Appellees' Motion to Dismiss and Brief in Support; Appellants' Jurisdictional Statement

     [||2c972869-8346-4ec6-bf1d-3bf704f0150e||] In the Supreme Court of the United States 
OCTOBER TERM, 1972 
  

No. 72-77 

  

DELORES NORWOOD, ET AL., 

Plaintiffs-Appellants, 

VS. 

D. L. HARRISON, ET AL, 

Defendants-Appellees. 

  

APPEAL FROM THE NORTHERN DISTRICT OF MISSISSIPPI 

  

MOTION TO DISMISS OR AFFIRM AND BRIEF IN 

SUPPORT OF MOTION TO DISMISS 

  

A. F. SUMMER 

Attorney General of the State of 

Mississippi 

WiLriam A. ALLAIN 

First Assistant Attorney General of 

Mississippi 

HEBER LADNER, JR. 

Special Assistant Attorney General of 

Mississippi 

Attorneys for Defendants- Appellees 

  

  

BE. L. MENDENHALL, INC., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030  



TABLE OF CONTENTS 

MOTION TO DISMISS OR AFFIRM 

BRIEF IN SUPPORT OF MOTION TO DISMISS— 
  

Argument— 

I. Aid to Students in Private and Parochial 

Schools by Lending Them Textbooks Does Not 

Violate the Fourteenth Amendment 

II. The Mississippi Statute Does Not Foster Seg- 

regated Schools in Purpose or Effect 

Conclusion 

Table of Authorities 

CASES 

Abington School District v. Schempp, 374 U.S. 203, 83 

S.Ct. 1560, 10 L.Ed.2d 844 (1963) 

Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 

20 L.Ed.2d 1060 (1968) 

Burton v. Wilmington Parking Authority, 365 U.S. 715, 

81 S.Ct. 856, 6 L.Ed.2d 45 (1961) 

Cochran v. Louisiana State Board of Education, 281 

U.S. 370, 60 S.Ct. 335, 74 L.Ed. 913 (1930) 

Coffey v. Education Finance Commission, 275 F. Supp. 

854 (S.D. Miss.) 

Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 

91 L.Ed. 711 (1947) 

Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 

717, 88 L.Ed. 938 (1944) 

  

 



II 

Irvis v. Moose Lodge #107, 40 L.W. 4715 (No. 70-75, 

June 12, 1972) 

Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 

L.Ed.2d 745 (1971) 

Peterson v. City of Greenville, 395 U.S. 298, 83 S.Ct. 

1119, 10 L.Ed.2d 323 (1963) 

Poindexter v. Louisiana Financial Assistance Commis: 

sion, 275 F. Supp. 833 (S.D. La., 1967), affirmed, 389 

U.S. 571 (1968) 

Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 

L.Ed.2d 830 (1967) 

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 

1161 (1948) 

Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 

L.Ed.2d 697 (1970) 

CONSTITUTIONAL PROVISIONS 

AND STATUTES 

Constitution of the United States— 

 



In the Supreme Court of the United States 
OCTOBER TERM, 1972 

  

No. 72-77 

  

DELORES NORWOOD, ET AL., 

Plaintiffs-Appellants, 

VS. 

D. L. HARRISON, ET AL,, 

Defendants-Appellees. 

  

APPEAL FROM THE NORTHERN DISTRICT OF MISSISSIPPI 

  

MOTION TO DISMISS OR AFFIRM 

Appellees move the Court, under Supreme Court Rule 

16, to dismiss the appeal in that it does not present a sub- 

stantial federal question as to the claim that (1) a 1940 

law providing loaned textbooks to all individual students 

in both public and private schools violates equal protec- 

tion. 

Alternatively, appellees move the Court to affirm the 

final judgment of the District Court on the ground that 

it is manifest that the questions upon which the decision 

of the cause depends are so insubstantial as not to need 

further argument: (1) Because the claim that textbook 

loans to individual students in both public and private 

schools is unconstitutional is obviously without merit and  



because its unsoundness is unmistakably clear from the 

previous decisions of this Court. 

It is, therefore, respectfully moved that this appeal 

be dismissed and, in the alternative, that the judgment of 

the District Court denying all relief be affirmed. 

Respectfully moved this 8th day of August, 1972. 

A. F. SUMMER 

Attorney General of the State of 

Mississippi 

WiLriam A. ALLAIN 

First Assistant Attorney General of 

Mississippi 

HEBER LADNER, JR. 

Special Assistant Attorney General of 

Mississippi 

 



3 

BRIEF IN SUPPORT OF MOTION TO DISMISS 

  

FACTS 

A. The Claim. 

Delores Norwood and other members of the plaintiffs’ 

class are black public school students of the Tunica County, 

Mississippi, School District. The defendants, D. L. Harri- 

son, et al., are members of the Mississippi State Textbook 

Purchasing Board. The plaintiffs, in attendance at the de- 

segregated unitary Tunica County School System, brought 

suit to enjoin the defendants from providing or permitting 

the distribution or sale of state owned textbooks to private 

racially segregated schools and academies. Their standing 

to sue was alleged to spring from their right to a totally 

nondiscriminatory school system and their further right to 

elimination of state support for racially segregated schools, 

which right had allegedly been frustrated by the creation 

of a racially segregated Tunica County institute of learning. 

The statistical and empirical evidence marshalled by 

the plaintiffs to show a supposed connection between the 

growth and health of a private school system in Mississippi 

and the provision for textbooks cannot obscure the thrust 

of their complaint. The plaintiffs are enjoying their con- 

stitutionally grounded right to a unitary public school 

system. While the trial produced evidence of a with- 

drawal from public education in several Mississippi school 

districts, there was no proof that the statutory promise, 

existent since 1940, of provision for textbooks wherever a 

given student attended, was any moving force in the 

changes which ensued in student population. The three- 

judge Court found that ninety per cent (90%) of those 

students previously in public schools remain there.  



4 

Section 5656 of the Mississippi Code of 1942, mandates 

the distribution of free textbooks to Mississippi school 

children: 

“This act is intended to furnish a plan for the 

adoption, purchase, distribution, care and use of free 

textbooks to be loaned to the pupils in all elementary 

and high schools of Mississippi. The books herein pro- 

vided by the board shall be distributed and loaned free 

of cost to the children of the free public schools of the 

state, and all other schools located in the state which 

maintain educational standards equivalent to the 

standards established by the State Department of Edu- 

cation for the state schools.” 

Children in private schools have access to these books 

based on only one discretionary factor. The school attended 

must maintain educational standards equivalent to the 

standards of the State Department of Education. 

The terms of the statute leave no room for interpreta- 

tion. Since 1940, free textbooks have been provided to 

the children attending all private schools in each instance 

where textbook aid has been requested or recommended 

by representatives of the children or upon recommenda- 

tion of a third party. Children attending all private and 

parochial schools located in the State are entitled to free 

textbooks under the statute if the school they are attending 

is located in the State and maintains the standards of the 

State Education Department. It is significant to note that 

the textbooks are loaned to individual students, even 

though distribution is handled through the school. The 

subsidy, if it be a subsidy, is certainly de minimis. The 

annual per pupil expenditure for new or replacement books 

is a mere six dollars.  



5 

Unquestionably, children attending newly formed pri- 

vate schools are enjoying the textbooks. The board, with- 

out an alternative, had to provide books to these students. 

Otherwise, thousands of carefully selected state owned 

textbooks would have been rendered useless, since they 

had already been allocated to each child. 

ARGUMENT 

I. 

Aid to Students in Private and Parochial Schools 

by Lending Them Textbooks Does Not Violate the 

Fourteenth Amendment. : 

For the purposes of constitutional adjudication, the 

contours of forbidden action under the First Amendment’s 

establishment of religion clause, should be analogous to 

but more stringent than standards applicable to forbidden 

state action under the Fourteenth Amendment.! Just as 

a state action may not foster an established religion, it may 

not support racial discrimination. This Court’s precedents 

concerning state provision for assistance to pupils in sec- 

tarian schools require affirmance in this case. Board of 

Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 

1060 (1968); Everson v. Board of Education, 330 U.S. 1, 

67 S.Ct. 504, 91 L.Ed. 711 (1947); Abington School District 

v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 

(1963). 

It is likewise certain from Lemon v. Kurtzman, 403 

U.S. 602, 91 S.Ct. 2105, 29 LL.Ed.2d 745 (1971) that state 

aid to religious institutions which offends the First Amend- 

ment is direct institutional aid which results in an inter- 
  

1. The rights protected or secured from abridgment under 
the First Amendment are said to occupy a preferred position. 
Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 
L.Ed. 938 (1944).  



twined relationship between the government and the re- 

ligious authority. Id. at 757. “Neutral, or nonideological 

services, facilities or materials” may be provided free of 

the Establishment clause if they are given in common to 

all students. In striking down Pennsylvania’s aid to de- 

fray teachers’ salaries in church related schools, the Kurtz- 

man Court found that the aid ran afoul of the carefully 

preserved distinction that aid must flow to the student and 

not to the church related school per se. Id. at 760. Non- 

student centered financial assistance has likewise been up- 

held for churches but only in the context where the in- 

volvement of the state is not excessive and where there 

is no continuing call for state surveillance or entangle- 

ment. Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 

25 L.Ed.2d 697 (1970). While the tax exemption was to 

benefit the institution directly, it was saved by virtue of 

its application to all denominations and by the harshness 

that might be worked by taxing church property. 

This Court has unerringly considered whether a given 

enactment has “a secular legislative purpose and a primary 

effect that neither advances nor inhibits religion.” Ewver- 

son, supra, at 858. The fact that aid may have assisted a 

given religious institution did not, in the cited cases, de- 

flect this Court from considering the recipient of the aid 

and not the institutional by-product of that assistance. 

Specifically, the Allen Court reaffirmed Cochran v. Louisi- 

ana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 

74 L.Ed. 913 (1930), holding that state wide provision for 

free textbooks to all students was permissible under the 

Fourteenth Amendment in that the state may further sec- 

ular education through private schools as a proper public 

concern. 

This Court treated the argument that free school books 

assist students in attending sectarian and parochial schools  



as of no consequence. Even though the textbook aid was 

certainly of some value to the religious school, this Court 

acknowledged that line drawing was necessary, and that 

the aid was not so direct or substantial as to violate the 

Establishment clause. Allen, supra, at 1065. This line 

drawing function is more sharply delineated in the Four- 

teenth Amendment cases in which the Court’s formulation 

has been that the state must “insinuate itself into a position 

of interdependence [with otherwise private persons] . . . 

so that they must be recognized as a joint participant in 

the challenged activity.” Burton v. Wilmington Parking 

Authority, 365 U.S. 715, 81 S.Ct. 856, 6 1.Ed.2d 45 (1961). 

Surely six dollars ($6.00) per year per pupil expenditure, 

when all students of every race enjoy that benefit, cannot 

be said to be unconstitutional state aid. Furthermore, the 

notion that Section 6656 aids schools is at variance with 

the facts. No funds are provided to the school because the 

textbooks are loaned to the students, and ownership of 

the books remains in the state. These were significant 

facts in Allen, and they are significant facts here. 

The Court has lately addressed itself to the degree 

of state action necessary to bring the Fourteenth Amend- 

ment into play. Irvis v. Moose Lodge #107, 40 L.W. 4715 

[No. 70-75, June 12, 1972]. There our position was re- 

affirmed in the assertion that private discrimination does 

not offend equal protection merely because “the private 

entity receives any sort of benefit from the State ...” Id. 

at 4718. To violate equal protection the state must be 

commanding a discriminatory result by its machinery. 

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 

(1948); Peterson v. City of Greenville, 395 U.S. 298, 83 

S.Ct. 1119, 10 L.Ed.2d 323 (1963). Here, the Mississippi 

statute providing textbooks is in no such “symbiotic” re-  



8 

lationship with private discrimination. Irvis, supra, at 

4718. 

One final factor cuts in favor of affirmance. Should 

the case be reversed, the District Court must decide which 

of 107 private schools can receive books, Stated “open 

door” policies must be looked into. Determinations must 

be reached as to the quantity of integration necessary to 

avoid the textbook ban. Further, what standard should 

be used for the state’s Catholic schools which have scant 

numbers of black students? 

II. 

The Mississippi Statute Does Not Foster Segre- 

gated Schools in Purpose or Effect. 

Judge John Minor Wisdom, writing for a three-Judge 

Court which enjoined Louisiana’s tuition grant system, 

distinguished this case: 

“Any aid to segregated schools that is the product 

of the State’s affirmative, purposeful policy of fos- 

tering segregated schools and has the effect of en- 

couraging discrimination is significant state involve- 

ment in private discrimination. (We distinguish, 

therefore, state aid from tax benefits, free school- 

books, and other products of the State’s traditional 

policy of benevolence toward charitable and educa- 

tional institutions.)” Poindexter v. Louisiana Finan- 

cial Assistance Commission, 275 F. Supp. 833. 

This ipse dixit from Judge Wisdom seems particu- 

larly appropriate since his rationale would void “any state 

aid” if the purpose and effect were suspect. 

The proscription on state aid fostering private dis- 

crimination has fallen upon  



9 

“aid which is the product of the state’s affirmative, 

purposeful policy of fostering segregated schools and 

has the effect of encouraging discrimination . . .” 

Coffey v. Educational Finance Commission, 275 F. 

Supp. 854 (S.D. Miss.). 

The state must significantly encourage private dis- 

crimination both in purpose and effect. Reitman v. Mul- 

key, 387 U.S. 369, 87 S.Ct. 1627, 18 1.Ed.2d 830 (1967). 

The purpose is to be judged by the natural and probable 

effect of the legislation. Poindexter v. Louisiana Finan- 

cial Assistance Commission, 275 F. Supp. 833 (S.D. La., 

1967), affirmed, 389 U.S. 571 (1968). 

Neither in purpose nor effect does the Mississippi Text- 

book law foster segregated schools. Unlike the tuition 

grants, it is a “neutral statute” without racial motivation. 

On the other hand, all the tuition grants were thinly 

veiled segregation statutes. Tuition grants were direct 

aid. As stated in Poindexter, “The private schools es- 

tablished in Louisiana are direct beneficiaries of the 

grants in aid; the children or the parents are conduits 

to the school.” Poindexter, supra, at 852. Here textbook 

aid goes directly to the student. 

The relationship between the growth of private schools 

in step with the increased revenue from tuition grants is 

well documented. Here, no such link is established and 

cannot be in the face of the unchallenged finding that 

90% of the students remain in public schools. 

 



10 

CONCLUSION 

State statute’s provision for loans of textbooks to 

all students in both public and private schools does not 

offend the Equal Protection Clause of the Fourteenth 

Amendment. Neither does the Mississippi statute foster 

segregated schools in a way which would invalidate the 

statute. 

Appellees submit that the appeal from the judgment 

of the District Court denying all relief should be dis- 

missed, or, in the alternative, that the Judgment and 

Opinion upon which it is based should be affirmed with- 

out further briefing and argument. 

Respectfully submitted, 

A. F. SUMMER 

Attorney General of the State of 

Mississippi 

WiLLiam A. ALLAIN 

First Assistant Attorney General of 

Mississippi 

HEBER LADNER, JR. 

Special Assistant Attorney General of 

Mississippi 

 



  

  

IN THE 

Supreme Court of the United States 

October Term, 1972 

  

DzeLoreEs Norwoob, et al., 

Appellants, 
—_—V 

D. L. Harrison, Sr., et al. 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

  

  

JURISDICTIONAL STATEMENT 
  

  

MeLvyy R. LEVENTHAL 

Frep L. Banks, Jr. 

