Memorandum Brief in Response to Motion for Summary Reversal by the Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 
  

ROY LEE HARRIS, ET AL APPELLANTS 

Vv. District Court No. 1209 (W) 

THE YAZOO CITY MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL, 

WITH CONSOLIDATED CASES APPELLEES 

MOTION TO DISMISS 

  

MEMORANDUM BRIEF IN RESPONSE TO MOTION FOR 

SUMMARY REVERSAL BY THE PLAINTIFFS-APPELLANTS 

  

Campbell & Campbell 

Williams Building 

Yazoo City, Mississippi 

John C. Satterfield 

Post Office Box 466 

Yazoo City, Mississippi 

ATTORNEYS FOR APPELLEES 

Satterfield, Shell, Williams and Buford 

Post Office Box 1172 

Jackson, Mississippi 

OF COUNSEL 

 



  

Index 

Page No. 
  

MOTION TO DISMISS 1-2 

MEMORANDUM BRIEF IN RESPONSE TO MOTION FOR 

SUMMARY REVERSAL BY THE PLAINTIFFS-APPELLANTS 1-27 

I. THIS IS AN ATTEMPT BY ATTORNEYS FOR NOMINAL 

PLAINTIFFS TO OBTAIN AN IRREVOCABLE DECISION 

WITHOUT AN OPPORTUNITY FOR THE COURT TO 

REVIEW THE RECORD 1 

II. THE DISCRETION OF THIS COURT AND THE DISTRICT 

COURTS IS NOT DESTROYED BY STATISTICS 7 

III. THERE IS NO TRUE BASIS FOR MANY OF THE ALLEGA- 

TIONS OF PLAINTIFFS' COUNSEL IN THEIR MOTION 

FOR SUMMARY REVERSAL AND NO RECORD PRESENT TO 

CORRECT THESE ERRORS 14 

IV. REPLY TO THE MEMORANDUM FILED UPON MOTION FOR 

SUMMARY REVERSAL BY THE PLAINTIFFS 20 

V. DESEGREGATION FOLLOWED BY RESEGREGATION IS NOT 

THE OBJECTIVE OF THIS COURT. THE LASTING EFFECT 

IS THE ULTIMATE OBJECTIVE SOUGHT HERE 23 

 



  

Cases Cited 
  

Acree v. County Board of Education of Richmond 

County, Georgia, 399 F.24 151 

Adams v. Mathews, 403 F.2d 181 

Board of Public Instruction of Duval County, 

Florida wv. Braxton, 402 F.2d 900 

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 

98 L.Ed, 873 

Cooper v. Aaron, 338 U.S. 27, 3. L.Ed.24 1, 

78 S.Ct. 1397 

Dallas County v. Commercial Union Assurance Co., 

286 7.24 388 

Freeman v. Gould School District, 405 7.24 1153 

Goss v. Board of Education Knoxville, Tenn. 

406 P.24 1183 

Green v. American Tobacco Co., 391 r.24 97 

Green v. School Board of New Kent County, Virginia, 

391 U.S. 430, .20 L.,.B4.24 716, 88 S.Ct, 168° 

Hall v. St. Helena Parish School Board, 

5th Circuit (May 28, 1969) 

Lee v. Macon County Board of Education, 267 F.Supp 485 

Monroe v. Board of Commissioners of Jackson, Tenn., 

391 U.8, 450, 20 1.B4.24 733, 88 S.Ct. 1700 

Raney v. Board of Education of Gould School District, 

391 U.S. 443, 20 L.Pd.24 727, 88 S.Ct. 1697 

Standard Oil Company v. Standard Oil Company, 

252 7.24 65 

Taylor v. Cohen, 445 F.2d 277 

United States and Carr v. Montgomery County Board of 

Education, 37 Law Week 4461 (June 2, 1969) 

U.S.A. v. Cook County, 404 r.24 1125 

United States v. 88 Cases, 187 F.2d 967 

ii. 

Page No. 
  

10 

10 

23 

24 

17. 

20 

23 

21 

21 

24 

10 

21, 

22 

23 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 
  

ROY LEE HARRIS, ET AL APPELLANTS 

V. District Court No. 1209 (W) 

THE YAZOO CITY MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL, 

WITH CONSOLIDATED CASES APPELLEES 

MOTION TO DISMISS 
  

Now come the above named appellees, for the reasons hereinafter 

stated, and respectfully move the Court to dismiss the Motion for 

Summary Reversal in the above said action: 

I. 

This Court will not act upon a Motion for Summary Reversal 

which motion would rule upon the rights of litigants not now before 

the Court but who have filed notice of appeals and will be brought 

later before the Court in these consolidated cases through the 

orderly process of appeal. 

1x. 

The exhibits "A" through "L" to Motion for Summary Reversal 

were not provided to counsel for appellees as a part of the said 

Motion served on counsel, in violation of Rule 25 of the Federal 

Rules of Appellate Procedure. 

Til. 

This Court will not act upon an appeal and Motion for Summary 

Reversal of the decision of the District Court without having before 

it the record as designated by the parties to the suit. No such 

record is before the Court on this Motion. 

 



  

1Vv, 

There has been filed in the suit of United States of America 
  

v. Hinds County School Board, et als, Civil Action No. 4075, Jackson 
  

Division, an appeal by the plaintiffs. Notice of appeal was duly 

served upon the attorneys of record in said proceeding on Friday, 

June 13. By stipulation the evidence in said proceeding was made 

a part of the record in the above styled cause. The Court will not 

act upon a Motion for Summary Reversal of the above styled cause 

without having before it the record in said Cause No. 4075, United 

States District Court for the Southern District of Mississippi, 

Jackson Division, which, by stipulation, was made a part of the 

record herein. 

VV. 

Those grounds for dismissal set out in Response to Motion for 

Summary Reversal attached hereto and made a part hereof. 

Respectfully submitted, 

DIC te, 
mas H Campbell, Jr 

Campbell & Campbell 

Williams Building 

Yazoo City, Missigsippl 

  

    
  

A n C. Satterfiel 

Jats a and Buford 
V Post Office Box 466 

Yazoo City, Mississippi 

 



  

AFFIDAVIT BY COUNSEL OF RECORD 
  

STATE OF MISSISSIPPI 

COUNTY OF YAZOO 

Personally appeared before me, the undersigned authority 

in and for said County and State, T. H. Campbell, Jr. and John 

C. Satterfield who first being duly sworn state on oath that 

they are attorneys of record for the Yazoo City Municipal Se- 

parate School District, et al, parties to Civil Action No. 1209 

(W) pending in the United States District Court for the Southern 

District of Mississippi and now pending on appeal in the United 

States Court of Appeals for the Fifth Circuit. 

Affiants further state on oath that when they received the 

said Motion for Summary Reversal and the Memorandum in support 

thereof, they did not receive copies of any of the exhibits al- 

leged to be attached thereto, including but not limited to Ex- 

hibit "J" which is alleged to be "a compilation of the statis- 

tical data for each school district". The extent to which such 

compilation may or may not be correct is unknown to these affiants. 

