Quarles v. Oxford Municipal Separate School District Motion for Leave to File and Brief Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 
N0o 72-3534

ROBERT E. QUARLES, et al.,
Plaintiffs-Appellants,

vs.

OXFORD MUNICIPAL SEPARATE SCHOOL DISTRICT, et al.,
Defendants-Appellees.

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

MOTION FOR LEAVE TO FILE AND 
BRIEF OF N 0A 0A 0C 0P0 LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. AS 
AMICUS CURIAE IN SUPPORT OF 

SUGGESTION OF REHEARING EN BANC

JACK GREENBERG 
JAMES M 0 NABRIT, III 
NORMAN Jo CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae 
N.AoAoCoPo LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.



IN THE UNITED STATES COURT Or APPEALS

FOR THE FIFTH CIRCUIT 
NOo 72-3534

ROBERT Eo QUARLES, et al.f
Plaint if f s-Appe Hants,

vs o
OXFORD MUNICIPAL SEPARATE SCHOOL DISTRICT, et al„,

Def endants-Appellees„

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

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The N.A0A.C0P0 Legal Defense and Educational Fund, Inc0, 
by its undersigned counsel, respectfully prays, pursuant to 
Rule 29, F 0R 0A 0P0, that this Court grant it leave to file the 
appended brief as amicus curiae in support of the application 
of the plaintiffs-appellants herein for rehearing en banc in 
this matter,, The interest of the amicus is set out in the 
appended brief at pp0 l-30

Participation by the amicus is desirable because of the 
long involvement of the Legal Defense Fund in school desegre­
gation cases in this and other Circuits, and the perspective 
which its attorneys therefore bring to this case„



WHEREFORE, we respectfully pray that this Court grant
leave to file the attached brief as amicus curiae,,

Respectfully submitted,

NORMAN J„ CHACHKIN 
10 Columbus Circle 
New York, New York. 10019

Attorneys for Amicus Curiae 
NoAoAoCoPo LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC„

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Page

Interest of the Amicus Curiae ..................  1
REASONS WHY REHEARING EN BANC 
SHOULD BE GRANTED —

Introduction ..............................  ®
The Panel's Holding .    4
The Ruling of the Panel Penalizes 
Plaintiffs for their Interest in 
Education and their Financial
Sacrifices for I t ........................  5
The Result is Not Compelled
by Swann..................................  ®
This Court's Greenwood and Bessemer
Decisions Are Correct and Controlling . . .  7

r
An Effective Equity Decree
Requires Free Transportation ..............  15

Conclusion....................................

Table of Cases
Alexander v. Holmes County Bd. of Educ., 396

U.S. 19 (1969)............................  2
Brewer v. School Bd. of Norfolk, 456 F.2d 943

(4th Cir.), cert, denied, 406 U.S. 905 (1972) 2, 8, 15
Brown v. Board of Educ., 347 U.S. 483 (1954) . . 2
Brown v. Board of Educ. of Bessemer, 464 F.2d

382 (5th Cir.), cert, denied, 409 U.S. 981
(1972)....................................  2, 4n, 7, 8,

11, 12, 14

I N D E X

Clark v. Board of Educ. of Little Rock, 449 F.2d 
493 (8th Cir. 1971), cert, denied, 405 U.S. 
936 (1972) .............................. 16



Table of Cases (continued)
Page

Davis v. Board of School Comm'rs of Mobile,
402 U.S. 33 (1971)........................  6

Gilmore v. City of Montgomery, 473 F.2d 832 
(5th Cir.), cert, granted, 42 U.S.L.W.
3226 (1973) .......... .................... 17

Green v. County School Bd. of New Kent County,
391 U.S. 430 (1968) ......................  10n, 12n

Griffin v. County School Bd. of Prince Edward
County, 377 U.S. 218 (1964) ..............  7n

Hall v. St. Helena Parish School Bd., 417 F.2d 
801 (5th Cir.), cert, denied, 396 U.S. 904 
(1969)....................................  12

Harrington v. Colquitt County Bd. of Educ.,
460 F.2d 193 (5th Cir.), cert, denied,
409 U.S. 915 (1972) ......................  9n, lOn

Kelley v. Metropolitan County Bd. of Educ., Civ.
No. 2094 (M.D. Tenn., Dec. 19, 1973) . . . .  18n

Lee v. Macon County Bd. of Educ., 448 F.2d
746 (5th Cir. 1971) ......................  9n

