in all practical aspects 
the best feasible plans which could be devised. At this point 
the issue becomes whether the plans should be put into effect 
notwithstanding doubts as to infirmities of this practical
sort with the understanding that these infirmities might be 
corrected as time went on or whether, on the other hand, its 
putting into effect is to be delayed until such time as they 
shall be judged by this Court to be the best plans devisable by 
the wit of man. This question seems to answer itself, above 
all, for the reason that it lies in the nature of practical 
equitable relief that in any event, no matter how carefully a 
plan might be devised, from time to time a court of equity, 
either by its very nature or by the customary reservation of 
discretion to grant further relief at the foot of a decree, 
might desire to modify and mold relief to suit circumstances 
thatarise subsequent to the awarding of relief, or to answer 
difficulties which were not felt when the relief was awarded but 
which have subsequently made themselves apparent.

in putting into effect the H.E.W. plans, which are by far 
the best validated plans before this Court, the Court would be 
doing very little, if anything, more than any court of equity

29



is forced to do when. as in this case, it is ineluctably forced 
into the position of administering detailed relief, unless xt 
desires to endure the protracted frustration of constitutional
or other established legal rights.

It will be argued that the school boards have not had a full
opportunity to litigate their objections to the H.E.W. plans.
This is true. But the question is whether pending such lxtiga- 
tion these plans should be ordered into effect. They carry 
with them considerable validation, including testimony by 
government witnesses, as to their adequacy. Petitioners will 
file sufficient copies of the plans so that all members of the 
Court may have copies. The H.E.W. plans indicate how many pupils 
of each race will attend each school and it is apparent that sub­
stantial desegregation will result. In contrast, the school 
boards' plans leave the future of desegregation in each school 
district entirely nebulous and the degree of progress, if any, 
entirely unpredictable.

There remains the. question of the interruption of the school 
year. Here, too, there are extremely important values to balance 
by this Court. It is doubtless true, and petxtxoners here con­
cede, that the educational process, very narrowly considered, 
will be slightly delayed or impeded by the interruption of the 
school year for the purpose of bringing about a compliance with 
the judgment of this Court which was entered 15 years ago, and of 
bringing about the enjoyment by these petitioners of thexr rights 
which have been denied to an entire generation of school chxldrea

30 -



But in tailoring and molding its relief, a court of equity is 
surely empowered and even obligated to take into account the fact 
that there is an educational dimension of another sort, that what 
might be learned from this process is that at long last the con­
stitutional rights of American children —  white and colored —  
must be given effect. This is a court of equity. And it is a 
court which at the present juncture must, on its own, balance the 
factors leading to and detracting from the decision to administer 
relief pendente lite in favor of the present petitioners. Surely 
such a court in such a position may take into account the educa­
tional value just adverted to. On the practical level, it is not 
entirely clear how much difference it makes whether a change is 
made in September or in October in the total absence of any show­
ing in the present record beyond generalized assertions of 
difficulty. The decision of this Court ought to be not to deny 
the plainly established constitutional rights of these children 
on a conjectural basis, both qualitatively and quantitatively, 
but rather to insist upon their enforcement until contrary con­
siderations are found to justify a suspension of the processes 
of enforcement. The assumption up to now has been for 15 years 
that every difficulty, conceptual and factual, must be overcome 
before these children enjoy their constitutional rights. Peti­
tioners submit earnestly that the presumption from now on should 
be that those situated as these petitioners now are ought to enjoy 
their constitutional rights unless and until convincingly, and 
through all the processes of appeal, it is demonstrated and finall 
adjudicated that some weighty reason exists why they shall not.

- 31 -



in two of the cases (Meridian and Holmes County) the H.E.W. 
plans do not provide for immediate complete relief but embrace the 
philosophy of deliberate speed and provide for delay until further 
school construction is completed. We urge, for the reasons stated 
previously, that all such delays for solution of administrative 
obstacles to desegregation be rejected. Such delays urged by 
school districts or the Department of H.E.W. are no longer jus­
ticiable. In this situation, we urge that this Court remand the 
matter with directions that the experienced panel of the Court 
of Appeals which is hearing this matter order immediate desegre­
gation under plans to be devised with the assistance of H.E.W., 
if it is forthcoming, or without such aid if that is necessary,
by the use of either special masters selected by the court or

2A /experts provided by the petitioners.
Only such delays as are demanded by the time needed for the 

judicial process to function should be permitted. The more normal 
course of remanding this detail work to the district courts should 
be avoided in this instance because of the incredible history of 
delay and frustration of the Brown decision which the District 
Court for the Southern District of Mississippi has countenanced. 
The Court of Appeals itself has felt the need to fashion detailed 
decrees to deal with that reality.

24/ Where school authorities refused to provide expert assistance 
in developing desegregation arrangements Judge Bohanon accepted 
the offer of plaintiffs to furnish an expert educational panel.
See Dowell v. Board of Education of Oklahoma City Public^ Schools, 
244 F. supp. 971 (W.D. Okla. 1965), affirmed 375 F.2d 158 (10th 
Cir. 1967), cert, denied, 387 U.S. 931 (1967). Such expert assist 
ance will be provided by petitioners in these cases if needed.

32



We are now at the turning point in the history of school 
desegregation. Forceful and decisive action taken now by this 
Court can rally the lower courts and the executive to finish the 
process of school desegregation begun 15 years ago. Retreat at 
this critical juncture would pose a threat to the rule of law this
Nation could ill afford.

Fortunately, the task is amenable to judicial solution. What 
is needed is to excise from the law earlier-tolerated justifica­
tions for delay and to assert the traditional equity function of 
the federal courts in such a way as to discourage, once and for 
all, resort to protracted litigation as a safe haven for the dual
school system.

- 33 -

r



Conclusion

Petitioners pray that the judgment below be reversed 
and the relief prayed for herein be granted.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
NORMAN J. CHACHKIN 
MELVYN ZARR10 Columbus Circle 

New York, New York 10019
MELVYN R. LEVENTHAL 
REUBEN ANDERSON 
FRED L. BANKS, JR.538̂ . North Farish Street 

Jackson, Mississippi 39202
CHARLES L. BLACK, JR.

169 Bishop Street
New Haven, Connecticut 06511

Attorneys for Petitioners

34