ReuBexn V. ANDERsoON 

53814 North Farish Street 

Jackson, Miss. 39202 

JACK GREENBERG 

James M. Nasrrr, III 

Norman J. CHACHKIN 

CHARLES STEPHEN RALSTON 

10 Columbus Circle 

New York, New York 10019 

Attorneys for Appellants 

  

   



1i1 

TABLE OF AUTHORITIES 

Cases: 

Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958) 

Alexander v. Holmes County Board of Education, 396 

U.S. 19 (1969) 3,4,7,8,11,12 

Anderson v. Canton Municipal Separate School Dist. 

& Madison County School Dist., No. 28030 (5th Cir., 

Dec. 22, 1969) 

Blackwell v. Anguilla Line Consolidated School Dist., 

No. 28030 (5th Cir., No. 24, 1969) 

Board of Education v. Allen, 392 U.S. 236 (1968) 

Brown v. South Carolina Board of Kducation, 296 F'. 

Supp. 199 (D. S.C. 1968), affirmed per curiam, 393 

U.S. 222 (1968) 

Coffey v. State Educational Finance Commission, 296 

F. Supp. 1389 (S.D. Miss. 1969) 89,11,21 

Coit v. Green, 404 U.S. 997 (1971) 

Cooper v. Aaron, 358 U.S. 1 (1958) 

Evers v. Jackson Municipal Separate School District, 

328 F.2d 408 (5th Cir. 1964) 

Green v. Connally, 330 F. Supp. 1150 (D. D.C. 1971 

affirmed sub nom. Coit v. Green, 404 U.S. 997 (1971) 

18, 23 

Green v. Connally, 330 F. Supp. 1150 (D. D.C. 1971), 

U.S. 430 (1968) 3.4,7,8,17,'19 

Green v. Kennedy, 309 F. Supp. 1127 (D. D.C. 1970), 

appeal dismissed for want of jurisdiction sub nom. 

Cannon v. Green, 398 U.S. 956 (1970) 11,18, 19 

Griffin v. State Board of Education, 296 F. Supp. 1178 

(E.D. Va. 1969)  



PAGE 

Jackson Municipal Separate School District v. Derek 

Jerome Singleton, 402 U.S. 944 (1971) 

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) .... 

Lee v. Macon County Board of Education, 267 F'. Supp. 

458 (M.D. Ala. 1967), affirmed sub nom. Wallace v. 

United States, 389 U.S. 215 (1967) 

Lemon v. Bossier Parish School Board, Civ. No. 10,687 

(W.D. La., Sept. 25, 1970) 

Lemon v. Kurtzman, 403 U.S. 602 (1971) 

North Carolina Board of Education v. Swann, 402 U.S. 

43 (1971) 

Poindexter v. Louisiana Finance Commission, 274 F. 

Supp. 833 (E.D. La. 1967), affirmed per curiam, 389 

U.S. 571 (1968) 

Swann v. Charlotte-Mecklenburg Board of Education, 

402 U.S. 1 (1971) 

United States v. Covington County School Dist., No. 

28030 (5th Cir., Dec. 17, 1969) 

United States v. Hinds County School Board, 433 F.2d 

098 (5th Cir. 1969) 

United States v. Jefferson County Board of Education, 

372 F.2d 836, affirmed en banc, 380 F.2d 385 (5th 

Cir. 1967) 

U. S. v. Tunica County School District, 323 F. Supp. 

1019 (N.D. Miss. 1970), affirmed, 440 F.2d 377 (5th 

Cir. 1971)  



PAGE 

Wallace v. U. S., 389 U.S. 215 (1967), affirming Lee 

v. Macon County Bd. of Ed., 267 F. Supp. 458 (M.D. 

Ala. 1967) 

Wright v. City of Brighton, 441 F.2d 447 (5th Cir.), 

cert. denied sub nom. Hoover Academy, Ine. v. 

Wright, 404 U.S. 915 (1971) 

Wright v. Council of the City of Emporia, 40 U.S.L. 

Week 4806 18, 21, 23 

Statutes: 

28 U.S.C. § 1253 

28 U.S.C. §§ 2281, 2284 

Miss. Code, 1942, § 6511 

Miss. Code, 1942, § 6634 

Miss. Code, 1942, Sections 6634-6659.5 ..........coooemeeenee.... 

Miss. Code, 1942, § 6641 

Miss. Code, 1942, § 6646 14, 15, 16 

Miss. Code, 3942, S0050-......cccid ncn ccsinertonnt it amatoinss 2,3 

Miss. Code, 1942, § 6658 

Other Authority : 

U.S. Code Congressional and Admin. News, Sept. 5, 

1970, P.L. 91-381, 84 Stat. 806 

 



IN THE 

Supreme Cort of the Ruited States 
October Term, 1972 

  

DerLoreEs Norwoob, ef al., 

Appellants, 

— — 

D. L. Harrison, Sg., ef al. 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

  

JURISDICTIONAL STATEMENT 

Opinion Below 

The opinion of the United States District Court for 

the Northern District of Mississippi, reported at 340 F. 

Supp. 1003 (N.D. Miss. 1972), is appended hereto, Ap- 

pendix A, pp. la-22a. 

Jurisdiction 

This is an appeal from a final judgment entered by a 

three-judge district court, convened pursuant to 28 U.S.C. 

§§2281 and 2284, denying a permanent injunction enjoin- 

ing state officers from enforcing a state statute having 

state-wide application. Jurisdiction of this Court is ac-  



2 

cordingly invoked pursuant to 28 U.S.C. §1253. Kennedy 

v. Mendoza-Martinez, 372 U.S. 144 (1963). 

Complaint was filed on October 8, 1970. The case was 

submitted to the district court on the basis of stipulations, 

depositions, briefs and oral argument on July 9, 1971. 

The district court’s judgment, denying all relief and dis- 

missing the complaint, was rendered on April 17, 1972, 

and entered on April 18, 1972 (Appendix A, p. 23). Notice 

of appeal was filed in the United States District Court for 

the Northern District of Mississippi on May 16, 1972 

(Appendix A, p. 24a). 

Constitutional and Statutory Provisions Involved 

This case involves the Hqual Protection Clause of the 

Fourteenth Amendment to the Constitution of the United 

States. 

This case also involves §6656 of the Mississippi Code, 

1942 (volume 5, pp. 495-96 of the Mississippi Code, 1942, 

Chap. 152, Laws of 1940), which states: 

Plan.—This act is intended to furnish a plan for the 

adoption, purchase, distribution, care and use of free 

textbooks to be loaned to the pupils in all elementary 

and high schools of Mississippi. 

The books herein provided by the board shall be 

distributed and loaned free of cost to the children of 

the free public schools of the state, and all other 

schools located in the state, which maintain educa- 

tional standards equivalent to the standards estab- 

lished by the state department of education for the 

state schools. 

Teachers shall permit all pupils in all grades of 

any public school to carry to their homes, for home  



3 

study, the free text books loaned to them, and to 

carry to their homes, for home study, all other regular 

text books used in the public schools of the state 

whether they be free text books or not.! (Emphasis 

added.) 

Question Presented 

Whether Miss. Code, 1942, §6656, to the extent that it 

provides for the distribution and use of state owned text- 

books to private racially segregated academies formed for 

the purpose and/or having the effect of providing white 

students with an alternative to public integrated schools, 

violates the Kqual Protection Clause of the Fourteenth 

Amendment. 

Statement 

I. Proceedings Below. 

January 23, 1970, the United States District Court for 

the Northern District of Mississippi entered an order re- 

quiring the integration of all public schools of Tunica 

County, Mississippi, no later than February 2, 1970, in 

accordance with standards established by this Court in 

Green v. County School Board of New Kent County, 391 

U.S. 430 (1968), and Alexander v. Holmes County Board 

of Education, 396 U.S. 19 (1969). Upon the entry of this 

order all white students of Tunica County withdrew from 

public schools and formed a private academy housed in 

church facilities. The principal and 17 of 21 high school 

teachers of the Tunica County system resigned in mid- 

year to assume positions with the new private school. 

1 The statutes defining Mississippi's textbook program are ap- 
pended hereto, Appendix B, pp. 27a-43a.  



4 

December 4, 1969, the Executive Secretary of the Missis- 

sippi Textbook Purchasing Board, appellee herein, cir- 

culated a memorandum to “County and Separate District 

Superintendents” which stated: 

Subject: Textbooks for Private Schools. 

We have many disturbed parents since the Court de- 

cisions. Many of them are going to organize private 

schools, and they are going to need books. 

Since all the money has been allotted for this year, it 

will be necessary for the superintendents to transfer 

books with the student as he transfers to the private 

school. . . . 

We appreciate your cooperation in this difficult situa- 

tion. 

As a result of this memorandum the textbooks used by 

white students fleeing integrated education in Tunica 

County and throughout the state were transferred from 

public schools to private segregationist academies in Jan- 

uary, 1970.2 

October 8, 1970, four black students of Tunica County 

filed this class action to enjoin the Mississippi Textbook 

Purchasing Board and its Executive Secretary from dis- 

tributing state-owned textbooks to the private academies 

of Tunica County and all other academies of Mississippi 

formed in response to the implementation of this Court’s 

Brown,* Alexander and Green decisions. Plaintiffs alleged, 

ter alia, that: 

2 Tunica County public school officials continued to pay the 
salaries of the white teachers and the principal who abandoned 
the public schools in favor of the newly formed private academy. 
This practice was enjoined and restitution ordered. U.S. v. Tunica 
County School District, 323 F. Supp. 1019 (N.D. Miss. 1970), 
affirmed, 440 F.2d 377 (5th Cir. 1971). 

* Brown Vv. Board of Education, 347 U.S. 483 (1954); 349 U.S. 
294 (1955).  



5 

[T1heir right to a racially integrated and otherwise 

non-diseriminatory public school system, vindicated by 

order of . . . [the district court] dated January 23, 

1970 [United States and Driver v. Tunica County 

School District, . ..] and their right to the elimination 

of state support for racially segregated schools, have 

been frustrated and/or abridged by the creation of the 

racially segregated Tunica County Institute of Learn- 

ing and the policies and practices of defendants as set 

forth below . .. 

Beginning with the 1964-65 school year—when the 

first school districts in Mississippi were required to 

integrate under freedom of choice—and through the 

present, numerous private schools and academies have 
been either formed or enlarged, which schools have 

established as their objective and/or have had the effect 

of affording the white children of the State of Missis- 

sippi racially segregated elementary and secondary 

schools as an alternative to racially integrated and 

otherwise non-discriminatory public schools. 

The defendants have provided these racially segre- 

gated schools and academies and the students attending 

such schools, . . . textbooks purchased and owned by 

the State of Mississippi and have thereby provided 

state ald and encouragement to racially segregated 

education and have thereby impeded the establishment 

of racially integrated public schools in violation of 

plaintiffs’ rights assured and protected by the Four- 

teenth Amendment to the Constitution of the United 

States. 

Appellants prayed for an order enjoining the Missis- 

sippi Textbook Purchasing Board from any further distri- 

bution of state owned textbooks to segregationist academies 
and for an order recalling state textbooks which had al-  



6 

ready been distributed to such institutions. After stipula- 

tions were filed and depositions taken, appellants refined 

their prayer for relief: we sought an order withdrawing 

state textbook aid from 148 specifically named private 

academies formed or enlarged for the purpose or with the 

effect of providing white students with an alternative to 

public integrated education.? 

April 17, 1972, the district court rendered its opinion 

holding that: (a) plaintiffs had failed to demonstrate that 

textbook aid was vital to the private schools, i.e., that 
whites would return to public schools if textbook aid was 

withdrawn; moreover, public integrated education was 

secure since 90% of the student population of the state 

continued to enroll in public schools; (b) the statute under 

challenge was enacted in 1940 and was hence free of any 

specific intent to aid private racially segregated academies; 

(ec) the state’s statute contemplated textbook aid to 

students and not to schools and was therefore valid under 

the distinction approved by this Court in the context of the 

First Amendment and aid to parochial education. Board 

of Education v. Allen, 392 U.S. 236 (1968). 

3 Appellants did not challenge textbook aid to the Catholic 
School System of the state which contains 47 schools and enrolls 
12,100 students because that system has generally not been made 
available to white students fleeing integrated public schools. In 
addition, we excluded 7 academies which were either all-black, 
integrated or serving the needs of abandoned, orphaned or retarded 
children. 

Of the 148 specifically named academies against which plain- 
tiffs sought relief, 107 were receiving textbooks and another 41 
were eligible but not participating in the state’s program.  



II. The Growth of Private Academies and Their Impact on 
Public Education. 

A. State-Wide Perspective. 

The district court found that by the commencement of 

the 1970-71 school year a network of 148 private segre- 

gated academies enrolling approximately 42,000 students 

had been formed in the state to provide white students 

with an alternative to integrated public schools. As we 

demonstrate below the creation and enlargement of these 

academies occurred simultaneously with major events in 

the desegregation of public schools and frustrated the 

attainment of fully integrated public schools and the pro- 

mise of Brown, Green and Alexander. 

The decade immediately following Brown—1954-1964— 

was marked by “Massive Resistance” and public schools 

were operated on an absolutely segregated basis. Accord- 

ingly, as late as the 1963-64 school year there was virtually 

no private segregationist school system in the state. 

In 1963, black students in Jackson, Leake County, 

Biloxi and Clarksdale filed the state’s first school desegrega- 

tion suits.’ In 1964, these four districts were required to 

admit black first graders into white schools and the private 

segregationist academy appeared for the first time. White 

Citizens’ Council School #1 and Southside Academy 

¢ During the 1963-64 school year there were 17 private non- 
catholic academies enrolling 2,362 students operating in the state. 
Five enrolled black students only; two were schools for retarded, 
orphaned or abandoned children; one was a Military Academy; 
two were parochial schools now operated on an integrated basis; 
two operated part time programs enrolling only 25 students. The 
five remaining schools enrolled only 722 students. 

5 The late Medgar Evers filed the state’s first school desegrega- 
tion suit in April, 1963. Evers v. Jackson Municipal Separate 
School District, 328 F.2d 408 (5th Cir. 1964).  



8 

opened their doors in Jackson; Clarksdale Baptist School 

began an elementary program for the first time; and St. 

George Day School, also of Clarksdale, doubled its enroll- 

ment and added three grades to its curriculum. The Lake 

County Academy opened with a curriculum limited to first 

graders. These five schools were the only new or enlarged 

private academies operating in the state during the 1964- 

65 school year. 

1965-66 witnessed the implementation of the Civil Rights 

Act of 1964 and the beginning of a concert of effort involv- 

ing the Department of Justice, Department of Health, 

Education and Welfare and private litigants to promote 

integrated public schools. Prodded by Singleton v. Jackson 

Mumicipal Separate School District, 348 F.2d 729 (5th Cir. 

1965), most public school districts in the state integrated 

at least four grades under freedom of choice during the 

1965-66 school year. And by 1965-66 Mississippi counted 
41 private segregationist academies enrolling 3,841 white 

students. 

[D]uring the 1965-66 school year twenty new 

private schools . . . were added [to the twenty-one] 

that had been in operation in 1964-65. In each instance 

the new schools opened in public school districts which 

either were under court order to desegregate or had 

submitted voluntary desegregation plans to the United 

States Department of Health, Education and Welfare. 

