Davis v. East Baton Rouge Parish School Board Brief for Appellants

    I k  th e

Ifcuteb States (Enurt nf Appals
*

F oe th e  F if t h  C ircuit 

No, 23,116

Clifford E ugene D avis, J r ., et al.,
Appellants,

—v.—

E ast B aton R ouge P arish  S chool B oard, et al.,

Appellees.

appeal from  th e  united  states district court

FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLANTS

J ack  Greenberg

N orman  A m aker

J ames M. N abrit, III 
10 Columbus Circle 
New York, N. Y. 10019

A. P. T ureaud

1821 Orleans Avenue 
New Orleans 16, Louisiana

J o h n n ie  J ones

530 South 13th Street 
Baton Rouge 2, Louisiana

Attorneys for Appellants
R obert B elton 

Of Counsel



I N D E X

Statement of the Case ...................... - ............................. 1

Proceedings Prior to the Present Appeal ........... 2

Statement of Facts ............................. ............................  8

Composition of the East Baton Ronge School 
System...........................................................................  8

Initial Assignments .................-..................................  10

Practice Regarding Teachers and Other School 
Personnel ...................................................................... 11

School Transportation System .....    11

The Board’s Practices and Procedures Under 
1963 Plan ...................................................................... 12

Specifications of Error ......................................................  14

A r g u m e n t

I. The Plan Submitted and Approved by the 
Court Below Fails to Meet Current Standards 15

A. Current Standards........................................  15

B. Inadequacy of the Present Plan ............... 16

1. Racial Assignments Are Maintained .... 16

2. The Notice Provision Is Inadequate .... 18

3. The Plan Fails to Provide for Deseg­
regated School Transportation ...........  20

4. The Plan Fails to Provide for Faculty 
Desegregation

PAGE

21



11

II. Even if the Plan in the Instant Case Meets 
All of the Current Standards of a Free Choice 
Plan, the Evidence Before This Court Shows 
That a Free Choice Plan Is Not Adequate to 
Desegregate the Segregated Schools Under 
the Jurisdiction of the East Baton Rouge 
Parish School Board ........................................... 22

III. The Court Below Erred in Refusing to Con­
sider Evidence Which Could Show That a 
Freedom of Choice Plan Is Inadequate to 
Desegregate the Schools Under the Jurisdic­
tion of the East Baton Rouge Parish School

PAGE

B oard...................................................................... 24

Co n c l u s io n ........................................................................................  27

Certificate of Service......................................................... - 28

T able of C ases

Armstrong v. Board of Education of City of Birming­
ham, 333 F.2d 47 (5th Cir. 1964) ............................... 3

Augustus v. Board of Public Instruction of Escambia 
County, 306 F.2d 862 (5th Cir. 1962) ...................17,20

Bell v. School Board of Staunton, Va., 249 F. Supp.
249 (W.D. Va. 1966) .............. ........... ..... .................. 23,25

Bradley v. The School Board of Richmond, 345 F.2d
310 (4th Cir. 1965) .............. ........... ....... ................ 15,18,22

Bradley v. The School Board of Richmond, 382 U.S.
103 (1965) ...... .................. ....... ....................................... 21

Brown v. Board of Education, 349 U.S. 294 (1955) 2, 23, 25
Brown v. County School Board, 245 F. Supp. 549 ____ 17
Buckner v. County School Board, 332 F.2d 452 (4th 

Cir. 1964) 18



XU

Calhoun v. Latimer, 321 F.2d 302 ......................... ....17,26
Cooper v. Aaron, 358 U.S. 1 (1958) ......... -................... - 23

Davis v. Baton Rouge Parish School Board, 214 F. 
Supp. 624 (E.D. La. 1963), 219 F. Supp. 876 (E.D.
La. 1963) .......................................................................... 2

Davis v. Board of Commissioners, 333 F.2d 53 (5th 
Cir. 1964) ........................................................................ 3

East Baton Rouge County School Board v. Davis,
289 F.2d 380 (5th Cir. 1961), cert, denied 368 U.S.
831 (1961) ............................................................................  2

Franklin v. School Board of Giles County, No. 10,214,
4th Cir.................................................................................  21

Goss v. Board of Education, 373 U.S. 683 (1963) .......  23
Glynn County Board of Education v. Gibson, 333 F.2d 

55 (5th Cir. 1964) .............................................................  3

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) ...........16, 21
Kier v. County School Board, 249 F. Supp. 239 (W.D.

Va. 1966) ............................................................................ 21

Lockett v. Board of Education of Muscogee County,
342 F.2d 225 (5th Cir. 1965) ...................3, 6, 7,17, 20, 24

Nesbit v. Statesville City Board of Education, 345 
F.2d 333 (4th Cir. 1965) ......................................  18

Powell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1965) ...........................................   21

Price v. Denison Independent School Board, 348 F.2d 
1010 (5th Cir. 1965)

PAGE

16



IV

Rogers v. Paul, 382 U.S. 198 (1965) ..............................  21
Ross v. Dyer, 312 F.2d 191 (5th Cir. 1963) ................... 25

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865 (5th Cir. 1966) ........ ...... 15,16,21,22

Wheeler v. Durham City School Board, 346 F.2d 768 
(4th Cir. 1965) ........................................... ................ . 18

PAGE

Oth er  A uthorities

General Statement of Policies Under Title VI of the 
Civil Rights Act of 1964, U.S. Department of Health 
Education and Welfare, Office of Education, April,
1965 ......-..........................................................................16,18

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act of 
1964, U.S. Department of Health, Education and 
Welfare, Office of Education, March 1966 ................... 16



I n th e

llmti'h States (tort a! Appeals
F ob th e  F if t h  C iectjit

No. 23,116

Clifford E ugene D avis, J k., et al.,
Appellants,

_ v -

E ast B aton R ouge P arish  S chool B oard, et al.,

Appellees.

