Alexander v. Holmes County Board of Education Motion to Advance and Petition for Writ of Certiorari; Alexander v. Gardner-Denver Company Brief for the United States Amicus Curiae

    I n the

(flcurt at tî r State#u
October Term , 1969 

No. r .M .

B eatexce Alexander, et al.,

v.
Petitioners,

H olmes County B oard of E ducation, el al.,
Respondents.

MOTION TO ADVANCE AND PETITION FOR WRIT 
OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT

J ack Greenberg 
J ames M. N abrit, III  
N orman C. A makek 
N orman J. Chachkin 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Melvyn R. Leventhal 
R euben A nderson 
F red Ij. B anks, J r.

538y2 North Parish Street 
Jackson, Mississippi 39202

Attorneys for Petitioners



I N D E X

TAGS
Motion to A dvance..................................................................  1

P etition F or W rit of Certiorari:

Opinions Below .......................................................  1

Jurisdiction ............................................................... 2

Question Presented.................................................... 2

Constitutional Provision Involved .........................  2
Statement ..................................................................  2

Reasons for Granting the Writ

Certiorari Should Be Granted to Review and 
Reverse the Court of Appeals’ Delay of 
Desegregation Because the Time for Delay 
Has Run O ut.......................................................  11

Conclusion ................................................................. 19
A ppendix A—

Opinion of the District Court Approving Freedom 
of Choice Plans .......................................................  la

Order of the District Court dated May 16, 1969 .... 20a
Order of the District Court dated May 16, 1969 .... 21a
Order of the District Court dated May 29, 1969 .... 22a

A ppendix B—

Letter Directive of the Court of Appeals of June 
25, 1969 ................................................    24a

Opinion of the Court of Appeals of July 3, 1969 .... 28a



{

I■ ji 
A

. j
-

i\,£S

Modification of Order of the Court of Appeals of 
July 25, 1969 ............................................................. 38a

A ppendix C—

Letter of August 11, 1969 Transmitting Desegre­
gation Plans From United States Office of Edu­
cation to the District C ourt..................................... 40a

Attachment A Annexed to Letter of August 
11, 1969 ............................................................... 45a
Attachment B Annexed to Letter of July 11,
1969 ...................................................................... 51a

Letter of August 19, 1969 From the Secretary of 
the Department of Health, Education and Wel­
fare to the Chief Judge of the Court of Appeals .... 53a
Order of the Court of Appeals of August 20, 1969 .. 55a 

A ppendix D—

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26, 1969 ................ 56a

A ppendix E—

Order of the Court of Appeals of August 28, 1969 .. 71a 

A ppendix F—

Opinion in Chambers of Mr. Justice Black of
September 5, 1969 .................................................. 79a

— T able of Cases

Adams v. Mathews, 403 F.2d 181 (5th Cir. 196S) ...... 5, 7,13

Brown v. Board of Education, 347 U.S. 483 (1954) ....3,10,11 
Brown v. Board of Education, 349 U.S. 294 (1955) ....3,11,16



PAGE

iii

Coffey v. State Educational Finance Commission, 29G 
F. Supp. 1389 (S.D. Miss., 1969) ................................. 6

Evers v. Jackson Municipal Separate School District,
328 F.2d 408 (5th Cir. 1964) ........................................  12

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ................................................... 3, 4,7

Griffin v. School Board, 377 U.S. 218 (1964) .................. 12

Hall v. St. Helena Parish School Board, No. 26450 (5th 
Cir., May 28, 1969) .......................................................  7

Henry v. Clarksdale Municipal Separate School Dis­
trict, 409 F.2d 682 (5th Cir. 1969) .............................  13

Jackson Municipal Separate School District v. Evers,
357 F.2d 653 (5th Cir. 1966) ....................................... 5

Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938) 18

Price v. Denison Independent School District Board of 
Education, 348 F.2d 1010 (5th Cir. 1965) ..................11,16

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (5th Cir. 1965) (injunction pend­
ing appeal) ; 355 F.2d 865 (5th Cir. 1966) ..............12,13

United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) .... 11
United States v. Greenwood Municipal Separate School 

District, 406 F.2d 1086 (5th Cir. 1969) ...................... 13
United States v. Indianola Municipal Separate School 

District, 410 F.2d 626 (5tli Cir. 1969) .........................  13



A

i

il

iv

PAGE

United States v. Jefferson County Board of Education,
372 F.2d 836 (5tli Cir. 1966), affirmed en banc 380 
F.2d 385 (5th Cir. 1967), cert, denied 389 U.S. 840 
(1967) ............................................................................ 13

United States v. Jefferson County Board of Education,
5th Cir., No. 27444, June 26, 1969 ............................... 18

Watson v. Memphis, 373 U.S. 526 (1963) ...................... 11

S tatutes

28 U.S.C. §1254(1) ...........................................................• 2

28 U.S.C. §1343(3) ..........................................................  2

42 U.S.C. §1981 ................................................................ 2

42 U.S.C. §1983 ................................................................ 2

Title VI, Civil Rights Act of 1964 ................................ 12,13

Other A uthorities

United States Commission on Civil Rights, Federal 
Enforcement of School Desegregation, (September 
11, 1969) ...................................................................... 13, 14



&upn>»tr ffiourt 0! %  lltiilrit gtaiw;
October T erm, 1969 

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

B eatrice A lexander, et al., 

v.
Petitioners,

H olmes County B oard or E ducation, et al.,

Respondents.

MOTION TO ADVANCE

Petitioners, by their undersigned counsel, move the Court 
to advance consideration and disposition of this case, and 
m support thereof would show that this case presents an 
issue of national importance requiring prompt resolution 
by this Court, for the reasons stated in the annexed petition 
for writ of certiorari.

W herefore, petitioners pray that the Court: 1 ) consider 
this motion in vacation; 2) shorten the time for filing re­
spondents’ response to 15 days; 3) consider the petition 
during the conference week of October 6, 1969, or as soon 
thereafter as possible; and 4) grant certiorari and sum­
marily reverse the judgment below or set an expedited brief-



2

ing schedule a 
argument.

a

■ .

l ad^ance the case on the calendar for

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
N orman C. A maker 
N orman J . Chachkin 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Melvyn R. Leventhal 
R euben A nderson 
F red L. B anks, J r.

538y2 North Farish Street 
Jackson, Mississippi 39202

Attorneys for Petitioners



• - ..  .

I n t h e

&npmn? (Hmtrt of %  lutted §>M?b
October T erm, 1969 

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

B eatrice A lexander, et al.,
Petitioners,

v.

H olmes County B oard of E ducation, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Fifth Circuit entered August 28, 1969, amending its order 
of July 3, 1969, as modified July 25, 1969.

Opinions Below

The order of the United States Court of Appeals for the 
Fifth Circuit of which review is sought is unreported and is 
set forth in Appendix E. Earlier opinions of the Court of 
Appeals and of the United States District Court for the 
Southern District of Mississippi are unreported and are set 
forth in Appendices A through D.



2

1

Jurisdiction

The judgment of the United States Court of Appeals for 
the Fifth Circuit was entered August 28, 1969 (Appendix 
E, p. 71a,infra).

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. $1254(1) to review the Court of Appeals’ order de­
laying the implementation of school desegregation plans in 
14 school districts in Mississippi.

Question Presented

Did the Court of Appeals err in granting 14 Mississippi 
school districts an indefinite delay in implementing school 
desegregation plans based upon generalized representations 
by the United States Department of Health, Education and 
Welfare that delay was necessary for preparation of the 
communities?

Constitutional Provision Involved

This case involves the Equal Protection Clause of Sec­
tion 1 of the Fourteenth Amendment to the Constitution 
of the United States.

Statement

These cases1 test how much longer Negro schoolchildren 
in 14 substantially segregated school districts in Mississippi

1 These cases were filed in the United States District Court for 
the Southern District of Mississippi between the years 1963 and 
1967. Jurisdiction was predicated upon 28 U.S.C. §1343(3) and 
42 U.S.C. §§1981, 1983 and the Due Process and Equal 1 rotection 
Clauses of the Fourteenth Amendment. Plaintiffs in school deseg­
regation cases in Mississippi often sue several school boards located 
within the same geographical area under one civil action number;



3

will have to wait to exercise their right to a desegregated 
education decreed by this Court more than 15 years ago in 
Brown v. Board of Education,2

For 10 years after Brown v. Board of Education, the 
public schools of Mississippi remained totally segregated. 
Thereafter, the school boards involved in this litigation 
adopted freedom of choice plans indistinguishable from that 
condemned last year by this Court in Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968). 
These freedom of choice plans did not work to disestablish 
the dual school system. Indeed, the token results achieved

the nine cases brought here by this petition involve fourteen sepa­
rate school districts.

First, there are three eases wherein suit was brought by Negro 
schoolchildren against six separate school districts: Harris v. Yazoo 
County Board of Education, Yazoo City Board of Education and 
Holly Bluff Line Consolidated School District; Alexander v. Holmes 
County Board of Education; Killingsworth v. The Enterprise Con­
solidated School District and Quitman Consolidated School District.

Second, there are four cases wherein suit was brought by Negro 
schoolchildren against six school districts and the United States 
subsequently intervened: Hudson and United States v. Leake 
County School Board; Blackwell and United States v. Issequena 
County Board of Education and Anguilla Line Consolidated School 
District; Anderson and United States v. Canton Municipal Sepa­
rate School District and Madison County School District; Barn- 
liardt and United States v. Meridian Separate School District.

Third, there are two eases which were filed by the United States 
wherein Negro schoolchildren subsequently intervened: United 
States and George Williams v. Wilkinson County Board of Educa­
tion; United States and George Magee, Jr. v. North Pike County 
Consolidated School District.

This petition formally embraces only school desegregation suits 
involving private plaintiffs. But the disposition of this petition 
will govern an additional 16 suits involving 19 school districts 
against whom the United States is the sole plaintiff in companion 
cases below.



4

by these plans were even less than the results held insuf­
ficient in Green.3

In July, 1968, petitioners moved the district court to re­
quire each respondent school board to adopt a new desegre­
gation plan which “promises realistically to work, and 
promises realistically to work now” (Green, supra, 391 U.S. 
at 439 (1968) (emphasis Court’s)). The district court re­
fused to schedule an early hearing on petitioners’ motions, 
thus allowing the defective freedom of choice plans to be 
employed during the 1968-69 school year. Accordingly, peti­
tioners moved the Court of Appeals for summary reversal 
of the district court’s refusal to grant relief for the 1968-69 
school year. The Court of Appeals denied summary re-

. 3 The extent of student desegregation in the school districts at bar is shown 
in the following table .-
District Percentage of Negroes 

■in All-Negro Schools
Percentage of Negroes 

in Predominan tly 
White Schools

Anguilla 
Canton 
Enterprise 
Holly Bluff 
Holmes Count)’ 
Leake County 
Madison County 
Meridian
North Pike County 
Quitman
Sharkey-Issaquena 
Wilkinson County 
Yazoo
Yazoo County

1968-69* 1969-70** 1968-69
(Projected)

94.4% 96.1% 5.6%
99.5% 99.9% 0.5%

84% 16%
98.9%
95.5%

97.1 % 95.7% 2.9%
99.1% 99.1% 0.9%
91.4% 84.8% 8.6%
99.2% 99.7% 0.8%

96.1%
94.6% 93.6% 5.4%
98.1% 97.3% 1.9%

91.2%
93.3%

1969-70** 
(Projected)

3.9%
0 .1%

1.1%
4.5%
4.3%
0.9%

15.2%
0.3%
3.9%
6.4%
2.7%
8.8%
6.7 %

* These figures are based upon the school districts’ reports to the district 
court. _

** The projections are based for the most part upon the freedom of choice 
forms completed during the Spring of 1969, as compiled by the United 
States and submitted to the Court of Appeals.



5

versa], but ordered the district court to 
no later than November 4, 1969. Adams 
F.2d 181 (5th Cir. 19GS). Upon remand, 
consolidated these school desegregation 
the Negro plaintiffs with those brought by 
and conducted hearings cn banc during 
cember, 1968.4

conduct hearings 
v. Mathews, 403 

the district court 
cases brought by 
the United States 
October and De-

At the October hearings, the respondent school boards 
presented lengthy testimony to the effect that achieve­
ment test results justified the continued use of free choice 
assignments and the concomitant token integration of white 
schools and perpetuation of all-Negro schools.5 Indeed, the 
cases were consolidated principally to permit the school 
boards to join in this “expert” testimony. The respondent 
school boards also resisted any alteration of the free choice 
plans on the ground that more than token integration would 
be followed by withdrawal of white children from the public 
schools and the proliferation of private schools.0

4 The consolidated cases proceeded under the caption United 
States v Hinds County Board of Education and Alexander v 
Holmes County Board of Education. They embraced 19 districts 
against whom the United States was the sole plaintiff, plus the 14 
districts at bar. See note 1, supra.

6 This position was urged by Mississippi school districts and 
white parent intervenors m 19G4 to retain totally segregated 
schools. Voluminous expert testimony was presented'and the dis­
trict court entered findings of fact supporting the proposition that 
begroes were innately inferior; but the district court felt bound 
by Court of Appeals rulings to deny defendants’ request that 
Brown v. Board of Education be overruled. The defendants ap­
pealed and the Court of Appeals ordered an end to such efforts 
to justify segregation. Jackson Municipal Separate School Dis­
tricts v. Evers; Biloxi Municipal Separate School District v Mason- 
i Q C°unty Schoal Board v- Hudson, 357 F.2d G53 (5th Cir
f W  w IaSl ? aSe Clted’ IIudson> is the same case before the Court m this petition.

‘ Mississippi’s first effort to retain segregated schools through 
tuition grant legislation was held unconstitutional on the ground 
that the legislation s purpose and effect was to perpetuate segrega-



6

Isine months after the Court of Appeals’ admonition to 
the district court to treat the cases “as entitled to the high­
est priority” (403 F.2d at 188), the district court, on May 13, 
1969, approved freedom of choice plans for all the respon­
dent school districts.7

On June 7, 1969, the United States filed alternative mo­
tions for summary reversal or expedited consideration of 
the cases. On June 25, 1969, the Court of Appeals entered 
a letter directive expediting consideration of the cases. 
See Appendix B, p. 24a, infra.

On July 3, 1969, the Court of Appeals reversed the dis­
trict. court and directed it to require from the school boards 
plans of desegregation other than freedom of choice. See 
Appendix B, pp. 28a-37a, infra, The Court found:

(a) that not a single white child attended a Negro 
school in any of the districts;

(b) that the percentage of Negro children attending 
white schools ranged from zero to 16 per cent;

ticm. Coffcy v State Educational Finance Commission, 296 F 
SupP- 1389 (S.D. Miss., 1969) (3-judge court).

The Mississippi legislature recently enacted a new tuition grant 
program, m the nature of student loans, to enable white students 
to attend private schools (House Bill No. 67). Also passed by the 
House of Representatives (under consideration by the Senate) is 
a lull which would grant up to $500. in credits toward Mississippi 
income taxes for all payments or donations to schools, “public or 
private.

7 The opinion and orders of the district court are set forth in 
Appendix A. The order in Alexander v. Holmes County Board of 
Education is set forth at p. 20a, infra and is representative of the 
orders entered in eight of these nine cases. The ninth order en­
tered in Killingsworth v. Enterprise Consolidated School District 
is set forth at p. 21a, infra. It differed from the others in that it 
dismissed the petitioners’ motion on the ground, later held er 
roneous by the Court of Appeals, that the petitioners had not ex­
plicitly authorized their attorney to file the motion.



7
(c) that token faculty integration continued in foi’ce; 

and,

(d) that school activities continued substantially seg­
regated.

Quoting Adams v. Mathews, supra, the Court held that “as 
a matter of law, the existing plan fails to meet consti­
tutional standards as established in Green” (Appendix B, 
p. 32a, infra). The Court of Appeals directed that the re­
spondent school boards be required to collaborate with 
the United States Office of Education in formulating new 
desegregation plans effective for the 1969-70 school year8 
(Appendix B, pp. 35a-36a, infra). A precise timetable for 
the submission and implementation of the plans was estab­
lished to protect petitioners’ right to relief effective for the 
1969-70 school year (Appendix B, pp. 36a-37a, infra). The 
Court directed that the mandate be issued forthwith (Ap­
pendix B, p. 37a, infra).9

On August 11, 1969, the deadline established for submis­
sion of the new desegregation plans, the Office of Education 
submitted terminal plans of desegregation for the 33 school 
districts to the district court. Thirty of the 33 plans pro­
vided for implemenation of pairing and/or zoning plans of 
desegregation to be effective with the commencement of the 
1969-70 school year.10 In his transmittal letter of August 
11 (See Appendix C, pp. 40a-52a), Dr. Gregory Anrig, 
Director of the Equal Educational Opportunities Division

8 This had been consistent practice following Hall v. St. Helena 
Parish School Board, No. 2G450 (5th Cir., May 28, 1969).