Coffey v. State Educational Finance Commission, 296 

F. Supp. 1389, 1391 (S.D. Miss. 1969). 

Green and Alexander implemented in Mississippi dur- 

ing the 1969-70 or 1970-71 school year signalled the end 

of freedom of choice and token desegregation; all students 

in Mississippi public schools were then assigned under 

“terminal” plans for desegregation. 1969-70 also witnessed  



9 

the opening of 55 new private academies and the with- 

drawal of 21,875 white students from public schools. Dur- 

ing the 1970-71 school year an additional 11,061 white 

students withdrew from public schools to enroll in 31 

new academies. (Public and private school enrollments 

for each year, 1963-64 through 1970-71, are contained in 

Appendix C hereto.)® 

In almost all cases the private segregationist academies 

were opened without any meaningful planning and on the 

“thinnest financial basis.” Coffey v. State Educational 

Finance Commission, 296 F. Supp. 1389, 1392 (S.D. Miss. 
1969). No less than 19 were opened in obsolete and aban- 

doned public school buildings; an additional 26 were 

opened in church facilities intended for Sunday School 

purposes only; seven academies were opened in private 

homes or in buildings that were not constructed to house 

educational facilities. Of the approximately 100 academies 

for which information is available through deposition,’ 

only four opened in newly constructed facilities designed 

to house an educational program. Many of the schools 

operate without any formal budget and a few depended 

upon contributions rather than tuition. 

Virtually all of the academies obtained the majority of 

their teachers and administrators from the public school 

systems. Virtually all rely upon the desegregation of 

public schools and “white flight” for their survival. 

6 The record in this case was closed before exact 1970-71 enroll- 
ment figures were available and all references to such enrollments 
are estimates accepted by the district court. 

"There are 104 depositions contained in this record.  



10 

B. Impact of Private Academies on Public School Desegrega- 
tion in Specific School Districts. 

Although the district court found that 90% of the state’s 

school population continues to attend public schools it 

carefully refrained from any specific finding that private 

academies have not undermined public integrated educa- 

tion. In fact, the state-wide retention statistic of 90% 

depends upon the inclusion of many schools districts which 

have only a token number of black students. In the entire 

“gulf coast” of Mississippi and several of the northern- 

most school districts of the state, for example, there has 

been less resistance to public school desegregation.! But 

in districts where public officials have provided no leader- 

ship for desegregation and blacks constitute a larger per- 

centage of the student population, the implementation of 

freedom of choice or terminal plans of pupil assignment 

triggered the decimation of the white public school enroll- 

ment and the resegregation of public schools. 

The following desegregation histories of specific school 

districts illustrate the pattern which emerged upon de- 

segregation in all school districts wherein blacks constitute 

a substantial segment of the student enrollment. 

8 Indeed, the record shows that such districts were generally 
desegregated without litigation and at least one year in advance of 
compliance in other parts of the state. Biloxi Municipal Separate, 
one of the defendant districts in the original school desegregation 
cases in 1963-64, is 85% white and without any private academy. 
It desegregated all twelve grades under freedom of choice by the 
1966-67 school year although it could have easily obtained a stay 
until the 1967-68 school year.  



11 

(1) Holmes County School District’ 

In September, 1965, the United States Distriet Court for 

the Southern District of Mississippi ordered Holmes 

County to desegregate grades 1-4 under freedom of choice. 

Concurrently, three private academies, limited to grades 

1-4 or 1-6 and enrolling approximately 450 students, were 

opened. By the close of the 1967-68 school year, when the 

Holmes County system was desegregated under freedom 

of choice for all twelve grades, the private schools had 

expanded their program to twelve grades and their com- 

bined enrollment to 650 white students. 

Holmes County desegregated its schools under a ter- 

minal plan in September, 1970.'° At that moment one 

additional private school opened in the county and all but 

a handful of white students formerly enrolled in the 

county’s public schools withdrew to attend private segre- 

gationist academies. Holmes County presently has two 

school systems: one public, staffed and attended by 

blacks; the other private, and staffed and attended by 

whites who abandoned the public schools upon this Court’s 

mandate in Alexander. The appellees treat both school 

systems as equals under the state’s textbook program. 

(2) Canton Municipal Separate School District 

The Canton Academy was opened in September, 1965 

concurrently with the implementation of a freedom of 

choice plan for grades 1-4 in the public school system. At 

9 The interdependence of public school desegregation and the 
formation and growth of private academies in Holmes County was 
discussed in Coffey v. State Educational Finance Commission, 296 
F. Supp. 1389, 1391, fn. 7, (S.D. Miss. 1969) and Green v. Ken- 
nedy, 309 F. Supp. 1127 1133 (D.C. 1970). 

10 Holmes County was one of three districts consolidated under 
the Alexander caption which was given until September 1970 to 
implement a “terminal” plan.  



12 

the close of the freedom of choice stage of desegregation 

(1968-69), the Canton Academy enrolled 140 students in 

a curriculum limited to grades 1-8. On January 19, 1970, 

at the precise moment public schools opened under the 

terminal plan of pupil assignment mandated by this Court 

in Alexander, the Canton Academy expanded to serve 

grades 1-12. Its enrollment surged to 1,322, or virtually 

the entire white student body of the Canton Municipal 

Separate School District. At the same moment, the acad- 

emy was moved into an abandoned tent factory with a 

staff of 20 white teachers who had left the public schools 

and with textbooks supplied by appellees herein. (The 

experience of the Tunica County system, wherein named 

plaintiffs attend school, was identical to that of Canton 

and Holmes County, supra, pp. 4-5.) 

(3) Jackson Muwicipal Separate School District 

Prior to the 1964-65 school year Jackson and the sur- 

rounding Hinds County counted only three white private 

academies.’ All were limited to the elementary grades 

and their combined enrollment totaled 411. The 1964-65 

school year witnessed the desegregation of grade one under 

freedom of choice and Citizen’s Council School #1 and 

Southside Academy opened as small elementary schools 

serving grades 1-4. In September, 1965, Jackson and Hinds 

County desegregated four grades under freedom of choice 

and announced that all twelve grades would be so de- 

segregated by 1967-68. During the same month White 

Citizen’s Counsel #1 expanded its program to all twelve 

grades and increased its enrollment from 25 to 103 stu- 

dents while Southwest Academy and First Presbyterian 

Day School opened for the first time. When all twelve 

grades of the public system had been desegregated in 

11 St. Andrews Episcopal (integrated), Jackson Academy 
(opened in 1959) and Jackson Christian.  



13 

1967-68, there were nine segregationist academies enroll- 

ing 1,250 students operating throughout Jackson and Hinds 

County. 

Terminal plans of pupil assignment were implemented 

in Jackson and Hinds County in January and September, 
1970. In September, 1969, the White Citizen’s Council 

operated three schools enrolling 449 students. In Jan- 

unary, 1970, enrollment at Council Schools rose to 2,920 

and other groups opened three new academies. In Sep- 

tember, 1970, when further changes in the plans of pupil 

assignment were implemented, the White Citizen’s Council 

opened three mew academies while other private groups 

opened two more. By the 1970-71 school year there were 

at least 18 private academies enrolling over 10,000 students 

operating in the Jackson-Hinds County area.!? Jackson 

school officials recently explained the impact of private 

academies upon their system to the court: 

For this pattern is emerging: the Courts will attempt 

to achieve a percentage result on the basis of projected 

enrollments; these enrollments will be rendered in- 

accurate by continued loss of white students. . . . 

It is an undeniable fact that desegregation cannot be 

accomplished without the presence of white students 

in the public schools. Surely it is not absolutely neces- 

sary for a community to watch more than 40% of its 

white students leave the public schools [to attend 

private academies] in the space of one year. Enroll- 

ment of white students in the system was 20,966 in 

September, 1969 and 12,095 in September, 1970. 

12 These 1970-71 statistics are estimates accepted by the district 
court. 

13 Jackson Municipal Separate School District v. Derek Jerome 
Singleton, cert. denied, 402 U.S. 944 (1971) ; Petition for Writ of 
Certiorari, pp. 29-30.  



14 

The histories reviewed above are not exceptional. The 

pattern—public school desgregation followed by the with- 

drawal of a substantial number of white students to 

private academies and the resegregation of public schools 

—was repeated in school district after school district 

throughout the state. 

III. The State’s Textbook Program. 

A. The Program Generally. 

Sections 6634-6659.5 of the Miss. Code of 1942 (Appendix 

B, p. 27a et seq.), provide the framework for the selection, 

purchase and distribution of textbooks used in the state’s 

schools. The laws were enacted in 1940 and amended, 

insignificantly, in 1942, 1944, 1946, 1960 and 1966. Prior 

to the initiation of the free textbook program, parents 

were required to purchase textbooks ($6511). Initially 

the Act provided textbooks for the elementary curriculum 

only; in 1942, the legislature extended the program to 

high school grades ($6658). 

Sections 6634 and 6641 establish the Mississippi Text- 

book Purchasing Board and assign to that agency plenary 

authority over the state’s multi-faceted program. Board 

members are the Governor, the State Superintendent of 

Education, and three others appointed by the Governor 

for terms of four years. The Board employs an Executive 

Secretary who serves as full-time administrator. All 

members of the Board and the Executive Secretary are 

appellees herein. 

Textbooks may only be purchased “for use in those 

courses set up in the state course of study adopted by the 

State Board of Education, or courses established by special 

acts of the legislature” (86646). For each such course 

of study there is a “rating committee” consisting of  



15 

educators, and other “persons competent in the appraisal 

of books” appointed by the Governor and State Superin- 

tendent of Education (§6641(d)). No textbook may be 

adopted or purchased by the appellees unless it is first 

approved by the responsible rating committee. 

Once approved, textbooks are purchased under contracts 

between appellees and publishers at a price “not . . . higher 

than the lowest prices at which the same books are being 

sold elsewhere in the United States” (§6646(1)). The 

publishers are required to “maintain a depository at a 

place within Mississippi to be named by the Board 
[Jackson] where a stock of books sufficient to meet all 

reasonable and immediate demands [is] kept” (§6641(f)). 

Appellees send to each school district (and now each 

private school)! requisition forms which list all textbooks 

available free through the state. The school district or 

private school completes the requisition form and returns 

it to the Purchasing Board where it is reviewed by the 

14 Prior to 1970 each County Superintendent of Education was 
required to requisition textbooks for all schools, public and private, 
geographically located within his county. The requisition was then 
approved by the Textbook Purchasing Board and thereafter ship- 
ment was made by the School Book Depository directly to the con- 
signee specified by the County Superintendent of Education. 

In 1970 Congress enacted the Emergency School Assistance Act 
appropriating funds to aid school districts converting to unitary 
systems. The act made it unlawful for any recipient to “engage 

. . in the gift, lease or sale of real or personal property or services 
to a non-public elementary or secondary school or school system 
practicing discrimination on the basis of race, color or national 
origin.” P.L. 91-381, 84 Stat. 806, U.S. Code Congressional and 
Administrative News, September 5, 1970, pp. 3318-3319. Public 
school officials wishing to participate in this federal program were 
forced to disassociate themselves from the private segregatist acad- 
emies. As a result, the Textbook Board, in 1970, established new 
distribution regulations which eliminated County Superintendents 
as conduits for the distribution of textbooks to private academies. 
The distribution regulations are reproduced in the district court’s 
opinion, footnote 2, Appendix A hereto, pp. ba-6a.  



16 

Executive Secretary. After approval, the form is sent 

to the Textbook Depository in Jackson which fills the 

order and ships the textbooks directly to the school district 

or private school. All shipping charges are billed to the 

Textbook Purchasing Board (§§6645(f), 6646(1)). 

B. The Extent of Textbook Aid to Private Racially Segregated 

Academies. 

Appendix D hereto (46a) lists the 107 academies which 

receive textbooks from the State of Mississippi and which 

were found by the district court to have been “formed 

throughout the state since the inception of public school 

desegregation.” 

During the 1970-71 school year these academies enrolled 

approximately 34,500 students and held 175,000 volumes 

costing the state of Mississippi approximately $490,000. 

The annual per pupil expenditure for new or replacement 

textbooks approximates $6.00, which will result in an 

annual recurring state expenditure for these academies 

of approximately $207,000. 

The district court found that there are 8,000 students 

enrolled in an additional 41 private academies which do 

not, at this time, participate in the state’s program. 

Accordingly, an additional $120,000 in initial inventories 

and $50,000.00 annually thereafter is available to private 

segregationist academies.’ 

15 The Executive Secretary testified that the program was not 
administered strictly on a per pupil allotment basis. Rather, they 
sought to provide all textbooks needed and a school could exceed its 
allotment by merely requesting additional aid.  



17 

The Questions Presented Are Substantial 

The decision of the court below upholds the action of 

the State of Mississippi in providing financial assistance 

to buy textbooks for pupils attending more than 100 

racially segregated private schools which were formed to 

promote evasion of public school desegregation in the 

State. The court below held inapplicable prior precedents 

striking down as unconstitutional other forms of state aid 

to these same segregationist academies. The court below 

upheld the supplying of textbooks bought with tax money 

and distributed by state officials at these segregationist 

institutions on the ground that the state acted under a 

statute which had no racial motive, that the textbook aid 

was not essential to continued operation of the segrega- 

tionist academies, and that similar aid had been held to be 

consistent with the Kstablishment of Religion Clause of 

the First Amendment. We believe that the first ground 

is legally insufficient. The second ground is both incorrect 

and legally irrelevant. The Constitution forbids all public 

support of school segregation. Cooper v. Aaron, 358 U.S. 

1, 19 (1958). The third ground relating to the Hstablish- 

ment Clause is not decisive of the racial discrimination 

issues in this case under the Equal Protection Clause. 

The State of Mississippi and all of its agencies must be 

guided by their “affirmative” and continuing duty to 

remedy the effect of past racial discrimination and convert 

school systems from dual to unitary operation. The provi- 

sion of free textbooks to academies which drain public 

schools of white students and faculties and which thereby 

frustrate the attainment of fully integrated public schools 

is inconsistent with the paramount duty. 

In Green v. County School Bd. of New Kent County, 391 

U.S. 430, 437-38, the Court was confronted with the very  



18 

argument relied upon by the court below. There the de- 

fendant school board asserted that its only duty under the 

Equal Protection Clause was to adopt a neutral stance 

and permit “every student regardless of race . . . [to] 

‘freely’ choose the school he will attend.” The Court held 

that the state could not remedy its long history of support 

and encouragement for racial segregation by standing neu- 

trally aside. Rather, state agencies were charged with an 

“affirmative” duty to take whatever steps might be neces- 

sary to convert to a unitary system.® 

This mandate which commands appellees to align them- 

selves unequivocally with public integrated education was 

recently imposed upon the federal government in Green 

v. Kennedy, 309 F. Supp. 1127 (D. D.C. 1970), appeal dis- 

missed for want of jurisdiction, sub nom. Cannon v. Green, 

398 U.S. 956 (1970); and see Green v. Connally, 330 F. 

Supp. 1150 (D. D.C. 1971), affirmed sub nom. Coit v. Green, 

404 U.S. 997 (1971). There the Court was confronted with 

mere indirect aid to private academies and with a neutral 

statute enacted without any discriminatory motive. The 

16 In Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971), the Court again relied upon the state’s duty to 
form a meaningful remedy for past policies and practices of 
segregation, upholding the use of a variety of techniques aimed at 
uprooting an entrenched dual system. In North Carolina Board of 
Education v. Swann, 402 U.S. 43 (1971), a statute tending to 
interfere with the formulation of a remedy for racial segregation 
was held unconstitutional. And in Wright v. Council of the City 
of Emporia, 40 U.S... Week 4806, 4812, the Court held that “a 
new school district may not be created where its effect would be 
to impede the process of dismantling a dual system.” 

See also United States v. Jefferson County Board of Education, 
372 F.2d 836, 869, affirmed en banc, 380 F.2d 385 (5th Cir. 1967) : 

“The only adequate redress for a previously overt system-wide 
policy of segregalion directed against Negroes as a collective 
entity 1s a system-wide policy of imtegration” (emphasis in 
original).  