APPE A L FROM  T H E  U N ITED  STATES DISTRICT COURT 

FOR T H E  EASTERN  DISTRICT OF LO U ISIAN A

BRIEF FOR APPELLANTS

Statement of the Case

Appellants, the plaintiffs below, are appealing from an 
order of the United States District Court for the Eastern 
District of Louisiana, entered by Honorable E. Gordon 
West on July 15, 1965, approving the defendants present 
desegregation plan. This case involves the adequacy of the 
present plan for racial desegregation of the public schools 
in East Baton Rouge Parish, Louisiana.



2

Proceedings Prior to the Present Appeal

Suit by Negro persons in East Baton Rouge Parish, 
Louisiana, was begun in 1956.1

On July 18, 1963, the court below entered an order adopt­
ing and approving, with certain modifications, a plan sub­
mitted by the defendants pursuant to a previous order.2 
Under the plan, all existing school assignments which were 
based on race were to remain the same. The School Board 
was ordered to mail notices not later than July 19, 1963 to 
all students, Negro and white, who would be in the twelfth 
grade during the 1963-64 school year advising them that 
they could apply for transfer and reassignment to the 
twelfth grade of any other school of their choice. The op­
tion to transfer had to be exercised during a ten (10) day 
period, from July 29, 1963 through August 7, 1963. The 
plan specified eight criteria3 the School Board could con­

1 On May 25, 1960, an order was entered enjoining the defendant, East 
Baton Rouge School Board, from maintaining a segregated school system 
and to make necessary arrangements for the admission of all children to 
schools under its jurisdiction as required by Brown v. Board of Education, 
349 U.S. 294. The order was entered more than four years after the date 
on which the complaint was filed. The 1960 order was affirmed by this 
Court in 1961 in East Baton Rouge Parish School Board v. Davis, 289 
F.2d 380 (5th Cir. 1961), cert, denied 368 U.S. 831 (1961). On January 
22, 1962, no steps having been taken by the School Board to implement 
the 1960 district court order, plaintiffs filed a motion for further relief, 
which was filed almost eight years after the Brown decision. No attempt 
will be made to detail the long series o f legal maneuvers by the School 
Board which finally resulted in their submitting a desegregation plan. 
Some indication of the background is found in district court opinions in 
Davis v. East Baton Rouge Parish School Board, reported at 214 F. Supp. 
624 (E.D. La. 1963) and 219 F. Supp. 876 (E.D. La. 1963).

2 The order requiring the School Board to submit a plan is reported in 
Davis v. East Baton 'Rouge Parish School Board, 214 F. Supp. 624 (E.D. 
La. 1963). The order approving the plan is reported in Davis v. East 
Baton Rouge Parish School Board, 214 F. Supp. 624 (E.D. La. 1963).

3 The features which would most impede desegregation by transfer in­
cluded the Board being able to consider: (1) the scholastic record,
ability and aptitude of the student desiring transfer in regard to the



sider in granting or denying the transfer. Transfers were 
to be made according to procedures currently in general 
use by the East Baton Rouge Parish School Board. The 
plan had a procedure for administrative review which pro­
vided that if a transfer was denied and the parent wished 
to make an objection, such objection was to be filed in writ­
ing with the Superintendent of Schools by August 27, 1963 
and a conference could be requested. Conferences were to 
be held between August 27-30, 1963. In the absence of a 
request for a conference, it was to be conclusively presumed 
that the applicant had no objection to the action taken by 
the Board. The order then established a downward progres­
sion of desegregation at the rate of one grade per year 
and the same administrative procedures mentioned above 
were to be followed in subsequent years. The court then 
retained jurisdiction for the entire period of transition 
(R. 4-9).

On April 19,1965, after the plan had been in operation 
for almost two years, the plaintiffs filed two motions: a 
motion for further relief and a motion to add additional 
parties-defendants. The motion for further relief sought a 
modification of the July 18, 1963, order alleging that re­
cently decided cases4 requiring the pace of desegregation 
to be considerably quickened. The motion also alleged that 
the defendants were continuing to maintain and operate 
a biracial school system; continuing to maintain and en­
force dual school zones based on race; that only a token

school to which transfer was requested; (2) the age of the student; (3) if 
space was unavailable at the school to which transfer was desired, after all 
students were assigned who had previously been in attendance, the Board 
could assign the student to the school nearest his residence (6, 7).

4 E.g., Armstrong v. Board of Education, 333 F.2d 47; Davis v. Board of 
Commissioners, 333 F.2d 53 (5th Cir. 1964) ; Glynn County Board of 
Education v. Gibson, 333 F.2d 55 (5th Cir. 1964) and Lockett v. Board 
of Education of Muscogee County, 342 F.2d 225 (5th Cir. 1955) (R. 
13-14).



4

number of students had been allowed to transfer to four 
formerly all-white high schools; that one student of su­
perior academic achievement was denied admittance to a 
white school to which he applied because of an alleged lack 
of academic qualifications; that the staff, teachers, and 
other supervisory personnel were rigidly separated on 
the basis of race; that on or about June 11, 1964, a peti­
tion (PI. Exh. 3, R. 33) was filed with the School Board 
and Superintendent requesting desegregation of the Board 
of Education staff. Notwithstanding the court’s specific 
direction that no student need be granted more than one 
transfer in any one year, plaintiff’s motion alleged the 
School Board allowed such transfers when they oper­
ated to resegregate Negro students into Negro schools. 
The motion for further relief prayed for the immediate 
elimination of all aspects of racial discrimination in the 
operation of the East Baton Rouge Parish public schools 
including specifically, but not limited to, desegregation of 
extra curricular activities; an order to desegregate teacher, 
principal and other supervisory personnel; and an order 
to completely desegregate all grades in the school system 
by the 1965-66 school year by drawing unitary non-racial 
geographic zones or attendance areas for all schools in the 
system and assigning students to the schools nearest their 
respective residences as a matter of right (R. 11-28).

