Cavalier v. School Board of Caddo Parish Brief of Amicus Curiae of the NAACP Legal Defense and Educational Fund in Support of Defendant-Appellees' Petition for Rehearing En Banc

    I n  th e

^ tq jm n e  (Em trt o f %  S ta irs
October Term, 1975 

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

A rlam  Cake, J r ., et al., 

and
P enelope  A n n e  J e n k in s , et al.,

Petitioners,
vs.

M ontgomery  C o u n ty  B oard op E ducation , et al.

APPENDIX TO THE PETITION FOR A 
WRIT OF CERTIORARI

J ack  G reenberg 
J am es M . N abrit , III 
D rew  S. D ays , III 
C h arles  S te p h e n  R alston  
M elvyn  L eve n th a l

10 Columbus Circle
New York, New York 10019

S olomon  S. Seay, J r .
F red T. G ray

Gray, Seay and Langford 
352 Dexter Avenue 
Montgomery, Alabama 36104

H oward A. M an dell

212 Washington Building 
P.O. Box 1904
Montgomery, Alabama 36103

Attorneys for Petitioners



I N D E X

PAGE

Opinion of District Court dated May 22, 1974 ........ la

Opinion of Court of Appeals dated April 11, 1975 .... 44a 

Opinion of Court of Appeals dated June 27, 1975   78a



Opinion dated May 22, 1974

Ann am Care , J r ., et al.,
Plaintiffs,

N ation al  E ducation  A ssociation , I n c ., and  
P enelope  A n n e  J e n k in s , et al.,

Plaintiff-Intervenors,

U nited  S tates oe A m erica ,
A m icu s  C u riae ,

y.

M ontgomery C o u n ty  B oard of E ducation , et al.,

Defendants.

Civ. A. No. 2072-N.

United States District Court,
M. D. Alabama, N. D.

May 22, 1974.

O pin io n

J o h n son , Cliief Judge.
This school desegregation case, having been previously 

before this Court and the appellate courts upon several 
occasions, is again submitted. The present submission is 
upon the pleadings, the evidence presented orally over a 
period of several days, and the briefs and arguments of 
the parties. Upon this submission this Court now makes 
appropriate findings of fact and conclusions of law. As 
authorized by Rule 52, Federal Rules of Civil Procedure, 
these findings and conclusions are incorporated in this 
memorandum opinion.

la



2a

Opinion dated May 22, 1974 

I. H istoby oi? Case

This case was originally filed in May, 1964, when a group 
of black children and their parents, with the United States 
participating as amicus curiae, asked this Court to enjoin 
the Montgomery County Board of Education from “con­
tinuing the policy, practice, custom, and usage of main­
taining and operating a compulsory biracial school 
system.” 1 Although ten years had passed since the 
Supreme Court’s decision in Brown v. Board of Educa­
tion,1 2 the schools of Montgomery County, as was true in 
many areas of the United States, were completely segre­
gated ; one set of schools was operated exclusively for white 
students and staffed entirely by white teachers, and one set 
was operated for black students and staffed by black 
teachers. Thus, on July 31, 1964, this Court declared that 
the Montgomery schools were being operated in violation 
of the law of the United States and enjoined defendants 
from continuing to operate these schools on a racially 
segregated basis.3 But this Court fully “realized that 
desegregation of the public schools cut across the social 
fabric of this community and that there were both ad­
ministrative and other practical problems for the board to 
cope with in order to comply with the law.” 4 Conse­
quently, the board was allowed to proceed with desegrega­
tion in a gradual manner. A freedom-of-choice plan pro­

1 Carr v. Montgomery County Board of Education, 232 F.Supp. 
705 (M.D.Ala. 1964).

2 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
3 At the time this Court entered its order in July, 1964, there 

were approximately 25,000 white students and 15,000 black stu­
dents attending the Montgomery County school system.

4 289 F.Supp. at 657.



Opinion dated May 22, 1974

posed by the board as the means for integrating fonr
grades was accepted.

Almost two years later, on March 22, 1966, this Court 
ordered that the freedom-of-choice plan be implemented 
in 10 of the 12 grades for the 1966-67 school year and that 
the plan be fully operative throughout the system com­
mencing with the fall of 1967.B In addition, this Court 
decreed that:

Race or color will henceforth not be a factor in 
hiring, assignment, reassignment, promotion, demo­
tion, or dismissal of teachers and other professional 
staff, with the exception that assignments shall be 
made in order to eliminate the effects of past dis­
crimination.6

On August 17, 1967, and February 7, 1968, the United 
States requested this Court to require defendants to take 
further steps to disestablish the dual school system in 
Montgomery County. Upon review of the record, this 
Court found that the school board had failed to discharge 
its affirmative duty to eliminate the dual school system.7

6 Carr v. Montgomery County Board of Education, 253 F.Supp. 
306 (M.D.Ala. 1966).

6 Id. at 310. This decree originally required the process of de­
segregating the faculty and professional staffs to commence with 
the school year 1966-67. But when the Fifth Circuit subsequently 
allowed the Mobile County system until the 'school year 1.967-68 
to end its policy of hiring and assigning teachers and staff by 
race, this Court, on its own motion, modified the March 22 order 
to give the Montgomery board an additional year before requiring 
desegregation of the system’s faculty and staff. Again, this Court 
was cognizant of the administrative problems and practical rami­
fications of its order, and thus sought to give the board some addi­
tional time in which to meet its constitutional obligation to de­
segregate Montgomery’s dual school system.

7 Carr v. Montgomery County Board of Education, 289 F.Supp. 
647 (M.D.Ala. 1968).



4a

Under the freedom-of-choice plan, only 550 blacks were 
attending traditionally white schools. No white children 
were attending traditionally black schools. Of the ap­
proximately 550 black teachers and 815 white teachers, 
only 32 were teaching in schools that were predominantly 
of the opposite race.

On the basis of this evidence, it was found necessary to 
establish specific requirements governing minimum amounts 
of progress in future desegregation efforts. First, this 
Court ordered that the board must move toward a goal 
under which the ratio of white to black faculty members 
in each school was substantially the same as it was through­
out the system.

Second, the school board was required to obtain ap­
proval from the State Superintendent of Education prior 
to the construction of any new school or any additions to 
existing schools.

Third, the board was ordered to eliminate race as a 
factor in the assignment of students to school buses and 
in its designation of bus routes. Finally, this Court 
observed that the board’s freedom-of-choice plan was not 
working and that unless the plan became more effective in 
eliminating the dual school system, the Court would have 
no alternative except to order some other plan.8

For the first time in this case, defendants appealed this 
Court’s order.9 On appeal, the Fifth Circuit affirmed the

8 In its supplemental order granting partial stay of the order 
pending appeal, this Court observed that the board had attempted 
to operate part of the Montgomery system under the freedom-of- 
choice plan and part under the neighborhood school plan. Under 
this scheme, the board sought to perpetuate a series of segregated 
schools in exclusively white neighborhoods. Needless to say, this 
Court found this to be an egregious violation of the board’s af­
firmative duty to establish a unitary school system.

9 This fact i's significant in that it underscores the efforts of the 
Montgomery board to comply with the law as reflected by the

Opinion dated May 22, 1974



5a

March 2, 1968, order.10 11 A  petition for rehearing en banc 
was denied by the Fifth Circuit.11 Finally, the Supreme 
Court granted certiorari and also affirmed this Court’s 
order.12

In the summer of 1969, plaintiffs and the United States 
again filed motions asking this Court to require the board 
to take additional steps to disestablish Montgomery’s dual 
school system.

An evidentiary hearing was held on February 24, 1970, 
to consider plans submitted by the United States and the 
board. The board’s plan essentially adopted the basic 
elements of the plan proposed by the government experts

Opinion dated May 22, 1974

mandates of this Court. Unlike many school boards that opposed 
desegregation at every step, the Montgomery County Board of 
Education recognized that it had an affirmative duty to desegre­
gate its school system. As the Fifth Circuit noted on appeal, 
“good faith conduct on the part of any litigant in any court, es­
pecially in a court of equity and, more particularly, in the sensi­
tive area of desegregation, is a vital element for appropriate con­
sideration.” 400 F.2d 1, 2 (5th Cir. 1968).

Although the board contended that this Court’s order was un­
precedented in its imposition of “ratio” requirements, this Court 
was firmly convinced that its order was “the minimum the appli­
cable law will allow under the peculiar fact's and circumstances 
presented and that each and every feature of the order and 
injunction entered in this case on February 24, 1968, is not Only 
authorized but required by the applicable law.” 289 F.Supp. at 
660 (emphasis added).

10 400 F.2d 1, 8 (5th Cir. 1968).

11 402 F.2d 782 (5th Cir. 1968).

12 United States v.. Montgomery County Board of Education, 
395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969). The Supreme 
Court concluded its opinion by noting that “ it is good to be able 
to decide a case with the feelings we have about this one. The 
differences between the parties are exceedingly narrow.” Id. at



6a

with some minor changes and refinements.13 14 Under the 
board’s projections for the 1970-71 school year, this plan 
provided that there would be no all-white schools in the 
county and only one all-black school. Over plaintiffs’ objec­
tions that this plan did not go far enough in eliminating 
the dual school system, this Court approved the board’s 
plan with some modifications of its own.1'1 On appeal, the 
Fifth Circuit affirmed this Court’s decision to implement 
the board’s plan.15 The Fifth Circuit added the following 
cautionary note:

Once a school board has acted, however, the courts 
have a solemn obligation to determine whether the 
structure designed by the school board will house a 
unitary school system. This obligation is unremitting, 
and there can be no abdication, no matter how 
temporary. Accordingly, any imprimatur of judicial 
approval must be entered with the caveat that until 
construction of a unitary system is completed, change 
orders, when appropriate, will be issued to ensure that 
the designed structure in fact accommodates a unitary 
system and not a bifurcated one.16

13 This plan included proposals to close certain schools in the 
system, to pair several rural schools, to adopt neighborhood zoning 
of the schools within the city of Montgomery, and to transport 
students from non-zoned rural areas to schools within the city.

14 In its order, this Court made clear that the law does not re­
quire racial balance or similar student ratios throughout a school 
system. “ Complete _ disestablishment of the dual school, system to 
the extent that it is based upon race is required.”

15 429 F.2d 382 (5th Cir. 1970). In addition, the Circuit Court 
directed that the maj ority-to-minority transfer provisions of the 
plan be altered to reflect a change in the law since this Court’s 
order of February 25, 1970.

16 429 F.2d at 386.

Opinion dated May 22, 1974



7a

Since this Court’s order of February 25,1970, the board’s 
plan has remained largely unaltered. The board has 
worked with plaintiffs and the United States in an effort 
to keep its plan updated, and changes in attendance zones 
and school facilities have been proposed and approved by 
this Court. But changes in the facts of this case—largely 
changes in residential patterns—and recent clarifications 
by the Fifth Circuit and the Supreme Court of the obliga­
tion of a school board to establish a unitary school 
system now necessitate an overall evaluation of this sys­
tem’s compliance with the requirements of the law. Ac­
cordingly, on August 29, 1973, all parties were ordered to 
submit their suggestions and proposals for the further 
desegregation of the Montgomery system.

It is important at this point to emphasize two factors 
that have characterized this continuing litigation. First, 
this Court has often recognized the practical problems and 
administrative difficulties in eliminating a dual school 
system that had been closely tied to long-established social 
patterns.17 A successful school system demands support 
from the community—both black and white. To facilitate 
this support, this Court has attempted to avoid imposing 
rigid or inflexible requirements on the board and, where 
possible, has allowed the parties to work out their own 
differences. In this way, this Court has constantly strived 
for a workable solution to the problems encountered in 
converting from a dual system to a “unitary system in 
which racial discrimination would be eliminated root and 
branch.”

Second, all the parties to this litigation share the same 
goal: establishment of a “desegretated, unitary and nonra­

17 See, e.g., 289 F.Supp. at 657. See also note 6, supra. '

Opinion dated May 22, 1974



8a

cial school system.” 18 Every court that has reviewed the 
record of this litigation has observed that the differences 
between the parties have been unusually small.19 More­
over, the Montgomery County School Board has been 
repeatedly complimented for its good faith efforts to 
comply with the requirements of the law.20 It is worthy of 
pride that the ten-year history of this case has been 
characterized throughout by cooperation from all the 
participants.

II. A n  A nalysis of th e  P lan s  B efore th e  Court

A number of desegregation proposals have been sub­
mitted for the Court’s consideration. In evaluating these 
proposals, it is important to keep in mind that the real 
controversy now presented centers around the operation 
of the elementary schools.

On January 15, 1974, the defendant board submitted its 
initial proposal, and the United States submitted a number 
of detailed suggestions. On February 14, 1974, the United

Opinion dated May 22, 1974

18 Brief for the board before the Supreme Court. See 395 U.S. 
225, 236, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1968).

19 395 U.S. at 236. See note 12, supra. 400 F.2d at 2; 429 F.2d 
at 386-387.

20 This Court has often complimented the board on its perform­
ance of its constitutional obligation to desegregate the Montgom­
ery 'schools. See 400 F.2d at 3 n. 3. Appellate courts, upon the 
review of this record, have similarly expressed their approval of 
the board’s good faith efforts throughout these proceedings. See 
395 U.S. at 230, 236; 400 F.2d at 2-3. An example of this ap­
proval by the Fifth Circuit: “ If more district courts and more 
School boards had been as sensitive as those here involved to the 
requirements of the law, the path to the goal of school desegrega­
tion in this circuit would have been infinitely smoother than it 
had been.” Carr v. Montgomery County Board of Education, 429 
F.2d 382 (5th Cir. 1970).



9a

States submitted a response to the defendants’ first pro­
posal, which incorporated additional desegregation sug­
gestions. On February 16, 1974, the plaintiffs submitted 
their plan. On March 29, 1974, the defendants submitted 
their second plan, which was a revision of their January 15 
proposal. On April 1, 1974, the plaintiff-intervenors sub­
mitted their proposal. In addition, the United States pro­
posed a high school desegregation plan devised by au­
thorities at the Maxwell Air Force Base in February and 
March, 1974. By letter of April 5, 1974, to the Court, the 
United States withdrew this proposal. Finally, on May 8, 
1974, the school board presented to the Court certain 
modifications and adjustments to its March 29, 1974, plan.

A. Plaintiffs’ Plan

Plaintiffs’ proposed plan was devised by Ur. Gordon 
Foster, Director of the University of Miami Title IV 
Desegregation Center. The Foster plan at the senior and 
junior high school levels in general starts with the existing 
board proposal and seeks to achieve greater desegregation 
by the rerouting of existing bus routes and the reassign­
ment of students to other schools which would require 
considerable increase in transportation. On the high school 
level, the Foster plan does not differ significantly from the 
board’s plan. At the elementary level, through a combina­
tion of pairing of contiguous schools and clustering and 
pairing of noncontiguous schools, the Foster plan proposes 
to desegregate the schools within the system within the “15 
percent” guidelines established by Dr. Foster. Dr. Foster 
testified that contiguous pairing was used wherever pos­
sible to minimize transportation. However, because of the 
degree of residential segregation in Montgomery, this was

Opinion dated May 22, 1974



10a

felt by Dr. Foster to be feasible in only three instances. 
The pairing and clustering of elementary schools was the 
means used by Dr. Foster to bring each elementary school 
in each paired or clustered group, under his plan, within 
one-tenth of one percent of the exact racial percentage in 
each of the schools paired or clustered with two exceptions. 
The exact racial balance varies by two-tenths of one per­
cent in these exceptions. The schools paired or clustered 
ranged in grade structures one-two, one-three, one-four, 
three-six, four-six, five-six, and 11 elementary schools under 
the plaintiffs’ plan are grades one-six. The evidence re­
flects that the pairing or clustering of schools as proposed 
by the plaintiffs’ plan would require extensive cross-city 
busing from beyond the westernmost part of the city to 
beyond the easternmost part of the city and the same is 
true from east to west. Elementary children at all grade 
levels, one through six, would be involved in this cross­
city busing. It is evident, and this Court finds, that 
fracturization of grade structure and the pairing and 
clustering of schools in the Montgomery school system, as 
proposed by the plaintiffs, is for the sole purpose of at­
taining a strict racial balance in each elementary school 
involved.

Forty-three percent of the total number of elementary 
students enrolled in the Montgomery school system would 
be reassigned under the plaintiffs’ plan. The plan would 
also necessitate the reassignment of a large number of 
elementary teachers since the teachers within the system 
should continue to teach at the grade levels where they 
have attained the greatest competency. This Court is im­
pressed that the plaintiffs’ plan would be disruptive to the 
educational processes and would place an excessive and

Opinion dated May 22, 1974



11a

unnecessarily heavy administrative burden on the school 
system.

The plaintiffs’ plan for the junior high school level 
adopts basically the defendant board’s plan with certain 
significant changes. These changes consist of new cross­
city and cross-county busing. This busing is proposed by 
the plaintiffs in order to bring the projected percentages 
of black students enrolled in each junior high school within 
the system within the 15 percent tolerance allowed under 
Dr. Foster’s plan.21 Dr. Foster’s proposal would require 
a reassignment of 36 percent of the total junior high school 
enrollment in the system.

Dr. Foster proposes a plan of desegregation at high 
school level which requires noncontiguous and satellite 
zoning to more racially balance each high school. To 
accomplish this, 22 percent of all high school students would 
be reassigned from schools they presently attend.

