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    In The
UNITED STATES COURT OF APPEALS 

For The 
FIFTH CIRCUIT

No. 71-2696

THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, et al.,
Defendants-Appellants,

vs.

EVELYN R. ELLIS, et al.,
Defendants-Appellees, 

Cross-Appellants.

Appeal From The United States District Court For 
The Middle District of Florida

BRIEF FOR PLAINTIFFS-APPELLEES, 
CROSS-APPELLANTS

JACK GREENBERG 
NORMAN J. CHACHKIN 
DREW S. DAYS, III 
10 Columbus Circle 
New York, New York 10019

NORRIS D. WOOLFORK 
305 South Parramore Avenue 
Orlando, Florida 32805

Attorneys for Plaintiffs-Appellees,
Cross-Appellants.



Table of Contents

1
Page

Issues Presented for Review
Statement of the Case 2
ARGUMENT

I. The District Court Erred in Excluding Five 
of a Total of Eleven All-Black or Predomin­
antly Black Schools From Its Order Requiring 
Further Desegregation on Grounds That the 
Excluded Schools Were Not Vestiges of the 
Dual School System........................  14

II. The District Court Erred in Permitting the 
Closing of Two Physically Adequate Formerly 
All-Black Schools That the Schools Were 
Situated on Commercially Valuable Property 
Which the School Board Wished to Sell for 
Income Purposes ..........................  34

III, The District Court Erred in Leaving One
Elementary School All-Black Which It Found 
Was a Vestige of the Dual System Where a 
Feasible Alternative Was Available To 
Desegregate I t ............................  47

IV. The District Court Erred in Requiring Less 
Than The Singleton Standard With Respect To 
the Reassignment of Faculty and Administra­
tion Staff in Schools Closed Under the 
Approved Desegregation Plan ..............  50

Conclusion........................................  51
Certificate of Service ............................  52

Table of Cases
Brice v. Landis, 314 F. Supp. 974 (N.D. Cal. 

1969) .................................. 34,35,36
Brown v. Board of Education, 347 U.S. 483 (1954)

349 U.S. 294 (1955) ........................ 30



Page
Carr v. Montgomery County Board of Education, 429

F. 2d 382 (5th Cir. 1970)........................  39
Chambers v. Iredell County Board of Education, 423

F. 2d 613 (1970) ................................. 38
Choctaw County Board of Education v. United States,
417 F. 2d 845 (5th Cir. 1969)....................  38

Ellis v. Board of Public Instruction of Orange
County, 423 F.2d 203 (5th Cir. 1970)............ 14

Green v. The School Board of the City of Roanoke,
No. 1093 W.D. Va.,Aug. 11, 1970), affirmed
15,110 (4th Cir., June 10, 1971)..................  37

Griffin v. Illinois, 351 U.S. 12 (1956) ..........  41
Haney v. County Board of Education of Sevier County,

429 F. 2d 364 (1970) ..........................  35,37
Harper v. Virginia Board of Elections, 383 U.S.

663 (1966)   41
Lee v. Macon County Board of Education, No. 30154

(5th Cir., June 29, 1971)........................  39
Loving v. Virginia, 388 U.S. 1 (1967) ............  42
McGowan v. Maryland, 366 U.S. 420 (1961).......... 41
McLaughlin v. Florida, 379 U.S. 184 (1964) ........  42
Mims v. Duval County School Board, No. 30418 (5th
Cir., Aug. 16, 1971)   40

Quarles v. Oxford Municipal Separate School Dist.,
No. WC 6962-K (N.D. Miss.,Jan. 7, 1970) .......  35,36

Reynolds v. Sims, 377 U.S. 533 ....................  41
Singleton v. Jackson Municipal Separate School

District, 419 F.2d 1211 (5th Cir. 1969) . . 2,32,50,51
Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535(1942)..........................................  41
Smith v. St. Tammany Parish School Board, 302 F.Supp.

106 (E.D. La. 1969)   38

l i



Page
Swann v. 

(1971)
Wright v. 

County,

Tussman & 
Law, 3 7

Charlotte Mecklenburg, 402 U.S. 1 
........................  2,5,15,16,32,34,47,48
Board of Public Instruction of Alachua 
Florida, 431 F.2d 1200 (5th Cir. 1970) . . 40

Other Authorities
ten Broek, The Equal Protection of the 
Calif. L Rev. 341 (1949) ..............  41

in



In The
UNITED STATES COURT OF APPEALS 

For The 
FIFTH CIRCUIT

No. 71-2696

THE SCHOOL BOARD OF ORANGE COUNTY, 
FLORIDA, et al.,

Defendants-Appellants,
vs.

EVELYN R. ELLIS, et al.,
Defendants-Appellees, 

Cross-Appellants.

Appeal From The United States District Court For 
The Middle District Of Florida

BRIEF FOR PLAINTIFFS-APPELLEES, 
CROSS-APPELLANTS

Issues Presented For Review

I. Whether the district court erred in excluding five of
a total of eleven all-black or predominantly black schools 
from its order requiring further desegregation on the 
grounds that the excluded shoools were not vestiges of



the dual school system.
II. Whether the district court erred in permitting the closing 

of two physically adequate formerly all-black schools on 
the grounds that the schools were situated on commercially 
valuable property which the school board wished to sell 
for income purposes.

III. Whether the district court erred in leaving one elementary 
school all-black which it found was a vestige of the dual 
system where a feasible alternative was available to 
desegregate it.

IV. Whether the district court erred in requiring less than 
the Singleton standard with respect to the reassignment 
of faculty and administrative staff in schools closed 
under the approved desegregation plan.

Statement of The Case

This litigation was originally commenced by plaintiffs- 
appellees, cross-appellants on April 6 , 1962, seeking disestab­
lishment of the racially dual system of public schools in Orange 
County, Florida. Recent proceedings in this litigation, out 
of which the present appeal arises, were commenced by the filing 
of a motion for further relief by plaintiffs-appellees, cross­
appellants (hereinafter, "plaintiffs") on May 10, 1971. Plain­
tiffs' motion was filed pursuant to the guidelines and principles 
established by the United States Supreme Court in Swann v.

2



Charlotte-Mecklenburg Board of Education 402 U.S.l (1971) and
companion cases.

A non-evidentiary hearing was held before the 
district court on June 14, 1971,with respect to plaintiffs' 
motion. And evidentiary hearings were held on August 3-4,
12 and September 14, 1971. A final order of desegregation was 
entered on September 17, 1971, from which plaintiffs duly 
filed notice of appeal on September 21, 1971.

Concurrent with the proceedings described above, 
other litigation occurred, both in the district court and 
in this Court, which warrants discussion in order to ensure 
complete understanding of the status of this action. 
Preliminary orders were entered by the district court on 
July 22 and August 16, 23 and 27, 1971 with respect to issues 
raised by the motion for further relief. On August 30, 1971, 
the defendant School Board of Orange County (hereinafter, 
"Board") filed a notice of appeal to this Court challenging 
the propriety of the district court orders of August 16 and 
27. A motion for a stay pending appeal, filed simultaneously, 
was denied by the district court. A similar motion addressed 
to this Court was similarly denied.

On September 2, 1971, the Board applied to the 
distict court for a one-week extension of time within which 
to file a desegregation plan which was granted on the same 
day the motion was filed. On September 3, 1971, plaintiffs

3



filed a motion for injunctive relief with the district 
court seeking a delay of the opening of the 1971-72 academic 
year pending review and disposition by the district court of 
the Board's desegregation plan. This motion was denied by the 
district court on the same date. Similar application was 
made to this Court on September 3, 1971 which was denied on 
the same date.

On September 23, 1971, the Board filed an "Amended 
Notice of Appeal," apparently relying upon the existence of 
its earlier notice of appeal to this Court from the interlocu­
tory district court orders of August 16 and 27. Additionally, 
the Board filed a "Motion for Stay or Injunctive Relief 
Pending Appeal." Oral argument was heard by this Court on 
October 4, 1971. An order continuing the hearing on the Board's 
motion pending consideration by the district court of a new 
desegregation proposal of the Board was entered by this Court 
on October 4, 1971, as amended on October 5, 1971. After con­
sideration of the new proposal, the district court entered 
an order on October 8, 1971 amending its final order of
September 17, 1971.