The motion to add additional parties-defendants alleged 
that the Baton Rouge citizens Council, Inc., its officers and 
members should be added as parties-defendants on the 
grounds that the parties sought to be added had circulated 
or caused to be circulated a document (PL Exh. 4, R. 38) 
among white high school teachers urging them to ostracize 
Negro students who availed themselves of the transfer pro­
vision and were admitted to formerly all-white schools. The



0

plaintiffs’ motion further alleged that unless the parties- 
defendants were added and enjoined they would continue 
to attempt to impede the orderly progress of the desegrega­
tion (E. 24, 26, 27-28).

On April 23, 1965 the district court caused an order to 
show cause to issue to the Baton Rouge Citizens Council 
made returnable on June 1, 1965 (R. 39-40). Hearings on 
the order to show cause and plaintiffs’ motion for further 
relief were held on June 2, 1965.6

At the June 2, 1965 hearing, the Baton Rouge Citizens 
Council filed a motion opposing plaintiffs’ motion to add 
and in the alternative a motion to dismiss for failure to 
state a claim upon which relief could be granted alleging, 
inter alia, that the letter complained of was merely advocat­
ing theory and included no threat or suggestion of sanction 
and was but an expression guaranteed to the defendant by 
the First Amendment to the Constitution of the United 
States, and that the acts complained of in no way interfered 
with the orderly process of the court (R. 149-152). Also, at 
the June 2 hearing, the defendant School Board filed two 
motions: (1) a motion to oppose the addition of the Baton 
Rouge Citizens Council and its officers and members as im­
proper parties-defendants (R. 153) ; and (2) a motion to dis­
miss and deny plaintiffs’ motion for further relief. The 
School Board’s motion alleged, inter alia, that the plan ap­
proved July 18, 1963, and the progress made thereunder 
was acceptable to and approved by the great majority of the 
citizens of the Parish of East Baton Rouge including, par­
ticularly, the great majority of the class represented by the 
plaintiffs (R. 154-157).

6 Hearing on the order to show cause and the motion for further relief 
was originally set for June 1, 1965 (R. 39, 40, 45).



6

During the hearing on plaintiffs’ motion for further re­
lief, the deposition of the Acting Superintendent of Schools 
(now Superintendent) was received in evidence (R. 47- 
138) and additional oral and documentary evidence was 
presented (R. 186-287). The court refused to admit testi­
mony of Dr. Donald Mitchell as an expert witness,6 on 
whether freedom of choice would be an effective plan of 
desegregation.7 8 Plaintiffs also sought to introduce the tes­
timony of Negro students who are presently attending for­
merly all-white schools that the freedom of choice plan, 
either as administered in the past or as administered in 
compliance with the rules of the Lockett case and other de­
cisions was insufficient to bring about desegregation in the 
schools in the East Baton Rouge Parish. The court refused 
to admit this evidence (R. 233-242).8 At the conclusion of

6 Dr. Mitchell was, at the time, the Executive Director of the New Eng­
land School Development Council. He is a graduate of the University of 
New Hampshire with a Master’s Degree in Education. He had analyzed 
materials on the East Baton Rouge School System, and had visited the area 
for study as a basis for his testimony (R. 252, 262).

7 “ Mr. Bell:
Well, Your Honor, we would like to have him explain in detail, 

and in view of this ruling, we would like to proffer his testimony 
under the provisions of Rule 42.

“ The Court:
You can proffer it by deposition and file it in the record. I don’t 

want someone from Massachusetts coming down to tell the Baton 
Rouge school board how to run their schools” (R. 288).

8 “ Mr. Bell:
The second purpose is to show that the experiences of these pupils 

in the desegregated schools where they are going with all of this free­
dom of choice situation is such that the parents and pupils themselves 
are in the main unwilling- to face the same kind of things that these 
kids have been asked to face, and therefore—

“ The Court:
This is of no concern at all. We are going to have desegregation 

of the schools. I think that the Jewish race has gone through that 
from the time of Christ on, they have been subjected to prejudices



7

the hearing, the district court ordered the School Board to 
submit a supplemental plan which would include only the 
minimum required by Lockett v. Board of Education of 
Muscogee County, 343 F.2d 225 (5th Cir. 1965) (242-246).

Pursuant to the July 2 order, the defendants on July 9, 
1965 submitted its present supplemental plan for desegre­
gation. The plan continued the practice of initially assign­
ing all students to segregated schools on the basis of race. 
In addition to the right of transfer already provided to 
Negro students in grades covered under the 1963 plan, a 
provision extending the right to transfer to Negro students 
in other grades was provided for on the following schedule: 
first, second and tenth grades for the 1965-66 school year; 
third and fourth grades for the 1966-67 school year; fifth, 
sixth and seventh grades for the 1967-68 school year and 
the remaining two grades, eighth and ninth, for the 1968-69 
school year. Negro students desiring to transfer to all- 
white schools, were required to register at the Negro school 
in which they were in attendance. Review of the denial of 
transfer was to be in accordance with the 1963 plan. With 
respect to notifying Negro students and parents of the 
right to transfer, the plan provided that:

Due to the time, expense and impracticality involved 
in giving written notification to each child within each 
district as to the schools available to him, the Board 
feels that the best method of notifying all students 
concerned of schools available to them, particularly for 
the 1965-66 school year, is to notify all principals and 
teachers of said districts and to advertise the bounda­

and there is no question about it. I think there is a book called the 
Wandering Jew that pretty well traces the history of the Jewish 
people from the days of Christ to the present time. Unfortunately 
those kinds of prejudices can only be erased in a man’s heart; they 
cannot be erased by injunction. So we can’t, we can’t do that. . . . ”



8

ries of said districts and the schools available to the 
students living therein through the local newspaper, 
radio and television communication systems (R. 163).

