Singleton v Jackson Municipal School District Appendix to Petition for Writ of Certiorari

    APPENDIX TO PETITION FOR WRIT OF CERTIORARI 
— OPINIONS OF THE COURTS BELOW

IN THE

dJmtrt of tlir litnituun States
October Term, 1969

No......... .......

DEREK JEROME SINGLETON, et al.,

V.
JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT, et al.

Petitioners,

CLARENCE ANTHONY, et al.,

V.
MARSHALL COUNTY BOARD OF EDUCATION.

Petitioners,

LINDA STOUT, by her Father and Next Friend, BLEVIN STOUT, et al.,

y.
JEFFERSON COUNTY BOARD OF EDUCATION, et al.

Petitioners,

DORIS ELAINE BROWN, et al.,

V.
Petitioners,

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

BIRDIE MAE DAYIS, et al.,

V.
Petitioners,

BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.

NEELY BENNETT, et al., and ALLENE PATRICIA ANN BENNETT, a minor, 
by R. B. BENNETT, her Father and Next Friend,

V.
Petitioners,

R. E. EVANS, et al. and BURKE COUNTY BOARD OF EDUCATION, et al.

SHIRLEY BIVINS, et al.,
Petitioners,

v.

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

OSCAR C. THOMIE, Jb., et al.,

V.

HOUSTON COUNTY BOARD OF EDUCATION.

Petitioners,

JEAN CAROLYN YOUNGBLOOD, et al.,
Petitioners,

v.

THE BOARD OF PUBLIC INSTRUCTION OF BAY COUNTY, FLA.

LAVON WRIGHT, et al.,

V.
Petitioners,

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



I N D E X
PAGE

Appendix 1—

Opinion Denying Preliminary Injunction (Filed 
May 10, 1968) .......................................................  la

Appendix 2—

Order (Filed July 6, 1968) ..................................  8a

Findings of Fact and Conclusions of Law ......... 14a

Order (Filed July 22, 1969) ..................................  35a

Appendix 3—

Opinion of the Court of Appeals for the Fifth 
Circuit (Dated June 26, 1969) ..........................  43a

Appendix 4—

Order (Filed August 5, 1969) ..............................  52a

Opinion of the Court (Filed August 5, 1969) .... 54a

Appendix 5—

Memorandum Opinion of the Court (Filed Augijst 
5, 1969) ................................................................ . 67a

Order (Filed August 5, 1969) ................................  72a

Appendix 6—

Order (Filed August 1, 1969) ................................  73a

Appendix 7—

Order (Filed June 20, 1969) ..................................  79a

Order (Filed August 22, 1969) ..............................  85a



11

PAGE

Appendix 8—

Order (Filed August 12, 1969) ..............................  88a

Appendix 9—

Order (Filed August 12, 1969) ............... ..............  98a

Appendix 10—

Order (Filed March. 4, 1969) ..................................  105a

Order (Filed April 3, 1969) ..................................  108a

Appendix 11—

Order (Filed March 4, 1969) ..................................  112a

Order (Filed April 3, 1969) ..................................  115a

Appendix 12—

Opinion in Court of Appeals dated December 1,
1969 .........................................................................  117a

Appendix 13—

Judgment of Court of A ppeals..............................  141a



A P P E N D I X  1

Opinion Denying Preliminary Injunction

(Filed May 10, 1968)

I n  the

U nited States D istrict Court 

F or the S outhern D istrict of M ississippi

Derek Jerome Singleton, et al.,
Appellants,

versus

Jackson M unicipal Separate S chool D istrict, et al.,

Appellees.

On July 6, 1967, this Court entered an Order herein plac­
ing the Jackson Municipal Separate School District, Jack- 
son, Mississippi, under the desegregation of public schools 
provisions spelled out in the Jefferson decree, U.S. v. Jef­
ferson County Board of Education (1966), 372 F.2d 836, 
which Order contains provisions affecting new or expanded 
school construction.

The Board of Trustees of the Jackson municipal school 
district has current plans to add 22 classrooms and certain 
other facilities to four formerly Negro elementary schools. 
A  motion filed March 18, 1968, allegedly on behalf of the 
Negro class of plaintiffs set forth in the original cause, asks 
for a preliminary and permanent injunction, to enjoin the 
Board from the proposed additions; to enjoin the Board 
to construct the additions at four formerly white schools 
instead; and to assign to those formerly white schools the 
overflow from the aforesaid formerly Negro schools.

A notice was filed on April 25, 1968 on the preliminary 
injunction to be heard on May 2, 1968. As bids on the in­



2a

tended construction are scheduled to be let on May 27 and 
June 3, 1968, the matter was given a priority hearing.

In the aforesaid Jefferson case, at page 889, the Fifth 
Circuit Court of Appeals offered the statement that new 
construction and improvements to the Negro school plant 
attract no white students and diminish Negro motivation to 
ask for transfer. This conclusion laid the foundation for 
the requirement of Paragraph VII of the Order herein, 
which provides:

“ The defendants, to the extent consistent with the proper 
operation of the school system as a whole, shall locate any 
new school and substantially expand any existing schools 
with the objective of eradicating the vestiges of the dual 
system.”

Plaintiffs contend that the proposed construction will 
have the sole purpose of perpetuating what are now de facto 
Negro schools in violation of Paragraph VII, and that un­
der the recent holding of the Fifth Circuit dated April 18, 
1968, in U.S.A. v. Board of Public Instruction of Polk 
County, Florida, No. 25768, not yet reported, the defen­
dants, before construction, are required to evaluate the 
factors relating to possible steps in eradicating the former 
dual system. Such an evaluation had not been made in that 
case by Polk County Board before choosing a location for 
a new school. The Court held that the Board must do so, 
and the ruling went no further.

Defendants maintain that such an evaluation has been 
made by the Jackson Board and that Paragraph VII must 
be read together with that portion of Paragraph VI of the 
order which provides, “ The physical facilities, equipment, 
course of instruction, and quality of instructional material 
shall be equal in all schools maintained by the district” , 
and that in careful consideration of the “proper operation 
of the school system as a whole” , and mindful of the sig­

Opinion Denying Preliminary Injunction



3a

nificance of Paragraph VII, concluded that the proposed 
additions would best serve the immediate and future needs 
of the school children in the respective communities, and 
would not impede the break-up of the dual system, but to 
some extent would hasten its end by making available more 
class rooms to children of either race in expanding nearby 
areas.

Dr. Kirby Walker, Superintendent of Schools, was called 
as a witness by plaintiffs. His testimony, his deposition, that 
of Jesse L. Howell, director of personnel and pupil account­
ing, records, maps, and reports brought to the hearing by 
Dr. Walker, constituted the factual evidence. This evidence 
is undisputed and is related by the Court as its findings.

A  printed booklet shows some fifty-six classroom build­
ings, exclusive of athletic stadiums, maintenance shops and 
warehouses, in the school system. Of these thirty-nine are 
elementary schools. For some twenty-years Jackson has 
experienced a growth in its school enrollment, requiring 
periodic construction programs financed by bond issues. Of 
the last bond issue in 1964 producing $5,800,000.00, aug­
mented by state funds, all has been used primarily in the 
construction of secondary schools, except a remaining tag 
end of approximately $750,000.00 earmarked for use in 
1968. After its use, no new buildings or other added con­
struction are contemplated until new studies are made of 
population growths, following the 1970 census, the determi­
nation of proposed extensions of the city geographical lim­
its, the use or changed uses of land adjacent to interstate 
highways now under construction in and around the city, 
zoning ordinances of the city and county, and the ultimate 
passage of new bond issues for such construction, all to be 
considered together with the provisions of Paragraph VII.

The use of the funds remaining from the 1964 bond issue 
was first considered in September 1967 by Mr. Walker and

Opinion Denying Preliminary Injunction



4a

his staff of school principals, after the September enroll­
ment showed capacity or near capacity enrollment at sev­
eral elementary schools, including the four formerly Negro 
schools involved herein, Brown, Dawson, Morrison and 
Reynolds. Following a study of population density reports, 
anticipated enrollments, and present facilities, this staff 
recommended to the Board of Trustees that classrooms and 
other facilities be added to these four schools and one other 
not involved herein. The plans were first submitted to the 
Board of Trustees in December 1967, some five months 
after the Order of July 6, 1967. Air. Walker stated, and 
the Court so finds, that the Superintendent, staff and Board 
conducted their deliberations with Paragraph VII of the 
Order in mind, and consulted the Board’s attorneys in con­
nection with same. Estimates of costs and monthly progress 
reports have now been prepared, and an opportunity for 
bidding is to be made shortly. The names of the four for­
merly Negro schools, their current capacity, current enroll­
ment, number of rooms, and size of grounds are first listed 
below, with like information as to four formerly white 
schools listed last, which plaintiffs have brought into the 
controversy.

Opinion Denying Preliminary Injunction

School
Current

Capacity
Current

Enrollment

Present 
Number 

of Rooms Acreage

Brown 910 904 26 2.1
Dawson 665 598 19 6.28
Morrison 645 649 20 5.8
Reynolds 1190 1172 34 12.
Bradley 455 340 13 8.
Galloway 635 372 17 2.
Poindexter 375 223 13 3.6
Watkins 640 281 22 17.



5a

Of the total enrollment in the elementary schools, 9,912 
students are in formerly Negro schools, and 11,491 students 
are in formerly white schools. Of the total classrooms in 
each of the above two groups, there is an average of 4 more 
students per class in formerly Negro schools than in for­
merly white schools, but the average for each is below the 
school system standards of 35 normal students per class 
room and 15 mentally handicapped or special students per 
classroom. The intended added classrooms are 6 each for 
Brown and Dawson, 6 rooms together with library and 
larger lunch room at Morrison, and 4 rooms with a library 
and auditorium at Reynolds. These additions will tend to 
equalize the number of students per classroom as between 
the two groups of schools, and to add to the formerly Negro 
schools other facilities, such as libraries, which they are 
now without. Additional acreage is also to be acquired at 
the four formerly Negro schools. No additional classrooms 
or facilities or acreage are scheduled for any of the four 
formerly white schools; nor until this action was filed had 
any been requested. As stated in the forepart of this opin­
ion, plaintiffs say no added construction should be had at 
any of the formerly Negro schools and that Negro students 
should be assigned to the formerly white schools where 
classrooms should be added to take care of the overflow from 
the formerly Negro schools, this despite the fact that under 
the present freedom of choice enrollment, no additional 
space is needed at the formerly white schools.

If the intention of plaintiffs is to compel pupil assign­
ment to the four previously white schools, the Board is pre­
cluded from so doing under freedom of choice. Nor does 
the Board furnish transportation to students living within 
the city limits, nor is it required to under the Civil Rights 
Act of 1964 (Title IV, Section 407 (a) (2)) and as held by 
U.S. v. Jefferson, 372 F.2d at Page 880.

Opinion Denying Preliminary Injunction



6a

A comparison of Brown, Dawson, Morrison and Reyn­
olds, the former Negro schools, to the nearest formerly 
white schools, Bradley, GalloAvay, Poindexter, and Watkins, 
was shown. Brown is more than a mile from Galloway. 
Dawson is a little less than a mile from Bradley. Morrison 
is a mile from Watkins, and Reynolds is a mile from Poin­
dexter. To compel elementary age students to assume these 
additional distances, either by walking or other transporta­
tion, when additions at the schools nearest them are avail­
able, is neither reasonable nor practical. Plaintiffs add that 
buses furnished by the School Board to some students who 
live outside the city limits and who attend Dawson, pass 
right by Watkins. The answer to this is that during any 
appropriate choice period they could elect or could have 
elected to attend Watkins.

The Board showed that it gave consideration to at least 
two other practical factors; one, that population densities 
as compiled by the Board, particularly as to Reynolds, are 
growing in the area of the schools to he added to, and de­
creasing in the neighborhoods of the formerly white schools. 
The other was that the formerly white schools, being of 
much older construction than the formerly Negro schools, 
are structurally less suited to additions. As to Watkins, it 
is more than forty years old, and is on Sixteenth Section 
lands, the lease to wdiich expires in five years. Poindexter 
is thirty-four years old. Bradley is twenty-three years old, 
and was first built by a county school board and has been 
enlarged once by the Jackson Board. None of these schools 
was originally built with the possibility of additions in 
mind. The cost of doing so would far outweigh the cost of 
the proposed additions.

Mr. Walker states that the Board does not maintain that 
additions to the formerly Negro schools will eliminate the

Opinion Denying Preliminary Injunction



7a

dual system, but that such construction will facilitate inte­
gration by making more classrooms available where they 
are now needed for white or Negro children. This is the 
practical problem faced by the Board in the utilization of 
its remaining funds and its proposed solution is “ consistent 
with the proper operation of the school system as a whole.” 
The Court agrees. See Griggs v. Cook, 272 F. Supp. 163. 

The motion for a preliminary injunction is denied.

s /  Dan M. R ussell, Jr. 
United States District Judge

Opinion Denying Preliminary Injunction

Dated: May 9, 1968



8a

APPENDIX 2 

Order

(Filed July 6, 1968)

I n  the

U nited S tates D istrict Court 

F or the N orthern D istrict of M ississippi 

W estern D ivision 

Civil A ction N o . WC 6819

Clarence A nthony , et al., 

v.
Plaintiffs,

M arshall County B oard of E ducation, et al.,

Defendants.

This cause having come on to be heard upon the com­
plaint and motion for a preliminary injunction filed by 
plaintiffs and also upon the separate answers and other 
pleadings filed by both sets of defendants, and evidence 
having been presented to the court in support of the mo­
tion for preliminary injunction, and the court having con­
cluded that said motion should be in part denied and in 
part sustained in accordance with findings of fact and con­
clusions of law made by the court at the conclusion of this 
hearing, and in accordance therewith, it is :

Ordered:

As to H olly Springs M unicipal Separate S chool D is­
trict :

(1) Except as hereinafter decreed, the plan of desegre­
gation adopted by defendants representing Holly Springs



9a

Order

Municipal Separate School District, a copy thereof attached 
as Exhibit “B” to the separate answer of said School Dis­
trict and its representatives, including amendments to U 8 
(subject to modification by this order) of such plan, is 
hereby approved until the further order of this court, and 
all injunctive relief seeking the adoption of a contrary plan 
or plans for pupil school attendance is denied.

(2) To eliminate unconstitutionality in the present op­
eration of the public schools within the Holly Springs Mu­
nicipal Separate School District, defendants, Holly Springs 
Municipal Board of Education, organized and existing 
under the laws of the State of Mississippi, Robert P. 
Crutcher, Dr. E. B. Warren, E. E. Greene, Dr. A. D. 
Jones, and Leslie Tomlinson, members of the Holly Springs 
Municipal Board of Education; and Joe F. Williams, Su­
perintendent of the Holly Springs Municipal Public Schools, 
are hereby preliminarily enjoined from maintaining, and 
continuing to maintain, in the public schools within said 
School District segregation by race of school faculties and 
public transportation by race of school children, and said 
defendants are ordered to submit to this court not later 
than the 12th day of August, 1968, a plan or plans supple­
mentary to their adopted plan of desegregation, Exhibit 
“B” to their answer as amended, whereby the following 
assignments, programs and arrangements will be instituted 
and placed into effect for the 1968-69 school year, effective 
upon the opening of school for such year, to-wit:

(a) The assignment of not less than 4 teachers of the 
negro race to Holly Highschool, of not less than 4 teachers 
of the negro race to Sally Cochran Elementary School, of 
not less than 4 teachers of the white race to Sims High-



10a

Order

school, and not less than 4 teachers of the white race to 
Frazier Elementary School. Defendants shall direct said 
teacher assignments or re-assignments regardless of any 
contrary term in teacher contracts; they shall be lawfully 
protected in the making of any re-assignments under the 
terms of this order and any such assigned, or re-assigned, 
teacher shall be lawfully obligated to comply with the 
directions of defendants. Defendants shall set forth in 
its plan of faculty desegregation the name, race and teach­
ing station of each faculty member assigned in accordance 
with the terms of this order;

(b) The development of a school bus transportation plan 
based upon territorial zones or other natural grouping of 
pupil residence, which shall be without regard to race or 
the school selected by any particular child, to the end that 
all children living on designated bus routes, established 
according to pupil residence, shall be transported in a 
bus to either the Holly Highschool-Cochran Elementary 
School location or to Sims Highschool-Frazier Elementary 
School location. Insofar as practicable, overlapping routes 
shall be eliminated, and all children of whatever race shall 
be treated substantially alike as to seating capacity, bus 
scheduling, length of route, riding time, etc., dependent 
upon physical factors governing each particular bus route. 
Said defendants shall include in their transportation plan 
the name, race, and residence of each student proposed to 
be transported on each school bus, the name of the school 
to which such student will be transported, the designation 
and length of the route, the number and capacity of each 
bus, and other pertinent data to aid this court in deter­
mining that compliance has been made with this paragraph 
of its order.



11a

Order

As to M arshall County S chool D istrict:

(1) Except as hereinafter decreed, the plan of desegre­
gation adopted by defendants representing Marshall County 
School District, a copy thereof attached as Exhibit “B” to 
the separate answer of said School District and its repre­
sentatives, including amendments to 8 (subject to modi­
fication by this order) of such plan, is hereby approved 
until the further order of this court, and all injunctive re­
lief seeking the adoption of a contrary plan or plans for 
pupil school attendance is denied.

(2) To eliminate unconstitutionality in the present op­
eration of the public schools within the Marshall County 
School District, defendants, Marshall County Board of 
Education, organized and existing under the laws of the 
State of Mississippi; William R. Hurst, Sidney Person, 
Mrs. Corrine Waldrip, Frank Davis, and Rev. Frank W il­
son, members of the Marshall County Public Schools ; Stan­
ley V. Mullikin, Superintendent of the Marshall County 
Public Schools, are hereby preliminarily enjoined from 
maintaining, and continuing to maintain, in the public 
schools within said School District segregation by race of 
school faculties and public transportation by race of school 
children, and said defendants are ordered to submit to 
this court not later than the 12th day of August, 1968, 
a plan or plans supplementary to the adopted plan of 
desegregation, Exhibit “B” to their answer as amended, 
whereby the following assignments, programs and arrange­
ments will be instituted and placed into effect for the 
1968-69 school year, effective upon the opening of school 
for such year, to-wit:

(a) The assignment of not less than 3 teachers of the 
negro race to Byhalia Attendance Center, at least one of



12a

Order

whom must be assigned to teach in grades 9 to 12; of not 
less than 3 teachers of the negro race to Potts Camp At­
tendance Center, at least one of whom shall be assigned 
to teach in grades 9 to 12; of not less than 2 teachers of 
the negro race to Slayden Attendance Center; of not less 
than 4 teachers of the white race to Henry Attendance 
Center, at least one of whom shall be assigned to teach in 
grades 9 to 12; of not less than 3 teachers of the white 
race to Sand Flat Attendance Center, at least one of whom 
shall be assigned to teach in grades 9 to 12; and at least 
one teacher of the white race to Mary Reed Attendance 
Center. Defendants shall direct said teacher assignments 
or re-assignments regardless of any contrary term in 
teacher contracts; they shall be lawfully protected in the 
making of any re-assignments under the terms of this 
order and any such assigned, or re-assigned, teacher shall 
be lawfully obligated to comply with the directions of de­
fendants. Defendants shall set forth in its plan of faculty 
desegregation the name, race and teaching station of each 
faculty member assigned in accordance with the terms of 
this order;

(b) The development of a school bus transportation plan 
based upon territorial zones or other natural grouping of 
pupil residence, which shall he without regard to race or 
the school selected by any particular child, to the end that 
all children living on designated bus routes, established 
according to pupil residence, shall be transported in a bus 
to the most conveniently located school or schools, as each 
child residing in a particular area may elect to attend. 
Insofar as practicable, overlapping routes shall be elimi­
nated, and all children of whatever race shall be treated 
substantially alike as to seating capacity, bus scheduling, 
length of route, riding time, etc., dependant upon the phys-



13a

Order

ical factors governing each particular bus route. Said 
defendants shall include in their transportation plan the 
name, race, and residence of each student proposed to be 
transported on each school bus, the name of the school to 
which such student will be transported, the dsignatioen 
and length of the route, the number and capacity of each 
bus, and other pertinent data to aid this court in determin­
ing that compliance has been made with this paragraph 
of its order.

This court shall take up and consider the sufficiency of 
the school faculty assignments and school bus transporta­
tion plans filed by each defendant on the 16th day of August, 
1968, at 9 o’clock A.M. at Oxford, Mississippi.

The United States Marshal is hereby directed to serve 
certified copies of this order on each of the defendants 
named herein and to make return of service as herein 
ordered on the original hereof.

This, the 6th day of July, 1968.

W illiam C. K eady 
Chief Judge

United States District Court



14a

(Filed July 6, 1968)

P R O C E E D I N G S

B y the Court :

At this time the court makes its findings of facts and 
conclusions of law on the application of the plaintiffs for 
a preliminary injunction. I will treat on my finding of 
facts first the Holly Springs Municipal Separate School 
District and then the Marshall County School District, and 
the conclusions of law will be equally applicable to both 
districts.

The Holly Springs Municipal Separate School District 
consists of the municipality of Holly Springs and a large 
rural contiguous area comprising approximately 180 square 
miles. It had a total enrollment, during the year just 
closed, in its public schools of 2,473, of whom 1,868 were 
Negro and 875 were white students. Thus according to 
race there are more than two Negro children for each 
white child attending these public schools.

The Holly Springs public schools consist of two previ­
ously all-white and two all-Negro schools. The Sims High 
School, attended all by Negroes, has grades 7-12 and has 
a student body of 750. The Frazier Elmentary School, an 
all-Negro school, has an enrollment of 1079, with grades 
1-6. Both of these schools are located on the same site.

The Holly High School has a student body of 425 in 
grades 7-12, of which 8 are Negroes. The Sally Cochran 
Elementary School has a student body of 471, with grades 
1-6, of which 13 are Negro students. The Holly High and 
Sally Cochran schools are located on the same site. The 
two school attendance centers are located within one mile 
of each other.

F in d in g s o f  F acts a n d  C o n c lu s io n s  o f  L aw



15a

Prior to September, 1965 these schools were completely 
segregated according to race. For the school year 1965- 
66 a freedom of choice plan was first adopted, and it had 
the approval of the Department of Health, Education and 
Welfare. The first year the plan was in operation approxi­
mately 20 students of the Negro race attended the formerly 
all-white schools, but no white students attended the previ­
ously all-Negro schools. This remained true for the second 
year of the plan’s operation. During the year just concluded, 
1967-68, 21 Negro students attended the previously all- 
white schools in Holly Springs in the proportions I have 
already stated. To this date no white students have at­
tended either the Sims High School or the Frazier Ele­
mentary School.

In May, 1967 the Department of Health, Education and 
Welfare cut off assistance to the Holly Springs Municipal 
Separate School District due to an alleged lack of compli­
ance with HEW guidelines. The school board or district 
did not contest this action, nor was any appeal taken from 
that ruling.