19 

Court held on motion for preliminary injunction!” that 

donations to segregationist academies of Mississippi could 

not be offset against income as charitable contributions for 

federal income tax purposes because: 

Where there is a showing, as here, that a dual system 

of segregated schools was established and maintained 

in the past either under State mandate or with sub- 

stantial help from State involvement and support, the 

State and the school districts are under a present, con- 

tinwing and affirmative duty to establish a “unitary, 

nonracial system of public education * * * a system 

without a ‘white’ school and a ‘Negro’ school, but just 

schools.” * * * The Federal Government is not con- 
stitutionally free to frustrate the only constitutionally 
permissible state policy, of a unitary school system, 
by providing government support for endeavors to 
continue under private auspices the kind of racially 
segregated dual system that the state formerly sup- 
ported. (Green v. Kennedy, 309 F. Supp. 1127 at 1137) 
(emphasis added)). 

The affirmative duty of Green v. County School Bd. 
of New Kent County, supra, underlies the recent decisions 
of this Court holding unconstitutional legislation providing 
tuition grants for students attending private segregated 
academies. Brown v. South Carolina Board of Education, 
296 F. Supp. 199 (D. S.C. 1968), affirmed per curiam, 393 

U.S. 222 (1968); Poindexter v. Louisiana Finance Com- 

mission, 274 F. Supp. 833 (B.D. La. 1967), affirmed per 

curiam, 389 U.S. 571 (1968). See Wallace v. U. S., 389 U.S. 
215 (1967), affirming Lee v. Macon County Bd. of Ed., 267 

"The final decision reached the same result on statutory rather 
han constitutional grounds, but the decision has obvious strong 
Qonstitutional overtones. See Coit v. Green, supra.  



20 

F. Supp. 458, 475 (M.D. Ala. 1967). And relying entirely 

upon this Court’s decisions in Brown and Poindexter, a 

district court stated the rule of law in Griffin v. State 

Board of Education, 296 F. Supp. 1178, 1181 (E.D. Va. 

1969) : 

“T]he validity of a tuition plan is to be tried on a 

severer issue: whether the arrangement in any mea- 

sure, no matter how slight, contributes to or permits 

continuance of segregated public school education. 

* * * 

To repeat, our translation of the imprimatur placed 

upon Poindexter by the final authority is that any 

assist whatever by the State towards provision of a 

racially segregated education, exceeds the pale of 

tolerance demarked by the Constitution.” (Emphasis 

in original.) 

Under this text the Court held that the Virginia statutes 

were void: 

Indisputably, the State supplies the money; incomes 

from the public treasury; it goes to individual residents 

who may expend it for a segregated classroom. Thus, 

the Virginia payments are made available to help 

in giving life to an educational forum decried by the 

Federal Constitution. . . . 

An absolute and unequivocal prohibition is the 

logical effectuation of the intendment flowing from the 

recent rulings of the Supreme Court. (Griffin, supra, 

at 1181.) 

The courts have similarly outlawed a variety of other 

schemes in which public school properties were transferred 

to aid private racially segregated schools. See Wright v 

City of Brighton, 441 F.2d 447 (5th Cir), cert. dened sg  



21 

nom. Hoover Academy, Inc. v. Wright, 404 U.S. 915 (1971) ; 

Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958) ; United States 

v. Hinds County School Board, 433 F.2d 598 (5th Cir. 

1969). Accord: Blackwell v. Anguilla Line Consolidated 

School Dist., No. 28030 (5th Cir., Nov. 24, 1969) (“No 

abandoned school facility under this plan, if any, shall be 

used for private school purposes”); United States wv. 

Covington County School Dist., No. 28030 (5th Cir., Dec. 17, 

1969) (“It is further ordered that the Lincoln Elementary 

School facility shall not be used, leased, or sold for private 

school purposes”) ; Anderson v. Canton Municipal Separate 

School Dist. & Madison County School Dist., No. 28030 

(5th Cir., Dec. 22,1969) (rule to show cause why injunction 

should not issue) ; Lemon v. Bossier Parish School Board, 

Civ. No. 10,687 (W.D. La., Sept. 25, 1970) (granting injunc- 

tion against use of public school athletic field for game 

between two private schools; field had been leased in Lions 

Club, sponsor of game). 

The proper question then is whether state textbook aid 

to academies which interfered with, and in some cases 

rendered meaningless, the promise of fully integrated 

public schools, “hinders or furthers” '® the dismantling of 

dual school systems. The question almost answers itself: 

textbook aid enables private academies operating on the 

“thinnest financial basis” (Coffey v. State Educational 

Finance Commission, 296 F. Supp. 1389, 1392 (S.D. Miss. 

1969) ) to avoid expending sums for a vital aspect of their 

educational program. It obviously aids the segregationist 

schemes to have textbooks selected, purchased, and dis- 

tributed by the State. But whatever the extent of benefit, 

“state support of segregated schools through any arrange- 

18 See Wright v. Council of the City of Emporia, 40 U.S.L.. Week 
4806, 4809 (“Under the principles of Green and Monroe, such a 
proposal must be judged according to whether it hinders or fur- 
thers the process of school desegregation”).  



22 

ment, management, funds or property cannot be squared 

with the [Fourteenth] Amendment’s command that no 

State shall deny to any person within its jurisdiction the 

equal protection of the laws.” Cooper v. Aaron, 358 U.S. 

1, 19 (1958). 

In the face of these authorities, the district court held: 

[T]he racial identity of the child had nothing to do 

with the original enactment of the Mississippi statute 

nor has it had anything to do with the receipt of a 

free textbook throughout a period of more than 70 

years. HKvery Mississippi school pupil, before and since 

1954 . . . whether enrolled in public, private or paro- 

chial schools, of whatever race, has received the free 

textbooks without question or impediment. (Appendix 

A, 15a.) 
* * * 

It is plain . . . that the books have not been issued 

to the schools but to the students. As in the case of 

public schools, private and sectarian school authorities 

are held responsible for books as a matter of orderly 

administration. The statute does not authorize the 

distribution of books to schools, only to pupils. (Ap- 

dix A, 16a). 
* %* * 

There is no showing that any child enrolled in private 
school, if deprived of free textbooks, would withdraw 
from private school and subsequently enroll in pub- 

lic schools now unitary. (Appendix A, p. 21a.) 

The district court has thus upheld Mississippi’s textbook 
legislation on the grounds that the statute is neutral on its 
face and devoid of any purpose to aid private segregation- 
ist academies. But this Court has made it abundantly clear  



23 

that state legislation and policy, especially in the field of 

education and in systems converted from dual to unitary 

operation, must be measured by its effect rather than its 

purpose: 

[A]n inquiry into the “dominant” motivation of school 

authorities is as irrelevant as it is fruitless. The 

mandate of Brown II was to desegregate schools and 

we have said that “the measure of any desegregation 

plan is its effectiveness.” ... Thus, we have focused 

upon the effect—mnot the purpose or motivation—of a 

school board’s action in determining whether it is a 

permissible method of dismantling a dual system. The 

existence of a permissible purpose cannot sustain an 

action that has an impermissible effect. Wright v. 

Council of the City of Emporia, supra, 40 U.S. Law 

Week at 4810. 

Similarly, the district court’s reliance upon Board of 

Education v. Allen, 392 U.S. 236 (1968), is misplaced. All of 

the tuition grant legislation provided grants directly to stu- 

dents and not to schools and all such legislation has been 

held unconstitutional by this Court. Although the distinction 

between aid to a student and aid to a school may be relevant 

in the context of aid to parochial education and the First 

Amendment, it finds no support in the equal protection 

decisions of this Court. Green v. Connally, 330 F. Supp. 

1150, 1167-1169 (D. D.C. 1971), affirmed sub nom. Coit v. 

Green, 404 U.S. 997 (1971). 

The Court’s inquiry in the Allen case was properly ad- 

dressed to whether state textbook aid was impermissible 

state aid to a church school and thus was an establishment 

of religion or whether it was merely state aid to individual 

students. But such an inquiry is not helpful here since 

Mississippi cannot constitutionally help either schools or  



24 

pupils maintain or attend racially segregated schools with 

tax money. Cooper v. Aaron, 358 U.S. 1, 19 (1958). Mr. 

Justice White pointed to the difference between considera- 

tions involved in establishment of religion cases and racial 
discrimination cases in his concurring opinion in Lemon 

v. Kurtzman, 403 U.S. 602, 671, n. 2 (1971) : 

As a postscript I should note that both the federal 

and state cases are decided on specified Establishment 

Clause considerations, without reaching the questions 

that would be presented if the evidence in any of these 

cases showed that any of the involved schools re- 

stricted entry on racial or religious grounds or re- 

quired all students gaining admission to receive in- 

struction in the tenets of a particular faith. For 

myself, if such proof were made, the legislation would 

to that extent be unconstitutional. 

Finally, the district court’s holding requiring appellants 

to prove textbook aid vital to segregationist academies 

imposes an impossible burden of proof. For neither in the 

tuition grant or the tax exemption cases was there any 

evidence that whites would return to public schools if only 

tuition grants or tax benefits were withdrawn. And since 

the private academies have grown in number and size 

recently, rather than retreated, the standard approved by 

the district court would argue for the restoration of tuition 

grants and tax benefits to the academies of Mississippi. 

The absurdity of this result and the authorities cited above 

are sufficient answer to the standard the district court 

would impose upon plaintiffs in cases such as this. 

The need to provide an effective remedy for the state’s 

historic alignment with racial segregation leads us to still 

another fundamental principle controlling in this case:  



25 

The constitutional rights of children not to be dis- 

criminated against in school admission on grounds of 

race or color declared by this Court in the Brown case 

can neither be nullified openly and directly by state 

legislators or state executive officers, nor nullified by 

them through evasive schemes for segregation whether 

attempted “ingeniously or ingenuously.” Cooper v. 

Aaron, 358 U.S. 1, 17 (1958). 

One such “ingenious or ingenuous” method used by states 

to circumvent their duty under Brown, is to support private 

persons in efforts which they cannot directly undertake. 

Such a scheme was at the foundation of an Alabama tuition 

grant statute and resulted in a holding that “it is axiomatic 

that a state may not induce, encourage or promote private 

persons to accomplish what it is constitutionally forbidden 

to accomplish.” Lee v. Macon County Board of Education, 

267 F. Supp. 458, 475-76 (M.D. Ala. 1967), affirmed sub 

nom. Wallace v. United States, 389 U.S. 215 (1967). It 

should be axiomatic that the State of Mississippi, re- 

strained from directly operating a segregated school sys- 

tem, cannot give financial support or basic educational 

resources—textbooks—to privately operated segregated 

schools. Cooper v. Aaron, 358 U.S. 1 (1958). 

 



26 

CONCLUSION 

For the foregoing reasons probable jurisdiction should 

be noted, and the judgment below should be reversed. 

Respectfully submitted, 

Mervyn R. LeveNTHAL 

Frep L. Banks, Jr. 

ReuBexn V. ANDERSON 

538V5 North Farish Street 

Jackson, Miss. 39202 

JACK GREENBERG 

James M. Nasrir, III 

Norman J. CHACHKIN 

CHARLES STEPHEN RALSTON 

10 Columbus Circle 

New York, New York 10019 

Attorneys for Appellants 

 



Appendix A 

ExTeERED: APRIL 18, 1972 

In THE UNITED STATES DIsTRIcT COURT FOR THE 

NorTHERN DistrIicT 0F MISSISSIPPI 

Crvi. Action No. W(C70-53K 

  

DrerorEs NorwoOOD, ET AL., 

Plawmtiffs, 
—_—V.— 

D. L. Harrison, Sr., ET AL, 

Defendants. 
  

(April 17, 1972) 

Before CoLEmaN, Circuit Judge, and Keapy and Smith, 

District Judges. 

OprinioN oF THE COURT 

CoreEMAN, Circuit Judge: 

1 

The Nature of the Case 

This suit, a class action by Negro children attending 

the public schools, is brought through their parents as 

next friends. 

The defendants are the members of the Mississippi 

State Textbook Purchasing Board and the Executive Secre- 

tary of that Board. 

The gravamen of the complaint is that: 

“Under the laws of the State of Mississippi, defen- 

dants select, purchase, distribute, loan and otherwise  



2a 

Appendix A 

dispose of textbooks, in behalf of the State of Mis- 

sissippi, for the use of children enrolled in the elemen- 

tary and secondary schools in the State of Mississippi 

(Miss. Code Anno. Sections 6634 et seq.) * * *. 

“Beginning with the 1964-65 school term * * * when 

the first school districts in Mississippi were required 

to integrate under freedom of choice * * * and through 

the present, numerous private schools and academies 

have been either formed or enlarged, which schools 

have established as their objective and/or have had 

the effect of affording the white children of the State 

of Mississippi racially segregated elementary and sec- 

ondary schools as an alternative to racially integrated 

and otherwise non-diseriminatory public schools. 

“The defendants have provided these racially segre- 

gated schools and academies and the students attend- 

ing such schools, either through sale or loan, textbooks 

purchased and owned by the State of Mississippi and 

have thereby provided state aid and encouragement to 

racially segregated education and have thereby im- 

peded the establishment of racially integrated public 

schools in violation of plaintiffs’ rights assured and 

protected by the Fourteenth Amendment to the Con- 

stitution of the United States.” 

Plaintiffs thus assert that defendants’ lending of state- 

owned textbooks to children now attending racially segre- 

gated private schools situated within the State of Mis- 

sissippi is violative of plaintiffs’ Fourteenth Amendment 

rights and constitutes illegal state aid to racially segre- 

gated education. Plaintiffs emphasize that they do not 

challenge the right of students attending private schools, 

either sectarian or nonsectarian, to receive state-owned  



3a 

Appendix A 

textbooks so long as the schools they attend were not 

organized in the wake of public school desegregation and 

do not engage in racially discriminatory admission prac- 

tices, but as to students attending schools of the latter 

category, their claim is that the state may not validly 

provide them with free textbooks. 

Plaintiffs pray an order requiring an accounting by de- 

fendants of all textbooks purchased from the State of 

Mississippi or on loan from the State of Mississippi to 

private schools and students enrolled therein; that defen- 

dants be directed immediately to recall, and otherwise 

assure the return to state depositories, of all textbooks 

used by students in attendance at private schools which 

have already been adjudged by other United States Courts 

as racially segregated and which have been formed for 

the purpose of providing white students with an alter- 

native to racially integrated, non-diseriminatory public 

schools ; that the defendants be enjoined from further sale 

or distribution of such textbooks to any private schools 

or students enrolled therein without first notifying plain- 

tiffs and obtaining court approval; and that defendants 

be enjoined from distributing state-owned textbooks to 

any private schools or students enrolled therein without 

first establishing that the school is racially integrated and 

has not had the effect of frustrating or impeding the estab- 

lishment of racially integrated public schools. 

Subject matter jurisdiction, not contested, is predicated 

upon 42 U.S.C., §1983 and 28 U.S.C, §1343(3) and (4). 

In 

Three-Judge Court Jurisdiction 

Subsequent to the original filing of the complaint, plain- 

tiffs submitted the following motion:  



4a 

Appendix A 

“Plaintiffs, pursuant to Jackson v. Choate, 404 F.2d 

910 (5th Cir., 1968), respectfully move this Court to 

certify this cause to the Chief Judge of the United 

States Court of Appeals for the Fifth Circuit to 

convene a Three-Judge District Court pursuant to 28 

U.S.C. §§2281, 2284. 

“We further move that the Three-Judge District 

Court thereafter determine whether this action should 

be litigated before it or a single district court judge.” 

In response thereto, the managing District Judge con- 

cluded that the complaint called for the convening of a 

Three-Judge District Court in accordance with 28 U.S.C., 

§2284, and requested the Chief Judge of the Circuit to 

constitute a Court as contemplated by the statute. There- 

after, the Court was constituted. 

The present views of the plaintiffs to the contrary not- 

withstanding, the Court is of the opinion that, sitting as 

a Three-Judge District Court, it has jurisdiction of this 

controversy. 