Loving v. Virginia, 388 U.S. 1 (1967)..........  14
McLaughlin v. Florida, 379 U.S. 184 (1964) . . .  14
Norwood v. Harrison, 413 U.S. 455 (1973) . . . .  13n
Plaquemines Parish School Bd. v. United States,

415 F. 2d 817 (5th Cir. 1969)..............  7n, 18
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) . . . 14n
Sparrow v. Gill, 304 F. Supp. 86 (M.D.N.C. 1969) 13
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ........................  6, 7, 8

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Table of Cases (continued)
£aqe

United States v. Greenwood Municipal Separate 
School Dist., 460 F.2d 1205 (5th Cir.
1972) ....................................  4n, 7, 8, 9,

10, 11, 12, 14, 17
United States v. Hinds County School Bd., 5th

Cir. No. 28030 (November 26, 1969)........  2
United States v. Jefferson County Bd. of Educ.,

372 F.2d 836 (1966), aff'd en banc, 380 F.2d
385 (5th Cir.), cert, denied sub nom. Caddo 
Parish School Bd. v. United States, 389 U.S.
840 (1967)................................  7n, 14n

United States v. Paramount Pictures, Inc., 334
U.S. 131 (1948) ..........................  17

United States v. United States Gypsum Co.,
340 U.S. 76 (1950)........................  17

Whitley v. Wilson City Bd. of Educ., 427 F.2d
179 (4th Cir. 1970)  lOn

Wright v. Council of the City of Emporia, 407
U.S. 451 (1972) ..........................  17

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NOo 72-3534

ROBERT E0 QUARLES, et al.,
Plaint if f s-Appe Hants,

vs 0
OXFORD MUNICIPAL SEPARATE SCHOOL DISTRICT, et al.,

Defendants-Appellees o

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

BRIEF AMICUS CURIAE OF THE 
NoAoA.CoP. LEGAL DEFENSE AND EDUCATIONAL FUND, INC,

Interest of the Amicus Curiae

The N.A.A.C.P. Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, incorporated under the laws of 
the State of New York in 19390 It was formed to assist Negroes 
to secure their constitutional rights by the prosecution of 
lawsuits,, Its charter declares that its purposes include 
rendering legal services gratuitously to Negroes suffering 
injustice by reason of race who are unable, on account of pov­
erty, to employ legal counsel on their own behalf„ The charter 
has been approved by a New York court, authorizing the organi­
zation to serve as a legal aid society. The NoA.A.C.P. Legal 
Defense and Educational Fund, Inc„ (LDF) is independent of 
other organizations and is supported by contributions from the



publico For many years its attorneys have represented parties 
before this Court and the District Courts of this Circuit, and 
it has participated as amicus curiae in this Court and other 
courts.

In association with black and white attorneys in private 
practice in the States which compose the Fifth Circuit, staff 
attorneys of the amicus have participated in litigation before 
this Court over the question of school desegregation both prior 
to and after the 1954 decision in Brown v0 Board of Educ0, 347 
UoSo 483. The Legal Defense Fund was permitted to participate 
in all Mississippi (Southern District) school desegregation 
suits brought originally by the United States, as amicus curiae, 
following the Supreme Court’s remand in Alexander v„ Holmes 
County Bd0 of Educ0, 396 U 0SQ 19 (1969); see United States v„ 
Hinds County School Bd„. 5th Circ No0 28030 (November 26, 1969).

Attorneys from the LDF, in association with local counsel 
for the plaintiffs, successfully obtained decisions requiring 
free transportation for students reassigned beyond walking dis­
tance as part of desegregation plans, in Brown v. Board of Educ- 
of Bessemer, 464 Fc2d 382 (5th Cir.), cert, denied, 409 U 0S0 981 
(1972) and Brewer v0 School Bd0 of Norfolk. 456 F.2d 943 (4th 
Cir0), cert„ denied, 406 U.S. 905 (1972)„ Such orders have now 
become routine when desegregation decrees are entered,,

The decision of the panel announced upon rehearing of this 
case on November 9, 1973, however, casts a deep shadow upon

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this body of precedent and endangers the school desegregation 
processo Despite the panel's emphasis upon the "unique" situ­
ation in Oxford, the analysis upon which the decision rests, 
and the legal standards upon which affirmance is based, are 
susceptible of application in many urban areas of this and 
other Circuits. Cost-conscious school boards, already saddled 
with the expense of legal proceedings to resist school desegre­
gation orders, can be expected to seize the opportunity to shift 
the transportation costs of desegregation to their students.
The attendant economic hardships which will be suffered by both 
black and white students and their parents can only weaken 
acceptance of and support for constitutional compliance, at a 
time when public leadership should be encouraging the opposite. 
Amicus respectfully believes that consideration of these 
consequences, as well as reevaluation of the legal premises 
of the November 9 panel decision, should lead to reaffirmance 
of the original July ruling with the imprimatur of the full Court.