The crux of the matter at that time appeared to depend 
on whether there would be some measure of faculty de­
segregation and, although teacher surveys were made by 
school authorities looking to that end and talks were had 
with representatives from the Department of Justice, noth­
ing resulted. In only two instances has faculty desegrega­
tion occurred in the Holly Springs public schools. One was 
the case of a librarian of the Negro race employed as a 
part time librarian at the Cochran Elementary School. The 
other case was a white teacher of Spanish who taught 
classes at both Sims High School and Holly High School.

Still operating under a freedom of choice plan, the school 
district in May, 1968 sent out freedom of choice forms to

Findings of Facts and Conclusions of Law



16a

all of the students, on which replies have been received 
from approximately 2,500 pupils, leaving roughly 300 out­
standing responses yet to he heard from.

On the basis of these known replies 60 Negro students 
have signified their intention for the year 1968-69 to attend 
the previously all-white Holly High School and Cochran 
Elementary School. To date no white students have sig­
nified their intention to go to all-Negro attended schools.

The evidence shows that the school board and its super­
intendent have met and have given careful consideration 
to their obligations and duties, and their position in this 
court is that no plan of school attendance can feasibly work 
in this district other than one based on freedom of choice. 
It appears that they have considered alternative plans, 
for the zoning of attendance areas and also for pairing 
of certain schools according to grades.

The evidence shows that, as their studies indicate, be­
cause of the high degree of residential mixing that prevails 
throughout the Holly Springs District and considering the 
capacity of the schools involved at the two attendance cen­
ters under consideration and the natural territorial bound­
aries that will have to be logically followed to produce 
either a zoning plan or a pairing plan, there would under 
either method at once result a heavy preponderance of 
Negro pupils to white pupils in practically every school in 
the district.

The court refers as evidentiary basis to Defendants’ Ex­
hibit No. 7, prepared by the school superintendent, showing 
that the only practical and logical division or zone line for 
the two attendance centers within Holly Springs would be 
one which would follow Highway 7 on the north and south 
of the city and Memphis Street from north to south to 
the intersection of Van Dorn, westward to Craft Street,

Findings of Facts and Conclusions of Law



17a

and Craft Street south until it becomes Highway 7. This 
major thoroughfare taken as a division line is shown in 
red on the map introduced by the school superintendent.

West of that line under a zoning concept would lie the 
Sims-Frazier school complex with a capacity of 1,680 stu­
dents. East of that line would lie the Holly-Sally Cochran 
school complex with a school capacity of 1,107.

By using that line, which appears to this court to he 
necessarily controlled by the school capacity of the two 
complexes, or by the use of any other line which would 
have any logical relevance, it results from examination 
of Defendants’ Exhibit No. 7 that for those children going 
to the zone west of the line indicated there would be an 
extremely heavy preponderance of Negro students, better 
than three to one, almost three and a half to one. By the 
same token there would result for the attendance in the 
Holly-Sally Cochran School lying east of that line a ma­
jority, although not as preponderant but nevertheless a 
majority, of Negro students to white students. The ratio 
would be 1.3 Negro to one white student.

If pairing of schools as to certain grades were resorted 
to, the evidence also shows, from the same exhibit, that 
there would result from the use of school buildings in a 
sensible fashion in so far as education is concerned, that 
is, from the standpoint of the composition and number 
of grades and utilization of school plants, a preponderant 
majority of Negro students over white students in every 
school.

Of course these results stem from the basic fact, which 
remains unchanged, that in this district there are more 
than two Negro children for each white child of school age. 
So it stands to reason that in the use of any formula based 
either on zoning or pairing there will result a differential

Findings of Facts and Conclusions of Law



18a

not materially varying in degree because, as it appears 
from this undisputed evidence, these children live indis­
criminately throughout the county and they are fairly well 
distributed as to ages, in so far as concerns the balance 
between the two races. This appears from the uncontra­
dicted evidence in this case. There is no assault made by 
the plaintiffs upon those hard, realistic, practical facts.

Now, in approaching the question the court finds that 
there are various matters that need to be assessed and 
considered regarding the feasibility of either of these plans 
as a satisfactory alternate to the freedom of choice plan. 
The superintendent Avas particularly articulate, in the opin­
ion of this court, in that his experience had validated 
studies that for whatever may be the cause there is a 
substantially different achievement rate between white and 
Negro children. It is a difference which seems to widen 
as the child attains greater age.

In any event, it is clear from this evidence that an edu­
cational program of any type has to be geared to the 
average student group, and in considering a plan for Holly 
Springs based either upon the attendance zoning or pair­
ing, the educational effort, or the thrust of the curriculum, 
would have to be directed to the average group. Under 
either plan this would be necessarily lower than under a 
freedom of choice plan. It would constitute a real and 
serious injury to the educational function of the Holly 
Springs schools if their educational curriculum has to be 
drastically loAvered.

This court finds from the undisputed facts that such 
would be the case under either an attendance zoning or 
pairing of schools plan.

Also it is relevant to consider, and the court finds, that 
on a basis of any available zoning or pairing plan in the

Findings of Facts and Conclusions of Law



19a

Holly Springs District, considering the necessary results 
of the school population, the percentage of Negro students 
to those of the white race would clearly pass and exceed 
all tolerance standards known to the educational field, 
which are sometimes referred to in this evidence as trigger 
points.

When these tolerance standards are passed, this court 
is convinced there will result a loss in great numbers 
of white students from heavily integrated schools. This is 
a basic fact, one which this court does not have the time 
nor the wisdom to analyze, but its reality can not be 
ignored. Whites, regardless of what section of the country 
in which they live, and particularly in Holly Springs, flee 
and will flee from a public school operated under condi­
tions found intolerable because of a disproportionately 
high racial stratum. Without elaborating the point, sub­
stantial and uncontradicted evidence exists that white 
students will not long remain in a school system in all 
schools of which Negro pupils heavily predominate.

This court finds that to force such results at this par­
ticular juncture in the history of the school district either 
through zoning or pairing will produce, not integrated 
schools but all-Negro schools. The beneficial effects deemed 
to flow from a biracial public school system would thus 
be denied school children of both races.

These considerations have been regarded by the school 
district, and which this court accepts, as valid, highly 
persuasive factors overriding all other considerations, in 
concluding that freedom of choice, where it is honestly 
administered and carried out, is the most feasible method 
for this district to achieve the end result of keeping within 
a unitary school system the maximum number of educable 
children of both races. Strengthening this conclusion is

Findings of Facts and Conclusions of Law



20a

the added fact, as developed from this evidence, and which 
this court finds to be valid, that should an immediate zon­
ing and pairing in the Holly Springs schools be instituted, 
with the likely and anticipated loss in great numbers of 
white children from those schools, there would be a 
genuine loss of community support for the public school 
operation.

This court finds from this evidence and judicially knows 
that local community support is vital for the morale, the 
dignity and worth of a public school system. Where there 
is no pride or backing on the part of the community in 
its public schools, there result inevitably inferior, neglected 
schools. Conversely, where the community’s interest is 
strongly maintained in its local schools, such schools 
are motivated and are able to do a better and more effi­
cient job of public education.

Intelligent planning must be directed toward strengthen­
ing the public schools in these days of ever increasing 
responsibility thrown upon the average citizen of what­
ever race to make democratic processes more effective, and 
to that end there is no group that has a higher or greater 
stake than the white community for the successful opera­
tion of its public school system.

I find as a fact from this evidence, which is largely un­
contradicted on this phase of the case, that the student 
freedom of choice plan is a plan which, when weighed with 
its alternatives, which I have discussed, promises the 
most meaningful progress toward achieving desegrega­
tion. That is not to deny the obvious fact that there would 
be an immediate and substantial statistical integration 
under either a zoning or a pairing plan, but mere statistics 
would be of little value in the face of wholesale withdrawal 
by white students from such heavily mixing as this court 
finds will take place here.

Findings of Facts and Conclusions of Law



21a

Therefore, the school board at Holly Springs has met 
the heavy burden resting upon it, whatever its record for 
past performance might be, so as to at this time justify 
a valid preference for a freedom of choice plan. At this 
particular juncture that plan will do more, in the opinion 
of this court, from the standpoint of feasibility to ac­
commodate all interests and to consolidate public support 
importantly needed for the continuance of these schools 
as they face future desegregation likely to occur at a 
strikingly increasing rate under the freedom of choice 
plan.

No one can adequately foresee those changes in im­
portant social attitudes on the part of pupils, parents and 
the public flowing from adjustments which relate to an 
effective and working freedom of choice plan, but it can not 
be overlooked that the rights of Negro children to enjoy 
an improved education in a unitary, nondiscriminatory sys­
tem of schools are bound up in this change of attitude on 
the part of the white community.

In conclusion on this aspect of the findings, the school 
board at Holly Springs must recognize that freedom of 
choice is not, and can not be, an end of itself but is a 
transitional method yet needed in order for this district 
to be able to carry the burdens inherent here in success­
fully converting to a biracial, unitary school system. So 
much for the freedom of choice plan in the Holly Springs 
schools.

I now find facts as to the two other important aspects 
of the operation of this school system, first the faculty 
and next the bus transportation.

At a time when the board of trustees was having dis­
cussion with representatives of the Department of Jus­
tice about some measure of faculty desegregation a teacher

Findings of Facts and Conclusions of Law



22a

survey was conducted during- the summer of 1967, as I 
recall, more than a year ago, at which time the teachers 
of the Holly Springs schools were asked whether for the 
good of the district they would be willing to teach in a 
school other than the one that they were presently as­
signed to. A substantial number, or approximately 40% 
of those professional people, said that for the good of the 
district they would teach at a different school.

Except for the one instance of the part time librarian 
at Sally Cochran and also except for the divided efforts of 
the white Spanish teacher there has been no faculty de­
segregation.

Better than 60% of these schools’ funds for the payment 
of teachers’ salaries comes from the State of Mississippi. 
The balance is raised by local taxation. These defendants 
are agents of the State in the selection of teachers and as­
signment of teachers and they are under a constitutional 
duty to desegregate the faculty in these schools operated 
under the freedom of choice plan. The court finds that 
there is a factual basis for discrimination having been 
practiced in the selection of the faculty of the Holly Springs 
schools which has been unconstitutional.

In these schools there is a full time instructional staff of 
104 people. They have, except for the two instances I have 
noted, been distributed to schools where the predominant 
race was the race of the teacher. The court finds from the 
facts in this case that these defendants can achieve a greater 
measure of faculty desegregation and that this can be done 
with the teachers that they have under contract for the year 
beginning in September.

The court further finds that efforts can be made, in the 
event those arrangements are not altogether and 100% 
possible, to recruit teachers at this time to meet this affirma­
tive obligation for faculty desegregation.

Findings of Facts and Conclusions of Law



23a

I next go to the question of bus transportation. Until 
recently a considerable number of students, called “ county 
students”—about 228 in number—have been transported 
from the area of Marshall County School District into the 
Holly Springs Separate Municipal School District. That 
aspect of the case need not concern us because the evidence 
shows here that the Marshall County Board of Education 
has, for reasons of economy and cost, terminated that ar­
rangement, so that the bussing of 228 children from the out­
side county district into the municipal school district need 
not concern us at this time.

However, Holly Springs does transport a substantial 
number of school children. As I have indicated earlier, it 
has a large territorial expanse. In many ways it is as much 
a rural district as it is a city district. It transports 281 
children into the Holly High-Sally Cochran complex and 
1,175 into the Sims-Frazier School complex.

This district has 18 busses. The evidence shows that 
these bus routes, as heretofore composed and constructed, 
all tied into a particular school and with the consequence 
that there is considerable overlappng of routes. The trans­
portation map of Holly Springs in evidence shows the ex­
tent of this overlapping. All of the official information 
from the superintendent’s office indicates that there are two 
bus routes, one designated as Negro bus routes and the 
other designated as white bus routes. These routes are 
shown on Plaintiffs’ Exhibit 1, the so-called Negro city bus 
routes being indicated in black and the so-called white city 
but routes being indicated in red. It is apparent from this 
evidence that they have existed a long time and that they 
were developed for a truly dual, segregated school system.

100% of the money to defray the cost of that public trans­
portation comes from the State of Mississippi, and these

Findings of Facts and Conclusions of Law



24a

defendants in every sense of the word are acting as agents 
of the State in administering school transportation funds 
and the transportation equipment.

The evidence shows that to the extent there are children 
of the Negro race attending either Sally Cochran or Holly 
High they ride, I believe, two busses that take them and 
presumably white children to those two schools. This evi­
dence shows that that is the only variation from racial pat­
terns in the school bus transportation plan. Again we have 
residential mixing of the children throughout the district, 
and those who are legally entitled to a free bus ride—under 
Mississippi law they must be children living outside the 
city limits and residing a mile or more from the nearest 
school— should freely ride. There is no reason not to freely 
allow them to.

The court finds from the facts in this case that these bus 
transportation routes preexisted the freedom of choice plan 
and there has been no affirmative effort by these defendants 
to implement them in the light of the requirements of con­
trolling federal cases. The court finds that there is an un­
constitutional arrangement of school busses according to 
race.

I next pass to findings of fact with respect to the Marshall 
County School District. In the interests of brevity the basic 
facts in this county school district mirror to some extent my 
fact findings for the Holly Springs schools. There are some 
differences which will be noted as I now proceed to take up 
this county wide school district. It is a district that includes 
all of Marshall County except for the land territory included 
within the Holly Springs District. It has a current year’s 
school population of 4,799 pupils, of whom 3,606 are Negro 
and 1,193 are white.

There are some all-white schools in this district. For ex­
ample, there is Potts Camp Attendance Center, grades 1-12,

Findings of Facts and Conclusions of Law



25a

with 421 students, Slayden Attendance Center, grades 1-12, 
with 322 students. There are some all-Negro schools. For 
example, Henry Attendance Center, grades 1-12, with 1,685 
students, Sand Flat Attendance Center, grades 1-12, with 
1,111 students, Mary Reed Attendance Center, grades 1-8, 
with 263 students, and Galena Attendance Center, grades 
1-8, with 525 students.

The only school or attendance center in this county school 
district with any biraeial composition is the Byhalia At­
tendance Center, grades 1-12, with 22 Negro students there 
out of a total of 472 enrolled pupils.

This district also adopted a freedom of choice plan in 
August, 1965 at about the same time Holly Springs adopted 
its. The plans were substantially the same in their general 
undertaking. The first year of the plan’s operation six 
students of the Negro race attended the former all-white 
school at Byhalia, the second year 14, and the third year, 
the year just closed, 22 Negro students attended the Byhalia 
School. At no time have white students attended any of the 
all-Negro schools.

Still operating on the freedom of choice plan, this district 
as late as May, 1968, as I recall, sent out questionnaires to 
the parents requesting an election or choice of schools to 
attend for the session beginning in September, 1968. An ex­
cellent response has already been received to these question­
naires. On the basis of the known replies it is anticipated 
that 64 Negro students will signify their intention to attend 
previously all-white schools. There is reason to believe 
that that number will increase when all of the replies have 
been received.

In the interest of its obligations the board of trustees 
of this district and its superintendent have met and have 
considered their obligations and duties to adopt a consti-

Findings of Facts and Conclusions of Law



26a

tutional plan for school attendance in these schools that 
are widely scattered throughout the county. The maps in 
evidence show that the Henry High Attendance Center 
and Byhalia are about a mile apart physically, the Slay- 
don and Sand Flat Attendance Centers are about three 
miles apart, and the Potts Camp and Mary Reed Attend­
ance Centers down in the southeast part of the county are 
about a mile apart, and the Galena School is off by itself 
in the southwest part, roughly speaking, of the county; but 
they are widely scattered so as to serve children that come 
from a large land mass both north and south of the Holly 
Springs Separate School District, and also somewhat to 
the west of it.

The evidence shows that if a zoning plan were adopted 
in this district based on school classroom capacity and on 
logical school division lines marked by highways or other 
natural divisions separating elements of population from 
one part of the county to the other, that the results in so 
far as the composition of each one of these schools would 
be even more strikingly deleterious, shall we say, than 
would be true with respect to the Holly Springs municipal 
schools.

Referring to Defendants’ Exhibit 12, put in by the su­
perintendent Mullikin, and to the map in evidence and 
to the evidence, which is uncontradicted, that this is a fair 
and logical arrangement according to zones, this court 
finds that there would exist at the Slayden Attendance 
Center a majority of three to one Negro pupils to white, 
at the Sand Flat Center the same majority, three to one, 
at Galena a majority of ten to one, Negro over white, at 
Mary Reed a majority of three to one, Negro over white, 
at Henry a majority of four to one, Negro over white, at 
Byhalia a majority of two to one, Negro over white.

Findings of Facts and Conclusions of Law



27a

Only in the Potts Camp area would there be a variation, 
for there zoning would produce a majority of whites, one 
white to every statistical one-half Negro student.

Defendants’ Exhibit No. 13 would illustrate virtually 
the same or not radically different results if a pairing plan 
were used. Here again these results are to be naturally 
expected when one takes into account the overall nearly 
three to one ratio in Marshall County rural areas of Negro 
to white.

The evidence with respect to this school district, although 
not as well articulated as in the case of Holly Springs, 
nevertheless points the way to the same factual conclu­
sions : that at this time there is only one feasible, workable 
method for operating the public schools in the Marshall 
County School District. That plan should be pursued, it 
must be pursued, for the benefit of both the Negro and the 
white pupils. If that plan is rejected in favor of a plan 
requiring immediate zoning or pairing there will result 
first the definite educational injury to the system that I 
mentioned earlier, caused by the lowering of curriculum 
standards to meet the average of the students in each 
class. Since we are here dealing with schools, that con­
sideration is of utmost importance to this court. Likewise 
we have applicable to this district the well known fact that 
here, even more than in Holly Springs, the known tolera­
tion points in racial mixing of classes will be vastly ex­
ceeded. Here, even more than in Holly Springs, there 
will result mass departure of white pupils from these pub­
lic schools.

These are attitudes which can not be changed overnight, 
and while these attitudes may not be inflexible or neces­
sarily permanent in the minds of large segments of white 
people, they do exist at this time so as to cause this court

Findings of Facts and Conclusions of Law



28a

to conclude that in Marshall County immediate pairing or 
immediate zoning would result in all-Negro student bodies.

The considerations of a factual nature I touched upon 
with respect to Holly Springs apply here in so far as the 
freedom of choice plan is concerned, and I find from these 
facts that the freedom of choice plan, as presently insti­
tuted, is the only feasible plan. I find that when I assess 
and evaluate alternative plans, the institution of any such 
in this district at this time will be injurious to the rights of 
the school children of both races, particularly will it delay 
the day when the school children of the Negro race will 
achieve those salutary benefits deemed to flow from a truly 
biracial and unitary school system.

I also conclude from the evidence here, largely uncon­
tradicted, that there would be a loss of confidence on the 
part of the public in the Marshall County public schools, 
with a weakening of public support and a loss of pride in 
those schools; that this would come at a time when to this 
county it is most important that there be an increased 
faith in the public school system as an instrument for 
understanding and working out problems that press upon 
people, of whatever race, in democratic processes.

It is reasonable to believe, and I so find from this evi­
dence, that the further operation of the freedom of choice 
plan in these schools will promote at a strikingly increas­
ing rate desegregation of a biracial nature that can be 
tolerated and that will result to the best interest of these 
schools and the children who attend them.

I next pass to faculty assignments. The evidence here 
is uncontradicted that there has been no faculty desegre­
gation in any of these schools. Approximately 60 to 70 
per cent of the operational budget of these schools which 
pays the teachers’ salaries comes from the State of Missis-

Findings of Facts and Conclusions of Law



29a

sippi. The remainder of that money is derived from local 
taxation for the public funds. These defendants, in the 
operation of these schools, are representatives of the 
State and they are subject to constitutional duties.

In this county school system there are 155 full time 
teachers paid with public funds. Because of the composi­
tion of the student body we find that there are about two 
and a half colored teachers to every one white teacher, 
there being 100 Negro teachers and 45 white teachers in 
this system.

It was put to this district over a year ago that there was 
an obligation to have a measure of faculty desegregation. 
At that time the superintendent of these county schools 
conducted a questionnaire or survey among his teachers 
to determine whether they would consider teaching in a 
school which is predominately of a race other than their 
own. There were a number of replies to this questionnaire. 
45 teachers answered yes, 74 teachers answered no. The 
affirmative answer was 37.88.

I do not know from the record how many of those 
answering yes were of the white or the Negro race. Pre­
sumably the greater part of those answering yes were of 
the Negro race and not of the white race. This court 
finds that there is evidence in this record to believe that 
white teachers who are professional people are willing 
to teach in schools other than of their own race and that 
those teachers can be found in Marshall County, Missis­
sippi.

From these facts there is no conclusion this court can 
reach other than that there is a practice of unconstitu­
tional segregation with respect to teachers.

I now pass to Marshall County school bus transporta­
tion. School bus transportation is big business for this

Findings of Facts and Conclusions of Laiv



30a

district. Each school day this district transports 4,506 
children to these schools. Of that number 983 are white 
students, 3,523 are Negro students.

The district owns 68 busses to transport these children 
and is about to acquire 15 new busses.

Bus plans for the transportation of the school children 
in this district have existed for some years. It is reason­
able to conclude, and this court finds, that they pre­
dated the freedom of choice plan, which was adopted in 
August, 1965, that the only variation in that school bus 
plan has been to utilize four busses to take to the Byhalia 
school some 22 children of the Negro race. Those children 
who have elected to go to that school ride in company with 
white children. As regards the remainder of the school 
children of this county, they are transported according to 
race and according to the school that they attend.

There is a very great overlapping of these bus routes, 
as plaintiffs’ exhibit would show, and from the informa­
tion that is filed in the superintendent’s office and sub­
mitted to the State there are separate bus routes for these 
county busses. Green is the color for the routes that indi­
cate the busses moving to the all-Negro schools, carrying 
Negro passengers only. Yellow is the color indicating 
the bus routes moving to the white county schools, carry­
ing all-white except 22 Negro students attending Byhalia.

It is not necessary for this court to go into the de­
ficiencies that may or may not exist in the equipment and 
quality and riding time of the busses provided under this 
dual plan. Sufficient is it to say that from this evidence 
there is only one conclusion that can be honestly drawn 
and that is that there exists a public transportation sys­
tem provided for school children by the State of Missis­
sippi which is based upon segregation and an unconstitu-

Findings of Facts and Conclusions of Law



31a

tional application of those funds and that equipment to 
the transportation of school children here.

That concludes my findings of fact. If I have been 
verbose it is only because of my feeling of the importance 
of this case to the people of this county, as well as my 
obligation to find these facts in this case.

Following a recess that I will now declare I shall give 
my separate conclusions of law and announce my decision.

The court is now in recess until 11:25.

B y  the Court Crier:

The court is now in recess until 11:25.
(At 11:05, a.m., a recess was taken until 11:25, a.m.)

B y  the Court :

Conclusions of law which will be common to both of 
these districts may be stated as follows: the basic legal 
issue is the constitutionality of the freedom of choice plan.