Following is a summary of newly assigned and addi­
tionally transported students under the plaintiffs’ plan:

Percentage of Total

Opinion dated 'May 22, 1974

Grade Level Number Reassigned Enrollment Reassigned

1 -  6 7,555 43
7- 9 3,493 36

10-12 1,637 22

21 Dr. Foster uses a 15 percent variation or tolerance to deter­
mine the racial identifiability of the elementary and junior high 
schools in the system. That is to say, any elementary or junior 
high school with an enrollment of less than 33.5 percent black is 
racially identifiable as white. If the enrollment is more than 63.5 
percent black the school is racially identifiable, according to Dr. 
Foster, as black. These variations are determined on the elemen­
tary and junior high school levels on the basis that 48.5 percent 
of the total elementary and junior high school students enrolled in 
the system are black and that 45.5 percent of the total high school 
enrollment is black.



12a

Opinion dated May 22, 1974

A total of 12,685 students, or 36 percent of the total en­
rollment in the Montgomery school system, would he reas­
signed under the plaintiffs’ plan.

The students requiring additional transportation under 
the plaintiffs’ plan are as follows:

The plaintiff-intervenors’ plan was prepared by Dr. 
Larry Winecoff, a professor at the University of South 
Carolina. Dr. Winecoff originally submitted two plans, 
Plan A, with Plan A Alternate, and Plan B. Dr. Winecoff 
abandoned Plan B, and no evidence was offered in support 
of that plan. Dr. Winecoff set similar guidelines to those 
used by Dr. Poster in determining those schools which he 
considered to be racially identifiable in the Montgomery 
school system.22 However, Dr. Winecoff used 10 to 14 per­
cent as his tolerance in determining racial identifiability.

At the elementary level the grade structure of each 
elementary school within the system is fracturized under 
the plaintiff-intervenors’ Plan A. This is done by dividing 
the existing one through six elementary grades into one 
through three centers and four through six centers. Dr. 
Winecoff also uses the rezoning technique of strip zones 
running generally vertically for grades one-three and 
elongated horizontally for grades four-six. He also uses 
noncontiguous satellite zoning in his one-three grades Plan 
A. The evidence reflects that four of the 16 elementary 
schools within the system, serving grades one-three, would

Elementary (1-6)
Junior High School (7-9) 
Senior High School (10-12)

5,204
1,642

350

B. Plaintiff-intervenors’ Plan

22 See note 21, supra.



13a

still be racially identifiable according to Dr. WinecofPs 
standards under Ms Plan A, one-three.

In Plan A, one-three alternate, Dr. Winecoff uses the 
same zone lines as used in his Plan A, one-three. Judged 
by his tolerances, 11 of the 16 schools serving grades one- 
three within the system would continue to be racially 
identifiable under Dr. WinecofPs Plan A, one-three alter­
nate.

Plaintiff-intervenors’ Plan A, four-six, uses elongated 
horizontal zones extending from the east side of the city to 
the west side of the city. This type of strip zoning would 
of necessity require substantial additional transportation 
and would also result in many elementary children having 
to walk a considerable distance farther to school. In some 
instances they would be required to walk past another 
elementary school serving grades one-three. Under this 
proposal, five of 13 schools serving grades four-six would 
continue to be racially identifiable according to Dr. Wine- 
eofPs tolerances.

The evidence reflects that from 60 to 70 percent of all 
elementary school students within the Montgomery system 
would be reassigned under plaintiff-intervenors’ Plan A, 
one-three or one-three alternate, and Plan A, four-six. 
Furthermore, new transportation would be required for 
approximately 2,000 elementary grade children under the 
plaintiff-intervenors’ elementary plans.

Plaintiff-intervenors’ junior high school plan uses strip 
zoning of an elongated shape running obliquely. In some 
instances the seven-nine school zones proposed are only 
four blocks in width. From 50 to 60 percent of all students 
enrolled within the system in grades seven through nine 
would be reassigned under plaintiff-intervenors’ junior

Opinion dated May 22, 1974



14a

high level proposal. Furthermore, approximately 2,000 
students would be newly transported.

The plaintiff-intervenors’ senior high plan uses strip 
zones. For instance, the zone for the Jeff Davis school is 
from two to four blocks in width in certain areas. This 
proposal would require the reassignment of from 30 to 40 
percent of the total high school enrollment within the 
system. The evidence reflects, and this Court now finds, 
that the plan proposed by the plaintiff-interveners for the 
elementary, junior high, and senior high schools in the 
Montgomery school system is designed to achieve a racial 
balance in these schools.

C. The School Board’s Plan

The school board utilizes transportation route changes, 
involving both black and white students, zone changes, the 
closing of physically inferior schools, the consolidation of 
schools, and the construction of new schools in its proposed 
plan for the system. Mr. Silas Garrett, Superintendent of 
Education for the school system and an experienced school 
administrator, testified that the following are the criteria 
that were utilized in formulating the board’s plan:

1. To achieve a unitary school system.

2. To provide an organizational structure which will 
ensure optimum educational opportunities for all children 
with a minimum of disruption.

3. To adjust the assignment of students to available 
physical facilities. 4

4. To utilize available funds to the greatest educational 
advantage.

Opinion dated May 22, 1974



15a

5. To achieve the maximum possible community accep­
tance of the plan thereby resulting in minimal reseg'rega- 
tion.

6. To reassign students in a manner which enhances 1 he 
instructional program of the system.

7. To provide for maximum teachability through the 
matching of assignments with teacher competencies and 
training.

Opinion dated May 22, 1974

8. To utilize the existing transportation in a supportive 
role to the instructional and organizational framework of 
the system.

9. To minimize disruptive transition for students, 
school personnel, and parents and at the same time comply 
with the mandate of the courts in achieving a unitary 
system.

At the present time, the Montgomery school system is 
operating pursuant to a desegregation plan which was 
prepared by a team of HEW experts and which was 
approved by this Court and by the United States Court of 
Appeals for the Fifth Circuit.23 The plan when originally 
approved assigned both black and white students to every 
school in the system with the exception of Loveless School, 
which the Court of Appeals found to be a facility located 
so deep in the heart of a black residential area as not to be 
practical to desegregate. Since the implementation of the 
1970 plan, the evidence in this case reflects that the school

23 Carr v. Montgomery County Board of Education, 429 F 2d 
312 (5th Cir. 1970).



16a

board has attempted in good faith to ensure its effective 
operation. Additionally, since 1970, the school hoard has 
furthered the desegregation of the Montgomery system by 
closing the Billingslea elementary facility and consolidat­
ing that school with the Morningview School. The board 
proposes extensive plans for the transition of the Georgia 
Washington School, one-nine, now an all-black facility, 
into a substantially desegregated junior high school com­
plex. Further substantial desegregation is proposed by 
the board in assigning white students to Carver Senior 
High and Carver Junion High. The board projects 61 per­
cent whites in both schools that have heretofore been 
practically all black. Many other significant and effective 
assignments are to be made by the board—in each instance 
to attempt to achieve a unitary school system. Extra­
curricular activities have been expanded on a desegregated 
basis and inter-school participation through joint seminars 
and educational clinics has been developed.

The evidence reflects that the board considered the 
techniques of satellite zoning, clustering and pairing. How­
ever, the board concluded that it could establish a unitary 
system through the means and methods enumerated with­
out the disruptions of satellite zoning, clustering and pair­
ing as proposed by the plaintiffs and plaintiff-intervenors 
in order to achieve what the evidence in this case reflects 
would be an extremely unstable desegregated school 
system.

The evidence presented to the Court further reflects that 
the population of Montgomery is so arranged that whites 
largely live on the east side of the city and blacks on the 
west. This necessarily means that pairings and clusterings 
would, in the main, be noncontiguous and would require 
cross-city busing. This, of course, would substantially

Opinion dated May 22, 1974



17a

increase tlie time and distance that students would have to 
travel to and from the schools to which they would he as­
signed under such plan.

Under the board’s plan, there will remain a few schools 
with a substantially predominantly black student popula­
tion. All of these are at the elementary level with the 
exception of McIntyre Junior High.24 25

An in-depth analysis of the school board’s plan impresses 
this Court that the continued existence of some substan­
tially predominantly black schools is genuinely nondis- 
criminatory. These schools, Daisy Lawrence, Booker T. 
Washington Elementary, Carver Elementary, Fews, Love­
less, Hayneville Road Elementary, Paterson, Pintlala, 
Davis and Bellinger Hill, are in each instance located deep 
in black residential areas; the white students residing in 
these areas are assigned to the nearest of these schools. 
While this has to some extent desegregated practically all 
of these schools, no ratio has been accomplished that satis­
fies the .plaintiffs and plaintiff-intervenors. The evidence 
reflects, and this Court finds, that in order to further 
desegregate any of these facilities, satellite zoning and the 
cross-city busing of white students would be necessary.26

Opinion dated May 22, 1974

24 Plaintiff-intervenors also project a heavily black enrollment 
at McIntyre. Plaintiffs would, under their proposal, achieve a 
projected 50 percent Maek-white ratio at McIntyre Junior High. 
However, this would be accomplished by satellite zoning and by 
transporting 550 white's for a considerable distance from the 
satellite Cloverdale area and periphery area to the McIntyre 
school. The only purpose in this is to attempt to achieve a racial 
balance in this school that is located deep in a black residential 
area.

25 It is significant that Dr. Winecoff under his Plan A  alternate
leaves Carver Elementary at 85 percent black. Under his Plan A, 
Dr. Winecoff proposes to bus approximately 200 white students



18a

Further, an exchange of black students would have to be 
made by transporting them across the city from these 
school areas. This would not, under the circumstances of 
this case, accomplish any effective and realistically stable 
desegregation. In each instance the situation is a result of 
residential patterns and not of the school board’s action— 
either past or present.

It is significant to an overall evaluation of the board’s 
plan that all of the students in the Montgomery school 
system* 26 will attend a substantially desegregated school 
for the majority of their school careers. Over 80 percent of 
the black children in the system will attend a substantially 
desegregated school for at least six grades of the 12. One 
hundred percent of the black children in the system will 
attend a substantially desegregated senior high facility.27 
At the junior high school level, the only junior high facility 
under the board’s plan that is projected to be over 80 per­
cent black will be the McIntyre Junior High facility which, 
as this Court has previously noted, is impossible to effec­
tively desegregate in a stable and workable manner.

A detailed analysis of the board’s plan is attached and 
marked as Table 2 to this opinion. The chief criticism of 
the plaintiffs and plaintiff-intervenors of the board’s plan 
is that the board is putting the primary burden of desegre­

Opinion dated May 22, 1974

from the various school areas to Carver which would still leave 
Carver Elementary at 61 percent black. These students would 
have to pass three or four elementary schools to arrive at Carver.

26 The only exception involves those students in the Montgomery 
County High-Dunbar Elementary area— and neither the plaintiffs 
nor the plaintiff-intervenors seriously attempt to desegregate these 
schools.

27 For instance, Lanier— 57 percent white, or Carver— 61 per­
cent white.



19a

gating the Montgomery school system on the Mack students. 
The evidence does not bear this out. Approximately 4,000 
white students and 5,000 black students are reassigned 
under the school board’s plan. Furthermore, on the junior 
high level the board’s plan proposes that three virtually 
all-black facilities be converted into predominantly white 
ones, that is, Carver Junior High from zero percent white 
to 61 percent white; Georgia Washington from zero percent 
white to 69 percent white, and Houston Hill from 15 per­
cent white to 60 percent white.

As to the proposal of the board regarding the senior high 
schools within the system, the evidence reflects that all of 
the city senior high schools will be substantially desegre­
gated.

III. A pplicable  L aw

[1, 2] For several years it has been clear, and all parties 
in this ease recognize, that

the obligation of every school district is to terminate 
dual school systems at once and to operate now and 
hereafter only unitary schools.

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20, 
90 S.Ct. 29, 24 L.Ed.2d 19 (1969). In determining what 
constitutes a “unitary” school system, there are six facets 
of school operation which must be considered. These six 
criteria are (1) faculty, (2) staff, (3) transportation, (4) 
extracurricular activities, (5) facilities, and (6) composi­
tion of the student body. Green v. County School Bd., 391 
U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Adams 
v. Rankin County Bd. of Educ., 485 F.2d 324, 325 (5th Cir. 
1973).

Opinion dated May 22, 1974



20a

Opinion dated May 22, 1974

A. Faculty and Staff

[3] In 1968, this Court ordered that the Montgomery 
County School Board must move toward a goal under 
which “in each school the ratio of white to Negro faculty 
members is substantially the same as it is throughout the 
system.” As observed earlier, the United States Supreme 
Court affirmed that order. United States v. Montgomery 
County Bd. of Educ., supra.

An analysis of the evidence presented in this case [see 
Table 1] showrs that the board is in full compliance with 
that order.

B. Transportation, Extra-curricular 
Activities, Facilities

There is no dispute as to the law regarding these indicia 
of desegregation. Suffice it to say that there can be no 
racial discrimination in any of these areas of school opera­
tion. None of the parties seriously contend the board is 
not in full compliance with the law in these areas. Appro­
priate factual findings will be made as to each criterion.

C. Student Body Composition

[4] While it is clear that in disestablishing a segregated 
school system all vestiges of racial segregation must be 
eliminated “root and branch,” Green v. County School Bd., 
391 U.S. 430, 437-438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), 
the establishment of a fixed racial, quota in each school is 
not required by the United States Constitution. The United 
States Supreme Court has ruled that

[t]he constitutional command to desegregate schools 
does not mean that every school in every community



21a

must always reflect the racial composition of the 
school system as a whole.

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 
24, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971).

Thus, it appears that a balance must be reached, one 
unquestionably subtle in its implications: while school 
system segregation must be actively disestablished, racial 
quotas for student population are not to be instituted.

The difficulty of analysis is most acute when the Court 
is confronted, as it is in this case, with several schools 
which contain a student population which is largely of one 
race. Since this Court last considered the compliance of 
this school system with constitutional commands, many 
important cases have been decided by the appellate courts, 
necessitating a re-examination of the law with respect to 
schools whose student population does not typify the 
general population figures. The Supreme Court has, in a 
general manner, addressed the question of one-race schools, 
writing in Swann that

[t]he record in this ease reveals the familiar phenom­
enon that in metropolitan areas minority groups are 
often found concentrated in one part of the city. In 
some circumstances certain schools may remain all or 
largely of one race until new schools can be provided 
or neighborhood patterns change. Schools all or pre­
dominantly of one race in a district of mixed popula­
tion will require close scrutiny to determine that school 
assignments are not part of state-enforced segrega­
tion.

In light of the above, it should be clear that the 
existence of some small number of one-race, or virtu­

Opinion dated May 22, 1974



22a

ally one-race, schools within a district is not in and of 
itself the mark of a system that still practices segre­
gation by law. The district judge or school authorities 
should make every effort to achieve the greatest pos­
sible degree of actual desegregation and will thus 
necessarily be concerned with the elimination of one- 
race schools. No per se rule can adequately embrace 
all the difficulties of reconciling the competing interests 
involved; but in a system with a history of segrega­
tion the need for remedial criteria of sufficient specific­
ity to assure a school authority’s compliance with its 
constitutional duty warrants a presumption against 
schools that are substantially disproportionate in their 
racial composition. Where the school authority’s pro­
posed plan for conversion from a dual to a unitary 
system contemplates the continued existence of some 
schools that are all or predominantly of one race, they 
have the burden of showing that such school assign­
ments are genuinely non-discriminatorv. The court 
should scrutinize such schools, and the burden upon the 
school authorities will be to satisfy the court that their 
racial composition is not the result of present or past 
discriminatory action on their part.

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 
1, 25-26, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971).

Several cases dealing with one-race schools have been 
decided by the Court of Appeals for this circuit since this 
Court last fully considered compliance in this school sys­
tem. While neither the Court of Appeals nor the Supreme 
Court has adopted any explicit, clear test by which to 
measure the constitutional validity of one-race schools, the 
Courf ctf Appeals has, since this Court’s last major order

Opinion dated May 22, 1974



23a

in this case, reversed district courts in school cases and 
held that nine all-black schools in one system could not 
remain in existence,28 that insufficient pairing had been 
ordered when schools which could be paired were about one 
and one-half miles .away,29 and that 14 all-black elementary 
schools in one system had to be paired or rezoned.30 Other 
district courts were reversed because under court-approved 
plans 80 percent of the blacks attended schools where their 
race predominates,31 because 70 percent of all black ele­
mentary students attended one all-black school,32 because 
68 percent of the black elementary school students in a 
system attended schools 90 percent or more black,33 and 
because 44 percent of the black students in one system 
attended all-black or virtually all-black schools.34 These 
cases, and others like them decided since this Court’s last 
consideration of this case, necessitate a re-examination of 
this case in the light of the state of the law and the facts 
as they exist in the Montgomery school system today.

Opinion dated May 22, 1974

28 Bradley v. Bd. of Public Instruction, 431 F.2d 1377, 1380- 
1381 (5th Cir. 1970).

29 Weaver v. Bd. of Public Instruction, 467 F.2d 473, 474 (5th 
Cir. 1972) (all-black school 1.2 to 5.6 miles from predominantly 
white elementary schools) ; Wright v. Bd. of Public Instruction, 
431 F.2d 1200, 1201-1202 (5th Cir. 1970).