REASONS WHY REHEARING 
EN BANC SHOULD BE GRANTED

Introduction

With great respect for the members of the panel which 
decided this case, as well as for the distinguished district 
judge, we submit that the rule announced by the panel on 
November 9 is both erroneous and unworkable; and that the 
standards enunciated in the opinions of the District Court and 
the panel for determining when a school district is obligated

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to afford its pupils free transportation as part of a desegre­
gation plan, are ill-founded0 We agree with the plaintiffs- 
appellants that these errors should be corrected by this Court 
sitting _en banc,—^

We will not attempt to set out the facts of this case at 
length, for we expect the parties to do so. (The facts are 
detailed in the Memorandum Opinion of the District Court and 
also in the briefs of the parties). In the course of the dis­
cussion, however, we will find it necessary to refer from time 
to time to factual matters,,

The Panel's Holding

The panel summarizes its holding as follows:
We emphasize that Oxford presents a most unusual 
situation. The Court’s desegregation order has 
been implemented effectively without free busing, 
and the order increased neither the general 
transportation burden nor the transportation bur­
den of either race. Were any of these facts 
different, free busing would be required. We do 
not hold that school boards may avoid the obli­
gation to provide free busing simply by arranging 
private busing financed at student expense, 
(Typewritten slip op,, at p, 7),

This simple summary lays bare, we believe, the logical and
analytical errors of the District Court and the panel.

1/ In our view, furthermore, despite the efforts of the panel 
to distinguish previous decisions, the ruling in this case 
is in conflict with two earlier opinions of this Court: Brown

v„ Board of Educ, of Bessemer, supra, and United States v» 
Greenwood Municipal Separate School Dist,, 460 F,2d 1205 (5th 
Cir. 1972), Two of the judges on the panel in this case were 
also members of the panel which decided Bessemer.

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The Ruling of the Panel Penalizes Plaintiffs 
for their Interest in Education and their 
Financial Sacrifices for It________________

The Court penalizes the plaintiffs in this case —  black 
students of Oxford and their parents —  for their extraordinary 
sacrifices over the past three years. Had black families gen­
erally, and in particular the witnesses who testified before

2/the District Court,” been unable or even unwilling to charter 
private transportation for their children, with the result that 
large numbers of students failed to attend classes after the 
District Court’s desegregation order was effectuated, then under 
the ruling of the panel Oxford would be required to institute

r
a free transportation system.

Merely stating the Court's holding in this fashion exposes 
its infirmity. Furthermore, the panel opinion clearly implies 
that transportation at school board expense will be required 
at some time in the future, should economic or other conditions 
suddenly cause markedly less effective implementation of the 
plan because students are unable to get to their assigned 
schools. This is so if only because the determination that 
the plan "works" without free transportation cannot be made with 
finality for several years. Under the desegregation order of 
the District Court, there may well be students whose assign­
ments will not be changed from pre-1970 conditions until they 
enter the secondary grades. In other words, the group of

2/ See Transcript of Evidence, Oct0 10, 24, 1972, pp0 9-40, 83-93.

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students and parents affected by the reassignments under the 
plan will change from year to year —  and there is no assurance 
that the group of families so affected in the next few years 
will be as able as has been the 1970-73 group to assume the 
financial burdens of pupil transportation.,

The Result is hot Compelled by Swann

As we understand the opinion, the panel supports its reas-
3/oning by analyzing the Swann- decision as follows:

Following Swann and Bessemer, we must order free 
busing for Oxford if it is necessary to disestab­
lish the old dual school system,, Oxford’s exper­
ience shows that free busing is not "necessary" 

r in the sense that the desegregation plan will 
fail without it, On the contrary, the system is 
now entirely unitary and the attendance rate is 
ninety-five percent,, While the school board's 
decision to place the cost of busing on individual 
parents may be debatable, the plan does work,, We 
do not face here the questions that would arise if 
busing’s cost forced many children to stay home 
and dropped the attendance rate significantly. 
(Typewritten slip op„, at p„ 5).