Then, the Superintendent was directed that “ if . . . [he] 
devised a better method of notification with respect to 
grades to be desegregated in the future” (R. 163), then he 
was authorized to do so. The plan further provided that 
transportation of all students in grades affected by the plan 
shall be in accordance with the “ laws of the State of Loui­
siana and previously adopted policies of the State Board 
of Education, the Department of Education and this School 
Board” (R. 159-165). On July 15, 1965, the district court 
approved the supplemental plan submitted by the School 
Board (R. 166-67).

On August 9, 1965, plaintiffs noted an appeal to this 
Court from the order of the district court of July 15, 1965, 
which approved the plan in issue (R. 167).

Statement o f Facts

Composition of the East Baton Rouge School System

As of May 11, 1965, the East Baton Rouge Parish School 
Board had 87 schools under its jurisdiction. Of these, 
thirty-three were all-Negro schools which included twenty 
six elementary schools, three junior high schools and five 
high schools (R. 49). The other 54 schools, 37 elementary 
schools, 7 junior high schools and 10 high schools were 
attended only by white pupils until the 1963-64 school year 
when 28 Negro pupils were admitted to grade 12 in four 
formerly all-white high schools (R. 93).

The East Baton Rouge Parish public school system is 
divided into approximately 100 school districts under the



9

direction of the School Board and a Superintendent of 
Schools. There are separate school district maps for ele­
mentary, junior high and high schools. Approximately 
70% of the school districts have a racially mixed popula­
tion (R. 80, 103). Under the school district arrangement, 
boundary lines for a school are established as nearly as pos­
sible in an area surrounding the school and takes into con­
sideration such factors as school capacity, natural bound­
aries, the number of students living in the area and the 
possibility of increase or decrease in the population (R, 
54, 79, 80, 81). In 1963, the court found that the School 
Board maintained separate Negro and white schools and 
school districts (R. 66, 74).

As of May 3, 1965, school population was approximately 
55,000. Of this number, approximately 33,000 were white 
and 22,000 were Negro (R. 70, 71). Thus, Negroes consti­
tute approximately 40% of the total school population. 
Although there are only approximately 11,000 more white 
pupils in the East Baton Rouge public school system than 
Negro pupils, 21 more schools have been allotted to white 
use than to Negro use. The white school population has a 
total of 54 schools whereas the Negro school population 
which is 40% of the total, has only 33 schools. Although 
40% of the school population is Negro, only 37% of the 
school buildings are allotted to Negro pupils, while white 
students constituting 60% of the school population occupy 
approximately 62% of the schools buildings.

The Superintendent of Schools testified that many of 
the schools are overcrowded, he also testified that the Negro 
schools are more crowded than white schools (R. 225). 
As of May, 1965, the School Board planned to construct 
17 additional schools, 11 elementary, 5 junior high and 1 
high, to alleviate the problem of overcrowding (R. 130).



10

At present, temporary buildings are constructed when­
ever a projection of school population indicates a given 
school will be overcrowded for a given school year (R. 
68-69). However, the only testimony that any schools were 
underutilized came from the Superintendent who said that 
at least three white elementary schools and one white high 
school were not overcrowded (R. 88).

Initial Assignments

Prior to the 1963-64 school year, the School Board ini­
tially assigned every Negro student to a Negro elementary 
school and every white student to a white elementary school 
(R. 76). Before the first desegregation plan went into ef­
fect, school districts for individual elementary, junior high 
and high schools were drawn for the particular schools by 
the School Board. Separate school districts for the Negro 
and white schools were constructed and Negroes were not 
free to attend the white schools. Negro students new to 
the school system, or graduating from elementary schools 
to junior high schools or from junior high schools to high 
schools were assigned and were required to register at the 
separate Negro school which traditionally served their 
areas. Negro students already in the public schools were 
assigned to and required to register at Negro junior high 
and high schools according to an existing segregated 
“ feeder system” (R. 77, 78). Each spring, the files on each 
student graduating from elementary school to junior high, 
or from junior high to high school was forwarded to the 
receiving school and the student was required to register 
at the receiving school (R. 105). When a student moved 
from one school district to another, he was assigned to a 
school in that area which served his race.



11

Practice Regarding Teachers and Other School Personnel

Teachers in the school system must have a teaching certifi­
cate duly certified by the State Department of Education 
to teach in the subject area. Nothing else is required (R. 
122). Teachers coming into the system for the first time 
and without prior experience must take the National 
Teacher Examination and undergo an evaluative interview 
by an appropriate staff member. Every teacher in the sys­
tem (except one white teacher) has met the requirements 
necessary to teach (R. 123, 124). There are approximately 
2,300 teachers, including principals, in the school system, 
of which approximately 40% are Negro. The percentage of 
Negro teachers roughly corresponds to the percentage of 
Negroes in the school system (R, 123). Teachers are as­
signed by the School Board. All Negro teachers are as­
signed to Negro schools and all white teachers are assigned 
to white schools (R. 124). Every white school has a white 
principal and every Negro school has a Negro principal.

On the administrative level there are three Negroes in 
a supervisory capacity. One Negro is supervisor of all the 
Negro elementary schools. The other two Negroes are clas­
sified as visiting teachers, whose responsibility is to check 
on school attendance; their function is equivalent to truant 
officers (R. 125, 126). The Negro administrative personnel 
are housed in a building separate and apart from white ad­
ministrative personnel (R. 126).

School Transportation System

Students who live more than one mile from the school to 
which they are assigned are eligible for transportation to 
and from school (R. 136). The East Baton Rouge Parish 
School Board has approximately 250 buses which provide 
bus transportation for about 25% of the school population



12

on all school levels, and of this percentage 75% of the 
busing is provided for elementary school children (R. 129). 
However, the school transportation system is segregated. 
The School Board maintains separate buses for the trans­
portation of Negro and white pupils. Negro drivers trans­
port Negro pupils and white drivers transport white pu­
pils (R. 129). Negro students who have transferred to 
white schools if eligible for school bus transportation, must 
ride the Negro buses.