For reasons unknown to plaintiffs, the Board has 
been designated appellant in this current proceeding despite 
the fact that plaintiffs' notice of appeal from the district 
court's final order of September 17, 1971 was filed on September
21 , 1971, two days before that of the Board. So that there 
can be no misunderstanding about plaintiffs' affirmative

4



challenge in this appeal to certain portions of the Septem­
ber 17, 1971 final order, we consider the additional designa­
tion of plaintiffs as "cross-appellants" entirely appropriate.

Statement of the Facts

In the motion for further relief, filed on May 10, 
1971, plaintiffs sought, pursuant to the guidelines and 
principles established by the United States Supreme Court 
in Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971) and companion cases, desegregation of eleven
(11) all-black or predominantly-black schools in operation 
in the Orange County Public School System. As of May 21,
1971, the Orange County Public School System had 83,996 
students enrolled - 68,766 white, 15,230 black, (approximately 
82% white, 18% black). Yet the following schools remained 
overwhelmingly black:

B WHolden Street Elementary 1085 59
Hungerford Elementary 292 48
Maxey Elementary 469 67
Orange Center Elementary 629 34
Richmond Heights Elementary 798 0

Washington Shores Elementary 731 3
Wheatley Elementary 980 195
Eccleston Elementary 1191 3
Carver Junior High 1085 59
Jones Senior High 803 146

5



As of May, 1971, 52% of all black students enrolled in Orange 
County attended these predominantly black schools and 67% of 
all black elementary students attended the nine predominantly 
black primary schools listed above.

A non-evidentiary hearing was held before the district 
court on June 14, 1971 at which plaintiffs, among other things, 
presented orally suggested alternatives for desegregation of 
the eleven (1 1 ) all-black or predominantly all-black schools 
(Plaintiffs' oral suggestions were subsequently submitted to 
the court in written form, on September 8, 1971). On July 22, 
1971, over a month later, and over two months subsequent to 
the filing of plaintiffs' motion for further relief, the dis­
trict court entered an order requiring the Board:

to present either evidence sufficient to 
carry their burden that the racial compo­
sition of the following listed schools 
(which in May, 1971 had student bodies which 
were 90% or more black) is not the result of 
past discriminatory action on their part or 
a plan for changing the racial composition of 
such schools as to which they cannot carry 
such burden, (slip op. at 8)

The district court order indicated that since the racial com­
position of the seven schools was "not the result of any 
present discrimination", the issue involved related solely 
to whether the composition was the result of past school dis­
crimination. A hearing to consider matters raised by the 
July 22nd order was set for August 3, 1971.

On August 3-4, 1971, the Board, rather than offering 
a plan for further desegregation, presented testimony assert-

6



edly to establish that Carver Junior High School, and Eccleston, 
Holden Street, Orange Center, Richmond Heights, Washington 
Shores and Webster Avenue Elementaries were not the result of 
past school discrimination (Hungerford, Maxey, Wheatly Elemen­
taries and Jones Senior High were excluded from consideration 
by the 90% or better cut-off point established, without comment, 
by the July 22nd order). At the August 3-4 hearing, plaintiffs 
strenuously contested the court's exclusion of four of the 
eleven schools from consideration simply because their racial 
disproportionality did not reach 90% or better black enrollment. 
By oral order of the court, a hearing was held on August 12, 1971 
at which the Board was required to make similar proofs of lack 
of past discrimination with respect to Maxey, Wheatley and 
Hungerford Elementaries and Jones Senior High.

By order of August 16, 1961, the district court held 
that the predominantly black compositions of six (6 ) schools - 
Eccleston, Holden Street, Webster Avenue, Wheatley and Washing­
ton Shores Elementaries and Carver Junior High - were the 
result of past school discrimination. As to those schools, the 
court required the Board to submit, by August 23, 1971, a plan 
for further desegregation. With respect to the remaining five 
(5) schools - Hungerford, Maxey, Orange Center and Richmond 
Heights Elementaries and Jones Senior High - the court held 
that the Board had adequately established that the predominantly 
black enrollments were not the result of past discrimination.
To the dichotomy it established with respect to the eleven 
schools at issue of those resulting from past discrimination and

7



those not so resulting, the district court permitted two
exceptions. Though Washington Shores Elementary was held to
be of the first category, the court indicated:

As to this school, therefore, the defendant 
should present further desegregation pro­
cedures or satisfactorily demonstrate the 
impracticality of any such further actions 
pertaining to Washington Shores, (slip op. 
at 19)

An though Maxey Elementary was placed in the second category 
the court stated:

Of course, if defendant so desired, 
it would offer little difficulty for it voluntarily to cluster Maxey with 
Winter Garden and Dillard Street 
elementaries as those two are already 
paired and are all only a relatively 
few blocks from each other, (slip op. 
at 18)

Plaintiffs were given until August 25, 1961 to file objections 
to any plan submitted by the Board and a hearing was set for 
August 27, 1971.

On August 23, 1971, the Board submitted a document 
entitled "Court-Ordered Plan" to which were appended several 
exhibits. In essence the "Court-Ordered Plan" indicated that, 
with respect to the six schools which the court held had to be 
desegregated further, the Board had decided to close Holden 
Street and Webster Avenue Elementaries "at least" by the end of 
the 1971-72 academic year but that nothing further would be 
done to desegregate Eccleston, Wheatley, and Washington Shores 
Elementaries or Carver Junior High. The following quotations 
from this document and appendices adequately reflect the Board's

8



position:
"This Board is entirely lacking the power 
to violate educational principles in assign­
ing students. The Federal Courts, however, 
have asserted that they possess the requisite 
power to assign students for a purpose other 
than to advance education and in the face of 
opposition to such assumed power by the over­
whelming majority of the citizens of the United States. The Federal Courts, then, must 
assume that they are qualified to shift stu­
dents to satisfy legal requirements and socio­
logical concepts which they have propounded.
Since the Federal Courts have assumed the 
power to rule that a school system is legally 
deficient, even when the system is operating 
to further the education of all persons, the 
Courts must of necessity fashion the remedy.
The remedy in the final analysis must satisfy 
the Courts. ("Court-Ordered Plan", at 4)
"Now,Therefore, it is resolved that the attor­
neys be instructed to fully present the facts 
and the law and that if the Court decides that 
the system is not unitary, then the Court 
should prepare its own plan, since this Board 
has no expertise in matters which appear to be 
sociological and not related to sound educa­
tional principles." (Exhibit I - Draft Reso­
lution prepared by Superintendent and passed 
by Board on August 19, 1971)

Plaintiffs filed objections to the plan and a motion for 
appointment of an expert to draw an adequate plan or for 
implementation of plaintiffs' proposals on August 25, 1971.

Responsive to the Board's submission of its "Court 
-Ordered Plan", the district court, by order of August 27, 
1971, required the Board either to submit "a plan for further 
desegregation of Eccleston, Wheatley and Washington Shores 
elementary schools, Carver Junior High School and further 
details of the proposed plans for Holden Street and Webster

9



Avenue elementary schools" by 5:00 P.M. on September 3,
1971. The order indicated that, should no "bona fide plan" 
be filed by September 3, the Board should appear on September 
8, 1961 to show cause why it and the superintendent should 
not be held in contempt of court. The court held, with res­
pect to the "Court-Ordered Plan":

Except as to Holden Street and Webster 
Avenue Elementary Schools, the "Plan" is 
not a plan but a brief in opposition to 
filing a plan. The filing of such a 
document in lieu of a plan was inappro­
priate and legally impermissible. When, 
after full hearings, this Court entered 
its order, the time for debate in this 
Court had ceased. (Slip op. at 1)
On August 30, 1971, the Board filed a notice of 

appeal to this Court of the district court's orders of 
August 16, 1971 and August 27, 1971 and a motion for a stay 
pending appeal addressed to the district court. The lower 
court, by order of the same date, denied the motion for a 
stay stating:

It is not clear what is being appealed.
The ordinary procedure would be to ap­
peal an order of this Court to imple­
ment a particular plan. At that time an 
aggrieved party could appeal and the other party cross-appeal if also dissatis­
fied with the order.
In this case no order has been entered 
requiring the implementation of any plan; 
the fact is that no plan is before the 
Court other than the one proposed by 
plaintiffs' counsel, (slip op. at 1)
The Board filed an "Educational Plan" with the 

district court on September 10, 1971 which made essentially 
the following proposals with respect to the six schools at

10



issue:
Wheatley Elementary -_ "expand and extend the existing

equi-distant zone so as to assign 
additional white students to the 
school" - no date set for imple­
mentation;

Holden Street "close and offer for sale the
Elementary - present school property at the

completion of the 1971-72 school 
term." - students "assigned to 
surrounding elementary schools 
based upon new neighborhood zones" 
some students transferred at 
Christmas recess 1971-72;

Webster Avenue "close and offer for sale the
Elementary - school property at the completion

of 1971-72 school year." - students 
"assigned to surrounding elementary 
schools based upon new neighborhood 
zones";

Eccleston Elementary 
Carver Junior High -

Washington Shores 
Elementary -

"convert the present school faci­
lities to a special education 
complex serving the emotionally 
disturbed children, the physically 
handicapped children and other child­
ren who require specialized educa­
tion" - no date set for implementa­
tion, but no students transferred during 1971-72;
"the location of this school does 
not allow for the alteration of 
the composition of its student 
body, while at the same time pre­
serving the neighborhood school con­
cept" special programs to be created 
at Washington Shores in lieu of dese­
gregating it.