Title 28, U.S.C., §2281, provides: 

“An interlocutory or permanent injunction restrain- 

ing the enforcement, operation or execution of any 

State statute by restraining the action of any officer 

of such State in the enforcement or execution of such 

statute or of an order made by an administrative 

board or commission acting under State statutes, shall 

not be granted by any district court or judge thereof 

upon the ground of the constitutionality of such stat- 

ute unless the application therefor is heard and deter- 

mined by a district court of three judges under §2284.” 

To authorize the convention of a Three-Judge Court 

the controversy must possess the following characteristics:  



oa 

Appendix A 

(1) the constitutional question raised must be substantial; 

(2) a state statute or administrative order of general state- 

wide application must be assailed as unconstitutional; (3) 

a state officer must be party defendant; and (4) injunctive 

relief must be sought. Idlewild Bon Voyage Liquor Cor- 

poration v. Kpstein, 1962, 370 U.S. 713, 82 S.Ct. 1294, 

8 L.Ed.2d 794; Hall v. Garson, 5 Cir., 1970, 430 F.2d 430, 

442-443; Moore’s Federal Practice, 1 A. §0.205; C. A. 

Wright, Law of Federal Courts, §50 at 189 (2nd Ed. 1970). 

This case meets these tests. 

An injunction is sought against the enforcement by 

state officials of a state statute, $6634, et seq., Mississippi 

Code, 1942,' and Board regulations. The contention is 

1 Section 6641 (1) (a) Mississippi Code of 1942: 

“The board shall have the power and is hereby authorized : 
(a) To promulgate rules and regulations for the purchase, 
care, use, disposal, distribution, and accounting for all books 
to be furnished under the terms of this Act and to promulgate 
such other rules as may be necessary to the proper administra- 
tion of this Aet.” 

Section 6656 Mississippi Code of 1942: 

“Plan. This Act is intended to furnish a plan for the adop- 
tion, purchase, distribution, care and use of free textbooks to 
be loaned to the pupils in all elementary and high schools of 
Mississippi. 

“The books herein provided by the board shall be distributed 
and loaned free of cost to the children of the free public 
schools of the state, and all other schools located in the state, 

which maintain educational standards equivalent to the stan- 
dards established by the state department of education for 
the state schools.” 

2 The regulation for distribution of state-owned textbooks from 
1940 through 1970 provided as follows: 

“For the distribution of free textbooks the local control will 
be placed in the hands of the County Superintendent of Edu- 
cation. All requisitions for books shall be made through him 
and all shipments of books shall be invoiced through him. At  



6a 

Appendix A 

that although the statute requires the free lending of 

textbooks to all educable children, it should not include 

those attending private racially segregated schools. Plain- 

tiffs say that they do not object to other educable children 

receiving the books. Thus it is argued that they are not 

claiming the statute to be altogether unconstitutional but 

they are only challenging the constitutionality of its ap- 

plication. Since, however, the statute specifically provides 

that all children shall receive the books and this Court 

has no authority to amend that language, we must con- 

sider the complaint as an attack on the statute as written. 

Our jurisdiction, of course, extends to a consideration of 

whether a facially valid statute has been unconstitutionally 

applied by officers in charge of its enforcement. 

As to substantiality, see Fix Parte Poresky, 1933, 290 

U.S. 30, 32; 54 S.Ct. 3, 4; 78 L.Ed. 152, 153; Local Union 
  

his discretion he may set up certain regulations governing the 
distribution of books within the county, such regulations not 
to conflict with the regulations adopted by the State Textbook 
Board or provisions of the Free Textbook Act.” 

The above regulation was revised on October 14, 1970, to read 
as follows: 

“Public Schools. The administration of the textbook pro- 
gram in the public schools shall be the responsibility of the 
administrative heads of the county units, consolidated distriets, 
and municipal separate districts set up by the Legislature. 
All textbook transactions between the public schools and the 
State shall be carried on through them. It shall be the duty 
of these local custodians to render all reports required by the 
State; to place orders for textbooks for the pupils in their 
schools; . .. 

“Private Schools. Private and parochial school programs 
shall be the responsibility of the State Textbook Board. All 
textbook transactions will be carried out between the Board 
and the administrative heads of these schools. Their duties 
shall be the same as outlined above for public schools.”  



Ta 

Appendix A 

No. 300, Amalgamated Meat Cutters & Butchers Workmen 

of North America, AFL-CIO v. McCulloch, 5 Cir., 1970, 

428 F.2d 396, 399-400. 

Contrary to the position taken by defendants, we hold 

that these plaintiffs, black children who are attending 

the public schools, have standing to prosecute this com- 

plaint, Chance v. Mississippi Textbook Rating Board, 1941, 

190 Miss. 453, 200 So. 706; Association of Data Processing 

Service Organizations, Inc. v. Camp, 1970, 397 U.S. 150; 

Barlow v. Collins, 1970, 397 U.S. 1509. 

IIT 

The Merits 

Near the close of the Great Depression, Governor Paul 

B. Johnson, Sr. on January 16, 1940, delivered his In- 

augural Address to a Joint session of the Mississippi 

Legislature. He said that 75,000 children in Mississippi 

were without textbooks, that all states surrounding Mis- 

sissippl gave free textbooks to each child in those states, 

that the failure to provide free textbooks to the children 

of Mississippi was “an indictment of our state govern- 

ment”, and that the State should furnish free textbooks 

to all educable children in the elementary grades. 

The result of this appeal was the enactment of Chapter 

202 of the General Laws of the State of Mississippi of 

1940, approved February 16, 1940, now codified as indi- 

cated supra, by which a textbook purchasing board was 

established. The board was cloaked with authority to 

select, purchase, distribute, and care for free textbooks in 

all schools in the State, through the first eight grades. 

3 Mississippi House Journal, 1940, page 42.  



8a 

Appendix A 

In his message to the Legislature on January 7, 1942,* 

Governor Johnson recommended that the free textbook 

program be extended to high school students. This re- 

sulted in the enactment of Chapter 152 of the General 

Laws of Mississippi of 1942, approved March 23, 1942, 

also codified as above, by which the program was extended 

to include high school students. 

The program had not long been in existence, however, 

before a state court suit was filed to enjoin the Textbook 

Purchasing Board from distributing free textbooks to pri- 

vate and sectarian schools. This was a taxpayers’ suit, 

complaining that textbooks were about to be requisitioned 

by and loaned to pupils in thirteen private elementary 

schools, all of which were sectarian, and that the issuance 

of such books for the free use of students in sectarian 

schools would be a violation of §208 of the Mississippi 

Constitution of 1890. 

Section 208 provides that: 

“No religious or other sect or sects shall ever con- 

trol any part of the school or other educational funds 

of this state; nor shall any funds be appropriated 

toward the support of any sectarian school, or to any 

school that at the time of receiving such appropriation 

is not conducted as a free school.” 

In a 5-1 decision, the Supreme Court of Mississippi 

upheld the legality and the constitutionality [under $208] 

of providing free textbooks to students in private, sec- 

tarian institutions. 

* Mississippi House Journal, 1942, page 52.  



9a 

Appendix A 

In an opinion written by the late [and we may justifiably 

say, great] Justice Julian P. Alexander, Sr., the Missis- 

sippi Supreme Court spoke the following: 

“Although the act allows the loaning of such books 

to pupils in properly qualified private elementary 

schools, whether sectarian or not, the sectarian char- 

acter of some of the schools whose pupils would be 

loaned school books is vigorously stressed in com- 

plainant’s brief and argument, and some alarm is 

confessed by counsel lest this legislation be viewed 

otherwise than as a threat to the mutual independence 

of church and state. 

“The bases for such anxiety are founded upon con- 

siderations which bulked large in the minds and hearts 

of those who founded our republic, and who, in order 

to insure domestic tranquility and secure the blessings 

of liberty, established its Constitution with its restriec- 

tions, and the flag, which it follows, with its freedom. 

“Freedom of conscience was one of the blessings of 

liberty sought to be secured by constitutional separa- 

tion of church and state. These principles are historical 

and fundamental. Yet it is quite true that while liberty 

is to be maintained at the price of eternal vigilance, 

such vigilance should include within its scope the com- 

mon welfare of those who have the right to view 

educational opportunity as one of the ‘blessings of 

liberty’. 

“There is no requirement that the church should 

be a liability to those of its citizenship who are at the 

same time citizens of the state, and entitled to priv- 

ileges and benefits as such. Nor is there any require-  



10a 

Appendiw A 

ment that the state should be godless or should ignore 

the privileges and benefits of the church. Indeed, the 

state has made historical acknowledgment and daily 

legislative admission of a mutual dependence one upon 

the other. 

“It is the control of one over the other that our 

Constitution forbids. Sections 18, 208. The recog- 

nition by each of the isolation and influence of the 

other remains as one of the duties and liberties, 

respectively, of the individual citizen. It is not amiss 

to observe that by too many of our citizens the political 

separation of church and state is misconstrued as 

indicating an incompatibility between their respective 

manifestations, religion and politics. The state has 

a duty to respect the independent sovereignty of the 

church as such; it has also the duty to exercise vigilance 

to discharge its obligation to those who, although sub- 

ject to its control, are also objects of its bounty and 

care, and who, regardless of any other affiliation are 

primarily wards of the state. The constitutional bar- 

rier which protects each against invasion by the other 

must not be so high that the state in discharging its 

obligation parens patriae, cannot surmount distinctions 

which, viewing the citizens as a component unit of 

the state, become irrelevant. 

“The religion to which children of school age adhere 

is not subject to control by the state; but the children 

themselves are subject to its control. If the pupil 

may fulfill its duty to the state by attending a pa- 

rochial school it is difficult to see why the state may 

not fulfill its duty to the pupil by encouraging it ‘by 

all suitable means’. The state is under duty to ignore 

the child’s creed, but not its need. It cannot control  



11a 

Appendix A 

what one child may think, but it can and must do all 

it can to teach the child how to think. The state which 

allows the pupil to subscribe to any religious creed 

should not, because of his exercise of this right, pro- 

scribe him from benefits common to all. 

“If the safety of the republic is to remain the su- 

preme law, the safety and welfare of the citizens 

who compose it must remain supreme. In obedience 

to this duty the state may and should supply the 

child with protection against physical disease and 

danger, and under our Constitution must encourage 

the promotion of intellectual and moral improvement. 

Such benefits once made available by the state, may 

be demanded by the citizen or by any group of citizens. 

* * * * * 

“Calm reason must not be stampeded by random 

cries of church or state or sectarian control, or by 

the din from the conflict of catechism and dogmatism. 

A wholesome sanity must keep us immune to the dis- 

abling ptomaine of prejudice. If throughout the stat- 

ute there are words which arrest the attention of over- 

sensitized suspicion and are seen by a jaundiced eye 

as symptoms of secular control, one may regain com- 

posure by viewing the state’s book depository as a 

great public libary of books available to all, which 

sells any books to anybody, and which, subject to 

reasonable regulation, allows the free use thereof to 

any child in any school. Cf. ch. 289, Laws 1938. 

* * * # * 

“We are of the opinion that the appropriation in 

chapter 18 of the Laws of 1940 was not a use or 

diversion of school or other educational funds as  



12a 

Appendix A 

contemplated by section 208, Mississippi Constitution 

of 1890, nor did it become a part thereof. The ap- 

propriation for schools is entirely separate, ch. 17, 

Acts of 1940. The use of the textbook fund consti- 

tutes no charge against any public school funds, 

properly so called, nor against any trust funds avail- 

able for particular schools or educational purposes. 

Such funds are not appropriated ‘toward the support 

of any sectarian school’, nor does the furnishing of 

such books to the pupils in properly qualified private 

schools constitute a pledging or loaning of the credit 

of the state ‘in aid of any person, association, or cor- 

poration’ in contravention of section 258 thereof. The 

books belong to, and are controlled by, the state; 

they are merely loaned to the individual pupil therein 

designated ; their preservation is fostered by exaction 

of suitable compensation for their loss or damage; 

the duty of protection through fumigation against 

contagion by use is assumed by the state. 

* * * * * 

“Nor is the loaning of such books under such ecir- 

cumstances to the individual pupils a direct or indirect 

aid to the respective schools which they attend, al- 

though school attendence is compulsory. Such pupil 

is free to attend a proper public or private school, 

sectarian or otherwise.” 

The judgment of the Chancery Court of Hinds County, 

Mississippi, denying the injunction, was affirmed. Chance 

v. Mississippi Textbook Rating Board, 1941, 190 Mass. 

453, 200 So. 706.  



13a 

Appendix A 

This 1941 decision of the Supreme Court of Mississippi 

seems generally to be in accord with one delivered twenty- 

seven years later by the Supreme Court of the United 

States in Board of Education of Central School District 

No. 1 v. Allen, 1968, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 

1060. 

In that case a New York statute requiring school dis- 

tricts to purchase and loan textbooks to students enrolled 

in parochial as well as in public and private schools was 

under constitutional attack. The Supreme Court held that 

the New York statute did not constitute a “law respecting 

an establishment of religion or prohibiting the free exer- 

cise thereof” in conflict with the First and Fourteenth 

Amendments to the Constitution of the United States. 

We quote from the opinion in Allen, supra: 

“Kverson v. Board of HKducation, 330 U.S. 1, 67 

S.Ct. 504, 91 L.Ed. 711 (1947), is the case decided by 

this Court that is most nearly in point for today’s 

problem. New Jersey reimbursed parents for expenses 

incurred in busing their children to parochial schools. 

The Court stated that the Establishment Clause bars 

a State from passing ‘laws which aid one religion, 

aid all religions, or prefer one religion over another’, 

and bars, too, any ‘tax in any amount, large or small 

* * * levied to support any religious activities or in- 

stitutions, whatever they may be called, or whatever 

form they may adopt to teach or practice religion’. 

330 U.S., at 15-16, 67 S.Ct., at 411. Nevertheless, said 

the Court, the Establishment Clause does not prevent 

a State from extending the benefits of state law to all 

citizens without regard for their religious affiliation 

and does not prohibit ‘New Jersey from spending tax-  



14a 

Appendix A 

raised funds to pay the bus fares of parochial school 

pupils as a part of a general program under which 

it pays the fares of pupils attending public and other 

schools’. The statute was held to be valid even though 

one of its results was that ‘children are helped to 

church schools’ and ‘some of the children might not 

be sent to the church schools if the parents were com- 

pelled to pay their children’s bus fares out of their 

own pockets’. 330 U.S, at 17, 67 S.Ct, at 512. As 

with public provision of police and fire protection, 

sewage facilities, and streets and sidewalks, payment 

of bus fares was of some value to the religious school, 

but was nevertheless not such support of a religious 

institution as to be a prohibited establishment of 

religion within the meaning of the First Amendment. 

* * * * * 

“The express purpose of $701 was stated by the 

New York Legislature to be furtherance of the edu- 

cational opportunities available to the young. Appel- 

lants have shown us nothing about the necessary 

effects of the statute that is contrary to its stated 

purpose. The law merely makes available to all chal- 

dren the benefits of a general program to lend school 

books free of charge. Books are furnished at the re- 

quest of the pupil and ownership remains, at least 

technically, in the State. Thus no funds or books are 

furnished to parochial schools, and the financial benefit 

is to parents and children, not to schools. Perhaps 

free books make it more likely that some children 

choose to attend a sectarian school, but that was true 

of the state-paid bus fares in Everson and does not 

alone demonstrate an unconstitutional degree of sup- 

” [Emphasis ours]. port for a religious institution.  



