Singleton v Jackson Municipal School District Memorandum of Appellants

    V
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 26285

DEREK JEROME SINGLETON, et al.,
Appellants,

v.
JACKSON MUNICIPAL SCHOOL DISTRICT, et al.,

Appellees.

NO. 28261
CLARENCE ANTHONY, et al.. 

Appellants, 
v.

MARSHALL COUNTY BOARD OF EDUCATION
Appellee.

NO. 28350
LINDA STOUT, etc., et al.. 

Appellants, 
v.

JEFFERSON COUNTY BOARD OF EDUCATION, et al..
Appellees



DORIS ELAINE BROWN, et al.,
Appellants,

v.
THE BOARD OF EDUCATION OF THE CITY 
OF BESSEMER, et al.,

Appellees.

NO. 28349
BIRDIE MAE DAVIS, et al.. 

Appellants, 
v.

BOARD OF SCHOOL COMMISSIONERS OF 
MOBILE COUNTY, et al..

Appellees.

NO. 28409
NEELY BENNETT, et al.. 

Appellants,
v.

R. E. EVANS, et al.,
Appellees.

ALLENE PATRICIA ANN BENNETT, etc., et al.
Appellants,

v.
BURKE COUNTY BOARD OF EDUCATION, et al.. 

Appellees.



NO. 28407
SHIRLEY BIVINS, et al.,

Appellants,
v.

BIBB COUNTY BOARD OF EDUCATION
AND ORPHANGE FOR BIBB COUNTY, et al..

Appellees.

NO. 28408
OSCAR C. THOMIE, JR., et al., 

Appellants, 
v.

HOUSTON COUNTY BOARD OF EDUCATION
Appellee.

NO. 27863
JEAN CAROLYN YOUNGBLOOD, et al.,

Appellants,
v.

THE BOARD OF PUBLIC INSTRUCTION 
OF BAY COUNTY, FLORIDA, et al..

Appellees.

NO. 27983
LAVON WRIGHT, et al..

Appellants,
v.

THE BOARD OF PUBLIC INSTRUCTION OF 
ALACHUA COUNTY, FLORIDA, et al.,

Appellees



MEMORANDUM OF APPELLANTS

In accordance with the Court's direction# appellants in these 
nine cases submit this memorandum concerning the validity, 
significance and applicability, etc. to the cases before the Court 
of Section 407 (a)(2) of the Civil Rights Act of 1964, 42 U.S.C. 
§2000c-6.

That section provides that:
. . . nothing herein shall empower any 
officer or court of the United States to 
issue any order seeking to achieve a 
racial balance in any school by requiring 
the transportation of pupils or students 
from one school to another or one school 
district to another in order to achieve 
such racial compliance with constitutional 
standards.

yThe language and the legislative history of the section were 
reviewed in United States v. Jefferson County Bd„ of Educ., 372 
F.2d 836, 880 (1966), aff'd en banc, 380 F.2d 335 (5th Cir.), cert. 
denied sub nom. Caddo parish School Bd,. v. united States, 389 U.S. 
840 (1967) where this Court held that Section 407(a)(2) did not 
restrict the remedial powers either of HEW or of the federal courts 
in school desegregation suits brought to redress the deprivation of

The Memorandum of the United States in these cases supports 
the interpretation of the legislative history set out herein.y



2/constitutional rights.
Numerous other federal courts have since passed upon this 

section and all have concluded that the Act does not bar a federal 
court from requiring busing as a means of achieving integration if 
such is necessary to meet the affirmative obligations of school 
boards to erect unitary non-racial school systems. United States 
v. School District No. 151 of Cook County, 286 F. Supp. 786 (N.D. 
111.), aff'd 404 F.2d 1125 (7th Cir. 1968); Moore v. Tangipahoa 
Parish School Bd., Civil No. 15556 (E.D. La., July 2, 1969); Keyes 
v. School District No. 1, Denver, Civil No. C-1499 (D. Colo.,
Aug. 14, 1969), stay pending appeal granted, ___ F.2d ___ (10th
Cir. No. 432-69, Aug. 27, 1969), stay vacated, ___S.Ct. ____
(Mr. Justice Brennan, Acting Circuit Justice, Aug. 29, 1969); Dowell 
v. School Bd. of Okla. City, Civil No. 9452 (W.D. Okla. Aug. 8, 1969
vacated, ___ F.2d ___ (10th Cir. No. 435-69, Aug. 27, 1969),
reinstated, ___ S.Ct. _____ (Mr. Justice Brennan, Acting Circuit
Justice, Aug. 29, 1969); cf. Swann v. Charlotte-Mecklenburg Bd. of 
Educ., ___ F. Supp. ___, Civ. No. 1974 (W.D. N.C., April 23, 1969).