Plaintiffs' objections to the "Educational Plan" were
duly filed on September 10, 1971. An evidentiary hearing on 
the Beard's plan and plaintiffs' objections was held on Sept­
ember 14, 1971. On September 17, 1971, the district court

11



entered its final order with respect to desegregation of the 
six schools involved. The court approved the Board's plans 
with respect to Holden Street, Webster Avenue and Washington 
Shores Elementaries. It approved in substance the Board's 
proposal for Wheatley requiring, however, widening of the 
Wheatley attendance zone to place 60 white students, in addi­
tion to the 64 white students proposed by the Board, into 
that school. The court rejected the Board's proposal for 
converting Eccleston Elementary and Carver Junior High to use 
as a special education complex. The order required, instead, 
that Eccleston be left as an all-black facility and the Carver 
Junior High be clustered with Robinswood and Westridge, two 
virtually all-white junior highs. In conformity with this 
Court's directive of September 3, 1971, the lower court re­
quired all elements of the plan approved by its order to be 
implemented by October 4, 1971.

Plaintiffs filed their Notice of Appeal from the final 
order of September 17, 1971 on September 21, 1971. The Board, 
apparently relying upon the existence of its earlier notice of 
appeal to this Court, filed an "Amended Notice of Appeal" on 
September 23, 1971. The Board also filed a "Motion for Stay or 
Injunctive Relief Pending Appeal", on September 23, 1971. It 
sought a stay of that portion of the district court's order 
requiring clustering of Caaver Junior High with Robinswood 
and Westridge first, because immediate implementation would be

12



unduly burdensome and second, because the clustering provision 
was violative of the Constitution and of higher court orders.

On September 30, 1971, plaintiffs filed a memo­
randum in opposition to the Board's motion for a stay. Oral 
argument was heard by this Court on October 4, 1971. At the 
October 4 hearing, the Board submitted an alternative proposal 
to that required by the district court order of September 17 
for the desegregation of Carver Junior High School. This new 
proposal, never presented by the Board to the district court 
or, prior to October 4, to the plaintiffs, involved the re­
zoning of attendance zones for all-black Carver and predominantly 
white Robinswood junior high schools to achieve enrollments 
at Carver of approximately 535 black students and 624 white 
students and at Robinswood of approximately 606 black students 
and 624 students. In accordance with this Court's order of 
October 4, as amended on October 5, the Board's new proposal 
was considered by the district court and approved on October 
8, 1971.

13



ARGUMENT

I. The District Court Erred in Excluding 
Five of a Total of Eleven All-Black or 
Predominantly Black Schools From Its 
Order Requiring Further Desegregation 
on Grounds That the Excluded Schools 
Were Not Vestiges of the Dual School 
System.

In its order of August 16, 1971, the district court took 
the unprecedented position that six of the eleven schools at 
issue had black enrollments as a consequence of past official 
discrimination and, consequently, must be desegregated but 
that five others had black enrollments as a result of non- 
discriminatory factors, warranting no remedial action. The 
ruling distinguished, perhaps for the first time in the his­
tory of school desegregation, de facto segregated schools 
from dê  jure segregated schools in a system that, as a matter 
of public record, was officially dual and racially-segregated 
by law and custom until September, 1970, Ellis v. Board of 
Public Instruction of Orange County, 423 F.2d 203, 208 (5th 
Cir. 1970). Contrary to the district court's determination, 
the record below establishes beyond cavil that the Board's 
traditional practice of locating school facilities and fixing 
capacities so that new schools served children of only one 
race, combined with its refusal to employ techniques other than

14



"neighborhood" zoning, earmarked all eleven schools at issue 
as clear vestiges of a dual, racially-segregated school sys­
tem. Plaintiffs submit that the district court acted properly 
in requiring in its order of August 16 that the Board present 
plans for further desegregation of Eccleston, Holden Street, 
Webster Avenue, Wheatley and Washington Shores elementaries 
and Carver junior high. However, by absolving the Board from 
any responsibility for ending the all-black or predominantly 
black character of Hungerford, Maxey, Orange Center and 
Richmond Heights elementaries and Jones senior high school, 
the district court committed an error of constitutional dimen­
sion which necessitates remedial action by this Court.

In Swann, the Supreme Court described in cogent, lucid 
terms the extent to which site selection, new school construc­
tion and abandonment of old facilities had been used as a 
"potent weapon for creating or maintaining a state-segregated 
school system." It wrote:

In addition to the classic pattern of building 
schools specifically intended for Negro or 
white students, school authorities have some­
times since Brown, closed schools which 
appeared likely to become racially mixed through 
changes in neighborhood residential patterns.
This was sometimes accompanied by building new 
schools in the areas of white suburban expansion 
furthest from Negro population centers in order 
to maintain the separation of the races with a 
minimum departure from the forman principles of

15



"neighborhood zoning." Such a policy does 
more than simply influence the short-run 
composition of the student body of a new 
school. It may well promote segregated resi­
dential patterns which, when combined with 
"neighborhood zoning," further lock the school 
system into the mold of separation of the 
races. (Swann, 28 L.Ed. 2d 554, 569)

The Orange County school system represents no exception 
to the classic pattern identified by the Supreme Court. As 
Mr. Judson B. Walker, Superintendent of the Board from 1933- 
1956, testified that during his tenure the Board was required 
to locate new schools in conformity with Florida state policy 
which dictated separate educational facilities for blacks and 
whites. The following colloquy adequately reflects his 
recollection of circumstances relating to new school construc­
tion as late as 1956:

Witness: The State was still issuing funds
on the basis of black schools and 
white schools in 1956 when I re­
tired.

Plaintiffs 1
Counsel: By that you mean that when you sent

in your request to the State for 
assistance you would have to spe­
cify what monies were going to be 
used for Black schools and what 
monies were to be used for the 
white schools?

Witness: That's right. In other words, the
State Department of Education had 
not yet recognized the impact of the 
Supreme Court decision and they were

16



Mr. Brantley Burcham.

operating under the old law at that 
time, when I retired.
(TR II - p. 48)1/

a member of the Board from 1945-1962,
testified that the construction policy Mr. Walker described 
was continued by the Board even up to 1962:

Plaintiffs'
Counsel: Was there any consideration,

Mr. Burcham, when the Board was 
determining where a new school 
should be located the possibility 
of sending white students to some 
of those schools?

Witness: No, that was never thought of and 
never discussed at any time during

Counsel:
my tenure...

2/You mean up until 1965 that 
wasn't one of the things consid­
ered by the school board as far 
as you know?

Witness: As far as I know, it was never 
discussed.

Counsel: It was just a discussion of build­
ing the new white schools and the 
new colored school?

Witness: And principally classrooms. 
(TR. II - p. 64)

1/ Designations to the record will be as follows: TR I - June
14, 1971, hearing; TR II - August 3-4, 1971, hearing; TR III - 
September 14, 1971, hearing.
2/ Mr. Burcham's original statement that he served on the 
Board until 1965 (TR II - pp. 53-54) was an error corrected 
on redirect to establish that his tenure ended in 1962 (TR 
II - p. 71).