We respectfully suggest that Swann has been misconstrued,, That 
case in no way dealt with the issue of when free transportation 
must be provided,,

Swann established that District Courts and Courts of Appeals 
must require pupil assignments which will effectively deseg­
regate formerly dual school systems, even if such assignments 
require transportation of pupils between their homes and their 
schools. Both Swann and Davis^ involved school systems which

3/ Swann v„ Charlotte-Mecklenburq Bd, of Educ., 402 U„S<, 1 (1971). 
4/ Davis v. Board of School Comm'rs of Mobile. 402 U<,S„ 33 (1971).

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traditionally had provided transportation for pupils assigned 
beyond normal walking distance, and thus no question ever arose 
in those cases concerning the system’s obligation to provide

Wfree busing to students reassigned for desegregation.,

Swann teaches, then, that the District Court was obligated 
to order busing if necessary to disestablish the dual school 
system in 0xfordo This it did, by approving the school board’s 
proposal to "cluster" all of its schools at all grade levels.
It is undisputed on this record that, as the result of the pupil 
reassignments under that plan, black and white students must use 
motor transportation to get from their homes to the schools to

r

which they are assigned., Thus, satisfying Swann, "Oxford’s 
experience shows that [busing _is necessary] in the sense that the 
desegregation plan will fail without it." (Typewritten slip op., 
at p„ 5) .

This Court’s Greenwood and Bessemer 
Decisions Are Correct and Controlling

The specific question not resolved by Swann, i0 e. , whether 
the school board or the individual student shall bear the

5/ Any attempt to continue transportation at school district 
expense for pupils who formerly required it, but to deny 

such assistance to students reassigned in accordance with a 
desegregation plan, would clearly violate the equal protection 
clause0 Cf», e.g., United States v„ Jefferson County Bd. of 
EduCs , 372 F02d 836, 890,.8SB( 1966) , a f f * d en banc, 380 F.2d 385 
(5th Cir„), cert„ denied sub nom, Caddo Parish School Bd. v. 
United States, 389 U„S. 840 (1967). Similarly, a school system 
may not decide to go out of the transportation business entirely 
to avoid busing students to desegregated schools. See Griff in 
Vo County School Bdo of Prince Edward County, 377 UoS0 218 
(1964); Plaquemines Parish School Bd0 v, United States, 4r& F„2d 
817 (5th CirB 1969).

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expense of the necessary transportation,"" did subsequently 
arise in the context of suits against city school systems which 
had never provided any busing for their students, and the 
correct answer was provided by this Court and the Fourth Cir­
cuit: if Swann requires assignment of some students beyond
normal walking distance, and even if the school district does 
not otherwise provide pupil transportation, it must furnish it 
to these pupilsc Brown v0 Board of Educ0 of Bessemer, supra; 
United States v. Greenwood Municipal Separate School Dist., 
supra; Brewer v. School Bd. of Norfolk, supra„ The panel opin­
ion herein purports to distinguish the Bessemer and Greenwood
cases. We submit that the bases of distinction given by both

2/the District Court and the panel are not tenable.

Greenwood requires free busing, according to the panel,
because black students _as _a class were forced to shoulder, an
additional financial burden not shared by whites:

In [Greenwood] . . . the district court’s non­
contiguous zoning plan compelled black elementary 
students to leave their nearby neighborhood 
black school and attend a white school two miles 
away without the aid of free busing. The appel­
late court disapproved and required free busing, 
saying "[n]o legitimate reason is put forth for 
forcing them and their parents to shoulder the 
burden of eliminating these vestiges of segregated

6/ The endorsement by the Supreme Court of a majority-to-minority 
transfer with free busing, see 402 U.S., at 27 , does seem to 
suggest, however, that it is part of the school board’s obliga­

tion in dismantling its dual system to assure access to desegre­
gated schools without financial burden to individual students.
7/ Because of the disparate distinctions urged, we shall discuss 

them seriatim: considering, first, the panel's treatment of
Greenwood and Bessemer, and then the District Court's.