That plan has been specifically approved by the Fifth 
Circuit Court of Appeals, the court under which I operate, 
in the case of The United States vs. Jefferson County Board 
of Education, decided in an en banc opinion March 9, 1967, 
and incorporating substantially the same provisions as 
these plans of both of these defendants now before the 
court.

On May 27, 1968 in the United States Supreme Court in 
the case of Green vs. County School Board, there arose a 
very serious critical examination of the feasibility of the 
freedom of choice plan and it was rejected for New Kent 
County, Virginia. It is my obligation to pay heed to what 
was said by the Supreme Court of the United States in the 
Green case, and to carefully assess and weigh the feasi­
bility of other alternative plans against the freedom of

Findings of Facts and Conclusions of Law



32a

choice plan for the reason that the high court observed the 
rate of desegregation was apparently too slow under the 
freedom of choice plan and it imposed the burden of af­
firmative action upon parents and pupils more than upon 
the school board, where the obligation should rest.

In these cases I have as best I can assessed the alterna­
tives to the freedom of choice plan and I have to the best 
of my ability tried to weigh and evaluate the evidence 
from the standpoint of which would be more feasible in 
promoting meaningful desegregation as applied to the 
terms of the Green decision.

The Green decision did not rule out freedom of choice 
as unconstitutional but left to the trial court the obliga­
tion and duty, as well as privilege, of looking at the evi­
dence in a particular local school district and concluding 
what the constitutional arrangements ought to be.

Under that authority I find, as a conclusion of law, that 
the freedom of choice plans for the attendance of children 
in these two school districts as presently adopted are legal, 
are constitutional, and that there is no cause for injunc­
tive relief to adopt a contrary plan or plans based upon 
zoning or pairing.

However, in so concluding I am fully aware of the fact 
that under the Green case there is thrust upon the District 
Courts an even greater duty of giving a more critical 
consideration to the progress of any school district in 
eliminating its previously state-imposed segregated sys­
tem of education. On all of the facts in this case I hold that, 
under the command of the Green case, the most feasible 
method of bringing meaningful desegregation to the school 
districts now before the court will be under the freedom 
of choice plan, which is to be honestly and faithfully admin­
istered and carried out.

Findings of Facts and Conclusions of Law



33a

My second conclusion of law relates to faculty desegrega­
tion, which exists only in very small degree in the Holly 
Springs Municipal School District and not at all with 
the Marshall County School District. In this respect the 
desegregation plans under which these defendants have 
operated since August, 1965 have specifically called for the 
elimination of faculty segregation but there has not been 
performance to match those words. There has been oppor­
tunity, but which went without taking. I conclude that 
these school boards, these defendants here, are both under 
the affirmative duty at this time to take action to desegre­
gate the faculties of these schools subject to our jurisdic­
tion, and as my yardstick and guideline for that require­
ment I feel obliged to follow the principles and reasoning 
laid down by the Fifth Circuit Court of Appeals on June 
3, 1968 in the case of The United States v. Board of Edu­
cation of the City of Bessemer.

In that case the school district had long been in litiga­
tion of this type and had falteringly achieved only a 
modicum of faculty desegregation. The Fifth Circuit Court 
in very clear language ruled that it is a major error of 
the law for school boards to be governed in their racial 
assignments by the desires or wishes of the teachers but 
that the obligation rests upon school boards and those in 
charge of schools to employ and to direct the assignment 
of teachers who are paid out of public funds.

Under the rule of that case and according to the dic­
tates of my own conscience I find that there is a failure 
to constitutionally desegregate these two school faculties 
and that both of these districts must without delay insti­
tute a plan looking o a program of faculty desegregation. 
In the order that I shall read following my conclusions of 
law the details is of that plan and that faculty desegrega­
tion will be spelled out.

Findings of Facts and Conclusions of Law



34a

The third and last conclusion of law relates to school 
bus transportation. On the uncontradicted facts in this 
record this court can conclude only that there has been 
a departure from constitutional standards, or a failure to 
adhere to constitutional standards, in the transportation 
of school children and that these districts have failed to 
eliminate from their system segregation in bus transporta­
tion to public schools, which is nothing more or less than 
free transportation provided by a beneficent State for the 
school children within a particular school district.

By saying free does not mean that it is not paid for by 
someone. Of course it is, by the taxpayers of the State 
as a whole.

My conclusion, therefore, of law is that these districts 
must come forward with a plan of transportation no longer 
based on race, no longer based even on a particular school, 
but based upon residential patterns and upon concepts of 
modern transportation, with the aim that all children will 
be treated substantially alike, regardless of their race, and 
with the aim of eradicating unconstitutional defects in 
these systems.

Freedom of choice has no legitimate place in the trans­
portation plan of students. The requirements have long 
been established by law that public money must be spent in 
a nondiscriminatory fashion. There is no court that may 
hold to the contrary, and I can not conclude from these 
facts anything except that there exists upon these defend­
ants, as I have said, a positive and affirmative duty at 
this time to initiate a new method of school transportation, 
the details of which shall be spelled out in my order.

# # #

Findings of Facts and Conclusions of Law



35a

Order

(Filed July 22, 1969)

In accordance with findings of fact delivered from the 
bench at hearings conducted on June 30, 1969, and July 
17, 1969, conclusions of law more fully set forth by this 
court in United States of America v. Sunflower County 
School District, No. GC 6637-K, by opinion released June 
24, 1969; it is

Ordered

That the defendant, Holly Springs Municipal Separate 
School District, its agents, officers, employees, successors 
and all those in active concert and participation with them, 
be and they are hereby permanently enjoined from dis­
criminating on the basis of race or color in the operation 
of the school system of the Holly Springs Municipal Sepa­
rate School District. As hereinafter set out, they shall take 
affirmative action to disestablish all school segregation and 
to eliminate the effects of the dual school system.

I .

S tudent Desegregation

(1) F or the school year 1969-70, the school children of 
the district shall be assigned to attendance centers as 
follows:

(a) Grades 1 through 4 shall be assigned to attendance 
centers on the basis of standardized tests given to the 
students of such grades prior to the beginning of the 
1969-70 school year by an outside disinterested testing 
agency. Students entering the first four grades shall be 
uniformly given the California Test of Basic Skills or a 
comparable recognized achievement test. All tests shall



36a

Order

be scored by a disinterested agency and the results made 
known to the school district prior to the commencement 
of said school year. The 81 highest scoring students in 
each of said grades shall be required during the 1969-70 
school year to attend Sallie Cochran Elementary School, 
and the remaining students in each of said grades shall be 
required to attend Frazier Elementary School in Holly 
Springs, Mississippi. Each student shall be required to 
attend the attendance center to which his score assigns 
him; provided, however, that in case of overcrowding, 
school officials of the district may assign children to at­
tend another school. During the month of April or May 
of each school year hereafter beginning with April or 
May 1970, the same or similar tests shall be given to each 
student desiring to enroll in any one of the said four 
grades during the next ensuing school year, and said tests 
shall be scored and students assigned to schools as here­
inabove provided.

(b) Students enrolled in grades 5 through 10 shall be 
assigned to district schools in accordance with freedom of 
choice of the individual student. Students in grades 11 
and 12 shall also be assigned in accordance with freedom 
of choice, provided, however, that the school district shall 
first satisfy the positive desegregation requirements of 
these two grades as next provided in (c).

(c) For the school year 1969-70 only, 20% of the en­
rollment in grades 11 and 12 of the formerly all-white high 
school located at Holly Springs shall be Negro students 
assigned by the school district on the basis of proximity 
of residence, freedom of choice or other method as it may 
select.



37a

Order

(2) For the school year 1970-71, the school children of 
the district shall be assigned to attendance centers as 
follows:

(a) Grades 1 through 4 shall be assigned in accordance 
with ( l ) (a )  above.

(b) Grades 5, 6, 7 and 8 shall be assigned to attendance 
centers on the basis of test scores on a uniformly standard­
ized achievement test as provided in ( l ) (a )  above, except 
that said tests shall be administered in April or May of 
each school year begnining with April or May 1970, and 
also except that the 81 highest scoring students for grades 
7 and 8 shall be assigned to Holly High School and the 
remaining students in each of said grades shall be assigned 
to Sims High School.

(c) Students enrolled in grades 9 to 12 shall be assigned 
to attendance centers according to student’s freedom of 
choice, provided, however, that the school district shall 
first satisfy positive desegregation requirements of these 
grades as next provided in (d).

(d) For the school year 1970-71 only, 20% of the en­
rollment in grades 9 to 12 of the formerly all-white high 
school located at Holly Springs shall he Negro students 
assigned by the school district on the basis of proximity 
of residence, freedom of choice or other method as it may 
select.

(3) For the school year 1971-72 and thereafter, the 
school children of the district shall be assigned to attend­
ance centers as follows:

(a) Grades 1 through 8 shall be assigned in accordance 
with ( l ) (a )  and (2 )(b) above.



38a

Order

(b) Grades 9 through 12 shall be assigned to attendance 
centers uniformly on a nationally recognized standard 
achievement test, with the 81 highest scoring students 
assigned to Holly High School, and the remaining students 
assigned to Sims High School.

(4) Notwithstanding the foregoing paragraphs ( l ) (a ) , 
(2 )(b) and (3 )(b), in event the number of students com­
posing the higher scoring group shall, at the commence­
ment of any school year, fail to utilize the maximum recom­
mended capacity of available classroom space, the district 
shall assign to that school such greater number of next 
highest scoring students as may be needed to fully utilize 
said capacity.

(5) New students entering any grade of the district’s 
schools shall be given the tests for that grade and assigned 
to schools according to their scores.

(6) Request for transfer by a student to attend school 
in another attendance center of the district will be subjejct 
to review by defendants and may be granted, but only if 
the granting thereof will either 1) relieve a crowded school 
condition; 2) assist a physically handicapped child; or 3) 
promote desegregation. Moreover, defendants shall, on 
request, permit any student to transfer from a school where 
students of his race are a majority to any other school 
within the system where students of his race are a minority, 
and they may assign students on such basis; provided, 
however, that such request for transfer may be denied in 
the event the transfer would be to an already overcrowded 
grade or center.



39a

Order

II.

F aculty and S taff Desegregation

Within the full extent of the district’s ability so to do, 
including the availability of qualified personnel, not less 
than one of every six classroom teachers of a different 
race shall be employed and assigned to each of the schools 
or attendance centers for the 1969-70 school year; and for 
the 1970-71 school year and thereafter there shall be full 
faculty and staff desegregation, to such an extent that the 
faculty at each school is not identifiable to the race of the 
majority of the students at any such school.

m .

T ransportation

The district shall provide a unitary plan for the trans­
portation of school children based upon territorial zones 
or other natural grouping of pupil residence, irrespective 
of race, and seeking to eliminate insofar as practicable 
overlapping or duplicating routes. All children of what­
ever race shall be treated substantially alike as to seating 
capacity, bus schedules, length of route, riding time, etc., 
depending upon the physical factors governing each par­
ticular bus route.

IV.

Services, F acilities, A ctivities and P rograms

No student shall be segregated or discriminated against 
on account of race or color in any grade, service, facility, 
activity, or program (including transportation, athletics, 
or other extracurricular activity) that may be conducted or 
sponsored by the school in which the student is enrolled.



40a

Order

v.
New  Construction

The defendants, to the extent consistent with the proper 
operation of the school system as a whole, shall locate any 
new school and substantially expand any existing schools 
with the objective of eradicating the vestiges of the dual 
school system.

VI.

P rotection of P ersons E xercising 
R ights U nder T his Decree

Within their authority, school officials are responsible 
for the protection of persons exercising rights under, or 
otherwise affected by, this order. They shall, without de­
lay, take appropriate action with regard to any student, 
teacher or staff member who interferes with the successful 
operation of the provisions of this order. Such interfer­
ence shall include harassment, intimidation, threats, hos­
tile words or acts, and similar behavior. I f officials of the 
school system are not able to provide sufficient protection, 
they shall seek whatever assistance is necessary from other 
appropriate officials. Moreover, school officials may apply 
to this court for protective orders against any person or 
persons interfering with the execution of the terms of 
this order.

VII.

Reports to the Court

(a) On or before October 15, 1969, and annually there­
after, unless otherwise ordered by the court, the defend­
ants shall submit the following reports to the court:



41a

Order

1. The name, race and teaching station of each member 
of the faculty and staff of each attendance center of 
the district; and

2. The number of children, by race, in attendance in 
each attendance center of the district, by grades. 
Said report shall disclose the range of test scores 
for the children of each grade assigned to different 
buildings, and indicating by number and by race 
the children so assigned by test scores.

(b) On or before October 15, 1969, and quarterly there­
after until otherwise ordered by the court, the defendants 
shall submit the following reports to the court:

1. The name, race and age of each student who has been 
granted a transfer on account of crowded school 
situation or to aid a physically handicapped child, 
giving the name of the school from which the student 
transferred, the school to which the transfer was 
made, and the grade involved.

2. The name, race and age of each student granted a 
transfer in order to promote desegregation, the grade 
involved, the name of the school from which the 
transfer was granted, and the school to which the 
transfer was made.

(c) That defendants when filing reports pursuant to 
the provisions of this order shall serve duplicate copies 
upon opposing counsel.

It is further Ordered

(1) Jurisdiction of this cause shall be, and the same 
hereby is, retained for all purposes, and especially for the



42a

Order

purpose of entering any and all further orders which may 
become necessary for the purpose of enforcing or modify­
ing this order, either or both.

(2) The Clerk of this court shall he, and he hereby is, 
directed to mail certified copies of this order by certified 
mail to all counsel of record and to note such mailings on 
the docket.

This, 22nd day of July, 1969.

W illiam C. K eady 
Chief Judge

United States District Court



43a

APPENDIX 3

Opinion of the Court of Appeals for the Fifth Circuit
(Dated June 26, 1969)

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 7 4 4 4

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Ap pell ant,

versus

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL,
Defendants-Appellees.

N o . 2 7 4 4 5

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus

THE BOARD OF EDUCATION OF 
THE CITY OF BESSEMER, ET AL,

Defendants-Appellees.

Appeals from the United States District Court for the 
Northern District of Alabama

(June 26, 1969)



44a

Before BELL and GOLDBERG, Circuit Judges and 
ATKINS, District Judge.

BELL, Circuit Judge: These appeals contest the or­
der of the district court denying further relief in the 
Bessem er and Jefferson County Board of Education 
school desegregation cases from  the standpoint of re­
quiring student assignments on a basis other than free­
dom of choice. The appeals also complain of the denial 
of relief with respect to school construction programs. 
In the case of Bessemer, plaintiffs sought to enjoin 
the construction of specific schools. We reverse and 
remand for further proceedings.

These school boards were involved in the appeals 
which resulted in the promulgation of the model de­
cree in United States v. Jefferson County Board of 
Education, 5 Cir., 1966, 372 F.2d 836, aff’d on rehearing 
en banc, 380 F.2d 385, cert, den., 389 U.S. 840. The 
m odel decree was entered in these cases on April 17, 
1967. The motions for further relief sought to have 
this decree modified with respect to the assignment 
of students.1

Opinion of the Court of Appeals for the Fifth Circuit

'These school systems were first before this court in United States 
v. Jefferson County Board of Education, 5 Cir., 1965, 349 F.2d 
1021; and United States v. City of Bessemer Board of Educa­
tion, 5 Cir., 1965, 349 F.2d 10201. They were recently here on 
a modification of the Jefferson decree with respect to faculty 
assignments. United States v. Board of Education of the City of 
Bessemer, 5 Cir., 1968, 396 F.2d 44. That same question is again 
pending in this court. No. 26,582, United States, et al v. Board 
of Education of the City of Bessemer; No. 26,583, United States, 
et al v. Board of Education of the City of Birmingham; No. 
26,583, United States et al v. Jefferson County Board of Edu­
cation, argued and submitted November 21, 1968.



45a

The Jefferson model decree was promulgated to car­
ry out the mandate of Brown v. Board of Education. 
349 U.S. 294 (1955) which was to effectuate a tran 
sition from  dual school systems to unitary racially non 
discriminatory systems. The model decree has resulted 
in 3.45 per cent of the Negro students in the Bessemei 
system attending school with white students for th< 
year 1968-69. There are eleven schools in Bessemer: 
one all white, four all Negro, and six desegregated 
The school population of the Bessemer system for the 
year 1968-69 was 8,615; 5,360 Negroes and 3,255 whites

In the Jefferson County system, 3.43 per cent of the 
Negro students attended previously all white schools 
in the year 1968-69. The school population was 65,659; 
47,830 whites and 17,829 Negroes. There were 105 
schools; 48 remained all white, 28 all Negro, and 29 
were desegregated.

In no school in either system has a white student 
chosen to attend a Negro school. There has been somt 
assignment of both white and Negro teachers in each 
system to teach in schools where their race is in th( 
minority but not to a marked degree.

The Supreme Court handed down additional defini 
tive decisions in the school law area in 1968. Green 
v. County School Board of New Kent County, Virginia. 
391 U.S. 430 (1968); Raney v. Board of Education of 
Gould, Arkansas, 391 U.S. 443 (1968); Monroe v. Board 
of Commissioners of the City of Jackson, Tennessee 
391 U.S. 450 (1968). These cases emphasize the constitu 
tional obligation of school boards to disestablish the

Opinion of the Court of Appeals for the Fifth Circuit



46a

dual school system by converting immediately to uni­
fied systems in which racial discrimination has been 
com pletely eliminated. “The transition to a unitary, 
nonracial system of public education was and is the 
ultimate end to be brought about . . 391 U.S. at
p. 436. It was again stated that the burden was on 
school boards to com e forward with plans to this end. 
In Green it was made plain that the use of freedom  
of choice would only be acceptable where . . it offers 
real prom ise of aiding a desegregation program  to 
effectuate conversion of a state-imposed dual system 
to a unitary, nonracial system. . .” . 391 U.S. at 440-441. 
The court went on to hold that “ . . . if there are reason­
ably available other ways, such for illustration as zon­
ing, promising speedier and more effective conversion 
to a unitary, nonracial school system, ‘freedom  of 
choice ’ must be held unacceptable.”  391 U.S. at 441.

This court has subsequently reviewed freedom  of 
choice plans in use in several school systems. The 
tes has been in term s of the effectiveness to dises­
tablish the dual system. In Adams v. Mathews, 5 Cir.. 
1968, 403 F.2d 181, 188, we said:

‘ ‘If in a school district there are still all- 
Negro schools or only a small fraction of Ne­
groes enrolled in white schools or no substan­
tial integration of faculties and school activi­
ties then, as a matter of law, the existing plan 
fails to meet constitutional standards as estab­
lished in Green.”

Opinion of the Court of Appeals for the Fifth Circuit

See also Davis v. Board of School Commissioners of



47a

Mobile County, 5 Cir., 1969,____ F .2d_____ , [Nos. 26,886,
27,491, 27,260, slip opinion dated June 3, 1969]; Hall
v. United States, 5 Cir., 1969,____ F .2d_____ , [Nos. 26,450,
and 27,303, slip opinion dated May 28, 1969]; Anthony 
v. Marshall County Board of Education, 5 Cir., 1969
------- F .2 d ------- [No. 26,432, slip opinion dated April 15,
1969]; United States v. lndianola Municipal Separate
School District, 5 Cir., 1969,____ F .2 d _____ , [No. 25,655,
slip opinion dated April 11, 1969]; Henry v. Clarksdale
Municipal Separate School District, 5 Cir., 1969, ____
F .2d -------, [No. 23,255, slip opinion dated March 6, 1969];
United States v. Greenwood Municipal Separate School 
District, 5 Cir., 1969, 406 F.2d 1086; Graves v. Walton 
County Board of Education, 5 Cir. 1968, 403 F.2d 189; 
Board of Public Instruction of Duval County v. Brax­
ton, 5 Cir., 1968, 402 F.2d 900.

It is clear that the freedom  of choice has not dis­
established the dual school systems in Bessemer or 
Jefferson County. The district court was of the view 
that it would in time but this probability will not meet 
the test of Green if there are other methods available 
which will disestablish the dual system now. For aught 
that appears, attendance zones would now accom plish 
the objective insofar as student assignment is con­
cerned. The district court is directed on remand to 
consider zone assignments in each system.

The school construction program must also be con­
sidered by the district court to the end of insuring 
that the program  will be used to disestablish the dual 
system. The Bessem er school construction of which 
plaintiffs com plain is well under way. The schools can

Opinion of the Court of Appeals for the Fifth Circuit



48a

be desegregated in a meaningful manner on a zone 
assignment basis and thus any discrimination flow­
ing from  site location can be dissipated.

The sum of these cases is that they must be con­
sidered anew by the district court. In keeping with the 
teaching of Green, the time is now at hand to dises­
tablish the dual school systems in Jefferson County and 
Bessemer. This will mean substantial changes in stu­
dent and faculty assignment, in school bus routes, in 
school and extracurricular activities including athletic 
program s. Disestablishment, in the main, will com e 
from  local effort and through the cooperation of those 
having a direct interest in the education process.

The passage of time has m ade the task of disestab­
lishment m ore com plex. In Brown v. Board of Educa­
tion, 347 U.S. 483, 495, (1954), the question of im ple­
menting the decision was posed in term s of immediate 
implementation or a deliberate speed concept. Fn. 13. 
Immediate implementation was couched in terms of 
admitting Negro children forthwith to schools of their 
choice within the limits set by norm al geographic 
school districting. This postulate was the subject mat­
ter of the second Brown decision where instead the 
deliberate speed concept was promulgated. 349 U.S. 
£94, 298-99 (1955). This simple rem edy of im m e­
diate student admission, thought to be too drastic then, 
appears by hindsight and today’s standards, to be sim ­
ple indeed.

From  the standpoint of local cooperation, neithei 
of the school boards here have Negro m embers. This

Opinion of the Court of Appeals for the Fifth Circuit



49a

means that help from  such sources will not be available 
to assist in disestablishing the dual systems. The plain­
tiffs in each case are, however, represented by Negro 
lawyers who reside in the Birmingham area and are 
familiar with the school systems and the neighborhood 
patterns. The school boards and their attorneys can 
receive valuable assistance from  these lawyers in for­
mulating disestablishment plans. It becam e clear on 
oral argument in this court that the development of 
such a plan in each system can be readily accomplished 
by local effort2 and this will be particularly true under 
the leadership of the district court.

The district court, in addition to this type of assis­
tance, will also have available the resources of the 
Office of Education of the United States Department 
of Health, Education, and Welfare under the terms 
of the following order which is similar to the order 
issued on June 3, 1968 in Davis v. Board of School 
Commissioners of Mobile County supra. The order is 
also similar to the order issued in Wittenberg v. Green­
ville County School District, CA No. 4396, D.C.S.C. dat­
ed March 1, 1969, and, on remand in the Louisiana 
cases considered in Hall v. United States, supra. More­
over, it appeared from  oral argument that assistance 
in formulating disestablishment plans m ay be avail­
able from  the University of Alabama.