9 On July 25, 1969, the Court of Appeals modified its order in 
respects not important here (Appendix B, p. 38a, infra).

10 The exceptions were for Hinds County, Holmes County and 
Meridian, in which it was asserted that problems peculiar to tlio.se 
districts required postponing full implementation until the be­
ginning of the 1970-71 school year.

T'Wi''



8
of tlie Office of Education—the educational expert responsi­
ble f01 the final review of the plans—stated to the district 
court (Appendix C, p. 44a, infra) :

I  believe that each of the enclosed plans is educationally 
and administratively sound, both in terms of substance 
and in terms of timing. In the cases of Hinds County, 
Holmes County and Meridian, the plans that we recom­
mend provide for full implementation with the begin­
ning of the 1970-71 school year. The principal reasons 
for this delay are construction, and the numbers of 
pupils and schools involved. In all other cases, the 
plans that we have prepared and that we recommend 
to the Court provide for complete disestablishment of 
the dual school system at the beginning of the 1969-70 
school year.

On August 19, 1969, the Secretary of the Department of 
Health, Education and Welfare sent a letter to the Chief 
Judge of the Court of Appeals and the judges of the district 
court requesting that the plans submitted by the Office of
Education be withdrawn and that the 1969-70 deadline for 
implemenation of plans be rescinded (Appendix C, pp. 53a-
54a, infra). The Secretary did not dispute Dr. Anrig’s view
that the plans were “educationally and administratively 
sound.” Instead, the Secretary noted that he had reviewed 
these plans “as the Cabinet officer of our Government 
charged with the ultimate responsibility for the education 
of the people of our Nation” (Appendix C, p. 52a, infra). 
He continued (Appendix C, p. 54a, infra):

In this same capacity, and bearing in mind the great 
trust reposed in me, together with the ultimate re­
sponsibility for the education of the people of our 
Nation, I am gravely concerned that the time allowed



9

for the development of these terminal plans has been 
much too short for the educators of the Office of 
Education to develop terminal plans which can be im­
plemented this year. The administrative and logistical 
difficulties which must he encountered and met in the 
terribly short space of time remaining must surely in 
my judgment produce chaos, confusion, and a catas­
trophic educational setback to the 135,700 children, 
black and white alike, who must look to the 222 schools 
of these 33 Mississippi districts for their only available 
educational opportunity.

Idle Secretary requested that the Office of Education and 
the respondent school boards be given until December 1, 
1969 to formulate new plans for desegregation, with imple­
mentation of those plans to be left to an unspecified future 
time (Appendix C, p. 52a, infra).

The next day, August 20, 1969, the Court of Appeals en­
tered an order acknowledging receipt of (he Secretary’s 
letter (Appendix C, p. 55a, infra). The next day, the De­
partment of Justice filed a motion in the Court of Appeals 
requesting modification of the Court’s order of July 3, 1969, 
based upon the Secretary’s letter, and petitioners filed their 
opposition thereto. The next day, the Court of Appeals 
orally granted leave to the district court “to receive, con­
sider and hear the Government’s motion for extension of 
time until December 1, 1969” (see order of the Court of 
Appeals of August 28, 1969, Appendix E, p. 75a, infra). 
On August 25, 1969, the district court held a hearing on the 
Government’s request.

At the hearing, the Government presented two witnesses 
employed by the Office of Education, who testified that the 
desegregation plans were educationally sound, but that im­
plementation of them should be delayed due to adminis-



10

trative difficulties, generally stated, in implementing the 
plans’ provisions—difficulties which the school boards had 
made no attempt to solve in the fifteen years since Brown. 
In opposition, petitioners presented the testimony of an 
expert witness who testified that there were no sound edu­
cational reasons for delay and that the reasons given by the 
Government’s witnesses were generalities unrelated to a 
single specific situation in any of the school districts in­
volved.

The next day, the district court entered its findings of 
fact and conclusions of law (see Appendix D, pp. 56a-70a, 
infra), which, together with the transcript of the hearing, 
were transmitted to the Court of Appeals. Two days later, 
on August 28, 1969, the Court of Appeals entered an order 
granting the government’s request for delay (see Appendix 
10, pp. 71a-78a, infra).

On August 30, 1969, petitioners applied to Mr. Justice 
Black for an order vacating the Court of Appeals’ suspen­
sion of its July 3rd order. On September 5, 1969, Mr. Jus­
tice Black denied the application, but stated that his 
disposition did not “comport with my ideas of what ought 
to be done in this case when it comes before the entire Court.
I hope these applicants will present the issue to the full 
Court at the earliest possible opportunity” (Appendix F, 
p. 83a, infra).



11

REASONS FOR GRANTING THE WRIT

Certiorari Should Re Granted to Review and Reverse 
the Court of Appeals’ Delay of Desegregation Because 
the Time for Delay Has Run Out.

These cases test whether Negro schoolchildren in 14 sub­
stantially segregated school districts in Mississippi a r e -  
15 years after Brown v. Board of Education—at last "en­
titled to have their constitutional rights vindicated now 
without postponement for any reason” (Opinion in Cham­
bers of Mr. Justice Black, Appendix F, p. 81a, infra).

When, 14 years ago, this Court declared (hat segregated 
schools would be disestablished not immediately but only 
“with all deliberate speed,” it made a unique departure from 
the principle that “ [t]he basic guarantees of our Consti­
tution are warrants for the here and now” (Watson v. 
Memphis, 373 U.S. 526, 533 (1963)).n But it did so upon 
the explicit condition that school boards establish “that such 
time is necessary in the public interest and is consistent 
with good faith compliance at the earliest practicable date” 
(Brown II, 349 U.S. at 300). This Court could hardly have 
envisioned the extent to which that narrowly circumscribed 
period of grace would be exploited by local school boards 
and state officials. In Mississippi, a school generation of 
youngsters passed through the segregated system while 
school boards showed not the slightest interest in “good 
faith compliance at the earliest practicable date.”

Although Mississippi state officials initially experimented 
with open defiance, see United States v. Barnett, 330 F.2d

11 “ [Pjrobably for the one and only time in American constitu­
tional history, a citizen—indeed a large group of citizens—was 
compelled to postpone the day of effective enjoyment of a consti- 
tutional right” (Price v. Denison Independent School District 
Board of Education, 348 F.2d 1010, 1013 (5th Cir. 1965).



12

369 (5tli Cir. 1963), they soon learned to rely upon less 
obvious—and sometimes ingenious—devices for delay.

A pupil placement law was passed, which established a 
labyrinth of administrative procedures to ensnare those 
hvegro students hardy enough to attempt to desegregate 
white schools. For a season that worked. The first public 
school desegregation suits brought in federal court in Mis­
sissippi were dismissed for failure to exhaust administra­
tive remedies under the Pupil Placement Law. So it was 
that while this Court, in 1964, was holding that “the time 
for mere ‘deliberate speed’ has run out” (Griffin v. School 
Board, 377 U.S. 218, 234 (1964), not a single child in Missis­
sippi attended an integrated school.

That year, the Court of Appeals reversed the district 
court’s dismissal of the first school desegregation suits. 
Evers v. Jackson Municipal. Separate School District, 328 
F.2d 40S (5th Cir. 1964). Upon remand, the school boards 
and white intervenors delayed the trials with voluminous 
testimony as to the innate inferiority of Negroes as a ra­
tional basis for continued segregation. The district court, 
after further delay, entered findings of fact supporting the 
defendants’ theories of racial superiority, but held that it 
was compelled by the Court of Appeals to require a grade- 
a-year plan—thus seeking to insure that the time for “de­
liberate speed” would run until 1976. That decision was 
overturned in Singleton v. Jackson Municipal Separate 
School District, 348 F.2d 729 (5th Cir. 1965) (injunction 
pending appeal); 355 F.2d 865 (5tli Cir. 1966).

The Civil Rights Act of 1964 promised a new era in 
school desegregation, through a “national effort, bringing 
together Congress, the executive, and the judiciary [which]

' "VT



13

may be able to make meaningful the right of Negro chil­
dren to equal educational opportunities.” 12

 ̂Under Title VI of the Act, the Department of Health, 
Education and Welfare fixed minimum standards to be 
used in determining the qualifications for schools applying 
for federal financial aid. This administrative enforcement 
by II.E.W. produced a dramatic increase in the level of 
desegregation in the South. See United States Commission 
on Civil Rights, Federal Enforcement of School Desegrega­
tion, p. 31 (September 11, 1969). The courts accorded 
‘‘great weight” to those minimum standards and estab­
lished a close correlation . . . between the judiciary’s 
standards in enforcing the national policy requiring de­
segregation of public schools and the executive depart­
ment’s standards in administering this policy” (Singleton, 
supra, 348 F.2d at 731).

By 1969, the united action of the courts and the executive 
in advancing toward their common objective of school 
desegregation nourished hopes that the end of the deseg­
regation process was in sight. To be sure, progress under 
Mississippi’s freedom of choice plans continued to be 
minimal. See note 3, supra. But following this Court’s 
decision in Green, numerous decisions of the Court of 
Appeals set the constitutional deadline for compliance at 
the 1969-70 school year. See Adams v. Mathews, supra; 
United States v. Greenwood Municipal Separate School 
District, 406 F.2d 1086 (5th Cir. 1969); Henry v. Clarksdale 
Municipal Separate School District, 409 F.2d 682 (5th Cir. 
1969); United States v. Indianola Municipal Separate 
School District, 410 F.2d 626 (5th Cir. 1969). And the 
executive also directed its efforts toward full compliance

States v• Jeffcrson County Board of Education, 372 
f .2 d  836, 847 (5th Cir. 1966), affirmed cn banc 380 F 2d 385 (5th 
Cir. 1967), cert, denied 389 U.S. 840 (1967) (Emphasis Court’s)



u

during the 1969-70 school year. As late as July  3, 1969 
in a joint statement by the Attorney General and the 
Secretary of the Department of Health, Education and 
Welfare, the executive announced that “the ‘terminal date’ 
must be the 1969-70 school year.” Only a narrowly circum­
scribed exception was to be permitted:

Additional time will be allowed only where those 
requesting it sustain the heavy factual burden of prov­
ing that compliance with the 1969-70 time schedule 
cannot be achieved; where additional time is allowed, 
it will be the minimum shown to be necessary.13

In this context of a united judicial and executive front 
against the crumbling barriers of school desegregation 
the Court of Appeals entered its orders of July 3rd and 
2oth enforcing the 1969-70 “terminal date.” See Appendix 
B, inf ra.

Then, on August 19, 1969, there occurred “a major re­
treat m the struggle to achieve meaningful school deseg­
regation” (Statement of the United States Commission 
on Civil Rights, p. 2, September 11, 1969). ILE.W. essayed 
an initiative for delay, based upon nothing more than a 
generalized reference to “administrative and logistical 
i lcultics and speculation that enforcement of the 1969-70 

“terminal date” would result in “chaos [and! confusion” 
(Letter of August 19, 1969 from the Secretary of the 
Department of Health, Education and Welfare to the 
Chief Judge of the Court of Appeals, Appendix C, p. 54a , 
infra). The delay requested called for a new deadline of 
December 1, 1969 for the school districts to formulate 
plans, with implementation to he accomplished at some 
unspecified f  uture time.

s.tatement is stei forth in Federal Enforcement of School Desegregation, supra, Appendix C. I t



25

In support of this initiative for delay, no attempt was 
made to meet the ‘‘heavy factual burden” which had earlier 
been demanded of school boards seeking delay. Without 
particularized reference to the conditions in individual 
school districts, a blanket assessment was made that more 
time was needed in the 33 school districts. No effort was 
made to show that the delay sought was “the minimum 
shown to be necessary” for each of the districts.

The Court of Appeals’ order of August 28, 1969 accepted
H.E.W.’s new open-ended timetable. It did so without 
explanation or elaboration, indicating it felt it had no 
choice but to acquiesce, (see Appendix E, infra).

The Solicitor General recognized that IIEW’s action 
and the Court of Appeals’ acquiescence meant that yet 
another segregated school year would probably pass into 
history. He characterized this as “a tragedy and a default” 
(Memorandum for the United States, p. 5). But nothin- 
he said, could be done.

Petitioners disagree. This initiative for delay, based 
upon nothing more than undifferentiated apprehension that 
further “preparation of the community” 14 is required, can 
and should be corrected, for it raises a threat to school 
desegregation of profound national importance, for two 
reasons.

First, if the ingenuity of the federal government is to 
be applied to the task of fashioning excuses for delay, it 
can hardly fail to inspire local school boards to do the 
same. Administrative enforcement under Title VI will be 
crippled as recalcitrant school boards press for further 
relaxation of enforcement and those boards that reluctantly 
did comply begin to feel they acted in haste. Dissident 
segregationist groups will feel good reason to redouble

u Memorandum for the United States, p. 4.



16

their pressures on school officials who kept their pledge 
to the Constitution in the face of opposition.

Second, judicial enforcement will be undermined if the 
federal courts are deprived of the kind of effective assist­
ance upon which they had rightly come to rely. As Chief 
Judge Brown observed in Price, supra, executive coopera­
tion had taken the federal judge out of the role of school 
administrator a role “for which he was not equipped” 
(348 F.2d at 1013). In this context, then, it is perhaps not 
surprising that the court below acquiesced in H.E.W.’s 
request for delay, without comment or explanation. It was 
in no position to analyze whether the delay requested for 
each of the 33 school districts was “the minimum shown
to he necessary.” Only if it had held that there was no 
longei a transition period’ during which federal courts 
would continue to supervise the passage of the Southern 
schools from dual to unitary systems” (Opinion in Cham­
bers of Mr. Justice Black, Appendix F, p. 81a, infra), could 
it have freed itself from the difficult, if not impossible, posi­
tion into which it was thrust. But the court below may 
have felt as did Mr. Justice Black, that this decision must
come from this Court.

In Bi own II, this Court held that school boards which 
made a “prompt and reasonable start toward full com­
pliance” might be granted “additional time” to solve 
administrative problems (349 U.S. at 300). The problems 
this Court foresaw concerned (349 U.S. at 300-01):

(1) “Physical condition of the school plant” ;
(2) “School transportation system” ;
(3) “Personnel” ; and,
(4) “Revision of school districts and attendance 

areas into compact units to achieve a system 
of determining admission to the public schools 
on a nonracial basis.”



17

After 15 years, plans calling for the revision of school 
districts and attendance areas into compact units to achieve 
a unitary system were finally submitted. But the other 
problems had not yet been solved by the school districts 
at bar, found the district court. It found a present need 
for (Appendix U, p. 65a, infra) :

(1) “Building renovations, including the adjusting 
of laboratories and like facilities” ;

(2) “Bus routes [to] be redrawn” ; and,

(3) “Faculty and student preparation, including 
various meetings and discussions of the prob­
lems to be presented and the solutions therefor.”

Petitioners do not doubt that in some districts there re­
main obstacles to the “workable, smooth desegregation 
which is desired” (Ibid). But why? “There can be little 
doubt where the basic fault lies in this matter. The reason 
why the plans are so difficult to formulate and to implement 
is largely because the local school boards involved in this 
case have generally done nothing but resist; they have 
continuously failed and refused to develop plans for the 
effective desegregation of their schools, so as to eliminate 
the long-established dual school system.” (Memorandum 
for the United States, p. 4).

More delay might make for smoother desegregation. But 
experience does not favor that prediction. Delays in the 
past have served to embolden the recalcitrant, discourage 
voluntary compliance and nourish new schemes for evasion. 
Fifteen years of history teach us that every possibility for 
delay, however circumscribed, will be treated as an invita­
tion for ready ingenuity to exploit. Moreover, as any school 
administrator will testify, there will always be adminis­
trative problems in the operation of a school district. The



i« - -Mi- stJ . ,

1R

constitutional goal is not tlie smoothest possible desegrega­
tion; it is the realization of personal and present rights’6 
against which, at this late date, administrative convenience 
amounts to nothing 1C

But petitioners see no need to indulge in speculation when 
a sharper answer is called for: Ihese school districts have 
had 15 years to eliminate barriers to desegregation and that 
is enough. If the desegregation process is ever to be suc­
cessfully concluded, this Court must act. The question is one 
of constitutional rights and that is a question which under 
our system can only be finally resolved by this Court. This 
Court should grant review and hold, with Mr. Justice Black, 
“that there is no longer the slightest excuse, reason, or 
justification for further postponement of the time when 
every public school system in the United States will be a 
unitary one” (Opinion in Chambers of Mr. Justice Black, 
Appendix P, p. 81a, infra).

16 Missouri cx rel. Gaines v. Canada, 305 II.S. 337, 351-2 (1938).
10 The Court of Appeals has held in this and other cases that 

interruption of the school year will be no bar to implementation of 
desegregation plans. See Appendix B, p. 37a, infra; United States 
v. Jefferson County Board of Education, 5tli Cir., No. 27444, 
June 26, 1969.