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schools in the circumstances present here," 460 
F.2d at 1207o From this we conclude that when 
a court acts to order desegregation, it is re­
quired to supply free transportation to offset 
any significant increase in travel requirements 
falling on one race or the other as a result of 
the order„ 0 . . If one race does not face an 
increased transportation burden as a result of 
desegregation, Greenwood does not require [free] 
busing,, (Typewritten slip op„, at pp„ 5-6) „

This interpretation of Greenwood —  making the decision turn 
virtually upon a showing of an independent constitutional vio­
lation—^ rather than upon the remedial needs of the desegregation 
process —  simply cannot be reconciled with the text of this 
Court’s opinion in the earlier case, The language quoted by ih e

r
panel appears at the end of the substantive discussion in the 
opinion, and is tantamount to an ironic comment upon the facts 
before the Court: that in particular, some of the black students
on whose behalf the litigation was commenced should be required 
to pay for their success in achieving constitutional compliance,,

Earlier in the Greenwood opinion, after setting out the
facts, this Court stated:

In Swann v„ Charlotte-Mecklenburq Board of 
Education, supra, the Supreme Court explicitly 
held that a school district which elects to 
utilize a majority-to-minority transfer plan as 
a desegregation tool must provide free trans­
portation to each student making a transfer 
under the plan,, 402 U.S. at 26, 27, 91 S0Ct„ 
at 1281, 28 L»Ed„2d at 572, 573, (460 F,2d, at 
1207) o

8/ See, e„q., Lee v. Macon County Rdc of Educ,, 448 F„2d 746, 
753 (5th Cir0 1971); Harrington v. Colquitt County Bd, of 

Educo, 460 F.2d 193, 196 n„3 (5th Cir.), cert, denied, 409 
U.S. 915 (1972).

-9-



The full paragraph containing the language quoted by the panel
in this case is as follows:

We have again reviewed the extensive record in this 
proceeding and conclude that it is unnecessary to 
remand the cause to the district court for the hear­
ing and findings suggested by the United States,
It is implicit in the decisions of the Supreme Court 
and of this court that it is the responsibility of 
school officials to take whatever remedial steps 
are necessary to disestablish the dual school sys­
tem, including the provision of free bus transpor­
tation to students required to attend schools 
outside their neighborhoods. The black elementary 
students who were refused free transportation by 
the district court's order are victims of the rem­
nants of the dual system of schools which existed 
for so long under the requirements of Mississippi 
constitutional and statutory provisions. No legi­
timate reason is put forth for forcing them and 
their parents to shoulder the burden of eliminating 

r these vestiges of segregated schools in the circum­
stances present here, (460 F,2d, at 1207)
(emphasis supplied).

As we read the opinion, nothing in Greenwood suggests that the
Court would have held otherwise had the plaintiffs included both

9/white and black students. Indeed, the initial description of
the issue contained in the opinion is in non-racial terms:

. . . With respect to elementary students who, 
in accordance with the desegregation plan, were 
placed in noncontiguous school zones and required 
to attend school outside their neighborhoods, 
the lower court declined to require the school 
district to provide free transportation. The 
plaintiffs have appealed from the district 
court’s refusal to order free bus transporta­
tion for the latter class of students. (460 F.2d, 
at 1206).

9/ White students, as much as black students, are protected 
from being required to bear the burden of the desegregation 

process because of the school system’s failure to take "all 
necessary steps," Green v. County School Bd. of New Kent County. 
391 U.S. 430 (19687"! See Harrington v, Colquitt County Bd. of 
Educ^, supra; Whitley v. Wilson City Bd. of Educ., 427 F.2d 179 
(4th Cir. 1970).

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Thus, unlike the panel, we believe that Greenwood stands 
for the proposition that students reassigned beyond walking 
distance as part of a desegregation plan must be afforded free 
transportation to their assigned schools.

The panel opinion also takes a restrictive view of the 
Bessemer decision:

Bessemer likewise required busing because it 
was necessary to implement the court-ordered 
desegregation plan. The district court’s deseg­
regation order included a majority-to-minority 
transfer plan and school attendance based on 
geographic zones. The order contained one impor­
tant caveat. If a student lived more than 1.5 
miles farther from his assigned high school than 
from the other high school, and if transportation 
were not available to him at a moderate cost, 
he could attend the other, nearer high school.
The court did not provide for free busing. Thus 
its failure to provide free busing emasculated 
the desegregation plan; anyone could plainly see 
that without free transportation many students 
would elect to stay at their old one-race high 
schools rather than travel farther to a new 
integrated high school. (Typewritten slip op., 
at pp. 4-5).

This brief summary inadequately describes the issues in Bessemer 
and also mistakenly analyzes the Court’s holding in that case.