The order of the district court in each case is reversed 
and the cases are remanded to the district court with 
the following direction:

Opinion of the Court of Appeals for the Fifth Circuit

2There was testimony that white students would not attend formerly 
Negro schools. This is not a legal argument. Cf. Cooper v. Aaron, 
358 U.S. 1 (1958).



50a

1. The cases shall receive the highest priority.

2. The district court shall forthwith request the Of­
fice  of Education of the United States Department of 
Health, Education and Welfare to collaborate with the 
defendant school boards in the preparation of plans 
to disestablish the dual school systems in question. 
The disestablishment plans shall be directed to student 
and faculty assignment, school bus routes if transpor­
tation is provided, all facilities, all athletic and other 
school activities, and all school location and construc­
tion activities. The district court shall further require 
the school boards to make available to the Office of 
Education or its designees all requested information 
relating to the operation of the school systems.

3. The required disestablishment plans for the re­
spective systems shall be effective for the beginning 
of the 1969-70 school term and shall be com pleted and 
approved by the district court no later than August 
5, 1969.

4. The district court shall enter findings of fact and 
conclusions of law regarding the efficacy of any plan 
which is approved to immediately disestablish the dual 
school system in question. Jurisdiction should be re­
tained, however, under the teaching of Green, 391 U.S. 
at 439 and Raney, 391 U.S. at 449, until it is clear 
that disestablishment has been achieved. 5

5. A copy of such findings, conclusions, and orders 
as are entered, together with copies of disestablish­
ment plans, shall be lodged with the clerk of this court.

Opinion of the Court of Appeals for the Fifth Circuit



51a

Because of the urgency of formulating and approv- 
ing plans to be effective for the 1969-70 school term 
it is ordered as follows: The mandate of this court 
shall issue immediately and will not be stayed pending 
petitions for rehearing or certiorari. This court will 
not extend the time for filing petitions for rehearing 
or briefs in support of or in opposition thereto. Any 
appeals from  orders or decrees of the district court 
on remand shall be expedited. The record on any appeal 
shall be lodged with this court and appellants’ brief 
filed, all within ten days of the date of the order or 
decree of the district court from which the appeal is 
taken. Appellee’s brief shall be due ten days thereafter. 
The court will determine the time and place for oral 
argument if allowed. No consideration will be given 
to the fact of interrupting the school year in the event 
further relief is indicated.

REVERSED AND REMANDED WITH DIRECTIONS.

Opinion of the Court of Appeals for the Fifth Circuit

Adm. Office, U.S. Courts— Scofields’ Quality Printers, Inc., N. O., La.



52a

APPENDIX 4  

Order

(Filed August 5, 1969)

I n the

U nited States District Court 

F or the N orthern D istrict of A labama 

S outhern D ivision 

Civil A ction N o. 65-396

L inda S tout, by her father and next friend, B levin S tout,

Plaintiff,
U nited S tates of A merica,

Plaintiff-Intervenor, 
v.

Jefferson County B oard of E ducation, et al.,

Defendants.

On the basis of the findings of fact and conclusions of 
law set out in separate opinion of the court, in this cause 
this day entered and filed,

It is, therefore, Ordered, A djudged and Decreed by the 
court as follows:

(1) That the plan for integration of the Jefferson County 
School System filed by the Jefferson County Board of Ed­
ucation in this cause on August 1, 1969, be and the same 
hereby is approved.



53a

Order

(2) That the objections to the plan filed on behalf of the 
plaintiffs be and the same hereby are overruled and denied.

(3) The motion of the Jefferson County Board of Educa­
tion to dismiss this cause is treated and considered as a 
petition for summary judgment and the court hereby finds 
and declares that the plan filed by the Jefferson County 
Board of Education does immediately disestablish the dual 
system and does immediately establish a unitary system in 
Jefferson County. Jurisdiction is retained in this case for 
the limited and restricted purpose of supervising the ad­
ministration of the plan of the County Board as filed and 
herein and hereby approved.

(4) That the petitions for intervention filed in this cause 
on behalf of David Borello, et al., be and the same hereby 
are denied.

(5) Prior orders entered in this cause to the extent con­
sistent with the new plan filed by the County Board and 
herein approved are to remain in effect. The County School 
Board hereby is required to report to this court, with copy 
to the parties, any changes in zone boundaries made pursu­
ant to Chapter TV, Part D (p. 19), of the County School 
Board plan.

D one and Ordered this 5th day of August, 1969.

/ s /  C. H. A llgood 
United States District Judge



54a

(Filed August 5, 1969)

This cause comes on to be heard on the reports filed by 
the Jefferson County Board of Education (County Board) 
and the Office of Education of the United States Department 
of Health, Education and Welfare (HEW ), to disestablish 
the dual school system in Jefferson County, Alabama, to 
formulate and present a plan for the establishment of a 
unitary school system including students, facuties, trans­
portation, all facilities, athletics and other school activities 
and school location and construction. In addition to its re­
port, the County Board has filed a motion to dismiss the 
subject action, setting out that the zoning attendance plan 
proposed in its report effectively establishes a unitary 
school system in Jefferson County that complies with every 
judicial and constitutional requirement and to eliminate 
all vestiges of the dual system. The reports were prepared 
and filed under order of this court and entered on June 27, 
1969, by Chief Judge Seybourn H. Lynne acting pursuant 
to mandate of the United States Court of Appeals for the 
Fifth Circuit issued in this case on June 26, 1969, which 
said order directed:

“1. That the defendants be and they are hereby re­
quired to prepare plans to disestablish the dual school 
systems presently being maintained in Jefferson 
County, Alabama, and forthwith to request the Office of 
Education of the United States Department of Health, 
Education and Welfare to collaborate with them in the 
preparation thereof.

“2. That such plans shall be directed to (a) student 
and faculty assignment, (b) school bus routes, (c) all 
facilities, (d) all athletic and other school activities, 
and (e) all school location and construction activities.

O p in io n  o f  th e  C o u rt



55a

“3. That defendants be and they are hereby re­
quired to make available to the Office of Education, or 
its designees, all requested information relating to the 
operation of such school system.

“4. That the disestablishment plans required hereby 
shall be effective for the beginning of the 1969-1970 
school term and shall be completed and filed in the of­
fice of the Clerk of this court on August 1, 1969, and 
shall be submitted for the approval of the court at 
10:00 a.m., on August 4, 1969. All interested parties 
shall be afforded an opportunity to be heard on such 
date, and only on such date, with respect to objections 
or exceptions to such plans.”

The plans of the County Board and HEW were timely 
filed in this court on August 1, 1969, and were set for hear­
ing as directed and ordered on August 4, 1969. The order 
of the Fifth Circuit further directed that the plans for dis­
establishment of the dual system and creation of the uni­
tary system “ shall be considered and approved by the Dis­
trict Court no later than August 5, 1969.”

All parties appeared in court on August 4, 1969, through 
their respective attorneys of record.

The plaintiffs filed objections to the integration plan sub­
mitted by the County Board which were heard together with 
the reports and plans filed by the County Board and HEW. 
Petitions for intervention were filed in this cause on behalf 
of David Borello, etc., et al., by Ralph E. Coleman, Esq.; an 
oral petition for intervention was recorded and urged on 
behalf of parents residing in Pleasant Grove by John 
Schmarkey, Esq. The petitions for intervention having 
been considered and understood by the court, same were 
denied.

Opinion of the Court



56a

Opinion of the Court 

B ackground of the Case

This case commenced by a complaint filed on behalf of 
the individual plaintiffs in this court on June 4,1965. With­
in less than a month, a plan for desegregation was filed by 
the County Board which, in the opinion of this court, com­
plied with the law as then construed by the District Court 
and by the Fifth Circuit Court of Appeals. Following hear­
ing, the plan, as filed, with modifications, was approved by 
the District Court. The Justice Department appealed to 
the Fifth Circuit Court of Appeals. On August 17, 1965, 
the Fifth Circuit remanded the case to the District Court in 
United States v. Jefferson County Board of Education, 349 
F.2d 1021:

“For further consideration in light of Singleton v. 
Jackson Municipal Separate School District, et al, 5 
Cir. 348 F.2d 729, decided by this court on June 22,1965, 
and Price v. Denison Independent School District 
Board of Education, et al, 5 Cir., 348 F.2d 1010, decided 
by this court on July 2, 1965.”

Within ten days the County Board filed its amended plan 
to conform to the decision of the Fifth Circuit. The plan 
was approved by this court and the Government appealed. 
This appeal led to the uniform “Model Decree” and the de­
cision of the Fifth Circuit in United States v. Jefferson 
County Board of Education, 372 F.2d 836, affirmed on re­
hearing en banc (3/29/67), 380 F.2d 385. Following and 
pursuant to that decision, the District Court entered “ the 
model decree” set out by the Fifth Circuit on April 17, 1967.

The plaintiff and the Justice Department then filed a mo­
tion seeking a modification of the Jefferson decree with re­
spect to faculty assignments. On June 3, 1968, in United 
States v. Board of Education of the City of Bessemer, 396



Opinion of the Court

F.2d 44 (which was consolidated with the Jefferson case), 
the Fifth Circuit reversed the order of the District Court 
and directed accelerated faculty integration. The action 
taken by the County Board with respect to this order was 
submitted to the Fifth Circuit in United States v. Jefferson 
County Board of Education, Fifth Circuit, No. 26584.1 The 
Fifth Circuit remanded that case to this court for action 
in connection with the subject proceeding. The United 
States, intervenor, filed a motion seeking to require the 
County Board to file another plan for the desegregation of 
schools in the County System based on geographical zoning. 
This court sustained “ Freedom-of-Choice” in Jefferson 
County and its administration by the County Board, but, 
following appeal, the Fifth Circuit reversed on June 26, 
1969. The District Court issued the subject order pursuant 
to that mandate of the Fifth Circuit.

The testimony of record in these proceedings admittedly 
shows that not a single complaint was communicated to the 
County Board by any citizen of Jefferson County—white 
or Negro— regarding the “Freedom of Choice” plan or its 
administration by the County Board. Following hearing 
on the “Freedom-of-Choice” plan and its administration in 
the County System, Chief Judge Seybourn H. Lynne, in his 
memorandum opinion of March 7, 1969, specifically noted 
that:

“ There is not a whisper of evidence that any pupil of 
either race has been harrassed, intimidated or influ­
enced in any manner in the exercise of his choice of a 
school . . . ”

1 Consolidated with No. 26582, United States v. Board of Edu­
cation of the City of Bessemer, and No. 26583, United States v. 
Board of Education of the City of Birmingham.



58a

In addition, the County Board continuously has taken speci­
fied accelerated and meaningful steps toward the integra­
tion of its school system and has achieved remarkable re­
sults in the face of many difficulties.

It is further noted that every plan filed by the County 
Board generally satisfied the standards or guidelines es­
tablished by HEW and the Fifth Circuit at the time the 
plans were filed in the District Court, hut as noted by the 
Fifth Circuit in United States v. Board of Education of the 
City of Bessemer, 396 F.2d 44, 49:

“And the moving finger having writ was soon writing 
everywhere.”

The result was that while the plans were substantially in 
keeping with the appellate decision at the time they were 
filed in the District Court, the position of the appellate 
court was being modified pending the appeal, and when 
the appeals reached the Fifth Circuit remandment fol­
lowed with additional corrections.

The Jefferson County School Board has had a very 
short time in which to perform a herculean task. They 
have met their responsibilities and submitted a plan which 
this court finds in full compliance with the mandate of 
the Fifth Circuit.

It is recognized that under the circumstances some 
minor adjustments may have to be made. Some changes 
in the plan not affecting its basic purpose and intent may 
be required. These matters can be worked out and agreed 
upon by the School Board and HEW, without further 
burden to this court and to the Court of Appeals. This 
plan ends the dual system of schools in Jefferson County. 
In this court’s opinion, it meets the requirements set out

Opinion of the Court



59a

in the mandate of the Fifth Circuit. It should end litiga­
tion.

It is my thought that further litigation in this case for 
any reason other than that reserved by the court would 
serve no good purpose.

Objections were filed on behalf of the United States 
Department of Justice requesting and suggesting that the 
court’s order include a provision retaining in effect pro­
visions of earlier orders not inconsistent with the new 
plan and requiring periodic reports. The court has care­
fully considered these objections and has incorporated 
herein substantial and material portions of the Depart­
ment’s suggestions.

The court has carefully studied the reports and plans 
for integration filed by the County Board and HEW, has 
heard evidence with respect to the plans and the argu­
ments of counsel and makes the following findings of fact, 
conclusions of law and order herein.

F indings of F act

(1) The plans submitted by the County Board and HEW 
follow identical geographical zones. As directed by the 
Fifth Circuit, the County Board made available to HEW 
all requested information, including the subject plan filed 
by the County Board which HEW has approved, in sub­
stance. 2

(2) The plan of the County Board effectively eliminates 
all vestiges of the dual school system in Jefferson County 
and creates a unitary system that complies with all judicial 
and constitutional requirements.

Opinion of the Court



60a

(3) In considering and fixing school attendance zones, 
the County Board correctly used and applied the following 
pertinent factors:

(a) Capacity of the schools.

(b) Geographical and natural boundaries.

(c) Condition of facilities.

(d) Residence of students.

(e) Boundary lines of other school systems.

(f) Accessibility.

(g) Separate cities.

(h) Accreditation.

(i) Permanency of descriptions.

All of these factors were applied by the County Board 
without discrimination to disestablish the dual and create 
an effective unitary school system.

(4) That approval and execution of the plan effectively 
establishes a unitary system of schools in Jefferson County 
is evidenced by the following statistical result. The Fifth 
Circuit having previously noted in Bessemer:

Opinion of the Court

“As figures speak and when they do courts listen.”

Students Attending and Projected in the 
Jefferson County School System 1968-1972

Year White % Negro % Total
1968-69 48,032 73.% 17,765 27.% 65,797
1969-70 50,223 73.9% 17,731 26.1% 67,954
1970-71 50,452 74.4% 17,393 25.6% 67,845
1971-72 50,469 74.8% 17,001 25.2% 67,470



61a

In the 1967-68 school year, 350 Negro students attended 
predominantly white schools in the County System. In 
1968-69, 615 Negro students, or 3.43%, attended County 
Schools in integrated situations. The County Board plan 
(if it can be accomplished) results in the following amazing 
figures.

In 1969-70, 13,174 of 17,731 Negro students, or 74.29%, 
will attend County Schools in integrated situations.

In 1970-71, 14,812 of 17,393, or 85.16%, of the Negro 
students will attend County Schools in integrated 
situations.

In 1971-72, all—100%—of the Negro students will be 
attending schools in integrated situations. 5

(5) Under the proposed plan, the faculty of the County 
System will be completely integrated. During the 1967-68 
school year, only ten teachers in the County System taught 
in integrated situations in six schools. In the period of 
less than two months following the decision of the Fifth 
Circuit on June 3, 1968, in Bessemer, this number had 
been increased by the County Board to 133 teachers in 
92 schools, of which 93 teachers were assigned to teach 
in 66 schools attended predominantly by white students 
and 40 white teachers were assigned to teach in 26 schools 
attended predominantly by Negro students. Ninety-two of 
the 105 schools in the County System then had integrated 
facilities. The remaining thirteen schools each had six 
teachers or less and were small schools located in remote 
rural sections of the county. The composition of the 
faculty, by race, in the County System, for each of the 
years 1968-1972, as projected, under the County Board 
plan, would be as follows:

Opinion of the Court



62a

Faculty Teaching and Projected in the Jefferson County 
School System 19Q8-72

Opinion of the Court

Year White % Negro % Total
1968-69 1,789 72.1% 692 27.9% 2,481
1969-70 1,762 72.5% 668 27.5% 2,430
1970-71 1,780 71.9% 697 28.1% 2,477
1971-72 1,842 72.5% 700 27.5% 2,542

Approval and execution of the County Board plan would 
result in the following number and percentage of integra­
tion among the faculty of the County System: 6

Non-
Year Integrated % integrated % Total

1969-70 2,403 99.0% 27 1.0% 2,430
1970-71 2,464 99.5% 13 .5% 2,477
1971-72 2,533 99.6% 9 .4% 2,542

(6) Under the County Board plan, eighteen schools in 
the county would be closed to accomplish integration, be­
ing specifically Mt. Olive Junior High, Roebuck Plaza Ele­
mentary, Mineral Springs Elementary, Alden Elementary, 
Docena North, Mulga North, Leeds Primary, Westfield 
High, Pleasant Grove Elementary, Overton, Wilkes, Rob- 
ertstown, Zinnerman, Johns, Hooper City, Pipe Shop, Red 
Ore and Raimund Elementary. The present market 
value of these schools is $1,260,101.70. Their replacement 
cost is reliably estimated to be $4,090,000.00. To complete 
the construction that will be reasonably necessary to fully 
implement the County Board plan will result in construc­
tion costs of $13,856,000. The County Board does not have 
the funds with which to accomplish this tremendous and 
required construction program.



63a

The County Board has adopted and followed a “pay as 
you go” program and constructs additional facilities where 
students are in attendance. Its proposed construction plans 
are directed toward the implementation of the integration 
plan filed with this court.

(7) The plaintiffs introduced no evidence in support of 
their objections. The County Board introduced testimony 
specifically relating to and answering each objection. The 
court finds that the objections are without merit and likely 
were prompted, to a substantial extent, by a misunderstand­
ing on the part of plaintiffs of the integration plan filed by 
the County Board. The evidence of record establishes that 
students will not be bussed out of their zones passed schools 
consisting largely of members of the opposite race. Fur­
ther, the evidence establishes that the County Board has no 
new construction plans except those related to the plan as 
filed. There is no evidence to sustain plaintiffs’ objection 
and statement that Negro students would be bussed by white 
schools in order to attend Negro high schools. To the con­
trary, the evidence is and the court finds that there are no 
white schools or Negro schools upon execution of the plan, 
but only schools. The dual system and all vestiges thereof 
has been effectively eliminated and a unitary system has 
been created in the County School System. The testimony 
clearly shows and the court finds that Negro principals are 
being retained in a number of the county schools, being 
those at Brighton, Moton, Raimund, Wenonah and Rose- 
dale. The court finds that the plaintiffs’ objections are with­
out merit and there is no evidence in the record to sustain 
same.

It is obvious that objections filed are not supported by the 
facts in this case. This is due to the apparent lack of fa­
miliarity with the proposed plan. The court is well aware

Opinion of the Court



64a

of the fact that the time schedule in this case does not allow 
sufficient time to study and analyze the plan. However, the 
record does show that Attorney Clemon and his associates 
were consulted from time to time during the preparation 
of this plan and that he and his associates did approve of 
the plan, in substance.

(8) The court finds, as suggested by the United States 
Department of Justice, that provisions of earlier orders in 
this cause not inconsistent with the new plan be continued 
and that the County Board be required to report to the court 
and to the parties “ any changes in zone boundaries made 
pursuant to Chapter IV, Part D (p. 19) of the County 
School Board plan.”

Since the court will retain jurisdiction to supervise the 
effect and administration of the plan, it deems presently 
unnecessary any orders relating to construction of facilities 
since admittedly all construction is related directly to the 
plan and no new construction presently is proposed by the 
County Board except that specifically set out in and made 
an integral part of the proposed plan.

From the foregoing findings of fact, the court now makes 
the following:

Opinion of the Court

Conclusions of L aw

(1) That the integration plan filed by the County Board 
complies with all judicial and constitutional requirements 
for the abolition of all vestiges of the dual school system and 
the establishment of an effective unitary school system in 
Jefferson County, including, but not limited to, student and 
faculty assignment, transportation, all facilities, all ath­
letics and other school activities, and all school location and 
construction activities.



65a

(2) The plan of the County Board should be and hereby 
is approved as filed.

It should be noted that the plan of the County Board has 
met with the approval of HEW. In addition, the plan has 
the approval of Dr. Bascomb Woodward, Director, Bureau 
of School Services, of the University of Alabama, who was 
requested by HEW to carefully analyze the plan. Dr. 
Woodward expressed the opinion that the plan completely 
disestablishes all vestiges of the dual system and creates 
an effective unitary system of schools in Jefferson County.

Contemporaneously with its plan, the County Board 
filed a motion to dismiss this proceeding alleging (correctly) 
that the plan complied with every judicial and constitutional 
requirement to accomplish a unitary school system for 
Jefferson County. It is the opinion of this court that “all 
litigation must sometime come to an end,” but in the subject 
case, the Fifth Circuit noted that:

“ The district court shall enter findings of fact and con­
clusions of law regarding the efficacy of any plan which 
is approved to immediately disestablish the dual school 
system in question. Jurisdiction should be retained, 
however, under the teaching of Green, 391 U.S. at 439 
and Raney 391 U.S. at 449, until it is clear that dis­
establishment has been achieved.”

The court is treating the motion of the County Board to 
dismiss as a petition for a summary judgment that the 
County Board plan complies with all judicial and constitu­
tional requirements and the court hereby finds and declares 
that the attendance zone plan filed by the County Board 
does immediately disestablish the dual school system and 
does immediately establish a unitary system in Jefferson 
County.

Opinion of the Court



66a

Opinion of the Court

The court retains jurisdiction of this case for the limited 
and restricted purpose of supervising the administration of 
the plan of the County Board as filed and herein and hereby 
approved.

An express order of this court will be entered accordingly.

This 5th day of August, 1969.

/ s /  C. H. A llgood 
United States District Judge



67a

APPENDIX 5

Memorandum Opinion of the Court

(Filed August 5, 1969)

I n  the

U nited S tates D istrict Court 

F or the N orthern D istrict of A labama 

S outhern D ivision 

Civil, A ction N o. 65-366

D oris E laine B rown, et al.,
Plaintiffs,

U nited States of A merica,

Plaintiff-Intervenor,
v.

B oard of E ducation of the City of B essemer, et al.,

Defendants.

On April 17, 1967, in this case this court entered the 
precise mandated decree issuing from the opinion of the 
Court of Appeals for the Fifth Circuit in United States v. 
Jefferson County Board of Education, 372 F. 2d 836, 
adopted on rehearing en banc, 380 F. 2d 385. Motions were 
filed on behalf of the plaintiff and the plaintiff-intervenor 
for an order requiring the defendants to adopt and imple­
ment a plan of pupil assignment based on criteria other 
than “Freedom of Choice” , and after appeal, in case 
No. 27444 on June 26, 1969, the Court of Appeals for the



68a

Fifth Circuit promulgated another decree wherein it found 
that the “Freedom of Choice” had not disestablished the 
dual school system in Bessemer.

The order of the Court of Appeals directed this court 
to require the School Board to file a plan to disestablish 
the dual system and to request the office of the United 
States Department of Health, Education and Welfare to 
collaborate with the defendant School Board in the prepara­
tion of such plans. Precise dates for the filing of such 
a plan were set out.