The Board’s Practices and Procedures Under 1963 Plan

Subsequent to the approval of the School Board plan on 
July 18, 1963, no formal announcement or written com­
munication was sent to the Negro students assigned to the 
twelfth grade for the 1963-64 school year advising them 
of their right to transfer (R. 92), even though the court 
order specifically provided for individual notice to students 
(R. 5). Thirty-eight Negroes who had already been as­
signed by the School Board to the twelfth grade in four 
Negro high schools (R. 93) requested transfers to white 
schools. Twenty-eight were admitted to the twelfth grades 
of four formerly all-white high schools (R. 102). The ap­
plication form, the same form used when a student wanted 
to transfer out of his school district, requested the reason 
the Negro applicants wished to transfer (R. 95).

In the 1964-65 school year the period of time during 
which Negro students could apply for transfer to formerly 
all-white schools was reduced from ten to five days. The 
principals were called to a meeting and were given a letter 
in which they were told to announce to the students of 
their respective schools that registration for the 1964-65 
school year would be held on April 13-17 and those Negro 
students who would be in the 11th and 12th grades could 
apply for transfer to the same grades in white schools (R.



13

98). Of 104 Negro students who applied, 99 were allowed 
to transfer (R. 98). No reason was given for the five 
denials.

At approximately the beginning of the 1964-65 school 
year, a letter under the name of the Baton Eouge Citizens 
Council, Inc., was circulated among the white high schools 
in the school system. White teachers were urged to ostra­
cize those Negro students who had been permitted to 
transfer to white schools in the grades covered by the 
plan (R. 38, 177). This fact was called to the attention 
of the Superintendent of Schools and the School Board. 
Neither the Superintendent nor anyone connected with the 
School Board gave any instructions or had any discussion 
with the white high school teachers or principals concern­
ing the letter (R. 118). November 20, 1964, Negro students 
who had transferred to Glens Oak, a formerly all-white high 
school, were segregated from the rest of the white students 
in an assembly meeting (R. 118).

For the 1965-66 school year, approximately 103 other 
Negro students sought transfer to the 10th, 11th and 12th 
grades of formerly all-white high schools. 89 were granted. 
Again Negro students in the 9th, 10th and 11th grades 
were not given invididual notice as required by the court 
order (R. 106). A meeting was held again with the prin­
cipals, both Negro and white jointly, and a memorandum 
was sent out to the principals of schools having 9th grades 
and above in which the principals were requested to advise 
all of the students of the date of registration and to advise 
Negro students wishing to transfer to white high schools 
to fill out preference forms. For the first time since the 
plan had been in effect, the transfer form did not request 
the reason why the Negro student was requesting the 
transfer (R. 106).



14

Specifications of Error

1. The District Court erred in approving a desegrega­
tion plan that:

(a) virtually retains intact Negro and white schools;

(b) fails to provide that students new to the school 
system must be assigned to schools on a nonracial 
basis;

(c) fails to provide for faculty desegregation;

(d) fail to provide for desegregation of the administra­
tive staff;

(e) fails to provide for desegregated school bus trans­
portation; and

(f) has an adequate notice provision which leaves notifi­
cation primarily to the discretion of the school board.

2. The District Court erred in approving a “ freedom of 
choice” plan when the evidence shows that the plan is 
inadequate to desegregate the public schools in the East 
Baton Rouge Parish School system.

3. The District Court erred in refusing to consider 
testimony which could show that a freedom of choice plan 
is inadequate to desegregate the school system.



15

A R G U M E N T

The Plan Submitted and Approved by the Court Be-

I.

The Plan Submitted and Approved in the Court Be­
low Fails to Meet Current Standards.

Although “ freedom of choice” plans for desegregating 
public schools have been approved by this Court, there 
are minimal judicial standards which must be met before 
these plans can merit judicial approval. See Singleton v. 
Jackson Municipal Separate School District, 355 F.2d 865 
(5th Cir. 1966). The plan in the instant ease, when com­
pared with current standards does not merit judicial 
approval.

A. Current Standards

In Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865, 876 (5th Cir. 1966), this Court sum­
marized the minimum standards as follows:

(1) Desegregation at a speed faster than one grade per 
year;

(2) Assignment without regard to race of each pupil 
new to the system in grades not reached by the plan;

(3) Simultaneous operation of the plan from both the 
high school and elementary end;

(4) Abolition of dual or biracial school attendance areas 
contemporaneously with the application of the plan to the 
respective grades; and

(5) Admissibility of Negroes to any schools for which 
they are otherwise eligible without regard to race.



1 6

In addition to the aforementioned standards, this Court 
has also held that faculty desegregation is a necessary 
provision of the plan. Moreover, this Court has held that 
it attaches great weight to the standards promulgated by 
the Department of Health, Education and Welfare (HEW ) 
in determining whether a desegregation plan is acceptable.9 
Singleton v. Jackson Municipal Separate School District, 
supra at 868; Price v. Denison Independent School Board, 
348 F.2d 1010, 1012 (5th Cir. 1965). See also Kemp v. 
Beasley, 352 F.2d 14, 22 (8th Cir. 1965). Appellants sub­
mit that the School Board’s plan failed to meet either the 
minimum standards set out by this and other courts or 
the Department of Health, Education and Welfare.