17



Dr. James Higginbotham, present school superintendent, provided 
ample testimony on the extent to which consequences of the 
racially-motivated site selection and construction policies, 
described by Mr. Walker and Mr. Burcham, were reinforced and 
maintained by student assignment arrangements. Though the 
Board passed a resolution in 1955 indicating a commitment to 
assignment of students without respect to race, the Board 
policy was not "implemented" until January 16, 1963 (TR II - 
p. 181). The nature of implementation was an assignment plan 
which granted students the right to be reassigned for 1963- 
1964 to schools other than those they attended during 1962- 
1963 (TR II - p. 194), according to a stair-step procedure 
which would have matured in 1968 (TR II - p. 198). Students 
who did not exercise the option were reassigned automatically 
to their former schools, assignments which, given the history 
of segregated education in Orange County, were based upon a 
student's race not proximity of his home to a given school 
(TR II - pp. 197-198).

The pattern emerges distinctly from testimony with respect 
to the six schools the district court found to be vestiges of 
the dual system:
Holden Street Elementary

At an earlier stage in this litigation, the Board openly

18



conceded that Holden Street was built in order to maintain 
segregation (TR II - p. 58). The site for Holden Street Ele­
mentary, built in 1950, was selected with an eye toward 
constructing a new school to relieve overcrowding at the old 
Jones High School, an all-black facility serving grades 1-12. 
(TR II - pp. 16-17). As Mr. Walker indicated:

[Land] was available, it was cheap and that 
is the reason we took it and it was also 
within walking distance of many of the black 
children. (TR II - p. 32).

The Board could not even consider locating Holden Street in 
such a way as to serve both black and white students because 
state law prohibited it (TR II - pp. 60-61). In order to 
determine the capacity for the new Holden Street school, the 
Board took a survey at Jones High School "to find out how 
many children were in elementary grades and lived in that area 
(TR II - pp. 37-38). Money to build Holden Street was derived 
from a 1949 bond issue (TR II - p. 18). Though schools men­
tioned in the bond issue were not designated by race according 
to expected enrollments, "everyone knew" which were "colored" 
schools (TR II - pp. 39-40). Although white children lived 
nearer to the Holden Street school than to any other school 
(TR II - p. 18, p. 137), perhaps as many as 100, none of them 
were assigned to Holden Street when it was opened in 1951 (TR

19



II - pp. 150-151). Instead, they were assigned to West Central, 
an old school when Holden Street was built, because state law 
required separation of the races (TR II - p. 33). Subsequent 
to the construction of Holden Street, a predominantly white 
elementary, Rock Lake, was built in proximity to it (TR II - 
p. 67). And additional construction was completed at Holden 
in 1967 (TR I - p. 23). The first white student attended 
Holden Street in September, 1970 (TR II - pp. 157-158). In 
May, 1971, approximately 420 out of a total of 1,144 students 
at Holden Street were housed in 14 portable classrooms (TR II - 
p. 239).
Webster Avenue Elementary

Webster Avenue was constructed because "first of all there 
was a need for another colored school in the district" (TR II - 
p. 55). Money to construct the school was obtained from a 
1949 bond issue, but the land was purchased long before (TR 
II - pp. 63-64). It was constructed in 1953 less than a mile 
from another all-black elementary school, the Winter Park 
Colored School (TR II - pp. 22, 38). Though white students 
lived nearer to Webster Avenue than to any other school when 
it was built (TR II - pp. 22, 39, 142, 152), they were assigned 
to Winter Park Elementary, an all-white facility (TR II - p. 39). 
The first white students, teachers' children, attended Webster

20



Avenue in September, 1969, in order to be with their parents 
(TR II - p. 158).
Eccleston Elementary

Eccleston was built as a school for black handicapped
children because it would be near a segregated black public
hospital (TR II - pp. 24, 41). As Mr. Burcham testified:

Well, I was not consulted so much on that 
because we had started a little clinic out 
there— not we, but it had been started to 
care for crippled children and, of course, 
the Colored people were interested in some­
thing similar to that and the Eccleston, 
much like Washington Shores, was becoming 
developed for Colored residence and so it 
looked very reasonable that the Colored 
School should be there (TR II - p. 57).

Black handicapped children from all over Orange County were
bused to Eccleston (TR II - p. 41) while white handicapped
children were assigned to Forest Park school (TR II - p. 40).
Eccleston, built in 1955 as a special education center, was
converted to use as an elementary school in 1959 (TR II -
pp. 142-143). Whites lived nearer Eccleston than to any other
school when it was converted to an elementary school (TR II -
pp. 142-143, 154). However, those children were bused to all-
white Orlo Vista or Rock Lake elementaries (TR II - pp. 153-154).
Though several predominantly white schools were located near
Eccleston, the Board constructed additions to the Eccleston
facility in 1959, 1960 and 1968 to handle increased enrollments
rather than sending some of the children to surrounding schools

-  21 -



(TR I - p. 23; TR II - pp. 65-66). The first white student, 
child of a teacher, attended Eccleston in September, 1970 to 
be with his parent (TR II - p. 158). In May, 1971, approx­
imately 210 out of a total of 1,200 students at Eccleston 
were being housed in 7 portable classrooms (TR II - p. 239). 
Washington Shores Elementary

Washington Shores was located in an area where a housing 
complex was under construction by white real estate developers 
for black occupancy (TR II - p. 56). White students lived 
nearer to Washington Shores than to any other schools when it 
was built in 1957 (TR II - pp. 57, 144). In fact, whites who 
lived near Washington Shores in 1957 continued to reside in 
the area as late as 1967 (TR II - p. 154). However, as of 
May, 1971, no white student had ever attended Washington Shores 
(TR II - p. 158). Additional construction was completed at 
Washington Shores in 1958, 1961 and 1968 (TR I - p. 23). 
Wheatley Elementary

As in the case of Holden Street, the Board at an earlier 
stage of this litigation openly conceded that Wheatley Elemen­
tary was built to maintain segregation (TR II - p. 58). 
Wheatley, which opened in 1951 after construction with money 
from the 1949 land issue, was designed as a coordinate facility

22



for Wheatley Junior-Senior High School, an all-black school 
built in 1936 (TR I - p. 237 TR III - p. 46). Though white 
students lived closer to Wheatley than to any other school 
when it was opened (TR III - p. 44), none attended Wheatley 
until September 1970 (TR III - p. 47). White students who 
attended Wheatley in 1970 for the first time were previously 
bused to Dream Lake and Lovell (TR III - p. 49), two elemen­
tary schools that had no black students until 1967 (TR III - 
pp. 47-48). Additional construction in 1959 and 1965 increased 
the capacity at Wheatley to accommodate more black students 
(TR I - p. 23; TR III - p. 57).
Carver Junior High School

The decision to build Carver, opened in January 1964, was 
made by the Board between 1960 and 1964 (TR II - p. 84).
Though white children lived nearer to Carver than to any other 
school when it was opened (TR II - pp. 92, 146, 156), only one 
white student, a teacher's child, had attended Carver prior to 
September, 1970 (TR II - pp. 156-158). Additional construction 
was completed at Carver Junior High in 1966 (TR I - p. 23). 
White students living closer to Carver Junior High than to 
Robinswood, a predominantly white school, were assigned to 
Carver for the first time in September, 1970 (TR II - p. 96).

23



With the exception of Jones Senior High and Hungerford 
Elementary, the schools which the district court determined 
not to be vestiges of the dual system, were built by the Board 
to maintain and perpetuate the pattern discussed above in 
connection with older black schools. They were built to 
ensure that further development of black residential areas 
created around older schools was contained within circumscribed 
"neighborhoods". They were built to ensure that the growing 
black school population did not "spill-over" into the tradi­
tionally white "neighborhood" schools:
Maxey Elementary

As the Board's own publication, "A Partial History of 
Desegregation" (Plaintiffs' Exhibit 4, TR II pp. 218-219) 
established, Maxey was built to relieve overcrowding and to 
replace Drew Elementary an all-black school in the community 
of Winter Garden (TR II -pp. 221-222). Drew, built in the 
1950's, was converted to a special education center in 
September, 1969; at the time of its conversion, Drew had 
never enrolled a white student (TR III - pp. 30-32). When 
Maxey was opened in 1966, built with money from the 1964 
bond issue, (TR III - p. 30) whites lived nearer to it than 
to any other school (TR III - pp. 28, 32, 39). However, 
until September, 1970 whites living closer to Maxey attended 
Winter Garden and Dillard Street Elementaries, predominantly

24



white facilities approximately 1^ to 2 miles away (TR III - 
pp. 32, 39). Conversely, black students who lived closer to 
Winter Garden and Dillard Street than to Maxey were assigned, 
nevertheless, to Maxey until 1967 (TR III - pp. 33-34).
During the 1970-71 academic year, approximately 90 out of 
a total of 536 students at Maxey were housed in 3 portable 
classrooms.
Richmond Heights Elementary

Richmond Heights, which opened in 1965 (TR II, pp.
84-85, 145) was built to relieve overcrowding at Eccleston 
and Washington Shores elementaries (TR II - pp. 88-89, 221-222). 
Though some white students lived nearer to Richmond Heights 
than to any other school when it was built (TR II - pp. 93,
155) no white students have ever attended Richmond Heights 
(TR II - p. 158). In May, 1971, approximately 270 out of a 
total of 798 students were housed in 9 portable classrooms 
(TR II - p. 239).
Orange Center Elementary

Orange Center, opened in 1966 (TR II - p. 85), was 
constructed to relieve overcrowding at Holden Street Ele­
mentary (TR II - pp. 89, 221-222). Though white students 
lived nearer to Orange Center than to any other schools 
(TR II - pp. 147, 157), they were assigned to Rock Lake, a 
white elementary school (TR II - p. 157). The first white 
student enrolled in Orange Center in September, 1970 (TR II 
- p. 158).