An order of this court was issued on the 27th day of 
June, 1969, in compliance with the mandate of the appel­
late court. The Department of Health, Education and 
Welfare filed a plan on Friday, August 1, 1969. This plan 
only contemplated the initial step and in such plan stated:

“ The demographic and geographic complexities of 
Bessemer require a much greater detailed examination 
than is normally required in desegregation plan 
development. The present size, location, and organiza­
tion of the schools require an intensive facilities and 
site survey in greater depth than is normally required. 
The lack of public and school-supported transporta­
tion necessitates a more in depth, time distance route 
survey. More collaboration and interaction is needed 
between the HEW team and local officials in order to 
develop a terminal plan that may require a complete 
reorganization of the entire school system.”

The court was informed that this change necessitated 
the Bessemer Board deadline for filing its plan to be ex­
tended to Monday, August 4, 1969, and an order was 
entered to this effect.

In chambers, the Departmnet of Health, Education and 
Welfare and the Justice Department agreed that the

Memorandum Opinion of the Court



69a

Bessemer plan was acceptable as a temporary measure 
and in open court the attorneys for the United States sub­
sequently confirmed this agreement. The Bessemer Plan 
only varied in relatively small details from the HEW plan.

The current regulations of the Department of Health, 
Education and Welfare on school integration do not re­
quire total integration for the 1969-1970 school year where 
either the entire school system is more than 50 percent 
Negro or where a construction project is in construction 
which would affect the school integration plan. The Besse­
mer School System meets both of these tests. In addition 
to the percentage, it has under construction a large school 
which is planned to house grades 7 through 12, the enroll­
ment capacity of about 1,300 students.

The plans show that there are 5,200 colored students and 
2,951 white students in the Bessemer School System. Of 
the white students, 587 attend Greenwood Elementary 
School, which is located four to five miles from the nearest 
other city school. This school is also attended by students 
from Jefferson County under a special agreement with 
the County Board of Education. There are no colored 
students in the area, within the city limits. Any colored 
students who would attend this school would, of necessity, 
be zoned in under the county zoning plan. The results 
then show that in the heart city, those capable of being 
in school, in integrated schools, would only be 2,364 white 
students. The percentage of these whites and colored in 
this area is 32 percent white and 68 percent colored.

Excluding the Greenwood Elementary School, the City 
of Bessemer at present operates four all Negro schools 
and six schools attended by children of both races which 
in the past have been all white. All faculties in the system, 
at all schools, were integrated during the past year.

Memorandum Opinion of the Court



70a

Under the Bessemer plan all of the formerly white 
schools within the City of Bessemer will be integrated with 
the exception of Greenwood. All other schools will be 
integrated from 15 to 38 percent of capacity and a total of 
35 percent of the students attending these schools will be 
Negro during the coming school year. The faculties and 
staffs of all schools will be desegregated and in no case will 
the racial composition of the staff or faculty indicate that 
a school is intended for Negro or white students.

On this date, August 5, 1969, counsel for the individual 
plaintiffs filed “ Objections to the Temporary Plan Offered 
by the City of Bessemer.” No evidence was introduced at 
the hearing in support of these objections and counsel for 
the individual plaintiffs agreed that additional time would 
be required to develop a terminal plan for the Bessemer 
School System.

Memorandum Opinion of the Court

F indings or F act

(1) The interim plan submitted by the Bessemer School 
Board meets the requirements of the Fifth Circuit mandate 
to the extent reasonably possible at this time, and the 
court agrees with the observation of the Justice Depart­
ment, HEW and the Bessemer School Board that additional 
time, collaboration and interaction is needed between the 
parties to develop a terminal plan that may require the 
complete reorganization of the entire school system. 2

(2) The interim plan of the Bessemer School Board, as 
agreed by HEW and the Justice Department, is acceptable 
as a temporary measure and further time will be required 
to effect a plan that will create a completely unitary system 
in Bessemer. The court, at the suggestion of the parties, 
finds that such a plan might reasonably be formulated and 
filed by November 15, 1969.



71a

Conclusions of L aw

(1) That the interim plan as submitted by the Bessemer 
Board of Education is the best and most effective plan that 
could reasonably be formulated within the time allowed 
and, to that extent, complies with the mandate issued pur­
suant to the decision of the Fifth Circuit Court of Appeals 
entered in this cause of June 26, 1969.

(2) Action on the objections filed by and on behalf of 
the individual plaintiffs should be stayed pending the final 
report from the Bessemer School Board. 3

(3) All parties having agreed that additional time is 
required for the Bessemer Board “ to develop a terminal 
plan” , this court should give effect thereto in the absence 
of some compelling reason to the contrary which does not 
exist.

An express order of this court will be entered accordingly.

This 5th day of August, 1969.

/ s /  C. H. A llgood 
United States District Judge



72a

Order

(Filed August 5, 1969)

On the basis of the findings of fact and conclusions of 
law set out in a separate memorandum opinion of the 
court, in this cause this day entered and filed,

It is, therefore, Ordered, A djudged and Decreed by the 
court as follows:

(1) That the interim plan for the integration of the 
Bessemer School System filed by the Bessemer Board of 
Education on August 4,1969, be and the same hereby is 
approved.

(2) That action on the objections to the plan filed on 
behalf of the individual plaintiffs on August 5, 1969, be 
and the same hereby is stayed and will be considered at 
the time the terminal plan of the Bessemer Board is filed 
and presented to the court.

(3) That the Bessemer School Board be and it hereby 
is given until November 15, 1969, to prepare and file with 
this court a terminal plan to eliminate all vestiges of the 
dual system and to effectively establish a unitary plan for 
the operation of the Bessemer School System.

(4) The Bessemer Board of Education shall continue 
to collaborate with the Office of Education of the United 
States Department of Health, Education and Welfare in 
the preparation of a final plan to disestablish the dual 
school system, and that such plan shall be filed by November 
15, 1969.

(5) Jurisdiction is retained until it is clear that the dis­
establishment of the dual system has been achieved.

D one and Ordered this 5th day of August, 1969.

/ s /  C. H. A llgood 
United States District Judge



73a

APPENDIX 6 

Order

(Filed August 1, 1969)

I n the

U nited States D istrict Court 

F or the Southern D istrict or A labama 

S outhern D ivision 

Civil A ction No. 3003-63

B irdie M ae Davis, et al., 

and
Plaintiff,

U nited States of A merica, 
by Ramsey Clark, Attorney General, etc.,

Plaintiff -Inter venor, 
v.

B oard of S chool Commissioners of 
M obile County, et al.,

Defendants,
and

T wtla F razier, et al.,
Intervenors.

It is difficult for one unschooled in the field of education 
to implement a plan to operate the Mobile County Public 
School System in any fashion, but I am confronted with 
doing just that in what I hope will he a practical and 
workable way within the law.



74a

Order

The Supreme Court and the Court of Appeal have inter­
preted the law. We may agree with their interpretation or 
not, but we must follow it.

In approaching this task, which is without doubt the most 
difficult as well as important that I have ever encountered, 
I have called upon any and every source at my command 
for assistance.

The Department of Health, Education and Welfare, with 
inadequate time, has filed a plan with which I can agree 
in part and disagree in part. It contains some provisions 
which I think are both impractical and educationally un­
sound. HEW readily acknowledges that this plan is not 
perfect and invites the School Board to suggest improve­
ments. The School Board has filed absolutely no plan for 
the assistance of the court. The professional staff of the 
Mobile Public School System did, as authorized by the 
School Board, work with HEW in attempting to formulate 
such a plan, but their efforts did not meet with the ap­
proval of the School Board. The court has the benefit of 
such work, but wishes to make it clear that such was never 
approved by the School Board, though the end results in 
many areas were substantially in accord with HEW.

With eight years of litigation, entailing countless days 
and weeks of hearings in court, it has been clearly estab­
lished that the Mobile County School System must forth­
with be operated in accordance with the law of the land. 
What this school system needs is to educate children legally, 
and not to engage in protracted litigation. After all, the 
children are the ones in whom we should be most inter­
ested. With this in mind, I get to the business at hand.

The plan filed by HEW calls for its implementation by 
the beginning of the 1969-70 school term of all rural schools 
and all metropolitan areas west of Interstate Highway 65.



75a

Order

It clearly states that its plan for all metropolitan areas 
east of 1-65 cannot possibly be implemented before the 
1970-71 school term. In this, the court is in complete agree­
ment.

As to the rural schools and all metropolitan areas west 
of 1-65, the Court Orders, A djudges and Decrees the fol­
lowing plan under which the Mobile County School System 
will operate, beginning with the school term of 1969-70:

I .

Attendance area zones for all rural schools of the Sys­
tem, elementary, junior high and high schools, are directed 
in accordance with maps hereto attached, marked Exhibits 
1, 2 and 3.

II.

Attendance area zones for the metropolitan schools lo­
cated west of 1-65, elementary, junior high and high schools, 
are directed in accordance with maps hereto attached, 
marked Exhibits 4, 5 and 6.

III.

Attendance area zones for the metropolitan elementary 
and junior high schools located east of Interstate Highway 
65 shall be the identical zones as those utilized for the past 
school year, 1968-69.

IV.

The metropolitan senior high schools located east of In­
terstate Highway 65, including the Toulminville High 
School, shall operate under the freedom of choice desegre­
gation plan and each student shall attend the school which 
was selected during the recent choice period of May, 1969;



76a

Order

however, every senior high school student living west of 
Interstate Highway 65 must attend the senior high school 
serving his attendance area, notwithstanding the student’s 
choice to attend a high school located east of Interstate 
Highway 65.

V.
The court is not satisfied with the Plan set out by HEW 

for the metropolitan schools lying east of 1-65 for imple­
mentation for the 1970-71 school term. The court knows 
that further study will result in a far better and more 
practical, as well as legal, plan.

VI.

The School Board is hereby ordered to file with the court, 
not later than December 1, 1969, a suggested desegregation 
plan for all of the metropolitan schools located east of 
1-65. This plan shall be formulated by the School Board 
in consideration of the mandate of the Fifth Circuit Court 
of Appeals of June 3, 1969 and after further study and col­
laboration with HEW officials. The School Board is hereby 
ordered to file a detailed progress report to the court on 
October 10, 1969 and November 20, 1969 outlining the steps 
taken in formulating the plan.

The court fervently hopes that the decree herein entered 
and the plan of December 1, 1969 will end further litigation 
for the public school system of Mobile County.

VII.

F aculty

For the 1969-70 school term and subsequent years, the 
faculty of each school, including the principals, teachers, 
tearcher’s aides, and other staff members wTho work directly



Order

with the children, shall have a racial composition not iden­
tifiable as a school for negro or white students.

For the upcoming year, the School Board shall assign, 
as far as is educationally feasible, the staff described above 
so that the racial composition of each school’s faculty shall 
reflect substantially, the racial composition of the teachers 
in the entire school system.

Staff members who work directly with children, and pro­
fessional staff who work on the administrative level, shall 
be hired, assigned, promoted, paid, demoted, dismissed and 
otherwise treated without regard to race, color, or national 
origin, except to the extent necessary to erase segregation.

I f there is to be a reduction in the number of principals, 
teachers, teacher-aides or other professional staff employed 
by the school district, which will result in a dismissal or 
demotion of any such staff members, the staff member to be 
dismissed or demoted must be selected on the basis of 
objective and reasonable non-discriminatory standards from 
among all the staff of the school district. In additions, if 
there is any such dismissal or demotion, no staff vacancy 
may be filled through recruitment of a person of a race, 
color, or national origin different from that of the indi­
vidual dismissed or demoted, until each displaced member 
who is qualified has had an opportunity to fill the vacancy 
and has failed to accept an offer to do so.

“ Demotion” as used above includes any reassignment (1) 
under which the staff member receives less pay or has less 
responsibility than under the assignment he held previ- 
ouly, (2) which requires a lesser degree of skill than did 
the assignment he held previously, or (3) under which the 
staff member is asked to teach a subject or grade other 
than one for which he is certified or for which he has had 
substantial experience within a reasonably current period.



78a

Order

In general and depending upon the subject matter involved, 
five years is such a reasonable period.

VIII.
The Toulminville School for the year 1969-70 is to be 

operated in the same grade level as it was last year.

IX.

The five per cent transfer provision for children of minor­
ity groups set out in the court’s plan of last year is com­
pletely deleted.

X.

P ublic N otice

The School Board shall publish or cause to have pub­
lished in the local newspaper, the complete text of this 
decree and the maps, identified as Exhibits 1, 2, 3, 4, 5, 
and 6, to this court’s decree. The decree and maps shall 
be published once a day for three consecutive days, alter­
nating the morning and evening editions of the newspaper. 
In addition, the School Board shall post or cause to he 
posted in a conspicuous place in each school in the System, 
and at the offices of the School Board, copies of the map 
outlining the particular school’s area attendance zone. This 
notice provision also applies to those elementary and junior 
high schools, east of 1-65, which shall operate under last 
year’s attendance area zones.

Dated: August 1, 1969.

/ s /  Daniel H. T homas



79a

APPENDIX 7 

Order

(Filed June 20, 1969)

I n  the

U nited States D istkict Court 

F or the Southern D istrict of Georgia 

A ugusta D ivision

Civil A ction N o. 1369 

N eely B ennett, et al.,

vs.
Plaintiffs,

R. E. E vans, et al.,
Defendants.

Civil A ction No. 1443

A llene P atricia A nn  B ennett, a minor by R. B. Bennett, 
her father and next friend, et al.,

Plaintiffs,
vs.

B urke County B oard of E ducation, et al.,

Defendants.

These two cases were consolidated by me for hearing 
under an order entered on May 8, 1969. In the first action 
(No. 1369) petitioners attacked the constitutionality of the 
Georgia statutes governing election of school board mem­
bers by grand juries. Plaintiffs also sought ancillary dam-



80a

Order

ages. The complaint did not expressly seek desegregation 
of the dual system of white and black schools. Petitioners 
did allege, however, that they and other Negroes are de­
nied the full and equal benefit of public education in Burke 
County, free of discrimination or segregation because of 
their race or color.

A Three-Judge Court which was convened in No. 1369 
dissolved itself and left future questions to a single district 
judge. The constitutional issue in a similar case is noiv 
before the Supreme Court of the United States.

The other case (No. 1443) which is brought by some of 
the same plaintiffs attacks the “ freedom of choice plan” in 
existence in Burke County and seeks injunctive relief from 
the operation of a compulsory bi-racial school system. An 
evidentiary hearing was held in this case, involving the 
desegregation issue only, at Augusta on June 17th.

I announced my views at the completion of the evidence 
and now formalize them by Findings of Fact and Conclu­
sions of Law. I also expressed my intentions as to an 
interlocutory order. The order which appears at the end 
of the Findings of Fact and Conclusions of Law utilizes 
the provisions of Title 42, §2000c-2, United States Code, 
providing for expert technical assistance by the Office of 
Education in the preparation, adoption and implementa­
tion of plans for desegregation of public schools.

F indings of F act

1. Burke County, Georgia, at the last census had a popu­
lation of 20,596 inhabitants of whom 13,699 were Negroes 
and 6,927 were whites. 2

2. During the 1968-69 school year the total school popu­
lation was 5,433 of whom 1,586 were white students and



81a

Order

3,847 black. Negroes comprise 70.1% of the school enroll­
ment.

3. There are eleven schools in the public school system. 
Of these seven are Negro and four are white. The Burke 
County system is organized, and always has been, as a dual 
one based upon race. Since the school year 1965-66 a free- 
doom of choice plan has been in existence. Prior to that 
time only colored students to seven schools.

4. Under the freedom of choice plan no white student 
attended during the past year any Negro School. No Ne­
groes attended two of the four white schools. Out of a 
total enrollment of 782 pupils there were 27 colored stu­
dents at Waynesboro Elementary. Three Negroes attend 
Waynesboro High School which has a total enrollment of 
380.

5. The percentage of Negro students in other than en­
tirely black schools is approximately 0.7% of the total 
colored pupil population.

6. During the 1968-69 school year the number and race 
of the students enrolled at the eleven schools was as
follows:

Pupils Pupils
School Grades White Black

Cousins (Sardis) ............. ..... 1-8 0 366

Girard (Girard) ............... ..... 1-8 0 336

S. R. Dinkins (Midville) ........ 1-8 0 359

Palmer (Keysville) ......... ..... 1-8 0 214

Gough (Gough) ................. ..... 1-7 0 349



82a

Order

School Grades
Pupils
White

Pubils
Block

Blakeney Elementary .......
(Waynesboro)

..... 1-7 0 1126

Blakeney High ..................
(Waynesboro)

.... 8-12 0 915

Waynesboro Elementary ...... 1-8 755 27

Waynesboro H igh ......... ..... .... 9-12 377 3

Sardis-Girard-Alexander .. 
(Sardis)

.... 1-12 357 0

Midville Elementary ......... .... 1-7 49 0

7. The total number of faculty members in the Burke 
County school system is 212 of whom 139 are Negro. No 
white teachers teach in black schools. No black teachers 
teach in white schools.

8. The school bus system is maintained on a segregated, 
duplicative and overlapping basis.

9. In 1966 H.E.W. cut off Federal assistance funds to the 
Burke County system, which aid amounted at that time to 
$209,340.58 annually.

10. Six of the seven Negro schools have lost accredita­
tion because, or mainly because, of over-crowded conditions.

Conclusions of L aw

1. The defendants have discriminated against Negro stu­
dents on account of their race in violation o f the Four­
teenth Amendment in the operation of the Burke County 
system by maintaining a dual school system based on race.



83a

Order

2. Until the freedom of choice plan not a single white 
child, and this is the invariable pattern, has chosen to 
attend the traditionally Negro schools. More than 99% of 
the colored children continue to attend all-Negro schools. 
This is constitutionally unacceptable. Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968); 
Raney v. Board of Education of the Gould School, 391 U.S. 
443 (1968); United States v. Indianola Municipal Separate 
School District, et al., (5th Cir., April 11, 1969); United 
States v. Greenwood Municipal Separate School District, 
et al., (5th Cir., February 4,1969); Adams et al. and United 
States v. Mathews et al., (5th Cir.), 403 F.2d 181.

3. The existing freedom of choice approach offers no 
hope of achieving at any time in the near future the degree 
of integration necessary to satisfy the demands of the 
Fourteenth Amendment as interpreted in these and other 
decisions.

4. “ It is an affirmative duty of each school board in this 
circuit to abolish the vestiges of state-compelled segre­
gation and to establish a unitary system which achieves 
substantial desegregation . . .  At the very least this 
means that this school board has an obligation to see 
that schools in this district remain no longer all-Negro 
schools or all-white schools enrolling only an infini­
tesimal fraction of Negro students.”

United States v. Indianola Municipal Separate School 
District, supra.

O b d e e

It is ordered that the Board of Education of Burke 
County shall promptly submit to the Office of Education,



84a

Order

H.E.W., the existing methods of operation of the System 
and shall seek to develop by July 30, 1969, in collaboration 
and co-operation with the experts in the Office a workable 
and acceptable plan of desegregation and operation of the 
schools consonant with the practical and administrative 
problems faced by the Board. If such a plan can be agreed 
upon by July 30th, this Court will approve same unless 
the Plaintiffs at a hearing makes a satisfactory showing 
that the plan does not meet constitutional standards. If 
no plan is developed within the period referred to, the 
Office of Education is respectfully requested to submit to 
the Court as soon as practicable their recommendations 
for a workable plan. Absent a showing by the parties at 
a hearing, this Court will, after due consideration of any 
plan so submitted by the Office of Education, enter a de­
cree. Such a hearing will be held at Savannah on August 
8, 1969 at 10:00 o ’clock a.m.

The Court expresses the earnest hope that an acceptable 
plan will evolve— one which, while satisfying judicial inter­
pretations of the Fourteenth Amendment, will not produce, 
through overnight revolution, complete disruption and an 
end product of a second or third rate education for the 
children of Burke County.

This June 20th, 1969.

A lexander A . L awrence 
Chief Judge, United States District Court 

Southern District of Georgia



85a

Order

(Filed August 22, 1969)

There came on to be heard on August 15, 1969 the matter 
of approval of the interim plan of desegregation of schools 
in the public school system of Burke County, Georgia de­
veloped by the Burke County Board of Education in col­
laboration with the Office of Education of the Department 
of Health, Education and Welfare and submitted pursuant 
to the order passed herein on June 20, 1969 to be effective 
for the 1969-70 school year; and it appearing that the 
proposed plan is acceptable to and has the approval of 
the Office of Education of the Department of Health, Edu­
cation and Welfare as applicable to that particular school 
year; and after hearing from counsel for plaintiffs and 
defendants, no satisfactory showing having been made why 
such plan should not be approved;

I t  is  ordered  that said interim plan be and the same is 
hereby approved to be effective for the school year 1969-70 
with the Board of Education of Burke County to take the 
necessary steps to implement the same in all respects, which 
plan is substantially as follows:

Student Desegregation

1. All predominantly white schools will be brought up to 
capacity with Negro students so as to result in a minimum 
of 68 Negro students assigned to and enrolled in Waynes­
boro High School, a minimum of 167 Negro students as­
signed to and enrolled in Sardis-Girard-Alexander Elemen­
tary and High School, a minimum of 89 Negro students 
assigned to and enrolled in Waynesboro Elementary School 
and a minimum of 35 Negro students assigned to and en­
rolled in Midville Elementary School.



86a

Order

2. Vocational Department at Blakeney High School to 
serve the entire County with the schedule to be worked 
out by the Burke County Board of Education.

Desegregation of Faculty and other Staff

3. Full desegregation of faculty and other staff in the 
grades affected by the assignments of students as above, 
including district-wide desegregation of faculty and other 
staff in each school to at least 7 white and 14 Negro of 
the recommendation contained in Part 1 of Section III as 
set forth on page 4 of the document transmitted to the 
Court by the United States Office of Education, H.E.W., 
under date of August 11, 1969.

It  is f u r t h e r  o rdered  that the Board of Education of 
Burke County proceed promptly to consult and collaborate 
with the Office of Education of the Department of Health, 
Education and Welfare toward the development of a work­
able and acceptable plan of desegregation and operation of 
the schools in said County for the 1970-71 school year 
consonant with the practicable and administrative prob­
lems involved, and satisfying the constitutional require­
ments of the Fourteenth Amendment as judicially inter­
preted, and to submit such plan to the Court for consider­
ation and approvul as soon as the same shall have boon 
developed and agreed upon. Should no such plan be agreed 
upon and submitted by the Burke County Board of Educa­
tion as herein provided within a reasonable time hereafter, 
the Court shall thereupon require the Office of Education of 
the Department of Health, Education and Welfare to pre­
pare and submit to the Court its plan and recommendation 
following which the Court shall take appropriate action for 
the adoption and approval of a plan to be effective for the



87a

Order

1970-71 school year which shall be acceptable to the Court 
as meeting constitutional standards.

The Court retains jurisdiction for the passage of such 
further orders as may be appropriate with respect to any 
relief to which any party may hereafter be entitled in the 
premises.

This day of August, 1969.

/ s /  A lexander A . L awrence

Chief Judge, United States District Court 
Southern District of Georgia



88a

APPENDIX 8 

Order

(Filed August 12, 1969)

I n the U nited States D isteict Court 

F or the M iddle D istrict of Georgia 

M acon D ivision 

Civil A ction N o. 1926

Shirley B ivins, et al.,

v.
Plaintiffs,

B ibb County B oard of E ducation and 
Orphanage for B ibb County, et al.,

Defendants.

