Steele v. Board of Public Instruction of Leon County Florida Appellants' Reply Brief

    •United States (Unurt nf Appeals
F ob the F ifth Ciecuit

No. 22,684

I n  the

Clifford N. Steele, et al.,

—v.—
Appellants,

B oard of P ublic I nstruction 
of Leon County, F lorida, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLOEIDA

APPELLANTS’ REPLY BRIEF

Jack Greenberg 
James M. Nabrit, III  
Leroy D. Clark

10 Columbus Circle 
New York, New York 10019

T heodore R. B owers

1018 N. Cove Boulevard 
P.O. Box 811 
Panama City, Florida

Attorneys for Appellants

Robert Belton

Of Counsel



TABLE OF CONTENTS

PAGE

I. This Court Has Jurisdiction to Entertain This 
Appeal Under the Authority of 28 U.S.C.A. 
§1292(a)(l) ...............................................................  2

II. Becent Pronouncements From This and Other 
Courts Lend Further Support to Appellants’ 
Claims That the School Board’s Plan is Inade­
quate ..........................................................................  3

A. The School Board’s Present Plan ............ .....  3

B. Current Minimum Standards ............................. 8

C. Faculty Desegregation Is a Necessary Com­
ponent of Valid Desegregation Plan ...............   10

Summary ...........     10



I n the

Httitefc Stall's dmtrt of Appeals
F oe  the F ifth Circuit 

No. 22,684

Clifford N. Steele, et al.,

Appellants,

B oaed of Public I nstruction 
of Leon County, Florida, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOE THE NORTHERN DISTRICT OF FLORIDA

APPELLANTS’ REPLY BRIEF

The School Board, in their brief, pp. 16-19 (hereinafter 
cited as School Board Brief), raise the question of whether 
this Court has jurisdiction to entertain this appeal. More 
importantly, the School Board fails almost completely to 
meet the issues presented by this appeal. In addition, 
neither brief considers the desegregation plan in the case 
at bar in light of the more recent judicial pronouncements.

Appellants shall endeavor to deal, as summarily as pos­
sible, with the jurisdictional question raised by the School 
Board in addition to reviewing the desegregation plan in 
light of current standards.



2

I.
This Court Has Jurisdiction to Entertain This Appeal 

Under the Authority of 28  U.S.C.A. §12 92  (a) ( 1 ) .

A consideration of the proceedings below leading to this 
appeal clearly shows this Court has jurisdiction under 28 
U.S.C.A. §1292(a)(l) which provides that courts of appeal 
shall have jurisdiction over “Interlocutory orders of the 
district courts of the United States . . . granting, continu­
ing, modifying, refusing or dissolving injunctions, or re­
fusing to dissolve or modify injunctions, except where a 
direct review may be had in the Supreme Court. . . . ”

The order from which this appeal is taken was entered 
by the court below on April 7, 1965, denying the Negro 
plaintiffs’ motion for further relief (R. 64-67). The mo­
tion for further relief, tiled about thirteen months after 
the district court entered an order approving the desegre­
gation plan in issue on this appeal, prayed for a modifica­
tion of that plan. The district court, in approving the plan, 
specifically retained jurisdiction of the matter (R. 39-42). 
Since the district court retained jurisdiction in the order 
approving the School Board’s plan, the order of April 7, 
1965, denying appellants’ motion for further relief is an 
interlocutory order within the meaning of 28 U.S.C.A. 
§1292(a)(l) and is, therefore, reviewable by this Court. 
Boson v. Rippy, 275 F. 2d 850 (5th Cir. 1960). See Board 
of Public Instruction of Duval County v. Braxton, 326 F. 2d 
616 (5th Cir. 1964).