19

CONCLUSION

For the foregoing 
certiorari should he 
reversed.

reasons, the petition for writ of 
granted and the judgment below

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III  
N orman C. A maker 
N orman J. Chachkin 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Melvyn R. L kventhal 
R euben A nderson 
F red L. B anks, J r.

538V2 North Farish Street 
Jackson, Mississippi 39202

Attorneys for Petitioners



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APPENDIX A

Opinion of lhe District Court Approving 
freedom of Choice Plans

[Caption omitted]

These twenty-five school cases involving thirty-three 
school systems are before the Court on motions of the 
plaintiffs to update the Jefferson decree in all of these 
cases to comport with the requirements of Green}  The 
Jefferson decree is sometimes referred to as the model 
decree for the establishment of a unitary school system 
as such plan was designed and approved by the United 
States Court of Appeals for the Fifth Circuit en banc.2 
The right of these movants under existing circumstances 
to institute and maintain this proceeding is challenged in 
limine. The challenge questions the right of these plain­
tiffs to institute this proceeding for supplemental relief 
in these cases where no child or parent admittedly has 
complained of any discriminatory treatment by the school. 
In some of these cases, a final judgment was entered and 
it is contended that such judgments cannot be reopened 
for the purpose of enlarging and expanding the relief 
granted in the original judgment. Under Civil Rule 65(d), 
an injunction must be specific to be enforced. But no addi­
tional relief is sought. These plaintiffs seek not to expand 
or enlarge upon the relief previously granted, but simply 
seek to require these schools to adopt and apply a plan

1 Charles C. Green, et al. v. County School Board of New Kent 
County, Virginia, et al., 391 U.S. 430, 88 St.Ct. 1689.

2 United States v. Jefferson County Board of Education. (5 
C.A.) (1966) 372 F.2d 836, affirmed on rehearing en banc 380 
F.2d 385, certiorari denied.

la



2a

Opinion of the District Court Approving 
Freedom of Choice Plans

which will accomplish the purpose enjoined by the model 
decree. There is no merit in either of these motions for 
the reason indicated; and for the further reason that the 
Supreme Court of the United States has enjoined upon the 
United States District Courts the duty to keep these school 
cases open, and to supervise them to the end that ulti­
mately the principles in Brown (and allied school cases)3 
are made to effectively operate so that no child in any 
public school is in any manner denied any equal protection 
right by any school. Those motions of the defendants to 
dismiss these motions for that reason will be denied.

The Enterprise and Quitman schools in Civil Action No. 
1302(E), supra, move the Court to dismiss the motion in 
that case because of the lack of authority of the attorney 
to have filed it. The Court heard testimony on this question 
and finds as a fact that the attorney who filed such motion 
never represented the plaintiffs in that case and that he 
had no express or implied power or authority to have filed 
such motion here. The facts and circumstances thereasto 
will be set forth in detail in the accompanying footnote.4

3 Charles C. Green, et al. v. County School Board of New Kent 
County, Virginia, et al., 391 U.S. 430, 88 S.Ct. 1689; Arthur Lee 
Raney, et al. v. Board of Education of Gould School District 391 
U.S. 443, 88 S.Ct. 1697; Brenda. K. Monroe, et al. v. Board of 
Commissioners of City of Jackson, Tennessee, 391 U S 450 88 
S.Ct. 1700.

4 This matter is before the Court on motion of the defendants 
to dismiss the motion of the attorney for supplemental relief. The 
facts show and the Court finds: That the attorney who filed the 
motion for supplemental relief was not one of the attorneys who 
initially instituted the suit; that original local counsel resigned 
as attorney and withdrew from the ease with approval of° the 
Court; that present counsel seeking such relief graduated from 
law school two or three years ago and that he does not know any 
of the plaintiffs and was never requested by any plaintiff (parent 
or child of this school) to seek any supplemental relief; that no



3a

Opinion of the District Court Approving 
Freedom of Choice Plans

b“ ineSd!n Said CiVil Acti0n N°-

s t a t i l t i l r l l^ d o ^ o V p r f ^ f ,  03568 WhCn judged by their
ment or measure up to the 9117 impressive accomplish- 

in the d isesta^ lL hm ent^f^vT ^^s^ ige^of^11̂8 ®re.en 
under the o!d sys,em. Most of^he sc h lls

t^\;::::snz \z iopT ?  rhoois ciea,'iy iticn-
in these eases u„mis t a C y I w T h a T C
has been made ia desegregating ,hcse scJ ols, eJep U n  a

y f™' »  b  incumbent upon the plaintiff! i,!
these eases to show a lack of substantial progress f  a rf 
the disestablishment of a dual school °
lishment of a unitary schoo! system o/bot'h'raees/ l t  £ £

m its progress toward complying with ® by either school
model decree and the Court th is finds m l re3uirenients of the 
mony and reasonable inferences de l,,Shu f!C'h nnd,sPutcd testi- 
who signed the motion in this case f o r  c i r 0 m  1<; fbat counsel 
express or implied authority fro J  L “pp/ e?™jtal relief had no 
child from either school to L  so ° r parent’ or
either school appeared at the hearing inr]Parent °r chiId from 
any parent, or any child from e i t h l r t b T f  n° rePresentative of 
during the two weeks while these sehon appeared at the trial 
to testify that anybody col neeted with beinS heard
authorized present counsel to seek ,!?],'either,of said schools had 
the Court finds that present coimse/ ( l “Ppleme? tal relief> a»d 
power or authority (express or irn n h W l^ ^ j0’!? had no snch 
motion to dismiss his application for . n an,d ct lat defendants’ 
thorized will be granted S  “ 5  «  being unau-
non-resident counsel who never a n n e a l  ?mtAally 3nstituted by 
counsel who withdrew from the case m W  ♦ Ahe,case> and local 
only Reuben V. Anderson a voum- f i t  ,the heannS> so that 
attorney for this motion ’and sou-ht bx aWyGr’ appearod as 
establish his right to do so hut »n+' 1  ̂ b?s own testimony to 
or justification therefor. ’ tlrey W!thoilt factual support

'



4a

Opinion of the District Court Approving 
Freedom of Choice Plans

upon devolves upon the defendants to explain or overcome 
such showing by the plaintiffs. The rule is that the burden 
o proof a ways rests upon the plaintiff (or movant) who 
must establish proof of his claim. When the plaintiff makes 
out a pnma facie case, then the burden of evidence devolves 
upon the defendant to explain, or justify the facts and 
circumstances surrounding his position, but the burden of 
proof never shifts from the plaintiff.

There are many variable conditions which exist in these 
twenty-five defendants cases that require some special and 
separate consideration and treatment. In some of these 
schools such as the Noxubee County School District, Civil 
Action Jvo. 13t2(E), there are from three to four colored 
students to each white student in these schools. A forced 
mixing of those schools by a mathematical formula of in­
discriminate mixing would result in the creation of all 
.°F °  schools. All of these schools complain of the pro­

vision m the model decree which denies the school authori­
ties the right to persuade parents and children to transfer 
o schools of the opposite race.6 The facts in this case show 

that all of these schools have very faithfully obeyed that 
injunction of the Court. No school board member or teacher 
or representative of any school has tried to influence any 
child or any parent to send any child to any school pre­
dominantly of the opposite race. But it is the oft repeated 
aw m this Circuit that the school board (and nobody else) 

has the nondelegable duty to adopt a plan which will con-



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5a

Opinion of the District Court Approving 
Freedom of Choice Plans

form to all of the requirements of the model decree and 
to see that such plan works. Every school official who tes­
tified in every one of these cases before the Court testified 
convincingly before this Court that this provision of this 
model decree had interfered with a fair and just and proper 
operation of the freedom of choice plan in these schools. 
Yet, like Prometheus (chained to a rock) these schools are 
ordered by the Court to shoulder this very positive and im­
portant duty of desegregating these schools while the Court 
denies them the right to counsel with and persuade parents 
to let their children enter a school predominantly of the 
opposite race. This Circuit has steadfastly refused to mod­
ify that provision in the model decree in any manner, or 
to any extent and considers such provision as an impor­
tant matter of policy to be changed only by the United 
States Court of Appeals for this Circuit sitting en banc. 
This Court is unable to assay the degree to which such 
provision in the injunction of this Court has contributed 
to the failure of these schools to accomplish more impres­
sive results than are revealed by the bare figure statistics 
as to mixing of the races in these schools. Certainly, these 
statistics cannot be ignored or disregarded and are well 
calculated to have an impressive effect upon any trier of 
facts in search of some means for determining whether 
or not the freedom of choice plan has worked. But there is 
nothing in Green, or its two companion cases, to indicate 
that statistics alone are to determine whether or not a plan 
works. Otherwise, a mathematical formula would have been 
prescribed by the Court and sound judicial discretion of 
this Court would have been discarded. But, instead, Green 
said: “We do not hold that ‘freedom of choice’ can have 
no place in such a plan.” * * * “Although the general ex-



6a

Opinion of the District Court Approving 
Freedom of Choice Plans

perience under ‘freedom of choice’ to date has been such 
as to indicate its ineffectiveness as a tool of desegregation, 
there may well be instances in which it can serve as an 
effective device. Where it offers real promise of aiding a 
desegregation program to effectuate conversion of a state- 
imposed dual system to a unitary, non-racial system there 
might be no objection to allowing such a device to prove 
itself in operation.” The facts and circumstances in prac­
tically all of these cases (with a very few exceptions) show 
this Court to its entire satisfaction that these schools, oper­
ating under the freedom of choice plan, have operated in 
the very best of good faith with the Court in an honest 
effort to comply with and conform to all of the requirements 
of the model decree. In these cases so much progress has 
been made in the attitude and cooperation of the parents, 
children and teachers that they are entitled to much credit 
and commendation of the Court as good citizens who wish 
to comply with all of the requirements of the law, and to 
lay aside any inbied and ingrained former adverse opin­
ions about the operation of a unitary school system.

This Court has long entertained and often expressed the 
view' that the freedom of choice plan would not vmrk effec­
tively, so long as mere lip service v'as paid the plan by 
the school authorities, when the facts and circumstances 
would disclose that actually the parent and the child in 
some of these schools v'ould not in truth and in fact be a 
free agent as to the school to be attended by the colored 
child. But a very careful examination of the witnesses 
and analysis of their testimony in these cases revealed to 
the Court not one instance where any colored parent, or 
colored child did not do exactly what they wanted to do 
in deciding as to the school which the colored child would



7a

Opinion of the District Court Approving 
Freedom of Choice Plans

attend. There are many reasons (and very important rea­
sons) why colored children have not sought to attend 
formerly all-white schools. The primary reason is that the 
vast majority of all schools attended by colored children 
qualify for the government subsidiary as “target schools.” 
ihey are provided by the government with free lunches 
and even improved facilities and working tools in their 
shops, because the majority of the parents in such schools 
are m low income brackets. A disruption of those benefits 
would be disastrous to those children who would be obliged 
to leave school and lose all educational advantages now 
available to them there. It is such facts and circumstances 
which have caused the courts to wisely observe, time and 
again, that there is no easy and quick and ready-made cure 
for the past ills of state enforced segregation. The problem 
and its cure must yield to the facts and circumstances in 
each particular school case. The cure must not result in a 
destruction of the wholesome objective of the plan. I t is a 
sorry and very strange principle of constitutional law 
which would foster by its application a catastrophic de­
struction of the right sought to be protected and enjoyed.

Well trained colored teachers in active service in for­
merly colored schools and in formerly white schools in this 
district have appeared before this Court and convincingly 
testified under oath as a matter of fact that freedom of 
choice was actually working in their schools; that perfect 
harmony and understanding existed in the school and that 
no danger to the school system lurked in the implementa­
tion of the freedom of choice plan, but that any kind of 
forced mixing of the races against the wishes of the in­
volved parents and children (colored and white) would re­
sult m an absolute and complete destruction of the school



1

8a

Opinion of the District Court Approving 
Freedom- of Choice Plans

and its system. That is likewise a fair analysis and char­
acterization of the uncontradicted testimony of experienced 
expert witnesses who have spent their lives in school ser­
vice in many other states. This testimony does not show 
that desegregation is unpopular with some parents and 
some children, but does positively show that any rushed 
and random forced mixing applied for the sake of imme­
diate mathematical statistics would literally destroy the 
school system for both races. In many instances where the 
ratio of colored people to white people is very high, the 
result would be not to create just schools, but to create 
predominantly colored schools, readily identifiable as such 
in every instance. The same corresponding result would
° ,°7  m areas where the white population is very dense 

and few Negroes live.
Surely, the policy and practice burden of these schools 

is not on the parents and children to provide a unitary 
school system, but is squarely upon the shoulder of these 
school boards. But what can a school board member do 
who is enjoined under penalty of contempt by the Jefferson 
decree not to try to persuade, or dissuade any child, or 
any parent as to the school which the child will attend? 
That Jefferson decree has not been amended and sugges­
tion as to amendment of the particular section has been 
rejected. These board members have thus been deprived 
of the valuable right and opportunity to properly discharge 
and perform this duty so heavily resting upon them alone. 
Outsiders may converse with parents and children as to 
the school to be attended, where such others have no duty 
or responsibility in the connection, but school board mem­
bers cannot do so. The paid agitators and transients and 
meddlers simply have not produced impressive results

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9a, _.- |

Opinion of the District Court Approving 
Freedom of Choice Flans

which are statistically favorable to the school board, which 
has been mandated by the Court to perform its duty, but 
not allowed by the Court to discharge its responsibility in 
that connection. The Court finds from such circumstances 
and conditions that the mathematical statistics as to the 
working progress of the freedom of choice plan for this 
reason alone is unfair, unjust, unrealistic and misleading.
The plan has not failed. The Court just has not allowed it 
to work.

There is nothing in Green which condemns the freedom 
of choice plan as it is working in the designated schools 
in this district. The Court has simply not afforded these 
schools a fair and just opportunity to try to improve the 
figure statistics of the plan at work. That opportunity 
should not be denied or withheld.6

The Natchez schools, appearing as Civil Action No. 1120 
(W), have demonstrated outstanding progress with the 
freedom of choice plan. These schools accommodate approx­
imately 10,400 children, 55% of whom are Negro and 45% 
of whom are white. There are 40 Negro teachers in the 
predominantly white schools and 53 white teachers in the 
predominantly Negro schools. There are 456 Negro chil­
dren in the predominantly white schools. There are 40 
white and 70 Negro children in the vocational schools. A

6 One of the authors of the majority opinion in the Jefferson 
school case (Judge Thornberry) speaking for a panel composed 
of Judge Brown and District Judge Taylor, in United States v.
Greenwood Municipal Separate School District, (5 C.A.) 406 F.2d 
1086 held: “If it develops that no children in the school district 
are being denied equal protection of the laws, then no relief will 
be granted. This was the position taken by the Court below and 
by another district court which considered the same question.
See United States v. Junction City School District, W.D., Arkansas 
1966, 253 F.Stipp. 766. We agree.” -



10a

Opinion of the District Court Approving 
Freedom of Choice Flans

b T l h  ° V he SCh°01 b0ard> A11 decisions of the school 
board have been unanimous. It is the view of the Court
m this case that these schools have shown satisfactory and
acceptable progress under all of the facts and circumstances
n comp ying with all of the requirements of the model
eciee. n this case, as in all of these cases, the bare figure

statistics are misleading and tell only part of the story
There would appear to be no occasion or necessity for any
updating of the model decree to meet the requirements of

f Z Z  ^  thiS CaSG haVG Sim^  showntha any child in this school district has been denied equal
protection of the law in any instance. The defendants in 
this case have satisfied the Court that the freedom of 
choice plan has worked in that system and the plaintiffs 
have not shown the contrary by the greater weight of the 
credible evidence (including statistics). That ends our in­
quiry here, as set forth in footnote 6. The plaintiffs mo- 
tron to update the decree in this particular case for the 
additional reason stated in this case will be denied.