30 Mannings v. Bd. of Public Instruction, 427 F.2d 874, 877 (5th 
Cir. 1970). :

31 United States v. Texas Education Agency, 467 F.2d 848, 872-
873 (5th Cir. .1972) (eu balm). . '

32 Boykins v. Fairfield Bd: of Edue.. 457 F.2d 1091, 1093 (5th
Cir. 1972). v

33 Allen v. Bd; of Public Instruction, 432 F.2d 362, 366 (5th 
Cir. 1970).

34 Pate, y, Dade County. 434 F.2d 1151, 1153 (5th Cir. 1970).



24a

Opinion dated May 22, 1974 

IV. P la n  A pproved

[5] As is already evident from what has been stated in 
this opinion, this Court proposes to order implemented in 
toto the desegregation plan as proposed by the Mont­
gomery County Board of Education on January 15, revised 
March 29, 1974, and modified May 8, 1974. The evidence in 
this case reflects that the plans proposed by the plaintiffs 
and by the plaintiff-intervenors will accomplish very little 
stable, long-term desegregation in this school system. This 
Court desires to emphasize that the remaining predom­
inantly black schools in this school system under the board’s 
plan cannot be effectively desegregated in a practical and 
workable manner. In each instance this Court has examined 
and re-examined the evidence and has determined that 
these predominantly black schools exist and continue to 
exist without any discriminatory board action. The board’s 
proposal and this Court, in adopting same, have taken “into 
account the practicalities of the situation” that exist in 
this school system. Davis v. Board of Social Commis­
sioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 28 L.Ed.2d 577. The 
schools that will remain predominantly black in the Mont­
gomery school system are the result of the concentrations 
of blacks in the western area of Montgomery. As the 
Supreme Court observed in Swann v. Charlotte-Mecklen- 
burg, supra, the existence of a small number of predom­
inantly black schools in such areas is not in and of itself a 
sign that a dual school system exists. The school au­
thorities in the Montgomery school system have taken 
affirmative action to the extent required by the law and 
have achieved the greatest possible degree of actual de­
segregation, taking into account the “practicalities of the 
situation.”  As this Court has observed time and time again



25a

in school desegregation cases, racial quotas and busing to 
achieve racial quotas are not required by the law.

A. Elementary Schools

The board has proposed, and this Court is adopting for 
elementary schools, what is in large measure a “neighbor­
hood” or proximity plan, under which an elementary child 
normally attends the school nearest his home.

The Court is aware that any “neighborhood school” plan 
is strictissimi juris in this circuit and is to be adopted, if 
at all, only in narrowly confined instances. This is such 
a case.

In a pure neighborhood school system, as approved in 
Ellis v. Bd. of Public Instruction, 423 F.2d 203 (5th Cir. 
1970), there are two requirements: (1) a strict proximity 
rule must be followed, under which neither man-made nor 
natural boundaries may be considered, but only travel 
distance;85 and (2) the plan must be one which is effective 
to establish a unitary school system.

The second criterion, that the plan must effectively 
provide for a unitary system, was outlined in a footnote:

[u]nder the facts of this case, it happens that the 
school board’s choice of a neighborhood assignment 
system is adequate to convert the Orange County

' school system from a dual to a unitary system.

423 F.2d at 208, n. 7 (emphasis added). 36

36 “We also hold that the. neighborhood system, based on school 
capacity, must be observed without exception. , This will prevent 
any variance' based on'traffic'conditions . . . .  Variances by arbi­
trary zone line's, or for reasons- of; traffic, while reasonable on their 
face, may destroy the integrity and. stability of the. entire assign­
ment plan. If Orange County wishes to maintain a neighborhood

Opinion dated May 22, 1974



26a

However, in a series of cases the Court of Appeals has 
held that an Ellis neighborhood school plan, to be upheld, 
must provide for the ultimate conversion of a dual to a 
unitary school system.

In Andrews v. City of Monroe, 425 F.2d 1017 (5th Cir. 
1970), the Court of Appeals held that in Monroe, Louisiana, 
a city with only 18 schools, an Ellis plan was constitution­
ally infirm if it left 85 percent of the black elementary 
students in all-black schools, or schools nearly so. 425 at 
1019-1020.

In Henry v. Clarksdale Municipal Separate School 
District, 433 F.2d 387 (5th Cir. 1970), involving a small 
city with only seven elementary schools, the Court of 
Appeals reversed a plan which left three all-white ele­
mentary schools and four all-black. The Court of Appeals 
wrote that the order of the district judge “totally ignores 
the real key to Ellis, the strong caveat of footnote 7 . . . .” , 
433 F.2d at 390. Footnote 7 was the footnote in Ellis which 
noted that “it happens that . . . [the plan] is adequate to 
convert the . . . system from a dual to a unitary system.” 
423 F.2d at 208, n. 7.

Similarly, in Ross v. Eckels, 423 F.2d 1140 (5th Cir. 
1970) (Houston, Texas, system), the Court of Appeals 
reversed a district judge’s adoption of the Ellis plan 
where 29 percent of black students were in all-black or 
virtually all-black schoolis, 434 F.2d at 1146, n. 9, noting 
that each case had to be judged on its own facts. Id. at 1147.

In 1970 the Court of Appeals reversed a district court’s 
adoption of an Ellis plan in Alexandria, Louisiana, where

assignment system, then it must do so without variances. Each 
student-m the:system must he assigned t o ;attend'the school'near­
est his or her home, limited only by. the capacity of the. school, 
and then to the next nearest school.” 423 F.2d at 207-208.

Opinion dated .May 22, 1974



27a

60 per cent of the black students were in schools where their 
race constituted 90 percent or more of the student body. 
The Court of Appeals held that

[t]he end result is that neighborhood zoning in Alex­
andria, Louisiana, leaves the majority of the city’s 
Negro students in a virtually segregated school system. 
The fact that the plan complies with the requirements 
for a neighborhood system as enunciated by this Court 
in [Ellis] does not make the system constitutionally 
palatable unless the plan actually works to achieve 
integration.

Valley v. Rapides Parish School Bd., 434 F.2d 144, 145 
(5th Cir. 1970).

In a case from Lake Charles, Louisiana, the Court of 
Appeals reversed a district judge who had adopted an Ellis 
plan, pointing out that

[a]s to ward 3, the Board plan is not up to constitu­
tional standards. In many circumstances the Orange 
County approach of neighborhood schools is adequate 
to convert a school system from a dual to a unitary 
system. But, as Orange County itself makes clear, . . . 
each case turns on all of its own facts, including those 
peculiar to the particular system. . . .  A plan which 
leaves two out of three -black children in Lake Charles 
in schools all black,or substantially so, . . . cannot be 
upheld as constitutional.

Conley v. Lake Charles School Board, 434 F.2d 35 (5th Cir. 
1970). ,

However, the Fifth Circuit Court of Appeals has affirmed 
the use of the Ellis plan in,some circumstances where,the

Opinion dated May 22, 1974



28a

result is a substantially desegregated school system. The 
Court of Appeals approved the use of an Ellis plan for the 
schools of Fulton County, Georgia (excluding Atlanta). In 
that case, only 18 percent of the black students attended 
all-black schools. While several elementary schools were 
largely black in composition, Judge Wisdom pointed out 
that “ [e]very black student at some point in his school 
career will be exposed to complete desegregation. . . .” 
Hightower v. West, 430 F.2d 552, 555 (5th Cir. 1970). There,

[a]s in so many other cases, these majority-black and 
all-black schools are the product of residential segre­
gation and, historically, the location of schools to serve 
a segregated community.

430 F.2d at 555. The Court of Appeals found several defi­
ciencies in the other plans offered at trial, among them that 
“ [t]he pairing proposals . . . would produce longer walking 
distances and busing for these elementary school children.” 
Id.

Similarly, the Court of Appeals approved the use of an 
Ellis plan in the schools of Anniston and Tuscaloosa. Lee 
v. Macon County Bd. of Educ., 429 F.2d 1218, 1222 (5th 
Cir. 1970).

The plan proposed by the school board in this case does 
not precisely fit the Ellis mold. The school assignment has 
not been effected by precise and mathematical distance 
measuring; some natural and man-made boundaries have 
been considered in the process of zoning. However, as this 
Court views Ellis, the Ellis plan in its purity is ultimately 
designed for the school system which is approaching uni­
tary status and will be drawing its own lines. In such a 
situation a strict Ellis plan completely eliminates discre­

Opinion dated May 22, 1974



29a

tion in student assignment, thus eliminating the possibility 
of discriminatory student assignment.

However, in this case the plan is under careful judicial 
scrutiny. This 'Court, long familiar with every aspect of 
this case, is convinced that where the board plan for ele­
mentary schools deviates from a strict Ellis proximity plan, 
the deviation is to maximize, rather than to minimize, de­
segregation; and thus is intended to help meet the consti­
tutional burden which is upon the board.

[6] Therefore, while the school board plan does not 
strictly meet the absolute standard of Ellis, any deviation 
is for a permissible and proper purpose. Thus, this Court 
considers that the principle of Ellis—that neighborhood 
schools may be constitutionally proper—may be adopted 
by the district court if the line construction is under judicial 
scrutiny and the plan adopted effects desegregation of the 
complete system.

It is, therefore, necessary to consider whether the school 
board plan in this case for elementary schools is consti­
tutionally proper.

The plan in Ellis itself, which the Court of Appeals held 
to be “adequate to convert the Orange County school sys­
tem from a dual to a unitary system,” 423 F.2d at 208 n. 7, 
provided for substantially less desegregation at the ele­
mentary level than does the school board plan in this case. 
In Ellis, seventy-four percent (74%) of black elementary 
pupils attended elementary schools which were at least 
ninety-nine percent (99%) black.86 36

Opinion dated May 22, 1974

36 In Ellis, the following elementary schools were at least 99 
percent black: Callahan (99 percent); Eeeleston (100 percent) ; 
Holden Street (99.8 percent); Hungerford (100 percent); Maxey 
(99.7 percent) ; Orange Center (100 percent) ; Richmond Heights 
(100 percent); Washington Shores (100 percent); Webster Ave­



30a

While the school board’s elementary plan here is better 
than that in Ellis, which was affirmed, it is also better, than 
most of the plans which have been modified or reversed by 
the Court.of Appeals for this circnit. For example, the 
Monroe, Louisiana, plan left 85 percent of the black elemen­
tary pupils in all-black schools. 425 F.2d at 1019-1020. The 
Clarksdale, Mississippi, plan appears to have left the ele­
mentary schools completely segregated. 433 F.2d at 390. 
The Alexandria, Louisiana, plan provided that 60 percent 
of the black students were in schools which were 90 percent 
or more black- 434 F.2d at 145.

[7] Thus, while the school board’s elementary school 
plan does not completely eliminate all predominantly black 
schools on the elementary level, the Court is convinced that 
considered as a part of a complete system, under the facts 
of this case, the school board’s elementary plan is constitu­
tionally acceptable. There are several factors which the 
Court considers in arriving at this conclusion.

First, in this system, as Judge Wisdom has pointed out 
in another case, “ [e]very black student at some point in 
his school career will be exposed to complete desegrega­
tion . . . .” Hightower v. West, 430 F.2d 552, 555 (5th Cir. 
1970). Grades seven-twelve of the Montgomery system, 
under the board’s plan, are to be completely desegregated.37

Opinion dated May 22, 1974

nue (99 percent) ; and Wheatley (100 percent). A  total of 6,376 
black students attended those schools, out of a total black ele­
mentary school population of 8,628. Thus, 74 percent of all black 
elementary pupils in Orange County attended schools at least 99 
percent black.

37 The board’s junior high plan would keep only 18 percent of 
the black junior high school 'students in schools 80 percent or 
more black [excluding Montgomery County High School], and no 
high school student would be in a school more than 43 percent 
black [excluding Montgomery County High School],



31a

Second, the system as a whole will be desegregated. All 
of the other five indicia of a unitary school, system, have 
been completely met in this school system. Six members 
of the Court of Appeals,38 concurring specially in an en 
banc case, have recently affirmed the proposition that nor­
mally the system as a whole is examined for purposes of 
determining whether the system is unitai'y; individual 
schools are not looked to for that purpose. United States 
v. Texas Education Agency, 467 F.2d 848, 888 (5th Cir. 
1972) (en banc). In Montgomery County, Alabama, there is 
system-wide desegregation of all six facets and indicia of 
school desegregation.

Third, in the Fulton County, Georgia, case, the Fifth 
Circuit wrote of “ the value of assigning young children to 
nearby schools . . . .” Hightower v. West, 430 F.2d 552, 
556 (5th Cir. 1970). It cannot be denied that there is 
value in having elementary children attend schools near 
their homes. Recognition of this benefit of neighborhood 
elementary schools does not constitute abandonment of 
the goal of desegregation as required by the United States 
Constitution. If a neighborhood elementary school system 
can be effected without a sacrifice of constitutional stan­
dards, then such a plan should be adopted.

All factors considered, the neighborhood elementary 
school system proposed by the board is constitutionally 
adequate to effect desegregation under the facts of this 
case. This Court is convinced that to adopt the plans 
proposed by plaintiffs and plaintiff-intervenors would be

Opinion dated May 22, 1974

It is conceded b y . all parties that Montgomery County High 
School, which is at the opposite end of the county from the city 
schools, cannot be effectively desegregated because of its isolation.

88 Judges Brown, Wisdom, Gewin, Goldberg, Dyer, and Simpson.



32a

to adopt a fixed racial quota for student population. The 
Supreme Court has indicated that not only is the imposi­
tion of racial quotas in schools not required, but a court 
may commit reversible error if it requires a fixed racial 
ratio in student population. Swann v. Charlotte-Mecklen- 
burg Bd. of Educ., 402 U.S. 1, 24, 91 S.Ct. 1267, 28 L.Ed.2d 
554 (1971).

B. Junior High Schools

[8] As observed earlier, under the board’s plan the only 
junior high school facility that will be over 80 percent 
black will be the McIntyre facility. For the reasons pre­
viously noted, it is not feasible to further desegregate the 
McIntyre School in a stable and workable manner. This 
school continues to exist as a predominantly black school 
through no action on the part of the school board. Of the 
13 junior high schools to be operated in the Montgomery 
system, McIntyre is the only one that comes close to being 
racially identifiable. For instance, Houston Hill (a for­
merly all-black school) will be 35 percent black, Goodwyn 
will be 34 percent black, Georgia Washington (a formerly 
all-black school) will be 31 percent black, Floyd will be 35 
percent black, Cloverdale will be 33 percent black, Carver 
(a formerly all-black school) will be 39 percent black, 
Capitol Heights will be 38 percent black, Baldwin (a for­
merly all-white school) will be 73 percent black, and Bellin- 
grath (a formerly all-white school) will be 62 percent black. 
This is the maximum under the circumstances that exist 
in the Montgomery school system that can be required of 
the board.

C. Senior High Schools

[9] The defendant board’s plan on the senior high school 
level, as observed by the United States in its brief, “ap­

Opinion dated May 22, 1974



33a

pears to be fully acceptable.” As a matter of fact, there is 
very little, if any, controversy among the parties as far 
as the operation of the senior high schools in the Mont­
gomery system is concerned.39 The board proposes that 
Carver High be 39 percent black, that Jeff Davis be 38 
percent black, that Lanier be 43 percent black and that 
Lee be 37%. Such a proposal for the senior high schools 
within the system is entirely acceptable.

In summary, every formerly all-white school in the 
Montgomery school system will, under the board’s plan, be 
substantially desegregated. Several formerly all-white 
schools will now be predominantly black. Further, several 
formerly all-black schools will become predominantly 
white.

V . G eneral C onsiderations

A. Majority-to-Minority Transfer Rule

[10] The previous orders entered by this Court in this 
ease required the desegregation of not only the students 
but the faculty and staff, transportation, extra-curricular 
activities, and facilities and also required, among other 
things, a rule that the board allow any student enrolled in 
a school where his race is in the majority to transfer to 
a school where his race will be in a minority. This ma- 
jority-to-minority transfer rule also requires the board to 
provide transportation for those electing to transfer pur­
suant to this rule. This transfer rule is a viable and effec­
tive doctrine in the Montgomery school system. Based on 
a report that was filed with the Court and made a part

39 This is with the exception of Montgomery County High 
which was not proposed to be desegregated by any of the plans 
submitted by the parties by reason of its location in a remote area 
of the county.

Opinion dated May 22, 1974



34a

of the records in this case, in December, 1973, over 600 
blacks had elected to transfer under the maj ority-to-minor- 
ity transfer rule. The majority-to-minority transfer policy 
was incorporated in the order made and entered in this 
case in February, 1970. Upon review of that order, the 
United States Court of Appeals for the Fifth Circuit in 
Carr v. Montgomery County Board, etc., 429 F.2d 382, 
directed that this Court’s order be modified “in light of 
recent opinions of this court.” In July, 1970, pursuant to 
the direction of the Court of Appeals, this Court ordered 
that the Montgomery County Board of Education shall 
provide transportation, if desired, for students transfer­
ring pursuant to this maj ority-to-minority transfer policy. 
The Court also ordered that students so transferring are 
to be given priority for space in the schools to which they 
transfer.

A majority-to-minority transfer provision in a school 
desegregation order is universally recognized by the courts 
as a useful tool to accomplish desegregation in a dual 
school system. As a matter of fact, the Supreme Court of 
the United States in Swann v. Board of Education, supra, 
stated:

An optional majority-to-minority transfer provision 
has long been recognized as a useful part of every de­
segregation plan. Provision for optional transfer of 
those in the majority racial group of a particular 
school to other schools where they will be in the mi­
nority is an indispensable remedy for those students 
willing to transfer to other schools in order to lessen 
the impact on them of the state-imposed stigma of 
segregation. In order to be effective, such a transfer 
arrangement must grant the transferring student free

Opinion dated May 22, 1974



35a

transportation and space must be made available in 
the school to which he desires to move.