15a 

Appendix A 

To be specific, the racial identity of the child had nothing 

to do with a the original enactment of the Mississippi 

statute nor has it had anything to do with the receipt of 

a free textbook throughout a period of more than thirty 

years. HEvery Mississippi school pupil, before and since 

1954, the date of Brown v. Board of Education, whether 

enrolled in public, private, or parochial schools, of what- 

ever race, has received the free textbooks without ques- 

tion or impediment. 

Plaintiffs say, however, that furnishing the textbooks 

free to those students who now choose to attend racially 

segregated private schools, established in Mississippi since 

1964 for the purpose of affording a child an opportunity 

of not attending integrated public schools, is unconstitu- 

tional because it conflicts with the “affirmative duty to take 

whatever steps might be necessary to convert to a unitary 

system in which racial discrimination would be eliminated 

root and branch”, Green v. County School Board of New 

Kent County, 1968, 391 U.S., at 437. 

In line with this position plaintiffs say (Brief, p. 25) 

“We challenge this statute to the extent that it requires 

or authorizes the distribution of state-owned textbooks to 

schools formed for the purpose of having the effect of 

providing whites with an alternative to public integrated 

education.” 

The evidence establishes that 34,000 students are pres- 

ently receiving state-owned textbooks while attending 107 

all-white, nonsectarian private schools which have been 

formed throughout the state since the inception of publie 

school desegregation.” This number is to be compared 

5 An additional 8,000 students are enrolled in 41 private, non- 
sectarian schools which do not participate in the state textbook 
program.  



16a 

Appendix A 

with 534,500 students in more than 1,000 public schools 

and 12,100 students in desegregated parochial schools who 

are receiving free textbooks. It is plain, however, that 

the books have not been issued to the schools but to the 

students. As in the case of public schools, private and 

sectarian school authorities are held responsible for the 

books as a matter of orderly administration. The statute 

does not authorize the distribution of the books to schools, 

only to pupils. 

We are thus brought to the point of determining whether 

the state’s furnishing of free textbooks to students attend- 

ing racially segregated schools is a support of such schools, 

for whose promotion and encouragement public funds, of 

course, may not be constitutionally provided. In terms of 

the unequivocal prohibition contained in the First Amend- 

ment, made applicable to the states by the Fourteenth 

Amendment, the question has been clearly settled. Free 

textbooks to the students is not a financial benefit to the 

church-related schools, as held in Allen, and is not a direct 

or an indirect aid to such schools, as held in Chance. In 

the recent case of Lemon v. Kurtzman, 403 U.S. 603, 29 

L.Ed.2d 745, the United States Supreme Court continued 

to recognize the distinction between permissible state aid 

to the student and impermissible state aid to the church- 

related school, and invalidated a Pennsylvania statute 

which undertook to provide financial aid directly to church- 

related schools. 

The essential inquiry, therefore, is whether we should 

apply a more stringent standard for determining what 

constitutes state aid to a school in the context of the Four- 

teenth Amendment’s ban against denial of the equal pro- 

tection of the law than the Supreme Court has applied 

in First Amendment cases. On the record made before us  



17a 

Appendix A 

we perceive neither the logic nor the necessity for applying 

any different test to a universally free school textbook 

program. 

Plaintiffs rely primarily upon Coffey v. State HEduca- 

tional Finance Commission, 296 F. Supp. 1389 (S.D., Miss., 

1969) ; Poindexter v. Louisiana Financial Assistance Com- 

mission, 275 F. Supp. 833 (E.D., La., 1967); Griffin v. 

State Board of Kducation, 296 F. Supp. 1178 (E.D., Va. 

1969); and Green v. Kennedy, 309 F. Supp. 1127 (D.C,, 

1970), appeals dismissed for want of jurisdiction, sub nom. 

Cannon v. Green, 398 U.S. 956 (1970), and Coit v. Green, 

400 U.S. 986 (1971); continued as Green v. Connally, 330 

F. Supp. 1150 (D.C., 1971); affirmed sub mom. Coit v. 

Green, U.S. , 92 S.Ct. 564 (1971). These cases, 

which are clearly distinguishable on their faces, are not 

in point on the present issue. 

In Coffey it was held that state tuition grants to students 

attending private segregated schools, first begun in 1964, 

and which in three years time was followed by an increase 

in private nonsectarian schools from three to forty eight 

in number, were “critical to most of the schools”, 296 

F. Supp. at 1392. The Court further found “that the tuition 

grants have fostered the creation of private segregated 

schools * * * encourages, facilitates, and supports the 

establishment of a system of private schools operated on 

a racially segregated basis as an alternative available to 

white students seeking to avoid desegregated schools * * * 

and that grants ‘tend in a determinative degree to per- 

petuate segregation’ ” . Therefore, the grants, and the Mis- 

sissippi statute which authorized them, were struck down 

as violative of the equal protection clause of the Four- 

teenth Amendment,  



18a 

Appendix A 

The Court further pointed out: 

“There is no claim in this case that the Constitu- 

tion requires all children to attend public schools, or 

that a private citizen may not select a private segre- 

gated school for his child because of a desire to keep 

the child from being educated with children of a dif- 

ferent race. What is involved here are legislative en- 

actments which ‘will significantly encourage and in- 

volve the State in private discriminations’. Reitman 

v. Mulkey, 387 U.S. 369, 381, 87 S.Ct. 1627, 1634, 

18 L.Ed.2d 830, 838 (1967).” 

Similar tuition grant cases from other states are col- 

lated in Footnote 1 to Coffey, 296 F. Supp., at 1390, and 

will not be cited here. 

Similarly in Powmdexter a statute providing for tuition 

grants to pupils attending private segregated schools was 

invalidated. The Court held that any affirmative and pur- 

poseful state aid promoting private discrimination violates 

the equal protection clause, a state cannot legitimately be 

just a little bit discriminatory, and that the object or pur- 

pose of legislation is to be determined by its natural and 

reasonable effect. In speaking for the Court, Judge Wisdom 

wrote: 

“* * * any aid to segregated schools that is the prod- 

uct of the State’s purposeful policy of fostering segre- 

gated schools and has the effect of encouraging dis- 

crimination is significant state involvement in private 

discrimination. (We distinguish therefore, state aid 

from tax benefits, free school-books, and other prod- 

ucts of the State’s traditional policy of benevolence 

toward charitable and educational institutions).” 275 

F. Supp. 854.  



19a 

Appendix A 

The United States Supreme Court affirmed, 389 U.S. 

571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968). 

The result of this decision was that Louisiana enacted 

a revised tuition grant law. This statute, too, was in- 

validated by a subsequent Three-Judge Court. Poindexter 

v. Louisiana Financial Assistance Commission, 296 F'. Supp. 

686. Judge Wisdom again wrote: 

“The free lunches and textbooks Louisiana provides 

all childen in public and private schools are the fruits 

of a benevolent racially neutral policy.” 

Again the United States Supreme Court affirmed, 393 

U.B. 17 (1968). 

In Griffin, a three-judge district court invalidated Vir- 

ginia’s statute allowing tuition grants to children attend- 

ing segregated schools. Expressly adopting Judge Wis- 

dom’s reasoning in Powndexter, the Court held the statute 

impermissibly provided for payments to children who may 

expend such funds for a segregated classroom, thereby 

“giving life to an educational forum decried by the Fed- 

eral Constitution.” 296 F. Supp. at 1181. 

The tuition grant cases, which emphasize the financial 

support thereby afforded to educational instituitons, rest 

upon wholly different considerations from the case sub 

judice. Here we are concerned only with the act of fur- 

nishing a state-owned textbook to the student. 

Finally the Green case, upon which plaintiffs place great 

reliance, involved the grant of federal tax exempt status 

and deductibility of contributions to priate segregated 

schools in Mississippi. The Green Court emphasized that, 

apart from tax exemption to the schools, the deductions 

from income taxes by individuals and corporations who 

make contributions to racially segregated private schools  



20a 

Appendix A 

amounted to substantial and significant governmental sup- 

port for the segregated private school pattern. Thus the 

exemptions were held invalid as against federal public 

policy without reaching constitutional issues. 

We find no federal decision which has suggested the 

invalidation of the beneficient policy of a state to furnish 

textbooks to all of the educable children within its borders. 

To the contrary, under settled case law, the state’s legit- 

imate interest in the education of its youth, in whatever 

school the student or his parents may select, is a proper 

and adequate basis upon which the state may administer 

its free textbook program. 

It has already been demonstrated that in Mississippi 

the free textbook program began without racial motivation 

and the books have long been uniformly supplied to all 

children alike, regardless of race, in both public and private 

schools. Only one prerequisite must be satisfied for the 

student who attends a private school, i.e., the school shall 

maintain educational standards equivalent to those estab- 

lished by the State Department of Education for public 

schools. In fact, plaintiffs concede that Mississippi has 

historically maintained a benevolent and racially neutral 

policy in the administration of its state-owned textbook 

program. 

We find it wholly illogical to require an alteration in 

the state’s textbook program simply because of the advent 

of more private schools following the desegregation of 

the public school system. Depriving any segment of school 

children of state-owned textbooks at this point in time is 

not necessary for the establishment or maintenance of 

state-wide unitary schools. Indeed, the public schools which 

plaintiffs acknowledge were fully established as unitary 

schools throughout the state no later than 1970-71, continue  



21a 

Appendix 

to attract 90% of the state’s educable children. There 

is no showing that any child enrolled in private school, 

if deprived of free textbooks, would withdraw from private 

school and subsequently enroll in the public schools, now 

unitary. We are mindful of the fact that children are free 

to attend private schools of their choice, for whatever 

reason satisfactory to them and to their parents. See the 

concurring opinion of Mr. Justice Brennan in Abington 

School District v. Schempp, 374 U.S. at 242 (1963). 

There could be considerable doubt about the consti- 

tutionality, under the equal protection clause, of a pro- 

gram which would provide free books to some children 

while denying them to others. Providing schools to some 

children and denying others access to those schools solely 

for racial reasons was held invalid in Brown v. Board of 

HKducation, supra. 

Plaintiffs say that furnishing the free textbooks to 

pupils in private schools encourages attendance at such 

institutions. This, of course, is conjectural, as there is no 

substantial proof on that score. It occurs to us, however, 

that if encouragement alone is a sufficient test and if im- 

permissible encouragement necessarily follows from the 

issuance of the books and subsequent attendance at a 

particular school, then the books may not be issued to 

those attending private sectarian schools (something which 

the Supreme Court has thus for declined to invalidate). 

Since the issuance of free textbooks to students attend- 

ing private schools has failed to defeat the establishment 

of a state-wide unitary school system in Mississippi, and 

since plaintiffs are themselves receiving their free text- 

books, there is serious question as to whether plaintiffs 

are threatened with the irreparable injury which is pre- 

requisite to injunctive relief. Federal judicial power is to  



22a 

Appendix A 

be exercised to strike down legislation, whether state or 

federal, only if a plaintiff is himself immediately harmed, 

or immediately threatened with harm, by the challenged 

action, Poe v. Ullman, 1961, 367 U.S. 497, 504. 

Lurking beneath all this is the principle that two wrongs 

do not make a right. Punitive action against the children 

now receiving free textbooks in the private schools will 

do nothing to cure acts committed by others (not children) 

in the years now dead and gone. 

We hold that the free textbook program and the Mis- 

sissippi statutes authorizing it, for the consideration herein 

recited, are not constitutionally invalid. 

This opinion constitutes both our findings of fact and 

conclusions of law. 

The complaint is dismissed and judgment will be entered 

accordingly. 

/s/ Jas. P. CoLEMAN 

Unttep StaTEs Circulr JUDGE 

/s/ WmLiaMm C. Krapy 

Unxitep STATES DisTrRICT JUDGE 

/s/ Orma R. Smith 

Uxttep STATES DISTRICT JUDGE 

 



23a 

Appendix A 

ExterEp: April 18, 1972 

IN THE UNITED STATES DistrRicT COURT FOR THE 

NorrHERN DIisTRICT OF MISSISSIPPI 

Civi. Action No. W(C70-53K 

  

Derores Norwoop, ET AL, 

Plaintiffs, 

—Vs.— 

D. L. Harrison, Sr. ET AL. 

Defendants. 
  

JUDGMENT 

This cause having been submitted upon the pleadings 

and oral and documentary proof, and after arguments of 

counsel and submission of memorandum briefs, and the 

court having concluded for the reasons set forth in its 

opinion this date released that the complaint is without 

merit and should be dismissed; it is 

ORDERED 

(1) All relief sought by plaintiffs be, and the same is 

hereby denied. 

(2) The complaint is finally dismissed with prejudice. 

All costs are taxed to plaintiffs. 

This 17th day of April, 1972. 

/s/ WiLLiam C. Krapy 

United States District Judge 

For THE THREE JUDGE COURT  



24a 

Appendix A 

ExTerep: May 16, 1972 

In THE UnIiTED STATES DistRicT COURT FOR THE 

NorTHERN DiIsTRICT OF MISSISSIPPI 

WesTERN Division 

Crvi. ActioN No. W(C70-53K 

  

DevrorEs NorwooD, ET AL, 

Plaintiffs, 

D. L. Harrison, Sg., ET AL, 

Defendants. 

  

Notice oF APPEAL 

PLease Take Norice that plaintiffs Delores Norwood, 

Andrew Galloway and Van Siggers, pursuant to 28 U.S.C. 

§1253, enter an appeal to the Supreme Court of the United 

States from the judgment and opinion of this three-judge 

district court dated April 17, 1972 and entered April 18, 

1972. 

 



20a 

Appendix A 

Dated: May 15, 1972. 

MeLvyN R. LEVENTHAL 

Frep L. Banks, Jr. 

ReuBeEN V. ANDERSON 

53814 North Farish Street 

Jackson, Miss. 39202 

JACK (GREENBERG 

Suite 2030 

10 Columbus Cirele 

New York, N. Y. 10019 

Attorneys for Plawnitiffs 

 



26a 

Appendix A 

CERTIFICATE OF SERVICE 

I hereby certify that on this 15th day of May, 1972, 

I caused to be served by United States mail, postage pre- 

paid, a copy of the foregoing Notice of Appeal upon 

Honorable William A. Allain, Assistant Attorney General, 

P. O. Box 220, Jackson, Mississippi 39205. 

/s/ REUBEN V. ANDERSON 

Attorney for Plaintiffs 

 



27a 

Appendix B 

ARTICLE 32 

TEXTBOOKS 

§ 6634. Mississippi state textbook purchasing board es- 

tablished.—There is hereby established the Mississippi 

State Textbook Purchasing Board, which shall hereinafter 

be referred to in this act as the board. Said board shall 

consist of five members, the governor who shall be ex- 

officio chairman, the state superintendent of education, 

and three members to be appointed by the governor, one 

from each of the three supreme court districts, who shall 

serve for a period of four years. In case of a vacancy 

during the administration for which they are appointed, 

the governor shall appoint a member or members to fill 

only the unexpired term. Each appointed member of the 

board shall be an educator of known character and acknowl- 

edged ability in his or her profession, with at least five 

years of successful teaching or supervisors experience 

in the public schools of Mississippi immediately previous 

to his or her appointment, and in addition thereto, shall 

be a qualified elector of his or her supreme court district. 

He or she shall be at least thirty years old. 
The board, at its first meeting, shall elect an executive 

secretary who has proven business ability, whose duty 

it shall be to keep the minutes of the board, a complete 

record of all the proceedings of the board, and shall keep, 

file and preserve all documents, papers and records of 

the board, and shall perform such other duties as may 

be prescribed by the board. Said executive secretary shall 

enter into bond in the sum of $10,000.00 payable to the 

state of Mississippi, conditioned upon the faithful per- 

formance of his duties, and the proper and accurate ac-  



28a 

Appendix B 

counting for all funds of every nature that may come into 

his hands or under his control under the provisions of 

this act. 