The posture of the instant case before this Court is 
patently distinguishable from Taylor v. Board of Educa­
tion, 288 F. 2d 600 (2nd Cir. 1960) on which the School 
Board relies (School Board Brief p. 19). In Taylor, the 
appeal was from an order requiring only that the New



3

Rochelle School Board submit a plan—the plan had not 
been submitted nor approved at the time the appeal was 
sought. In the instant ease, the plan has been submitted 
and approved pursuant to court order, and the district 
court has denied appellants’ motion to modify the plan 
(emphasis supplied). See Boson v. Rippy, supra at 853. 
Even if the court below did not enter a “formal” order 
on April 7, 1965, refusing the appellants injunctive relief 
(similarly with the April 22, 1963 order), under the cir­
cumstances,1 the Negro parents and pupils were entitled 
to have a specific ruling from the trial court, and his 
“refusal” to do so satisfies the requirements of 28 U.S.C.A. 
§1292(a)(l). Compare United States v. Lynd, 301 F.2d 
818, 822 (5th Cir. 1962).

II.

Recent Pronouncements From This and Other Courts 
Lend Further Support to Appellants’ Claims That the 
School Board’s Plan Is Inadequate.

A. The School Board’s Present Plan

The School Board’s brief tends to confuse rather than 
justify the serious inadequacies of its desegregation plan. 
The question is not whether the plan is being adminis­
tered in good faith as approved by the district court (see 
School Board Brief 4, 10). The critical issue is whether 
the plan itself is adequate compliance by the School Board 
in discharging its affirmative obligation to desegregate the 
Leon County public school system. In addition to the in­
adequacies already discussed in appellants’ main brief, pp.

1 See appellants’ main brief, pp. 4-5, particularizing the procedures that, 
were necessary to obtain any ruling on the motion for further relief from 
the district eourt.



4

11-14 (hereinafter cited as Appellants’ Brief) there are 
ambiguous provisions which further underscore the in­
adequacy of the plan:

(1) The plan proposes the disestablishment of separate 
school zones on a grade-a-year basis. However, the plan 
fails to specify whether or not Negro students who reside 
within disestablished separate school zones will be assigned 
to schools on a nonracial basis. The School Board should 
be ordered to initially assign all pupils in grades presently 
covered (and those to be covered in future years) under 
this plan, on a nonracial basis where Negro pupils have 
not availed themselves of the permissive transfer provi­
sion.

(2) The provision relating to new pupils entering the 
first grade and pupils coming into the school system for 
the first time states that these students shall be “admitted 
to appropriate school” without discrimination as to race 
or color. This provision fails to specify: (a) whether or 
not “admission” means that Negro pupils covered there­
under are to be initially assigned to schools on a nonracial 
basis and/or (b) if Negro pupils are “admitted” to a 
school based on the criterion of race, whether or not they 
will be eligible to transfer to white schools during their 
first year in the system.

Even if ambiguities did not adhere in the present plan, 
appellants submit it is still inadequate. The School Board 
has designated its plan as a “freedom-of-choice” plan 
(see School Board Brief, p. 5). Their plan, however, is 
not characteristic of free choice plans as approved in 
other cases2 or as adopted by the Department of Health,

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



5

Education and Welfare (HEW ).3 Rather, the plan is 
nothing more than a scheme which continues routine as­
signment of Negro pupils to segregated schools with a 
“ theoretical” provision allowing Negro pupils to transfer 
to a school where they can obtain a desegregated educa­
tion. 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 compliance with a school 
hoard’s affirmative obligation to establish a desegregated 
school system.4 Wheeler v. Durham City School Board, 
346 F.2d 768, 772 (4th Cir. 1965); Bradley v. School Board,

Board of Education, 334 F.2d 983 (5th Cir. 1964)] eases. 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 other­
wise 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 biracial 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 o f Education of Muscogee County, 342 F.2d 225, 228- 
229 (5th Cir. 1965).

3 The 1965 H.E.W. guidelines clearly provides that in the 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. 
General Statement of Policies Under Title V I 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.

4 “A  system o f free transfer is an acceptable device for achieving a 
legal desegregation of schools. . . .  In this circuit, we do require the 
elimination o f 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 o f a segregated 
system is not a sufficient corrective in this Circuit. It must be accom­
panied by an elimination o f discrimination in handling initial assign­
ment.”  Nesbit v. Statesville School Board, supra, at 334.



6

345 F.2d 310, 319 (4th Cir. 1965); Nesbit v. Statesville 
City Board of Education, 345 F.2d 333, 334 (4th Cir. 1965). 
See Buchner v. County School Board, 332 F.2d 452, 454 
(4th Cir. 1964).