The vital importance of the effective operation of the ma- 
jority-to-minority transfer has been noted by the Fifth 
Circuit in several eases.40 In Cisneros, the en bane court 
stated:

An overall amelioration of any possible discrimina­
tion will tend to be accomplished by the use of the 
mandatory majority to minority transfer provision of 
Swann, supra, 402 U.S. at 36-37, 91 S.Ct. 1267, 28 L.Ed. 
2d 554, heretofore ordered by the district court. Such 
a provision will guarantee to both races an unfettered 
right to attend schools with members of an opposite 
race or identifiable ethnic group, and with transporta­
tion provided.

As stated, the Montgomery school board has and con­
tinues to implement a majority-to-minority transfer pro­
vision that complies with every requirement of the existing 
school desegregation laws.

B. Biracial Committee

[11] Up until this time, the Montgomery school board 
has not operated with the assistance of a biracial committee. 
In an order made and entered in this case on March 13, 
1974, this Court stated:

An over-all review of the applicable school desegre­
gation decisions rendered since Swann, Green, and

40 Cisneros v. Corpus Christi Independent School District, 467 
F.2d 142, 153 (5th Cir. 1972) (en banc) ;  Ellis v. Bd. of Public 
Instruction of Orange County, 423 F.2d 203, 206 (5th Cir. 1970) ; 
Singleton v. Jackson Municipal Separate School District, 419 F.2d 
1211, 1218 (5th Cir. 1970) (en banc).

Opinion dated May 22, 1974



36a

Davis reflects that this Court is now required to give 
serious consideration to the appointment of a biracial 
committee. The biracial committee is to be constituted 
by this Court from names submitted by the parties to 
this litigation. The committee is to review the opera­
tion of the Montgomery County transportation system 
and the majority-to-minority transfer rule and is to be 
charged with responsibility in the area of selecting 
school sites. The committee will be authorized to hold 
hearings and make recommendations to the school 
board in connection with any of these activities.

* # * * *
It is further ordered that within 15 days from this 

date each party to this litigation submit to this Court 
the names of 20 citizens residing in Montgomery 
County, Alabama; one-half of the names submitted 
will be black citizens and the other half will be white 
citizens; the submission of these names is to be for the 
purpose of the Court’s constituting from the names 
submitted a biracial committee for the purposes here­
inabove discussed.

The parties have, as directed, submitted the names of citi­
zens to the Court, and the Court has chosen from the names 
submitted 15 black citizens and 15 white citizens to con­
stitute the Montgomery County school system’s biracial 
committee. A separate order will be made and filed con­
temporaneously with this order designating the citizens 
who are to constitute this committee and outlining their 
functions and responsibilities. The Chairmanship of the 
committee will be rotated each two years with the com­
mittee selecting the chairman to succeed the initial chair­
man being designated by this Court. The membership of

Opinion dated May 22, 1974



37a

the committee represents a cross-section of the Montgom­
ery, Alabama, area with regard to race, sex, and ethnic and 
economic backgrounds. The Montgomery County Board of 
Education will be required to cooperate with the committee 
or any of its subcommittees, furnishing any information, 
records or documents requested by said committee.

C. Arbitrary Tolerances or Guidelines

As noted earlier, the plaintiffs’ expert witness, Dr. Foster, 
and the plaintiff-intervenors’ expert witness, Dr. Winecoff, 
instead of evaluating the system as a whole, evaluate each 
school within the system independently for the purpose of 
arriving at certain conclusions that some schools within 
the system continue to be “ racially identifiable.” In doing 
this, Dr. Foster uses a 15 percent variation or tolerance 
and Dr. Winecoff uses a 10 to 15 percent variation or tol­
erance to determine the racial identifiability of elementary 
and junior high schools in the Montgomery school system. 
These variations are determined on the elementary and 
junior high school level on the basis that 48.5 percent of 
the total elementary and junior high school students en­
rolled in the system are black. This means that, pursuant 
to Dr. Foster’s computation (a similar procedure is fol­
lowed by Dr. Winecoff), any elementary or junior high 
school with an enrollment less than 33.5 percent black is 
“racially identifiable” as white. If the enrollment is more 
than 63.5 percent black, the school, according to Dr. Foster, 
is “ racially identifiable” as black.

[12] The use of such variances or tolerances is highly 
artificial and cannot be applied in the Montgomery County 
school system without severely and unnecessarily disrupt­
ing the operation of the system and without severely and 
unnecessarily impinging on the educational processes in the 
Montgomery school system. The application of such for­

Opinion dated May 22, 1974



38a

mulas must of necessity proceed on the theory that a racial 
balance is to be achieved and is required under the law. 
Furthermore, the formalistic and mechanical application 
of the 15 percent tolerance of Dr. Foster of the 10 to 15 
percent tolerance or deviation of Dr. Winecoff gives no 
consideration whatsoever to the other indicia in school 
desegregation cases such as faculty, transportation, facili­
ties and extra-curricular activities. To label schools that 
do not fall within these tolerances or deviations as “ racially 
identifiable” means that, in order not to be “racially iden­
tifiable,” each school within any school system must meet 
certain predetermined ratios. As this Court has stated 
through the years time and time again, racial balance is 
not constitutionally required. The Supreme Court of the 
United States in Swann v. Board of Education, supra, em­
phasized this by stating:

[i] f we were to read the holding of the District Court 
to require, as a matter of substantive constitutional 
right, any particular degree of racial balance or mix­
ing, that approach would be disapproved and we would 
be obliged to reverse. The constitutional command to 
desegregate schools does not mean that every school 
in every community must always reflect the racial com­
position of the school system as a whole.

V I . C onclusion

This Court feels an obligation to point out that its allow­
ance of a neighborhood elementary school system does not 
constitute an abandonment by this Court of the goal of 
securing to all citizens their rights guaranteed by the Four­
teenth Amendment. This Court has always strived to guar­
antee to all citizens, both black and white, their right to

Opinion dated May 22, 1974



39a

Opinion dated May 22, 1974

equal protection of the laws. This Court has never balked 
at the enforcement of constitutional rights in racial dis­
crimination cases. In the last nineteen years, this Court 
has sat in cases in which the constitutional rights of black 
citizens had been denied in that blacks were discriminated 
against when they sought an equal right to use buses,41 air­
ports,42 43 libraries,48 parks,44 and YMCA’s.45 The Court has 
further dealt with racial discrimination in the areas of vot­
ing rights,46 jury selection,47 and governmental hiring by 
both state 48 and federal49 governments, and has also dealt

41 Lewis v. Greyhound Corp., 199 F.Supp. 210 (M.D.Ala. 1961) ; 
Browder v. Gayle, 142 F.Supp. 707 (M.D.Ala. 1956), aff’d, 352
U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1957).

43 United States v. City of Montgomery, 201 F.Supp. 590 (M.D. 
Ala. 1962).

43 Cobb v. Montgomery Library Board, 207 F.Supp. 880 (M.D. 
Ala. 1962).

44 Gilmore v. City of Montgomery, 176 F.Supp. 776 (M.D.Ala.
1959) .

46 Smith v. YMCA, 316 F.Supp. 899 (M.D.Ala. 1970), aff’d 462 
F.2d 634 (5th Cir. 1972).

46 State of Alabama v. Rogers, 187 F.Supp. 848 (M.D.Ala.
1960) , aff’d 285 F.2d 430 (5th Cir. 1961); United States v. State 
of Alabama, 252 F.Supp. 95 (M.D.Ala. 1965); United States v. 
Parker, 236 F.Supp. 511 (M.D.Ala. 1964); United States v. Cart­
wright, 230 F.Supp. 873 (M.D.Ala. 1964) ; United States v. Pen- 
ton, 212 F.Supp. 193 (M.D.Ala. 1962); United States v. State of 
Alabama, 192 F.Supp. 677 (M.D.Ala. 1961).

47 Penn v. Eubanks, 360 F.Supp. 699 (M.D.Ala. 1973); White 
v. Crook, 251 F.Supp. 401 (M.D.Ala. 1966).

48 NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala. 1972), aff’d, 
493 F.2d 614 (5th Cir. 1974) ; Strain v. Philpott, 331 F.Supp. 836 
(M.D.Ala. 1971) ; United States v. Frazer, 317 F.Supp. 1079 
(M.D.Ala. 1970); 297 F.Supp. 319 (M.D.Ala. 1968).

49 Penn v. Schlesinger, 350 F.Supp. 752 (M.D.Ala. 1973), aff’d, 
490 F.2d 700 (5th Cir. 1973), rehearing en banc granted (5th 
Cir. 1974).



40a

Opinion dated May 22, 1974

with governmental districting.60 In the school field, this 
Court has decided cases which involved aid to private 
schools,61 school desegregation on the level of local schools,* 51 52 53 
statewide administration,63 athletic programs,54 faculty,55 
graduate schools,56 and trade schools and junior colleges.57 
This Court stands on its record showing its willingness to 
protect, where necessary, the constitutional rights of black 
citizens against racial discrimination by government offi­
cials. This Court has not in the past allowed, and is not 
now allowing, the violation of constitutional rights to go

60 Yelverton v. Driggers, 370 F.Supp. 612 (M.D.Ala. 1974).
51 Gilmore v. City of Montgomery, 337 F.Supp. 22 (M.D.Ala. 

1972), modified and aff’d, 473 F.2d 832 (5th Cir. 1972) cert 
granted, 414 U.S. 907, 94 S.Ct. 215, 38 L.Ed.2d 145 (1973); 
Crenshaw County Private School Foundation v. Connally 343 
F.Supp. 495 (M.D.Ala. 1972), aff’d, 474 F.2d 1185 (5th Cir. 1973) ; 
Lee v. Macon County Bd. of Edue., 267 F.Supp.' 458 (M.D.Ala’. 
1967); 231 F.Supp. 743 (M.D.Ala. 1964).

62 Lee v. Macon County Bd. of Educ., 292 F.Supp. 363 (M.D. 
Ala. 1968) ; 289 F.Supp. 975 (M.D.Ala. 1968); 270 F.Supp. 859 
(M.D.Ala. 1967) ; 231 F.Supp. 743 (M.D.Ala. 1964) ; Harris v. 
Crenshaw County Bd. of Educ., 259 F.Supp. 167 (M.D.Ala 
1966) ; Franklin v. Barbour County Bd. of Educ., 259 F.Supp. 
545 (M.D.Ala. 1966); Harris v. Bullock County Bd. of Educ. 253 
F.Supp. 276 (M.D.Ala. 1966) ; Carr v. Montgomery County Bd 
of Educ., 253 F.Supp. 306 (M.D.Ala. 1966).

53 Lee v. Macon County Bd. of Educ., 267 F.Supp. 458 (M.D. 
Ala. 1967).

64 Lee v. Macon County Bd. of Educ., 283 F.Supp. 194 (M D 
Ala. 1968).

Carr v. Montgomery County Bd. of Educ., 289 F.Supp. 647 
(M.D.Ala.), aff’d as modified, 400 F.2d 1 (5th Cir 1968) aff’d 
395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969).

56 Parker v. Franklin, 223 F.Supp. 724 (M.D.Ala.), 
modified, 331 F.2d 841 (5th Cir. 1964).

aff’d as

67 Lee v. Macon County Bd. of Educ., 317 F Supp 103 
Ala. 1970), aff’d 453 F.2d 524 (5th Cir. 1971).

(M.D.



41a

Opinion dated May 22, 1974

unremedied. In adopting the school board’s plan providing 
for elementary schools under a “neighborhood” system, this 
Court in all respects is following the mandate of the Four­
teenth Amendment and has arrived at the conclusions stated 
herein upon an evaluation of the Montgomery school sys­
tem as a whole.



42a

TABLE 1

Opinion dated May 22, 1974

FACULTY DESEGREGATION

Name of School
September 1973

1974-75
Projections

Black White Black White

1 Baldwin 18 22 8 12

2 Bear 8 13 9 14

3 Bellinger Mill 4 4 4 7

4 Bellingrath 17 28 18 25

5 Booker T. Washington (Elementary) 6 7 6 6

6 Booker T. Washington (Jr. High) 5 6 To be closed

7 Capitol Heights (Elementary) 10 15 6 7

8 Capitol Heights (Jr. High) 17 25 15 22

9 Carver (Elementary) 15 19 7 10

10 Carver (Jr. High) 8 12 13 19

11 Carver (Sr. High) 21 . 25 19 28

12 Catoma 3 6 4 4

13 Chilton 4 4 To be closed
14 Chisholm 13 21 14 20

15 Clovercfale 19 27 IS 24

16 Crump 11 16 13 19

17 Daisy Lawrence 9 13 8 11

18 Dalrairia 1) 13 9 11

19 Dannelly 14 19 10 13

20 Davis 11 17 11 17

21 Dunbar 7 11 8 9

22 Fews 9 10 10 16

23 Flowers 12 17 11 15

24 Floyd 17 28 19 29

25 Forest Avenue 7 11 7 10

26 Georgia Washington 8 13 16 25

27 Goode Street 6 7 3 5

20 Goodwy:. 22 32 22 28

29 Harrison 12 16 12 14

30 Hayriovi 1 le Road 18 23 15 23

31 Head 9 13 8 11

32 highland Avenue 7 10 7 9

33 Highland Gardens 15 20 15 - 20
34 Houston Hill 8 10 8 12
35 Jefferson Davis 32 61 36 59
36 Johnson 10 13 30 ... . 13
37 Lariicr 37 63 30 49
38 Lee 55 64 40 65
39 Loveless 13 14 16 23
40 McIntyre 17 25 12 19
41 MacMillan 7 7 6 7

42 Madison Park 3 5 To be Closed
43 Montgomery Area Voc. Center 5 14 8 11
44 Montgomery County High 9 15 9 12
45 Morninoview 10 13 9 13
46 Paterson 13 14 11 14
47 Peterson 9 11 8 1)
48 Pintla'a 4 6 4 6
49 So:.-Ui lawn .30 14 9 13
50 Union St. Area Voc. Center 10 13 14 17
51 Eastern Bypass (Elementary) — 10 16
52 Vaughan Road (Elementary) - 9 12



43a

TABLE 2

Opinion dated May 22, 1974

Fj EMF.NTAR.Y

Actual Enrollment, March, 1974 Projected Under Board Plan

SCHOOL B_Ljck White Total % Black Black White Total % Black

BEAR 7ft 503 578 12.9 V. 186 505 691 27%
BELLINGER HILL ELEM. 103 4 2 150 72 186 43 229 81
I3ELLINGRATH ELEM. life 83 199 58.3 115 100 215 53
BOOK. WASH. ELEM. 253 4 257 98 255 4 259 93
CAPT. HGTS. ELEM. 120 4 63 583 20.5 119 192 311 38
CARVER ELEM. 84fe 2 848 99 421 2 423 99
CATOMA ELEM. 70 163 233 30* 63 154 217 29
CHILTON ELEM. 127 13 110 90 Clcscd-assigned tc Oa Ira Ida nd Head
CHISHOLM ELEM. 338 565 903 37 326 555 381 37
CRUMP ELEM. 39 690 779 11 263 703 966 27
DAISY LAWRENCE ELEM. 449 - 7 4 56 98 445 7 452 98
DALRAIOA ELEM. fe9 577 646 10.6 153 428 581 26
DAN NELLY ELEM. 9fe 915 1.011 9.5 236 4 84 720 32
OAVES ELEM. fe27 89 716 87 615 91 706 8-7
DUNBAR ELEM. 339 50 389 87 .340 51 391 87

FEWS ELEM. 44 3 2 445 99 64 0 3 643 99
FLOWERS ELEM. 12fe 623 754 16.7 169 573 742 23
FLOYO ELEM. 191 312 503 3 7.9 146 319 4 67 32
FOREST AVENUE ELEM. 176 269 445 39.5 172 262 434 40
GEORGIA WASH. ELEM. 323 3 326 99 Ccr.vol. with new schools
GOODE ST. ELEM. 279 1 200 99 Convert :d to center for hanc capped

HARRISON ELEM. 293 433 731 40 184 427 611 30

HAYNV, RD. ELEM. 679 29 703 96 669 30 699 95

HEAD CLEM. 63 531 599 11.3 148 415 663 26

HIGHLAND AV. E.l.EM. 118 271 389 30.3 115 2 72 337 30

HIGHLAND GARDENS EL. 334 555 889 37.5 335 551 036 38

JOHNSON ELEM. 40 557 605 7.9 175 550 725 24

LOVELESS ELEM. 289 0 289 100 902 5 907 99

MCINTYRE ELEM. 615 5 620 99.2 Consol with Loveless

Mac MIL LAN ELEM. 204 105 309 66 205 1 109 ... » « _ 65

m a d is o n  p a r k  e l e m . 14 2 0 112 100 Closed assigned to Eastern Ty-pass

MORN INC VIEW ELEM. 131 467 598 22 134 486 620 22

PATERSON ELEM. .557 32 639 94 566 34 600 94

PETERSON ELEM. 174 299 473 36.7 175 299 474 37

PI NT'. At A ELEM. 205 14 219 93 204 16 220 93

SOUTH LAWN ELEM. 157 491 648 24 223 492 715 31

EASTERN BY-PASS EL. 149 539 738 20

VAUGHAN RD. ELEM. 133 4 09 597 32

TOTALS 9,279 9,170 13,449 9,224 9,160 18,384

JUNIOR HIGH

Black White Total V. Black Black White I s U i % Black

BALDWIN JR. 553 635 1,193 46.7 290 107 397 73

BELLINGRATH JR. 680 373 1,053 64 659 390 1,049 62

BOCK. WASH. JR. 221 0 221 ~1 100 Consol with Cap Hgts., Cl v., and Houston H: 11

CAPT. HGTS. JR. 313 839 1,202 26 44 2 730 1,172 38

CARVER JR. 534 0 534 100 350 545 895 39

CLOVERDALE JR. 156 1,351 1,507 10.3 437 875 1,312 33

FLOYD JR. 159 575 734 21.6 283 541 829 35

HAYNV. RO. JR. 280 17 297 94.2 Consol. with Floy■i and Goodwyn

G. WASHINGTON JR. 160 0 160 100 357 782 1,139 31

GOOOWYN JR. 259 1,339 1,598 16 540 1,031 1,571 34

HOUSTON MILL JR. 326 57 383 85 210 383 593 35

LOVELESS JR. 353 0 353 100 Consol. with Me ntyre .
McINTYF.F. JR. 391 18 409 96 792 14 806 98

TOTALS 4,390 5,254 9,644 4,365 5,393 9,763

SENIOR HIGH ’

Black White Total % Black Black White Total % Black

CARVER SR. 958 6 964 99 4 39 660 1,099 39

JEFF. DAVIS SR. 412 1,668 2.080 4 19.8 868 1,426 2,294 33

LANIER SR. 951 1,283 2,239 42.5' 31 7 1,063 1,335 43

LEE SR. 661 1,527 2,188 30.2 929 1,560 2,4 89

MTGY. CO. HIGH SR. 391 61 452 86.5 399 63 462 66

TOTALS 3,373 4,550 7,923 3,452 4,777 8,229



44a

Opinion dated April 11, 1975

A blam  Cabr, J r., a minor by Arlam Carr and 
Johnnie Carr, etc., et al.,

Plaintiff s-Appellants,

N ational  E ducation  A ssociation , I n c .,

Intervenor,
P enelope A n n e  J e n k in s , et al .,

Intervenor s-Appellants, 
v.