Bessemer rejected the argument, offered to support a 
desegregation plan clearly ineffective because it failed to 
mandatorily assign students to integrated high schools, that 
Swann was limited to school systems which had previously oper­
ated school buses. Had this Court merely stricken the re­
transfer provisions of the District Court’s order without 
directing the school board to make pupil transportation avail­
able, the issue raised in this (Oxford) case would not have

- 1 1 -



keen decided0 But the Bessemer Court recognized that it was
not merely rejecting the transfer feature but also imposing a
free transportation requirement:

The court below cannot compel a student to 
attend a distant school and then fail to pro­
vide him the means to reach the school, nor 
can it allow circumvention of the desegregation 
plan by wholesale exceptions to transfer pro- 
visionso . . . (464 Fo2d, at 384).

The District Court also sought to distinguish Greenwood
and Bessemer on other, but equally unconvincing, grounds„ It said:

This distinction rests upon several solid, 
uncontradicted facts. First, Oxford does not 
have a history of resistance to court inte­
gration orders or for devising assignment plans 

r that promise much but achieve little. . , .
Secondly, the Oxford board rejected any thought 
of attempting to zone the city geographically, 
in either contiguous or noncontiguous zones, and 
thus persist in teaching the same grades in dif­
ferent buildings situated in racially different 
neighborhoodso Instead, the board decided it 
would effectively cope with all desegregation 
problems by utilizing its four buildings on a 
city-wide grade basis; . . . Thirdly, the assign­
ment plan adopted by the board was widely supported 
by the entire local community so that no one-race 
schools remained (not true in many heavily black 
school districts). Finally, this successful 
desegregation was accomplished without a notice­
able increase in the burden of students in 
elementary grades getting to school as compared 
with that in attending dual schools operated in 
the freedom-of-choice [era]. (Memorandum Opinion, 
at pp„ 9-10).

Some of the District Court's statements about this school 
system are more valid than others, but none provides an ade­
quate basis for distinguishing Bessemer and Greenwood. We find 
nothing in either decision, for example, which suggests that

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the degree of recalcitrance to school desegregation shown by 
a particular district— ^ determines the existence or scope of 
its legal obligation to provide a means for students to reach 
the schools to which they are assigned. The entire notion is 
simply a warmed-over version of the "good faith" doctrine. But 
"[t]he good faith of a school board in acting to desegregate its 
schools is a necessary concomitant to the achievement of a uni­
tary school system, but it is not itself the yardstick of effec­
tiveness." Hall v. Sto Helena Parish School Bd., 417 F.2d 801, 
807 (5th Cir.), cert, denied, 396 U.S. 904 (1969).

Similarly, we think it totally unpersuasive that Oxford’s
r

plan utilizes grade restructuring at all schools rather than 
noncontiguous zoning and pairing. We noted above that, without 
dispute on this record, many black and white students who could 
formerly walk to school, must take buses as the result of reas­
signments under the plan. That burden, or change in circumstance 
or condition, is no different under Oxford's plan than it would

10/ Although we believe that the test is not relevant, we are 
obliged to point out that the District Court's praises about 

the Oxford district are probably clearly erroneous. The 
District Court's order, once it was entered, may have been car­
ried out without overt interference. But Oxford made no move 
to eliminate its ineffective freedom-of-choice plan, despite the 
Supreme Court's decision in Green, supra, until sued. Its 
initial submission to the District Court proposed to close the 
formerly all-black high school, even though this would have put 
the white school on double sessions. On the date the District 
Court entered the order whose ready implementation that court 
now commends, it described the Oxford district's actions thus: 

. . .  To terminate it, frankly, as this Court sees 
the present situation from this evidence here today, 
would be only for racial reasons. . . .  I think that 
is the reason and we might as well tag it for what 
it is. (Oral Opinion of January 7, 1970, transcribed 
January 8, 1970 in No. WC6962-K).

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be had the system utilized non-contiguous zoning at any or all 
of its schools. Furthermore, to deny Oxford's students free 
transportation on the basis of such a distinction would be to 
treat them differently, in the desegregation process, than other 
students similarly situated, solely because of the size of the 
school district within which they find themselves. (Complete 
clustering or grade restructuring in larger districts is imprac­
ticable) . Whether such a distinction, if made by a state legis­
lature and divorced from any racial context (cf. Sparrow v. Gill, 
304 F. Supp. 86 [W.D.N.C. 1969]), would be valid, is not at 
issue here0 The Constitutional obligation of school districts 
to affirmatively carry the burden of dismantling their dual 
school systems does not vary with the size of the district.