B. Inadequacy of the Present Plan

1. Racial Assignments Are Maintained

The plan in the instant case is not characteristic of free 
choice plans as approved in other cases or as adopted by 
HEW. This court in setting guidelines for determining if 
a free choice plan is to be approved said:

“We approve the use of a freedom of choice plan 
provided it is within the limits of the teaching of the 
[Stell v. Savannah-Chatham Board of Education, 333 
F.2d 55 (5th Cir. 1964)] and [Gaines v. Dougherty

9 In 1965, as part of the enforcement of Title VI of the Civil Rights 
Act of 1964, which bars federal funds to racially segregated public schools, 
the United States Commissioner of Education promulgated standards for 
testing all desegregation plans in terms of their actual performances. See 
General Statement of Policies under Title V I of the Civil Rights Act of 
1964 Respecting Desegregation of Elementary and Secondary Schools, 
United States Department of Health, Education and Welfare, Office of 
Education, April 1965. A revised statement updating the 1965 require­
ments was issued by the Commissioner of Education in March 1966. See 
Revised Statement of Policies for School Desegregation Plans under Title 
VI of the Civil Rights Act of 1964. United States Department o f Health, 
Education and Welfare, Office of Education, March 1966.



17

County Board of Education, 334 F.2d 983 (5th Cir.
1964) ] cases. We emphasize that those cases require 
that adequate notice of the plan to be given to the 
extent that Negro students are afforded a reasonable 
and conscious opportunity to apply for admission to 
any school which they are otherwise eligible to attend 
without regard to race. Also not to be overlooked is 
the rule of Stell that a necessary part of any plan is 
a provision that the dual or biraeial school attendance 
system, i.e., separate attendance areas, districts or 
zones for the races, shall be abolished contemporane­
ously with the application of the plan to the respective 
grades when and as reached by it. Cf. Augustus v. 
Escambia County, . . .  And onerous requirements in 
making the choice such as are alluded to in Calhoun 
v. Latimer, 5 Cir., 1963, 321 F.2d 302, and in Stell 
may not be required.” Lockett v. Board of Education 
of Muscogee County, 342 F.2d 225, 228-229 (5th Cir.
1965) .

The ideal to which a freedom of choice plan must aspire, 
as well as any other desegregation plan, is the end that 
school boards will operate “ schools” , not “Negro schools” 
or “white schools” . Brown v. County School Board, 245 
F. Supp. 549, 560 (W.D. Va. 1965). In other words, free­
dom of choice does not mean a choice between a clearly 
delineated “Negro school” (having an all-Negro faculty 
and staff) and a white school (having an all-white faculty 
and staff). School authorities who have operated dual 
school systems for Negroes and whites must assume the 
duty of eliminating the affects of dualism before a free­
dom of choice can be approved.

The plan in the instant case is nothing more than a 
scheme which permits the School Board to continue main­



18

taining separate Negro and white school, with a “theo­
retical” provision allowing Negro students to transfer to 
schools where they can obtain a desegregated education. 
Appellants submit that an alleged freedom of choice plan 
which continues assignment of Negro pupils on the same 
racial basis used when segregation was compelled by state 
law is insufficient when proffered and approved as com­
pliance with a school board’s affirmative obligation to es­
tablish a desegregated school system. Wheeler v. Durham 
City School Board, 346 F. 2d 768, 772 (4th Cir. 1965); 
Bradley v. School Board, 345 F.2d 310, 319 (4th Cir. 1965); 
Nesbit v. Statesville City Board of Education, 345 F.2d 
333, 334 (4th Cir. 1965).10 See Buchner v. County School 
Board, 332 F.2d 452 (4th Cir. 1964).

2. The Notice Provision Is Inadequate

The notice provision in the School Board’s plan pro­
vides :

Section I V : Due to the time, expense and imprac­
ticability involved in giving written notification to 
each child within each district as to the schools avail­
able to him, the Board feels that the best method of

10 “ A system of free transfer is an acceptable device for achieving a 
legal desegregation of schools. . . .  In this circuit, we do require the 
elimination of discrimination from initial assignment as a condition of 
approval of a free transfer plan.”  Bradley v. School Board, supra, 318- 
319. “As we pointed out . . . freedom of transfer out of a segregated 
system is not a sufficient corrective in this Circuit. It must be accom­
panied by an elimination of discrimination in handling initial assign­
ment.”  Nesbit v. Statesville School Board, supra, at 334.

The 1965 H.E.W. guidelines clearly provide that in a freedom of 
choice plan, if no choice is made, Negro students shall be assigned to the 
school nearest their homes or on a basis of nonracial attendance zones. 
Statement of Policies Under Title VI of the Civil Rights Act of 1964 
Respecting Desegregation of Elementary and Secondary Schools, (V,D, 
3(c) ) ,  Office of Education, Department of Health, Education and Welfare.



19

notifying all students concerned of the schools avail­
able to them, particularly for the 1965-66 school year, 
is to notify all school principals and teachers of said 
districts and to advertise the boundaries of said dis­
tricts and the schools available to the students living 
therein through the local newspaper, radio and tele­
vision, communication systems. In accordance with 
this view, the superintendent is hereby directed to es­
tablish a day for the registration of students and to 
immediately proceed with advertising such districts 
and available schools through the newspaper, radio 
and television systems allowing for at least a thirty 
day period between the first publication of the new 
districts and the date of registration in order to give 
as much notice as possible to the students and parents 
affected hereby (R. 163).

The notice provision in the instant plan is similar to the 
plan approved by the District Court in 1963 (R. 7). How­
ever, in the 1963 plan the notice provision required the 
School Board to mail notice to all students in the grades 
affected (R. 7). The evidence shows that the School Board 
did not, in fact, mail individual notices to the students, 
but rather the only notice given Negro students for the 
1963-64 school year was by means of announcement in the 
newspaper (R. 92-93). In the 1964-65 school year the 
School Board held a separate meeting with the principals 
of the Negro high schools. They were told to advise Negro 
students at their respective schools, who wished to avail 
themselves of the transfer provision of the 1963 plan, that 
they would have to register on certain specified dates (R. 
98-99). Again, in 1965, the School Board failed to give 
individual notices to students (R. 98). The Superintend­
ent of Schools testified that he did not know whether the



20

principals did in fact give notice to the students and made 
no attempt to determine whether notice was in fact given 
(E. 196). These facts demonstrate that although the School 
Board was required by court order to give individual 
notices to Negro students the order was disobeyed. Fur­
ther, the haphazard methods used by the School Board 
under the 1963 plan indicate an intent to circumvent the 
desegregation plan.