  

  

  

SWORN TO and subscribed before me this the 18% day of June, 

a [Lf 7 Sl as 

NOTARY PUBLIC 
MY COMMISSION EXPIRES: 

1969. 

  

My Commission Expires Des. 16, 1972 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 
  

ROY LEE HARRIS, ET AL APPELLANTS 

Vv. 

THE YAZOO CITY MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL, 

WITH CONSOLIDATED CASES APPELLEES 

MEMORANDUM BRIEF IN RESPONSE TO MOTION FOR 

SUMMARY REVERSAL BY THE PLAINTIFFS-APPELLANTS 
  

I. 

THIS IS AN ATTEMPT BY ATTORNEYS FOR NOMINAL 

PLAINTIFFS TO OBTAIN AN IRREVOCABLE DECISION 

WITHOUT AN OPPORTUNITY FOR THE COURT TO 

REVIEW THE RECORD. 
  

Throughout the years we have noted the "psychological approach” 

of the attorneys for plaintiffs in cases of this nature. As an 

illustration, the case here (together with twenty-four other cases) 

was heard by Judges William Harold Cox, Dan M. Russell and Walter 

Nixon, all of the Southern District of Mississippi. Yet the motion 

refers on pages 1, 6 and 13 to "Judge Harold Cox". This is patently 

an attempt to mislead the Court of Appeals of the Fifth Circuit and 

to establish (without any foundation whatsoever) that one of the 

judges of the United States District Court for the Southern District 

of Mississippi has taken Scion contrary to the direction or admoni- 

tion of the Court of Appeals of the Fifth Circuit. 

The attorneys for the plaintiffs have very cleverly and astutely 

brought about what they now regard as an impasse. They have obtained 

the Jefferson decree which prevents any school official from attempt- 
  

ing to influence any child or parent so that any child would be sent 

 



  

to a school predominantly of the opposite race. Having obtained 

this provision of the Jefferson decree and holding this sword over 
  

the heads of all school officials, the same persons now say that 

because sufficient desegregation has not been obtained, "freedom of 

choice must be abandoned”. 

We challenge the good faith of the plaintiffs and particularly 

of the attorneys for the NAACP National Defense Fund when they (a) 

obtained such a provision preventing the officials' being able to 

bring about a reasonable mixing of the races and (b) thereupon take 

the position that "freedom of choice" should be abandoned because it 

has not brought about such mixing. The District judges in this and 

consolidated cases found as follows: 

Every school official who testified in every one of these cases 

before the Court testified convincingly before this Court that 

this provision of this model decree had interfered with a fair 

and just and proper operation of the freedom of choice plan in 

these schools. Yet, like Prometheus (chained to a rock) these 

schools are ordered by the Court to shoulder this very posi- 

tive and important duty of desegregating these schools while 

the Court denies them the right to counsel with and persuade 

parents to let their children enter a school predominantly of 

the opposite race. This Circuit has steadfastly refused to 

modify that provision in the model decree in any manner, or 

to any extent and considers such provision as an important 

matter of policy to be changed only by the United States 

Court of Appeals for this Circuit sitting en banc. 

This motion is an attempt to have the Courts take over the ad- 

ministration of thirty-three school districts, without an opportunity 

to review the differing facts affecting each district. 

The Court of Appeals of the Eighth Circuit stated on January 15, 

1969, in Freeman v. Gould Special School District of Lincoln County, 
  

Arkansas, 405 F.2d 1153, that: 
  

We do not think it within the province of the federal court 

to pass upon and decide the merits of all of the internal 

operative decisions of a school district. However, even if 

  

  

  

we were to pass upon the merits of this issue, we do not 

 



  

think that we could say that the Board was capricious or 

arbitrary in its attempt to resolve this internal dispute 

between the teachers and the principal of the school. There 

must be some degree of harmonious cooperation in school ad- 

ministration to insure an efficient use of public funds and 

a reasonably satisfactory school program. School boards are 

representatives of the people, and should have wide latitude 

and discretion in the operation of the school district, in- 

cluding employment and rehiring practices. Local autonomy 

must be maintained to allow continued democratic control of 

education as a primary state function, subject only to clearly 

enunciated legal and constitutional restrictions. 

  

  

  

  

Of course, it‘is recognized that the employment or reemployment 

of teachers should be carried on by the school districts without re- 

gard to impermissible racial factors resulting in discrimination 

under the Constitution of the United States. This is recognized in 

Freeman as follows: 

While the school boards in Arkansas have the right to decide 

whom they are going to employ or re-employ, the basis for fail- 

ing to re-employ must not be on impermissible constitutional 

grounds. Smith v. Board of Education of Morrilton School Dis- 

trict No. 32, 365 F.2d 770 (8 Cir. 1966) (racial discrimination); 

Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966), cert denied 385 

U.S. 1003, 87 S.Ct. 706, 17 L.B4.24 542 (racial discrimination); 

Shelton v. Tucker, supra, (a disclosure statute violative of 

the right of associational freedom, closely allied to freedom 

of speech). 

In Freeman the Court of Appeals affirmed the finding of the Dis- 

trict Court that the complainants, six Negro school teachers whose 

annual teaching contracts were not renewed, were not entitled to 

judicial relief because the failure to renew arose from a dispute 

with the principal of the school, without regard to impermissible 

constitutional requirements. This is a signal recognition of the 
  

fact that schools should be maintained and operated by educators 
  

rather than by judges. 
  

The judges of the Court of Appeals of the Fifth Circuit have 

recognized the fact that educational problems are not the subject 

of judicial review except to the extent that the same may violate 

a basic concept of constitutional rights. This is well stated in 

the concurring opinion of Circuit Judge Coleman in Board of Public 
  

ye 

 



  

Instruction of Duval County, Florida v. Braxton, 402 F.2d 900, 
  

August 29, 1968. This case was decided by a panel composed of 

Circuit Judges Wisdom and Coleman and District Judge Rubin. It in- 

volved actions taken by the above Board of Public Instruction, par- 

ticularly the "minority transfer policy" which had been adopted by 

such Board. It was a case in which .0045 per cent of the Negro 

students attended predominantly white schools and no whites attended 

predominantly Negro schools. The Board had "combined a geographical 

attendance zone system with freedom of choice.... In particular, 

the Board's policy of permitting minority to majority transfers 

pointed toward resegregation." The District judge ordered a modifi- 

cation of the transfer policy to the extent that it would be limited 

to those students who might transfer from a school where students of 

his race are a majority to any school within the system where students 

of his race are a minority. The Fifth Circuit affirmed. In his con- 

curring opinion Circuit Judge Coleman referred to Green and said: 

Significantly, the Supreme Court further said: "Moreover, 
whatever plan is adopted will require evaluation in practice, 
and the Court should retain jurisdiction until it is clear 
that state-imposed segregation has been completely removed." 