M ontgomery C o u n ty  B oard of E ducation , et  a l ., etc .,

Defendants-Appellees, 
U nited  S tates of A m erica ,

Amicus Curiae,

No. 74-2633.
United States Court of Appeals,

Fifth Circuit.
April 11, 1975.

Before G e w in , G oldberg and D yer , Circuit Judges.
P er C u r ia m :

We affirm the judgment of the district court for the 
reasons set forth in its opinion, 377 F.Supp. 1123 (M.D. 
Ala. 1974). The judgment of the district court is attached 
as Appendix A. We take note of the history of this liti­
gation as reflected by the opinions of the district court, 
this court, and the Supreme Court cited in the district 
court’s opinion. The Montgomery County school system 
has been under the scrutiny and surveillance of the fed­
eral judiciary for a substantial period of time and such 
scrutiny and surveillance will continue.

Affirmed.



45a

Opinion dated April 11, 1975 

APPENDIX A

I n  th e  U nited S tates D istrict  C ourt 
eor th e  M iddle D istrict  op A labam a  

N orthern  D ivision

A rlam  C arr, J r ., et  a l .,
Plaintiffs,

N ation al  E ducation  A ssociation , I n c . ;
P enelope A n n e  J e n k in s , et a l .,

Plaintiff -Intern enors,

U nited  S tates op A m erica ,
Amicus Curiae,

v.

M ontgomery C o u nty  B oard op E ducation , et al .,

Defendants.

Civil Action No. 2072-N 
J udgm ent

Pursuant to the findings of fact and conclusions of law 
made and entered in a memorandum opinion filed in this 
cause this date, it is the order, judgment and decree of 
this Court that:

1. The plans presented by the plaintiffs and plaintiff- 
intervenors for the further desegration of the Montgomery 
County school system be and are hereby rejected.

2. The plan presented by the defendant Montgomery 
County Board of Education on January 15, 1974, revised 
on March 29, 1974, and modified on May 8, 1974, be and is 
hereby approved and ordered implemented.



46a

3. The school board’s plan will be implemented forth­
with, with the student assignments to the various schools 
within the system to be effective with the commencement 
of the 1974-75 school year.

4. The school board will file with the Court on Sep­
tember 15, 1974, and on February 15, 1975, and on said 
dates each year thereafter, written reports reflecting the 
actual student and teacher assignments, by race, in each 
school in the system.

5. The costs incurred in this proceeding be and they 
are hereby taxed one-half against the plaintiffs and one- 
half against the plaintiff-intervenors.

Done, this the 22nd day of May, 1974.

/ s /  F r a n k  M. J ohnson  
United States District Judge

G oldberg, Circuit Judge (dissenting):
Respectfully, but without equivocation, I dissent.
This suit was brought in 1964 to desegregate the public 

schools in Montgomery County, Alabama. Its progress has 
been recorded at several stages in opinions by the able 
District Judge, by this Court, and by the Supreme Court.1 
In August, 1973, the district court ordered the parties then 
in this case-—the plaintiffs, the defendant School Board, 
and the United States—to submit proposals for further 
desegregation of the Montgomery County system in light of

1 Carr v. Montgomery County Bd. of Educ., M.D.Ala. 1964, 232 
F.Supp. 705; further relief ordered, 1966, 253 F.Supp. 306; fur­
ther relief ordered, 1968, 289 F.Supp. 647, aff’d, 5 Cir., 400 F 2d 
1, aff’d, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263, further 
relief ordered by district court, 1970, [unreported], aff’d with 
modifications, 5 Cir. 1970, 429 F.2d 382.

Opinion dated April 11, 1975



47a

decisions by this Court and the Supreme Court since the 
entry in 1970 of the last comprehensive order in the case. 
One week later, plaintiffs-intervenors, Jenkins, et ah, filed 
their motion to intervene, which was granted in February, 
1974. During the first four months of 1974, plaintiffs, 
plaintiffs-intervenors, and the School Board each prepared 
and proposed new pupil assignment plans. Hearings were 
held on each plan in April. The School'Board amended its 
plan in response to prodding from the Bench, and in an or­
der entered May 22, 1974, and opinion reported at 377 
F.Supp. 1123, the district court adopted the School Board 
plan, as amended, in its entirety. Costs were taxed half 
against the plaintiffs and half against the plaintiffs-in- 
tervenors.

The plaintiffs, the plaintiffs-intervenors, and the United 
States appeal, arguing between them that the district court 
erred in adopting the School Board’s plan for the assign­
ment of elementary and junior high school students, that 
the School Board assignment plan saddles black elementary 
school students with a disproportionate transportation bur­
den, and that costs should have been taxed against the 
School Board.

I would hold that the district court should not have 
adopted the School Board’s proposed assignment plan for 
the elementary grades because it fell short of establishing 
a unitary school system, and there was no sufficient find­
ing that no workable alternative could be implemented. 
The record indicates additionally that the School Board 
plan for the assignment of junior high students, as im­
plemented, fails to comply with constitutional mandates. 
Accordingly, I would remand to the district court for fur­
ther proceedings to develop workable unitary school assign­
ment plans for the elementary and junior high grades.

Opinion dated- April 11, 1975



48a

In light of this I would find it unnecessary at the time to 
pass on the appellants’ claims of unequal transportation 
burdens. I would vacate the district court’s award of costs 
in favor of the School Board, to permit the entry of an 
appropriate award after the further proceedings on remand.

I
Background

For the 1973-74 term, Montgomery County public schools 
enrolled 36,016 students, 17,042 (47%) of whom were black, 
and 18,974 (53%) white, in some 54 regular schools, or­
ganized along a 1-6, 7-9, 10-12 pattern. The 36 elementary 
schools enrolled 18,449 students (9,279, or 50%, black), 
the 13 junior high schools, 9,644 (4,390, or 45%, black), 
and the 5 high schools 7,923 (3,373, or 43%, black).2 All 
but 7 of the schools then in use stood within the corporate 
limits of the City of Montgomery, and the total county 
population is similarly concentrated within the City.

The student population residing in the area of Mont­
gomery County outside the City is predominantly black. 
Within the City the student population is predominantly 
white: the eastern half of the City is more concentratedly 
white; most of the western half is virtually all-black; and 
a narrow integrated corridor running North-South bisects 
the City. Under the desegregation plan adopted in 1970 
and effective in 1973-74, most pupils within the City were 
assigned to neighborhood schools. Outside the City, school 
children in all but the extreme south of the county2 were

21 rely here upon the figures referenced in the district court’s 
opinion, although the plaintiffs-intervenors assign some minor 
inaccuracies thereto. 3

3 These students attended Dunbar Elementary School (1-6) 
and Montgomery County High School (7-12), both of which re­
main virtually all-black under all plans proposed to the district 
court.

Opinion dated April 11, 1975



49a

organized into “periphery zones.” Most of these “periph­
ery zone” students were bused to schools in the City, and 
they made up the majority of the 11,176 students (31%) 
bused by the county.4 *

Implementation of the neighborhood assignment based 
plan adopted in 1970 left a high number of all-one-race or 
virtually all-one-race schools. The record discloses that in 
the Spring of 1974, 15 elementary schools were 87% or 
more black, and 6 were 87% or more white; 6 junior highs 
were 94% or more black, another was 85% black, and 1 
was 90% white; 1 senior high was 99% black, and another 
was 86% black. Responding to these conditions, in its order 
below the district court replaced its 1970 plan with the 
School Board’s most current proposal. That plan adheres 
to the techniques employed in the 1970 plan, and, unlike 
the plans suggested by the plaintiffs and plaintiffs-inter- 
venors, eschews pairing or clustering of schools.

At the high school level, the School Board plan employs 
rezoning and peripheral reassignments to reduce the per­
centages of black students at each City school to 33-48 % ; 
only Montgomery County High School, in the extreme south 
of the County, retains an 87% black student body.6 None 
of the appellants question the propriety of this high school 
plan, and it requires no further discussion. Rather, this 
appeal was brought to test the constitutional sufficiency of 
the School Board’s student assignment plans for the ele­
mentary and junior high levels. I will discuss each of the 
two educational stages in turn.

Opinion dated April 11, 1975

4 During the 1973-74 term, some 5,388 elementary school stu­
dents, 3,759 junior high students, and 2,029 senior high students 
were bused.

6 See Appendix C; see also note 35 infra.



50a

Opinion dated April 11, 1975 

I I

Elementary School Plan

The plaintiffs and plain tiff s-intervenors each proposed 
alternative plans for assignment of elementary school stu­
dents. Each plan aimed at eliminating “ racially identifi­
able” schools, defined at the outset by each plan’s architect 
as a school whose racial balance varied more than 10-15% 
from the racial make-up of the county-wide student body 
for that level. Neither plan clung strictly to such statistical 
profiles, however, and each left at least one virtually all­
black elementary school.

The plaintiffs’ plan was directed only toward the ele­
mentary schools within the City. It generally retained the 
zone lines drawn by the School Board, but changed assign­
ment patterns within those zones through pairing and clus­
tering, and some modification of peripheral assignments, 
to reach a 24-66% black concentration in each city school. 
The district court calculated that implementation of the 
plaintiffs’ plan would require reassignment of 43% of the 
elementary school population and additional transportation 
of 28% of the elementary student body. The district court 
concluded that the plaintiffs’ plan was designed “ for the 
sole purpose of attaining a strict racial balance in each 
elementary school involved,” 377 F.Supp. at 1129, and that 
the increased busing, large scale reassignment of students 
and teachers, and the “fracturization of grade structure” 
inherent in pairing and clustering, “be disruptive to the 
educational processes and would place an excessive and 
unnecessarily heavy administrative burden on the school 
system.” Id.

The plaintiffs-intervenors proposed a more complicated 
overhaul of elementary school assignments. Their plans



51a

abandoned the School Board zone lines, replacing them with 
two sets of new zones: one set of strip zones, running gen­
erally North-South, for grades 1-3; another set of strip 
zones, running generally East-West, for grades 4-6. Utiliz­
ing this basic network the plaintiffs-intervenors offered 
two possible plans. The simpler plan merely assigned stu­
dents to the school within their proposed contiguous zone. 
This left 400 black students in grades 4-6 in a school 81% 
black, and 2233 of the black primary grade 1-3 children in 
schools 84% or more black. The plaintiffs-intervenors’ 
alternative, and preferred, plan retained their grade 4-6 
zone pattern and the single 81% black school, but added 
satellite zoning to the primary grade assignments, reduc­
ing to 402 the total of black students in one 84% black 
primary school. The plaintiffs-intervenors’ plan offered 
transportation advantages over the plantiffs’ plan, requir­
ing additional busing for only 11% of the elementary school 
students, according to the district court. There was evi­
dence that the plaintiffs-intervenors’ plan would prove the 
more likely thwarted in practice, however, and the district 
court found that implementation of either of the plaintiff- 
intervenors’ plans would involve reassignment of 60-70% 
of all of the elementary school population. The district 
court entered no specific findings as to the workability of 
the plaintiffs-intervenors’ plans.

The School Board plan adopted by the district court for 
the assignment of elementary school children furthers de­
segregation by closing 5 previously virtually all-black ele­
mentary schools and assigning some pupils from these 
schools to predominantly white schools, and by reassigning 
some 400 black students at another virtually all-black school 
to 4 predominantly white schools. Under this plan, how­
ever, 55% of the black students were projected to be en­

Opinion dated April 11, 1975



52a

rolled at elementary schools 87% or more black, and 44% 
were expected to attend elementary schools 93% or more 
black. The statistics showing actual enrollment as of Sep­
tember 15, 1974, demonstrate that the true profiles are 
slightly worse.6 Under the School Board plan no white 
elementary school students were reassigned to a school 
that would remain predominantly black. The School Board 
estimated that its elementary school plan would produce 
a .significant net reduction of transportation.

A

Unitary School System

As the Supreme Court established in Green v. School 
Bd. of New Kent County, 1968, 391 U.S. 430, 436, 88 S.Ct. 
1689, 1693, 20 L.Ed.2d 716, 722, “The transition to a uni­
tary, nonracial system of public education . . .  is the ulti­
mate end to be brought about” in school desegregation 
cases. In this pursuit the school authorities and district 
court “will . . . necessarily be concerned with the elimina­
tion of one-race schools.” Swann v. Charlotte-Mecklenburg 
Bd. of Educ., 1971, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 
L.Ed.2d 554, 572. The district court, relying on Ellis v. 
Board of Public Instruc. of Orange County, 5 Cir. 1970, 
423 F.2d 203 (Ellis I), concluded, however, that the per­
sistence of virtually all-black elementary schools in Mont­
gomery County under the School Board’s “neighborhood 
assignment” plan did not prevent that system from reach­
ing the unitary status mandated by Green. I disagree.

Opinion dated April 11, 1975

6 See Appendix A  & note 37 infra.



53a

Ellis I  approved, as modified,7 a student desegregation 
plan for Orange County, Florida, which, was based on 
neighborhood school assignments and left several virtually 
all-black schools. We held that “ [u]nder the facts of this 
case, it happens that the school board’s choice of a neigh­
borhood assignment system is adequate to convert the Or­
ange County school system from a dual to a unitary sys­
tem.” 423 F.2d at 208, n. 7. Ellis I  did not, however, 
automatically sanctify any “neighborhood school” student 
assignment plan which placed the same percentages of stu­
dents in fully integrated schools. Rather, as we explicitly 
cautioned,

There are many variables in the student assignment 
approach necessary to bring about unitary school sys­
tems. The answer in each case turns, in the final anal­
ysis, as here, on all of the facts including those which 
are peculiar to the particular system.

423 F.2d at 208, n. 7. This passage has become a refrain 
in our school desegregation decisions.8 Indeed, our school 
desegregation cases are too numerous, their facts, figures, 
and conditions too particular, and our remedies too flexibly 
fashioned, to lend themselves to a simple sorting into neat 
rows. But I believe that the weight of our pre-Swann 
decisions adopting and adapting the neighborhood assign­
ment approach of Ellis I do not permit us to certify the 
School Board’s plan for Montgomery as the achievement

Opinion dated April 11, 1975

7 The district court’s opinion below, 377 F.Supp. at 1137 n.36, 
erroneously reads the Ellis I  opinion as approving the degree of 
desegregation under the Orange County plan without modifica­
tion.

s See, e.g., Henry v. Clarksdale Mun. Sep. Sch. Dist., 5 Cir. 
1970, 433 F.2d 387, 390; Andrews v. City of Monroe 5 Cir 1970 
425 F.2d 1017, 1019.



