St. Helena Parish School Board v Hall Brief in Opposition

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Jit the jSapreate dj-mirt of the ®nite| plates
October T erm, 1969

S t . H elena P arish S chool B oard, et al.,
PETITIONERS

V .

Lawrence H all, et al.

ON PETITION FOP A WHIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

E R W IN  N. GRISW OLD,
Solicitor General, 

JE R R IS  LEONARD.
Assistant A ttorney General,

G A R Y  J. GREENBERG,
Attorney,

Department of Justice, 
Washington, D.C. 30580.



J it thi jkprtm e flfmtri of the United States
October Term, 1969

No. 466

S t . H elena P arish School B oard, et al .,
PETITIONERS

V .

L awrence H all, et al.

ON PETITION FOR A W R IT  OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIF TH  CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. C 
97-139) is not yet reported. The opinion of the United 
States District Court for the Western District of 
Louisiana (Pet. App. B 69-81) is reported at 293 F. 
Supp. 84; Moore v. Tangipahoa Parish School Board 
is reported at 298 F. Supp. 283 (E.D. La.) ; the re­
maining decision from the Eastern District of Louisi­
ana (Pet. App. B 82-96) is reported.

JURISDICTION

The judgment of the court of appeals was entered, 
pursuant to the terms of the opinion (Pet. App. C

(i)364-374—69



2

124), on May 28, 1969. The petition for certiorari was 
filed August 12, 1969. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the court of appeals erred in holding un­
lawful the freedom of choice method of student assign­
ment and faculty desegregation plans based on volun­
tary transfers in these school districts, and requiring 
the submission of new desegregation plans.

STATEM EN T

1. The 18 cases to which the United States is a 
party are school desegregation suits brought here from 
a decision of the United States Fifth Circuit Court 
of Appeals reversing1 district court orders approving 
the continued use of desegregation plans based upon 
freedom of choice.2

None of the school districts involved took any steps 
toward desegregation pursuant to the decisions in 
Brown v. Board of Education, 347 U.S. 483, 349 U.S. 
294, until ordered to do so by federal district courts. 
In 1967 each of these school districts was required to

1 In one case, Moore v. Tangipahoa Parish School Board, No. 
27,391, the district court had ruled out free choice and the 
court of appeals affirmed that decision. See Pet. App. C 122- 
123; 298 F. Supp. 283 (E.D. La.). (The district court opinion 
is not reproduced in the petition for certiorari.)

2 The Fifth Circuit had appeals in 38 cases pending before it. 
Six cases decided in the district court on the basis of the Fifth 
Circuit’s decision in these cases, those involving the West Car- 
roll, Morehouse, Catahoula, Sabine, Calcasieu and Webster 
Parish School Boards, were not appealed to the Fifth Circuit, 
although included in the petition for certiorari, are not now prop­
erly before this Court.



3

implement a free choice plan for the 1967-1968 school 
year based on the model decree set forth in United 
States v. Jefferson County Board of Education, 380 
F. 2d 385 (C.A. 5) ( en banc), certiorari denied sul> nom. 
Caddo Parish School Board v. United States, 389 U.S. 
840.

Motions for supplemental relief in conformity with 
the decisions of this Court in Green v. County School 
Board, 391 U.S. 430, and its companion cases, were 
filed in June and July, 1968. The district courts con­
tinued hearings commenced in July on these motions 
until November 1968; and the United States and 
private plaintiffs took appeals to the Fifth Circuit 
Court of Appeals, seeking summary reversal of the 
district courts’ failure to order the implementation of 
new plans for the 1968-1969 school year. The court 
of appeals declined to reverse but, rather, ordered the 
district courts to hold expedited hearings on the pend­
ing Green motions with a view to determining whether 
freedom of choice was adequate to convert these dual 
school systems based on race to unitary, non-racial 
systems. Adams v. Mathews, 403 F. 2d 181 (C.A. 5). 
In all but the Tangipahoa Parish case, the district 
courts for the Eastern and Western Districts of Lou­
isiana found for defendant school boards and denied 
the relief sought by the government and private plain­
tiffs. The parties plaintiff appealed to the court of ap­
peals which reversed, and the school boards seek 
review of that decision by this Court.