The Court then concluded, "If there are reasonably available 
other ways, such for illustration as zoning, promising 
speedier and more effective conversion to a unitary, non- 
racial school system, 'freedom of choice' must be held un- 
acceptable”. 

The problem inherent in a zoning plan is that people are free 
to move about as they see fit. Therefore, if they dislike the 
zone in which they are placed they will move to another. This 
often results in far more glaring segregation than that which 
existed prior to the inauguration of the plan. The end result 
of the zoning approach, if extensively exercised, is that large 
sections of the country may become a collection of zones or 
pockets, where only one race would be dominant. The National 

experience with the so-called ghettos in the large cities would 

indicate the undesirability of such an outcome.... 

  

  

  

  

  

  

 



  

Circuit Judge Coleman is not only a lawyer but he is also an 

historian. The following statement in his concurring opinion will 

(if not now, at least within the next twenty years) be recognized as 

the most searching and penetrating statement in the field of school 

administration which has been made since Brown I: 

Just as surely as this country could not remain half slave 

and half free we cannot long maintain an effective school 

system half managed by the States and half controlled by 

Federal officials, with the Courts trying to supervise them 

both. 

  

  

  

The statement of Circuit Judge Coleman is borne out by the find- 

ing of Circuit Judge Duffy of the United States Court of Appeals of 

the Seventh Circuit in U.S.A. v. Cook County, 404 F.24 1125, 1136, 
  

in his dissenting opinion. The facts stated by him were not contrary 

to the majority opinion. The application of numerous constitutional 

principles to such facts resulted in his dissent. Circuit Judge 

Duffy said: 

In 1948, the Coolidge School had an enrollment of 70% white. 

In 1956, Coolidge had become a predominantly Negro school 

with a student enrollment of 99% Negro. There is absolutely 

no evidence in this record that during this eight-year period, 

the School Board did anything to change the racial composition 

in the Coolidge School. The attendance boundaries for Coolidge 

in 1956 were identical with those which existed in 1948. It 

seems obvious that the failure to change boundaries in 1964 

could not and did not play any part in the Coolidge School 

becoming a 99% Negro school during the period from 1948 to 

1956. 

However, the majority opinion of the Court of Appeals of the 

Seventh Circuit recognized in Cook County the right and duty of the 
  

District Courts to determine the facts as presented to them by the 

parties litigant. It affirmed the action of the District Court below, 

saying: 

In the Brown, II case, Brown v. Board of Education, 349 U.S. 

294, at 300-301, 75 S.Ct. 753, at 756, 99 L.Ed. 1083 (1955), 

the Court said, that with respect to desegregating a school 

 



  

system, lower courts "may consider problems related to adminis- 

tration, arising from the physical condition of the school 
plant, the school transportation system, personnel, revision 

of school districts and attendance areas into compact units 

to achieve a system of determining admission to the public 

schools on a nonracial basis, and revision of local laws and 

regulations which may be necessary in solving the foregoing 

problems." 

There is no hard and fast rule that tells at what point de- 

segregation of a segregated district or school occurs. The 

court in Northcross said the "minimal requirements for non- 

racial schools are geographic zoning, according to the capacity 

and facilities of the buildings and admission to a school ac- 

cording to residence as a matter of right." 333 F.2d at 662. 

On the other hand, "The law does not require a maximum of 

racial mixing or striking a rational balance accurately re- 
flecting the racial composition of the community or the school 

population.” United States v. Jefferson County Board, 372 F.2d 

836, 847, n. 5 (5th Cir. 1966) aff'd en banc, 380 F.24 385 

(5th Cir.), cert. denied, Cado Parish School Board v. United 

States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Bd4.24 103 (1967). The 

district court's judgment here must be made upon a determina- 

  

  

  

  

  

tion whether defendants -- by what they have done since the 

beginning of the 1968-69 school year, under the July 8 and 

July 22, 1968, orders -- have shown a good faith performance, 
  

and whether the plans they may submit hold promise of future 

good faith performance toward achieving a non-racially struc- 

tured school system which is reasonably related to the objec- 

tive of the court's order. 

  

  

  

  

It is true, of course, that this Court admonished the three 

District judges here to commence a hearing in each case at the earli- 

est practicable time, no later than November 4, 1968. The three 

District judges not only followed this admonition but they commenced 

this consolidated hearing on October 7, 1968. Because of the many 

suits involved and the many litigants affected, the hearing extended 

for a long period of time. Under our system of justice, every person 

is entitled to be heard by the courts of our land. There can be no 

criticism of the judges of the District Courts here because they per- 

mitted the litigants to present testimony, then considered such tes- 

timony, and thereafter rendered their considered opinion thereon. 

It is a physical, mental and constitutional impossibility for 

courts of original jurisdiction to receive, consider and review 

 



  

evidence, permit the parties to present briefs on opposing sides, 

review such briefs and enter a decision in a limited period of 

minutes, hours or days. We respectfully submit that the judges of 

the District Courts here involved conformed, to the best of their 

ability and within the limitations of our Constitution, to the de- 

sire of this Court and to their desire (as well as the desire of 

those involved) to reach as soon as is reasonably possible a determi- 

nation of the rights of the thousands and hundreds of thousands of 

students and parents affected by these cases. 

It appears to us to be unseemly for attorneys to insist that 

our American form of judicial determination should be destroyed and 

that our appellate courts reach decisions and make determinations 

without an opportunity of reviewing the evidence introduced in accor- 

dance with our judicial procedures. What is asked by the movants is 

that there be entered judgments in these cases based, not upon the 

facts and the law as presented to the courts of our land, but upon 

what the attorneys (as advocates) say was presented. 

Il. 

THE DISCRETION OF THIS COURT AND THE DISTRICT 

COURTS IS NOT DESTROYED BY STATISTICS 
  

Although the schools of Yazoo City, Mississippi, are located 

within the area served by the Court of Appeals of the Fifth Circuit, 

the questions here affect all school children in the United States. 

Hence it is of great value to consider the decisions not only of the 

Court of Appeals of the Fifth Circuit but of the other Courts of Ap- 

peal, and, of course, of the Supreme Court of the United States. 

A study of the Motion for Summary Reversal reveals it is not 

only contrary to procedures followed consistently by the Court of 

Appeals of the Fifth Circuit, but is diametrically opposed to actions 

taken by other Courts of Appeal throughout the United States. 

“Fw 

 



  

An illustration is the decision of the United States Court of Appeals 

of the Sixth Circuit in Goss et al v. Board of Education, City of 
  

Knoxville, Tenn. (February 10, 1969), 406 F.2d 1183, in which that 
  

Court held: 

Preliminarily answering question I, it will be sufficient to 
say that the fact that there are in Knoxville some schools 

which are attended exclusively or predominantly by Negroes 

does not by itself establish that the defendant Board of 

Education is violating the constitutional rights of the 

school children of Knoxville. Deal v. Cincinnati Board of 

Bducation, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 

U.S. 847, 88 S.Ct. 39, 19 L.E4d.24 114 (1967); Mapp v. Bd. 