Three members shall constitute a quorum for the trans- 

action of all business. 

Sources: Laws, 1940, ch. 202; 1942, ch. 152; 1946, ch. 

444, § 1. 

§ 6635. Oath of office.—Kach appointive member of the 

board and its executive secretary, before entering upon 

the discharge of his or her duties shall take, subscribe, 

and file with the secretary of state the following oath to 

be administered by an officer authorized to administer 

, do solemnly swear, 

(or affirm) that I will faithfully discharge my duties as 

required by law, uninfluenced by any factor except a sincere 

desire to promote the best educational interest of Mis- 

sissippi. So help me God.” 

Sources: Laws, 1940, ch. 202. 

§ 6636. Members of board not to be personally or pecu- 

niarily interested.—No person who has acted as an agent 

for any author or textbook publishing house, or an attor- 

ney for any author or textbook publishing house, or who 

has been an author or associate author of any textbook 

published by any textbook publishing house, or who owns 

stock in any textbook depository or any publishing house, 

or who has been directly or indirectly concerned in the 

authorship of any textbook, or directly or indirectly con- 

nected in any way with any textbook publishing house, 

shall be eligible to appointment on the Mississippi state  



29a 

Appendix B 

textbook rating and purchasing board. Any contract en- 

tered into in violation of this section shall be void. 

Sources: Laws, 1940, ch. 202. 

§ 6637. Publishers not to approach or make offers to 

members of board.—It shall be unlawful for any publisher, 

author, person, firm, company or corporation who deals 

in books, or any of their representatives, to offer, either 

directly or indirectly, any kind of employment of any 

pecuniary connection to any member or members of said 

board during their tenure of appointment. 

Sources: Laws, 1940, ch. 202. 

§ 6638. When members of board shall be disqualified to 

vote.—If any person related within the third degree by 

blood or marriage, as computed by civil law, to any mem- 

ber of the board, or if any person that is associated in any 

business or partnership with any member of said board, 

shall be employed in good faith by any school book com- 

pany, firm, corporation or agent in connection with the 

adoption of textbooks within this state, the said member of 

said board so related by blood or marriage, or so associ- 

ated in business or partnership with such person, shall not 

vote in the rating and adoption of any school book or books 

offered by such school book company, firm, corporation or 

agent for adoption. 

Sources: Laws, 1940, ch. 202. 

§ 6639. Compensation of the appointive members of the 

board and secretary to the board.—The governor and state 

superintendent of education shall serve without extra com- 

pensation. Hach appointive member of the board shall re- 

ceive ten dollars per day for each day in active service of  



30a 

Appendix B 

the board, not to exceed sixty days per year, and, in addi- 

tion thereto, ten cents (10c) per mile one way for each mile 

actually traveled, by the shortest traveled route, from home 

to the place of meeting. 

The salary of the executive secretary shall be set by the 

board and all necessary traveling expense shall be approved 

by the board. The annual salary and travel expense, how- 

ever, shall not exceed that allowed by the legislature for 

the director of a division in the state department of edu- 

cation, and shall be subject to all other provisions govern- 

ing the same. The salary, per diem, and travel expense shall 

be paid out of the state textbook fund provided herein. 

The board shall have authority to provide necessary help, 

clerical assistance and supplies for the executive secretary, 

to be paid out of the state textbook fund, within the limits 

prescribed in this act. 

Sources: Laws, 1940, ch. 202; 1948, ch. 304, § 1; 1950, ch. 

373, eff July 1, 1950. 

§ 6640. Meeting—time and place.— The board shall meet 

at such time and place as shall be designated by the chair- 

man or by a majority of said board. 

Sources: Laws, 1940, ch. 202. 

§ 6641. Powers and duties of board. 

1. The board shall have the power and is hereby author- 

ized : 

(a) To promulgate rules and regulations for the pur- 

chase, care, use, disposal, distribution, and accounting for 

all books to be furnished under the terms of this Act and 

to promulgate such other rules as may be necessary for 

the proper administration of this Act.  



dla 

Appendix B 

(b) To adopt, contract for, and purchase, cash or credit, 

basal textbooks through twelve grades as provided in the 

school curriculum, or any other course or courses that they 

may add thereto. 

(¢) To determine the period of contract for rated and 

adopted textbooks shall not be for less than four years and 

not exceeding five years, with the right of the board in its 

discretion to renew or extend such contract from year to 

year for a period not exceeding two additional years, the 

conditions of the approval or forfeiture of a contract and 

other terms and conditions as may be necessary and not 

contrary to law. No contract shall be valid and binding 

until and unless approved by the Governor. 

(d) For the purpose of assisting the board during an 

adoption, there shall be rating committees in each of the 

fields in which textbooks are considered for adoption, and 

each committee shall be composed of seven members; the 

State Superintendent of Education shall appoint three (3) 

members of each of the committees, each of whom shall be 

a competent, experienced teacher or supervisor of instruec- 

tion professionally trained in each of the fields in which 

textbooks are considered for adoption; the Governor of the 

State of Mississippi thereupon shall appoint four (4) mem- 

bers of each of said committees who shall be persons he 

deems competent to participate in the appraisal of books 

offered for adoption, in each field, for use in the public 

schools of this state. It shall be the duty of said rating 

committees to appraise the books offered for adoption in 

each field in which textbooks are offered for adoption and 

recommend three books for each adoption to be made by 

the board and giving the reasons for or basis of such rec- 

ommendations. No book shall be recommended which does  



32a 

Appendix B 

not receive a majority vote of the members of each com- 

mittee; any member or members dissenting from any ma- 

jority vote of the committee shall make his or their ap- 

praisal of any book recommended or rejected by the 

majority of the committee and specify the reasons there- 

for and make such recommendations as he or they think 

proper. All appraisals, recommendations, and dissents if 

any, shall be in writing and filed with the board for its 

consideration upon the adoption. The expenses of such 

committees shall be paid out of the State textbook fund 

provided herein. Such rating committees shall be subject 

to the regulations set forth in Sections 2, 3, 4, 5 and 6. 

The board shall have the power to reject any and all rec- 

ommendations of the rating committees and to call for 

further recommendations; but in no case shall the board 

adopt any book not recommended by the rating committees. 

(e) The board shall have complete power and authority 

over additions and amendments to textbooks, advertising 

and their contents, bids and proposals, prices of textbooks, 

specimen copies, cash deposits, selection and adoption, dis- 

tribution, fumigation, emergencies, selling to others, return 

of deposits, forfeiture of deposits, regulations governing 

the deposit, forfeiture of contract, approval of contract, 

renovation and repair of books requisition, transportation 

or shipment of books, and any other Acts or regulations, 

not contrary to law, that may be deemed necessary for 

furnishing and loaning free textbooks to the school children, 

as provided in this Act. The board shall have full power 

to advertise for bids, to purchase, buy, and contract for all 

such basal textbooks through twelve grades as provided in 

this Act, and all contracts shall be approved by the Gov- 

ernor.  



33a 

Appendix B 

(f) It shall be the duty of the board to advertise for 

sealed bids, said bids to be opened at a meeting of the 

board at a date named in the advertisement. Bidders shall 

quote their lowest net wholesale prices, and net exchange 

prices, f.o.b. central depository, Jackson, Mississippi, or 

the board may, in its discretion, establish a state depository 

or depositories, or inaugurate any other plan for the dis- 

tribution of books, and such prices must not be higher 

than the lowest price at which books are sold anywhere 

in the United States, after all discounts are allowed; and 

at any time that the board may find that any book or books, 

in either regular or special editions, are being furnished in 

any other state at a lower price under contract than it is 

being furnished in Mississippi, the contract shall be for- 

feited to the State, and any contractor who violates the 

provisions of this Section shall return all money paid out 

for such book or books and also forfeit said book or books 

to the State, and suit may be brought on the bond of the 

contractor for all losses sustained. 

Successful bidders or contractors shall be required to 

maintain a depository at a place within the State of Mis- 

sissippi, to be named by the board, where a stock of books 

sufficient to meet all reasonable and immediate demands 

shall be kept. Upon requisition of the board, the depository 

shall ship books, transportation charges paid, to the vari- 

ous shipping points in Mississippi to be specified by the 

board, and for such service the depository shall make no 

charge to the board except the actual cost of transporta- 

tion from the depository to the shipping point designated; 

provided that the cost of distribution shall not exceed eight 

percent of the total appropriation for any fiscal year. 

2. Any and all textbooks that may be furnished by the 

publisher thereof to any member of the above mentioned  



oda 

Appendix B 

rating committee without cost shall within one year after 

receipt of same by said member be turned in to the State 

School Book Depository without any cost to the State of 

Mississippi, and the same shall thereafter be used without 

any cost to the State of Mississippi in supplying free text- 

books to the educable children of the State of Mississippi 

as now provided by law. 

Sources: Laws, 1960, ch. 310. 

§ 6642. Copies of bids, contracts, specimen books retained 

as public records.—Specimen copies of all textbooks, which 

have been made the basis of contracts under the provisions 

of this act, clearly marked and identified as such, shall be 

deposited by the publisher of said books with the state 

superintendent of education, said specimen copies shall be 

preserved and kept open for inspection by the public. All 

contracts and bonds executed under the provisions of this 

act shall be executed in triplicate, one copy for the con- 

tractor, one copy to be filed in the office of the secretary 

of state, and one copy to be filed in the office of the state 

superintendent of education. All contracts shall be ap- 

proved by the governor. An original of each bid, whether 

accepted or rejected, shall be filed and preserved in the 

office of the state superintendent of education for at least 

five years. All books furnished the state of Mississippi by 
contractors under this act shall continue to measure up to 

the same standards as are required in the contract, said 

standards to include printing, binding, cover boards, me- 

chanical makeup, and any other relevant points as set out 

in the plans and specifications as fixed by the board. Any 

contractor of any book or books, who fails to keep said 

books up to said standards, shall forfeit, not only his con-  



oa 

Appendix B 

tract to the state, but shall return all money paid out for 

such book or books and also forfeit said books to the state. 

Sources: Laws, 1940, ch. 202. 

§ 6643. Others may buy books.—Any parent, person or 

school board in any community of the state may purchase 

books from the county superintendent of education or de- 

pository, who is given authority to sell books under the 

provisions of this act; provided, that the price of the books 

so ordered or bought shall be paid in advance, said price 

to be the same as the contract price, plus whatever postage 

or delivery charges might accrue. 

The county superintendent of education or depository 

shall keep a detailed record of all such sales and shall for- 

ward in quarterly payments all such funds received for 

books to the executive secretary to be placed to the credit 

of the state textbook fund. Said executive secretary shall 

furnish the county superintendent or depository with a 

receipt for the money received, and said county superin- 

tendent or depository shall keep such receipt as part of 

his public record. 

Sources: Laws, 1940, ch. 202. 

§ 6644. Anti-trust provision.—No book or books shall be 

purchased from any person, firm or corporation who is a 

member of, or connected with, any trust. In the event that 

it is established that this provision has been violated, the 

contract shall be forfeited and monies paid out under this 

contract shall be returned to the state, and all books here- 

tofore purchased under said contract shall be kept by the 

state. 

Sources: Laws, 1940, ch. 202.  



36a 

Appendix B 

§ 6646. Uniform textbooks—selection by 

local school authorities. 

1. The State Textbook Board shall adopt and furnish 

textbooks only for use in those courses set up in the State 

course of study adopted by the State Board of Education, 

or courses established by special acts of the Legislature. 

In all subjects the board, in its discretion, may adopt five 

(5) textbooks from those recommended by professional 

committees, according to the State Textbook Law. The 

prices of books adopted shall not be higher than the lowest 

prices at which the same books are being sold anywhere 

in the United States. The State Textbook Board may 

adopt a plan which permits the local districts to choose 

the book or books to be requisitioned from those adopted, 

provided: 

(a) That in selecting readers, the local district may be 

allowed to adopt two (2) from which each pupil enrolled 

may be furnished the equivalent of two (2) in such propor- 

tions as desired; 

(b) That in selecting books for all other subjects, the 

local school districts may be allowed to select any adopted - 

State textbook without being restricted to a single declared 

adoption when the governing authority of the distriet de- 

clares a policy of multiple adoptions and specifies the sub- 

ject areas therefor, and further provided, that not more 

than one (1) of the books from the multiple adoption list 

shall be furnished to each pupil enrolled in a course; 

(¢) That when a book is furnished by the State, it shall 

remain in use during the period of its adoption; 

(d) That school officials of separate school districts and 

of each system of county schools shall select the same book 

or books for all of its schools;  



37a 

Appendix B 

(e) That the average per pupil cost of textbooks so fur- 

nished any unit shall not exceed that allowed for all other 

units in the State; and 

(f) That nothing herein provided shall be construed as 

giving any school the authority to discard or replace usable 

copies of textbooks now being furnished by the State. 

2. Whenever any book under contract is displaced by a 

new adoption, the board may continue to require the schools 

to use such books until the stock owned by the State is 

exhausted, provided the period of use shall not exceed four 

(4) years. 

Sources: Laws, 1966, ch. 421, § 1, eff from and after 

passage (approved May 31, 1966). 

§ 6647. Agents designated.—Any person, firm or corpo- 

ration with whom a contract has been entered into, under 

the provisions of this act, shall designate the secretary of 

state of Mississippi as its or their agent, upon whom cita- 

tion and all other writs and processes may be served, in 

case any suit shall be brought against such person, firm 

or corporation. 

Sources: Laws, 1940, ch. 202. 

§ 6648. Textbook fund.—The state textbook fund of Mis- 

sissippi shall consist of the amount or amounts appro- 

priated by the legislature for same, together with all 

monies accruing from the sale of disused books, all monies 

derived from the purchase of books by both public and 

private school trustees, by private individuals, all monies 

collected in damage suits under the terms of this act, or 

any other monies collected in any way whatsoever under 

the terms of this act. 

Sources: Laws, 1940, ch. 202.  



38a, 

Appendix B 

§ 6649. Warrants.—Bills for textbooks purchased by the 

state on requisitions as provided herein, and bills for all 

other expenses incurred under the terms of this act, shall 

be paid by warrants on the state treasury made by the 

auditor on receipt of bills from the executive secretary, 

and approved by the board. 

Sources: Laws, 1940, ch. 202. 

§ 6650. Printed labels—book covers.—All books shall 

have printed labels on both inside covers. Kach school 

shall number all books, placing the number on said labels. 

All teachers shall keep an accurate record of the number 

and names of all books issued to each pupil. All books 

must be covered by the pupils, under direction of the 

teacher, said covers to be furnished by the board. 

Sources: Laws, 1940, ch. 202. 

§ 6651. Penalty for school officers dealing in textbooks.— 

No teacher in any of the schools of the State, nor county 

or city superintendent of schools, nor any person officially 

connected with the government of or direction of any 

school shall, during the term of his office as said superin- 

tendent, or during the time of his or her employment as 

teacher, act as agent or attorney for any textbook pub- 

lishing company selling textbooks in this state. If, after 

election as county or city superintendent, or employment 

as teacher, any person filling such position accepts the 

agency or attorneyship of any textbook publishing com- 

pany, the acceptance of such agency or attorneyship shall 

work a forfeiture of the office or position as teacher held 

at the time of the acceptance of such agency or attorney- 

ship. 

Sources: Laws, 1940, ch. 202.  



39a 

Appendix B 

§ 6652. Executive secretary to deposit funds.—The exeec- 

utive secretary shall deposit all funds sent to him for 

lost or damaged books or any other funds accruing under 

this act to the state treasury to the credit of the state 

textbook fund. 

Sources: Laws, 1940, ch. 202. 

§ 6693. Suits.—Any loss occasioned by the neglect, care- 

lessness, or failure of duty by the county superintendent 

or any principal or teacher in charge of any school, shall 

entitle the state to bring suit for the recovery of the 

amount of the loss or losses occasioned thereby. 