25



Jones High School
Jones High School,was built in 1952 (TR III - p.61) to 

provide secondary education for blacks, not only in Orlando 
but from other areas of Orange County where no such facility 
existed (TR III - pp. 25, 74). Boone and Edgewater high 
schools were built as all-white facilities contemporaneously 
with Jones out of money from the 1949 bond issue (TR II - p. 36). 
And black students who lived closer to all-white Colonial 
High were bused past it and all-white Boone to Jones High 
School (TR II - p. 152). White students who lived in the Jones 
high zone (TR III - pp. 60, 64, 66-67, 74) were, prior to 
1969, bused to all-white schools as far as 2^ to 5 miles away 
from Jones (TR III - pp. 64, 65, 66-67, 74). Additional 
construction was completed at Jones in 1958, 1961 and 1965.
(TR I- p. 23). The first student enrolled in Jones in 1969 
(TR III - p. 64).
Hungerford Elementary

Hungerford Elementary, in much the same way as was 
Wheatley, was built in 1959 and opened in 1960-61 as a co­
ordinate facility for Hungerford Industrial School, an all­
black secondary school (TR III - pp. 8, 9, 10) Hungerford
Industrial School was an all-black private school until 1950 
when it was taken over by the Board (TR III - p. 11). During 
the period in which Hungerford Industrial School was operated

26



as a private institution, bla ck students who could not 
afford to attend were bused 8 miles to the old Jones High 
School in Orlando (TR III - pp. 25-27). Black high school 
children from Winter Park went to Hungerford rather than to 
Winter Park High School because of state imposed segregation 
(TP II - p. 31). It was used as a secondary facility in 
conjunction with Hungerford Elementary until 1967 at which 
time it was converted to a vocational school and renamed 
Wymore Technical and Vocational School (TR III - p. 12). No 
white students ever attended Hungerford Industrial School 
during the period from 1950 to 1967 when it served as a 
regular educational facility.(TR III - p. 12). Though there 
were white children living nearer to Hungerford Elementary 
than to any other school when it opened (TR III - pp. 5, 14), 
they attended Killarney and Hill Elementaries, two all-white 
facilities (TR III - pp. 14, 15). Prior to the construction 
of Hungerford Elementary, black students in the Hungerford area 
went to Webster Avenue school, an all-black facility (TR III - 
p. 22), even though Hill Elementary, an all-white facility was 
nearer (TR III - pp. 15-16). And prior to 1967, black child­
ren who lived closer to Lake Weston, an all-white elementary 
were assigned to Hungerford (TR III - p. 23). In 1968, Lake 
Sybelia Elementary opened on a site approximately 2 miles 
from Hungerford (TR I - p. 48) to accommodate the all-white 
enrollment of Hill Elementary (TR III - p. 15). The first

27



white student attended Hungerford Elementary in September
1970. Additional construction was completed at Hungerford in

2/1962 and 1965 (TR I - p. 23).
The extensive evidence discussed above adequately es­

tablishes that all eleven schools at issue were located, de­
signed, built and expanded in order to maintain and perpetuate 
separate educational facilities for blacks and whites in Orange 
County. However, the Board has made much in its brief, of 
"so-called" consent and agreement to the building of certain of 
these schools by plaintiffs or other members of the black commu­
nity. Specifically, at page 7 of its brief, the Board contends 
that Holden Street, Jones High School and Webster Avenue schools 
were built on their present locations because of lawsuits filed 
by black parents against the Board. And on page 8 of its Brief 
the Board asserts that "plaintiffs, although discussing the 
location of sites for schools, never discussed nor objected 
to the location of Carver Junior High School and Richmond 
Heights Elementary." Contrary to the Board's assertions, the 
alleged demands for or assent to the construction of certain of 
the schools at issue were nothing of the sort. As indicated 
above, Holden Street and Webster Avenue elementaries were built

3/ As plaintiffs' proposals for desegregation indicate, the pro­
ximity of Richmond Heights, Orange Center, Maxey and Hungerford 
to predominantly white facilities raise serious questions not 
only with respect to why the three schools were not desegregated 
long ago, but also why they were constructed in their present 
locations within walking distance of white schools (See Plain­
tiffs' proposals, September 8, 1971 and (TR I - pp. 44-45, 45-46 and 46-47).

28



from money provided out of the 1949 bond issue. Sites for 
schools had been determined prior to 1949. Lawsuits were filed 
once the bond issue passed by blacks to force the Board to alter 
its traditional policy of using new funds to build white schools 
first and black schools last, if the money held out. Given the 
existence of state-decreed segregation of the races in public 
schools, the position of black leaders was understandably 
realistic in asking that more black schools be provided. As 
Mr. Burcham testified:

Witness: ... I don't recall any particular group
that...of course, there are many groups 
but I don't recall any particular group 
that had too much to say until the bond 
issue passed and then there were [sic] 
some litigation and they wanted us to 
get on our horses and ride fast (Empha­
sis added)

Plaintiffs'Counsel: With respect to the litigation, do you
recollect whether the lawsuit was seek­
ing to have Webster Avenue School con­
structed on any particular site or to have the Washington Shores School?

Witness: Well, the site was there, of course,
in the advertisement [for the bond issue] 
and we had purchased the property. Natur­
ally, we wouldn't be foolish enough to 
build a new school some place else tTR II 
pp. 63-64).

Mr. Walker testified with respect to Holden Street that:
They came in and petitioned that we 
build a school to relieve the overcrowded 
conditions at Jones at that time, it was 
not known by them that we had already 
bargained for a site down there (TR II-p.17).

29



On the matter of Jones High School, the district court properly 
held, in view of testimony by Messrs. Walker and Burcham, that 
further discussion of lawsuits filed by black parents before 
Brown was constitutionally irrelevant to whether an all-black 
school in 1971 was a vestige of the dual system (TR III, p. 64).

In Appendix A of its Brief, the Board sets out pleadings
related to the resolution of a motion for injunctive relief
filed by plaintiffs in 1964 seeking to enjoin the Board's
construction of certain new school facilities with funds from
a 1963 bond issue. Plaintiffs contended that unless restrained,
the Board's program would be implemented:

[B]y utilizing additional school sites and 
constructing school buildings thereon in 
areas carefully chosen to assure their pro­
ximity to a single racial group, regardless 
of whether population centers considered 
without regard to racial composition might 
dictate the location of schools in other 
areas practically accessible to the general 
school population. (Brief of Appellant,
Appendix A, file page 89)

Subsequent to negotiations with regard to plaintiffs' motion 
for injunctive relief, the parties entered into a joint stipu­
lation which had three key provisions: first, the Board agreed
to prepare and present to the court and plaintiffs a plan for 
desegregation of Orange County schools; second, the Board 
agreed to construct new and additional school facilities "in 
such a manner that the race or color of the pupils attending the 
schools will not be one of the criteria in any determination of 
location of new school facilities or the expansion of existing

30



school facilities;" and, third, the Board agreed that Carver 
Junior High (junior high "NN") and Orange Center Elementary 
(Elementary school "JJ") be "upgraded to construction priority" 
(Appellant's Brief, Appendix A, file pages 182-189). As was 
the case with the Holden Street, Webster Avenue and Jones 
situations, plaintiffs were concerned that bond funds not be 
expended on new schools far from areas of black concentration. 
Additionally, however, the concern was clearly directed to 
demanding of the Board steps toward desegregating old and new 
school facilities in Orange County. Witnesses for both sides 
testified that site locations were selected by the Board for 
Carver Junior High School, Richmond Heights and Orange Center 
and the schools had been constructed prior to the commencement 
of any discussions with plaintiffs (TR II - pp. 85-86, 266-267). 
Mr. Fred Johnson, former president of the local NAACP, testified 
that since Carver, Richmond Heights and Orange Center were al­
ready built in 1966 when discussions between the Board and 
plaintiffs began, consideration of site selection focussed on 
Ivey Lane Elementary:

... We talked about Ivey Lane because we 
wanted to be sure that it was built in an 
area where it could serve both races...
(TR II - p. 267).