Of Education, 373 P.24 75, 78 (6th Cir. 1967). Neither 

does the fact that the faculties of some of the schools are 

exclusively Negro prove, by itself, violation of Brown. 

  

  

  

  

  

  

  

  

The movants would condemn any system, regardless of the true 

freedom of choice existing therein, unless it reaches a certain statis- 
  

tical level. The Courts of Appeal throughout the United States have 
  

declined to follow this position. In Goss, the Court of Appeals of 

the Sixth Circuit said: 

On the general subject of the progress of desegregation in the 

Knoxville schools, it is important to note that the Superinten- 

dent of Schools testified that any Negro can transfer out of a 

school in which his race is in the majority to a school at- 

tended by a majority of whites. This is in contrast to the 

freedom of choice or transfer plan condemned by the Supreme 

Court in Monroe v. Bd. of Commissioners, 391 U.S. 450, 88 S.Ct. 

1700, 20 L.Ed.2d 733 (1968) and Green v. County School Bd., 

391 U.S. 430, 88 S.Ct. 1689, 20 1L..Ed.24 716 (1968). 

The basic problem confronting the trustees of the school dis- 

tricts throughout the United States (and especially the South) is 

well stated by the Court of Appeals of the Sixth Circuit in Goss as 

follows: 

We do not believe it is for us or the District Judge to com- 

mand a school district to adopt any particular plan for com- 

plying with relevant law so long as its school authorities 

are, in good faith, employing and implementing plans that 

are consistent with fulfilling their total duty to all the 

student body and at the same time making meaningful progress 

in the area of desegregation. In Green v. County School Bd., 

 



  

391 U.S. at 439, 88 S.Ct. at 1695, the Supreme Court said: 

"There is no universal answer to complex problems of 

desegregation; there is obviously no one plan that will 

do the job in every case. The matter must be assessed 

in light of the circumstances present and the options 

available in each instance. It is incumbent upon the 

school board to establish that its proposed plan prom- 

ises meaningful and immediate progress toward dis- 

establishing state-imposed segregation.” 

Unless Mr. Justice Brennan's language in Green, supra, that: 

"School boards such as the respondent then operating 

state-compelled dual systems were nevertheless clearly 

charged with the affirmative duty to take whatever 

steps might be necessary to convert to a unitary system 

in which racial discrimination would be eliminated root 

and branch.” 391 U.S. at 437-438, 88 S.Ct. at 1694. 

means that somehow the Knoxville school authorities must pro- 

portionately spread its 15% Negro pupils among the 85% white 

school population, we consider that Knoxville is currently 

obeying the law. 
  

  

After discussing the percentages involved (which are very close 

to those now before the Court in a number of these cases and particu- 

larly the case in which this brief is filed), the Sixth Circuit ex- 

pressed its bewilderment with the phraseology utilized by Civil 

Rights activists and sometimes repeated by the courts, as follows: 

We are not sure that we clearly understand the precise intend- 

ment of the phrase "a unitary system in which racial discrimi- 

nation would be eliminated," but express our belief that 

Knoxville has a unitary system designed to eliminate racial 

discrimination. In Monroe v. Bd. of Commissioners, 380 F.2d 

955, 958 (6th Cir. 1967), we expressed our view that the end 

product of obedience to Brown I and II need not be different 

in the southern states, where there had been de jure segrega- 

tion, from that in northern states in which de facto discrimi- 

nation was a fortuity. Our observations in that regard were 

not found invalid by the Supreme Court's opinion reversing our 

Monroe decision. See Monroe v. Board of Commissioners, 391 

U.S. 450, 88 S.Ct. 1700, 20 L.BE4.22733 (1968). 

  

  

  

It develops that "what is sauce for the goose, is sauce for the 

gander". The parents of children attending the public schools of 

the United States have different ideas and different wishes. They 

desire to exercise their freedom in different ways under our 

 



  

Constitution. An illustration is the decision of the Court of Ap- 

peals of the Fourth Circuit in Taylor v. Cohen, 445 F.2d 277, which 
  

was decided on December 5, 1968. In this decision the Court stated 

the applicable rule as follows: 

HEW urges as an alternative defense the plaintiffs' lack of 

standing. Standing is one of "the most amorphour /concepts/ 
in the entire domain of public laws". It is not an absolute. 

It is a variable, closely related to the nature of the con- 
troversy and the relief sought. Parents of children attending 

public schools are vitally interested in every phase of the 

school system, including its finances and plan of assignment. 

Nevertheless, they do not have standing to seek judicial inter- 

ference with a school board's exercise of its discretionary 

power. On the other hand, parents do have standing to enjoin 

a board's unconstitutional action, whether it originates in 

the school board itself or is the product of pressure brought 

against the board by a government agency. Griffin v. School 

8d. of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 

L.Ed.2d 256 (1964). 

  

  

In their brief, the movants necessarily refer repeatedly to 

Adams v. Mathews, 403 F.2d 181, which included these cases with a 
  

total of forty-four cases from Louisiana, Mississippi, and Georgia. 

This involved motions to the same effect as the motion now pending 

before this Court. Such motions were denied. In denying these 

motions, this Court referred to Acree v. County Board of Education 
  

of Richmond County, Georgia, 399 F.2d 151 (1968 - Fifth Circ.), in 
  

which this Court stated the applicable rule to be as follows: 

This court is not adequately equipped for the trial, decision 

and hearing of original suits for injunction, it being drdi- 

narily a court without original jurisdiction. In extreme 

cases we have found it necessary to issue original injunction 

orders. See Meredith v. Fair, 5 Cir., 306 ».24 374, and 

United States v. Lynd, 5 Cir., 301 F.2d 818. The court does 

not find this to be an appropriate case for the issuance of 

an original injunction because of the state of the record 

now before us, and especially in view of the requirements 

recently enunciated by the Supreme Court in Green et al. v. 

County School Board of New Kent County, Virginia, et al, 391 

U.S. 430, 88 S.Ct. 1689, 20 L.Ed.24 716 decided May 17, 1968, 

Monroe et al. v. Board of Commissioners of the City of Jack- 

son, Tenn., et al., 391 U.S. 450, 88 S.Ct. 1700, 20 L.F4.24 

733, decided May 27, 1968, and Raney et al. v. Board of Edu- 

cation of The Gould School District, et al., 391 U.S. 443, 

88 S.Ct. 1697, 20 L.Ed.2d 727 decided May 27, 1968. 

  

  

  

-l0= 

 



  

In fact, the motion calls upon this Court to take action without 

having an opportunity to consider the testimony presented to the Dis- 

trict Court and without any record whatsoever before this Court which 

could be the basis of an impartial decision. 

Long ago it was said that "Haste makes waste". The defendants 

do not intend to attempt in any manner to delay the hearing of this 

cause. They did not ask that the hearing be continued beyond the 

date set by the judges of the District Court, they do not ask for 

any delay in the regular, proper course of judicial proceedings. 