Any writ or suit of any nature instituted under the 

provisions of this act shall be brought in the name of 

the state of Mississippi by the attorney general, and any 

money or moneys recovered by such suit shall be placed 

to the credit of the state textbook fund. 

Sources: Laws, 1940, ch. 202. 

§ 6664. Penalty for the violation of the provisions of 

this act.—Any person wilfully violating any of the provi- 

sions of this act shall be guilty of a misdemeanor, and 

upon conviction shall be punished by fine of not more 

than five hundred dollars ($500.00), or not to exceed six 

months in the county jail, or both, in the discretion of 

the court. 

Sources: Laws, 1940, ch. 202. 

§ 6655. Constitutionality.—Should the courts declare any 
section or sections, sentence, clause, or any part of this 

act unconstitutional, such decision shall apply only to the 

section or sections, sentence, clause or part so declared  



40a 

Appendix B 

to be unconstitutional, and shall not apply to any other 

section or sections or any other part of this act. 

Sources: Laws, 1940, ch. 202. 

§ 6656. Plan.—This act is intended to furnish a plan for 

the adoption, purchase, distribution, care and use of free 

textbooks to be loaned to the pupils in all elementary and 

high schools of Mississippi. 

The books herein provided by the board shall be dis- 

tributed and loaned free of cost to the children of the 

free public schools of the state, and all other schools lo- 

cated in the state, which maintain educational standards 

equivalent to the standards established by the state de- 

partment of education for the state schools. 

Teachers shall permit all pupils in all grades of any 

public school to carry to their homes, for home study, the 

free text books loaned to them, and to carry to their 

homse, for home study, all other regular text books used 

in the public schools of the state whether they be free 

text books or not. 

Sources: Laws, 1940, ch. 202; 1942, ch. 152; 1944, ch. 

149, § 1. 

§ 6657. Repeal.—All laws and parts of laws in conflict 

herewith shall be and are hereby repealed. 

Sources: Laws, 1940, ch. 202. 

§ 6658. When free textbooks to be furnished.—The free 

textbooks to be purchased and distributed for use in the 

high schools in the state as provided in this act shall be 

furnished to the pupils during each school session from 

and after July 1, 1942, but nothing contained in this act  



41a 

Appendix B 

shall be construed as requiring the board to furnish free 

textbooks for use in the ninth to twelfth grades, inclu- 

sive, during the 1941-42 school session. 

Sources: Laws, 1940, ch. 202; 1942, ch. 152. 

§ 6658-01. Storage of school books.—1. It shall be the 

duty of the board of supervisors of each county in the 

state to provide adequate storage space in the county court- 

house, or in some other building at the county site, for 

the storage of school books, distributed under the provi- 

sions of chapter 202, laws of Mississippi, 1940, as amended 

by chapter 152, general laws of 1942 [SS 6634—6658, Code 

of 1942]. In the event sufficient space for the storage of 

such books cannot be provided in the courthouse, the board 

of supervisors shall be authorized to rent a room or rooms 

in some other building at the county site for the storage 

of such books, and to pay such reasonable rental therefor 

as may be necessary out of the general fund of the county. 

2. The county superintendent of education, with the 

approval of the county school board, may expend out of 

the county school fund an amount not to exceed one hun- 

dred and fifty dollars ($150.00) in any school year for 

part-time janitor’s services or other help in the handling, 

storage, and distribution of school books. 

Sources: Laws, 1946, ch. 464, §§ 1, 2. 

§ 6658-02. Reports required from non-public schools re- 

ceiving free textbooks.—1. The management of all private, 

parochial or denominational schools wherein the state text- 

book board is furnishing to the students thereof free 

school textbooks and said free school textbooks are used 

by the students in said school, shall file annually with  



42a, 

Appendix B 

the county superintendent of education wherein said school 

is located on or before July 1 of each year a report show- 

ing the number of students receiving instruction, the num- 

ber of students in regular attendance, the number of 

teachers employed and any other facts required by the 

state board of education as will show the grade, char- 

acter and amount of educational work actually dome in 

said school. 

2. Any person required by this act to do so who shall 

refuse, neglect or fail to file the report herein required 

shall be guilty of a misdemeanor and upon conviction, 

shall be fined in a sum not to exceed twenty five dollars 

($25.00). 

3. All laws or parts of laws in conflict herewith be and 

the same are hereby repealed. 

Sources: Laws, 1946, ch. 464, §§ 1, 2. 

§ 6659. Advertising.—The Mississippi State Textbook 

Purchasing Board is hereby authorized, empowered, and 

directed, in its discretion, to offer for advertising pur- 

poses, the protective covers of the several free textbooks, 

to accept bids, to let contracts for said space; and the 

contracts for said advertising purposes shall be let for 

definite periods not to exceed two years. 

It shall be the duty of the Mississippl State Textbook 

Purchasing Board, if it is desired that advertising shall 

be used, to approve all proposed advertising submitted for 

use on the covers of such free textbooks, to accept only 

that advertising which will be in keeping with the spirit 

of the schools in promoting the children physically, men- 

tally, and morally; and the said Mississippi State Text- 

book Purchasing Board is hereby authorized, empowered,  



43a 

Appendix B 

and directed, in its discretion, to reject any and all bids 

submitted. Provided that no sectarian, un-American or 

immoral advertisements shall be accepted. 

That all moneys derived from sale of such advertising 

be deposited in the state treasury for the benefit of the 

general fund. 

Sources: Laws, 1940, ch. 194. 

§ 6659.5. Mississippi Blue Book, purchase and distribu- 

tion of.—1. The State Textbook Purchasing Board be and 

it is hereby authorized and empowered to purchase not 

to exceed seven thousand five hundred copies of the Mis- 

sissippi Blue Book for supplementary use in the schools 

of Mississippi. 

2. The Mississippi State Textbook Purchasing Board 

shall prescribe the number of copies to be furnished each 

school or make any other regulations governing its dis- 

tribution and use. 

3. The cost of the Blue Books purchased and distributed 

in excess of the number of copies now authorized by law 

shall be paid for out of the regular appropriation to the 

state textbook fund. 
YA 

Sources: Laws, 1950, ch. 3 

 



44a 

Appendix C 

(See Opposite) I= 

 



APPENDIX cl/ 

STATEWIDE ENROLLMENTS 
  

Private Non~Sectarian Public 
  

Number 
of 
Schools 
Opened 
For 

# of First 
Schools Time 
    

1963-64 17 570,000 
  

1964-65 + 21 576,000 
  

1965-66 +1,433 41 583,000 
  

1966-67 +1,611 49 582,500 
  

1967-68 +1,094 58 582,500 
  

1968-69 +2,518 69 581,300 
  

1969-70 +21,875 550, 500 
                Sept. 1970 +11,061 534,500 
  

  

an 
This Appendix derives entirely/from exhibit offered and received into 

evidence by supplemental order of district court. 

2/gstinate based on stipulations; the exact figure lies somewhere between 
41,000 and 43,000.  



    
45a 

 



46a 

Appendix D 

(See Opposite) EF 

 



APPENDIX D 

PRIVATE NON-SECTARIAN ACADEMIES 1/ 
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM— 

1970-71 

NAME OF scuoor/ NUMBER OF BOOKS COST TO STATE NUMBER OF stupenTs2/ 
        

Presbyterian Day School 264 S$ 576.45 135 
Chamberlain-Hunt Academy 829 3,398.82 360 
Clarksdale Baptist 2356 5,937.45 427 
First United Methodist 1305 3,029.25 169 
Presbyterian Day School 1247 2,323.11 141 
St. George's Episcopal 1340 2,885.54 169 
Christ Episcopal Day School 2075 5,218.28 265 
Woodland Hills Baptist Academy 2279 5,598.42 428 
Heidelberg Baptist Academy 1993 5,557.50 295 
Jesus Name Faith 85 170.70 Ma 
St. John's Day School 1130 2,465.85 184 
First Baptist Parochial 630 : 1,499.64 78 
Sylvarena Baptist Academy 1671 4,255.77 236 
Gospel Lighthouse Christian 119 472.95 22 
Adams County Private 2513 8,327.34 1006 
Adams County Christian 3452 8,918.07 535 
Amite School Corporation 3950 11,875.26 581 
Pine Hills Academy 1839 5,194.44 328 
Gray Academy 1320 3,932.43 177 
Shaw Educational Foundation 1480 4,443.00 905 

  

Y this Appendix derives entirely from compilation filed by appellees in the district court 

2/11 students (and all faculty members) are white except for "15 Chinese, 16 oriental, 2 
Indians and 2 Latin American" students. 

3/ The district court found that all of the "church schools" recorded herein are essentially 
non-sectarian and were formed in response to the desegregation of public schools.  



PARTICIPATING IN STATE'S TEXTBOOK PROGRAM— 

NAME OF ScHoor3/ 
  

Calhoun Academy 
Carroll Academy 
Chickasaw Academy 
Clarke Academy 
Oak Hill Academy 
Pheba Academy 
Happy Day School 
Copiah Academy 
The Children's Academy 
Union Private 
Sanford Academy 
Covington School Foundation 
J. A. Beeson Academy 
Kirk Academy 
Grenada Lake Academy 
Westminister Academy 
Bearss Academy 
Jackson Academy 
Southwest Academy 
Terry Academy 
Central Holmes 
Cruger-Tchula Academy 
East Holmes Academy 
Four County Academy 
Humphreys Academy 
Live Oak Academy 

APPENDIX D 

PRIVATE NON-SECTARIAN ACADEMIES 1 

1970-71 

NUMBER OF BOOKS 
  

294 
358 

1420 
387 

2348 
675 
652 

2472 
726 

1578 
787 
312 

1531 
842 

2523 
252 
417 

3071 
1167 
1378 
3861 
2299 
2776 
815 

3480 
218 

COST TO STATE 

/ 

NUMBER OF STUDENTSZ/ 
  

  

$ 655.14 
1,084.83 
3,586.17 
1,478.04 
6,739.17 
1,636.14 

884.73 
7,312.20 
2,588.70 
4,526.16 
2,277.54 
1,494.36 
4,229.04 
3,061.74 
7,119.58 

773.86 
1,146.18 
6,652.56 
2,649.12 
3,884.61 

12,787.11 
7,712.64 
7,791.60 
1,905.90 

10,000.71 
822.21 

127 
305 
164 
340 
450 
133 
110 
483 
148 
202 
136 
75 

265 
639 
381 
132 
117 
575 
131 
157 
501 
438 
619 
76 

398 
412  



APPENDIX D 

PRIVATE NON-SECTARIAN ACADEMIES 1/ 
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM— 

NAME OF scuooL>/ NUMBER OF BOOKS COST TO STATE NUMBER OF sTUDENTSZ/ 
        

Claiborne Educational 
Foundation 2032 $ 4,792.38 253 
Prentiss Christian School 779 1,975.95 180 
Kemper Academy 3849 10, 654.85 432 
College Hill Academy 513 1,701.51 199 
Lawrence County Academy 717 2,149.32 177 
Leake Academy 2369 6,809.19 500 
M & L Academy 844 2,013.18 42 
Greenwood Private Junior High 1160 4,288.95 330 
Pillow Academy 2453 7,802.87 1189 
Brookhaven Academy 2675 6,457.74 307 
Southwest Christian Academy 564 1,689.09 361 
East Lowndes Academy 1745 5,056.02 247 
Heritage Academy 1593 4,029.81 350 
Canton Academy 8437 25,506.60 1225 
Madison-Ridgeland Academy 448 1,151.01 136 
Tri-County Academy 1217 4,327.71 438 
Columbia Academy 1514 4,914,35 379 
West Marion Academy 2073 6,336.78 383 
Marshall Academy 1153 3,012.36 600 
Mt. Pleasant Christian Academy 1254 3,498.30 149 
North Mississippi Academy 442 1,230.96 95 
Montgomery-Carroll Academy 699 1,629.49 174 
Pioneer Academy 438 922.65 45 
Newton County Academy 887 2,046.92 78 
Central Academy 1858 5,329.29 751 
Starkville Academy 3229 9,362.77 553 
North Delta Schools, Inc. 1021 3,373.19 268  



APPENDIX D 

PRIVATE NON-SECTARIAN ACADEMIES 1/ 
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM= 

1970-71 

NAME OF scuoor/ NUMBER OF BOOKS COST TO STATE NUMBER OF STUDENTS Z/ 
        

74. West Panola School 1143 $ 3,134.67 203 
75. Parklane Academy 1539 3,887.01 228 
76. Quitman County Education 

Foundation 127 3,008.91 480 
77. Brandon Academy 3912 11,447.46 589 
78. East Rankin Academy 1341 3,149.16 180 
79. Flowood Academy 443 1,251.93 227 
80. Rankin Academy 1510 5,302.47 284 
81. Scott County Christian 2235 6,325.58 320 
82. Sharkey-Issaquena Academy 1051 3,815.35 664 
83. Simpson Academy 1266 3,427.89 270 
84, Pines Academy 156 404,82 44 
85. Central Delta Academy 1933 4,878.66 216 
86. Indianola Academy 7985 24,029.01 1209 
87. North Sunflower Academy 2243 7,841.28 626 
88. Paynes Academy 1288 3,635.73 96 
89. West Tallahatchie Academy 666 1,856.85 178 
90. Hillcrest Academy 547 1,495.26 165 
91. Magnolia Heights 1930 5,674.80 228 
92. Northwest Academy 1613 4,347.15 239 
93. Tunica Institute 2189 6,851.52 495 
94, Citizen's School 1776 4,589.91 255 
95. Walnut Hills School 317 816.42 114 
96. Deer Creek School 1821 5,126.76 496 
97. Wayne County School Foundation 814 2,064.21 103 
98. Centreville Academy 3250 10,295.55 407 
99. Winston Academy 1781 5,036.76 288  



APPENDIX D 

PRIVATE NON-SECTARIAN ACADEMIES 1/ 
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM= 

1970-71 

NAME OF scrooL/ NUMBER OF BOOKS COST TO STATE NUMBER OF STUDENTS Z/ 
    

  
  

100. Benton Academy 3148 S$ 8,432.85 421 

101. Bentonia Academy 874 1,951.35 82 

102. Manchester Academy 1004 2,356.92 550 

103. Highway Baptist School 1304 2,839.83 104 
104. Jefferson Davis Academy 1054 3,701.10 356 
105. North Central Miss. Schools 723 1,602.87 67 
106. Wilkinson County Christian 4002 11,359.74 404 
107. Pearl River Academy ; 660 1,209.06 104 

      

TOTALS: 173,424 $490, 239 34,532 

 



Opinion Below 

Jurisdiction 

Constitutional and Statutory Provisions Involved 

Question Presented 

Statement 

I. Proceedings Below 

II. The Growth of Private Academies and Their 

Impact on Public Education 

A. State-Wide Perspective 

B. Impact of Private Academies on Public 

School Desegregation in Specific School 

Districts 

(1) Holmes County School District 

(2) Canton Municipal Separate School 

District 

(3) Jackson Municipal Separate School 

District 

III. The State’s Textbook Program 

A. The Program Generally 

B. The Extent of Textbook Aid to Private 

Racially Segregated Academies 

The Questions Presented Are Substantial 

ConNcLusiON  



APPENDIX A— 

District Court Opinion 

District Court Judgment 

Notice of Appeal 

ArPENDIX B— 

Mississippi Textbook Statutes 

AprrPENDIX C— 

Statewide School Enrollments, 1963-64—1970-71 ..44a 

APPENDIX D— 

Private Non-Sectarian Academies Participating 

in State’s Textbook Program [||2c972869-8346-4ec6-bf1d-3bf704f0150e||]