2/ The Jefferson dissenters were concerned with what appeared
to them to be the declaration of different constitutional 
rules for north and south. As we read the decisions, the 
applicable constitutional principles are the same wherever 
a school district has had a hand in creating a segregated 
public school system, north or south. United States v.
School District 151 of Cook County, 286 F. Supp. 786 (N.D. 
HI.) aff'd 404 F.2d 1125 (7th Cir. 1968). And, as Judge 
Heebe has put it, "most situations of so-called 'de facto 
segregation' are, in reality, the result of intentional 
discrimination by state officials." Moses v. Washington 
Parish School Bd., 276 F. Supp. 834, 847 (E.D. La., 1967).

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The issue, as it has been framed by school boards at various
3/txmes, xs whether that section of the Act bars a federal court, 

in an action to enforce the Fourteenth Amendment, from requiring 
transportation of black or white students to or from any school 
facility as part of an effective desegregation plan.

There are several reasons not to construe the law to embrace 
such a broad bar. In the first place, it is a truism of statutory 
interpretation that statutes should be construed, whenever possible, 
so as to sustain their constitutionality. If Section 407 were 
construed as a limitation upon the power of the federal curts to 
fashion a remedy for the deprivation of Fourteenth Amendment rights, 
serious constitutional questions concerning the validity of the 
legislation would be presented. Generally speaking, the power of 
a court of equity to fashion remedies is commensurate with the 
scope of the wrong. And where racial discrimination constitutes 
the wrong, federal courts have "not merely the power but the duty 
to render a decree which will so far as possible eliminate the 
discriminatory effects of the past as well as bar like discriminatior 
in the future." Louisiana v. united States, 380 U.S. 145, 154 (1965) 
Cf. United States v. Montgomery County Bd. of Educ., 395 U.S. 225 
(1969); Gray v. Main, ___ F. Supp. ____, No. 2430-N (M.D. Ala.,

3/ The language in question is found in that part of the
statute which authorizes the Attorney General of the United 
States, upon complaint, to sue individual school districts 
which operate segregated public school systems. However, we 
assume arguendo, as suggested by this Court in Jefferson, 
that application of Section 407(a)(2) is not limited to suits 
brought by the Attorney General.



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March 29, 1968); Hogue v. Aubartin, 291 F. Supp. 1003 (S. D. Ala.
1968) ; Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); Plaquemines 
Parish School Bd. v. United States, No. 24009 (5th Cir., August 15,
1969) (slip opinion at pp. 29-31).

But the Court need not decide the constitutional question. 
There is little reason to believe that Congress intended such a 
drastic limitation upon the remedial powers of the federal courts. 
We think it is clear from the repeated references by several 
senators and representatives to Bell v. School City of Gary, Ind«, 
213 F. Supp. 819 (N. D. Ind.), aff'd 324 F.2d 209 (7th Cir. 1963), 
cert, denied 377 U.S. 924 (1964), that the provision was added to 
the legislation to negate any possible construction of the statute 
supporting a new statutory cause of action to redress innocently 
arrived at, de facto racial imbalance in the schools. The law 
of the Bell case was that where a court found no State involvement 
in creating the pattern of segregated schools, there was no right 
to a decree requiring that the pattern be altered by the school 
board. Senator Humphrey, floor manager of the bill in the Senate 
(where the most important changes in and additions to the bill 
were made; see, <e.c[., pent v. St. Louis-S.F. Ry. Co., 406 F.2d 399 
(5th Cir. 1968)), said that. Section 407(a)(2) was added to write 
"the thrust of the court's opinion [in the Gary case] into the 
proposed substitute." 110 Cong. Rec. 12714-15 (1964).

When the Civil Rights Act of 1964 was drafted, the distinction 
between de facto and de jure segregation had already been drawn.