54a

Opinion dated April 11, 1975

of a unitary system.9 As we concluded in Allen v. Board of 
Public Instruc. of Broward County, 5 Cir. 1970, 432 F.2d 
362, “In the conversion from dual school systems based 
on race to unitary school systems, the continued existence 
of all-black or virtually all-black schools is unacceptable 
where reasonable alternatives exist.” 10 * •

Even were the School Board’s plan adequate to achieve 
a unitary school system under Ellis I  and the cases im­
mediately following it, however, I think it manifest that the 
School Board’s plan cannot stand after Swann, Davis v. 
Board of School Comm’rs of Mobile County, 1971, 402 U.S. 
33, 91 S.Ct. 1289, 28 L.Ed.2d 577, and Keyes v. School Dis­
trict No. 1, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. 
Swann shed new light on the constitutional requisites in 
school desegregation cases, and since Swann we have re­
fused to accept mere compliance with our decision in Ellis I 
as the mark of a school board plan’s constitutional suffi­

9 See, e.g., Ross v. Eckels, 5 Cir. 1970, 434 F.2d 1140, cert, 
denied, 1971, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 123; Valley 
v. Rapides, 5 Cir. 1970, 434 F.2d 144; Conley v. Lake Charles 
School Bd., 5 Cir. 1970, 434 F.2d 35; Allen v. Board of Public 
Instruc. of Broward County, 5 Cir. 1970, 432 F.2d 362 cert 
denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29 L.Ed.2d 123; 
Pate v. Dade County School Bd., 5 Cir. 1970, 434 F 2d 1151 
cert, denied, 1971, 402 U.S. 953, 91 S.Ct. 1613, 29 Ii.Ed.2d 123; 
Bradley v. Board of Public Instruc. of Pinellas County, 5 Cir 
1970, 431 F.2d 1377, cert, denied, 1971, 402 U.S. 943, 91 S.Ct. 
1608, 29 L.Ed2d 111; Hightower v. West, 5 Cir. 1970, 430 F.2d 
552; Mannings v, Board of Public Instruc. of Hillsborough County 
5 Cir. 1970, 427 F.2d 874. In each of these “neighborhood assign­
ment cases we required that the concentration of black students 
attending virtually all-black schools be reduced far below the level 
accomplished under the School Board plan for Montgomery. This 
is not, of course, to disregard the complex of other variables present 
in each case. See also Wright v. Board of Public Instruc of 
Alachua County, 5 Cir. 1970, 431 F.2d 1200.

10 Quoted with approval in Boykins v. Fairfield Bd of Educ
5 Cir. 1972, 457 F.2d 1091, 1095. ' ”



55a

ciency. Indeed, we held Ellis v. Board of Public Instruc. 
of Orange County, 5 Cir. 1972, 465 F.2d 878, cert, denied, 
1973, 410 IT.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis II), 
that the school board was obliged to desegregate each all­
black school remaining in Orange County under our prior 
holding.11 See also Dandridge v. Jefferson Parish School 
Bd., 5 Cir. 1972, 456 F.2d 552, 554,12 cert, denied, 1972, 409 
U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240.

The concentration of black students in virtually all-black 
schools contradicts the assertion that the School Board’s 
plan for Montgomery establishes a unitary school system 
under these controlling standards. Compare, e.g., Stvann, 
supra; Davis, supra; Ellis II, supra; Flax v. Potts, 5 Cir. 
1972, 464 F.2d 865, 869, cert, denied, 1972, 409 U.S. 1007, 
93 S.Ct. 433, 34 L.Ed.2d 299 (middle schools, high schools); 
Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456 
F.2d 552, cert, denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 
L.Ed.2d 240; cases cited, note 9 supra; see also Keyes v. 
School Disk No. 1, 1973, 413 U.S. 189, 199, n. 10, 93 S.Ct. 
2686, 2692, 37 L.Ed.2d 548, 558. The teaching of Swann 
and Keyes is that no school which reflects vestigial dis­
crimination through its virtually single-race student body 
can be omitted from a desegregation plan unless inclusion 
is unworkable; where desegregation is possible we can

11 We found the Orange County system could be unitary, how­
ever, although two elementary schools, to which 7% of the sys­
tem’s black elementary students were assigned, continued with 
79% black enrollments, where 14% of the System’s black students 
had employed the majority to minority transfer program.

12 Compare Lee v. Macon County Bd. of Educ. (Anniston), 5 
Cir. 1973, 483 F.2d 244 (post-Swann), with Lee v. Macon County 
Bd. of Educ. (Anniston), 5 Cir. 1970, 429 F.2d 1218 {pre-Swann). 
But cf. Lee v. Macon County Bd. of Educ. (Troy), 5 Cir. 1973, 
475 F.2d 748 (apparently denying interim relief only).

Opinion dated April 11, 1975



56a

tolerate no abandonment of some given portion of students 
locked into a uniracial educational experience.

In appraising a school board’s plan we are, of course, 
attentive to conditions other than racial concentrations. I 
cannot agree, however, with the suggestion that compliance 
with the remaining five of the six requirements established 
in Green v. School Board of New Kent County, 1968, 391 
U.S. 430, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, 722— 
“faculty, staff, transportation, extra-curricular activities 
and facilities”—can immunize the School Board’s plan.13 
So to conclude would ignore that “ [i]n Green the court 
spoke in terms of the whole system,” Ellis I, 423 F.2d at 
204, and would disregard the recognition that student as­
signment is the most important single aspect of a desegre­
gated school system. Our cases have always required com­
pliance with all six particulars.14 The School Board addi­
tionally argues that the secondary schools in Montgomery 
County are desegregated, and points out that we have taken 
note of thorough integration at the secondary level, in 
some cases approving assignment plans which left some 
all-black primary schools. See Lee v. City of Troy Bd.

13 See 377 F.Supp. at 1138. I assume arguendo that the Board 
plan complies with the remaining five benchmarks enumerated in 
Green.

14 See, e.g., Ellis II, supra; Valley v. Rapides, 5 Cir. 1970. 434 
F.2d 144; Allen v. Board of Public Instruc. of Broward Countv, 
5 Cir. 1970, 432 F.2d 362, cert, denied, 1971, 402 U.S. 952, 91 
S.Ct. 1609, 1612, 29 L.Ed.2d 123; Pate v. Dade County School 
Bd., 5 Cir. 1970, 434 F.2d 1151, cert, denied, 1971, 402 U.S. 953, 
91 S.Ct. 1613, 29 L.Ed.2d 123; Henry v. Clarksdale Mun. Sep. 
School Disk, 5 Cir. 1970, 433 F.2d 387; Bradley v. Board of Pub­
lic Instruc. of Pinellas County, 5 Cir. 1970, 431 F.2d 1377, cert, 
denied, 1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111; City of 
Monroe v. Andrews, 5 Cir. 1970, 425 F.2d 1017. See generally 
Singleton v. Jackson Mun. Sup. School Dist,, 5 Cir. (en bane) 
1970, 419 F.2d 1211.

Opinion dated April 11, 1975



57a

Opinion dated April 11, 1975

of Educ., 5 Cir. 1970, 432 F.2d 819, 822; Hightower v. West, 
5 Cir. 1970, 430 F.2d 552, 555. This argument also fails 
here. Even assuming arguendo that the secondary schools 
in Montgomery County were fully integrated, we would as 
in the pre-Swann cases relied upon by the School Board, 
attach little weight to that consideration. Moreover, as it 
has become quite clear, “ [T]his court has, with limited 
exceptions [not applicable here] disapproved of school 
board plans which exclude a certain age grouping from 
school desegregation.” Arvizu v. Waco Indep. School Dist., 
5 Cir. 1974, 495 F.2d 499, 503.15 In the light of Sivann and 
our developed case law, it is manifest that the progressive 
integration of Montgomery’s high schools is no excuse for 
the continued failure to desegregate at the elementary 
level.16

In sum, a neighborhood school assignment plan may be 
adequate if it establishes a unitary school system; but 
such assignment is not “per se adequate.” Davis v. Board 
of School Comm’rs of Mobile County, 1971, 402 U.S. at 37, 
91 S.Ct. at 1292, 28 L.Ed.2d at 581. A review of the cir­
cumstances of the Montgomery County system, particularly

15 In some cases it may prove necessary to avoid transportation 
of school children of very tender age, see generally Swann, 402 
U.S. at 31, 91 S.Ct. at 1283, 28 L.Ed.2d at 575; Cisneros v. Corpus 
Christi Indep. School Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 
153, cert, denied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 
1044. But such exceptions are carefully limited, see, e.g., Flax 
v. Potts, 5 Cir., 1972, 464 F.2d 865, 869, cert, denied, 1972, 409 
U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299; Lockett v. Board of 
Educ. of Muscogee County School Dist., 5 Cir. 1971, 447 F.2d 
472, 473; cf. Lee v. Macon County Bd. of Educ., 5 Cir. 1973, 475 
F.2d 748 (apparently denying interim relief only).

16 In cases where racially identifiable primary schools cannot 
feasibly be eradicated, of course, a district court should endeavor 
particularly to insure that students from such schools will gradu­
ate to fully integrated schools.



58a

tlie concentration of black elementary students in virtually 
all-black schools, reveals that the School Board plan ap­
proved by the district court was insufficient to achieve a 
unitary school system as required under Green and Swann. 
Such a plan can stand only if its lack of unitary status 
is not attributable to state action, or if no further remedy 
is workable.

Opinion dated April 11, 1975

B

Residential Patterns

The district court declined to require further desegrega­
tion of the remaining virtually all-black elementary schools 
in Montgomery County, in part because it considered the 
persistence of those schools to be “ a result of residential 
patterns and not of the school board’s action—either past 
or present.” 377 F.Supp. at 1132. Because the district 
court’s opinion offers no supporting discussion, it is un­
clear whether the district court believed that the present 
existence of virtually all-black schools could be laid in part 
to residential patterns established during the period of 
statutory school segregation yet not induced by that state 
action, or that the development of racially identifiable 
neighborhoods since the onset of efforts to integrate the 
schools had precipitated the virtually all-black schools.17 
In either event, I think the district court erred in its legal 
determination.

Aware that “ [p]eople gravitate toward school facilities, 
just as schools are located in . response to the needs of 
people,” the Supreme Court has recognized that

17 The record discloses that of the 11 elementary schools which 
retain a projected black population over 80% under the School 
Board’s “neighborhood assignment” plan, 8 (all but Bellinger 
Hill, Davis, and Pintlala) had been black schools before 1970.



59a

[t]lie location of schools may . . . influence the patterns 
of residential development of a metropolitan area and 
have important impact on composition of inner-city 
neighborhoods.

In the past, choices in this respect have been used 
as a potent weapon for creating or maintaining a state- 
segregated school system.

Swann, 402 U.S. at 20, 21, 91 S.Ct. at 1278, 28 L.Ed.2d at
569.
Moreover,

[A] connection between past segregative acts and pres­
ent segregation may be present even when not appar­
ent and . . . close examination is required before 
concluding that the connection does not exist. Inten­
tional school segregation in the past may have been 
a factor in creating a natural environment for the 
growth of further segregation.

Keyes, 413 U.S. 189, 211, 93 St.Ct. 2686, 2699, 37 L.Ed.2d 
548, 565.
Accordingly, the Swann Court held that while

the existence of some small number of one-race, or vir­
tually one-race, schools within a district is not in and 
of itself the mark of a system that practices segrega­
tion by law [ , ] . . .  in a system with a history of seg­
regation the need for remedial criteria of sufficient 
specificity to assure a school authority’s compliance 
with its constitutional duty warrants a presumption 
against schools that are substantially disproportionate 
in their racial composition. Where the school author­
ity’s proposed plan for conversion from a dual to a 
unitary system contemplates the continued existence 
of some schools that are all or predominantly of one

Opinion dated April 11, 1975



race, they have the burden of showing that such as­
signments are genuinely nondiscriminatory. The court 
should scrutinize such schools, and the burden upon 
the school authorities will be to satisfy the court that 
their racial composition is not the result of present or 
past discriminatory action on their part.

Swann, 402 U.S. at 26, 91 S.Ct. at 1281, 28 L.Ed.2d at 572. 
The School Board may satisfy its burden “only by showing 
that its past segregative acts did not create or contribute 
to the current segregated condition of . . . [particular] 
schools.” Keyes, 413 U.S. at 211, 93 S.Ct. at 2699, 37 
L.Ed.2d at 565.

There is no evidence to support a conclusion that the 
existence of virtually all-black neighborhood elementary 
schools, so far as they derive from residential patterns 
etched before school desegregation, is innocent of past dis­
criminatory action by the School Board. The opinion below 
lacks the detailed factual findings by the district court which 
should reflect the “close scrutiny” required under Stvann 
and Keyes, and the record bears no evidence to support the 
conclusion that the link between past and present segrega­
tion has been severed. While there is much evidence of 
the residential separations between whites and blacks in 
Montgomery, which in some cases shows that those pat­
terns are not new, evidence of this sort is insufficient to 
overcome the presumption established in Swann connect­
ing the development of persistently segregated residential 
patterns with state-mandated scho'ol segregation. See also 
Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456 
F.2d 552, cert, denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 
L.Ed. 240.

These principles establish equally well that racial segre­
gation in the Montgomery County elementary schools can­

Opinion dated April 11, 1975



61a

not be excused on the ground that segregated residential 
patterns of some neighborhoods from which the one-race 
neighborhood schools draw have crystallized as the result 
of population shifts by private residents since the court’s 
initiation of school desegregation. Such an argument has 
previously been rejected by this Court.18 To be sure, the 
Supreme Court has made clear that after a school system 
attains unitary status,

the communities served by such [a system may not] 
remain demographically stable [ ; ] . . .  in a growing, 
mobile society, few will do so. Neither school authori­
ties nor district courts are constitutionally required 
to make year-by-year adjustments of the racial compo­
sition of student bodies once the affirmative duty to 
desegregate has been accomplished and racial discrimi­
nation through official action is eliminated from the 
system.

Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283, 28 L.Ed.2d at 
575.
But in Montgomery a unitary system has never been 
achieved, for “ [t]he vestiges of state-imposed segregation 
[have not] been eliminated from the assignment of elemen­
tary school students,” Flax v. Potts, 5 Cir. 1972, 464 F.2d 
865, 868, cert, denied, 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 
L.Ed.2d 299, as required under Swann.19

18 See Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 868, cert, denied, 
1972, 409 U.S. 1007, 93 S.Ct, 433, 34 L.Ed.2d 299; cf. Boyd v. 
Pointe Coupee Parish School Bd., 5 Cir. 1974, 505 F.2d 632; 
Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974, 504 F.2d 857; 
Adams v. Rankin, 5 Cir. 1973, 485 F.2d 324.

19 Of. Ellis v. Board of Public Instruc. of Orange County, 5 
Cir. 1972, 465 F.2d 878, 879-80,. cert, denied, 1973, 410 U.S. 966,

Opinion dated April 11, 1975



62a

Opinion dated April 11, 1975 

C

Remedy
Because the School Board’s proposed elementary school 

plan falls short of achieving a unitary system, and this 
failing cannot he attributed solely to private action, the 
district court should have ordered an appropriate alterna­
tive plan. As we have said before Swann and reiterated 
after, “ [i]n the conversion from dual school systems based 
on race to unitary school systems, the continued exist­
ence of all-black or virtually all-black schools is unaccept­
able where reasonable alternatives exist.” 20 

The district court discarded the plans proposed by the 
plaintiffs and plaintiffs-intervenors, after determining that 
they aimed at balancing black/white student populations 
on abstract ratios, rather than simply creating a unitary 
assignment plan. Although the plaintiffs and plaintiffs- 
intervenors protest that their use of ratios as indicators 
of residually discriminatory school assignments remained

93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis II) ; Dandridge v. Jefferson 
Parish School Bd., 5 Cir., 1972, 456 F.2d 552, 554, cert, denied, 
1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240. Moreover, there 
is even some indication of Montgomery County School Board 
action since the onset of court-ordered desegregation which may 
tend to perpetuate the dual system. As the district court found 
at a prior stage in this litigation, the location and extent of con­
struction and expansion of elementary and secondary schools in 
Montgomery County have “been designed to perpetuate, and have 
the effect of perpetuating, the dual school system.” Carr. v. 
Montgomery County Bd. of Educ., M.D.Ala. 1968, 289 F.Supp. 
647, 652. See generally, Swann, 402 U.S. at 18-21, 91 S.Ct. at 
1277, 28 L.Ed.2d at 568-70; cf. Keyes, 413 U.S. at 201-05, 93 S.Ct. 
at 2694-2695, 37 L.Ed.2d at 559-61.

20 Allen v. Board of Educ. of Broward County, 5 Cir. 1970, 432 
F.2d 362, 367, cert, denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 
1612, 29 L.Ed.2d 123, quoted in Boykins v. Fairfield Bd. of Educ., 
5 Cir. 1972, 457 F.2d 1091, 1095.



63a

within the bounds approved by the Supreme Court in 
Swann, 402 U.S. at 22-25, 91 S.Ct. at 1279-1280, 28 L.Ed.2d 
at 570-72, I would not hold that the district court abused 
its discretion in choosing not to follow those plans. Nev­
ertheless, the elimination of those proposals did not re­
lieve the district court of its duty to exercise its “broad 
power to fashion a remedy that will assure a unitary 
school system,” and to “make every effort to achieve the 
greatest possible degree of actual desegregation and . . . 
[eliminate] one-race schools.” Swann, 404 U.S. at 16, 26, 
91 S.Ct. at 1281, 28 L.Ed.2d at 567, 572. Upon determin­
ing that none of the alternatives presented was satisfac­
tory, the district court should have held further proceed­
ings to forge a workable and effective plan. See Cisneros 
v. Corpus Christi Indep. School Dist., 5 Cir. (en banc) 
1972, 467 F.2d 142, 152, cert, denied, 1973, 413 U.S. 922, 
93 S.Ct. 3052, 37 L.Ed.2d 1044. The district court should 
support its failure so to proceed only by a conclusion 
that no further desegregation of the elementary school 
population was workable on any plan.