As to the other cases, the plaintiffs have not shown by 
. 6 ^ ea te r  weight of the more convincing evidence that the 
freedom of choice plan as to the other schools has not 
worked and that there is no probable prospect of such plan 
working. The plan has not been afforded an opportunity 
and chance to work, and it simply cannot be honestly said 
that the plan has not worked. It cannot be said from the 
evidence m this case that the plan will not work if given 
a chance to do so. The Court, therefore, finds as a fact 
and holds as a matter of law that the movants in these 
cases have failed to prove that such freedom of choice plan 
should be discarded as not workable, and that the schools 
should be required to adopt another plan which would work



11a

W v n o n o ,  « .  « * * *  C n r t  ^
Freedom of Choice Plans

~ r L T ^ i“t ' c cree-
ciaI discretion in making thaYdet “ itS sound J " *  
not clearly erroneous on this record ™So f“’ *"d b  surel3 
troll is Committed to the son a • ,*• . sofar as such ques- 
Court even though d i s l e e d  ^  » '
no appellate court can pass -i l ' ^  “  appe,late court, 
«on which is addressed to t l T ”* °n that Ques-
lafe court, as was said in Platt v A/ C°Urt aild not an aPPel- 
ufacturing Co., 376 US HO 'ru ^ S°ta Uinin3 & Man-
“ T h e  D i s t r i c t  C o u r P s  use\ f \ ® f L  ^  *  W* S b e l d "
not empower the Court of Arm l Ppropnate factor did 
Tim function of the Court t,° °rder U“  transfers, 
determine the a « *  was to 
application to the trial iud,„ „„ d”d „then 'eave their 
these plaintiffs to update the re„ “ Tile »»«<>■# of 
to conform with Green as to the wo'!,‘"g ‘"T ^ -th re e  cases 
choice plan to desegregate tho ,? "!°r “ llg of the freedom of 
will be denied. The status of t h ^ ^ 7 -°f  ̂  SCh°°1S 
xs another-matter later to be discussed “  SCb°°ls

»  S ™ ™ ^ £ " u ™ Z l i o n nCiP': w m  “  d“ reed 
equal protection rights accrues I o'"” v  ^  4 dcniaI of his 
education in public unitary school I f ™  T  affo,'ded aa 
segregation in public schools ? tem- State enforced 
uud harrier «,e e n ^ m en t o / t T " ^  “  “  °bsta' la 
universally decreed by the courts at th™ , ri*W’ *  is 
vestige and influence of such state onf ' T  *hat every 
■oust be completely eradicated Go “  ^  Se*re«a«on
public schools, that a unitary !  ° “0. Stale s»PI>orted 
the dual system of schools ^so that shali replace

operate s c h o o ls  ^ t r d t t ^ X



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12a

1

; ‘3

apinwn of the District Court Approving 
Freedom of Choice Plans

Most of the schools involved in these cases before the Court 
have accepted and adopted such principles in good f a i i

ance S Z  r  * * • “  »  ^
statistics which t Z lChcnit8s°f  ^  7 ^  But the

^ a  thereto, d o ^ I S r ^ " ^

and do 7  1 , S° Stalislics al»"e a™ misleading,id do not truly and convincingly reflect the facts and cir
cams anccs as they actually exist. Surely, a schoo board
■s no responsible and is not accountable ior a con pleW,
voluntary choice of a Negro child who wishes to attend the
so 100 which IS attended predominantly bv Negroes- vet
such a choice wou.d be reflected in these statistic! as a' }£
school 1* u C 100 b0ald t0 disehare® its duty, when the
child o r t t !  'S 7 °ined " 0t ‘° pe,'saad® or dissuade the d oi the parent m such decision. It simply may not be
onestly said under such circumstances that the freedom of

c mice p an has not worked in such a ease! The vast maior
l  °f C°lored cllildren s^ p ly  do not wish to attend a school 

which is predominantly white, and white children simPTy

grV a idT h / °  attGnd ? SCh°01 Which is Predominantly Ne 
Z  ’ a7  lngramed and inbl’ed influence and character 

tlC °f **  !’aces not be changed by any pseudo teachers' 
or sociologists m judicial robes. If forced mixing is the 

timate goal in these cases, then extreme care must be ex 
eicised by more knowledgeable and more experienced men 
than mere judges of trial and appellate courts to avoid a 
complete disruption of our entire educational svstem in this 

i-stnct. It is easy for a judge in an ivory tower, aloof and 
afar from the actual working circumstances and conditions 
m these schools, to rationalize and unilaterally decree the



13a

Opinion of the District Court Approving 
Freedom of Choice Plans

answer to problems with which he is not familiar and with­
out regard to and consideration for the completely insur­
mountable barriers to the suggested course of solution. 
This Court certainly does not possess any of the training, 
01 skill, or experience or facilities necessary to operate any 
kind of schools; and unhesitatingly admits to its utter in­
competence to exercise, or exert any helpful power or au­
thority in that area. These school boards are thus 
confronted with many very serious and perplexing school 
problems which will command the very highest skill of their 
expertise in discharging and performing in accordance with 
the requirements of law. The responsibility is strictly theirs 
to carry out the mandate of this Court under penalty of 
sanctions. If the HEW has any competent and experienced 
administrative people who could completely divest them­
selves of all political ambitions and influence, it is possible 
that they could lie of some help to these boards in devising 
and administering plans for the complete desegregation of 
these schools without injury to the educational objective. 
But plans heretofore have not been meaningful or helpful 
in criticisms thereof before this Court, and have resulted in 
nothing but a waste of time. Nobody needs any more guide­
lines or plans any longer to be completely informed of the 
duty of these school boards. It is unmistakably clear now 
that this duty does not rest on the parent or on the child 
to make these plans work, but such duty rests squarely and 
alone upon the shoulders of these school board members. 
I t  is their duty under the injunction heretofore issued by 
this Court to see that the existing freedom of choice plan 
for the desegregation of these public schools works now, 
or will work in the immediate future. If and when it be­
comes apparent to the Court that a plan is working to the

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14a

Opinion of the District Court Approving 
Freedom of Choice Plans

degree that no parent or child of either race can convince 
the Court that some child is being denied the equal protec­
tion of the laws under the Fourteenth Amendment to the 
Federal Constitution by the policy and operating practices 
of a publicly supported school, then the plan in operation 
must be said to be working and any additional relief re­
quested should be denied. Those are exactly the facts and 
circumstances established before this Court without any 
dispute, or contradiction in the evidence in this record on 
that question. The rule in this Circuit under such facts and 
circumstances is that further relief should be denied. That 
is the rule of this Circuit as declared in United States v. 
Greenwood Municipal Separate School District, supra, 
where it is said: “If it develops that no children in the 
school district are being denied equal protection of the 
laws, then no relief will be granted. This was the position 
taken by the Court below and by another district court 
which considered the same question. See United States v 
Junction City School District, W.D., Arkansas, 19GG, 253 
F.Supp. 766. We agree.”

Now as to the faculty. Very little progress has been made 
by any of these other schools in desegregating the faculties. 
That is a monumental job as the evidence in this record 
shows for several reasons. Teachers are not well paid in 
this district, and the schools are simply not in a position to 
crack any whip over their heads. Actually, the facts show 
that there is such a scarcity of available teachers in this 
distiict that many of the Schools have been unable to com­
plete their present faculty requirements. The evidence in 
this record does not show one single instance where there 
has been any discrimination on the part of any school au­
thority in hiring teachers. In many of these schools, the

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15a

Opinion of the District Court Approving 
Freedom of Choice Plans

teachers are married and simply teach schools as sort of 
an avocation without regard to the adequacy of the salary, 
because they live in the town where the school is situated 
and they are not dependent for their livelihood on such 
salary. Several of these schools are obliged to compete 
with the United States Government where their schools 
are operated on Indian reservations financed by the Govern­
ment. Such teachers are paid much more attractive salaries 
than the neighboring adjoining state schools can afford to 
pay from their limited budgets. These teachers who thus 
contract with these school boards insist upon designating in 
the contract the school at which they will teach at such re­
duced salary. Now, it is very unrealistically suggested that 
the school board should disregard such provision in their 
contract, and should stand upon the suggestion or legal 
advice (as dicta in this Circuit) that such teachers be as­
signed without regard to terms of the contract, and use 
such court advice as a defense, if sued upon such contract, 
or breach thereof. Surely, a teacher has a vested right to 
teach where he or she pleases, and the teacher owes no duty 
to the contrary to anybody. It is certainly not difficult to 
foresee the calamitous result which would follow the pur­
suit of such a suggestion in the state court trial, and the 
result which would accrue to the school. That simply is not 
the answer to the problem, and no panacea is offered here, 
but these schools surely do have a very positive duty to 
uproot and remove every vestige of the former segregated 
policies which were for so long state enforced in tins area. 
This Circuit has frequently expressed its impatience, and 
at times with some petulance, at the schools’ lack of prog­
ress in complying with the literal requirements of the 
Jefferson decree. United States v. Board of Education of



16a

Opinion of the District Court Approving 
1 > eeclorn of Choice Plans

the City of Bessemer, (5 C.A.) 396 F.2d 44 imposes upon 
se aool boards the positive duty to desegregate faculties, 
with the sanction of discharge, if a teacher refuses an as­
signment m furtherance of an order of the board. Target 
dates must be set for the ultimate accomplishment of such 
result of complete integration of the faculty by the school 
year 1970-1971 says this Circuit. Cf: United States v. 
Greenwood Municipal Separate School District 406 F 2d 
1086, 3093-4. '

Montgomery County Board of Education v. Adam Carr 
r., (o C.A.) 400 F.2d 1 holds: That good faith in a court of 

equity in this sensitive area of desegregation is an import­
ant element; that there must be target dates for the ac­
complishment of faculty desegregation; that there can be 
no mixing by any numerical or racial percentage ratio of 
faculty which would enlarge upon the requirements of the 
model decree; that there shall be no hard and fast rule as 
to exact percentages, but only approximations of such ratios 
that must remain flexible. [Certiorari granted and set for
argument on April 21 and April 28 calendars in United 
States Supreme Court.]

In sum, and by way of recap of the finding of facts by the 
Court as to all remaining schools before the Court in this 
record, the Court expressly finds from the uncontradicted 
undisputed credible evidence offered before it in this case 
that :

(1) The freedom of choice plan in all of these cases is 
universally acclaimed by both races in all schools as being 
most desirable, most workable and acceptable by everybody. 
Nobody testified to anything to the contrary or to anything 
better. Every witness who testified on both sides testified 
substantially to the same effect. There is no substantial dis-



17a

Opinion of the District Court Approving 
Freedom of Choice Plans

pute or contradiction of such fact, to be found anywhere in 
this record as to any school. The movants had no witnesses 
of their own, but used only teachers or officials of these 
schools as their witnesses.

(2) The target schools are accomplishing a very effective 
and wholesome purpose and these schools should not be 
disturbed or disrupted in their service under federal law 
to these underprivileged children who could not otherwise 
afford to attend any school.

(3) Extracurricula activities are being engaged in on a 
gradual and cautious basis in this particular delicate area 
winch can easily result in a destruction of the entire pro­
gram for both races by any precipitous action of a court in 
the exercise of its equity jurisdiction even in the very best 
of good faith.

(4) No parent and no child in any school has complained 
to anybody of any discriminatory treatment accorded any 
child, or of any alleged failure of the freedom of choice plan 
to operate effectively as to anybody in any one of these 
schools before the Court; and no parent and no child in any 
school before the Court appeared here to testify in support 
of any one of the plaintiffs’ motions to show any necessity 
oi propiiety for updating the model decree.

(a) No school in the district has attained the figure de­
gree of mixing of the races among the students to equal that 
condemned in Green as being unsatisfactory, but it cannot 
be said as a matter of fact that the freedom of choice plan 
has failed in these school sprimarily because the board (and 
all teachers and officials) have been enjoined and are still 
enjoined not to try to persuade any child or any parent to 
mix with the opposite race so as to make such freedom of



18a

Opinion of the District Court Approving 
Freedom of Choice Plans

choice plan work. No school can be criticized or penalized 
foi not making such plan work when they were enjoined by 
the Court not to try to make it work.

(G) There is no proof anywhere to be found in this record 
that any school board or other school authority has done 
anything (or not done something that should have been 
done) which has denied any child (black or white) of the 
equal protection of the laws under the Federal Constitu­
tion. That should end the inquiry here under footnote G, 
supra.

(7) No school has violated, or neglected any duty under 
the Jefferson decree entered by this Court in any one of 
these cases.

(8) Fa eh school board has done everything possible, 
which it was authorized by the model decree to do, to estab­
lish and operate a unitary school system in each of the dis­
tricts before the Court and have made satisfactory and ac­
ceptable progress to that end.

(9) Faculties should and must be desegregated as re­
quired by the model decree. A target date must be set by 
a plan and must be met, as the orders of the United States 
Court of Appeals for this Circuit demand. United States v. 
Bessemer, 396 F.2d 44; United States v. Greenwood Munici­
pal Separate School District, 406 F.2d 1086, 1093-4; Mont­
gomery County Board of Education v. Adam Carr Jr  400 
F.2d 1. ' ■'

(10) The detailed facts as to progress figures as to mix­
ing of the races in the various schools are as shown in the 
repoits of the schools filed with the Court, and are not im­
pressive as figure statistics in such limited and distorted 
view of the workings of the freedom of choice plan.



19a

Opinion of the District Court Approvinq 
Freedom of Choice Plans

(11) Any additional findings or conclusions, under Civil 
Rule 52, desired by any party may be submitted to the 
Court for its proper action within ten days after date of 
this opinion.

Finally, it is the duty of each of those remaining twenty- 
three schools to adopt a plan for the desegregation of the 
faculties of such schools, and for the fixation of a target 
date therefor, and to meet such target date in accordance 
with the cited decisions of this Circuit on that question. 
Time is too short between now and the commencement of 
the fall sessions of school to contemplate filing plans and 
having hearings on such plans in the interim. As previously 
stated, these hearings accomplish absolutely nothing, and 
result in extensive arguments and delays with no corre­
sponding benefit or accomplishment. But each school in 
this group will be enjoined more specifically than heretofore 
to commence and make some substantial progress in the de­
segregation of the faculty at each school at the 1969 fall 
session with the target date as fixed by the cited decisions 
from this Circuit. The motions of the plaintiffs in the 
twenty-three remaining cases before the Court will be sus­
tained to the extent stated.

The plaintiffs (or movants) in each of the twenty-five 
school cases before the Court are directed to furnish the 
C°ui t with all separate orders in these cases in conformity 
with the provisions of this opinion, and within the time re­
quired by the rules of this Court.
May 13, 1969

/ s /  H arold Cox 
United States District Judge 

/ s /  J)an M. R ussell, J r. 
United States District Judge 

/ s /  W alter L. N ixon, J r. 
United States District Judge



20a

I

Order of tlie District Court dated May 16, 1969

[Caption omitted]

Pursuant to the opinion of Court dated May 33, 1969, 
it is hereby ordered:

1. That, plaintiffs’ Motion for a New Plan of Desegre­
gation is denied;

2. That defendants will continue to operate schools lo­
cated within the Holmes County School District under a 
freedom of choice plan of desegregation;

3. That defendants shall take positive and affirmative 
steps to achieve complete desegregation of school facilities 
so that by the 1970-71 school year the pattern of teacher 
assignments to each school is not identifiable as tailored 
for a heavy concentration of either Negro or white pupils. 
In order to insure full compliance by the commencement 
of the 1970-71 school year, defendants shall achieve sub­
stantial faculty and staff desegregation by the 1969-70 
school year.

O r d e r e d , this 16th day of May, 1969.

/ s /  H arold Cox

United States District Judge



.

21a

Order of the District Court dated May 16, 1969
: '

[Caption omitted]

Pursuant to the opinion of this Court, dated May 13, 
1969, it is hereby ordered that defendants’ Motion to Dis­
miss plaintiffs’ Motion for a New Plan of Desegregation 
is  sustained.

!
Ordered, this 16th day of May, 1969.

/ s /  H arold Cox

United States District Judge

■

'
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22a

Order of the District Court dated May 29, 1969

[Caption omitted]

This cause came on to be heard on the Motion of defcn- 
sMd\ fr t-  ° rdei; making additi01ul1 findings herein,
n M y ^  ^  med "  thiS CailSG *  ^ n d a n t sn May 21 1969, and requesting that the Court amend the 
pinion o his Court in this cause dated May 13, 19G9 by 

addmg theretc additional findings, and it appearing that 
the Motion should be granted, it is ordered that the fol- 
owmg additional findings be added to the findings here-

action in tbe 0pinion of this Court 

mK" ’ “ evidcnee

1. The disparity between the achievement of the 
vast majority of the white pupils of the district and 
the achievement of the vast majority of the Negro 
pupils of the district is such that an indiscriminate 
orced attendance of any substantial preconceived per­

centage or ratio of both races to any particular school 
would result m pupils of such widely varying achieve­
ment abilities being placed in the same class or grade 
hat irreparable damage would be done to the educa­

tion of all of the pupils in such class or grade and the 
education of all such pupils would be seriously and ad­
versely affected.

2. The educational desirability of permitting pupils 
to be m classes or grades where they can identify with 
the other pupils and where they, within reason, can 
ac neve along with the other pupils in such class or 
grade is highly important and, under the facts in this 
case, more than offsets any advantages that might be



23a

Order of the District Court dated May 29, 1969

obtained by attempting to compel or force pupils to 
attend a particular school because of his race in order 
to achieve a larger percentage of an ethnic group at 
such school.

o. The freedom of choice plan in effect in this school 
district will result in more statistical mixing of the 
ethnic groups in the schools of this school district 
than will any other plan available to the defendants.