B ootle, District Judge:

The schools in the Bibb County system began their de­
segregation program on a graduated basis, certain grades 
by certain years, under order of this court dated April 24, 
1964. Later by order dated June 29, 1967 a Jefferson-type 
decree was entered requiring compulsory freedom of choice 
by all students and desegregation of all grades commencing 
with 1967-68.

On June 28, 1968, plaintiffs, encouraged by and citing, 
Green v. School Board of New Kent County, 391 U. S. 430, 
20 L. ed. 716 decided May 27, 1968, filed their Motion for 
further relief. An evidentiary hearing was held on August 
19, 1968. Then on September 16, 1968 this court issued an 
interim order reciting that



89a

Order

(1) of the total of 58 schools 34 had been desegregated 
as to students, and 55 as to faculty;

(2) 20% of the Negro students were attending formerly 
all-white schools;

(3) freedom of choice was complete and unfettered;

(4) no student choosing to attend a school where his 
race was in the minority was being denied his right 
to do so;

(5) 62% of all students were then attending bi-racial 
schools;

(6) that four formerly all-white schools had virtually 
reached the overall countywide ratio of 60% to 40% 
Negro;

(7) that one formerly all-white school had obtained 
the ratio of 53% Negro and 47% white;

(8) that ten other formerly all-white schools then 
ranged in Negro student attendance from 9% to 26%;

(9) that out of a total faculty of 1614, 139 were then 
teaching in schools of predominantly the opposite race,

and ordering the defendants to reassess the situation and 
submit by November 28,1968 a plan showing what they pro­
posed to do in light of then current court decisions.

Accordingly, on November 29, 1968 defendants replied 
that unquestionably in their judgment the freedom of choice 
plan is the only one by which a “unitary, non-racial system” 
for Bibb County can be obtained on a permanent basis, that 
in order to attain such a system so far as students are con­
cerned, such a system as to faculty must first be attained, 
that great progress was being made in all respects and



90a

Order

particularly with reference to obtaining faculty cross-overs, 
that these faculty cross-overs were being obtained even on 
a voluntary basis, that the cross-overs of 139 mentioned in 
the interim order had already (by November 29, 1968) in­
creased to 181 (with 307 seen possible by June 1, 1969). 
The plan accompanying this response proposed and strongly 
advocated the continuance of the freedom of choice plan 
and recited:

“ The freedom of choice for students has progressed 
very satisfactorily, except for the failure of white stu­
dents to choose all-Negro schools for attendance.

“The prospects are bright for continued integration 
of Negro students into formerly all-white schools; and, 
if some satisfactory method can be attained to expe­
dite integration of the faculties in the Negro schools, 
integration of students in these schools will improve.”

Forwarded to the court with this response and proposed 
plan were certain brochures, some of them containing pho­
tographs, which defendants’ staff had been keeping concern­
ing integrated activities at these schools including

“ 1) Workshop and seminar for desegregation;

“2) Sports;

“3) Steering Committee for Curriculum Development;

“4) ‘Inkwell,’ weekly newspaper of A. L. Miller Senior 
High School, Friday, October 4, 1968;

“ 5) ‘The Lasseter Lantern,’ weekly newspaper of Las- 
seter High School, Friday, October 25, 1968;

“ 6) Loose-leaf notebook with pictures of various inte­
grated classrooms from various schools, showing stu­
dents at work;



91a

Order

“ 7) Loose-leaf notebook showing ‘some of the integrated 
activities of Bibb County Schools, as reflected in news 
releases, etc.’ ;

“8) Loose-leaf notebook with pictures showing further 
integration in various schools, etc. of the system;

“9) Loose-leaf notebook disclosing additional pictures 
of classrooms and activities in the schools.”

Plaintiff filed no objections to the proposed plan of 
November 29, 1968 except such as are contained in their 
“Motion for Further Relief” filed June 4, 1969. This latest 
motion for further relief makes no contention that freedom 
of choice is not really free, admits that over 20% of the 
Negro students in the County are attending formerly all- 
white schools, complains that actually too many Negro stu­
dents have chosen to attend four of the formerly all-white 
schools and lists the following figures:

“ 1968 Choice P eeiod
School R ace T otal

(1) Alexander II White 341
Negro 266

(2) J. W. Burke White 489
Negro 254

(3) Clisby White 384
Negro 197

(4) Winship White 254
Negro 284



92a

“ 1969 Choice P eriod 
S chool

(1) Alexander II

(2) J. W. Burke

(3) Clisby

(4) Winship

Order

R ace T otal

White 268
Negro 357

White 315
Negro 333

White 295
Negro 263

Whdte 196
Negro 342.”

So it is that the gravamen of plaintiffs’ complaint, if not 
their sole complaint (other than not enough faculty inte­
gration) is the fact that thus far no white students have 
chosen to attend any of the 20 formerly all-Negro schools. 
They thus argue that freedom of choice is not working, or 
is not working fast enough, to suit them and they pray for 
attendance zoning plus consolidation of grades or schools 
or both.

Defendants’ response to this June 4, 1969 Motion for 
Further Relief tiled June 17, 1969, alleged, inter alia, that:

1. Twenty-seven per cent of the Negro students are now 
attending previously all-white schools and that by Septem­
ber 1, 1969 this will be increased to at least 30%;

2. The 139 faculty cross-overs above mentioned had 
increased to 184 (118 Negroes and 66 whites) with an esti­
mate of at least 239 by September 1, 1969; 3

3. Plans have been completed for the operation begin­
ning 1969-70 of a driver education center at a formerly 
all-Negro High School for 600 students completely inte-



93a

Order

grated, and that plans were underway for a complete 
duplication of this program at another of the formerly all- 
Negro High Schools also beginning 1969-70.

4. There was a steady improvement in the quality of 
education in the formerly all-Negro schools;

5. That included in the general presentments of the Bibb 
County Grand Jury for the October and December Terms, 
1968 was the following:

“ The Bibb County Board of Education is to be com­
mended for the programs and over-all performance of 
all phases of the system along with the good race 
relations that exist in the schools.

“We find that the present plan of freedom of choice 
for students is working well and it is hoped that the 
courts will see fit to let this plan prevail. Progress has 
also been made in the integration of teachers and will 
continue under the present program.”

An amended response filed July 7, 1969 alleged, inter 
alia, (1) that the faculty cross-over figure had already 
reached 231 and revised the estimate for September 1, 1969 
from 239 to 278; (2) that a Summer School program was 
then being conducted involving an enrollment of 5,373 
students, 673 whites and 4,700 Negroes; that of these, 82 
white and 623 Negro students were in the Head Start 
Program conducted at seven centers, one at a formerly all- 
Negro school and six at formerly all-white schools; that all 
seven would have been at formerly all-Negro schools except 
that the United States required that these six be at for­
merly all-white schools; that of this Summer enrollment 
500 white and 1,500 Negro students were involved in a



94a

Order

library program conducted at nine centers, 8 formerly all- 
Negro and 1 formerly all-white, with some white students 
participating at each of the eight formerly all-Negro 
centers; of the remaining students participating in this 
program 21 whites attended Hamilton, formerly all-Negro, 
8 whites attended Maude Pye, formerly all-Negro, 1 white 
attended Hartley formerly all-Negro, and 8 whites attended 
Ballard Hudson Jr., formerly all-Negro, and at Winship 
School there were 41 white and 59 Negro students.

An evidentiary hearing was held on July 7 and July 8, 
1969. At this hearing there was admitted into evidence 
over the objections of plaintiffs all of the brochures and 
photographs above mentioned. The evidence adduced amply 
proved and established all of the factual allegations con­
tained in the above mentioned pleadings of the defendants 
and I find the facts to be as so alleged and as above recited.

At the conclusion of that hearing this court requested 
the defendants to study the Green case carefully and to 
submit proposed amendments to their present freedom of 
choice plan setting forth what additional steps they can 
take and are willing to take (meaning without impairing 
the educational efficiency of the schools, of course) in order 
to disestablish the racial identifiability of these 20 formerly 
all-Negro schools.

Accordingly, on July 18, 1969, defendants filed their 
“Proposed Amendments to Present Freedom of Choice 
Plan” consisting of eight typewritten pages. The plaintiffs 
have filed their written objections to these proposed amend­
ments and all these matters have been carefully considered.

The proposed amendments speak for themselves. A  very 
brief discussion will suffice.

Paragraph 1 will effectually prevent resegregation of 
any school by permitting defendants to limit the right of a



95a

Order

child to transfer to any school where his or her race in 
that school exceeds the percentage that the child’s race 
occupies county-wide.

Paragraph 2 sets forth fifteen additional steps defendants 
propose to take to eliminate completely and permanently 
any racial identification that may still persist with respect 
to any of the schools in the system, as follows:

(a) driver education courses in 2 formerly all-Negro 
High Schools and a formerly all-Negro Junior High 
School;

(b) a Pre-Vocational Laboratory-Oriented Program in 
formerly all-Negro Elementary schools;

(c) special reading clinics in formerly all-Negro ele­
mentary schools;

(d) continuance of “ Summer School Learning Adven­
tures 1969” almost exclusively in all-Negro schools;

(e) Confining the regular Summer School program of 
1970, and thereafter if feasible, to formerly all-Negro 
schools;

(f) prompt study of feasibility and desirability of 
closing certain of the formerly all-Negro schools;

(g) issuing certificates and diplomas by the System 
without identifying the name of any particular school;

(h) rotating seminars for gifted students throughout 
the system with emphasis on holding same at formerly 
all-Negro schools;

(i) encouraging joint school activities involving stu­
dents from both formerly all-Negro and all-white 
schools, such meetings to be scheduled wherever fea­
sible at formerly all-Negro schools;



96a

Order

(j) studying the feasibility of constructing an Instruc­
tional Materials Center for joint use by teachers and 
students of both races;

(k) doing away with the unintentional and (until 
recently) unnoticed survival of the ancient practice 
of listing white and Negro schools separately in the 
System’s Yearbook;

(l) holding in-service meetings of teachers primarily 
at formerly all-Negro schools;

(m) complete integration of transportation facilities 
including assignment of some Negro bus drivers to 
busses primarily having white students;

(n) soliciting public cooperation in supporting the plan 
as amended;

(o) periodic review of these measures and careful 
attention and study of other action that might be under­
taken in the future.

Paragraph 3 proposes in view of recent appellate deci­
sions binding upon this court, including United States v.
Baldwin County Board of Education, 5 Cir. 1969, ------  F.
2d ------ , [No. 27281, July 9, 1969], immediate faculty in­
tegration to the extent that the race of at least 1 of every 
5 faculty members in a school must be different from the 
race of the majority of the faculty members of that school.

This court hereby approves the proposed amendments 
and hereby makes said proposed amendments a part of 
said plan.

This court finds that the defendants are acting in good 
faith in the premises and that the plan as hereby amended 
has '“ real prospects for dismantling the (former) state- 
imposed dual system ‘at the earliest practicbale date’ ” .



97a

Order

Green v. School Board of New Kent County, 391 U. S. 430, 
20 L. Ed. 2d 716 (1968), and that it will do so “ in any way 
that will improve rather than disrupt the education of the 
children concerned.” H.E.W.’s Statement of Policy, July 
4, 1969.

This court further finds as facts and concludes as matters 
of law: (a) that this plan as hereby amended will be 
effective “to effectuate a transition to a racially nondis- 
criminatory school system.” Brown 11, 349 U.S. at 301; 
Green v. School Board of New Kent County, 391 U. S. 430, 
28 L. Ed. 2d 716 (1968). This assumes, of course, as this 
court has a right to assume and expect, full and complete 
compliance with said plan as amended; (b) said plan is 
adequate “to convert [the former dual system] to a unitary 
system in Avhich racial discrimination a [would] will be 
eliminated root and branch” ; Green, supra; (c) the plan as 
amended “promises realistically to work now” , Adams, et
al. v. Matthews, et al, 5 Cir. 1969,------ F. 2d ------- [No. 26501,
August 26,1968], (d) inasmuch as the defendants are acting 
in good faith and the plan has real prospects for disman­
tling the former state-imposed dual system at the earliest 
practicable date “ it provide(s) effective relief.” Green v. 
School Board of Neiv Kent County, supra.

For this court’s appraisal and appreciation of freedom 
of choice as being entirely lawful and the best and fairest 
method yet suggested for accomplishing desegregation, see 
memorandum opinion in the case of Hilson, et al v. Ousts, 
et al, in Civil Action No. 2449, Macon Division, August 8 
1969.

This memorandum is intended to suffice as findings of a 
fact and conclusions of law.

So Ordered, this 12th day of August, 1969.

/ s /  W . A. B ootle

United States District Judge



98a

APPENDIX 9 

Order

(Filed August 12, 1969)

I n the

UNITED STATES DISTRICT COURT 

F oe the M iddle D istrict of Georgia 

M acon D ivision 

Civil A ction N o. 2077

Oscar C. T homie, J r ., et al.,
Plaintiffs,

v.

H ouston County B oard of E ducation,

Defendant.

B ootle, District Judge:

The schools of this system are operating under a freedom 
of choice plan approved by this court originally on May 20, 
1965. That plan was on a graduated basis, desegregating 
certain classes by certain years. The plan was accelerated 
by a further decree of April 24, 1967. Later and on Sep­
tember 7, 1967 “ as of” June 22, 1967, a full Jefferson-type 
decree was entered desegregating all grades commencing 
1967-68 and requiring all students both white and Negro 
to exercise free choice annually. Then on June 28, 1968, 
inspired by and relying upon, Green v. School Board of 
New Kent County, 391 U. S. 430, 20 L. Ed. 716, decided 
May 27, 1968, plaintiffs filed their Motion for Further 
Relief complaining that during the March, 1968 choice



99a

Order

period only 17.9% of the 3,210 Negro students had chosen 
to attend previously all-white schools and that no white 
students had chosen to attend previously all-Negro schools. 
They seek some form of forcible assignment of students as 
by zoning, or pairing “designed to effect racially balanced 
schools.”

Defendants’ response to the Motion alleged that the 
March, 1968, choice percentage was approximately 19% 
rather than 17.9%, as alleged; that freedom of choice had 
not failed, and that in any event defendants would be un­
able to perform and comply with a decree such as plain­
tiffs sought.

On August 19, 1968 an evidentiary hearing was held.
On September 30, 1968, an interim order was issued 

correctly reciting that considerable progress had been made 
under the Jefferson decree; that of the total of 23 schools, 
16, had been desegregated as to students and 20 as to 
faculty; that 18.8% of the Negro students were attending 
formerly all-white schools, counting 53 Negro students re­
questing and approved for enrollment in previously all- 
white schools but who as of September 6, 1968 had not 
enrolled in any school in the system and whom the school 
authorities were attempting to locate (if these 53 are not 
counted the correct percentage would be 17.2); freedom of 
choice is really free and unfettered; 77.7% of all students 
were attending bi-racial schools; total enrollment was 
15,512, 12,217 (78%) white and 3,295 (22%) Negro; in 
one formerly all-white school Watson Elementary 23.3% 
enrollment was Negro, and that as to faculty 25 persons 
out of a total of 668 had crossed-over, exclusive of 8 white 
persons working systemwide in all schools. Said order 
invited the defendants to reassess the situation and submit 
an amended plan.



100a

Order

The defendants’ response, filed November 27, 1968, sub­
mitted that freedom of choice was working satisfactorily 
and that the suggested alternative methods were not rea­
sonably available, and were not feasible. It submitted fur­
ther that the condition of having only Negro students in a 
few schools would “ resolve itself as students transfer, Ne­
gro faculty transfer out and white faculty transfer in.”

A  second interim order dated June 18, 1969 requested 
up-to-date information and defendants responded on June 
25, 1969, inter alia, that whereas there were 33 faculty 
cross-overs in 1968-69 they planned 43 for 1969-70, 33 Ne­
gro and 10 white.

On June 25, 1969 plaintiffs filed their second Motion for 
Further Relief seeking zoning and consolidation of grades 
or schools or both. A  second evidentiary hearing was held 
on July 8, 1969, at the conclusion of which the court 
ordered the defendants to file proposed amendments to 
their freedom of choice plan setting forth all steps they 
thought they could safely take toward disestablishing the 
racial identifiability of all the schools in this system in­
cluding a fair and somewhat liberal transfer of faculty 
members, meaning of course without impairing the educa­
tional efficiency of the schools. The plaintiffs were also 
invited to file a proposed plan. And the Department of 
Health, Education and Welfare was invited to confer with 
defendants and file a proposed plan except that if all three 
could agree, only one plan would be necessary, or if any 
two and only two could agree on a plan, then only two 
plans would be necessary. H.E.W. filed a proposed plan 
and so did the defendants. The plaintiffs did not. The 
defendants have filed many detailed specific objections to 
the H.E.W. plan which was based on zoning, pairing and 
consolidation, alleging that it is unworkable and would dis­
rupt the system bringing chaos and confusion.



101a

Order

The ease is now ready for a final order insofar as an 
order in a school case is ever final.

This memorandum is intended to suffice as findings of 
fact and conclusions of law.

I find the facts to be as recited in the pleadings of the 
defendants and as stated and summarized above. I find 
additonally that the faculty ratio is approximately 20% 
Negro and 80% white, with substantial vacancies now 
existing, approximately the same as the student enrollment 
recited above as 22% Negro and 78% white. Defendants 
have many and difficult problems in faculty recruitment. 
An unusually large percentage of faculty comes from out­
side the County. In a good faith effort to achieve faculty 
desegregation in the fall of 1968, 9 additional Negro teach­
ers were assigned to teach in white schools but resigned.

This brings us now to a brief discussion of the defen­
dants’ proposed amendments. They cover six typewritten 
pages and speak for themselves.

Paragraph 1 deals with the faculty and this court is 
convinced that the defendants have conscientiously, with 
respect to faculty integration as well as with respect to all 
other matters dealt with in said proposed amendments, 
fairly gauged their own. ability with respect to going as 
far as they safely can in an effort to disestablish the racial 
identifiability of all schools in the system without impair­
ing the educational efficiency of the system. In substance, 
they propose to achieve a ratio of five Negro teachers to 
one white teacher in all of the formerly all-Negro schools 
in the system, transferring to the formerly all-white schools 
all Negro teachers displaced by the white teachers. All 
staff meetings and all faculty meetings will be integrated 
as will all teacher in-service meetings.

Paragraph 2 deals with students and points out that 
at the end of the free choice period recently held 21.1% of



102a

Order

the Negro students have chosen to attend formerly all- 
white schools. This figure will jump to 28% this fall when 
grades 9— 12 in the Pearl Stephens High School, formerly 
all-Negro, is phased out causing some 204 Negro students 
to be moved into two formerly all-white schools. Addition­
ally, Elberta School, presently attended only by Negro stu­
dents, will be discontinued thereby giving its 176 Negro 
students the further opportunity to choose formerly all- 
white schools if they so desire. Additionally, consideration 
is being given to the feasibility of phasing out the seventh 
and eighth grades in Pearl Stephens School, formerly all 
Negro, thus necessitating the choice of some other school 
by those students. School bus transportation is to be 
completely nonsegregated. Resegregation is to be avoided 
by the Board’s being authorized to restrict pupil transfers 
and the exercise of freedom of choice to a reasonable ap­
proximation of the race ratio existing in the school popu­
lation.

Paragraph 3 lists eight additional steps to be taken by 
the defendants, namely: (a) the initiation of a minimum 
of 15 interchanges of classes per school term for seventh 
and eighth grade students in industrial arts, home econom­
ics, and academic activities between Rumble and Tabor 
Junior High Schools, formerly all-white, and Pearl Ste­
phens School, formerly all-Negro; (b) the initiation of a 
minimum of 15 such exchanges per school term in classes 
in vocational and academic activities in the Perry area in 
predominantly Negro and predominantly white schools; (c) 
the initiation of an exchange of students at the elementary 
level from formerly all-white schools to formerly all-Negro 
schools, and vice versa, it being contemplated that all 
classes in the formerly all-Negro schools will have this 
experience during the school year and that necessarily a



103a

Order

comparable number of classes from the formerly all-wbite 
schools will make the exchange over into the formerly all- 
Negro schools; (d) the initiation, if defendants’ application 
for funds therefor is granted, of a comprehensive driver 
training program to be held daily on a fully integrated 
basis; (e) joint meetings once each quarter on a rotation 
basis between the schools of student councils, newspaper 
staffs, annual staffs, and class officers in the seventh through 
twelfth grades; (f) converting Elberta School, formerly 
all-Negro, into an Adult Basic Educational Learning Cen­
ter fully integrated; (g) the holding of the Summer School 
program exclusively at formerly all-Negro schools at the 
elementary level; and (h) a feasibility study looking to­
ward closing certain other formerly all-Negro schools and 
finding further activities to eradicate racially identifiable 
schools.

Defendants represent to the court that these proposed 
amendments are wise and prudent at this time and that 
their implementation will not cause a deterioration in the 
quality of education provided to the students in the system. 
They represent to the court further that in their opinion 
nothing further can be accomplished at this time without 
placing in jeopardy the quality of education provided for 
the children of the County.

This court hereby approves the proposed amendments 
and hereby makes said proposed amendments a part of 
said plan.

This court finds that the defendants are acting in good 
faith in the premises and that the plan as hereby amended 
has “ real prospects for dismantling the (former) state im­
posed dual system ‘at the earliest practicable date.’ ” 
Green v. School Board of New Kent County, 391 U.S. 430, 
20 L. Ed. 2d 716 (1968), and that it will do so “ in a way



104a

Order

that will improve rather disrupt the education of the chil­
dren concerned.”  H.E.W.’s Statement of Policy, July 4, 
1969.

This court further finds as facts and concludes as matters 
of law: (a) that this plan as hereby amended will be effec­
tive “ to effectuate a transition to a racially nondiscrimina- 
tory school system.” Brown II, 349 U.S. at 301; Green v. 
School Board of New Kent County, 391 U.S. 430, 20 L. Ed. 
2d 716 (1968). This assumes, of course, as this court has 
a right to assume and expect, full and complete compli­
ance with said plan as amended; (b) said plan is adequate 
“ to convert [the former dual system] to a unitary system 
in which racial discrimination [would] will be eliminated 
root and branch” ; Green, supra; (c) the plan as amended 
“ promises realistically to work now,”  Adams v. Mathews, 
403 F. 2d 181 (5th Cir. 1968), (d) inasmuch as the defen­
dants are acting in good faith and the plan has real 
prospects for dismantling the former state-imposed dual 
system at the earliest practicable date “ it provide(s) effec­
tive relief.” Green v. School Board of New Kent County, 
supra.

For this court’s appraisal and appreciation of freedom 
of choice as being entirely lawful and the best and fairest 
method yet suggested for accomplishing desegregation, see 
memorandum opinion in the case of Hilson, et al. v. Ousts, 
et al., Civil Action No. 2449, Macon Division, August 8, 
1969.