It is difficult to envision how the actions of the black com­
munity and plaintiffs can constitute an estoppel against 
challenge to the continuing segregated nature in 1971 of schools 
the Board agreed in 1964 would be desegregated. This is es-

31



pecially so given the fact that the Board has in the past and 
intends to continue in the future locating schools to serve 
"neighborhoods", irrespective of and despite the one-race 
compositions of such schools. As Deputy Superintendent Robert 
Cascadden testified, the Board was committed to building a new 
school for which a site had been purchased even though it 
recognized that the school would be all-black when it opened 
(TR II - pp. 104-105) and Superintendent James Higginbotham 
testified that, as a result of new construction or additions 
involving twelve school plants and proposed construction 
involving five other schools (TR II - p. 182), one new school 
will be all-black (TR II - pp. 186-187), two or three will have 
between 10-50% black enrollments and the remainder will serve 
all-white enrollments; additional construction will increase 
the enrollment of already white schools (TR II - pp.201-216).

The Board's refusal to abide by its own commitment in 
the 1964 Joint Stipulation and its avoidance of the require­
ments of Singleton v. Jackson Municipal Separate School District 
419 F.2d 1211, 1218 (5th Cir., 1970) on the matter of school 
construction and site selection, provided ample justification 
for plaintiffs' demands for further relief. As the Supreme 
Court indicated in Swann, supra:

In devising remedies where legally imposed 
segregation has been established, it is 
the responsibilities of local authorities 
and district courts to see to it that future 
school construction and abandonment is not 
used and does not serve to perpetuate or re­
establish the dual system 402 U.S.l, 28 L.
Ed 2d 554, 569-570.

32



The district court's treatment of only six of the
eleven all-black schools at issue fell 
tutional requirements which this Court

far short of consti- 
should remedy.

33



II. The District Court Erred in Permitting the 
Closing of Two Physically Adequate Formerly 
All-Black Schools That the Schools Were 
Situated on Commercially Valuable Property 
Which the School Board Wished to Sell for 
Income Purposes.

In Swann, supra, when the Supreme Court wrote with respect 
to creation of unitary systems through the exercise of the 
equity power residing in the federal courts "to correct, hy 
a balancing of the individual and collective interests, the 
condition that offends the Constitution," it envisioned situa­
tions in which not only the results, but also the means used 
by school boards to achieve those results would be free of dis­
criminatory motive or effect with respect to the black community, 
its students and teachers. This concept certainly embodies the 
view that the black community should not, absent compelling 
circumstances, be made to bear an unequal burden in the desegre­
gation process; nor should school boards make decisions in 
effecting desegregation which reflect a disdain and disrespect 
for the black community— decisions which assure blacks that 
their status as second-class citizens has not ended.

Several lower federal courts have been quick to recognize 
the potential for discriminatory implementation of unitary 
desegregation plans where formerly black schools are singled 
out for closing or conversion to special education centers 
rather than for use as integrated facilities. In Brice v.

34



Landis 314 F. Supp. 974, 977 (N.D. Cal. 1969), the court
wrote:

It is true that in the pending case the plan 
above described purports to bring about, after 
a fashion and in one sense, desegregation of 
the defendant District's schools. The ques­
tion remains, however, whether the plan is 
actually a good faith, reasonably adequate 
plan, under the circumstances here presented 
to implement these constitutional principles.

Certainly, if the means selected by the 
District to accomplish its purpose, themselves 
involved substantial elements of racial dis­
crimination, its entire plan becomes suspect 
concerning whether it is really a good faith, 
reasonably adequate implementation of these 
principles.

Quarles v. Oxford Municipal Separate School Dist., No. WC
6962-K (N.D. Miss., Jan. 7, 1970), held, as did Brice v.
Landis, supra, that the closing of a formerly all-black school
was motivated by racial discrimination. There the court wrote

I think justice in this case requires that 
this building be used and that it not be 
terminated. To terminate it, frankly, as 
this Court sees the present situation from 
this evidence today, would be only for 
racial reasons. It would be for the reason 
that white people are willing for the col­
ored children to come to the white sections 
of town to go to white schools but the white 
people are not willing to let their children 
go to the colored sections. I think that is 
the reason and we might as well tag it for 
what it is. (Slip op. at 4)

The Eighth Circuit Court of Appeals in a recent decision,
Haney v. County Board of Education of Sevier County, 429 F.2d

35



364 (1970), following the rationale in Brice, supra, indicated
that:

Notwithstanding ... our firm belief that deci­
sions concerning utilization of school facilities 
are committed to the discretion of the school 
board (within constitutional permissible limits) 
we think there is a heavy burden on the school 
board, and in the instant case on the District 
Court since its Order makes mandatory the uti­
lization of the Lockesburg facilities to explain 
the closing of facilities formerly used for the 
instruction of black students. ][d_. at 372.

In almost all of the cases where federal courts have considered 
the propriety of black school closings, the controlling ques­
tions have been whether the schools to be closed were physically 
inadequate structurally or in terms of site to warrant their 
discontinuation and the impact of such school closings on the 
district to accommodate its enrollment in other facilities.
In Brice, supra, at 977, the court wrote, "It is alleged by 
plaintiffs, and not denied by defendants, that the Martin 
Luther King School building is in good condition and is a 
good facility for teaching." In Quarles, supra, slip op. at 
3, the court stated:

The only reasons advanced which bear upon the 
relative inadequacy of the Central High School 
building are limitations it may have with 
respect to traffic conditions, playground 
area, and other built-in deficiencies. But 
nevertheless, it is a usable plant, it is in 
use at this time, it has a substantial replace­
ment cost, and it is needed by the board if it 
is to maintain its separate junior high school 
and senior high school programs.

36



In Haney, supra, at 372, the court remarked with respect to
the schools scheduled for closing, "Although the record estab­
lishes that the Sevier County high school has only a "C" 
rating by the Arkansas Department of Education, the Sevier 
County elementary school at least as of one year ago was rated 
'A'". In Green v. The School Board of the City of Roanoke,
No. 1093 (W.D. Va., Aug. 11, 1970), affirmed on its rejection
of a proposal to close a formerly black school, No. 15,110 
(4th Cir., June 10, 1971), the lower court stated:

The court has taken a tour of the City of 
Roanoke and has actually observed most of the 
schools in question. It has noted the splen­
did brick construction (with its 10 acres of 
grounds) of Lucy Addison High School, which 
has been used only since 1951. In addition, 
the fact that Addison's closing will cause 
overcrowding in the three remaining high 
schools has not escaped this Court's atten­
tion. The plaintiffs’ objection that the black 
community should not be required to shoulder 
the largest part of the burden involved in the 
desegregation process has merit, although the 
realities of the actual physical facts makes 
such imposition difficult to avoid. The court 
does not feel that the school board or HEW have 
[sic] presented sufficient reasons to justify 
the conversion of such a splendid facility, 
even if the school officials do express good 
faith intentions to use the school for advanced 
and vocational classes. There is a certain stu­
dent and community feeling about a school which 
such a conversion would drastically diminish. 
Therefore, both the school board and HEW high 
school proposals are rejected, and Lucy Addison 
is to retain its present status. (Id. , Slip op. 
at 7)

37



In Smith v. St. Tammany Parish School Board, 302 F. Supp. 106, 
108 (E.D. La. 1969), the court rejected the school board's
proposal stating:

Both the plaintiff and the plaintiff-intervenor 
object to the proposed closing of the all-Negro 
Folsom Rosenwald School in Ward II which is an 
adequate school facility. Its displaced stu­
dents would be assigned to Folsom Consolidated, 
presently a predominantly white school with a 
capacity of 350 students. The board's proposal 
would seriously overtax the facilities of Folsom 
Consolidated, which lias a projected enrollment 
for the 1969 school year of 523. No valid 
educational reason exists for abandoning the 
satisfactory educational facilities of the 
Folsom Rosenwald School, hitherto identified 
as black, and requiring its students and faculty 
to relocate. No such burden is placed upon 
white students or teachers. Since the proposed 
closing creates serious problems of overcapacity 
and cannot be justified in any rational admin­
istrative basis, it is inherently discriminatory 
and therefore invalid.