Several additional factors demonstrate the plan is not 
an acceptable freedom of choice plan. First, the plan fails 
to provide for faculty desegregation and is, in this respect, 
in conflict with this Court’s recent decision in Singleton v. 
Jackson Separate Municipal School District, 355 F. 2d 865 
(5th Cir. 1966). See argument infra at page 10. Secondly, 
the plan continues the discriminatory “ feeder system” (R. 
32). Under this system, when a Negro pupil first enters 
the public school system of Leon County he is assigned to 
an all Negro school; when he graduates from the elemen­
tary school, he is automatically assigned to Negro Junior 
High or High School which feeds from the Negro ele­
mentary school. Under the feeder system the initial assign­
ment determines what schools Negro pupils will attend 
during his entire school career, based on long established, 
separate school zones for Negro and white pupils set up 
by the Board. The feeder system in the instant case is 
similar to those held to be constitutionally deficient in 
Green v. School Board of City of Roanoke, 304 F.2d 118, 
120 (4th Cir. 1962); Dodson v. School Board of Charlottes­
ville, 289 F.2d 439, 443 (4th Cir. 1961) and Hill v. School 
Board of City of Norfolk, 282 F.2d 473, 475 (4th Cir. 1960).

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, supra at 324 (opinion of Justices Sobeloff 
and Bell). The test of whether a freedom of choice plan 
is acceptable as an interim measure is among other things,



7

the attitude 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.5 6

Appellants submit that the School Board plan is un­
acceptable because the plan operates to minimize desegre­
gation. The record before this Court shows no evidence 
that even a free choice plan would be adequate to desegre­
gate the segregated public school system in Leon County.6 
The present plan has been in operation for over three 
years, and only 41 Negro students have made application 
to transfer to formerly all-white schools. Of these, only 11 
Negroes have been permitted to transfer.

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

6 As of June, 1964, only 4 Negro children were attending previously 
all-white schools in Leon County. (See Appellants’ Brief, p. 6.) The 
record on appeal does not disclose the number o f Negroes permitted to 
transfer in the 1964-65 school year, however, a letter, dated July 9, 1965 
from counsel for the School Board disclosed the following: seven (7) 
applications by Negro students for reassignment to previous all-white 
schools have been approved, twenty-nine (29) have been denied.

On March 22, 1966, appellants served interrogatories on the School 
Board which were designed to elicit the present status of desegregation 
under the School Board’s present plan. The School Board refused to 
answer the interrogatories and filed objections to said interrogatories in 
the court below. The School Board failed to request a hearing in the 
district court on the objections to the interrogatories appellants served 
on them as required by the Federal Rules of Civil Procedure.

On April 7, 1966, appellants filed in this Court a motion to supple­
ment the record on appeal. The intent o f the motion pending in this 
Court is to bring before this Court the extent of the present status of 
desegregation in Leon County. The information sought in the motion to 
supplement the record will aid this Court in the disposition of the appeal 
which is set for oral argument on May 2, 1966.



8

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 geo­
graphic attendance zones.7 Under appellants’ proffered 
plan, Negro and white pupils living within the newly 
constructed zones would he assigned to schools based on 
a nonracial basis. Appellants’ proposed plan has been 
held to be an acceptable desegregation plan. See Bell v. 
School Board of Staunton, Va., 249 F. Supp. 249 (W.D. 
Va. 1966) in addition to cases cited in Appellants’ Brief, 
p. 19. Appellants, in this Court, adhere to their argument 
that nonracial assignments by zones is the only means of 
obtaining lawful desegregation in Leon County.

B. Current Minimum Standards

Whereas the School Board’s grade-a-year desegrega­
tion plan may have been an acceptable plan several years 
ago, a consideration of that plan in light of current deci­
sions clearly shows it to be woefully inadequate. The 
School Board reflects a determination to limit desegrega­
tion to a grade-a-year under which desegregation will not 
reach all twelve grades until September, 1975. A grade-a- 
year plan, if challenged, is not an acceptable desegregation 
plan. Price v. Denison Independent School Board, 348 
F.2d 1010, 1012 (5th Cir. 1965).