So Ordered, this 12 day of August, 1969.

W . A. B ootle

United States District Judge



105a

APPENDIX 10 

Order
(Filed March 4, 1969)

I n the U nited States D istrict Court 

F or the Northern District of F lorida 

M arianna D ivision 

M arianna Civil A ction No. 572

Jean Carolyn Y oungblood, et al.,
Plaintiffs,

U nited States of A merica,

vs.
Plaintiff-Intervenor,

T he B oard of P ublic I nstruction of 
B ay County, F lorida, et al.,

Defendants.

The Court has concluded that there was no need what­
soever for an evidentiary hearing for consideration of 
defendants’ proposed plan for school year 1969-70. Every 
conceivable scrap of factual data about the operation of the 
schools under the defendants’ jurisdiction has been placed 
upon the record, including a detailed so-called “ dot map” 
showing the residences of school children and the location 
of the schools. In addition, the record is replete with statis­
tics which show precisely the racial composition of each 
school with respect to pupils, teachers and administrative 
personnel. There are simply no more relevant facts to be 
obtained. Every request for information and data by either



106a

Order

party has been buttressed by an order of the Court and has 
been complied with.

At hearing on this motion, counsel suggested that evi­
dence might be presented by experts to advise the Court 
what, in their opinion, would be the best solution to the 
various problems. By denying this motion for evidentiary 
hearing, counsel is not precluded from filing with the Court 
any suggestions supported by scholars or experts in any 
field and the same will be fully considered. This may be 
made part of counsel’s brief if it is so desired.

In the final analysis, however, the posture of this litiga­
tion for this year simply calls for a judicial decision which 
must be made by the Court upon the facts now thoroughly 
and fully developed.

Moreover, there is a time factor involved here. This 
school system is operating under a Jefferson-type decree 
which went into effect September 1967. Further protracted 
delays could only lead to the waste of public funds for 
educational purposes in the necessary planning for the open­
ing of the schools in September 1969, together with attend­
ant utter confusion for thousands of school children, fac­
ulty, and those charged with the administration of the 
public schools. Realizing this, this Court in January 1969 
directed that all basic data needed by either party be made 
part of the record as soon as practicable. A  schedule was 
established looking first to a hearing on April 10. Upon 
reconsideration, the Court determined that this schedule 
was too slow and was accelerated to the point that all the 
factual data was required to be filed much earlier. Under 
the direction of the Court the defendants filed their plan 
under the accelerated schedule. Counsel for plaintiffs have 
made oral motion for an opportunity to file further brief 
or comment with respect to the proposed plan heard and



107a

Order

considered on March 3, 1969 and this is granted under a 
schedule whereby all briefs, by both plaintiffs and defen­
dants, will be filed by March 14, 1969.

Done and Ordered in Chambers at Tallahassee this 4th 
day of March 1969.

G. H arrold Carswell 
Chief Judge



108a

Order

(Filed April 3, 1969)

All facts were fully developed upon this record showing 
the composition of the various schools under the jurisdic­
tion of this defendant Board of Public Instruction by race 
with respect to both students and teachers. The plaintiffs 
and plaintiff-intervenor both moved for the defendant to 
file a “dot map” showing the location of children by race 
within the system and the location of the various school 
buildings to which they were to be assigned. Numerous 
hearings have been held with counsel present and all of the 
various proposals have been considered, including plan sub­
mitted by the defendant Board and filed herein on Feb­
ruary 20, 1969, together with objections to such plan by 
plaintiffs and plaintiff-intervenor.

The record shows that the Jefferson type decree under 
which this school system has operated since April 19, 1967 
has resulted in substantial desegregation throughout the 
county. It is clear, however, that 4 of the 26 schools under 
the jurisdiction of this Board, 3 of them being elementary, 
are attended by Negroes only, i.e., Shaw, Patterson, Harris, 
and Rosenwald Junior High School. (There are some white 
kindergarten students presently enrolled at Patterson Ele­
mentary School.)

The Board has proposed basically that steps be taken 
to bring about the racial integration of these particular 
schools. The Court concludes that the only alternative 
which has been suggested that is likely to eliminate segre­
gation in these particular areas would require either 
jerrymandered districts or extensive bussing, neither of 
which are practicable or commensurate with the conduct of 
educational purposes for small children. Moreover, the 
Court concludes that there would actually be substantially



109a

Order

less integration in the system as a whole if the rigid 
requirements proposed by plaintiff-intervenor and plain­
tiffs were put into effect with no relevant benefit to pupils 
or teachers alike.

It is, therefore, upon consideration, hereby
Ordered:

1. Insofar as it is not inconsistent with the specific 
requirements of this order the decree of this Court dated 
April 10, 1967 and filed April 19, 1967, remains in full 
force and effect.

2. The defendant Board of Public Instruction of Bay 
County, Florida, and the defendant Superintendent of Pub­
lic Instruction of Bay County, Florida, he and they are 
hereby directed as follows:

(1) That special attention shall be given to the four 
schools found to be all or predominantly Negro, namely 
Patterson Elementary School, Shawr Elementary School, 
Harris Elementary School, and Rosenwald Junior High 
School, in an effort to attract white students under freedom 
of choice to choose one of said schools, including but not 
limiting its action as follows:

(a) Upon application the Board shall allow any Negro 
student in these four schools to transfer to any other school 
in the county during the school year 1969-70 or subsequent 
years conditioned only on space being available in the school 
requested or unless strong and compelling reasons appear 
to deny said request.

(b) Upon application the Board shall allow at any time 
during the 1969-70 school year or subsequent school years 
the transfer into any of these four schools by any white



110a

Order

student conditioned only on space being available or unless 
strong and compelling reasons appear to deny said request.

(c) The Board shall establish such programs in these 
four schools to make them more attractive for students of 
all races. These programs shall include but not be limited 
to remedial reading programs, the use of para-professional 
assistants to teachers in each of the four schools, up-grading 
of the library facilities, including films and laboratory 
equipment.

(d) The Board is directed to make substantial increase 
in the desegregation of the faculty in each of the above 
four schools. The Board shall attempt to procure said 
desegregation voluntarily but should that fail involuntary 
assignments shall be made. The Board shall have a mini­
mum of one-third and no more than one-half of the faculty 
in each of the said four schools of a different race than 
predominates in the school body in each of the said four 
schools.

(e) The Board shall schedule athletic events between all 
athletic teams represented by the above-named predomi­
nantly Negro schools and all predominantly white schools 
throughout the county 1969 and subsequent years.

3. For long range planning the Board is directed that 
new school sites shall be selected in geographic locations 
where the likelihood of racial integration would be the 
normal result in the neighborhood surrounding the site. 4

4. No substantial additions may be made to the physical 
plants of Shaw Elementary School, Harris Elementary 
School, Patterson Elementary School, and Rosenwald Ju­
nior High School while the same are all Negro or nearly 
all Negro in the composition of their respective student



111a

Order

bodies. The Board shall, however, keep these physical 
plants in repair and minor renovations are not prohibited 
to existing facilities where needed for a proper educational 
program in said schools.

5. The Board is directed to work toward the establish­
ment of school zones in the county so as to accomplish a 
student body composition of approximately 20% Negroes 
in all of the schools of Bay County, with the exception of 
rural outlying communities where there are either no Ne­
groes or very few Negroes, or no whites or very few whites, 
in residence there.

6. The choice period as set forth by the decree of this 
Court filed April 19, 1967 is hereby amended to provide 
that freedom of choice period shall begin on April 14, 1969 
and end on May 16, 1969.

7. The defendant Board is hereby authorized to reassign 
any and all students who have previously chosen to attend 
a school where their race is in a minority to the same school, 
or where appropriate by grade advancement or for other 
compelling reasons, to another school where their race is 
in a minority. The only exception to this shall be for good 
and compelling reasons.

8. This order is effective as of this date for the opera­
tion of the school year 1969-70. 9

9. The Court retains jurisdiction of this cause for the 
entry of such further orders as may be advisable.

D one and Ordered in Chambers at Tallahassee this 3rd 
day of April 1969.

G. H arrold Carswell 
Chief Judge



112a

APPENDIX 11 

Order
(Filed March 4, 1969)

I n  the U nited States D istrict Court 

F or the N orthern D istrict of F lorida 

Gainesville D ivision 

Gainesville Civil A ction N o. 367

L avon W right, a minor, by R everend T. A. W right, 
her father and next friend, et al.,

Plaintiffs,
vs.

B oard of P ublic I nstruction of A lachua County, 
F lorida, as public body corporate, et al.,

Defendants.

The Court has concluded that there was no need what­
soever for an evidentiary hearing for consideration of de­
fendants’ proposed plan for school year 1969-70. Every 
conceivable scrap of factual data about the operation of 
the schools under the defendants’ jurisdiction has been 
placed upon the record, including a detailed so-called “ dot 
map” showing the residences of school children and the 
location of the schools. In addition, the record is replete 
with statistics which show precisely the racial composition 
of each school with respect to pupils, teachers and admin­
istrative personnel. There are simply no more relevant 
facts to be obtained. Every request for information and



113a

Order

data by either party has been buttressed by an order of 
the Court and has been complied with.

At hearing on this motion, counsel suggested that evi­
dence might be presented by experts to advise the Court 
what, in their opinion, would be the best solution to the 
various problems. By denying this motion for evidentiary 
hearing, counsel is not precluded from filing with the Court 
any suggestions supported by scholars or experts in any 
field and the same will be fully considered. This may be 
made part of counsel’s brief if it is so desired.

In the final analysis, however, the posture of this litiga­
tion for this year simply calls for a judicial decision which 
must be made by the Court upon the facts now thoroughly 
and fully developed.

Moreover, there is a time factor involved here. This 
school system is operating under a Jefferson-type decree 
which went into effect September 1967. Further protracted 
delays could only lead to the waste of public funds for 
educational purposes in the necessary planning for the 
opening of the schools in September 1969, together with 
attendant utter confusion for thousands of school children, 
faculty, and those charged with the administration of the 
public schools. Realizing this, this Court in January 1969 
directed that all basic data needed by either party be made 
part of the record as soon as practicable. A  schedule was 
established looking first to a hearing on April 10. Upon 
reconsideration, the Court determined that this schedule 
was too slow and was accelerated to the point that all the 
factual data was required to be filed much earlier. Under 
the direction of the Court the defendants filed their plan 
under the accelerated schedule. Counsel for plaintiffs have 
made oral motion for an opportunity to file further brief



114a

Order

or comment with respect to the proposed plan heard and 
considered this date and this is granted under a schedule 
whereby all briefs, by both plaintiffs and defendants, will 
be filed by March 18, 1969.

Done and Ordered in Chambers at Tallahassee this 4th 
day of March 1969.

/ s /  G. H arrold Carswell 
Chief Judge



115a

Order
(Filed April 3, 1969)

After full development of all pertinent facts concerning 
the operation of the public schools under the jurisdiction 
of the defendant Board of Public Instruction of Alachua 
County, Florida, and after several hearings with counsel 
for all the parties being present and heard, the Court finds 
that the factual data on this record fully supports the 
Court’s conclusion that the plan for the operation of the 
public school system of Alachua County under the juris­
diction of this defendant as filed with this Court on Feb­
ruary 28, 1969, should be approved.

The Court finds that the freedom of choice plan under 
which this system has operated since September 1967 has 
worked effectively in all but a very few instances. It is 
apparent that the freedom of choice plan has not worked 
effectively, or rather not at all, in three elementary schools, 
i.e., Duval, Williams, and A. Quinn Jones. The Court con­
clude that the establishment of arbitrary zone lines at this 
point, however, would definitely result in substantially less 
integration in the system then is now the case and even 
more importantly, this Board, through its plan filed Feb­
ruary 28, 1969, has effectively come forward with concrete 
proposals which will eliminate the last vestiges of segrega­
tion throughout the entire system. The Court notes with 
particular emphasis that the county system is being divided 
into four broad zones and that as soon as buildings are 
completed, all now funded and some under construction, 
the plan will be fully effective and operative, and no later 
than 1971.

Due to the fortuitous geographical distribution of the 
races in Alachua County, Florida, and the foresight of the 
Board in good faith compliance with the Constitutional 
mandate upon it segregation will be eliminated if this plan 
is carried out. There simply will be no black or white 
schools within the ambit of the Board’s jurisdiction, just



116a

Order

schools. While percentages of racial population of the 
schools, either students or faculty, is not arbitrarily re­
quired, it is clear that the school children and teachers 
will bear a fair and reasonable relationship to the popula­
tion as a whole of the entire county in each school building. 
It is difficult to conceive of a plan which would more nearly 
meet Constitutional requirements in this regard. There is 
no basis whatsoever for suspecting that the Board will not 
fully comply with the provisions of the plan here approved. 
On the contrary the Court specifically finds that this Board 
has operated in all good faith in an effort to meet fully 
the requirements of the law. It is, therefore, upon considera­
tion, hereby

Ordered:

1. The plan proposed for the operation of the schools 
under the jurisdiction of the defendant, the Board of Public 
Instruction of Alachua County, Florida, he and it is hereby 
approved and adopted by this Court and by this reference 
made a part of this order.

3. Insofar as it is not inconsistent with the specific re­
quirements of this order the Decree of this Court dated 
and filed April 25, 1967 remains in full force and effect.

4. The Court retains jurisdiction of this cause for the 
entry of such further orders as may be necessary or 
advisable.

D one and Ordered in Chambers at Tallahassee this 3rd 
day of April 1969.

/ s /  C. H arrold Carswell 
Chief Judge



117a

APPENDIX 12

Opinion in Court of Appeals Dated December 1, 1969

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 6 2 8 5

DEREK JEROME SINGLETON, ET AL,

versus
Appellants,

JACKSON MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL,

Appellees.

Appeal from the United States District Court 
for the Southern District of Mississippi

N o .  2 8 2 6  1

CLARENCE ANTHONY, ET AL,

versus
Appellants,

MARSHALL COUNTY BOARD OF EDUCATION,
Appellee.

Appeal from the United States District Court 
for the Northern District of Mississippi



118a

Opinion in Court of Appeals Dated December 1, 1969

N o . 2 8 0 4 5

UNITED STATES OF AMERICA,
Appellant,

versus

CHARLES F. MATHEWS, ET AL,
Appellees.

Appeal from the United States District Court 
for the Eastern District of Texas

N o . 2 8 3 5 0

LINDA STOUT, by her father and next friend 
BLEVIN STOUT, ET AL,

Plaintiff s-Appellants,
UNITED STATES OF AMERICA,

Plaintiff-Intervenor,
versus

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL,
Defendants-Appellees,

DORIS ELAINE BROWN, ET AL,
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

versus

THE BOARD OF EDUCATION OF THE CITY 
OF BESSEMER, ET AL,

Defendants-Appellees.



119a

Appeal from the United States District Court 
for the Northern District of Alabama

Opinion in Court of Appeals Dated December 1, 1969

N o . 2 8 3 4 9

BIRDIE MAE DAVIS, ET AL,
Plaintiff*-Appellant*,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

versus

BOARD OF SCHOOL COMMISSIONERS OF 
MOBILE COUNTY, ET AL,

Defendants-Appellee*, 
TWILA FRAZIER, ET AL,

Defendants-Intervenor-Appellee*.

Appeal from the United States District Court 
for the Southern District of Alabama

N o . 2 8 3 4 0

ROBERT CARTER, ET AL,
Plaintiff s-Appellants,

versus

WEST FELICIANA PARISH SCHOOL BOARD, ET AL,
Defendants-Appellees,

SHARON LYNNE GEORGE, ET AL,
Plaintiffs-Appellants,

versus

C. WALTER DAVIS, PRESIDENT, EAST FELICIANA 
PARISH SCHOOL BOARD, ET AL,

Defendants-Appellee*.



120a

Opinion in Court of Appeals Dated December 1, 1969

Appeal from the United States District Court 
for the Eastern District of Louisiana

N o . 2 8 3 4 2

IRMA J. SMITH, ET AL,
Plaintiffs-Appellants,

versus

CONCORDIA PARISH SCHOOL BOARD, ET AL,
Defendants-Appellees.

Appeal from the United States District Court 
for the Western District of Louisiana

N o . 2 8 3 6 1

HEMON HARRIS, ET AL, 
Plaintiffs-Appellants-Cross Appellees,

versus

ST. JOHN THE BAPTIST PARISH SCHOOL BOARD,
ET AL,

Defendants-Appellees-Cross Appellants.

Appeal from the United States District Court 
for the Eastern District of Louisiana



121a

Opinion in Court of Appeals Dated December 1, 1969

N o . 2 8 4 0 9

NEELY BENNETT, ET AL,

versus
Appellants,

R. E. EVANS, ET AL,
Appellees,

ALLENE PATRICIA ANN BENNETT, a minor, by 
R. B. BENNETT, her father and next friend,

Appellants,
versus

BURKE COUNTY BOARD OF EDUCATION, ET AL,
Appellees.

Appeal from the United States District Court 
for the Southern District of Georgia

N o . 2 8 4 0 7

SHIRLEY BIVINS, ET AL,
Plaintiffs-Appellants,

versus

BIBB COUNTY BOARD OF EDUCATION AND  
ORPHANAGE FOR BIBB COUNTY, ET AL,

Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia



122a

Opinion in Court of Appeals Dated December 1, 1969

N o .  2 8 4 0 8

OSCAR C. THOMIE, JR., ET AL,
Plaintiffs-Appellants,

versus

HOUSTON COUNTY BOARD OF EDUCATION,
Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia

N o .  2 7  8 6 3

JEAN CAROLYN YOUNGBLOOD, ET AL,
Plaintiff s-Appellants, 

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

versus

THE BOARD OF PUBLIC INSTRUCTION 
OF BAY COUNTY, FLORIDA, ET AL,

Defendants-Appellees.

Appeal from the United States District Court 
for the Northern District of Florida



123a

Opinion in Court of Appeals Dated December 1 ,  1969

N o . 2 . 7 9 8 3

LA VON WRIGHT, ET AL,
Plaintiff s-Appellants,

versus

THE BOARD OF PUBLIC INSTRUCTION OF 
ALACHUA COUNTY, FLORIDA, ET AL,

Defendants-Appellees.

Appeal from the United States District Court 
for the Northern District of Florida

(D ecem ber 1,1969)

Before BROWN, Chief Judge, WISDOM, GEWIN, BELL, 
THORNBERRY, COLEMAN, GOLDBERG, AINS­
WORTH, GODBOLD, DYER, SIMPSON, MORGAN, 
CARSWELL, and CLARK, Circuit Judges, EN BANC.*

PER CURIAM: These appeals, all involving school
desegregation orders, are consolidated for opinion pur­
poses. They involve, in the main, com m on questions of 
law and fact. They were heard en banc on successive 
days.

‘ Judge Wisdom did not participate in Nos. 26285, 28261, 28045, 
28350, 28349 and 28361. Judge Ainsworth did not participate in 
No. 28342. Judge Carswell did not participate in Nos. 27863 and 
27983. Judge Clark did not participate in No. 26285.



124a

Following our determination to consider these cases 
en banc, the Supreme Court handed down its decision 
in Alexander v. Holmes County Board of Education, 
1969,____ U.S______, 90 S.Ct_____ , 24 L.Ed.2d 19. That de­
cision supervened all existing authority to the contrary. 
It sent the doctrine of deliberate speed to its final rest­
ing place. 24 L.Ed.2d at p. 21.

The rule of the case is to be found in the direction to 
this court to issue its order “ effective immediately de­
claring that each of the school districts . . . m ay no 
longer operate a dual school system based on race or 
color, and directing that they begin immediately to 
operate as unitary school systems within which no per­
son is to be effectively excluded from  any school be­
cause of race or color.” We effectuated this rule and 
order in United States v. Hinds County School Board,
5 Cir., 1969,____ F.2d____ , [Nos. 28,030 and 28,042, slip
opinion dated Nov. 7, 1969]. It must likewise be effectu­
ated in these and all other school cases now being or 
which are to be considered in this or the district courts 
o f this circuit.

The tenor of the decision in Alexander v. Holmes 
County is to shift the burden from  the standpoint of 
tim e for converting to unitary school systems. The 
shift is from  a status of litigation to one of unitary oper­
ation pending litigation. The new modus operandi is to 
require immediate operation as unitary systems. Sug­
gested modifications to unitary plans are not to delay 
implementation. Hearings on requested changes in uni­
tary operating plans m ay be in order but no delay in 
conversion m ay ensue because of the need for m odifi­
cation or hearing.

Opinion in Court of Appeals Dated December 1, 1969



125a

In Alexander v. Holmes County, the court had unitary 
plans available for each of the school districts. In ad­
dition, this court, on remand, gave each district a limi­
ted time within which to offer its own plan. It was ap­
parent there, as it is here, that converting to a unitary 
system involved basically the m erger of faculty and 
staff, students, transportation, services, athletic and 
other extra-curricular school activities. We required 
that the conversion to unitary systems in those districts 
take place not later than Decem ber 31, 1969. It was the 
earliest feasible date in the view of the court. United 
States v. Hinds County, supra. In three of the systems 
there (Hinds County, Holmes County and Meridian), 
because of particular logistical difficulties, the Office of 
Education (HEW) had recom m ended two step plans. 
The result was, and the court ordered, that the first 
step be implemented not later than Decem ber 31, 1969 
and the other beginning with the fall 1970 school term.

I

Because of Alexander v. Holmes County, each of the 
cases here, as will be later discussed, must be con­
sidered anew, either in whole or in part, by the district 
courts. It happens that there are extant unitary plans 
for some of the school districts here, either Office of 
Education or school board originated. Some are operat­
ing under freedom  of choice plans. In no one of the dis­
tricts has a plan been submitted in light of the prece­
dent of Alexander v. Holmes County. That case resolves 
all questions except as to mechanics. The school dis­
tricts here m ay no longer operate dual systems and 
must begin im m ediately to operate as unitary systems. 
The focus of the m echanics question is on the accom -

Opinion in Court of Appeals Dated December 1, 1969



126a

plishment of the im m ediacy requirement laid down in 
Alexander v. Holmes County.

Despite the absence of plans, it will be possible to 
m erge faculties and staff, transportation, services, ath­
letics and other extra-curricular activities during the 
present school term. It will be difficult to arrange the 
m erger of student bodies into unitary systems prior to 
the fall 1970 term in the absence of m erger plans. The 
court has concluded that two-step plans are to be im ­
plemented. One step must be accom plished not later 
than February 1,1970 and it will include all steps neces­
sary to conversion to a unitary system save the m er­
ger of student bodies into unitary systems. The student 
body m erger will constitute the second step and must 
be accom plished not later than the beginning of the 
fall term 1970.’ The district courts, in the respective 
cases here, are directed to so order and to give first 
priority to effectuating this requirement.

Opinion in Court of Appeals Dated December 1 ,  1969

To this end, the district courts are directed to re­
quire the respective school districts, appellees herein, 
to request the Office of Education (HEW ) to prepare

•Many faculty and staff members will be transferred under step one. 
It will be necessary for final grades to be entered and for other 
records to be completed, prior to the transfers, by the trans­
ferring faculty members and administrators tor the partial 
school year involved. The interim period prior to February 1, 
1970 is allowed for this purpose.