The notice provision in the present plan does not contain 
an order specifying that the School Board must give indi­
vidual notice to Negro students. It leaves the mechanics 
of notice to the discretion of the School Board. Consider­
ing the Board’s earlier disregard for court-imposed notice 
requirements, one can hardly expect that it will exercise 
the discretion granted under the 1965 plan in any way but 
to frustrate the process of desegregation. The notice pro­
vision in the present plan cannot stand and the School 
Board must be ordered to adopt a notice procedure which 
will give timely notice in such terms and manner which 
will bring home to Negro students the rights to be 
accorded them. See Lockett v. Board of Education of 
Muscogee County, supra at 229; Augustus v. Board of 
Public Instruction of Escambia County, 306 F.2d 862 (5th 
Cir. 1962).

3. The Plan Fails to Provide for Desegregated 
School Transportation

The provision in the plan relating to bus transportation 
provides:

Section V II: Transportation of students in the
grades and to the schools affected hereby shall be in 
accordance with the laws of the State of Louisiana 
and previously adopted policies of the State Board of



21

Education, Department of Education, and this School 
Board and shall he provided, or not provided, as the 
case may be, again without regard to race or color 
(R. 164).

The record indicates that during the two-year operation 
of the 1963 plan, Negro students who transferred to for­
merly all-white schools were required to ride segregated 
Negro buses to and from white schools (R, 129). The 
present plan does not go far enough in ordering the School 
Board to desegregate school transportation. As the order 
now stands, it allows the School Board to continue to 
segregate Negro students who are now in white high 
schools. This result defeats the purpose of the desegrega­
tion order.

4. The Plan Fails to Provide for Faculty Desegregation

The evidence shows that the School Board is continuing 
its discriminatory practice of assigning only Negro teach­
ers to all-Negro schools and assigning only white teachers 
to all-white schools (R. 124). This Court, after reviewing 
the Supreme Court decisions in Rogers v. Paul, 382 U.S. 
198 (1965) and Bradley v. School Board of Richmond, 382 
U.S. 103 (1965), has concluded that school boards must 
now include specific plans for faculty and staff desegrega­
tion. Singleton v. Jackson Municipal Separate School Dis­
trict, supra at 870. In accord with Singleton, supra, are 
Kemp v. Beasley, 352 F.2d 14, 22-23 (8th Cir. 1965); Kier 
v. County School Board, 249 F. Supp. 239 (W.D. Ya. 1966); 
and Dowell v. School Board of Oklahoma City, 244 F. Supp. 
971 (W.D. Okla. 1965). Cf. Franklin v. School Board of 
Giles County, No. 10,214, 4th Cir. April 6, 1966.



22

II.

Even if the Plan in the Instant Case Meets All of the 
Current Standards of a Free Choice Plan, the Evidence 
Before This Court Shows That a Free Choice Plan Is 
Not Adequate to Desegregate the Segregated Schools 
Under the Jurisdiction of the East Baton Rouge Parish 
School Board.

An acceptable freedom of choice plan, is at best, only 
an allowable interim measure a school board may use in 
fulfilling its obligation to desegregate the school system. 
See e.g., Singleton v. Jackson Municipal Separate School 
District, 355 F.2d 865, 871 (5th Cir. 1966); Bradley v. 
School Board, 345 F.2d at 324 (opinion of Justices Sobeloff 
and Bell concurring in part, dissenting in part). The 
test of whether a freedom of choice plan is acceptable 
as an interim measure is, among other things, the at­
titude and purpose of (1) public officials in setting 
up the plan, (2) school administrators and faculty in ad­
ministering the plan and (3) the effectiveness of such a 
plan in disestablishing the segregated school system in a 
particular community.11

The evidence clearly establishes the existence of tra­
ditional patterns of initially assigning pupils by race on 
the basis of separate school districts for Negroes and 
whites, even though the court has ordered desegregation 
and approved a plan. Paper compliance and policy state­
ments are insufficient to satisfy the affirmative obligation 
of a school board to desegregate its school system as re­

11 “ Affirmative action means more than telling those who have been 
deprived of freedom of educational opportunity ‘You have a choice.’ In 
many instances the choice will not be meaningful unless the administrators 
are willing to bestow extra effort and expense to bring the deprived pupils 
up to the level where they can avail themselves of the choice in fact as 
well as theory.” Bradley v. School Board, supra at 323.



23

quired by the second Brown decision. See Cooper v. 
Aaron, 358 U.S. 1, 7-8 (1958) and Goss v. Board of Educa­
tion, 373 U.S. 683 (1963). These cases make it perfectly 
clear that where assignments and transfer policies based 
solely on race are insufficient to bring about more than a 
token change in a segregated system, the board must devise 
affirmative action reasonably appropriate to effectuate 
the desegregation goal. As of May 1965, there were 87 
schools, including elementary, junior high and high school 
under the jurisdiction of the School Board. Thirty-three 
of these schools were all-Negro and 54 were all-white, 
serving a total school population of more than 55,000 stu­
dents. Since the order requiring the School Board to 
desegregate the schools only 245 Negro children have ap­
plied for transfer, and of this number, only 216 Negro 
children were permitted to transfer out of a total number 
of more than 33,000 Negro students of school age.