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and the use of the phrase "racial imbalance" to refer to the former 
(as contrasted with "segregation1) had already become common. Thus, 
the language of the section, that "nothing herein" (emphasis supplied 
shall empower the courts to deal with "racial imbalance" cases 
(saying nothing of existing judicial power derived from the 
Constitution or other statutes), also supports the view that it was 
intended only as a safeguard against interpretations of the statute 
which would expand the jurisdiction of the federal courts. The Act 
was not to be construed as making any change in the basic 
prerequisites which had to be met in order to invoke the jurisdic­
tion of the federal courts in school desegregation cases. The Act 
was not intended to imply that plaintiffs in such actions need no 
longer prove complicity by the school board or the State in creating 
a segregated condition in the public schools.

It would be wrong to impute to Congress any intention to 
intervene in the declaration of constitutional doctrine —  the 
function of the judiciary. The language added to the Act was 
designed to make clear that by enacting the law, Congress was not 
attempting to change established constitutional principles.

Any other construction of the statute would seriously hamper 
effectuation of the constitutional rights of hundreds of thousands 
of Negro schoolchildren. For example, the requirement that a 
school district's bus transportation system be reorganized on a 
nonracial basis, when combined with even as modest a desegregation 
plan as freedom of choice, amounts to a directive to transport

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students to schools in order to dismantle a dual system of education 
created and maintained by state action. It was for this reason 
that Jefferson construed Section 407(a)(2) as inapplicable to limit 
the remedial powers of the federal courts in dealing with school 
districts in which there was de jure segregation.

Moreover, "busing" is a rather familiar feature on the 
educational scene, in 1967-68, some 17,271,718 public school 
students in the United States were given transportation at school 
district expense, in the States represented by the cases before 
this Court the figures were as follows:

Number of Enrolled Pupils Trans- 
State ported at Public Expense, 1967-68

Alabama 397,754 ~
Florida 368,968
Georgia 517,517
Louisiana 508,007
Mississippi 313,466
Texas 491,85514/

It is also well known that virtually all private schools and
kindergartens in the country transport their students by bus. Thus
a decree requiring the use of school buses as a means of achieving
a unitary system injects nothing of startling significance into
school desegregation cases. As the court stated in Swann v.
Charlotte-Mecklenburg 3d. of Educ., supra, slip opinion at p. 16,

4/ Statistics on School Transportation (National Commission
on Safety Education of the National Education Association, 
1963).

'397,754 
368,968 
517,517 
508,007 
313,466 
491,855 "4

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The Board has the power to use school 
busses for all legitimate school 
purposes. Busses for many years were 
used to operate segregated schools.
There is no reason except emotion (and 
I confess to having felt my own share 
of emotion on this subject in all the 
years before I studied the facts) why 
school busses cannot be used by the 
Board to provide the flexibility and 
economy necessary to desegregate the 
schools. Busses are cheaper than new 
buildings; using them might even keep 
property taxes down.

The busing issue is at least indirectly involved in all of 
the cases before the Court. In every case there is at least the 
possibility that an effective desegregation plan which meets the 
standards previously declared by this court, i,e., elimination of 
all-Negro schools and eradication of racial identifiability, may 
require busing of students from one school to another. Every 
district has in the past bused students to schools outside their 
residence neighborhoods to maintain segregation. These districts 
should be required to use buses to achieve integration. But the 
Department of Health, Education and welfare, which has served this 
Court much as a special master in school desegregation cases, ê .£.
Davis v. Board of School Comm'rs of Mobile, ____ F.2d ___ (5th Cir
1969), has declined to recommend plans which call for busing, even 
where it is required to achieve a unitary school system, because

5/of purported doubts as to its legality. It is therefore

5/ Consider the following statements by HEW in its July 10,
1969 report to the district court on the Mobile school system 
(p. 100) :

Our recommendations undoubtedly raise the question 
whether, under the circumstances here, assignments 
legally are required to be in a desegregation plan 
if they require substantial additional transporta­
tion. This, we believe, is a legal question which 
we can only leave to the parties and to the court.



appropriate that the Court, sitting en banc, should make clear the 
obligation of the district courts to require busing, if needed, as 
a means of effectuating a unitary school system. If transportation 
is necessary in order to operate the schools constitutionally, 
district courts should entertain neither constitutional nor 
statutory objections to this procedure.