The interim period prior to the start of the fall 1970 school 
term is allowed for arranging the student transfers. Many stu­
dents must transfer. Buildings will be put to new use. In some 
instances it may be necessary to transfer equipment, supplies 
ot libraries. School bus routes must be reconstituted. The period 
allowed is at least adequate for the orderly accomplishment 
of the task.



127a

plans for the m erger of the student bodies into unitary 
systems. These plans shall be filed with the district 
courts not later than January 6, 1970 together with such 
additional plan or modification of the Office of Educa­
tion plan as the school district m ay wish to offer. The 
district court shall enter its final order not later than 
February 1, 1970 requiring and setting out the details 
of a plan designed to accom plish a unitary system of 
pupil attendance with the start of the fall 1970 school 
term. Such order may include a plan designed by the 
district court in the absence of the submission of an 
otherwise satisfactory plan. A copy of such plan as is 
approved shall be filed by the clerk of the district court 
with the clerk of this court.2

The following provisions are being required as step 
one in the conversion process. The district courts are 
directed to make them a part of the orders to be entered 
and to also give first priority to implementation.

The respective school districts, appellees 
herein, must take the following action not later 
than February 1,1970:

Opinion in Court of Appeals Dated December 1 ,  1969

2In formulating plans, nothing herein is intended to prevent the 
respective school districts or the district court from seeking the 
counsel and assistance of state departments of education, uni­
versity schools of education or of others having expertise in the 
field of education.

It is also to be noted that many problems of a local nature 
are likely to arise in converting to and maintaining unitary 
systems. These problems may best be resolved on the community 
level. The district courts should suggest the advisability of bi- 
racial advisory committees to school boards in those districts 
having no Negro school board members.



128a

DESEGREGATION OF FACULTY AND 
OTHER STAFF

The School Board shall announce and imple­
ment the following policies:

1. E ffective not later than February 1, 1970, 
the principals, teachers, teacher-aides and 
other staff who work directly with children at 
a school shall be so assigned that in no case 
will the racial composition of a staff indicate 
that a school is intended for Negro students or 
white students. For the remainder of the 1969-70 
school year the district shall assign the staff 
described above so that the ratio of Negro to 
white teachers in each school, and the ratio of 
other staff in each, are substantially the same 
as each such ratio is to the teachers and other 
staff, respectively, in the entire school system.

The school district shall, to the extent neces­
sary to carry out this desegregation plan, direct 
m em bers of its staff as a condition of continued 
employment to accept new assignments.

2. Staff m em bers who work directly with chil­
dren, and professional staff who work on the ad­
ministrative level will be hired, assigned, pro­
moted, paid, demoted, dismissed, and other­
wise treated without regard to race, color, or 
national origin. 3

3. If there is to be a reduction in the number 
of principals, teachers, teacher-aides, or other

Opinion in Court of Appeals Dated December 1 , 1969



129a

professional staff employed by the school dis­
trict which will result in a dismissal or demo­
tion of any such staff m embers, the staff m em ­
ber to be dismissed or demoted must be se­
lected on the basis of objective and reasonable 
non-discriminatory standards from  among all 
the staff of the school district. In addition if 
there is any such dismissal or demotion, no 
staff vacancy m ay be filled through recruit­
ment of a person of a race, color, or national 
origin different from  that of the individual dis­
missed or demoted, until each displaced staff 
m em ber who is qualified has had an oppor­
tunity to fill the vacancy and has failed to ac­
cept an offer to do so.

Prior to such a reduction, the school board 
will develop or require the development of non- 
racial objective criteria to be used in selecting 
the staff m em ber who is to be dismissed or de­
moted. These criteria shall be available for 
public inspection and shall be retained by the 
school district. The school district also shall 
record and preserve the evaluation of staff 
m em bers under the criteria. Such evaluation 
shall be m ade available upon request to the 
dismissed or demoted employee.

Demotion as used above includes any re­
assignment (1) under which the staff m em ber 
receives less pay or has less responsibility than 
under the assignment he held previously, (2) 
which requires a lesser degree of skill than did 
the assignment he held previously, or (3) under

Opinion in Court of Appeals Dated December 1 , 1969



130a

which the staff m em ber is asked to teach a 
subject or grade other than one for which he is 
certified or for which he has had substantial 
experience within a reasonably current period. 
In general and depending upon the subject 
matter involved, five years is such a reason­
able period.

MAJORITY TO MINORITY 
TRANSFER POLICY

The school district shall perm it a student at­
tending a school in which his race is in the m a­
jority to choose to attend another school, where 
space is available, and where his race is in the 
minority.

Opinion in Court of Appeals Dated December 1, 1969

TRANSPORTATION

The transportation system, in those school 
districts having transportation systems, shall 
be com pletely re-examined regularly by the 
superintendent, his staff, and the school board. 
Bus routes and the assignment of students to 
buses will be designed to insure the transporta­
tion of all eligible pupils on a non-segregated 
and otherwise non-discriminatory basis.

SCHOOL CONSTRUCTION AND 
SITE SELECTION

All school construction, school consolidation, 
and site selection (including the location of any 
tem porary classroom s) in the system shall be



131a

done in a manner which will prevent the re­
currence of the dual school structure once this 
desegregation plan is implemented.

ATTENDANCE OUTSIDE SYSTEM 
OF RESIDENCE

If the school district grants transfers to stu­
dents living in the district for their attendance 
at public schools outside the district, or if it 
permits transfers into the district of students 
who live outside the district, it shall do so on a 
non-discriminatory basis, except that it shall 
not consent to transfers where the cumulative 
effect will reduce desegregation in either dis­
trict or reinforce the dual school system.

See United States v. Hinds County, supra, decided N o­
vem ber 6, 1969. The orders there em brace these same 
requirements.

Opinion in Court of Appeals Dated December 1, 1969

II

In addition to the foregoing requirements of general 
applicability, the order of the court which is peculiar 
to each of the specific cases being considered is as fol­
lows:

NO. 26285 — JACKSON, MISSISSIPPI

This is a freedom  of choice system. The issue pre­
sented has to do with school building construction. We 
enjoined the proposed construction pending appeal.



132a

A federal appellate court is bound to consider any 
change, either in fact or in law, which has supervened 
since the judgment was entered. Bell v. State of Mary­
land, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964). We 
therefore reverse and remand for com pliance with the 
requirements of Alexander v. Holmes County and the 
other provisions and conditions of this order. Our order 
enjoining the proposed construction pending appeal is 
continued in effect until such time as the district court 
has approved a plan for conversion to a unitary school 
system.

NO. 28261 — MARSHALL COUNTY AND HOLLY 
SPRINGS, MISSISSIPPI

This suit seeks to desegregate two school districts, 
Marshall County and Holly Springs, Mississippi. The 
district court approved plans which would assign stu­
dents to schools on the basis of achievement test scores. 
We pretermit a discussion of the validity per se of a 
plan based on testing except to hold that testing cannot 
be employed in any event until unitary school systems 
have been established.

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 28045 — UNITED STATES V. MATTHEWS 
(LONGVIEW, TEXAS)

This system is operating under a plan approved by 
the district court which appears to be realistic and 
workable except that it is to be implemented over a 
period of five years. This is inadequate.

Opinion in Court of Appeals Dated December 1, 1969



133a

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 28350 — JEFFERSON COUNTY AND 
BESSEMER, ALABAMA

These consolidated cases involve the school boards 
of Jefferson County and the City of Bessemer, Alabama. 
Prior plans for desegregation of the two systems were 
disapproved by this court on June 26,1969, United States 
of America v. Jefferson County Board of Education,
et a l ,____F .2d _____ (5th Cir. 1969) [No. 27444, June 26,
1969], at which time we reversed and remanded the 
case with specific directions. The record does not re­
flect any substantial change in the two systems since 
this earlier opinion, and it is therefore unnecessary to 
restate the facts. The plans approved by the district 
court and now under review in this court do not com ply 
with the standards required in Alexander v. Holmes 
County.

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 28349 — MOBILE COUNTY, ALABAMA

On June 3, 1969, we held that the attendance zone and 
freedom  of choice method of student assignment used 
by the Mobile School Commissioners was constitution­
ally unacceptable. Pursuant to our mandate the dis­
trict court requested the Office of Education (HEW) 
to collaborate with the board in the preparation of a

Opinion in Court of Appeals Dated December 1, 1969



134a

plan to fully desegregate all public schools in Mobile 
County. Having failed to reach agreement with the 
board, the Office of Education filed its plan which the 
district court on August 1, 1969, adopted with slight 
modification (but which did not reduce the amount of 
desegregation which will result). The court’s order 
directs the board for the 1969 - 1970 school year to close 
two rural schools, establish attendance zones for the 25 
other rural schools, make assignments based on those 
zones, restructure the Hillsdale School, assign all stu­
dents in the western portion of the metropolitan area 
according to geographic attendance zones designed to 
desegregate all the schools in that part of the system, 
and reassign approximately 1,000 teachers and staff. 
Thus the district court’s order of August 1, now before 
us on appeal by the plaintiffs, will fully desegregate all 
of Mobile County schools except the schools in the 
eastern portion of metropolitan Mobile where it was 
proposed by the plan to transport students to the 
western part of the city. The district court was not sat­
isfied with this latter provision and required the board 
after further study and collaboration with HEW of­
ficials, to submit by Decem ber 1, 1969, a plan for the 
desegregation of the schools in the eastern part of the 
metropolitan area.

The school board urges reversal of the district court’s 
order dealing with the grade organization of the Hills­
dale School and the faculty provisions.

We affirm  the order of the district court with direc­
tions to desegregate the eastern part of the metropoli­
tan area of the Mobile County School System and to 
otherwise create a unitary system in com pliance with

Opinion in Court of Appeals Dated December 1, 1969



135a

the requirements of Holmes County and in accordance 
with the other provisions and conditions of this order.

NO. 28340 — EAST AND WEST FELICIANA 
PARISHES, LOUISIANA

East Feliciana is operating under a plan which closed 
one rural Negro elementary school and zoned the four 
remaining rural elementary schools. All elementary 
students not encompassed in the rural zones, and all 
high school students, continue to have free choice. Ma­
jority to minority transfer is allowed on a space-avail­
able basis prior to beginning of the school year.

The plan has not produced a unitary system. We re­
verse and remand for com pliance with the require­
ments of Alexander v. Holmes County and the other 
provisions and conditions of this order.

West Feliciana is operating under a plan approved 
for 1969-70 which zones the two rural elementary 
schools. These schools enroll approximately 15 per cent 
of the students of the district. The plan retains “ open 
enrollment” (a euphemism for free choice) for the 
other schools. The plan asserts that race should not be 
a criterion for employment or assignment o f person­
nel. However, the board promises to seek voluntary 
transfers and if substantial com pliance cannot be ob­
tained by this method it proposes to adopt other means 
to accom plish substantial results.

This plan has not produced a unitary system. We re­
verse and remand for com pliance with the require­

Opinion in Court of Appeals Dated December 1, 1969



136a

ments of Alexander v. Holmes County and the other 
provisions and conditions of this order.

NO. 28342 — CONCORDIA PARISH, LOUISIANA

The plan in effect for desegregating this school dis­
trict has not produced a unitary system. It involves 
zoning, pairing, freedom  of choice and som e separation 
by sex. We pretermit the question posed as to sex 
separation since it m ay not arise under such plan as 
m ay be approved for a unitary system.

This plan has not produced a unitary system. We re­
verse and remand for com pliance with the require­
ments of Alexander v. Holmes County and the other 
provisions and conditions of this order.

NO. 28361 — ST. JOHN THE BAPTIST 
PARISH, LOUISIANA

This school district has been operating under a free­
dom of choice plan. The parish is divided into two sec­
tions by the Mississippi River and no bridge is located 
in the parish. The schools are situated near the east 
and west banks of the river.

A  realistic start has been m ade in converting the 
east bank schools to a unitary system. It, however, is 
less than adequate. As to the west bank schools, the 
present enrollment is 1626 Negro and 156 whites. The 
whites, under freedom  of choice, all attend the same 
school, one of five schools on the west bank. The 156 
whites are in a school with 406 Negroes. We affirm  as to

Opinion in Court of Appeals Dated December 1, 1969



137a

this p art o f the plan . W e  do not b e lieve  it n e c e ssa ry  to  
divide this sm a ll n u m b er of w hites, a lread y  in a de­
se greg a te d  m in ority  position, a m o n g st th e five  schools.

We reverse and remand for com pliance with the 
requirements of Alexander v. Holmes County and the 
other provisions and conditions o f this order.

NO. 28409 — BURKE COUNTY, GEORGIA

The interim plan in operation here, developed by 
the Office of Education (HEW ), has not produced a uni­
tary system. The district court ordered preparation of 
a final plan for use in 1970-71. This delay is no longer 
permissible.

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the oth­
er provisions and conditions of this order.

NO. 28407 — BIBB COUNTY, GEORGIA

This is a freedom  of choice system on which a special 
course transfer provision has been superimposed. 
Special courses offered in all-Negro schools are being 
attended by whites in substantial numbers. This has 
resulted in some attendance on a part time basis by 
whites in every all-Negro school. Some three hundred 
whites are on the waiting list for one of the special 
courses, remedial reading. The racial cross-over by 
faculty in the system is 27 per cent.

Opinion in Court of Appeals Dated December 1, 1969



138a

The order appealed from  continues the existing plain 
with certain modifications. It continues and expands 
the elective course program s in all-Negro schools in 
an effort to encourage voluntary integration. The plan 
calls for a limitation of freedom  of choice with respect 
to four schools about to becom e resegregated. Under 
the present plan the school board is empowered to limit 
Negro enrollment to 40 per cent at these schools to 
avoid resegregation. Earlier a panel of this court af­
firm ed the district court’s denial of an injunction a- 
gainst the quota provision of this plan pending hearing 
en banc. The prayer for injunction against continuation 
of the quota provision is now denied and the provision 
m ay be retained by the district court pending further 
consideration as a part of carrying out the require­
ments o f this order.

It is sufficient to say that the district court here has 
em ployed bold and imaginative innovations in its plan 
which have already resulted in substantial desegrega­
tion which approaches a unitary system. We reverse 
and remand for com pliance with the requirements o f 
Alexander v. Holmes County and the other provisions 
and conditions of this order.

NO. 28408 —  HOUSTON COUNTY, GEORGIA

This system is operating under a freedom  of choice 
plan. Appellants seek zoning and pairing. There is also 
an issue as to restricting transfers by Negroes to for­
m erly all-white schools. Cf. No. 28407 —  Bibb County, 
supra. In addition, appellants object to the conversion 
of an all-Negro school into an integrated adult educa­

Opinion in Court of Appeals Dated December 1, 1969



139a

tion center. As in the Bibb County case, these are all 
questions for consideration on remand within the scope 
of such unitary plan as m ay be approved.

W e reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 27863 — BAY COUNTY, FLORIDA

This system is operating on a freedom  of choice plan. 
The plan has produced im pressive results but they fall 
short of establishing a unitary school system.

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 27983 — ALACHUA COUNTY, FLORIDA

This is another Florida school district where im ­
pressive progress has been made under a freedom  of 
choice plan. The plan has been implemented by zoning 
in the elementary schools in Gainesville (the principal 
city in the system ) for the current school year. The 
results to date and the building plan in progress should 
facilitate the conversion to a unitary system.

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

Opinion in Court o f Appeals Dated December 1, 1969



140a

III

In the event of an appeal or appeals to this court 
from  an order entered as aforesaid in the district 
courts, such appeal shall be on the original record and 
the parties are encouraged to appeal on an agreed 
statement as is provided for in Rule 10(d), Federal 
Rules of Appellate Procedure (F R A P ). Pursuant to 
Rule 2, FRAP, the provisions of Rule 4(a) as to the time 
for filing notice of appeal are suspended and it is 
ordered that any notice of appeal be filed within fifteen 
days of the date of entry of the order appealed from  
and notices of cross-appeal within five days thereafter. 
The provisions o f Rule 11 are suspended and it is order­
ed that the record be transmitted to this court within 
fifteen days after filing of the notice of appeal. The 
provisions of Rule 31 are suspended to the extent that 
the brief of the appellant shall be filed within fifteen 
days after the date on which the record is filed and the 
brief of the appellee shall be filed within ten days after 
the date on which the brief of appellant is filed. No 
reply brief shall be filed except upon order of the court. 
The times set herein m ay be enlarged by the court up­
on  good cause shown.

The mandate in each of the within matters shall 
issue forthwith. No stay will be granted pending peti­
tion for rehearing or application for certiorari.

REVERSED as to all save Mobile and St. John The 
Baptist Parish; AFFIR M E D  as to Mobile with direc­
tion; AFFIR M E D  in part and REVERSED in part as to 
S*t. John The Baptist Parish; REM ANDED to the dis­
trict courts for further proceedings consistent herewith.
Adm. Office, U.S. Courts— Scofields’ Quality Printers, Inc., N. O., La.

Opinion in Court of Appeals Dated December 1, 1969



141a

APPENDIX 13

Judgment of the Court of Appeals

I n  t h e

U nited States Court of A ppeals 

F or the F ifth  Circuit 

October T erm, 1969 

No. 28407

D.C. Docket No. CA 1926

S hirley B ivins, et al.,

Plaintiffs-Appellants,
versus

B ibb County B oard of E ducation and Orphanage 
F or B ibb County, et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF GEORGIA

Before Brown, Chief Judge, W isdom, Gew in , B ell, T horn- 
berry, Coleman, Goldberg, A insworth, Godbold, 
Dyer, Simpson, M organ, Carswell, and Clark, 
Circuit Judges, E n  B anc.*

* Judge Wisdom did not participate in Nos. 26285, 28261, 28045, 
28350, 28349 and 28361. Judge Ainsworth did not participate in 
Nos. 28342. Judge Carswell did not participate in Nos. 27863 and 
27983. Judge Clark did not participate in No. 26285.



142a

This cause came on to be heard en banc on the transcript 
of the record from the United States District Court for the 
Middle District of Georgia, and was argued by counsel;

O n  Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment appealed from 
in this cause be, and the same is hereby reversed and that 
this cause be, and the same is hereby remanded to the said 
District Court for compliance -with the requirements of 
Alexander v. Holmes County Board of Education, 1969,
------U .S .------- , 90 S .Ct.------ , 24 L.Ed.2d 19, and the other
provisions and conditions of the order of this Court this 
day entered.

It is further ordered that appellees, School Board, pay 
the costs on appeal in this Court.

Judgment of the Court of Appeals

December 1, 1969

Issued as Mandate: December 1, 1969

N O T E : Judgments identical to the above were entered in the fol­
lowing cases: Bennett v. Evans (and Bennett v. Burke 
County Board of Education) (S.D. G a .); Thomie v. Hous­
ton County Board of Education (M.D. G a .); Youngblood 
v. The Board of Public Instruction of Bay County, Fla. 
(N.D. F la ) ; Anthony v. Marshall County Board of Edu­
cation (N.D. M iss.); Wright v. Board of Public Instruc­
tion of Alachua County, Fla. (N.D. F la .); Stout v. Jeffer­
son County Board of Education and Brown v. Board of 
Education of the City of Bessemer (N.D. Ala.).



143a

I n  the

U nited States Court of A ppeals 

F or the F ifth  Circuit 

October T erm, 1969 

No. 28349

D.C. Docket No. CA 3003-63

J u d g m e n t o f  th e  C o u rt o f  A p p e a ls

B irdie M ae Davis, et al.,

Plaintiffs- Appellants,

U nited States of A merica,

Plaintiff-Intervenor,
versus

B oard of S chool Commissioners of M obile County, et al.,

Defendants-Appellees,
and

T wila F razier, et al.,

Defendants-Intervenors-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA



144a

Before B rown, Chief Judge, W isdom, Gew in , B ell, T horn- 
berry, Coleman, Goldberg, A insworth, Godbold, 
Dyer, Simpson, M organ, Carswell, and Clark, 
Circuit Judges, E n  B anc.*

This cause came on to be heard en banc on the transcript 
of the record from the United States District Court for the 
Southern District of Alabama, and was argued by counsel;

O n Consideration W hereof, It is now here ordered and 
adjudged by this Court that the order of the District Court 
appealed from in this cause be, and the same is hereby 
affirmed with directions to desegregate the eastern part of 
the metropolitan area of the Mobile County School System 
and to otherwise create a unitary system in compliance with 
the requirements of Holmes County and in accordance with 
other provisions and conditions of the order of the Court 
this day rendered.

It is further ordered that appellee, School Board, pay 
the costs on appeal in this Court.

Judgment of the Court of Appeals

December 1, 1969

Issued as Mandate: December 1, 1969

* Judge Wisdom did not participate in Nos. 26285, 28261, 28045, 
28350, 28349 and 28361. Judge Ainsworth did not participate in 
Nos. 28342. Judge Carswell did not participate in Nos. 27863 and 
27983. Judge Clark did not participate in No. 26285.



145a

I n  the

U nited States Coubt of A ppeals 

F ob the F ifth  Cibcuit 

Octobeb T eem, 1969 

No. 26285

D.C. Docket No. CA 3379

J u d g m e n t o f  th e  C o u rt o f  A p p e a ls

Deeek Jebome Singleton, et al.,
Appellants,

versus

Jackson M unicipal Sepaeate S chool D isteict, et al.,

Appellees.

APPEAL FEOM THE UNITED STATES DISTEICT COUBT 

FOE THE SOUTHEBN DISTEICT OF MISSISSIPPI

Before B eown, Chief Judge, W isdom, Gew in , B ell, T hoen- 
beeey, Coleman, Goldbeeg, A inswoeth , Godbold, 
Dyee, Simpson, M oegan, Caeswell, and Claek, 
Circuit Judges, E n  B anc.*

This cause came on to be heard en banc on the transcript 
of the record from the United States District Court for the

* Judge Wisdom did not participate in Nos. 26285, 28261, 28045, 
28350, 28349 and 28361. Judge Ainsworth did not participate in 
Nos. 28342. Judge Carswell did not participate in Nos. 27863 and 
27983. Judge Clark did not participate in No. 26285.



146a

Southern District of Mississippi, and was argued by 
counsel;

On Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment appealed from in 
this cause be, and the same is hereby reversed and that this 
cause be, and the same is hereby remanded to the said 
District Court for compliance with the requirements of 
Alexander v. Holmes County Board of Education, 1969,

TT.S.------ , 90 S.Ct.------ , 24 L.Ed.2d 19, and the other
provisions and conditions of the order of this Court this 
day entered.

It is further ordered that the order of this Court enjoin­
ing the proposed construction pending appeal is continued 
in effect until such time as the District Court has approved 
a plan for conversion to a unitary school system.

It is further ordered that appellees, School Board, pay 
the costs on appeal in this Court.

Judgment of the Court of Appeals

December 1, 1969

Issued as Mandate: December 1, 1969



MEILEN PRESS INC. —  N. Y. C. 219