We have discussed above the third distinguishing feature 
posited by the District Court: the fact that pupils have
managed to get to school at their own expense siice the order was 
e n t e r e d T h e  District Court’s final ground was that, because 
busing burdens were redistributed among both black and white 
students, there was no general increase in transportation times 
and distances for Oxford students occasioned by the desegregation

11/ We do find curious, however, the District Court's association 
between the "success" of the Oxford plan and the one-race 
schools which remain "in many heavily black school districts." 

(Memorandum Opinion, at p„ 10). Since virtually all of the Mis­
sissippi districts in the latter category provide transporta­
tion, its lack is not a factor in white withdrawal from the 
public schools. Compare Norwood v. Harrison, 413 U.S„ 455 (1973). 
Surely the District Court did not mean to intimate that Oxford's 
plan "works" only because its white population has not been 
burdened with the additional expense of providing free transpor­
tation to black students. As many or more white students as 
black pupils are subject to desegregation-caused transportation 
needs under the decree,, (Memorandum Opinion, at p. 6)„

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decree,, Again, we are aware of nothing in the Greenwood or
Bessemer opinions suggesting those decisions were so limited,,
But additionally, this thesis (like the panel’s argument that 
Greenwood depended upon a showing of disproportionate burden 
upon blacks as a group) ignores the personal nature of the

12/desegregation righto Class actions and system-wide decrees-— ' 

have not altered the fundamental personal, immediate, consti­
tutional right of every student to attend a unitary school 
system, a right not subject to penalty or surcharge. Very sig­
nificant numbers of Oxford students are having their consti­
tutional rights conditioned in exactly this manner at the 
present rtime, and it is only cold comfort to them and their 
parents that equal numbers or proportions of both races are so 
affected,, Disabilities imposed, because of race, equally upon 
both races, nonetheless violate the Fourteenth Amendment. 
McLaughlin v. Florida, 379 U.S. 184 (1964); Loving v, Virginia, 
388 U.S. 1 (1967).

We respectfully submit that the opinins of the District 
Court and of the panel herein do not convincingly distinguish 
this case from Greenwood and Bessemer, whih were correctly deci­
ded and control this case. Those rulings, which should be 
applied here, forbid boards of education from placing upon 
individual students, black and white, the burden of financing 
home-to-school transportation when they are assigned beyond 
walking distance under a desegregation plan.

12/ Potts v. Flax, 313 F.2d 284(5th Cir„ 1963); United States 
v. Jefferson County Bd. of Educ., supra, 372 F.2d at 861-69.

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An Effective Equity Decree 
Requires Free Transportation

As we have tried to outline in the discussion above, the
proper focus in this matter is upon the individual students
reassigned beyond walking distance, not upon all students, or
all students of a particular race. For them, the added burdens
imposed by the District Court's decree are very real. For them,
the equity decree which desegregated their schools remains
grossly inequitable. As the Fourth Circuit put it in Brewer v.
School Bd„ of Norfolk, supra, 456 F.2d at 946-48:

o . . [T]he plan contemplates the assignment 
of a substantial number of pupils to schools 

r located beyond walking distance cf their homes 
but provides no means of transportation for 
pupils so assigned. The plaintiffs assert 
that, under these circumstances, the main­
tenance by the School District of a busing 
program for pupils who are not within walking 
distance of their assigned school is a necessary 
corollary to the assignment itself0 They echo 
the comment of another Court, faced with a 
similar problem, that, it is "ridiculous to 
assign students to schools which they cannot 
reach." Davis v. Board of Education of North 
Little Rock, Ark0 (D.C. Ark. 1971) 328 F. Supp.
1197, 1203. . . .  A substantial number of the 
students reassigned come from families for 
whom these [transportation] expenditures could 
be an unreasonable, if not an intolerable, 
burden. It was largely to safeguard the 
constitutional rights of this group of students 
that the plan of desegregation was promulgated.
The plaintiffs urge that if the Court, after 
providing for their reassignment, takes no 
steps to make available to them, without cost, 
busing to the schools to which they are assigned, 
the whole plan of desegregation becomes a futile 
gesture and will represent for the disadvan­
taged child, intended to be protected thereby 
in his constitutional rights, a cruel hoax.
This argument persuades; it also accords with 
our understanding of Swann and Davis, both of 
which recognized and enforced "the district

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court’s equity power to require transportation 
whenever and wherever necessary to disestablish 
a dual school system." . . .
. . . What is determined here is that the 
school district as a part of its plan of deseg­
regation, must provide a practical method of 
affording free busing for students assigned to 
schools beyond normal walking distance of their 
homes; the mechanics of the method to be employed 
by the school district in discharge of this duty 
are for the District Court.