They simply and only ask that this Court act when it has before it 

all of the facts which were presented to the United States District 

judges when the case was decided. This is a right which has been 

vested in every individual who is a citizen of the United States 

from the adoption of the Constitution to this date. It would be 

abrogated and destroyed if the present motion should be sustained. 

Tt would mean that our courts would act upon statements contained in 

briefs by attorneys without the opportunity of reviewing the record 

prepared and presented by litigants in accordance with the procedures 

set up in our judicial system, considered by courts of original 

jurisdiction, and then presented, upon proper appeal, to our appellate 

court. 

After a full and detailed hearing in all of these twenty-five 

cases (involving thirty-three school districts) the three District 

judges, who were acting in good faith and must be presumed by this 

Court to have so acted, found as follows: 

But a very careful examination of the witnesses and analysis 

of their testimony in these cases revealed to the Court not 

one instance where any colored parent, or colored child did 

not do exactly what they wanted to do in deciding as to the 

school which the colored child would attend. There are many 

  

  

  

  

  

Tn 

 



  

reasons (and very important reasons) why colored children 

have not sought to attend formerly all-white schools. The 

primary reason is that the vast majority of all schools at- 

tended by colored children qualify for the government sub- 

sidiary as "target schools.” They are provided by the govern- 

ment with free lunches, and even improved facilities and work- 

ing tools in their shops, because the majority of the parents 

in such schools are in low income brackets. A disruption of 

these benefits would be disastrous to those children who would 

be obliged to leave school and lose all educational advantages 

now available to them there. It is such facts and circum- 

stances which have caused the courts to wisely observe, time 

and again, that there is no easy and quick and ready-made 

cure for the past ills of state enforced segregation. The 

problem and its cure must yield to the facts and circumstances 

in each particular school case. The cure must not result in 

a destruction of the wholesome objective of the plan. It is 

a sorry and very strange principle of constitutional law which 

would foster by its application a catastrophic destruction of 

the right sought to be protected and enjoyed. 

There is nothing whatsoever set forth in the Motion for Summary 

Reversal which demonstrates that the finding of the three District 

judges here is without foundation in fact and is not supported by 

the evidence. 

One of the most important findings by these judges, based upen 

the evidence before them, is as follows: 

Well trained colored teachers in active service in formerly 

colored schools and in formerly white schools in this district 

have appeared before this Court and convincingly testified under 

oath as a matter of fact that freedom of choice was actually 

working in their schools; that perfect harmony and understand- 

ing existed in the school and that no danger to the school 

system lurked in the implementation of the freedom of choice 

plan, but that any kind of forced mixing of the races against 

the wishes of the involved parents and children (colored and 

white) would result in an absolute and complete destruction of 

the school and its system. That is likewise a fair analysis and 

characterization of the uncontradicted testimony of experienced 

expert witnesses who have spent their lives in school service 

in many other states. This testimony does not show that de- 

segregation is unpopular with some parents and some children, 

but does positively show that any rushed and random forced mix- 

ing applied for the sake of immediate mathematical statistics 

would literally destroy the school system for both races. In 

many instances where the ratio of colored people to white 

people is very high, the result would be not to create just 

schools, but to create predominantly colored schools, readily 

identifiable as such in every instance. The same corresponding 

result would follow in areas where the white population is very 

dense and few Negroes live. 

  

  

  

  

  

  

  

-l 

 



  

As to the Yazoo City Municipal Separate School District, there 

is no showing whatsoever in the record (which is not now before the 

Court) that any parent or child has complained that his or her con- 

stitutional rights have been violated in this proceeding. Those 

complaining before this Court are brought forward by the zealots 

and by eager agents who are representing organizations based outside 

of Yazoo City, Yazoo County, and the State of Mississippi. This is 

not an instance where individual rights have been affected. It is 

an instance in which representatives of organizations are acting be- 

cause they are paid to make such complaint, not by parents, not by 

students, but by funds the source of which is unknown and, perhaps, 

unknowable. 

The time has come in these United States that we should cease 

to do what was said about the ancient ostrich, which is to "stick 

our heads in the sand", or as is said, more colloquially, to "beat 

about the bush". These actions are generally and largely solicited 

by paid attorneys for propagandist organizations. They do not repre- 

sent the true wishes of either the parents or the children whose 

names are utilized because under pressure names were signed to a 

mimeographed or printed form authorizing attorneys (or attorneys 

chosen by such attorneys if they should Yenlai or remove from the 

jurisdiction) to proceed with the 1ielsation. The Constitution of 

the United States was written for the protection of its citizens. 

It was not written to be used as a vehicle for bringing about results 

desired by those who might be engaged in the business of the promo- 

tion of litigation whether they be supported by private individuals 

(not involved in the suit), by foundations, or by public subscrip- 

tions obtained after headlines and provocative articles in the 

public media. 

-13= 

 



  

In fact, the latest expression by the Court of Appeals for the 

Fifth Circuit on this question appears in Hall, in which the panel 

stated as follows: 

We do not abdicate our judicial role to statistics. 
  

It is true, as thereafter stated, that the Court will "listen" 

to statistics. This is reasonable and proper. Nevertheless, if 

this Court or any court of our land should abdicate its judicial 

role to statistics, justice would be lost in the United States of 

America. 

111. 

THERE IS NO TRUE BASIS FOR MANY OF THE ALLEGATIONS 

OF PLAINTIFFS' COUNSEL IN THEIR MOTION FOR SUMMARY 

REVERSAL AND NO RECORD PRESENT TO CORRECT THESE 

ERRORS 
  

We believe that this Court could not legally or morally sustain 

plaintiffs' Motion for Summary Reversal of the District Court with- 

out the evidence contained in the voluminous record made in the 

District Court. The attorneys for the plaintiffs in their brief 

refer to exhibits, which they have not supplied to any of the defen- 

dants (see affidavit Exhibit A hereto), and make generally erroneous 

statements attempting to convince this Court of the alleged failure 

of defendants' Jefferson plan of freedom of choice. 
  

We do not know, and cannot know until such exhibits to the 

motion are made available to us, whether the so-called Exhibit "J" 

thereto correctly sets forth this defendants’ statistics or not, or 

for what years or periods. 

Plaintiffs' statement on page 5 of their brief, paragraph bh), 

as to the number of Negro students in white schools is, as we know, 

incorrect. 

-llw- 

 



  

As to paragraph c), our district has achieved substantial 

faculty integration practically in that degree required under our 

Jefferson decree. 
  

The second paragraph a) incorrectly sets forth the evidence 

as to this district and many other districts in that our district 

made no admission that pairing or zoning was administratively sound 

and feasible. Pairing or zoning is possible, of course, but not 

administratively sound or feasible; in fact, it would be disastrous 

as shown by the record. 

The second paragraph b) is incorrect since we introduced posi- 

tive evidence of integration of athletic and extra-curricular activi- 

ties in this district. 