In Choctaw County Board of Education v. United States, 417 F.2d 
845 (5th Cir. 1969), a school board proposal to close a formerly 
black school was granted because it was so inferior in physical 
facilities and equipment that it "could not even have co-existed 
in 1896 with Plessy v. Ferguson ..." (id_. at 846). And the
Fourth Circuit Court of Appeals in Chambers v. Iredell County 
Board of Education, 423 F.2d 613 (1970), allowed the closing of 
a black school because it had severe "physical shortcomings," 
including proximity to a scrap metal salvage yard, and

38



"inadequately small site" and some classrooms of "obsolete" 
construction. _Id. at 616.

Only recently this Court held as follows in reversing a 
lower court decision which approved the closing of several 
formerly black schools:

Here, however, it is clear from the record and 
briefs that the primary reason for closing the 
schools was the county board's conclusion that 
the use of black facilities would lead whites 
to withdraw from the public system. And there 
is little evidence of any legitimate reasons 
for closings. Although arguing below that the 
black facilities were inferior, appellees asserted 
on appeal that the facilities of County Training 
are excellent. Also, the district court found 
County Training to have an excellent physical 
plant in assigning twelve grades of black stu­
dents there. Thus the action is not supported 
by the inferiority of the physical facilities. 
Moreover, the county's plan would have required 
an extended day at Oxford High because of the 
overcrowding caused by closing County Training.
In the record before us, the county's original 
proposal is unacceptable. Lee v. Macon County 
Board of Education, No. 30154 (5th Cir., June 29,
1971) (slip op. at 16).

In addition to factors such as condition of physical plant, 
size of site and effect upon capacities of schools left open, 
courts have also concerned themselves with the extent to which 
white schools as well as black schools have been proposed for 
closing under any specific desegregation plan. For example, 
in Carr v. Montgomery County Board of Education, 429 F.2d 382 
(5th Cir. 1970), this Court affirmed a District Court's approval

39



of a plan that proposed closing three formerly black schools 
because of the lower court's findings that "each of these 
closed schools has an inferior physical plant or site" and 
that the "Board plan ... also includes the closing of some 
predominantly white schools ..." (_id_. at 385).

The foregoing discussion represents an effort to distill 
from decisions relating to black school closings generally 
applicable principles and standards. The truth of the matter, 
in fact, is that no federal court, to plaintiffs' knowledge, 
has articulated any bases for determining school closing issues 
which grow out of traditional interpretations of the Fourteenth 
Amendment and of the Equal Protection Clause. Consequently, 
one can identify in several recent school closing decisions a 
growing deference on the part of federal courts to the "admin­
istrative and educational expertise "of school boards despite 
the clearly discriminatory impact of school closings upon black 
communities, both parents and teachers. Where a school board 
can present so-called "non-racial, educationally justified" 
explanations for closing black schools, courts have not seen fit 
to interfere. See Wright v. Board of Public Instruction of 
Alachua County, 431 F.2d 1200 (5th Cir. 1970), and Mims v. Duval 
County School Board, No. 30418 (5th Cir., Aug. 16, 1971).

40



Plaintiffs submit that federal courts need not abdicate 
responsibility for making hard decisions regarding school 
closings. Constitutional standards already exist upon the 
basis of which such decisions can be made with assurance and 
predictability. Under the Equal Protection Clause of the 
Fourteenth Amendment, state-created classifications may not 
be arbitrary or capricious but must instead be based upon 
determinations clearly related to lawful powers and purposes 
of the state. Tussman & ten Broek, The Equal Protection of 
the Law 37 Calif. L. Rev. 341 (1949). The demands imposed 
by the Equal Protection Clause upon state classifications 
are further characterized according to the nature of rights 
or privileges affected by the classification. Where the state- 
imposed classification relates to economic regulation the 
Equal Protection Clause accords a presumption of validity to state 
action as long as there is a rational relation to a legitimate 
state purpose. McGowan v. Maryland 366 U.S. 420, 425-26 
(1961). A higher standard is exacted of the state by the 
Equal Protection Clause where a classification affects certain 
rights regarded as fundamental under our system of government.
In order to sustain classifications involving such rights, the 
state must establish a "strong justification" in terms of valid 
purposes in order to prevail. Harper v. Virginia Board of 
Elections 383 U.S. 663 (1966); Reynolds v. Sims 377 U.S. 533 
Skinner v. Oklahoma ex rel Williamson,316 U.S. 535 (1942); 
and Griffin v. Illinois 351 U.S. 12 (1956). But there exists

41



an even greater standard applicable to state-imposed classi­
fications which relate to race, national ancestry or alienage. 
Where persons of one race are treated differently from those 
of another, by state action, the classification is automati­
cally suspect. It can be defended constitutionally only where 
the state can establish a "compelling need" for such a classi­
fication. Given the history of race relations in this country, 
greatest judicial scrutiny has been focussed upon state classi­
fications which treated blacks differently from whites. 
McLaughlin v. Florida 379 U.S. 184 (1964) and Loving v. Vir­
ginia 388 U.S. 1 (1967).

It cannot be gainsaid that where school boards propose 
to close only formerly black schools in the process of dese­
gregation that a state agency has established a racial classi­
fication. In most instances, the proposed closings envision 
the transferring of only black students to white schools in 
order to achieve greater desegregation. Blacks, therefore, 
constitute a class specially and uniquely affected by the 
school closings. As a racial classification, the appropriate 
standard to be applied by federal courts is not that to which 
economic classifications are subjected - rational relation to 
a valid state purpose - but rather that of "compelling justi­
fication" and "absolute necessity". In accord with this 
approach, most administrative and educational justifications 
proffered by school boards in black school closings would 
not meet the test. We would submit that in closing a dilap -

42



idated school facility, a board might meet the "compelling 
justification" test, since the health and safety of school 
children would be at issue. But would it justify closing 
only black dilapidated schools leaving white inadequate schools 
still operating? We think not. Federal courts must take seri­
ously their responsibility to apply traditional Equal Protection 
Clause standards to black school closing problems. Should this 
not occur, no "educational justification" for black school 
closings will prove too insubstantial to warrant court sanction.

The September 17, 1971 order of the court below approving 
the closings of Holden Street and Webster Avenue elementaries 
constitutes an interesting case in point. By almost every 
objective criterion employed in other school closing cases, 
no adequate justification existed for the termination of Holden 
Street and Webster Avenue as educational facilities. On August 
12, 1971 Superintendent of Schools James Higginbotham testified
as follows:

I have not intention of closing any school which 
is presently operating in the Orange County 
system. That does not mean that the Board 
cannot close one but I have no intention of 
bringing such a recommendation and the likeli­
hood that they would close without a recommen­
dation is very slim (TR II,p. 208)

Dr. Thomas Moffat, deputy superintendent for instruction of
the Board, stated that schools closed in the past were all
old, physically dilapidated facilities when they were aban
doned (TR IV - pp. 165-167). However, Mr. John Goonen,
director of pupil assignment for the Board, testified that

43



both Webster Avenue and Holden Street were sound physical 
structures (TR IV pp. 54, 72). Furthermore, Webster Avenue 
was situated on approximately 20 acres (TR IV - p. 53) and 
Holden Street had an approximately 8 acre site (TR IV - p. 75). 
Though Webster Avenue was approximately 100 students under 
capacity during 1970-71, three surrounding predominantly white 
elementaries, Lakemont, Dommerich and Killarney were either 
overcapacity or at capacity (TR IV - p. 55). Yet the Board 
proposed in September and the district court approved the 
closing of Webster Avenue and Holden Street elementaries 
because they were located on property "highly desirable as 
commercial" (TR IV - pp. 13, 15) which the board wanted to 
dispose of for economic reasons. The Board made no across- 
the-board study with respect to other commercially valuable 
properties owned by it before deciding to close Holden Street 
and Webster Avenue elementaries (TR IV - p. 57). Testimony 
revealed that although Delaney Elementary, a predominantly 
white school located east of Holden Street, was overcrowded, 
situated on 3^ acres, in a commercial district and 10-20 years 
older than Holden Street, no thought was given to closing it 
because "it is a neighborhood school and we have students in 
that area" (TR IV - pp. 76-77). Princeton Elementary (TR IV - 
p. 198) and Lake Silver Elementary (TR IV - p. 157), predom­
inantly white schools, are also located in commercial areas. 
Apparently the fact that residential areas exist to the east 
and northeast of Webster Avenue (TR IV - pp. 11-12) and that

44



residential areas exist to the east and south of Holden Street 
(TR IV - pp. 14, 74) was not sufficient to convince the Board 
of the "neighborhood" character of the schools designated 
for closing.