4. There is no basis for assuming that the per­
centage or ratio of ethnic groups at any particular 
school in a school district would be of more signif­
icance in a school district that has a history of de jure 
segregation than in a school district that has a history 
of de facto segregation.

It is further ordered that the making of these additional 
indings does not require any change in or amendment to 

the order of this Court dated May 16, 1969, which was 
entered pursuant to the foregoing opinion.

Ordered, this the 29th day of May, 1969.

/ s /  H arold Cox
United States District Judge 

/ s /  D an M. R ussell

United States District Judge 
/ s /  W alter M. N ixon

United States District Judge



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24a

APPENDIX B

Letter Directive of the Court of Appeals 
of June 25, 1969

UNITED STATES COURT OF APPEALS 
F ifth  Circuit 

Office of the Clerk

E dward W. W adsworth R oom 408-400 R oyal St.
CLERK N ew Orleans, L a. 70130

June 25, 1909

To Counsel L isted B elow 

Nos. 28030 and 28042
United States v. Hinds County School Board, ct al 

Gentlemen:

I  am directed by the Court to forward the following in­
structions regarding the 25 consolidated Mississippi school 
cases (tJ.S. v. Hinds County School Board, et a l.) :

1. The Court will hear oral argument on all of these 
cases on the motion for summary reversal and the merits 
in all of the cases both private plaintiffs and those of the 
United States. The argument will be held in New Orleans 
beginning 9:30 A.M., Wednesday, July 2. Counsel should 
hold themselves in availability for Thursday, July 3, as 
well. The parties will work out amongst themselves a 
suitable proposed schedule of orders and probable times. 
The Court does not put any specific limitation on time but 
of course desires no unnecessary repetition.

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25a

Letter Directive of the Court of Appeals of June 25, 1069
2. The United States is to arrange for a court reporter, 

the cost to be charged as costs in the case.

3. The parties are free to file in typewritten form, with 
xerox copies or similar reproduction, any additional memo- 
moranda or briefs and it would be helpful if copies are 
simultaneously sent both to the Clerk and to the Judges 
at their home stations. Special effort should be made to 
have any memoranda, responses, etc. in the Clerk’s office 
by Noon, Tuesday, July 1. Responses and rejoinders will 
be permitted as desired.

4. The District Clerk is to furnish, and the U .S. Depart­
ment of Justice is to procure and have available in the 
courtroom for use by the Judges on the bench, with re­
spect to each school district involved, copies of the latest 
statistical report required to be filed with the District 
Court under the Jefferson type decree theretofore entered. 
Counsel are also directed to supply hopefully in a mutually 
agreeable way a consolidated recap which sets out the 
statistical data substantially in the format of the Exhibit 
“J ” attached to the motion of the private plaintil'fs-appcl- 
lants covering each of the Boards of Education. If de­
sired, these tables may be adapted to show relative per­
centages of all pertinent items including those set forth 
in Exhibits A through I) attached to the response to motion 
for summary reversal filed June 20 by Messrs. Bridfortli 
and Satterfield.

5. The Court takes notice of Judge Cox’s order with 
respect to the record but since the appeal is being ex­
pedited on the original record without reproduction re­
quired or permitted, the U. S. Attorney shall make ar-



26a

Letter Directive of the Court of Appeals of June 25, 1969
rangements with the District Clerk to transmit to the 
Clerk of the Court of Appeals the entire record of the 
District Court including the transcript of the evidence in 
all of the cases so that it will be available to the Court 
as needed during argument and submission. The Court 
contemplates, however, that the record may be returned 
in a very short time. If the District Clerk prefers, it would 
be quite in order for him, one of his deputies, or the U.S. 
Attorney to transport and deliver the record to the Clerk 
of the Court of Appeals.

6. The Court’s general approach will be to accept the 
fact findings of the District Court and to determine what, 
if any, legal relief is now required best thereon. To the 
extent that appellants, private or government, assert that 
any one or more specific fact findings (as distinguished 
from mixed questions of law and fact) are clearlj er­
roneous, the appellants’ concerned shall xerox copies of 
pertinent excerpts of the transcript ot the evidence for 
use by the Judges (4 copies) which may be made available 
during argument.

7. To enable the Court to announce a decision as quickly 
as possible after submission, the appellants are requested 
to file in 15 copies a proposed opinion-order with definitive 
time table and provisions on the hypothesis that the appeal 
will be sustained. These should be modeled somewhat on 
the form used by the Court in its recent opinions in Hall, 
et ah v. St. Helena Parish School Board, et ah, No. 26450, 
May 28, 1969, and Davis, et ah v. Board of School Commis­
sioners of Mobile County, et ah, No. 26b86, June 3, 1969. 
When and as additional opinion-orders of this type are 
issued in other school desegregation cases, copies will be



27a

Letter Directive of the Court of Appeals of June 25, 1969

immediately transmitted to all counsel so that the parties 
can make appropriate comments during argument with 
respect to suggested modifications or changes in their pro­
posed opinion-orders.

The Court hopes that the appellants, private and govern­
ment, can collaborate and submit a mutually agreeable pro­
posed opinion-order and it desires from the appellees 
contrary proposed orders covering separately (a) on the 
hypothesis that the decrees of the District Court will be 
affiimed, and (b) on the hypothesis that the appellants’ 
motion and appeals will be sustained for reversal.

8. The Court recognizes that this is a huge record in­
volving a large number of parties and matters of great 
public interest and importance. Everyone will be heard 
but the Court also expects the distinguished counsel who 
appear in this case to collaborate m the best traditions 
of the bar to the end that waste of time and effort is elim­
inated and repetition avoided as much as possible. The 
Clerk will stand ready to be of whatever assistance he 
can in meeting this very compressed time schedule.

Very truly yours,

E dward W. W adsworth, 
Clerk

By / s /  Gilbert F. Ganucheau 
Gilbert F. Ganucheau 
Chief Deputy Clerk

GFGradg

cc: (See attached list)



28a

Opinion of the Court of Appeals of July 3, 1969

[Caption omitted]
Before

B rown, Chief Judge,

T iiornRERr;y and Morgan, Circuit Judges.

P e r  C u r i a m :

As questions of time present such urgency as we approacl 
t ie beginning of the new school year September 1969-70 
the court requested in advance of argument that the parties 
submit proposed opinion-orders modeled after some of oui 
recent school desegregation cases. We have drawn freely 
upon those proposed opinion-orders.

These are twenty-five school desegregation cases in a 
consolidated appeal from an en bane decision of the IT S 
District Court for the Southern District of Mississippi.’ 
lliese cases present a common issue: whether the District 
Court erred in approving the continued use by these school 
districts of freedom of choice plans as a method for the 
disestablishment of the dual school systems.

The plaintiffs’ position is that the District Court erred 
m faihn& to aPlj]y the principles announced in recent deci­
sions of the Supreme Court and of this Court.

These same school districts, along with others, were be­
fore tins Court last year in Adams v. Mathews, 403 F .2d 
181 (5th Cir., 1968). The cases were there remanded with 
instructions that the district courts determine:

( 1 ) whether the school board’s existing plan of de­
segregation is adequate “to convert [the dual system] 
to a unitary system in which racial discrimination



»*► — ,*!• .y^'. - »Ae'..Ut..-

29a

of the Court of Appeals of July 3, 1969

would be eliminated root and branch” and (2) whether 
the proposed changes will result in a desegregation 
plan that “promises realistically to work now.”

403 F.2d at 188. In determining whether freedom of choice
would be acceptable, the following standards were to be 
applied:

If in a school district there are still all-Negro schools 
or only a small fraction of Negroes enrolled in white 
schools, or no substantial integration of faculties and 
school activities then, as a matter of law, the existing
plan fails to meet constitutional standards as estab­
lished in Green.

Ibid.

In all pertinent respects, the facts in these cases are simi­
tar. No white student has ever attended any traditionally 
Negro school m any of the school districts. Every district 
thus continues to operate and maintain its all-Negro schools.
T le record compels the conclusion that to eliminate the dual 
character of these schools alternative methods of desegrega
tion must be employed which would include such methods 
as zoning and pairing.

Not only has there been no cross-over of white students 
to Negro schools, but only a small fraction of Negro stu­
dents have enrolled in the white schools.1 The highest per-

m m m m m

*■ ~ ..... s-nrtwsre



30a

Opinion of the Court of Appeals of July 3, 1969

centage is in the Enterprise Consolidated School District, 
which has 16 percent of its Negro students enrolled in white 
schools a degree of desegregation held to be inadequate in 
Green v. County School Board, 391 U. S. 430 (1968). The 
statistics in the remaining districts range from a high of 
10.6 percent in Forrest County to a low of 0.0 percent in 
Neshoba and Lincoln Counties. For the most part school 
activities also continue to be segregated. Although Negroes 
attending predominantly white schools do participate on 
teams of such schools in athletic contests, in none of the 
districts do white and all-Negro schools compete in athletics.

RACIAL CHARACTER

District
Total Number 

of Schools
Amite 5
Canton 5
Columbia 4
Covington 7
Forrest 9
Franklin 3
Hinds 22
Kemper 5
Lauderdale 5
Lawrence 7
Leake 7
Lincoln 6
Madison 8
Marion 5
Meridian 19
Natchez-Adams 15
Neshoba 2
North Pike 4
Noxubee 6
Philadelphia _ 3
Sharkey-Issaquena 5
Anguilla-Line 3
South Pike 7
Wilkinson 4

Predom­All- All- inantly
Negro White White

2 1 23 — 2
1 — 33 1 3
1 2 6
1 _ 2

10 1 1 12 1 2
1 2 22 3 23 3 12 3
4 — 4
1 2 28 - 1 17 - 8
1 — 1
1 2 13 — 3
1 1 14 — 12 _ 12 — 52 - 2
(Continued on opposite page)



31a

Opinion of the Court of Appeals of July 3, 1969

These facts indicate that these cases fall squarely within 
the decisions of the Supreme Court in Green and its com­
panion cases and the decisions of this Court. See United 
States v. Greenwood Municipal Separate School District, 
400 F.2d 1086 (5th Cir. 1969); Henry v. Clarlcsdale Munici­
pal Separate School District, No. 23,255 (5th Cir., March 6, 
1969); United States v. Indianola Municipal Separate 
School District, No. 25,055 (5th Cir., April 11, 1969; An-

ENROLLMENT BY RACE AND PERCENTAGE 
OP NEGROES IN WHITE SCHOOLS

1968-1969 Enrollment Negroes in White SchoolsDistrict A egro White Number Percentage
Amite 2,649 1,484 63 2.4 %Canton 3,440 1,352 4 .1 1 %Columbia 912 1,553 60 6.6 %Covington 1,422 1,968 89 5.1 %Forrest 480 3,085 81 16.9 %Franklin 1,029 1,124 38 3.7 %Hinds 7,409 6,559 481 6.5 %Kemper 1,896 786 1 1 .58%
Lauderdale 1,872 3,060 26 1.4 %
Lawrence 1,263 1,889 32 2.5 %Leake 1,568 1,950 67 4.3 %Lincoln 941 1,149 5 .2 %Madison 3,198 1,128 41 1.3 %Marion 1,082 1,741 34 3.1 %Meridian 3,974 5,805 606 15.2 %
Natch ez-Adams 5,509 4,496 541 9.8 %
Neshoba 591 .1,875 1 .16%
North Pike 632 708 2 .31%
Noxubee 3,002 829 95 3.2 %
Philadelphia 406 923 1 1 2.7 %
Sharkej’-Issaquena 1,241 603 104 6.4 %
Anguilla-Line 769 207 30 3.9 %
South Pike 1,737 994 46* 2.6  %
Wilkinson 2,032 689 55 2.7 %
Note: There is a disagreement over proper accounting for some 

special classes which, for these purposes, we consider un­
important.



KMB&':

32a

Opinion of the Court of Appeals of July 3, 1969
thony v. Marshall County Board of Education, No. 26,432 
(5th Cir., April 15, 1969); Hall v. St. Helena Parish School 
Board, No. 26,450 (5th Cir., May 28, 1969) ; Davis v. Board 
of School Commissioners of Mobile County, No. 26,886 (5th 
Cir., June 3, 1969); United States v. Jefferson County 
Board of Education, No. 27,444 (5th Cir., June 26, 1969); 
United States v. Chocta-w Comity Board of Education, 5 
Cir. 1969, F.2d (No. 27, 297, July 1, 1969); United 
States v. 27ie Board of Education of Baldivin County, 5 Cir. 
1969, F.2d (No. 27,281, July 1, 1969); United 
Stales y. The Board of Education of the City of Bessemer, 
5 Cir. 1969, F.2d (Nos. 26,582; 26,583; 26,584; 
July 1, 1969). The proper conclusion to be drawn from 
these facts is clear from the mandate of Adams v. Mathews, 
supra: “as a matter of law, the existing plan fails to meet 
constitutional standards as established in Green.”

We hold that these school districts will no longer be able 
to rely on freedom of choice as the method for disestablish­
ing their dual school systems.

This may mean that the tasks for the courts will become 
more difficult. The District Court itself has stated that it 
“docs not possess any of the training or skill or experience 
or facilities to operate any kind of schools; and unhesitat­
ingly admits to its utter incompetence to exercise or exert 
any helpful power or authority in that area.” And this 
Court has observed that judges “are not educators or school 
administrators.” United States v. Jefferson County Board 
of Education, supra at 855. Accordingly, we deem it ap­
propriate for the Court to require these school boards to 
enlist the assistance of experts in education as well as de­
segregation ; and to require the school boards to cooperate 
with them in the disestablishment of their dual school 
systems.



m

■M

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33a

Opinion of the Court of Appeals of July 3, I960

With respect to faculty desegregation, little progress has 
een made.2 Although Natchez-Municipal Separate District 

has a level of 19.2% and Lawrence County a level of 10 G% 
seven school districts have less than one full-time teacher 
per school assigned across racial lines. In the remaining 
systems, fewer than 10 percent of the full-time faculties 
teach m schools in which their race is in the minority, 
h acuities must be integrated. United States v. Montgomery

2 The latest corrected figures (see Note 1 supra) are:

District Negro
Amite 95
Canton 120
Columbia 43
Covington 64
Forrest 43
Franklin 4 4
Hinds 295
Kemper 68
Lauderdale 82
Lawrence 50
Leake 87
Lincoln 38
Madison 1 4 7
Marion 48
Meridian 180
Natchez-Adams 484
Neshoba 35
North Pike 26
Noxubee 1 3 5

Philadelphia 25
Sharkey-Issaquena 71 
Anguilla-Line 
South Pike 78
Wilkinson 97

Full <£• part 
time teachers 

White
66
81
71

103
122
45

281.9
45

131
81
90
74
66
96

317

86
30 
61 
46
31

52.8
39

Full time desegre­
gating teachers 
Negro White

0
3
5
3
4
3

22
0
8

10
0
0
0
4 
8 
0 
0 
1 
6 
0 
0 
0 
2 
0

0
11

0

17

0
3.3

Part time desegre­
gating teachers 

Negro White
0
1
0
1
1
1

0
0
0
0
0
0
0
4

40
0
1
0
0
0
0
0
0

0
9
4
5 
2 
1

3
0
1
1
0
1
0

10
53
2
2
0
2
0
0
2
0

tU

F\ %

I' :

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I



34a

Opinion of the Court of Appeals of July 3, 1969
County Board of Education, No. 798, at 8 (Sup.Ct., June 2, 
1969). Minimum standards should be established for mak­
ing substantial progress toward this goal in 1969 and finish­
ing the job by 1970. United States v. Board of Education 
of the City of Bessemer, 5 Cir., 196S, 396 F.2d 44; Choctaw 
County, supra, Baldwin County, supra.

Ihe  Court on the motion to summarily reverse or alter­
natively to expedite submission of the case filed by the 
Government and the private plaintiffs concluded that funda­
mental constitutional rights of many persons would be 
jeopardized, if not lost, if this Court routinely calendared 
this case for briefing and argument in the regular course. 
Before we could ever hear it, the opening of the school year 
September 1969-1970 would have gone by. With this and 
the total absence of any new issue even resembling a con­
stitutional issue in this much litigated field, we therefore 
concluded that the appeals should be expedited. Full argu­
ments were had and representatives from every District 
were heard from. In the course of these arguments, several 
contentions were made as to which we make these additional 
specific comments.

Based upon opinion surveys conducted by presumably 
competent sampling experts, testimony of school adminis­
trators, board members, and educational experts, the School 
Districts urged, and the District Court found in effect, that 
the failure of a single white student to attend an all-Negro 
school was due to the provisions of our Jefferson decree 
Avhich in effect prohibited school authorities from influenc­
ing the exercise of choice by students or parents. We find 
this completely unsupported. This record affords no basis 
for any expectation of any substantial change were the 
provision modified.