The second paragraph c) thereon would lead the Court to believe 

all of the districts had had full-fledged freedom of choice plans 

since 1965, thus having in five years under said plan accomplished 

little. Actually, most of the districts, in 1965, after the 1964 

Civil Rights Act, with the approval of this Court, immediately in 

good faith instituted freedom of choice in the first four grades of 

school; then in 1966, in the next four grades, and not until 1967 

all twelve grades. Certainly this was true in our district, since 

we patterned our plan voluntarily after the Court-imposed plan on 

the Jackson, Mississippi, Municipal School District and the District 

Court made no such finding as to our district in its opinion. 

Our evidence shows that our Jefferson decree plan will work and 
  

  

is working, as required by Green and recently Hall, and not just 
  

  

that it could work. The integration of our white schools under our 
  

voluntary plan from 1965 to 1967 worked and especially so since 

November, 1967, when we adopted the Jefferson decree. In 1967-1968 
  

w1B= 

 



  

our Negro students in formerly all white schools increased more than 

800% over 1966-1967, and in 1968-1969 increased 700% over 1967-1968. 

On top of this per our March, 1969, Cholce Period we will have an 

increase of approximately 150% in 1969-1970 over the numbers attend- 

ing formerly all white schools in 1968-1969. 

In fact the racial composition for Yazoo City High School for 

1969-1970 year per Choice Period is as follows: 

Total number of students attending school: 768 

Total number of white students attending: 669 

Total number of Negro students attending: 09 

Percentage of Negro students to total enrollment: 12.9% 

Percentage of Negro students to total enrollment 

by grades: 

Grade 9 8.7% 
Grade 10 16.5% 
Grade 11 11.6% 

Grade 12 14.3% 

OT
H 

© N
i 

o 
p+
) 

Thus we join issue with the statements set forth on page 5 of 

the Motion for Summary Reversal. These statements are without basis 

in fact and do not reflect the evidence in this case. There is no 

"double standard” for school desegregation in Mississippi as between 

the Northern District of Mississippi and the Southern District of 

Mississippi. The judges in both Districts are interested in and 

desire to follow the admonitions of the Supreme Court of the United 

States in Green and other cases. Each school district is governed 

by the particular facts applying thereto. 

But the most glaring error in the Motion for Summary Reversal 

is in its complete omission to set out or consider the additional 

findings of fact by the District Court, including: 

l. New and material issues not heretofore considered by this 

Court involving the educational merit of the various available plans, 

and the necessity for weighing all factors affecting the same. 

2. Evidence introduced as to the harmful psychological and 

educational effects of compulsory mixing in all ethnic groups. 

1G 

 



  

3. Evidence of reduced effectiveness in teaching widely 

disparate achievement groups in one classroom. 

4. The effect of temporary integration as opposed to lasting 

integration as shown by evidence. 

Additional findings of fact were made a part of the District 

Court's opinion of May 13, 1969, by motion of the defendants in 

Civil Action 4075, styled United States of America v. Hinds County 
  

Board of Education, et al, (consolidated with this litigation). 
  

These findings present issues not considered in Green, Raney, Monroe 
  

and Carry, and deal with the educational merits of the various roads 

to the constitutional goal. In pursuit of this goal, most school 

boards chose freedom of choice (or free transfer) plans as the appro- 

priate vehicle for the journey. Before freedom of choice plans 

came under attack in Green it was not necessary that school boards 

explain their preference for this plan over other plans seemingly 

more direct in arriving at results. Now that such an attack has 

been launched, evidence of the educational advantage of such plans 

as opposed to the educational harm to all students, black and white, 

of other plans involving enforced mixing was introduced and should 

be considered by this Court. Such evidence was not presented in 

Green (and its companion cases), yet an invitation for such evidence 

does appear in that decision. 

The additional findings of fact in the Hinds County case (con- 
  

solidated for purposes of this expert testimony with this case) deal 

  

l. "Of course, where other, more promising courses of action 
are open to the board, that may indicate a lack of good 
faith; and at the least it places a heavy burden upon the 
board to explain its preference for an apparently less 

effective method." Green v. School Board of Virginia, 

(etc.) 

  

  

  
  

-)7 

 



  

directly with these educational values and the record contains expert 

testimony to support these findings of fact. 

1. Expert testimony delineated the adverse psychological effect 

upon children who are involuntarily forced to associate with unlike 
  

ethnic groups. The evidence demonstrated that such mixing produces 

resentment, hostility, impaired motivation to learn, lowered achieve- 

ment and ethnic misidentification (particularly in younger children). 

2. Voluntary association with unlike ethnic groups was shown 
  

to be beneficial by expert testimony. Such associations could pro- 

mote achievement and motivation and reinforce the child's personality 

when voluntarily made. 

3. The difficulties and disadvantages of attempting to teach 

widely disparate achievement levels within the same classroom was 

developed by expert testimony. As opposed to compulsory or arbitrary 

pupil assignment, free choice plans were shown to permit whole schools 

to develop teaching methods and paces compatible with the achieve- 

ment levels localized at such school and permit parents and students 

to select schools better suited to the student's abilities. 

Resegregation due to any precipitous compulsory mixing plan was 

shown to be more pronounced than under slower voluntary plans by ex- 

pert opinion evidence and by the results of an independent, impartial 

survey of white parents conducted in several of the districts. With 

the premise that any "workable" plan must have real prospect for 

lasting effect, freedom of choice or voluntary plans were shown to 

be the only plans having such prospects. The advantages of inte- 

grated education would be largely illusory in a school district 

heavily raided by white private schools. 

We also definitely and specifically deny that the records show 

that "not a single school district has achieved more than token 

-18~ 

 



  

faculty integration". The only way this Court can determine the 

difference between the attorneys for the movants and the attorneys 

for the respondents is to have before it the record in this case. 

A review of the record will sustain our position and negate the 

position now taken by the attorneys for the movants before this 

Court. 

It is difficult, using "hindsight" (as distinguished from "fore- 

sight") to view the problem of schools in the United States of America 

and particularly Mississippi. It is true that fourteen or fifteen 

years have elapsed since Brown I. It is also true, however, that the 

Court of Appeals of the Fifth Circuit and other courts have recog- 

nized the necessity of proceeding with "all deliberate speed”. This 

"deliberate speed" is not a figment of the imagination of the school 

authorities. It is and was a statement and finding of the Supreme 

Court of the United States and of this Court of Appeals. 

We do not blame the attorneys for the plaintiffs herein for 

again and again referring to the number of years which have passed. 

On the other hand, we do ask this Court to consider the extent to 

which the Fifth Circuit Court of Appeals and other courts have followed 

the Supreme Court of the United States in determining that "all delib- 

erate speed" did not mean a reversal of educational policies within 

a few weeks, a few months, or a few years. Originally, the courts 

required two grades per year to be desegregated. Later the pace was 

quickened. The passage of time has been judicially recognized as 

reasonable and necessary. 

Again, we point out that the movants rely upon statistics alone. 