2. The 18 school districts involved operated racially 
dual school systems until they were brought into liti­
gation. Prior to the judicial imposition of free choice



4

plans, students in these districts were assigned to 
schools substantially on the basis of white and Negro 
geographic attendance units. After two years of opera­
tion under Jefferson-type free choice plans, in the 13 
school districts in the Western District of Louisiana, 
during the 1968-1969 school year, approximately 97 
per cent of the Negro students attended 104 virtually 
all-Negro schools. In all but one of these school sys­
tems, less than five per cent of the Negro students 
attended the traditionally white schools—the excep­
tion being Avoyelles Parish, where 12 per cent o f the 
Negro students attended desegregated schools. The 
proportion of teachers assigned in 1968-1969 to facul­
ties in which their race was a minority did not exceed 
ten per cent in any of these 13 school districts, and 
in most of the districts it was far less. No white 
students attended traditionally Negro schools, except 
for one white student in each of two parishes—-Bos­
sier and Caddo.

In the five cases from the Eastern District of 
Louisiana to which the United States is a party, 
approximately 94 per cent of the Negro students 
attended 30 all-Negro schools during the past school 
year. In four of the school districts 4.5 per cent or 
less of the Negro students attended traditionally white 
schools in 1968-1969, and in the fifth district—Iber­
ville—that percentage was less than ten per cent. The 
proportion of teachers assigned in 1968-1969 to fac­
ulties in which their race was a minority ranged from 
five to eight per cent. No white students have ever



5

attended traditionally Negro schools in any of these 
parishes.3

In each of these cases the evidence presented to 
the trial court revealed that there were readily avail­
able alternatives to free choice which could be im­
plemented without administrative difficulty and which 
would result in the prompt and total conversion of 
the dual school system into a unitary one.

ARGUM EN T

1. A  school board operating schools once segregated 
by law is under a constitutional obligation to bring 
about “ [t]he transition to a unitary, nonracial system 
of public education.”  Green v. County School Board, 
supra, 391 U.S. at 436. They “ have the affirmative 
duty under the Fourteenth Amendment to bring about 
an integrated, unitary school system in which there 
are no Negro schools and no white schools—just 
schools.”  United States v. Jefferson County Board 
of Education, supra, 380 F. 2d at 389. In approving 
free choice as a means of reaching this result, the 
Fifth Circuit Court of Appeals cautioned school 
boards against confusing the means and the end.

3 Projections as to what the current school year’s statistics 
were likely to be were before the court of appeals in the form 
of the Jefferson decree reports required to be filed each spring. 
See 380 F. 2d at 395. The data are compiled in the charts which 
appear as an appendix to the opinion of the court (Pet. App. 
C 126-139). The court of appeals stated that analysis of those 
data led it to conclude that under free choice the situation 
would not vary “ sufficiently that compliance with constitutional 
standards can be projected” (Pet. App. C 115). See also id., 
at 121-122.



6

“ Freedom of choice is not a goal in itself. * * * [It] 
is but one of the tools available to school officials 
at this stage of the process of converting the dual 
system of separate schools for Negroes and whites 
into a unitary system.”  Id. at 390.

In Jefferson the court warned that the test of any 
plan was in its results, and that rule became the hold­
ing of this Court in Green and its companion cases. 
I f  the dual system remains and “ there are reasonably 
available other ways, such for illustration as zoning, 
promising speedier and more effective conversion to 
a unitary, nonracial school system, ‘ freedom of choice’ 
must be held unacceptable.”  391 U.S. at 441. Accord­
ingly, when these cases were first before the court of 
appeals in Adams v. Mathews, supra, they were re­
manded with directions that the district courts resolve

(1) whether the school board’s existing plan 
of desegregation is adequate “ to convert [the 
dual system] to a unitary system in which 
racial discrimination would be eliminated root 
and branch”  and (2) whether the proposed 
changes will result in a desegregation plan that 
“promises realistically to work now” . * * *

403 F. 2d at 188. Minimum standards for assessing 
the effectiveness of desegregation plans were set forth 
for the district courts’ guidance (ibid.) :

I f  in a school district there are still all-Negro 
schools or only a small fraction of Negroes en­
rolled in white schools, or no substantial inte­
gration of faculties and school activities then, 
as a matter of law, the existing plan fails to 
meet constitutional standards as established in 
Green. * * *



7

The all-Negro school was still a part of each of 
these 18 school systems and, under the projections 
for the 1969-1970 school year, would have remained a 
part of the system, without any prospect of losing 
its racial identity in the foreseeable future under 
free choice. In Green v. County School Board, supra, 
391 U.S. at 441, as many as 15 per cent of the Negro 
students were enrolled in schools traditionally main- 
tamed for whites. In each of these 18 cases that 
percentage had not been achieved by the 1968-1969 
school year and it was not anticipated that any dis­
trict would even achieve that plateau under free 
choice in the current school year. The faculty desegre­
gation statistics, which resulted from a program of 
assigning teachers to a school ha which their race was 
in a minority only with their consent, demonstrated that 
faculties continued to be tailored for heavy concen­
trations of either black or white students.