Not only does the School Board fail to show valid ad­
ministrative reasons justifying such delay, see Watson v. 
City of Memphis, 373 U.S. 526 (1963) and Bradley v.

7 The present plan provides for elimination of separate attendance zones 
for Negro and white pupils; however, the provision relating to the elim­
ination of separate school zones is only for the purpose of determining 
those grades for which Negro pupils will be allowed the privilege of exer­
cising the transfer right. I f  a Negro pupil fails to exercise the transfer 
privilege, he is automatically assigned to an all-Negro school, even though 
he is residing in an area where dual zones have been disestablished.



9

School Board, 382 U.S. 103 (1965), but the School Board’s 
plan does not conform to the accelerated standard as to 
speed promulgated by this Court in Singleton v. Jackson 
Municipal Separate School District, 348 F.2d 729 (5th Cir. 
1965), which set a target date of 1967 for total desegrega­
tion of public schools. Moreover, this Court has stated 
what any desegregation plan should include as a minimum, 
namely: (1) desegregation at a speed faster than one 
grade per year; (2) assignment without regard to race 
to each pupil new to the system 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 ap­
plication of the plan to the respective grades; (5) admis­
sibility of Negroes to any school for which they are other­
wise eligible without regard to race. These minimum 
standards were recently confirmed by this Court in Single- 
ton v. Jackson Separate Municipal School District, 355 
F.2d 865, 867 (5th Cir. 1966). See also, Price v. Denison 
Independent School District, 348 F.2d 1010 (5th Cir. 1965).

This Court has held that it attaches great weight to the 
standards promulgated by the United States Department 
of Health, Education and Welfare (HEW), which has the 
responsibility for the enforcement of Title VI of the Civil 
Rights Act of 1964. Singleton v. Jackson Municipal Sepa­
rate School District, 348 F.2d 729 (5th Cir. 1965); Price 
v. Denison Independent School District, supra at 1013. 
Subsequent to the filing of briefs in the instant case, HEW 
has issued a revised statement8 accelerating the standards 
to which school desegregation plans must comply. The

8 Revised Statement of Policies For School Desegregation Plans Under 
Title V I of the Civil Rights Act of 1964, U.S. Department of Health, 
Education and Welfare, Office of Education, March 1966. See also Appel­
lants’ Brief pp. 17-18.



10

School Board’s plan fails to meet either the minimum 
standards set out by this Court or the HEW requirements.

C. Faculty Desegregation Is a Necessary Component 
of Valid Desegregation Plan

Appellants have already discussed the error committed 
by the court below in refusing to permit any inquiry into 
continued segregation of faculty and other school personnel 
(Appellants Brief pp. 22-25). This Court, after reviewing 
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 submit 
specific plans for faculty desegregation. Singleton v. Jack- 
son Municipal Separate School District, 355 F.2d 865 (5th 
Cir. 1966). 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.Va. 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) (not yet 
reported).

Summary

The relief to which appellants are entitled is no less 
than that granted in Singleton v. Jackson Municipal Sep­
arate School District, 355 F.2d 865 (5th Cir. 1966). For 
the reasons stated in this and appellants’ main brief the 
judgment of the lower court approving the School Board’s 
present plan should be reversed and the cause remanded 
with specific directions to the district court to enter an 
order enjoining the School Board to submit a desegrega­
tion plan under which the School Board would be required 
to disestablish separate attendance zones for Negro and



11

white pupils and construct unitary, geographic attendance 
areas or zones.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
Leroy D. Clark

10 Columbus Circle 
New York, New York 10019

T heodore R. Bowers

1018 N. Cove Boulevard 
P.O. Box 811 
Panama City, Florida

Attorneys for Appellants

Robert Belton 
Of Counsel



12

Certificate of Service

This is to certify that a copy of Appellants’ Reply Brief 
was served upon William A. O’Bryan, Esq., of Ausley, 
Ausley, McMullen, O’Bryan, Michaels and McGeehee, Post 
Office Box 391, Tallahassee, Florida, attorneys for appel­
lees, by United States mail, postage prepaid, this ...........
day of ............................. , 1965.

Attorney for Appellants



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