It would be a sad day in the history of American jurisprudence if 
  

the discretion of the courts and the rights of citizens became sub- 
  

servient to a bare statement of "statistics". This has been the 
  

-10= 

 



  

plea of the organizations representing the plaintiffs in many of 

these cases. This would abrogate the right of the Court to deter- 

mine what is within the broad limits of the Constitution of the 

United States. In fact, the Court of Appeals of the Fifth Circuit, 

acting through Chief Judge Brown, Circuit Judge Godbold, and Dis- 

trict Judge Cabot said, in Hall, "We do not abdicate our judicial 
  

role to statistics.” It is a fact, as properly it should be, that 
  

statistics are one of the elements to be considered by a judge exer- 

cising his discretion under the Constitution of the United States 

and for the benefit of its citizens. However, if this Court or any 

other court were to abdicate the judicial role to statistics, our 

system of justice in the United States would be destroyed. 

Hence we respectfully submit that statistics alone are not 
  

enough. We also respectfully submit that the changes required by 

the recent decisions of the Fifth Circuit (overruling many former 

decisions thereof) and the decision of the Supreme Court of the 

United States in Brown (overruling many former decisions thereof) 

permit public officials to experiment with that which will best 
  

carry out the constitutional requirements. We also respectfully 
  

submit that if such experimentation does not meet with the results 

desired by parties (as distinguished from educators) within a few 

days, months or years, this should not be abandoned unless it is 
  

shown there is no reasonable probability that the desired result will 
  

be obtained. 
  

IV. 

REPLY TO THE MEMORANDUM FILED UPON "MOTION 

FOR SUMMARY REVERSAL" BY THE PLAINTIFFS 
  

Complaint is made that there were consolidated twenty-five cases 

(affecting thirty-three school districts). We are somewhat at a 

2) 

 



  

loss to understand why the movants complain of this action. Certain- 

ly, it expedites the determination of twenty-five cases for them to 

be consolidated, and for the evidence therein to be heard consecu- 

tively. The fact is that the attorneys for these plaintiffs do not 
  

desire justice. They desire what they desire, regardless of the Con- 
  

stitution, regardless of due process of law, regardless of a reason- 
  

able and proper presentation to the Courts. 
  

Within the last few weeks there have been a plethora of decisions 

by different panels of the Court of Appeals of the Fifth Circuit. 

Also there has been a decision of the Supreme Court of the United 

States supplementing Green, Raney and Monroe. This is the case of 
  

United States and Carr v. Montgomery County Board of Education, re- 
  

ported in 37 Law Week 4461, which was rendered on June 2, 1969. The 

opinion was written by Mr. Justice Black and there was no dissent 

thereto. The subject matter of this opinion is best stated by quot- 

ing the first paragraph of the opinion therein rendered as follows: 

In this case the United States District Court at Montgomery, 

Alabama, ordered the local Montgomery County Board of Educa- 

tion to bring about a racial desegregation of the faculty and 

the staff of the local county school system. 289 F.Supp. 647 

(1968). Dissatisfied with the District Court's order, the 

board appealed. A panel of the Court of Appeals affirmed the 

District Court's order but, by a two to one vote, modified 

it in part, 400 P.24 1 (1968). A petition for rehearing en 

banc was denied by an evenly divided Court, six to six, 

thereby leaving standing the modifications in the District 

Court's order made by the panel. On petitions of the United 

States as intervenor in No. 798, and the individual plaintiffs 

in No. 997, we granted certiorari. 393 U.S. 1116 (1969). 

  

  

Tt will be noted that the opinion of the panel was by a vote of 

two to one, and that a petition for rehearing en banc was denied by 
  

an evenly divided Court, six to six. 
  

This case chiefly involved the matter of teacher desegregation 

but it also set forth basic principles supplementary to those an- 

nounced in Green, which are of importance here. 

=21~ 

 



  

The necessity of permitting boards of education throughout the 

United States to utilize "experimentation" in obtaining proper educa- 
  

tional facilities for all students, regardless of race, was recognized 

as follows: 

In so holding, the Court of Appeals made many arguments against 

rigid or inflexible orders in this kind of case. These argu- 

ments might possibly be more troublesome if we read the Dis- 

trict Court's order as being absolutely rigid and inflexible, 

as did the Court of Appeals. But after a careful consideration 

of the whole record we cannot believe that Judge Johnson had 

any such intention. During the four or five years that he 
held hearings and considered the problem before him, new 

orders, as previously shown, were issued annually and some 

times more often. On at least one occasion Judge Johnson, on 

his own motion, amended his outstanding order because a less 

stringent order for another district had been approved by the 

Court of Appeals. This was done in order not to inflict any 

possible injustice on the Montgomery school system. Indeed 

the record is filled with statements by Judge Johnson showing 

his full understanding of the fact that, as this Court also 

has recognized, in this field the way must always be left 

open for experimentation. 

  

  

  

  

  

  

  

  

  

Also, the position of the movants here is negated by the state- 

ment of the Supreme Court of the United States in Carr which quotes 

the position of the Department of Justice as follows: 

As the United States, petitioner in No. 798, recognizes in its 

brief, the District Court's order "is designed as a remedy for 

past racial assignment.... We do not, in other words, argue 

here that racially balanced faculties are constitutionally or 

legally required." Brief for the United States, at 13. 

  

  

  

It seems that the movants are not interested in public education. 

The effect upon the educational system is immaterial to them. The 

Supreme Court of the United States disagrees with this position and 

specifically so did in Carr as follows: 

Despite the fact that the individual plaintiffs in this case 

have with some reason argued that Judge Johnson should have 

gone farther to protect their rights than he did, we approve 

his order as he wrote it. This, we believe, is the best 

course we can take in the interest of the plaintiffs and the 

public school system of Alabama. 

  

  

  

‘Hence, this Court will consider not only the desires of the at- 

torneys for the plaintiffs, but it will give equal weight to the best 
  

interest of the public school system of Mississippi. 
  

Wy 4 1 

 



  

Vv. 

DESEGREGATION FOLLOWED BY RESEGREGATION IS NOT 

THE OBJECTIVE OF THIS COURT. THE LASTING EFFECT 

IS THE ULTIMATE OBJECTIVE SOUGHT HERE. 
  

The courts have always recognized that constitutional rights 

will not be sacrificed to violence, disorder or disagreements of 

any person, see particularly Cooper, Buchanan. The courts do not 
  

act upon apprehensions and possibilities. In Monroe the Supreme 

Court stated, "We are frankly told in the (school board's) brief 

that without the transfer option it is apprehended that white students 
  

will flee the school system altogether". The apprehension thus ex- 

pressed was necessarily disregarded by the court. 

Also in Lee, rendered by the three judge court on August 28, 

1968, it was reiterated that public officials cannot yield their 

constitutional duties "because of the possibility that white students 
  

will flee the public school system or that the public will discon- 

tinue its financial support of its public school systems”. 

Nevertheless the courts may consider the best evidence of what 

may be reasonably expected to occur in the future. Judges are 

neither seers nor soothsayers. Yet in Green the duty was placed 

upon the District Courts to weigh the plan administered or proposed 

"in the light of the facts at hand and in the light of any alterna- 
  

tives which may be shown to be as feasible and more promising in 
  

their effectiveness”. In that case further reference was made to 

the possibility of "more promising courses of action” which may be 
  

shown to be open to the board. 