The defendants’ desegregation plans failed, there­
fore, in several respects, to meet the standards an­
nounced in Green v. County School Board, supra; 
Raney v. Board of Education, 391 U.S. 443; Monroe v. 
Board of Commissioners, 391 U.S. 450; Bradley v. 
School Board, 382 U.S. 103, and Rogers v. Paul, 382 
U.S. 198. See also United States v. Montgomery 
County Board of Education, 395 U.S. 225.4

4 And see United States v. Greenwood Municipal Separate 
School District, 406 F. 2d 1086 (C.A. 5), certiorari denied, 395 U.S. 
907; United States v. Indianola Municipal Separate School Dis­
trict, 410 F. 2d 626 (C.A. 5 ); Anthony v. Marshall County 
Board of Education, 409 F. 2d 1287 (C.A. 5).



8

2. Petitioners advance two basic arguments for 
granting the writ. First, they contend the decision be­
low is in conflict with Section 407(a) of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e-6(a)5 (Pet. 
6-9, 52-56), and second, they contend that in view of 
community opposition (Pet. 20, 32) and the likelihood 
that whites will refuse at this time to send their chil­
dren to fully integrated schools (Pet. 37-40), and in 
view of the educational handicaps which black stu­
dents bear (Pet. 35-36, 62), the Fifth Circuit moved 
too quickly and erroneously ordered the abandonment 
of the free choice plans at this time (Pet. 21-24, 29, 
32, 43). We suggest that neither argument is in any 
way persuasive.

The provision in Section 407(a) of the 1964 Civil 
Rights Act has no applicability in a situation where 
the bussing of students is an appropriate and 
necessary device for eliminating the dual school sys­
tem—the legacy of active school board discrimina­
tion. Thus, the Seventh Circuit Court of Appeals has 
held that Section 407(a) has no application where 
the transportation of students is necessary, not “to 
achieve racial balance, although that may be a result,

5The statutory provision reads, in pertinent part, as follows:
“ * * * [N]othing herein shall empower any official or court 

of the United States to issue any order seeking to achieve a 
racial balance in any school by requiring the transportation of 
pupils or students from one school to another in order to 
achieve such racial balance, or otherwise enlarge the existing 
power of the court to insure compliance with constitutional 
standards. * * *”



9

but to counteract the legacy left by tbe [School] 
Board’s history of discrimination.”  United States v. 
School District 151 of Cook County, Illinois, 400 P. 2d 
1125, 1130, affirming 286 P. Supp. 786, 799 (H.D. 
111.) Accord, United States v. Jefferson County Board 
of Education, 372 P. 2d 836, 880 (C.A. 5 ); Keyes v. 
School District Number One, Denver, Colorado, C.A. 
Ho. C-1499, decided August 14, 1969, order stayed 
August 27, 1969, Ho. 432-69 (C.A. 10), stay vacated, 
August 29, 1969 (Mr. Justice Brennan). As District 
Judge Doyle observed in the Denver case, supra, “ It 
would be inconsistent to construe the proviso as a 
limitation on the power of the courts to correct a 
deprivation of rights which Section 407(a) itself is 
intended to remedy.”

This Court has consistently rejected arguments 
seeking a delay of judicial vindication of the con­
stitutional rights here at stake based on community 
hostility and the potentiality of “ white flight.” Brown 
v. Board of Education, 349 U.S. 294, 300; Cooper v. 
Aaron, 358 U.S. 1; Monroe v. Board of Commis­
sioners, supra, 391 U.S. at 459; Keyes v. School Dis­
trict Number One, Denver, Colo., supra, slip opinion 
p. 3. And, surely, petitioners may not profit from 
their failure to comply even with Plessy v. Ferguson, 
163 U.S. 537. Cf. Gaston County v. United States, 
395 U.S. 285.



10

CONCLUSION

For the foregoing reasons, it is respectfully sug­
gested that the petition for a writ of certiorari should 
be denied.

Respectfully submitted.
E rw in  N . Griswold,

Solicitor General.
Jerris L eonard,

Assistant Attorney General.
Gary J. Greenberg,

Attorney.

September 1969.

U .S. GOVERNMENT PRINTING OFFICE: 1969



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