The School Board has consistently maintained that no 
workable means exists for increasing desegregation in the 
elementary schools, and the district court agreed, finding 
“that the remaining predominantly black schools cannot 
be effectively desegregated in ‘a practical and workable 
manner’ and that the School Board plan achieved ‘the 
greatest possible degree of actual desegregation, taking 
into account the ‘practicalities of the situation.’ ” 377 F. 
Supp. at 1135. These conclusions are drawn on insuffi­
cient or improper factual considerations, however, and are 
thus inadequate as a matter of law.

The district court reasoned that any further elementary 
school desegregation would require cross-busing of black 
and white students which “would not, under the circum­

Opinion dated April 11, 1975



64a

stances of this case, accomplish any realistically stable 
desegregation.” 377 F.Supp. at 1132.21 The opinion car­
ries no discussion or subsidiary findings to explain its 
concern with the stability of desegregation. Apparently 
the district court was persuaded by the School Board’s 
attempt22 23 to demonstrate that busing of white children 
into black neighborhoods to attend traditionally black 
schools would in many cases be met with withdrawal of 
white students from those schools. But it is well settled 
that the threat of “white flight,” however likely, cannot 
validate an otherwise insufficient desegregation remedy.28 
To the extent that it considered white flight as a factor re­
quiring the moderation of desegregation otherwise to be 
ordered, the district court was in error.

The opinion below does not sufficiently explicate the re­
maining factors (other than stability) that the district 
court appraised and the reasoning it followed in deter­
mining that no further elementary school desegregation 
was feasible beyond that suggested by the School Board. 
The district court simply specified the totals of children 
to be reassigned and the number of students to be newly

21 The district court also forecast that the plans of the plain­
tiffs and plaintiffs-intervenors would provide only “an extremely 
unstable desegregated system.” 377 F.Supp. at 1131.

22 See, e.g., Transcript, April 24, 1974, at 240.
23 See, e.g., Monroe v. Board of Commissioners of City of Jack- 

son, 1968, 391 U.S. 450’, 459, 88 S.Ct. 1700, 1704, 20 L.Ed.2d 733, 
739; Lee v. Macon County Bd. of Educ. (Marengo), 5 Cir. 1972, 
465 F.2d 369; United States v. Hinds County School Bd., 5 Cir. 
1969, 417 F.2d 852, 858, cert, denied, 1970, 396 U.S. 1032, 90 S.Ct. 
612, 24 L.Ed.2d 531; Lee v. Macon County Bd. of Educ. (Pick­
ens), M.D.Ala. (3 judge) 1970, 317 F.Supp. 95, 98-99. Cf., e.g., 
Boyd v. Pointe Coupee Parish School Bd., 5 Cir. 1974, 505 F.2d 
632; Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974, 504 F.2d 
857; Adams v. Rankin, 5 Cir. 1973, 485 F.2d 324.

Opinion dated April 11, 1975



65a

based under the plaintiffs’ and plaintiffs-intervenors’ plans; 
observed without any specific findings that busing would 
involve a substantial increase in the time and distance that 
students would have to travel to school; and then concluded 
that the plaintiffs’—but not the plaintiffs-intervenors’— 
plan “would be disruptive to the educational processes and 
would place an excessive and unnecessarily heavy admin­
istrative burden on the school system.” These findings are 
an inadequate foundation on which the rest either a deter­
mination of the unworkability of the proposed plans or a 
conclusion that no improvement of the Board’s solution 
could be obtained. Nor does the face of the record reveal 
any inherent obstacle to the progress of all further desegre­
gation in Montgomery through the instruments of zoning, 
pairing, and busing. Each of these tools has been approved 
in Swann, 402 U.S. at 27-29, 91 S.Ct. at 1281-82, 28 L.Ed.2d 
at 573-74, and Cisneros v. Corpus Christ! Indep. School 
Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 152-53, cert, de­
nied, 1973, 413 IBS. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044, and 
repeatedly utilized in this circuit.

We have, where necessary, required both rezoning24 * and 
pairing or clustering;26 and while pairing may not be the

24 See, e.g., Conley v. Lake Charles School Bd., 5 Cir. 1970, 434 
F.2d 35, 39-41; Valley v. Rapides Parish School Bd., 5 Cir. 1970, 
434 F.2d 144, 147; Pate v. Dade County School Bd., 5 Cir. 1970, 
434 F.2d 1151, 1158, cert, denied, 1971, 402 U.S. 953, 91 S.Ct. 
1613, 29 L.Ed.2d 123; Bradley v. Board of Public Instruc. of 
Pinellas County, 5 Cir. 1970, 431 F.2d 1377, 1381-83, cert, denied,
1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111. See also 
Wright v. Board of Public Instruc. of Alachua County, 5 Cir. 
1970, 431 F.2d 1200.

26 See, e.g., Weaver v. Board of Public Instruc. of Brevard 
County, 5 Cir. 1972, 467 F.2d 473, cert, denied, 1973, 410 U.S. 
982, 93 S.Ct. 1498, 36 L.Ed.2d 177; Flax v. Potts, 5 Cir. 1972, 
464 F.2d 865, 868-69, cert, denied, 1972, 409 U.S. 1007, 93 S.Ct. 
433, 34 L.Ed.2d 299; Ross v. Eckels, 5 Cir. 1970, 434 F.2d 1140,

Opinion dated April 11, 1975



66a

Opinion dated April 11, 1975

remedy of first resort,* 26 we have said and repeated that 
“where all-black or virtually all-black schools remain under 
a zoning plan, but it is practicable to desegregate some or 
all of the black schools by using the tool of pairing, the 
tool must be used.” 27 The record, insofar as it reveals the 
administrative practicalities associated with rezoning and 
pairing or clustering, does not appear to preclude the im­
position of all measures beyond those desired by the School 
Board. The record fails to-indicate in any way how Mont­
gomery’s situation differs from the conditions existing in 
any of the many other school districts in which we have 
specified that these measures be employed. Indeed, exami­
nation of the record suggests the feasibility of their util­
ization in several instances.28 Accordingly, I would hold

1148, cert, denied, 1971, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 
123; Henry v. Clarksdale Mun. Sep. School Disk, 5 Cir. 1970, 
433 F.2d 387, 394-95; Allen v. Board of Public Instruc. of Brow­
ard County, 5 Cir. 1970, 432 F.2d 362, 367-71 (citing additional 
cases), cert, denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29 
L.Ed.2d 123. See also Miller v. Board of Educ. of Gadsden, 5 Cir. 
1973, 482 F.2d 1234; Boykins v. Fairfield Bd. of Educ., 5 Cir. 
1972, 457 F.2d 1091, 1095; Andrews v. City of Monroe, 5 Cir 
1970-, 425 F.2d 1017, 1021.

26 Allen v. Board of Public Instruc. of Broward County, 5 Cir 
1970, 432 F.2d 362, 367, cert, denied, 1971, 402 U.S. 952, 91 S.Ct. 
1609, 29 L.Ed.2d 123, quoted in Flax v. Potts, 5 Cir. 1972, 464 
F.2d 865, 868, cert, denied 1972, 409 U.S. 1007, 93 S.Ct. 433, 34 
L.Ed.2d 299, and Boykins v. Fairfield Board of Educ., 5 Cir 
1972, 457 F.2d 1091, 1095.

27 See Cisneros v. Corpus Christi Indep. School Disk, 5 Cir. 
(en banc) 1972, 467 F.2d 142, 153, cert, denied, 1973, 413 U.S. 
922, 93 S.Ct. 3052, 37 L.Ed.2d 1044; Conley v. Lake Charle's 
School Bd., 5 Cir. 1970, 434 F.2d 35, 39.

28 In regard to the initial administrative difficulties associated 
with re-zoning and pairing, we emphasize “ [t]he fact that a 
temporary, albeit difficult, burden may be placed on the School 
Board in the initial administration of the plan . . . does not 
justify in these circumstances the continuation, of a less than



67a

that the district court erred in approving the School Board 
plan, and remand the cause for implementation of a con­
stitutionally sufficient plan.

The district court entered no specific findings regarding 
the extent in time or miles* 29 of additional busing required 
to implement any of the desegregation plans before it, nor 
did it express any conclusions as to whether “ the time or 
distance of travel [under any possible plan was] so great 
as to either risk the health of the children or significantly 
impinge on the educational process.” Swann, 402 U.S. at 
30-31, 91 S.Ct. at 1283, 28 L.Ed.2d at 575. Certainly it is 
clear that the School Board plan employs less than the 
maximum busing possible, since it anticipates a significant 
reduction in elementary school student busing in the year 
of implementation. Accordingly, I would direct that in 
analyzing remedies for desegregation of the Montgomery 
schools on remand, the district court should consider the 
implementation of additional busing as necessary to accom­
plish new zoning, pairing, or clustering.80

Opinion dated April 11, 1975

unitary school system and the resulting denial of an equal edu­
cational opportunity to a certain segment of the [County] chil­
dren.” Dandridge v. Jefferson Parish School Bd., E.D.La. 1971, 
332 F.Supp. 590, 592, stay denied, 1971, 404 II.S. 1219, 92 S.Ct, 
18, 19, 30 L.Ed.2d 23, 24 (Marshall, J,, in chambers; quoting 
cited language with approval), aff’d, 5 Cir. 1972, 456 F.2d 552, 
cert, denied, 1972, 409 U.S. 978, 93 S.Ct, 306, 34 L.Ed.2d 240.

29 See Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. 
1972, 467 F.2d 142, 153, cert, denied, 1973, 413 U.S. 922, 93 S.Ct. 
3052, 37 L.Ed.2d 1044.

80 Significantly, the extent— in terms of the number of pupils 
involved, and apparently the length of the trip's— of additional 
elementary student busing envisioned in connection with the 
plaintiffs’-intervenors’ plan very closely parallels the increase in 
elementary school busing under the desegregation plan imple­
mented in Swann, as reflected in the opinions in the Supreme 
Court, 402 U.S. at 29-31, 91 S.Ct. at 1282-1283, 28 L.Ed.2d at 
574-75, and the Fourth Circuit, 1970, 431 F.2d 138, 144-47.



68a

To summarize, I would hold that the district court erred 
in adopting the School Board plan, because that plan falls 
short of the constitutional mark, and because there is no 
indication of the unworkability of a Constitutional remedy. 
I do not believe the district court’s result can be upheld on 
any of the arguments advanced, whether independently or 
cumulatively considered. If there be no other way to de­
segregate, the tools of pairing and clustering must be used 
to relieve the barricaded and beleaguered blacks from their 
school garrisons. These mixing mechanisms have received 
judicial blessing, and they must be employed unless mani­
festly unusable for constitutional reasons. Other innova­
tions may be considered. Nothing to achieve the constitu­
tional mandate to desegregate can be avoided because of 
whimsy, white flight and fright, inconvenience, annoyance 
or any other actual or conjured excuse. Desegregation of 
education is a constitutional necessity and not an optional 
luxury, and bland generalities will not suffice to justify 
segregated schools.

I would be unwilling to require the immediate implemen­
tation of any of the alternative elementary school plans 
presented, however, in light of the district court’s deter­
mination that the plans of the plaintiffs and plaintiffs- 
intervenors were generated to achieve racial ratios beyond 
and in contravention of the mandate of Swann, in light of 
the state of the record, and in light of the opportunity re­
maining for the district court to refine and meld the various 
plans before it.31 Bather I would remand the case to the 
district court for further proceedings to develop a proper 
plan. We have in the past required specific and detailed 81

81 Cf. Adams v. Rankin County Bd. of Educ., 5 Cir. 1973. 485 
F.2d 324, 326; Andrews v. City of Monroe, 5 Cir., 1970, 425 F  2d 
1017, 1021.

Opinion dated April 11, 1975



69a

findings to accompany the district court’s selection of a 
desegregation remedy that promises to be less effective 
than alternative plans for establishing a unitary school 
system.82 83 This requirement is meant to secure to the re­
viewing court the full advantages of the factual appraisals 
and perspective of the particularly well-situated trial court, 
in order to maximize the benefits of the district court’s 
informed discretion. Cf. Brown v. Board of Educ. of 
Topeka, 1955, 349 U.S. 294, 299-300, 75 S.Ct. 753, 755-756, 
99 L.Ed. 1083, 1105-06 (Brown II).  Thus I would direct 
that, if the district court should approve on remand a plan 
less than fully effective in establishing a unitary school 
system in Montgomery County, it must support its conclu­
sion with precise and detailed findings of fact, keeping in 
mind Swann’s heavy burden upon school officials to legit­
imate any less than thorough desegregation plan on 
grounds of unworkability :33

All things being equal, with no history of discrimina­
tion, it might well be desirable to assign pupils to 
schools nearest their homes. But all things are not 
equal in a system that has been deliberately con­
structed and maintained to enforce racial segregation. 
The remedy for such segregation may be administra­
tively awkward, inconvenient, and even bizarre in 
some situations and may impose burdens on some; but

Opinion dated April 11, 1975

82 See, e.g., Adams v. Rankin County Bd. of Educ., 5 Cir. 1973, 
485 F.2d 324, 326; Boykins v. Fairfield Bd. of Educ., 5 Cir. 1972, 
457 F.2d 1091, 1097; Andrews v. City of Monroe, 5 Cir. 1970, 425 
F.2d 1017, 1021; cf. also, Winston-Salem/Forsyth County Bd. of 
Educ., 1971, 404 U.S. 1221, 1226-27, 92 SlCt. 1236, 1239, 31 L.Ed. 
2d 441, 446 (Burger, C. J., in chambers).

83 See also Green v. School Bd. of New Kent County, 1968, 391 
U.S. 430, 439, 88 S.Ct, 1689, 1695, 20 L.Ed.2d 716, 724.



70a

all awkwardness and inconvenience cannot be avoided 
in the interim period when remedial adjustments are 
being made to eliminate the dual school system.

402 U.S. at 28, 91 S.Ct. at 1282, 28 L.Ed.2d at 573, Many 
practicalities affect the judgment and aims of school au­
thorities in pursuing their daily occupation of maintaining 
a pragmatic educational system. But when the constitu­
tionally mandated establishment of a unitary school system 
rests in the balance, workaday practicalities are no longer 
determinative factors. The conservation of such daily effi­
ciencies may have been a considered objective in the days 
of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138, 
41 L.Ed. 256, but Brown v. Board of Educ. of Topeka, 1954, 
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), has 
taken us down a new road. Broivn and its post-adolescent 
progeny have imposed upon school authorities and courts 
an affirmative duty to see that such stumbling blocks in 
the path of desegregation are relegated to a footnote in 
history. As we observed in a prior Montgomery case,34 * 
“This obligation is unremitting, and there can be no abdica­
tion, no matter how temporary.” A school board’s plan 
may have any number o f advantages when appraised in 
ordinary perspective, but these give way where they im­
pede the progress of desegregation; convenience as well as 
custom must bend to constitutional prescription.

Given my resolution of this aspect of the attack on the 
School Board’s plan for the elementary grades, I would 
find it unnecessary to consider at this time whether that 
plan imposes a discriminatorily harsh burden on the black 
students.

Opinion dated April 11, 1975

34 Carr v. Montgomery County Bd. of Educ., 5 Cir 1970 429
F.2d 382, 386. ’



71a

Opinion dated April 11, 1975 

III
Junior High School Plan

The junior high school student assignment plan in effect 
in the Spring of 1974 left over half of the black students 
in 7 junior high schools which were over 85% black. The 
School Board plan, as implemented by the district court, 
proposed to reduce this concentration through rezoning, 
peripheral reassignments, and the elimination of three 
black schools; the district court projected that McIntyre 
Junior High, enrolling 792 of the County’s black junior 
high students (18%) would remain the only junior high 
facility36 more than 80% black under the School Board 
plan.

Both the plaintiffs and plaintiffs-intervenors submitted 
alternative plans for desegregation at the junior high level. 
The plaintiffs proposed to modify the basic School Board 
plan through additional busing to achieve a closer racial 
balance at McIntyre and two other junior high schools left 
substantially black under the Board plan, Bellingrath and 
Baldwin. The plaintiff s-intervenors projected a 65% black 
student body at McIntyre, and a less than 60% black en­
rollment at each of 8 other junior high schools within the

36 The district court’s opinion, following the style of the School 
Board plan, treats the some 252 (233 black, 19 white) junior high 
school students in attendance at the Montgomery County High 
facility as senior high school students. The apparent premise to 
this treatment is that “ [i] t is conceded by all parties that Mont­
gomery County High School . . . cannot be effectively desegre­
gated because of its isolation.” 377 F.Supp. at 1138, n. 37. This 
conclusion is not contested here, although the plaintiffs-interve- 
nors’ plan did propose to reduce the junior high class at Mont­
gomery County High from 92% to 82% black. My figures follow 
the style of the district court.