The Supreme Court of the United States recognizes that the 

"inevitable consequence” which will follow action by school officials 

is the primary and basic consideration. Neither the Courts nor the 

hd A 

 



  

trustees of the school districts are concerned with the temporary 

situation. This is illustrated by the statement in Monroe as follows: 

While we ... indicated that "free transfer" plans under some 

circumstances might be valid, we explicitly stated that "no 

official transfer plan or provision of which racial sedgrega- 

tion is the inevitable consequence may stand under the 

Fourteenth Amendment.” Id., at 689, 10 L.Ed.24 at 636. 

  

  

It is very difficult to establish the reasonably anticipated 

results of future actions. Such results can best be ascertained by 

a completely objective independent and scientifically designed opinion 

poll or survey which determines the reasonably anticipated action of 

the parents of such students if integration is required by judicial 

action. 

When this record is before the Court in the orderly course of 

appeal, it will contain a scientific, objective and disinterested 

survey made by qualified experts to determine the actual result which 

may be reasonably expected if pairing or zoning were to be required 

in the Yazoo City Municipal Separate School District. This survey 

was made by Dr. Harold Knight and Dr. John D. Alcorn, members of 

the faculty of the University of Southern Mississippi and shown to 

be fully qualified in this field. It complied with all the require- 

ments of applicable cases, including Standard Oil Company v. Standard 
  

Oil Company, 252 F.2d 65 (CA 10th, 1958); United States v. 88 Cases, 
  

  

More or Less, etc., 187 F.2d 967 (CA 3rd, 1951); as well as Green Vv. 
  

  

American Tobacco Company, 391 F.2d 97 (CA 5th, 1968) and Dallas 
  

County v. Commercial Union Assurance Company, 286 F.2d 388 (CA 5th, 
  

1961). 

This is the best evidence available and was admitted both under 

the authority of the above cases and under the "best evidence rule”. 

It revealed that if there were a pairing of schools or the use of 

Dl 

 



  

geographic zoning on a basis which would approximate a racial balance 

of the students now enrolled in each of the schools (the evidence 

showed that the pattern of residence would very nearly bring about 

this result), the actual withdrawal of white students would result 

in student bodies composed of 93 per cent students of the Negro race 

and 7 per cent students of the white race. 

This will, of course, be fully developed when the matter is con- 

sidered by this Court in the due and orderly course of appeal. 

We are intrigued by the use of catch phrases which have, un- 

fortunately, been effective in the past. One illustration is the 

use of the term on page 3 of the Memorandum Brief of the phrase, 

"a moratorium upon constitutional rights". Another, on the same 

page, is a "double standard" for school desegregation. Another is 

the reference on page 13 to "defendant's smoke screen", and still 

another, the statement on the same page that the order of the Dis- 

trict Court "challenges the very foundations of our judicial system”. 

As a matter of fact, it would waste the time of this Court to 

quote the many statements by the Supreme Court of the United States 

that each school district has problems of its own and must be treated 

by the District Court as an entity. There is no such thing as a 

"double standard" involved in this or other cases. The fact that a 

different situation may exist in one school district as compared to 

another is a far cry from a "double standard". The reference to 

certain decisions by Judge Orma Smith of the United States District 

Court for the Northern District of Mississippi has no bearing upon 

the cases now before the Court because of the material differences 

in the facts which are shown in such cases. 

We do not quarrel with the position that the District Courts 

as well as the trustees of the school districts should and must use 

28. 

 



  

all speed that is consistent with providing reasonable and proper 

education for the students. We do not agree that, because a certain 

degree of mixing desired by parties is not reached within a limited 

period of time, this constitutes a "moratorium upon constitutional 

rights". Our position definitely is that the judges here, upon con- 

flicting evidence, have found that reasonable and proper steps have 

been taken in this School District and that constitutional rights 

are being preserved thereby. The District judges have expressly 

found that the Board of Trustees of this District are acting in good 

faith. There is no evidence to the contrary. No attempt has been 

made in the Motion for Summary Reversal and the Memorandum attached 

thereto to point out any fact which would justify this Court in up- 

setting the finding of the District judges in this case. 

In closing we call attention to Hall, et al v. St. Helena Parish 
  

School Board, et al, rendered by a panel of this Court on May 28, 1969,   

consisting of Chief Judge Brown, Circuit Judge Godbold, and District 

Judge Cabot, ‘There the Court considered cases which were before it 

at a previous time when the record was not available to the Court, 

and a motion similar to that here involved had been made by the appel- 

lants. This motion was overruled and the case came on for hearing 

in due course of judicial procedure. This involved twenty-nine 

school districts within the Western District of the United States 

Court for Louisiana and eight parishes within the District Court for 

the Eastern District of Louisiana. It also involved the Tangipahoa 

Parish School Board, which was an appellant from another decree in 

the Eastern District. The panel in Hall declined to grant the re- 

lief now asked in the consolidated cases here, as follows: 

We are urged by appellants to order on a plenary basis for 
all these school districts that the district court must reject 

26 

 



  

freedom of choice as an acceptable ingredient of any desegre- 

gation plan. Unquestionably as now constituted, administered 

and operating in these districts freedom of choice is not ef- 

fectual. The Supreme Court in Green recognized the general 

ineffectiveness of freedom of choice. But in that case, con- 

cerning only a single district having only two schools, the 

court declined to hold "that 'freedom of choice' can have no 

place in ... a plan" that provides effective relief, and 

  

  

recognized that there may be instances in which freedom of 
  

choice may serve as an effective device, and remanded to 
  

the district court with directions to require the board to 
  

formulate a new plan. 
  

We respectfully submit that 

should be denied and that, if so 

should be required to follow due 

to this Court the appeal and the 

pass with all facts before it. 

the Motion for Summary Reversal 

desired by them, the appellants 

and proper procedure in presenting 

record upon which this Court could 

Respectfully submitted, 

OQ) Gun, vi   

Thomas H. Campbell, Jr. 

Campbell & Campbell 

Williams Building 

Yazoo City, Mississippi    
  

  

//John C.    
Satterfield, 

Post Office Bo 

Yazoo City, 

Satterfiel — 
Sheld, 

166 
Mississippi 

Williams and Buford 

27 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that copies of the foregoing Memorandum Brief 

in Response to Motion for Summary Reversal by the Plaintiffs- 

Appellants were served on appellants on this 19th day of June, 1969, 

by mailing copies of same, postage prepaid, to their counsel of 

record at the last known address as follows: 

Melvyn R. Leventhal 

Reuben V. Anderson 

Fred L. Banks, Jr. 

538-1/2 North Farish Street 

Jackson, Mississippi 39202 

Jack Greenberg 

Jonathan Shapiro 

Norman Chachkin 

Suite 2030 

10 Columbus Circle 

New York, New York