Perhaps some respectable justification could be found 
for closing Holden Street and Webster Avenue if desegregation 
were meaningfully increased by reassignment of students from 
the all-black schools. But such was not the case. Under the 
Board's proposal, children from Holden Street were to be as­
signed to Grand Avenue (TR IV - p. 62) and to Princeton, Rock 
Lake and Orange Center (TR IV - pp. 65-67) . The assignment of 
Holden Street students to Grand Avenue, already 50% black in 
1970-71, would increase the black ratio approximately 25%
(TR IV - p. 62). A similar increase in the black percentage 
at Orange Center would occur with the addition of students 
from Holden Street (TR IV - p. 68).

Moreover, the Board's plan, based upon the closing of Holden 
Street and Webster Avenue, represented a greater strain upon both 
students and facilities than plaintiffs' proposals for keeping 
open and desegregating the two schools. Under the Board's plan, 
students from Webster would be bused to Killarney - 2 miles away, 
Hungerford - 2 miles away and Fern Creek - 3 miles away (TR IV - 
pp.44-48). Under plaintiffs' proposal, Webster Avenue would be 
paired with Lakemont Elementary approximately 3.5 miles and only 
10 minutes apart (TR I - p. 50). The Board's proposal assign­
ing Holden Street students to Grand Street envisioned

45



doubling the enrollment at the latter facility piacing over­
whelming demands upon central facilities (TR IV - p. 64).
Holden Street children assigned to Princeton would have to be 
bused 2.7 miles; and those assigned to Rock Lake from Holden 
and from Orange Center to Rock Lake would have to walk appro­
ximately .75 miles along highways having no sidewalks whatso­
ever. (TR IV - pp. 68, 81-82). Under the plaintiffs' proposals, 
Holden Street would be clustered with Hillcrest Elementary, 
approximately 3.1 miles and nine minutes away, and with Lake 
Como Elementary, approximately 3.2 miles and also 9 minutes 
away (TR.I - pp. 41-43).

Plaintiffs submit that certainly under the "compelling 
interest" test, or for that matter even under the lesser 
"strong justification" test, the Board has failed to support 
constitutionally its decision to close two adequate black schools 
and no white schools and to transfer 1177 black students and 
only 113 white students as part of its "educational plan".
The district court order approving the closing of Holden Street 
and Webster Avenue elementaries should be reversed.

46



ARGUMENT

III The District Court Erred In Leaving
One Elementary School All-Black Which It Found Was A Vestige Of The Dual 
System Where A Feasible Alternative 
Was Available To Desegregate It.

Though plaintiffs have argued in "I" above that the 
district court erred in finding that Jones was not a vestige 
of the dual system, we concede that, in any event, no feasible 
alternative appears available to achieve further desegrega­
tion of that facility. Hence its continued existence as a 
predominantly black school does not violate the proscriptions 
of Swann, supra. Likewise, with respect to Washington Shores 
Elementary, plaintiffs concede that the facility, though cor­
rectly found by the district court to be a vestige of the dual 
system, cannot be desegregated by feasible means.

Plaintiffs' take quite a different posture regarding the 
district court's disposition of Eccleston Elementary. Eccleston 
was found by the district court to be a vestige of the dual 
system. It properly rejected a Board proposal to convert 
Eccleston and Carver Junior High into a joint special educa­
tion center. The complex would have required at least 18 
months to build (TR IV - pp. 152); though the Eccleston-Carver 
site had not been approved by the State Board of Education 
for a special education center, two other sites had received 
such approval six to eight months prior to preparation of the 
Board's education plan (TR III - pp. 152-153); and the Board 
had taken no steps to approve financing for the Eccleston- 
Carver complex (TR IV - p. 167). The proposal was no more

47



2-

concrete than the architectural renderings submitted to 
the court by the Board.

Instead, the court decided to leave Ecceston as an
all-black facility holding as follows:

A wide belt of schools to the north, 
east and south of the Eccleston school 
contains elementary schools which are 
already integrated with considerable 
numbers of black students, so that pair­
ing or clustering of Eccleston with any 
of such schools accomplish little in 
way of desegregation. The pairing of 
Eccleston with a school beyond such a 
belt would require cross-busing of the 
youngest school children (grades one 
through six) which this Court finds is 
not feasible (Slip op. at 17, September 
17, 1971).

Plaintiffs submit that the district court's determination 
with respect to Eccleston, whether it is regarded as a 
conclusion of law or a finding of fact, was erroneous.
As a matter of law, Swann clearly holds that "pairing 
and grouping of noncontiguous school zones is a permissi­
ble tool and such action is to be considered in light of 
the objectives sought" (28 L.Ed. 554, 574). The district 
court rejected the notion of noncontiguous pairing out of 
hand. As a matter of fact, plaintiffs' proposal for deseg­
regating Eccleston, especially if no consideration is given 
to Washington Shores, involves the clustering of Eccleston 
with three virtually all-white schools located between 3.6 
and 4.6 miles, and between 11 and 14 minutes travel time 
away. The resulting racial composition of the clustered 
schools would be 68.3% white and 31.7% black (Tr. I, pp. 43, 
53) .

48



The district court's order leaving Eccleston all­
black should be reversed by this Court.

49



ARGUMENT
IV. The District Court Erred In Requiring 

Less Than The Singleton Standard With 
Respect To The Reassignment of Faculty 
and Administrative Staff In Schools 
Closed Under The Approved Desegregation 
Plan.

In response to certain misgivings voiced by plaintiffs
at the September 14, 1971 hearing on the matter of faculty
and staff displaced by school closings (Tr. IV, p. 180),
the district court's final order recited as follows:

In order to avoid any future controversy 
on that subject the approval of the plan 
of the board to close Webster and Holden 
is subject to the board providing any dis­
placed principal, staff member, or faculty 
member by the closing of the two schools, 
with a comparable position (Slip op., at 
26) .

While,as a matter of fact, the standard established by the 
district court may provide adequate protection for faculty 
displaced as a result of school closings, we suggest that 
the "comparable position" formula falls far short of that 
established by this Court in Singleton, at 1217-1218. In 
the interest of uniformity and predictability, we submit 
that the Singleton standard should be substituted for that 
of the district court.

50



Conclusion

For the foregoing reasons, plaintiffs respectfully 
submit that the district court order of September 17, 
1971 should be reversed and remanded with the following 
directions :

(1) That it order implemented immediately 
plaintiffs' proposals for the desegregation of 
Eccleston, Orange Center, Maxey , Richmond 
Heights, and Hungerford elementaries.

(2) That it impose upon the Board the 
Singleton, supra, standard with respect to fu­
ture school construction and site selection;

(3) That it order Holden Street and Webster 
Avenue Elementaries reopened immediately and de­
segregated along lines suggested by plaintiffs; 
and

(4) That it impose upon the Board the 
Singleton, supra, standard with respect to the 
dismissal or demotion of faculty and staff.

JACK GREENBERG \j 
NORMAN J. CHACHKIN 
DREW S. DAYS, III

10 Columbus Circle 
New York, N.Y. 10019

NORRIS D. W00LF0RK, III 
305 South Parramore Ave. 
Orlando, Florida 32805

Attorneys for Plaintiffs-Appellees 
51 -



I D

Certificate of Service

This is to certify that on this 15th day of 
November, 1971, I served a copy of the foregoing "Brief 
of Plaintiffs-Appellees, Cross-Appellants" upon James 
W. Markel, Esq., Post Office Drawer 1960, Winter Park, 
Florida 32789, attorney for defendant-appellant, by 
United States air mail, special delivery, postage pre­
paid .

52