72a

City, under a plan of new elongated but continuous strip 
zones, with transportation to be provided within each zone 
where necessary. In adopting the School Board plan for 
the junior high schools, the district court dismissed these 
alternative proposals as too inflexibly wedded to abstract 
racial balancing, and suggested that they were unfeasible. 
Emphasizing the isolation of McIntyre as the only vir­
tually all-black junior high remaining under the School 
Board plan, the district court held that “under the circum­
stances that exist in the Montgomery school system” no 
further requirement of desegregation could be imposed 
upon the County. 377 F.Supp. at 1139.36

Unfortunately, the data revealing the actual desegrega­
tion at the junior high schools accomplished under the 
School Board plan, as of September 15, 1974, show that 
“ the circumstances” have changed.37 False to predictions,

36 The district court found that the plaintiffs’ proposed plan 
would require reassignment of 36% of the junior high student 
body, and additional transportation of about 17% ; the plaintiffs- 
intervenors’ plan was forecast to require reassignment of 50-60% 
and additional busing of some 20%. (The plaintiffs-intervenors 
assert that the opinion below is clearly erroneous in its computa­
tion of busing required under their junior high plan; I would 
not pass on the issue at this time.) The district court did not 
enter any findings regarding the proportion of students reassigned, 
projected to be reassigned, or newly transported under the School 
Board plan. Nor does the opinion below reveal any specific con­
clusions regarding the Significance of the burdens in reassigning 
or transporting additional students, except that the McIntyre 
facility “is impossible to effectively desegregate in a stable and 
workable manner.” 377 F.Supp. at 1132.

37 See Appendix B. The actual enrollment figures as of Sep­
tember 15, 1974, are taken from the School Board’s October 1, 
1974, report to the District Court, per that court’s order. These 
figures are not challenged by any other parties. See Davis v. 
Board of School Comm’rs of Mobile County, 1971, 402 U.S. 33 37 
91 S.Ct. 1289, 1291, 28 L.Ed.2d 577, 580. This data is utilized in 
Appendices A, B, and C.

Opinion dated April 11, 1975



73a

the student body at McIntyre Junior High is 98% black, 
Baldwin is 85% black, and Bellingrath is, as I compute it,38 39 
81% black. Thus, more than a quarter of the black junior 
high school students in the City89 are locked in schools 85% 
or more black, and nearly 40% in schools 80% or more 
black.

I would not pass now on the academic question of the 
acceptability of the School Board plan as proposed and im­
plemented by the district court. It is now clear that the 
School Board plan has been unsuccessful, as implemented, 
in accomplishing desegregation at the junior high level,40 
and there is no indication on the record that the present 
circumstances are beyond remedy. As the previous dis­
cussion of the elementary school plan should make clear, 
the School Board plan for the junior high schools cannot

Opinion dated April 11, 1975

38 The actual enrollment figures for Bellingrath, as of Septem­
ber 15, 1974, are estimations. According to the district court’s 
opinion, projected attendance at the Bellingrath facility wa's to 
be 215 (115 black, 100 white) at the elementary level and 1049 
(659 black, 390 white) at the junior high level. Actual enrollment 
as of September 15, 1974, listed by the School Board is a com­
bined total of 911 (681 black, 230 white) students; no breakdown 
is given as to grade levels.

The total actual attendance at Bellingrath is considerably lower 
than the total projected attendance. The net over-projection is 
93 black students (12% of projection), and 260 white students 
(53% of projection). In estimating actual attendance, I have, 
conservatively, attributed the total decrease to the junior high 
level, where the enrollment was projected to be 62% black, and 
for which the zone was to be significantly shifted for 1974-75. 
I would, of course, direct that on remand the district court pro­
ceed to determine the actual enrollment figures with certainty.

39 These percentages do not include the junior high students at 
the Montgomery County Senior High facility. See note 35 infra.

40 Of., e.g., Boyd v. Pointe Coupee Parish School, 5 Cir. 1974, 
505 F.2d 632; Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974, 
504 F.2d 857; Adam's v. Rankin County Bd. of Educ 5 Cir* 
1973, 485 F.2d 324, 325-26.



74a

stand as it appears, unless improvement is unworkable. 
The record does not suggest what remedial plan might be 
employed at this stage. I would leave that difficulty for 
resolution by the district court, following whatever fur­
ther proceedings it might find to be necessary. I would 
emphasize again, however, that the district court’s order 
should be accompanied with supporting findings and con­
clusions of sufficient precision and detail to fully apprise 
a reviewing court of its reasons and understanding.

IY
Conclusion

We deal here with a school system whose roots were 
segregated by law. There is no indication that those roots 
have withered away, and that the racial separation in the 
present system is anything but the fruit of a tainted crop. 
The School Board still plans to cultivate its gardens sep­
arately ; and it does not promise ever to integrate in any 
future season. Bather, its plan guarantees perennial one- 
race educational experiences for over a third of the black 
students within its elementary and junior high schools. 
Desegregation is not impossible in Montgomery. It might 
be uncomfortable, expensive, disturbing, or even disconcert­
ing. But these words are not amendments to the Four­
teenth Amendment’s commands. Much progress has been 
made in Montgomery school desegregation, but medals 
earned for past performance cannot justify contemporary 
failure. I am confident that our respected, scholarly, and 
courageous trial judge did not hesitate to apply the law 
correctly as he saw it to the facts before him in Mont­
gomery. I firmly believe, however, that that view of the

Opinion dated April 11, 1975



Opinion dated April 11, 1975

law is erroneous and in conflict with previous decisions of 
the Court and the Supreme Court of the United States.

I would reverse the order of the district court insofar 
as it adopts and implements the School Board plans for 
elementary and junior high schools in Montgomery County, 
and remand the cause for such further proceedings as 
would be necessary to bring Montgomery County to a uni­
tary system. In order to permit the district court to re­
consider its award of costs against the plaintiffs and plain- 
tiffs-intervenors in light of further proceedings, I would 
vacate the judgment awarding costs in favor of the School 
Board.



76a

Opinion dated, April 11, 1975

A P P E N D I X  A

A d o p t i o n  o f  t h e  S c h ool B o a r d  p l a n  p r o d u c e s  t h e  f o l l o w i n g  profiles o f  t h e  

e l e m e n t a r y  s c h o o l  s t u d e n t  b o d i e s :

P r o j e c t e d  E n r o l lm e n t A c t u a l  E n r o l l m e n t  9 / 1 5 / 7 4  a

N o r m a l

S c h o o l C a p a c i t y B l a c k W h i t e %  B l a c k B l a c k W h i t e %  B l a c k

D e a r 6 3 0 1 8 6 5 0 5 2 7 % 1 8 5 4 0 7 3 1 %
B e l l i n g e r  Hill 3 0 0 1 8 6 4 3 8 1 % 2 1 1 3 5 8 6 %
B e l i i n g r a t h 1 , 2 3 0  b 1 1 5 1 0 0 5 3 % 1 1 5  c 1 0 0  c 5 3 %
B.  T. W a s h i n g t o n 4 2 0 2 5 5 4 9 8 % 2 3 2 5 9 8 %
C a p i t o l  H g t s . 5 7 0 1 1 9 1 9 2 3 8 % 1 1 2 1 7 8 3 9 %
C a r v e r 7 8 0 4 2 1 2 9 9 % 4 1 1 5 9 9 %
C a t o m a 2 4 0 6 3 1 5 4 2 9 % 5 4 1 5 3 2 6 %

C h i s o l m 3 1 0 3 2 6 5 5 5 3 7 % 3 7 6 5 0 5 4 3 %
C r u m p 9 9 0 2 6 3 7 0 3 2 7 % 2 4 6 7 4 5 2 5 %

D a i s y  L a w r e n c e 7 2 0 4 4 5 7 9 8 % 4 0 8 0 9 8 %

D a l r a i d a 6 3 0 1 5 3 4 2 3 2 6 % 1 4 3 4 2 1 2 5  %

O a n n e l l y 7 3 0 2 3 6 4 0 4 3 2  % 2 5 4 5 1 2 3 3 %

D a v i s 6 3 0 6 1 5 9 1 8 7 % 6 3 7 4 5 . 9 3 %

D u n b a r 6 6 0 3 4 0 5 1 8 7 % 3 2 3 3 4 9 1 %

F e w s 7 2 0 6 4 0 3 9 9 % 6 4 1 3 1 0 0 %

F l o w e r s 7 3 0 1 6 9 5 7 3 2 3 % 1 7 0 5 3 3 2 4 %

F l o y d 1 , 3 5 0  b 1 4 8 3 1 9 3 2 % 1 3 5 2 7 5  d 3 3 %

F o r e s t  A v e . 4 3 0 1 7 2 2 6 2 4 0 % , 1 6 0 2 8 3 3 6 %

H a r r i s o n 7 5 0 1 8 4 4 2 7 3 0 % 2 5 5 3 5 7 4 2 %
H a y n e v i l l e  R d . 1 , 2 0 0 6 6 9 3 0 9 5 % 7 0 5 2 1 9 7 %

H e a d 6 9 0 1 4 8 4 1 5 2 6 % 1 1 1 3 3 9 2 5 %

H i g h l a n d  A v e . 3 9 0 1 1 5 2 7 2 3 0 % 1 1 8 2 3 7 3 3 %
H i g h l a n d  G a r d e n s 1 , 0 2 0 3 3 5 5 5 1 3 8 % 3 1 0 5 1 3 3 8 %
J o h n s o n 6 6 0 1 7 5 5 5 0 2 4 % 1 6 8 5 2 7 2 4 %
L o v e l e s s 1 , 1 4 0 9 0 2 5 9 9 % 8 7 6 6 9 9 %
M a c M i l l a n 3 9 0 2 0 5 1 0 9 6 5 % 1 9 5 7 5 7 2 %
M o r n i n g v i e w 6 0 0 1 3 4 4 8 6 2 2 % 1 1 0 4 2 7 2 0 %
P a t e r s o n 8 1 0 5 6 6 3 4 9 4 % 5 5 0 3 6 9 4 %

P e t e r s o n 6 0 0 1 7 5 2 9 9 3 7 % 1 4 9 3 2 2 3 2 %
P i n t l a l a 2 7 0 2 0 4 1 6 9 3 % 1 9 6 4 9 8 %
S o u t h  l a w n 6 0 0 2 2 3 4 9 2 3 1 % 2 6 0 4 2 7 3 8 %
E a s t e r n  B y - P a s s — 1 4 9 5 3 9 2 0 % 1 4 9  e 5 8 9  * 2 0 %
V a u g h a n  R d . 7 5 0 1 8 3 4 0 9 3 2 % 1 9 9 5 4 9 2 7 %

T o t a l 9 , 2 2 4 9 , 1 6 0 5 0 % 9 , 1 6 4 8 , 6 7 6 5 1 %



Opinion dated April 11, 1975

A P P E N D I X  B

A d o p t i o n  o f  t h e  S c h o o l  B o a r d  p l a n  p r o d u c e s  t h e  f o llow i n g  p r o f i les o f  t h e 

j u n i o r  h i g h  s c h o o l  s t u d e n t  b o d ies:

P r o j e c t e d  E n r o l l m e n t  A c t u a l  E n r o l l m e n t  9 / 1 5 / 7 4  *

N o r m a l

S c h o o l C a p a c i t y B l a c k W h i t e %  B l a c k B l a c k W h i t e %  B l a c k

B a l d w i n 7 8 0 2 9 0 1 0 7 7 3 % 2 7 5 4 3 8 5 %

Belliiwiraih 1 , 2 3 0  b 6 5 9 3 9 0 6 2 % 5 6 6  c 1 3 0  0 8 1 %

C a p t .  H g t s . 1 , 2 0 0 4 4 2 7 3 0 3 8 % 3 4 5 7 4 2 3 2 %

C a r v e r 6 6 0 3 5 0 5 4 5 3 9 % 3 5 4 5 3 8 4 0 %

C l o v e r d a l e 1 , 1 7 0 4 3 7 8 7 5 3 3 % 4 7 6 8 9 1 3 5 %

F l o y d 1 , 3 5 0  b 2 8 8 5 4 1 3 5 % 2 6 4  a 4 6 7  J 3 6 %

G .  W a s h i n g t o n 1 , 2 9 0 3 5 7 7 8 2 3 1 % 4 0 9 9 0 4 3 1 %

G o o d w y n 1 , 5 0 0 5 4 0 1 , 0 3 1 3 4 % 5 6 4 9 1 7 3 8 %

H o u s t o n  Hill 5 7 0 2 1 0 3 8 3 3 5 % 2 4 8 3 0 7 4 5 %

M c I n t y r e 1 , 5 0 0 7 9 2 1 4 9 8 % 8 8 1 1 5 9 3 %

M o n t g o m e r y  C t y  H i g h  f — —
— — — -------- -

1 otal 4 , 3 6 5 5 , 3 9 8 4 5 % 4 , 3 8 2 4 , 9 5 9 4 7 %

A P P E N D I X  C

A d o p t i o n  o f  t h e S c h o o l  B o a r d  p l a n  p r o d i ices t h e  f o l l o w i n g  profiles o f  t h e

s e n i o r  h i g h s c h o o l  s t u d e n t  b o d i e s :

P r o j e c t e d  E n r o l  In-ient A c t u a l E n r o l l m e n t 9 / 1 5 / 7 4  «

N o r m a !

S c h o o l C a p a c i t y B l a c k W h i t e . %  B l a c k B l a c k W h i t e %  B l a c k

C a r v e r  Sr. 1 , 1 0 0 4 3 9 6 6 0 3 9 % 6 1 0 6 7 3 4 8 %

Jeff. D a v i s  Sr.

ooC\T 8 6 8 ] , 4 2 6 3 S % 8 5 7 1 , 4 4 9 3 7  %

L a n i e r  Sr. 2 , 2 5 0 8 1 7 1 , 0 6 8 4 3 % 6 7 7 8 0 1

L e e  Sr. 2 , 3 0 0 9 2 9 1 , 5 6 0 3 7 % 8 1 5 1 , 6 5 0 3 3 %

M o n t g o m e r y  C t y H i g h  '  5 7 0 _ _ 3 9 9 6 3 8 6 % 3 9 0 5 7 8 7 %

T o t a l 3 , 4 5 2 4 , 7 7 7 4 2 % 3 , 3 4 9 4 , 6 3 0 4 2 %

F o o t n o t e s  to  A p p e n d i c e s

* S e e  n o t e  3 7 .

t T h e s e  f i g u r e s  r e p r e s e n t  n o r m a l  c a p a c i t y  for c o m b i n e d  e l e m e n t a r y  a n d  j u n i o r  h i g h  g r a d e s .

' E s t i m a t e d  figures. F o r  their c o m p u t a t i o n  s e e  n o t e  3 8 .

<* E s t i m a t e d  figures. A c c o r d i n g  to  t h e  district c o u r t ' s  o p i n i o n  p r o j e c t e d  a t t e n d a n c e  a t  t h e  F l o y d  

facility w a s  to  b e  4 6 7  ( 1 4 8  black, 3 1 9  w h i t e )  at  t h e  e l e m e n t a r y  level, arid 8 2 9  ( 2 8 8  bla c k ,  5 4 1  w h i t e )  

a t  t h e  j u n i o r  h i g h  level. A c t u a l  e n r o l l m e n t  listed b y  t h e  S c h o o l  B o a r d  is a  c o m b i n e d  total o f  1 1 4 1  

( 3 9 9  black, 7 4 2  w h i t e )  s t u d e n t s ;  n o  b r e a k - d o w n  is g i v e n  a s  to  g r a d e  leveis. F o r  s a k e  of simplicity, 

in e s t i m a t i n g  a c t u a l  e n r o l l m e n t  I h a v e  s i m p l y  r e d u c e d  t h e  p r o j e c t e d  e n r o l l m e n t s  o f  s t u d e n t s  at  b o t h  

levels p r o p o r t i o n a l l y ,  a c c o r d i n g  t o  p r o j e c t e d  a n d  a c t u a l  e n r o l l m e n t s ,  b y  race. I w o u l d ,  o f  c o u r s e ,  dir e c t  

t h a t  o n  r e m a n d  t h e  district c o u r t  s h o u l d  p r o c e e d  to  d e t e r m i n e  t h e  a c t u a l  e n r o l l m e n t  f i g u r e s  w i t h  c e r ­

tainly.

' P r o j e c t e d  figures. N o  a c t u a l  f i g u r e s  given.

f S e e  n o t e  3 7 .



78a

A rlam  Carr, J r ., a minor b y  Arlam Carr 
and Johnnie Carr, etc., et al.,

Plaintiffs-Appellants,

N ation al  E ducation  A ssociation , I n c .,

Intervenor,

P enelope A n n e  J e n k in s , et  al .,

Intervenors-Appellants, 
v.

M ontgomery C ou nty  B oard of E ducation , et a l ., etc .,

Defendants-Appellees,

U nited  S tates of A merica ,

Amicus Curiae.

Opinion dated June 27, 1975

No. 74-2633.

United States Court of Appeals,
Fifth Circuit.

June 27, 1975.

On P etition  for R ehearing  and  P etition  for R ehearing

en  BANC

Before G e w in , G oldberg and D yer , Circuit Judges.

P er C uriam  :

The Petition for Rehearing is denied and the Court hav­
ing been polled at the request of one of the members of the



79a

Court and a majority of the Circuit Judges who are in 
regular active service and not having voted in favor of it, 
(Rule 35 Federal Rules of Appellate Procedure; Local 
Fifth Circuit Rule 12) the Petition for Rehearing En Banc 
is also denied.

Before B ro w n , Chief Judge, and W isdom , Ge w in , B e ll , 
T hornberry, C olem an , G oldberg, A in sw o r t h , Godbold, 
D yer , S im pso n , M organ, Cl a r k , R oney and G ee, Circuit 
Judges.

Goldberg, Circuit Judge, with whom B r o w n , Chief 
Judge and W isdom and T hornberry , Circuit Judges, join 
(dissenting) :

I respectfully dissent from the order denying the petition 
for rehearing and petition for rehearing en banc, for the 
reason stated in my dissenting opinion. 511 F.2d 1374.

Opinion dated June 27, 1975



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