35a

Opinion of the Court of Appeals of July 3, 1969
Based upon similar testimony, the School Districts urged 

a related contention that the uncontradicted statistics show­
ing only slight integration are not a reliable indicator of the 
commands of Green. This argument rests on the assertion 
that quite apart from a prior dual race school system, there 
would be concentration of Negroes or white persons from 
what was described as “polarization.” To bolster this, they 
pointed to school statistics in non-southern communities. 
Statistics are not, of course, the whole answer, but nothing 
is as emphatic as zero, and in the face of slight numbers and 
low percentages of Negroes attending white schools, and no 
whites attending Negro schools, we find this argument 
unimpressive.

In the same vein is the contention similarly based on sur­
veys and opinion testimony of educators that on stated per­
centages (e.g., 20%, 30%, 70%, etc.), integration of Negroes 
(either from influx of Negroes into white schools or whites 
into hegro schools), there will be an exodus of white stu­
dents up to the point of almost 100% Negro schools. This, 
like community response or hostility or scholastic achieve­
ment disparities, is but a repetition of contentions long since 
rejected in Cooper v. Aaron, 1958, 358 U.S. 1, ___  S.Ct.

, L .E d .----- ; Stell v. Savannah-Cliatham Countv
Bd of Ed., 5 Cir., 1904, 333 F.2d 55, 61; and United States
v. Jefferson County Bd. of Ed., 5 Cir., 1969 ___ p .2 d____
[No. 27444, June 26, 1969].

The order of the District Court in each case is reversed 
and the cases arc remanded to the District Court with the 
following direction:

1. These cases shall receive the highest priority.

2. The District Court shall forthwith request that edu­
cators from the Oflice of Education of the United States

s
#■



36a

Opinion of the Court of Appeals of July 3, 1969

Department of Health, Education and Welfare collaborate 
Avit i the defendant school boards in the preparation of plans 
to disestablish the dual school systems in question. The dis 
establishment plans shall be directed to student and faculty 
assignment, school bus routes if transportation is provided, 
a facilities, all athletic and other school activities, and 
all school location and construction activities. The District 
C o u r t  shall further require the school boards to make avail­
able to the Office of Education or its designees all requested 
information relating to the operation of the school systems.

3 The board, in conjunction with the Office of Education, 
shall develop and present to the District Court before Au­
gust 11, 1969, an acceptable plan of desegregation.

4. If  the Office of Education and a school board agree 
upon a plan 0f desegregation, it shall be presented to the 
Distuct Court on or before August 11, 1969. The court shall 
approve such plan for implementation commencing with 
the 1969 school year, unless within seven days after sub­
mission to the court any party files any objection or pro­
posed amendment thereto alleging that the plan, or any 
pait thereof, does not conform to constitutional standards.

5 If no agreement is reached, the Office of Education 
shall present its proposal to the District Court on or before
t UgUSt n ’ 1969< The Court shall approve such plan for 
implementation commencing with the 1969 school year un­
less within seven days a party makes'proper showing’that
t e plan or any part thereof does not conform to constitu­
tional standards.

6. For plans to which objections are made or amend­
ments suggested, or which in any event the District Court 
will not approve without a hearing, the District Court shall

f<w.—■



iiir-iliiisiiiL v 'S i

37a

Opinion of the Court of Appeals of July 3, 1969
hold hearings within five days after the time for filing ob­
jections and proposed amendments lias expired. In no event 
later than August 21, 1969.

7. The plans shall be completed, approved, and ordered 
for implementation by the District Court no later than 
August 25, 1969. Such a plan shall be implemented com­
mencing with the beginning of the 1969-1970 school year.

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

R e v e r s e d  a n d  R e m a n d e d  "Wi t h  D ir e c t io n s

f
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38a

Modification of Order of the Court of Appeals 
of July 25, 1969

Before
[Caption omitted]

B rown, chief Judge,
T horn berk y and Morgan, Circuit Judges.

P er Curiam ;

The opinion published in the above styled cases on Tnlv 8 
1969 .S hereby modified by renumbering former paragraph

17 and 18 ? “ ?  « * r ,  on ° p ^ s17 and 18, paragraphs 5, 6 and 7 in their entirety end In

Z a Z  fo“ GOf 5 - 0  « ^  shall

5. If  no agreement is reached, the Office of Education

d sat icT’to ^ f  r ° P0Sal f°r a plan for the scll°ol* 1  1 dlstnet COuvt on or before August 11
date 8^  aParheS *aVe tcn <10) da^  from the date such a proposed plan is filed with the district

thereto*0 T1 ° t " ™  ° r R e s t e d  amendments thereto. The district court shall hold a hearing on
the proposed plan and any objections and suggested
amendments thereto, and shail enter a plan y -^ h
ten S T ,  constitutional standards no later than
expired ^  thC tinW f°r f,li,,S objections has

A plan for the school district shall he entered for 
implementation by the district court no later than 
September 1, 1969 and shall be effective for the berin 
3  o the 1969-197° school year. The district court 
shall enter Fmdmgs of Fact and Conclusions of Law

6.

&

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39a

Modification of Order of the Court of Appeals 
of July 25, 1969

regarding the efficacy of any plan which is approved 
or ordered to immediately disestablish the dual school 
system in question. Jurisdiction shall be retained, 
however, under the teaching of Green v. Coimty 
School Board of New Kent County, 391 U. S. 430, 
439 (1968), and Raney v. Board of Education of 
Gould School District, 391 U.S. 443, 449 (1968), until 
it is clear that disestablishment has been achieved.

■yv»$=-



40a

>■! : I

APPENDIX C

L««er of Augua I ! ,  1969 Transmit,ing Dese^ egation 
Plans Prom United Slates Office of Education 

to the District Court

D epartment of H ealth, E ducation, and W elfare 
Office of E ducation 

W ashington, D. C. 20202

August 11, 1969

Judge William II. Cox 
United Slates District Court 
Southern District of Mississippi 
Post Office Drawer 2447 
Jackson, Mississippi 39205

Dear Judge Cox:

Re: United States of America v.
Hinds County School Board et al 
and related cases subject to the 
Court’s Order of July 5, 1969

Juit : r : r d, dos— » i>ia,,s wcrc « a re­sult of the Court’s Order of July 6, 1969, in the above-
referenced cases. ve

The technical assistance teams who carried out this work 
were made up of 27 educators and were under the direction
. M .J ® e J ’ Jorda" ’ Senior Program Officer of the Divi- 
ion o Equal Educational Opportunities, U. S. Office of 

Education, Department of Health, Education, and W eL -e  
headquartered in Atlanta, Georgia. (Attachment A con

involved!) ^  for oaeh of thc 27 educators



41a

^ « S 5 S s r -to the District Court

n, °f eac,

X n e t i e r  o , ^ r“  " "  ? “ *  ^  £

. S i r r wUoh“ “ ^ =

(Attachment B is * '“ •

: he s — »-
was made for a technical ,L « t  T  appointment
district to gather all the m a te r ia ls ic T ,ry  Z  
a desegregation plan. As a r e s u l t ? T  r  d m ,# Pn»  
the loea! school officials ™
nel, the following data were acquired P°rS°n-

1) Building information by school, the number of 
permanent teaching stations, capacity of each build 
mg, current student enrollment by , , ,  7
number o, fulUime and

0f con";° T  transp0rted’ ^  of building type of construction, size of school site and list nf f / T
ties such as cafeteria, gymnasium, library, ete.

2) Proposed building information-future construction

3) Pupil Locator Maps (where availab!e)_to show resi 
deuce of Negro and white students.

4) School and School Site M ap-to  show location of 

students0 “  diS,riCt’ C0d0d as « » *  1- e l s  of

5) Demographic Information (where ayaiIaMe)_giyin„ 
population distribution of the community by r L ,



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42a

to the District Court

trained « d w ^ ^ ^ J S ' % e^ ,r d ^  at least ‘"™ d )
school districts at least three (3) time t V' S“  1 7  °f 0,0 
On the first visit thov vi , j  • C urin8: tlus period, 
gathered data, and discussed w’«  SCh°o1 faciIities,
“ «  ^ r  seh0;i desegregation and^the* ^  tM r
'*** Involved. On the second I S  prob-
sclmol officials the team's tentative t h o t h t a T  ^ l0CaI 
desegregation plan for the disfrW ° * concerning a
the ideas of the schod officialf Is  t ^ H  a“ CmPted ‘°
feasible desegregation plans. m L e  theT r™  T " ’ “ d 
visit was accented flio ^le °^ er °f a third
the plan wind, thi O f ^ Z Z Z T  ‘ SCll°o1 °ffidaIs
mend to the Court, subject m ,1! 7 “ ”d6d to 
“ ■ meeting. A, a i l u ^ t l m  ^ E d  T " ”* 
tempted to collaborate with the school M  “  S‘aff at‘ 
" *  e^c tive  and mutual,y acceptable S  “  deV<d°p-

« S: ^ ° r ,atT  -  * < »  ™ s

information o n t h t h ”  ^ 1 f t T " ,  * “  *  
posed plans, we have insorf ,n i 61K of Pr°-
building information forms W ife  t h f "8 ^  reP°rtS “nd 
the information in them was f  • , e “rc not signed,
school district. We were unaM 7  , 7  °fflc!ais of ‘he
we used. We have attempted t ° ,d u p I l c a t e  maPs which 
where information is the result of l “ n7 f

of enrollment for the 1S69-70 school ̂ 0 ^ 7 “



Letter of August 11, 1969 Transmitting Desegregation 
Plans From United States Office of Education 

to the District Court

tions of the 1968-69 enrollment. The enrollment of each 
school district is stable enough to make use of such projec­
tions, a generally acceptable practice, in planning for the 
use of schools for the 1969-70 school year. In some cases, 
however, it is possible that these projections do not ac­
curately reflect the numbers of children who reside in the 
area of a given school. This possibility stems from the fact 
that traditionally in these school districts there has been 
extensive bussing of children to schools outside the areas 
of their residence.
Where our information was not precise enough, we avoided 
drawing exact geographic boundaries for school attendance 
areas. Rather, we provided guides from which these lines 
can be drawn to achieve at least the measure of desegrega­
tion indicated in the projection tables of our proposals. 
Because each proposal was not prepared by the same indi­
vidual, this concept is worded in several different ways. In 
each case, however, we intend the same meaning. For exam­
ple, when we recommend that children attending a certain 
school shall be assigned as specified or that children from a 
particular school be assigned to a specified place, we mean 
that all children living in the area of the school that is 
named should be so assigned through adoption of attend­
ance lines so drawn as to utilize properly the school facili­
ties and achieve at least the measure of desegregation 
indicated in the proposal. It should be clear that in such 
a case, we do not intend to recommend that a child who has 
been bussed into the area from another area under freedom 
of choice is to continue to attend that school, except possibly 
pursuant to a proper transfer policy, including one for 
majority-to-minority transfer as described in Section VI 
of our proposals.



44a

Letter of August 11, 196.9 Transmitting Desegregation 
Plans From United States Office of Education 

to the District Court

I believe that each of the enclosed plans is educationally and 
administratively sound, both in terms of substance and in 
terms of timing. In the cases of Hinds County, Holmes 
County, and Meridian, the plans that we recommend pro­
vide for full implementation with the beginning of the 
1970-71 school year. The principal reasons for this delay 
are construction, and the numbers of pupils and schools in­
volved. In all other cases, the plans that we have prepared 
and that we recommend to the Court provide for complete 
disestablishment of the dual school system at the beginning 
of the 19G9-70 school year. Should the Court decide, how­
ever, to defer complete desegregation in any of these school 
districts beyond the opening of the coming school term, we 
have prepared and set out in the plans, steps which could, 
in our judgment, be taken this fall to accomplish partial 
desegregation of the school system at the opening of the 
1969-70 school term.

The entire staff who participated wish to express apprecia­
tion for the cooperation we received from the school dis­
tricts and for the opportunity the Court has given us to 
assist in the development of these desegregation plans.

Sincerely yours,

/ s /  Gregory R. A nrig

Gregory R. Anrig, Director 
Equal Educational Opportunities 
U. S. Office of Education

Attachments :
A
B

^ r v



45a

Attachment A Annexed to Letter of August 11, 1969

Number
Nome Experience of Years
Gregory R. Anrig Teacher « 3

Asst. Principal 1
Principal 4
Superintendent 3
Division Director,
IT. S. Office of Education 2

James E. Barnes Teacher 4
Executive Director,
Berkshire Co. Action Council 1 
Education Coordinator,
Hartford County, Conn. 2
Director, Education Pro­
grams for Disadvantaged 2
OE Fellowship, Title IV,
U. S. Office of Education ’ 1

Edwin Blue Teacher-Principal 26
Superintendent 4
Field Representative,
Auburn University y ,

Walter D. Branch Teacher 4
Teaching Principal 2^
Principal g
Asst. Superintendent 2
Research Assoc. & Pro­
gram Coord., Southeastern 
Education Laboratory 1
Program Officer, Title IV,
U. S. Office of Education iy Q



46a

Attachment A Annexed to Letter of August- 11, 1969

Name
Frank Carter

E. H. Cooper

Edna Ellicott

Thomas W. Fagin

Alfred P. Fain

Number
Experience of Years
Assistant Dir. of Student 
Teaching, Virginia State 
College 2
Dir. Student Personnel,
Virginia State College 7
Program Officer, Title IV,
U. S. Office of Education 1%
Teacher-Coach II
Principal 4
Superintendent 5
Program Officer, Title IV,
U. S. Office of Education 1%
Education Program Spe­
cialist, U. S. Office of 
Education 2

Curriculum Asst. & Consult 2 
Teacher 4
Program Officer, Title IV,
U. S. Office of Education %
Teacher 5
Teaching Principal 4
Principal 4
Asst. Superintendent 1
Superintendent 1
Asst, to Commissioner on 
Education—Guam 2
Director, Vocational & Sec­
ondary Education, Virgin 
Islands 2

. --.y ryw yp**-v.y-y£y.*-».»*-• - c*gpe*KyiR|*Tfyp!



.... ____ ...... .. . iW r ii i l i i ;

47a

1

i
•«'t§

Attachment A Annexed to Letter of August 11
Rj

,  1 9 6 9

Number
Name Experience •of Years

Alfred P. Fain Director, Peace Corps 1p
(cont’d) Training

Program Officer, Title IV, i-
U. S. Office of Education 1 i

Richard L. Fairley Teacher 5
Education Specialist 
Education Specialist,

3
)

U. S. Office of Education 3 .
Branch Chief,
U. S. Office of Ed.

I
2

Joseph J. Franchina Teacher 5
Assistant Principal 4
Principal 19
Superintendent 
Program Officer, Title III,

5
\

ESEA IVe
Program Officer, Title IV, 
U. S. Office of Education

y

Marilyn C. Galvin Education Program Spe­
cialist U. S. Office of 
Education

f

1
4

Illard J. Hunter Teacher 2 !
Principal 2

I

Superintendent 
Program Officer, Title IV,

6
>

- IT. S. Office of Education 1 %
J . C. James Teacher 8

Dean of Admissions 6
Education Specialist,
U. S. Office of Education 3 [

i f



48a

Attachment A Annexed to Letter of August 11, 1969

Name

J. J. Jordan

Wikaer Iverns

Number
Experience 0f  Years
Teacher 3
Principal 3
Director, Transp., Maint.
& Operations, & Federal 
Prog., Asst. Superintendent 12 
Program Officer, Title IV,
U. S. Office of Education
Teacher
Guidance Counselor 
Visiting Teacher 
Education Program Spe­
cialist, II. S. Office of

iy 3
iy 2
5
21/0

Education 1%
J ohn R. Lovegrove Teacher 8

Principal 8
College Instructor
N A . State Central School

1

Study Research
Supv. Instr., State Dept

2

, of Ed.
Dir., Guidance & Testing,

2

State Dept, of Education 
Program Officer, Title IV,

2

U, S. Office of Education 1%
Hilda Maness Teacher

Educational Research,
1

Library of Congress V4
Teacher—Peace Corps 
Textbook Writer, Ethiopia,

y2

Ministry of Education y2



I

49a

Attachment A  Annexed to Letter of August 11, 1909

Name

Hilda Maness 
(cont’d)

Clyde W. Matthews

Robert T. Morris

William T. Nallia

Robert A. Skaife

Number
Experience 0f  Years
Education Program Spe­
cialist, U. S. Office of 
Education o
Teacher
College Instructor 
Director, Neighborhood 
Youth Corps,
Greenville, N.C.
Program Officer, Title IV, 
U. S. Office of Education
Teacher
College Instructor 
Program Officer, Title IV, 
U. S. Office of Education
Teacher-Coach
Principal
Asst. Superintendent 
Asst. Coord. Title I,
State Dept, of Education 
Coord. Field Services,
Title IV, University of 
S. Alabama
Teacher
Supervisor
Principal
NEA Field Secretary 
Teacher Organ—
Executive Secretary 
College Teacher

2
3

1
1

IVe
3
2
2

10
1
5
8

9

v '
i

%

•-W
VT

.'