We recognize and sympathize with the District Court’s 
concern for the fisc of the Oxf'ord school district. And the 
District Court is doubtless correct in finding that not all of 
the elementary students who now reside more than 1.5 miles 
from the schools serving their respective grade levels, were 
closer to the schools to which they would have been assigned 
as the district operated prior to 1970o But certainly these 
factual particularities are not beyond the ability of an equity 
court to deal with. Insofar as the District Court concluded 
that it could not tailor its decree so as to provide the full 
measure of constitutional protection to Oxford students reas­
signed beyond walking distance under the plan, it erred.

In Clark v. Board of Educ. of Little Rock, 449 F.2d 493, 499 
(8th Cir. 197l), cert, denied, 405 U.S. 936 (1972), the Court 
directed that free transportation should be afforded only 
those high school students assigned a greater distance from 
home under the desegregation plan than they had had to travel 
prior to its adoption. (The Court rejected the school board’s 
contention that it should furnish no pupil transportation at all).

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Such an approach is possible in this case; at a constitutional 
minimum, Oxford must furnish free pupil transportation for 
those students reassigned, under the 1970 decree, beyond
normal walking distance if they had previously been able to 
walk to school.

We submit, however, that the broader relief authorized by 
the original panel opinion in this case, and by Greenwood, is 
entirely proper and defensible. As we pointed out earlier, 
some students may only experience the burden of new transpor­
tation requirements as they enter new grade levels, even though 
their residence remains the same as it was in 1970. The shift­
ing composition (perhaps year-by-year) of the group of students 
entitled under the Fourteenth Amendment to free school busing 
will create significant administrative problems which can be 
obviated if all students beyond walking distance are bused by 
the district. A decree requiring this result would not be 
beyond the power of the District Court, since the remedial power 
of equity is often broader than the violation which gives rise 
to the court's jurisdiction. See Gilmore v. City of Mnntnnmory 
473 F.2d 832, 838 (5th Cir.), cert, granted. 42 U.S.L.W. 3226 
(1973), bright v. Council of the City of Emporia. 407 U.S. 451, 
459 (1972); United States v. Paramount Pictures Tno 334 U.S." 
131, 148 (1948); United States v. United States Gypsum Cn 
340 U.S. 76, 88-89 (1950), and cases cited. Indeed, such a
decree is probably the only sensible mechanism for dealing with 
the case.

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Finally, the District Court’s reluctance to require
transportation because of the anticipated cost and the fear
that other educational programs would have to be sacrificed
(Memorandum Opinion, at pp. 7-8) .is understandable but nonetheless
wrong„ Plaintiffs are not to be put to the choice of their
constitutional rights or their other educational needs,0 In any
event, the District Court has the power to explore fully and to
require utilization of alternative funding sources which may be
available to the school district,, Plaquemines Parish School Bd„
v„ United States, supra. And funds for pupil transportation may

13/now be available under the ESAA program.

For the foregoing reasons, amicus respectfully suggests 
the appropriateness of en banc rehearing in this matter, and 
re-issuance of the original panel opinion of July, 1973.

13/ On December 19, 1973, the District Court for the Middle 
District of Tennessee ruled that HEW's policy of refusing 
assistance for busing under the ESAP and ESAA programs was 

illegal and unconstitutional. Kelley v, Metropolitan County Bd0 
A copy of this opinion has been furnished the Clerk and counsel.

. i s .

CONCLUSION

Respectfully submitted

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN Jo CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae 
N.A.A.C.P. LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.



CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of January, 1974,
I served two copies of the foregoing Motion for Leave to 
File and Brief of N.A.A.C.P. Legal Defense and Educational 
Fund, Inc. as Amicus Curiae in Support of Suggestion of 
Rehearing En Banc upon counsel for the parties to the appeal, 
by depositing same in the United States mail, air mail special 
delivery postage prepaid, addressed as follows:

Lewis Myers, Jr., Esq. 
108|- South Lamar 
Oxford, Mississippi 38655
Will A. Hickman, Esq.
1204 Van Buren Avenue 
Oxford, Mississippi 38655

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