Norwood v. Harrison Appellants' Reply Brief

    ghtprem? Olmtrt nt %  lutfrb BtuUs
October Term, 1972 

No. 72-77

I n  t h e

Delores Norwood, et al.,

v.
Appellants,

D. L. H arrison, Sr., et al.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OP MISSISSIPPI

APPELLANTS’ REPLY BRIEF

Melvyn R. L eyenthal 
A nderson, B anks, Nichols 
& L eyenthal

538% North Farish Street 
Jackson, Mississippi 39202

Jack Greenberg 
James M. Nabrit, III 
Charles Stephen R alston 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

A nthony G. A msterdam 
Stanford University Law School 
Stanford, California 94305

Of Counsel



I n  th e

(Emtrt nt %  HHintzb States
October Term, 1972 

No. 72-77

Delores Norwood, et al.,

v.
Appellants,

D. L. H arrison, Sr ., et al.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI

APPELLANTS’ REPLY BRIEF

1. Appellees assert that our references to “target” school 
districts to illustrate a network of private segregationist 
academies is inconsistent with the district court’s finding 
that 90% of the State’s educable children remain in public 
schools. (Appellees’ Brief, p. 2.)

In fact, the district court’s reference to “90% of the 
state’s educable children” (Norwood v. Harrison, 340 
F. Supp. 1003, 1013 (N.D. Miss. 1972)), is misleading. That 
statistic counts black and white students attending public 
schools and therefore provides little insight into the extent 
of white exodus from public schools. Moreover, the state­
wide statistic includes districts which are majority or over­
whelmingly white in student enrollment and which there­
fore experienced negligible white resistance to public school 
desegregation. An examination of enrollment statistics for



2

the 33 majority white districts desegregating “voluntarily” 
under HEW supervision shows that white enrollment 
increased by 5,500 students, or by 7% from 1968-69 to 
1970-71. In contrast, the 56 majority black school districts 
of the State filing enrollment reports with HEW experi­
enced a loss of 30,000 white students, or 40% of their total 
white enrollment, between 1968-69 and 1970-71. (Henderson 
Deposition, Exhibit 10, Number of Students by Race in 
Mississippi School Districts Based Upon Reports Submit­
ted by School Districts to HEW;  Exhibit 11, Mississippi 
Public School Districts Presently Desegregating Under 
HEW Guidelines and Without Court Order.1

2. The State—as it has done in all previous cases of this 
kind—disputes the charge that the segregated academies 
of the State are “ segregationist” and refers to the testi­
mony of private school superintendents that their institu­
tions were formed to provide “quality education” and have 
“ open enrollment” policies. (Appellees’ Brief, p. 2.)

This question of fact has been resolved against the State 
by every trial court faced with the issue of state aid to 
Mississippi academies. In Coffey v. State Educational Fi­
nance Commission, 296 F. Supp. 1389, 1392 (S.D. Miss. 
1969), the court refers to the network of academies as a 
“ system of private schools operated on a racially segre­
gated basis as an alternative available to white students 
seeking to avoid desegregated public schools.” In Coffey II, 
the same three-judge district court held that Mississippi’s 
second tuition grant statute, enacted in September, 1969, 
was an attempt “to provide state assistance to students 
who leave newly integrated public schools to attend private

1 Appellants are proceeding in forma pauperis and, in accordance 
with instructions received from the Clerk, none of the 104 deposi­
tions included in the record are reproduced in the Appendix.



3

schools.” Coffey v. State Educational Finance Commission, 
Civil No. 3006 (S.D. Miss., September 2, 1970) (unre­
ported). In Green v. Kennedy, 309 F. Supp. 1127, 1134 
(D. D.C. 1970), the academies are described as having 
“been established in Mississippi for the purpose of avoid­
ing the result of a unitary, non-racial public school system 
required by the Federal court decisions outlawing segrega­
tion in public schools, and in an attempt to maintain a 
broad pattern of racial segregation in the school system.” 
And in the instant case the district court has referred to 
the academies as having “been formed throughout the 
state since the inception of public school desegregation.” 
Norwood, supra, 340 F. Supp. at 1011.

Judge Wisdom has characterized the testimony of Louisi­
ana private school personnel that their academies have 
“ open enrollment” policies as “incredible” ; such policies 
would come as “a surprise and shock to the parents who 
have children attending these schools.” Poindexter v. 
Louisiana Financial Assistance Commission, 275 F. Supp. 
833, 848 (E.D. La. 1967). Judge Goldberg thinks that judges 
would have to be “more naively unsophisticated than this 
job allows” to accept such testimony. Wright v. City of 
Brighton, Ala., 441 F.2d 447, 453 (5th Cir. 1971). The dis­
trict courts have uniformly recognized that the state’s 
argument is a “disingenuous quibble . . . resting on the as­
sumption that federal judges are more naive than ordinary 
men.” United States v. City of Jackson, 318 F.2d 1, 5 (5th 
Cir. 1963).

3. Appellees, without citation to the record, assert that 
“many” of the academies operate in new facilities and 
“virtually none” use former public school properties. 
(Appellees’ Brief, p. 2.)

The record shows that of the 52 academies for which in­
formation is available only 4 operate in newly constructed



4

facilities designed to house an educational program. Forty- 
eight of the 52 schools operate in abandoned public school 
buildings or private homes or church facilities. (A. 44-49).

Respectfully submitted,

Melvyn R. L eventhal 
A nderson, B anks, Nichols 
& L eventhal

■538V2 North Farish Street 
Jackson, Mississippi 39202

J ack Greenberg 
James M. Nabrit, III 
Charles Stephen R alston 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

A nthony G. A msterdam 
Stanford University Law School 
Stanford, California 94305

Of Counsel



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