A 50a

Attachment A Annexed to Letter of August 11, 1969

Name

Robert A. Skaife 
(cont’d)

Howard Sullins

M. Edward Sullivan

Albert G. Tippitt

Charlie T. Trussell

Bobby M. Bowen

Number
Experience 0f  Years
Education Program Spe­
cialist, Title IV, U. S. Office 
of Education 3
Teacher 4
Principal 43
Superintendent 3

Program Officer, Title IV,
U. S. Office of Education 1
Teacher 4
Principal 7
Asst. Superintendent 1
Education Program Spe­
cialist, Title IV, U. S. Office 
of Ed uc. 2

Principal 
Bean of College 
College Instructor 
Teacher
Program Specialist, Title 
IV H. S. Office of Education
Teacher 
Principal
Program Director, Title III 
Program Officer, Title IV,
U. S. Office of Education l y2

Teacher-Coach 8
Program Officer, Title IV,
U. S. Office of Education iy±

21
1
1
3

7
12
1



51a

Attachment B Annexed to Leltee July ] 1 9 6 9

D epartment of H ealth, E ducation, and W elfare 
Office of E ducation 

W ashington, D. C. 20202

Bureau of Elementary and 
Secondary Education

Dear Superintendent:
July 11,1969

in accordance with the July 5, 1969, order of the United 
States District Court for the Southern District of Missis
available '°  Menti the technical assistance
1964 For y° t  ' TUl0 IV °f tie  C M  Bights Act of 1964. 1 oi assistance m developing a desegregation plan f o r
your district, contact the following person:

Mr. Jesse J. Jordan 
Senior Program Officer 
Equal Education Opportunities 
Office of Education/BESE 
50 Seventh Street, NE.
Atlanta, Georgia 30323 
Telephone: Area Code 404 526-3076

Because of the number of districts to he served under this 
dei and the limited time for plan development, we will be 

‘ long each district which requests Title IV assistance fr> 
make available pupil locator, transportation, and-wTere

'Vrrf',



.
.

.
.

52a

Attachment B Annexed to Better of July 11, 1969

appropriate—zone maps for the district as currently 
organized. Mr. Jordan can answer any questions regarding 
these maps.
A brochure describing our services is enclosed for your 
information.

Sincerely yours,

/ s /  Gregory R. Axrig
Gregory R. Anrig, Director 
Division of Equal Educational 
Opportunities

Enclosure



\

i

V  r  •' V JV tr'-r.yf; r^ry. - v p  '■> ■

53a

Letter of August 19, 1969 From the Secretary of the 
Department of Health, Education and Welfare to 

the Chief Judge of the Court of Appeals

T he S ecretary of H ealth, E ducation, and W elfare 
Washington, D.C. 20201

August 19, 1969
Dear Judge Brown:

In accordance with an Order of the United States Court 
of Appeals for the Fifth. Circuit, experts from the Office of 
Education in the Department of Health, Education, and 
Welfare have developed and filed terminal plans to dis­
establish the dual school systems in 33 Mississippi school 
district cases.

These terminal plans were developed, reviewed with the 
school districts, and filed with the United States District 
Court for the Southern District of Mississippi on August 
11, 1969, as required by the Order of the United States 
Court of Appeals for the Fifth Circuit. These terminal 
plans were developed under great stress in approximately 
three weeks; they are to be ordered for implementation 
on August 25, 1969, and ordered to be implemented com­
mencing with the beginning of the 1969-1970 school year. 
The schools involved arc to open for school during a period 
which begins two days before August 25, 1969, and all are 
to be open for school not later than September 11, 1969.
On Thursday of last week, I  received the terminal plans 
as developed and filed by the experts from the Office of 
Education. I have personally reviewed each of these plans. 
This review was couducted in my capacity as Secretary 
of the Department of Health, Education, and Welfare aiid 
as the Cabinet officer of our Government charged with the 
ultimate responsibility for the education of the people 
of our Nation.

f



54a

I

belter of August 19, 1969 From the Secretary of the 
Department' of Health, Education and Welfare to 

the Chief Judge of the Court of Appeals

In this same capacity, and bearing in mind the great trust 
reposed in me, together with the ultimate responsibility 
or the education of the people of our Nation, I  am gravely 

concerned that the time allowed for the development of 
these terminal plans has been much too short for the 
educators of the Office of Education to develop terminal 
plans which can be implemented this year. The administra­
tive and logistical difficulties which must be encountered 
and met m the terribly short space of time remaining must 
surely m my judgment, produce chaos, confusion, and a 
catastrophic educational setback to the 135,700 children 
black and white alike, who must look to the 222 schools of 
these 33 Mississippi districts for their only available 
educational opportunity.

I request the Court to consider with me the shortness of 
time involved and the administrative difficulties which lie 
ahead and permit additional time during which experts 
of the Office of Education may go into each district and 
develop meaningful studies in depth and recommend 
terminal plans to be submitted to the Court not later than 
December 1, 1969.

Sincerely,

cc: Hon. Dan M. Bussell, J r  

Hon. Walter L. Nixon, Jr,

Secretary
/ s /  Bobert H. F inch



55a

Order of the Court of Appeals of August 20, 1969

[Caption omitted]
Before

B rown, Chief Judge,
Thornberry and Morgan, Circuit Judges.

P er Curiam:

 ̂ On August 19, 1969, Judge John R. Brown received by 
safehand courier the attached communication of August 9, 
1969 (marked Exhibit 1) from the Secretary of Health' 
Education and Welfare which in turn enclosed a copy of 
his communication of like date to Judges Cox, Russell and 
Nixon (marked Exhibit 2). Presumably this was delivered 
directly to the Judges concerned because the orders of this 
Court, and the District Court pursuant thereto call upon 
the Department of Health, Education and Welfare to take 
certain action.

As the timetable heretofore fixed was substantially that 
recommended by the United States Attorney General in 
response to the request made by this Court to all parties 
prior to the argument of this case in J u ly  1969, the Court, 
being of the opinion that it was essential to know at the 
earliest time the position of the parties as expressed in 
due order through their respective counsel, made inquiry 
of the Department of Justice. The Court was informed 
that motions were in the course of preparation for im­
mediate filing in the District Court with appropriate similar 
motions in the Court of Appeals seeking the entry of orders 
granting the suggested extension to December 1, 1969.

The Court has taken no action other than to record these 
facts.

E n ter : August 20, 1969.



56a

APPENDIX D

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26, 1969

[Caption omitted]

In an opinion-order of July 3, 1969, a panel of three 
Judges on the Fifth Circuit Court of Appeals, reversed 
the decision of three District Judges sitting as the District 
Court of the Southern District of Mississippi upholding 
freedom of choice plans for the desegregation of students 
and faculties m twenty-five cases including thirty school 
districts on the docket of this Court.

lhe  opinion-order, as amended, directed the District 
Court m each case to request educators from the Office 
of Education of the United States Department of Health 
Education and Welfare, hereinafter called HEW, to collab­
orate with the respective defendant school boards in the 
preparation of plans to disestablish “the dual school 
systems.” The opinion-order provided that each school 
board shall develop and present to the District Court be­
fore August 11, 1969, an acceptable plan of desegregation, 
t provided that if the board and HEW agreed upon a 

plan, the plan should be presented to the District Court 
on or before August 11, 1969, and the Court should approve 
such plan unless within seven days after submission any 
party should file an objection or proposed amendment 
alleging that the plan, or any part thereof, did not conform 
to constitutional standards. The opinion-order further 
provided that if no agreement be reached HEW should 
present its proposed plan on or before August 11, 1969, 
and the parties should have 10 days from the date of filing 
to file objections or suggested amendments thereto. The 
opinion-order further directed the District Court to hold



57a

F in d in g s  o f  F a c t  a n d  C o n c lu s io n s  o f  L a w  o f  th e  
D i s t r i c t  C o u r t  E n t e r e d  A u g u s t  2 6 , 1 9 6 9

a hearing on the proposed plan and objections and amend-
r e?orntheret° aild to eilter a plan no later than September
’ e^ ective for the beginning of the 1969-70

school year, retaining jurisdiction until it was clear to the 
Court, that disestablishment had been achieved.

With respect to three school districts, those of Hinds 
County, Holmes County, and Meridian, the HEW recom­
mended plans provided for full implementation beginning 
with the 1970-71 school year. As to all other districts, HEW 
has submitted two proposals—one for complete disestab­
lishment beginning with the 1969-70 school year, and 
one for partial or interim desegregation at the opening 
of the 1969-70 term.

On the date of August 20, 1969, one day prior to the 
deadhne set by the United States Court of Appeals for the 

if ill Circuit m its Opinion and Mandate for all parties 
to file their proposed plans, objections, suggested modifica­
tions and affidavits, this Court was informed through tele­
phone conversation with Chief Judge John R. Brown of 
the Fifth Circuit that he was in receipt of a letter dated 
August 19, 1969 from Honorable Robert II. Finch 
Secretary of Health, Education and Welfare, the substance 
of which was that the Secretary had received the terminal 
plans as developed and filed by the experts in the Office of 
Education of the Department of HEW, and had reviewed 
each of the plans, he being charged with the ultimate re­
sponsibility for the education of the people of the United 
States m this letter, which was subsequently hand-delivered 
to both of the undersigned on the same date, namely 
August 20, 1969, and which is attached to the original 
Motion filed in the Court of Appeals on August 21, 1969, 
by the United States For Leave to File Motion Seeking

y r—-*. *- •



 ̂j . c s

58a

F i n a l s  of Fact and of Law of the
District- Court Entered August, 26, 1969

M o t i o n  of Mandate, the Secretary stated that he wai
ment of ĉ nc™ ‘<‘ Owt the time allowed for the develop- 

ent of these terminal plans was much too short for the 
educators of the Office of Education to develop terminal 
plans which can be implemented in the school year 1969 70 
vluch this Court finds was to open on August 20 in"on e’

d V w  Stl'iCtS i"VOlved’ with various other open- s ( a cs >e ween that date and September 2 I960 The 
secretary further stated in his letter that the adm inistrl 
' ; , l0" leal difficulties which must be encountered and

met n, the “terribly short space of time remaining” must
catn-f m)hlS '!,Udg”Wnt' “produce chaos, confusion, and a 
Mack lle ef s e t b a e f c  to the f35,70O children,
of L ° e  r “ " 1 ,Wa° mUS‘ l0°k ‘° ‘he 222u a. ' ' sc“0Jl aistricls for t-heir onlv availahlp

■ 1 “°, r ” °PPOrtUaity-” The Secretary, therefore, in the 
cu  mg paragraph of his letter requested the Court of 

Appeals and this Court to consider the shortness of time 
involved and the administrative difficulties which lie ahead

O fficeT ftd adf ° nal time dm'ing ^  experts of the Office of Education may go into each school district and
develop meaningful, studies in depth and recommended
terminal plans to be submitted to the Court not later than

The above letter from the Secretary was attached to a 
notion filed on August 21, 1969 by the United States en 

titled Motion of the United States for Leave to File Motion 
Seeking Modification of Mandate, to which was attached
f P P°“ r ° the Unile<! Stat«s Court of Appeals 
for the Fifth Circuit. Due to the extreme emergency result
ing from the shortness of time, Chief Judge Brown of the 

lfth Circuit, in a telephone conversation with the under-



59a

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26, 1969

signed Judges suggested and requested that this Court 
conduct a hearing on the motion filed by the United States, 
and make a record thereon, and enter findings of fact and 
conclusions of law, all of which should he transmitted to 
the three judges composing the panel which reversed the 
decisions of this Court in an opinion of July 3, 1969, which 
was subsequently modified on July 25, 1969. Chief Judge 
Brown directed that the record, wdiich would be transcribed 
immediately, and this Court’s written Findings of Fact 
and Conclusions of Law be filed forthwith with the Clerk 
of the United States Court of Appeals for the Fifth Circuit 
in New Orleans and that copies be transmitted to the three 
Judges composing the panel which reversed this case, at 
their home offices, namely, Chief Judge John E. Brown, 
Judge Homer Thornberry and Judge Lewis R. Morgan.

. The Chief Judge also instructed this Court to inform all 
counsel of record, which this Court has done, that anyone 
objecting to or wishing to offer any evidence on this motion, 
which was subsequently amended by the Government on 
August 25, 1969, must do so by presenting in person or in 
some other suitable manner, their objections and affidavits 
together with memoranda to the above three judges on the 
panel at their home offices no later than the morning of 
Wednesday, August 27, 1969.

The Amended Motion filed by the United States in the 
Court of Appeals and in this Court moves the United 
States Court of Appeals for an order amending its order 
or mandate of July 3, 1969 and subsequent amendments 
thereto, in accordance with the new proposed “New Amend­
ed Order” attached to said amended motion. The substance 
of the Amended Motion and the proposed “New- Amended 
Order” filed by the United States in those cases, all of



GOa

Findings of Fact and Conclusions of Law of the 
Distiict Court Entered August 26, 1969

which were consolidated in the United States Court of Ap­
peals and are being treated as consolidated cases here, is 
that Paragraphs 3-7 should be deleted and the paragraphs 
contained m the suggested New Order, 3—7, be substituted 
therefor. For the sake of brevity and because of the time 
limitation, this Court will not recite in detail the Amended 
Motion and proposed “New Amended Order”, but in effect 
it provides that the school boards, in conjunction with the 
Office of Education, shall develop and present to the United 
States District Court for the Southern District of Missis­
sippi on or before December 1, 1969, an acceptable plan of 
desegregation, and if the Office of Education and the school 
boards agree upon the plan it shall be presented to the 
District Court on or before that date and shall be approved, 
unless within fifteen days after submission to the Court, 
any party files an objection or proposed amendment there­
to in accordance with the terms of said order. If no agree­
ment is reached, the Office of Education shall present its 
plan for desegregation of the school districts to this Court 
on or before December 1, 1969, and the parties shall have 
15 days within which to object or file suggested amend­
ments thereto. The proposed New Amended Order further 
provides that this Court shall hold a hearing on the pro­
posed plan and any objections and suggested amendments 
thereto and promptly approve a plan which shall conform 
to constitutional standards, while at the same time, enter­
ing findings of fact and conclusions of law regarding the 
efficacy of any approved plan.

Paragraph 6 of the proposed New Amended Order, as 
modified by the Government through dictation in to ’the 
record in this ease, provides that by October 1, 1969 the 
Board of Trustees, in conjunction with the Office of Edu­
cation shall develop a program to prepare its faculty and



W feJBS .4 **. »«, \ .  _I

61a

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26, 1969

staff for the conversion from dual to unitary school system 
and that the Office of Education shall report to this Court 
on October 1, 1969 with respect to this program. In the 
event that the Board fails to develop a program, the Office 
of Education shall submit a program which the Court may 
approve unless meritorious objection shall be made thereto.

Paragraph 7, as modified and revised by counsel for the 
Government through dictation into the record during the 
healing on the motion before this Court, provides “The 
Boards shall not let any new contracts for the construction 
of any new facilities nor materially alter any existing facili­
ties until a terminal plan has been approved by the court, 
except with the prior agreement of all parties or by order 
of the court upon motion and hearing. The Boards shall 
present its proposals to the parties and seek their consent 
at least fifteen days prior to moving for court approval.”

Attorneys for private plaintiffs filed in the Court of 
Appeals an “Opposition to Motion for Permission to With­
draw Plans Filed by the Department of Health, Education 
and Welfare”.

Attorneys for private plaintiffs filed a motion dated 
August 21, 1969 in the United States Court of Appeals for 
the Fifth Circuit, but did not file a copy thereof with this 
Court, and therefore this Court does not know its filing 
date. Private plaintiffs appear alone as plaintiffs in Civil 
Actions numbered 1209, 1302 and 3779, which encompass six 
separate school districts, and prior to being allowed to 
intervene and being aligned as plaintiffs in several addi­
tional cases during this hearing of yesterday, appeared as 
plaintiffs together with the United States in Civil Actions 
numbered 1096, 1300, 3382 and 3700, involving six separate 
school districts, and now also appear as plaintiffs as of 
yesterday in Civil Actions numbered 1160.

L
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62a

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26, 1969

It was agreed by all counsel in the hearing conducted by 
this Court that private plaintiffs’ opposition to withdrawal 
of the HEW plan apply to only those cases in which they 
appear as parties, but that the Government’s amended mo­
tion applied to all of these cases in which the HEW had 
filed proposed plans pursuant to the order and mandate of 
the United States Court of Appeals. Motion was also 
granted allowing all of the defendant school boards in all 
of these cases before the Court to join in the Motion and 
Amended Motion filed by the United States and the pro­
posed New Amended Order with the exception of Paragraph 
7 thereof, which relates to new construction and alteration 
of present structures.

This Court conducted a full-day hearing on August 25, 
19G9, receiving testimony on the Amended Motion filed by 
the United States, during which three witnesses testified, 
two for the United States in support of its motion, and one 
for the private plaintiffs in opposition to the motion.