Appellants, in their motion for further relief, moved for 
a desegregation plan under which the School Board would 
be ordered to construct a single system of geographic at­
tendance zones. Under appellants’ proffered plan, Negro 
and white pupils living within the newly constructed zones 
would be assigned to schools based on a non-racial basis. 
Appellants’ proposed plan has been held to be an accept­
able desegregation plan. See e.g., Bell v. School Board of 
Staunton, Va., 249 F. Supp. 249 (W.D. Va. 1966).

Appellants, in this Court, adhere to their argument that 
nonracial assignments by zones is the only means of obtain­
ing lawful desegregation in the East Baton Rouge Parish 
school system.



24

III.

The Court Below Erred in Refusing to Consider Evi­
dence Which Could Show That a Freedom of Choice 
Plan Is Inadequate to Desegregate the Schools Under 
the Jurisdiction of the East Baton Rouge Parish School 
Board.

This appeal involves a question concerning the nature 
of the continuing supervision of a district court over ap­
proving plans for racial desegregation of public schools 
which have been found to be operated on a compulsory 
biracial basis.

At the time of the hearing on plaintiffs’ motion for 
further relief, a desegregation plan had been in operation 
for a period of two years. Only 245 Negro students had 
applied for transfers to previously all-white schools out 
of a total number of 23,000 Negro students in a total school 
population of 55,000. Of these 245, only 226 Negro students 
had been permitted to transfer. With these facts before 
it, the district court admitted evidence only on this ques­
tion: Whether the Board should be required to submit 
a plan meeting the minimal standards of Lockett v. Board 
of Education of Muscogee County, 342 F.2d 225 (5th Cir. 
1965) (R. 207, 242-246). Plaintiffs’ motion for further 
relief had not asked for a plan based on the Lockett deci­
sion, but instead had requested the substitution of a new 
plan for a freedom of choice type plan approved by the dis­
trict court in 1963. This Court, nor any other district court, 
has ever held that a plan approved for one school board is 
the limit to which a school board in another area must 
submit. In fact, the contrary has been the ruling of this 
and other courts, namely, that a plan approved for one



25

school district may not be sufficient for another school 
district in complying with the dictates of the two Brown 
decisions. Therefore, since the court below refused to re­
ceive evidence beyond the scope of Lockett, we are left with 
the holding that “as a matter of law” no school board need 
submit a plan different from that of any other school board.

In Ross v. Dyer, 312 F.2d 191 (5th Cir. 1963), this Court 
restated the basic premises of the Brown decision, 349 IT.S. 
294 (1955), namely that the burden of complete desegrega­
tion is on the defendants and that a plan may be revised 
to accomplish full desegregation as quickly as is feasible 
in a given situation. The court stated:

We emphasize that at this point, since it is now clear 
that even though the 1960 order prescribed a plan in 
specific details, this is not the end of the matter. The 
district court of necessity retains continuing jurisdic­
tion over the cause. That means that it must make 
such adaptations from time to time as the existing 
developing situation reasonably requires to give final 
and effective voice to the constitutional rights of Negro 
children.

There is no rule of law that a school board is limited to 
accelerating a desegregation plan to what this or other 
courts may have approved. See, e.g., Bell v. School Board 
of Staunton County, 249 F. Supp. 249 (W.I). Ya. 1966).

The decision of whether or not a desegregation plan 
should be approved rests in the sound discretion of the 
district court after it has received evidence showing that 
the plan will effectively desegregate a school system. That 
discretion, however, is not exercised when the court refuses 
to receive evidence which would make its decision an in­



26

formed one. In Calhoun v. Latimer, 321 F.2d 302 (5th Cir. 
1963), this Court sustained the district court in its refusal 
to speed up a desegregation process by adopting a zone 
plan similar to the one requested in plaintiffs’ motion for 
further relief. However, the court, found that the district 
court had not abused its discretion because:

There was no evidence before the district court from 
which an approximation might he made of the amount 
of desegregation reasonably to be expected under a 
zone plan . . .  in short, there was nothing to show the 
inadequacy of the present system in comparison” (at 
310-311).

This plainly means, that this Court, at the very least, 
expects the lower court to receive evidence which shows 
that a desegregation plan is inadequate to desegregate a 
school system whether or not that plan has been approved 
for another school district. The proffered testimony of 
Hr. Donald P. Mitchell, which is made part of this record 
on appeal, should have been considered by the district court 
in determining whether a freedom of choice plan is inade­
quate to desegregate the schools and the East Baton Eouge 
Parish School District.

To find, as the plaintiffs contend, that the court below 
abused its discretion in refusing to consider the proffered 
testimony of Dr. Mitchell does not necessarily mean that 
this Court must adopt the plan suggested by the plaintiffs 
in their motion for further relief. This Court need only 
decide one principle: That an alternative desegregation 
plan cannot be rejected without consideration of the facts 
and circumstances which might permit its acceptance as 
the only plan which could effectively desegregate a segre­
gated school system.



27

CONCLUSION

W herefore, fo r  all the fo re g o in g  reasons, appellants 
resp ectfu lly  subm it that the ord er o f  the cou rt below  should 
be reversed.

Respectfully submitted

J ack  Greenberg

J ames M. N abrit, III
N orman  C. A maker 

10 Columbus Circle 
New York, N. Y. 10019

J o h n n ie  J ones

530 South 13th Street 
Baton Rouge 2, Louisiana

A . P . T ureaud

1821 Orleans Avenue 
New Orleans 16, Louisiana

Attorneys for Appellants

R obert B elton 
of Counsel



28

Certificate of Service

This is to certify that I served a copy of the foregoing 
Brief for Appellants upon John F. Ward, Esq., Burton, 
Roberts and Ward, 206 Louisiana Avenue, Baton Rouge, 
Louisiana, by depositing same in the United States mail, 
air mail, postage prepaid, this day of April, 1966.

Attorney for Appellants



MEILEN PRESS INC. —  N. Y. C. n £ ' - " a<*