In all of these cases, the record establishes that each of the 
school districts has in the past used busing to maintain segregationr 
In some, such as Singleton, Youngblood and Davis, the record shows 
that an effective plan to establish a unitary school system will 
require busing to achieve integration. In every instance the school 
boards object, on the grounds of Section 407, to a decree requiring 
the use of busing as a means of desegregation. But in most district 
transportation will be required to achieve one element 6f a 
quality1 education:--integration. , Transportation, like any other 
aspect of quality education: books, schools, teachers, etc., is
thus the responsibility of the school districts.

In some instances, school districts seek to transport only 
Negro students, leaving all-black schools and placing the burden 
of desegregation once again on Negro schoolchildren.

We commend to the court's attention the following language 
from Brice v. Landis, Civil No. 51805 (N.D. Cal., Aug. 8, 1969) 
slip opinion at pp. 6-7.

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It is true that the bussing of Negro children 
to achieve integration, when the circumstances 
so require, is not in itself discrimination.
As a practical matter some transfer by bussing 
of Negro children will obviously be involved in 
most integration plans. There may be practical 
situations in which minority groups could not 
reasonably complain that an equal or fairly 
comparable number of white children were not 
also being transferred by bussing, e.g., when 
the predominantly Negro school is dilapidated 
or a fire hazard or otherwise physically 
unsuitable as to require closing.
Where* however, the closing of an apparently 
suitable Negro school and transfer of its 
pupils back and forth to white schools without 
similar arrangements for white pupils, is not 
absolutely or reasonably necessary under the 
particular circumstances, consideration must be 
given to the fairly obvious fact that such a 
plan places the burden of desegregation entirely 
upon one racial group.
The Minority children are placed in the position 
of what may be described as second-class pupils. 
White pupils, realizing that they are permitted 
to attend their own neighborhood schools as usual, 
may come to regard themselves as "natives" and to 
resent the Negro children bussed into the white 
schools every school day as intruding "foreigners." 
It is in this respect that such a plan, when not 
reasonably required under the circumstances, 
becomes substantially discriminating in itself.
This undesirable result will not be nearly so 
likely if the white children themselves realize 
that some of their number are also required to 
play the same role at Negro neighborhood schools.

See also. Felder v. Harnett County Bd. of Educ., 409 F.2d 1070,
1075 (4th Cir. 1969): " . . .  That plan. . . was patently not in
compliance with the court's order. . . .  There was no explanation
offered as to how the School Board determined upon particular
schools for extinction, nor did the closing plan disclose criteria
for assignment of the students of the closed schools except for a
cryptic reference to bus routes."

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We urge the court also to make clear to district courts in 
this circuit that non-racial reasons must support the closing of 
all-Negro schools in preference to their utilization by white 
students, or the proposal of one-way busing only.

Respectfully submitted.

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
WILLIAM ROBINSON 
MICHAEL DAVIDSON 
NORMAN J. CHACHKIN 
DREW DAYS

10 Columbus Circle 
New York, New York 10019 

MELVYN LEVENTHAL 
REUBEN V. ANDERSON 
FRED L. BANKS

538% N. Farish Street 
Jackson, Mississippi 

LOUIS R. LUCAS
525 Commerce Title Building 
Memphis, Tennessee 

JOHN L. MAXEY, II 
STANLEY L. TAYLOR, JR.
North Mississippi Rural Legal 

Services program 
Holly Springs, Mississippi 

0. W. ADAMS, JR.
U. W. CLEMON

1630 Fourth Avenue, N. 
Birmingham, Alabama 35203 

DAVID HOOD
2111 Fifth Avenue, N. 
Bessemer, Alabama 35020 

VERNON Z. CRAWFORD 
FRANKIE L. FIELDS 

1407 Davis Avenue 
Mobile, Alabama 36603 

JOHN H. RUFFIN, JR.
930 Gwinnett Street 
Augusta, Georgia 30903 

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

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V

THEODORE R. BOWERS
1018 North Cove Boulevard 
Panama City, Florida 32401 

EARL M. JOHNSON 
REESE MARSHALL625 West Union Street Jacksonville, Florida 32202
Attorneys for Appellants

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