Wallace v. Commonwealth of Virginia Petition for Writ of Certiorari and Motion to Advance

    (Smirt of tl|P Inttpfc States
October T erm, 1970 

No. 436

I n  the

B irdie Mae D avis, et al.,
Petitioners,

v .

B oard oe S chool Commissioners of M obile County, et al.

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

MOTION FOR LEAVE TO SUPPLEMENT 
PETITION FOR WRIT OF CERTIORARI

J ack Greenberg 
J ames M. N abrit, III 
M ichael D avidson 
Norman J. Chachkin  

10 Columbus Circle 
New York, New York 10019

V ernon Z. Crawford 
A lgernon J. Cooper 

1407 Davis Avenue 
Mobile, Alabama 36603

A nthony G. A msterdam
Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioners



I n  th e

iatpmm* (SJmtrt of tip HHniUb States
October T eem, 1970 

No. 436

B irdie Mae D avis, et al.,

v.
Petitioners,

B oard of S chool Commissioners of M obile County, et al.

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

MOTION FOR LEAVE TO SUPPLEMENT 
PETITION FOR WRIT OF CERTIORARI

Petitioners, by their attorneys respectfully move that 
they be permitted to amend or supplement their petition 
for writ of certiorari pending herein in order to request 
that the Court review the subsequent decisions of the 
Court of Appeals for the Fifth Circuit in this cause filed 
on August 4, 1970 and August 28, 1970. The August 4, 
1970 order recited that the Court was amending its order 
of June 8, 1970:

This opinion and order amends and supplements 
our decision and order of June 8, 1970, and together 
they shall be considered the final order on this appeal 
for mandate and certiorari purposes.

A copy of the August 4, 1970 opinion and order has already 
been made available to this Court as it is printed as an



2

Appendix to the Brief In Opposition to Certiorari and 
also as an Appendix to the Memorandum of the United 
States.

The order entered August 28, 1970 further amends the 
orders of the Fifth Circuit. A copy of the August 28th 
order is appended hereto, infra.

It is submitted that neither of these recent Fifth Circuit 
orders makes any substantial change in the issue presented 
for review in this case. The matter is entirely technical 
and the purpose of this motion is merely to insure that 
the most recent proceedings are technically brought before 
this Court.

Respectfully submitted,

J ack Geeexbebg 
J ames M. Nabbit, III 
M ichael D avidsox 
Noemax J. Chachkix  

10 Columbus Circle 
New York, New York 10019

V eexox Z. Ceaweoed 
A lgebxox J. Coopee 

1407 Davis Avenue 
Mobile, Alabama 36603

A xth o x y  G. A mstebdam

Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioners



3

Certificate of Service

I hereby certify that on the 18th day of September, 1970, 
I served the foregoing motion on the parties by mailing a 
copy to each of the attorneys named below by United States 
air mail, special delivery, postag*e prepaid. All parties 
required to be served have been served.

Abram L. Philips, Jr.
Palmer Pillans 
George Wood
510 Van Antwerp Building 
Mobile, Alabama 36602

Samuel L. Stockman
951 Government Street, Room 112
Mobile, Alabama 36604

Honorable Erwin N. Griswold 
Solicitor General of the United States 
Department of Justice 
Washington, D. C.

Pierre Pelham 
P. O. Bos 291 
Mobile, Alabama 36602



APPENDIX



la

Order of Court of Appeals

(Dated August 28, 1970)

Ik the U kited States Court of A ppeals 

F or the F ieth Circuit 

No. 29,332

B irdie M ae D avis, et al.,

Plaintiff s-Appellants-Cr oss- 
Appellees,

and

U hited States oe A merica, etc.,

Plaintiff -Intervenor- Appellants- 
Cross-Appellees,

v.

B oard op School Commissiokers of 
M obile. Coukty, et a h ,

Defendants-Appellees-Cross-
Appellants,

and

T wila F razier, et al.,

Interveners-Appellees.

appeals prom the ukited states district court for the
SO U TH E R K  DISTRICT OF ALABAM A

(August 28, 1970)

Before B ell, A iksworth, and Godbold, Circuit Judges.



2a

Order of Court of Appeals

B y the Court :—

This Court mandated a plan of pupil assignment for 
the Mobile school district in its order of June 8, 1970. 
This plan was modified by the district court in its order 
dated July 13, 1970. The district court further modified 
the plan in an order dated July 30, 1970. On August 4, 
1970, we substantially affirmed the modifications made in 
the assignment plan by the July 13, 1970 order of the dis­
trict court. We did not have the changes embraced in the 
July 30, 1970 order before us at the time. Plain tiff s-ap- 
pellants have now appealed from the July 30, 1970 order.

The July 30, 1970 order makes changes in the attendance 
zones of 32 separate schools. Some of the changes had no 
effect from the standpoint of desegregation. Others dimin­
ished the degree of desegregation accomplished in the prior 
orders of this court and the district court. Most of the 
changes can be affirmed on the basis of efficient school 
administration and because there is no claim of a racially 
discriminatory purpose. It is clear that some of the other 
changes cannot be affirmed and that time is of the essence 
in resolving the controversy which has arisen over the 
July 30, 1970 changes in light of the short time before 
school is to commence in Mobile.

The court has considered the motion for summary rever­
sal, the memoranda in support of and opposition thereto, 
and in addition, a pre-hearing conference with counsel has 
been conducted by Judge Bell for the court pursuant to 
Rule 33, FRAP. After due consideration, the appeal is 
terminated on the following basis:

(1) The middle school and high school zone lines shall 
be the same as those set forth in the July 13, 1970 
order of the district court.



3a

Order of Court of Appeals

(2) The elementary school zones shall be modified as 
follows:
(a) Palmer and Glendale schools shall be paired.

(b) Council and Leinkauf schools shall be paired.

(c) The area of the Whitley zone as described in 
the July 30, 1970 order of the district court 
that lies west of Wilson Avenue shall become 
a part of the Chicasaw zone.

(d) The area in the Westlawn zone as described 
in the July 30, 1970 order of the district court 
that lies north of Dauphin Street shall become 
part of the Old Shell Road school zone.

(3) Counsel for the school board agrees with counsel 
for plaintiffs-appellants that they will confer and 
make facts available regarding desegregation of 
the school system staffs.

(4) Students who refuse to attend the schools to which 
they are assigned by the school board under the 
order of the district court shall not be permitted 
to participate in any school activities, including 
the taking of examinations and shall not receive 
grades or credit.

(5) Henceforth, any time the school board desires to 
have changes in zone lines made, it shall give 
reasonable notice to the parties.

The order of the district court of July 30, 1970 is in all 
other respects A ffirmed.

It Is So Ordered.



MEILEN PRESS INC. —  N, Y. C. 21