The Court finds that the testimony by Dr. Myron Leiber- 
man, the only witness to testify for the private plaintiffs 
in opposition to the Government’s motion, is not entitled to 
much weight, if any, due to the fact that he had never visited 
any of the school districts in question and was not familiar 
with the facilities, school bus routes, qualifications of the 
faculty, physical composition of the various classrooms, 
including laboratories in the various buildings, or any other 
of the vital aspects necessary to form an opinion or make a 
judgment in connection with the relief sought in the motion 
filed herein. On cross examination, this witness, who ap­
peared to be more an integration expert than an education 
expert, interested more in the constitutional aspect rather 
than educational aspect of the plans under consideration,



63a

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26, 1969

admitted on cross examination that he had no experience as 
a principal or assistant principal of any elementary or high 
school and had no administrative experience nor operating 
experience in any school as a superintendent thereof; had 
never drawn a curriculum or student assignment plan nor 
any transportation plan for any high school or elementary 
school; had never participated in the opening of an ele­
mentary or high school; and that his only familiarity with 
the plans of the HEW concerning which he testified, was a 
two-hour perusal of these plans the night before this hear-- 
ing, from 9:30 to 11:30 PM, and a short discussion with the 
attorneys for the private plaintiffs. In any event, the Court 
finds that his testimony is clearly and convincingly out­
weighed by that of the two witnesses who testified in sup­
port of the motion.

i l l .  Jessie J. Jordan, of Smyrna, Georgia, who has been 
with the Department of Health, Education and Welfare for 
approximately two years, serving as Senior Program Offi­
cer for Title IV of the Civil Rights Act of 1964, received 
a Bachelor of Science degree in Education and Mathematics, 
and a Masters degree in School Administration. This wit­
ness has been a classroom teacher for three years, has 
served as high school principal for three years, and was 
an administrative officer, director of transportation, direc­
tor of maintenance and operation and assistant superin­
tendent over a twelve-year period in the Cobb County, 
Georgia school system. This school district has 55 schools 
with approximately 40,000 to 50,000 students and involves 
the utilization of about 150 buses. Mr. Jordan testified that he 
has done desegregation work in a six-state area for HEW,



64a

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26,1969

including Mississippi, South Carolina, Georgia, Florida, 
Alabama and Tennessee, and has worked with school boards 
within these various states, usually in response to requests 
by these boards or the superintendents of school districts 
for assistance in formulating and implementing desegrega­
tion plans. He first became involved in this case on July 
15, 1969 when he attended a meeting in Mobile, Alabama, 
at which ten field teams were formed and sent to the de­
fendant school districts on July 16, where they worked 
until July 23, gathering statistics which they took to At­
lanta, having spent approximately one and one-half days 
in each district. A second trip wras made by these teams 
on July 29 through August 1, 1969, during which they met 
with various school boards and their superintendents, ask­
ing for suggestions. These meetings involved approxi­
mately one-half day in each school district. Information 
was taken back to Atlanta, where plans were formalized 
and between the dates of August 7 and August 9, these 
HEW plans were presented to the various school boards 
and superintendents and then filed with this Court. Al­
though the witness made no trips to Mississippi in connec­
tion with the formalization of these plans, he did work 
with the review teams, asking their members various ques­
tions concerning these plans and acted in an advisory 
capacity. The witness was of the opinion that a unitary 
school system was far superior to a dual school system 
because all people living in an integrated society and at­
tending school together familiarizes each with the culture 
of the other and also helps disadvantaged students. It was 
his opinion that the HEW plans in question are basically 
sound, but that sufficient time was not had for the in depth 
peripheral studies such as curriculum study and financial

•••



65a.

FmdlD?st°- f n Ct ^  Conclusions of Law of the 
1 lc Court Entered August 26,1969

study required to implement these new plans Thn n *

=s=
mg of school in the 1969 70 d the open"

a K ^ x s S S S ?
2 7  "■" f  ‘"C f" r t i “  and th. Court " A ,  :0

na program involving teachers and students, to prepare 
for the implementation of the terminal plans. This Court
1 7  ^  7  111 — wi th the testimony « “ ic  

‘7  ‘ho nnnnssary delay requested would allow col
d a n 7 r , 7 7 n thG ° fflCe ° f  E ^nation and the defen' 
dant s c o o  districts to prepare for implementation of the
ter7 “  IJ 7  “ T  ros"ltin« i" better education and bet-

worhable desegregation of the Z Z Z t Z  t S  
and the conversion from a dual to a unitary system

the a  SeC0”‘ a”d 'aSt Witness who testified in support of 
the Government’s motion was Mr. Howard n  q„ir . I
Charlottesville, Virginia, who received a B.A. degree f i o l

'i
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G6a

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26,1969

Emory Henry College, and an M.A. degree in Education 
from Columbia University, and has completed all of his 
work for a doctorate in Education at the University of 
Virginia, with the exception of completion of his disserta­
tion, on which he is now working. This witness has been 
a classroom teacher for two years, has served as principal 
of various high schools for a period of thirteen years, and 
was a superintendent of schools in Stafford County, Vir­
ginia for three years. In addition, he has been working 
with the United States Office of Education as Program 
Officei, Equal Educational Opportunities Program, Region 
Three, HEW, in Charlottesville, Virginia since June 15, 
1968. As Program Officer, his area of responsibility is Vir­
ginia and West Virginia and involves furnishing technical 
assistance to school districts in the process of desegrega­
tion. This witness worked on desegregation plans in New 
Kent County, Virginia, Prince George County, Maryland, 
and various other counties in the State of Virginia. His 
total experience in education is approximately twenty years.

Mr. Sullins was the team leader for the team that visited, 
and had the responsibility of recommending desegregation 
m three of the defendant school districts, Hinds County, 
Madison County and Canton. He visited these districts 
during the above stated dates as team leader, talking to 
school boards and superintendents, as well as attorneys 
for the three defendant school districts. It was his opinion 
that the unitary school system is far superior to a dual 
school system; and that although adequate time was had 
to develop the basic plans in question, however, he strongly 
feels that there is insufficient time to implement these plans 
in order to have an effective school year in 1969-70 for the 
children affected, because these plans call for a massive



m,•"3

$

67a

Findings of Fact and Conclusions of Law of the 
is n e t Court Entered August 26,1969

Z “ n °f f T 1 SyStemS Which months of
t °mp . With required outaide consultation expert assistance, particnlTi’lv in ant • *svstom* /  P /  arlj to sot up .junior high school

J  terns and restructuring of grades; some districts have 

svsteXed hT ‘ ^  lineS bCCaUSe 0f the frcedom of choice
be“  S St0 be Publicized and the students and parents

acquainted therewith; it would be necessary to revamp
transportation systems, which takes a great deal of time 
there mUSt be adequate planning in “real troubled spots”’ 
which would involve proper training and instruction of 
teachers and the placing of teachers in jobs where they 
will be most effective; all pupils will be uprooted and en 
tered into new schools and they must have the opportunity

L IT  T  Wv "'hat they wwch T Tdone through project programs, including the meetimr of 
student leaders of both races with
teachers; the school administration will need time to re

L tm T i  ,  „° Tf- *° pr0perly plan ezPcnditures of l.tlo  1 funds well in advance, which funds may be lost

did m tT T  “ ? ade<!"a‘e Plann“ e. “”<1 which HEW d not have time to consider; school boards and superin­
tendents need a program also to build communities’ support 
for he unitary sysem. The witness was of the opinion 
and the Court finds, that in order to formulate and imple­
ment successful and effective desegregation plans, the addl
tres^d ™  T.eqUeSted wlU be squired. This witness sug­
gested additional programs which should be undertaken
to effect a smooth, workable conversion to a completely 
unitary school system, such as a workshop for teachers 
an pupils to discuss potential problems of desegregation 
and their solution, as was done in other districts*™ which

!
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Ji :•***»-’
a * J r » - * W i f a A . ^ / L

68a

Findings of F a c t  a n d  C o n c lu s io n s  of L a w  of th e  
D i s U i c t  C o u r t  E n t e r e d  A u g u s t  26,1969

this witaeBs w°rked, including some in South Carolina

experts t T h t  ^  ^  teachers must raeet " ithexperts to obtain more knowledge on how to solve prob
lems that will arise. The witness stated that all defendant
school districts with which he dealt cooperated fully with
lus team but that his team was not authorized to n e g a t e

th? 1 f T CCS Wlth th<3 Seh°01 boards* Thc first time that 
f defendant sch°o1 districts saw the HEW plan in written 
foim was on August 7, 1969, at which time there could be 
no more collaboration from HEW’s standpoint, that is 

ere could be no further change in the HEW plan which

S  cases8 GqUentIy ^  thiS C°Urt ln a11 these sch0°l dis-

h a d n T tb e ^  7 * ™  n ^  G0V™ ent additional time naa not been tiled m this cas^ with a1! ■ •
extremely doubtful if this Court could have physically’com
pbed with the mandate of the United States Court of Ap
S e l t  J J  F ' f t h C i r c i "t> because of the devastating 
effect of super Hurricane Camille, which this Court does 
not have to take judicial notice of, because it has personal 
and actual knowledge thereof. This deadlv, gigantic “hur 
ncane-tornado” struck not only the Mississippi Gulf Coast 
.  lore the undersigned Judges reside, but also'caused great 
damages to many other parts of the State of Mississippi 

dueling many of the areas in which the defendant school 
d stnets are locatocl. The storm not only resulted in many 

< ths, but m addition, caused considerable loss of and 
amage to property, disruption of communications, the 
mplete elimination of electrical power, water and ’tele­

phones to homes and offices of the undersigned Judges 
and many others, causing utter lack of communication and 
i ability to travel. Not only were the undersigned Judges



69a

Findings of Fact and Conclusions of Law of the 
District Court Entered August 26,1969

deprived of electrical power and facilities with which and 
in which to work, but their staffs were scattered and with­
out communication for many days and sustained consider­
able personal damage which required their immediate at­
tention and care. Much more could be said about the 
devastation and complete destruction caused by this killer 
hurricane, however, it is felt that the members of the United 
States Court of Appeals for the Fifth Circuit, and espe­
cially the members of this panel, are completely aware of 
many of these factors and are sympathetic with and under­
stand the inability of the undersigned Judges to consider 
and study the various plans in question, together with all 
other pleadings filed by the parties, to assemble a staff 
and equipment necessary to dictate their findings and or­
ders, while at the same time being deeply concerned with 
the necessary safety and welfare of their families and the 
preservation of their property. In addition, many schools 
were destroyed or severely damaged in the coastal area, 
which will require the transportation or reassignment of 
students therefrom to other school districts, some of which 
are defendants herein, and various schools within the de­
fendant school districts have sustained damage which will 
require transfer of students and rescheduling of classes, 
which will result in overcrowding and considerable con­
fusion and chaos.

In view of all of the above, this Court finds and con­
cludes that it has jurisdiction to consider this motion and 
make findings of fact thereon and suggestions and recom­
mendations to the appropriate panel of the United States 
Court of Appeals for the Fifth Circuit in these cases. This 
Court is further of the opinion and finds, as a matter of 
fact and of law, that the motion filed by the Government,

:*rrjfr



70a

-•4- itevsm! i(~frtAv

Findings of Fact and Conclusions of Law of the 
District Court Entered. August 26,1969

joined in by the defendant school districts, is meritorious 
and should be granted for the foregoing reasons and for 
the further reasons that the granting of the requests made 
by the Government will, in truth and in fact, probably 
result in a smooth, workable conversion of the defendant 
school districts from a dual to a unitary system, with the 
elimination of the many problems of chaos and confusion 
referred to by the Secretary of HEW in his letter.

It is therefore the recommendation of this Court that the 
appropriate panel of the Court of Appeals grant the 
amended motion filed by the Government in all of these 
cases, and then adopt and enter the proposed “New Amend­
ed Order” as revised in this hearing, vdiich was filed by 
the United States and attached to its Amended Motion filed 
here and in the Court of Appeals.

R espectfully S ubmitted, this 26th day of August 1969

D an M. R ussell, J r.
United States District Judge

W alter L. N ixon, J r.
United States District Judge

I
i ■
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71a

APPENDIX E

Order of the Court of Appeals of August 28, 1969

[Caption omitted]

Before B rown, Chief Judge, T iiornberry and Morgan, 
Circuit Judges.

P er Curiam:

The United States Attorney General by motion tiled with 
this Court on August 21, 1969, with parallel motions filed 
in the District Court for the Southern District of Missis­
sippi as of the same date, requests, in effect, that this Court 
modify the mandate and orders heretofore entered, and, on 
the permission of this Court being granted, that the Dis­
trict Court do likewise, to extend the time for tiling the 
terminal plans required in our order of July 3, 19G9, to a 
date not later than December 1, 1969.

Because of the relative shortness of time and in order to 
permit the appeals to be heard, decided and effective action 
to be taken by the opening of the school term September 
1969-70, this Court expedited the initial appeal from the 
decision of the District Court entered in May 1969. By 
letter-directive from the Clerk, dated June 25, 1969, we set 
the case for oral argument at 9:30 a.m. July 2 at New 
Orleans.

Paragraph 7 of that letter-directive read as follows:
7. To enable the Court to announce a decision as 

quickly as possible after submission, the appellants are 
requested to file in 15 copies a proposed opinion-order 
with definitive time table and provisions on the hypo­
thesis that the appeal will be sustained. These should 
be modeled somewhat on the form used by the Court



72a

Order of the Court of Appeals of August S3, weg

in its recent opinions in I f  all, et al. v. St. Helena. Parish

et at y°B o ’ 1  o°; * “ *  May28' 19M. Davis,
Cm t ' ^  ° f School Commissioners of Mobile
County, e al., So. 2C8S6, June 3, 1969. When and as

other scho„Mm0n'° rderS °f tWs lype arc is™ed in t j , esegregation cases, copies will be imme-
a ely transmitted to all counsel so that the parties can

sped “Ppr0pnat<! oomments during argument with re- 
spect to suggested modifications or changes in their 
proposed opinion-orders.

govehrnme0ntr t eaOPeSnthn ‘ ““  appellante. Private and
agreeable i n  ‘ " °oI,aborato and submit a mutually 
agreeable proposed opinion-order and it desires from
the appellees contrary proposed orders covering sep-
ra e y (a) 0n the hypothesis tiiat the decrees of the

“  Ca“rt *  affirmed, and (b, “ T h e hypo!

motio', and appea,s " m

d e e ^ s T e r s u V p l td 'w '" *  ^  ^  Pr°p0S' da-, .  . 0 suPPlied one or more of the parties in
U n f w s , ' , HI,r°P0SCd °Pmion-order submitted by the'United States Attorney General on the eve of the hearing
As pointed out later, this proposed opinion-order prescribed 
a precise timetable. 1 escribed

o v e r Z l Z I Z T  tb:  C°T',Card f,'°m “ “  18 counsel 
6 " apPaiodo,lhe ™t.re day. On the following day July 
3, 1969. the Court handed down its opinion-order which in 
Its opening paragraph stated: ’ h

“troachthTh°f ‘ime Pr S“ ‘ suoh nrgency as we ap- 
Z m l70bpgInr g (Of the new school year Septem- 

1969-70, the Court requested in advance of anru 
ment that the parties submit proposed opinion-orders 
modeled after some of our recent school desegregation



Order of the Court of Appeals of August 28, 1969

cases. We have drawn freely upon these proposed 
opinion-orders.”

.. Both the “°Pmion” Portion and, more specifically, the 
order” portion of the opinion-order of July 3rd (see slip 

opinion p. 16 et seq) was substantially that proposed by 
the United States Attorney General in response to the 
Court’s invitation (see paragraph 7 of letter-directive 
above). Except that the Court allowed aproximately 10 ad­
ditional days, the timetable schedule fixed by the Court was 
substantially that recommended by the United States At­
torney General:

Paragraph 
of Order

3
Requirement
Deadline for 
Boards to 
file plan

Government
Proposed

Date
Aug. 1

Date 
Fixed 

Ry Court
Aug. 11

4 Deadline for 
presenting 
agreed plans 
to Court

Aug. 1 Aug. 11

5 Deadline for 
HEW filing 
plan

Aug. 1 Aug. 11

6 Deadline for 
Court hear­
ings

Aug. 13 Aug. 23

7 Deadline for 
Court ap­
proval of 
plans

Aug. 15 Aug. 27



74a

Order of the Court of Appeals of August 28, i960

Subsequently on July 25, 19(39, the Court on its own
fonne'- ^  July 3l'd °Pini™-order by renumbering
fonner paragraph 8 to be number 7 and striking from such

dei paragraphs 5, 6 and 7 to insert in lieu thereof new 
paragraphs 5 and G with the following resulting timetable:

New
Paragraph

5

Revised 
Rate fixed 
By Court
Aug. 11

Aug. 21

Sept. 1

Requirement 
Deadline for 
HEW filing plan

® Deadline for
filing objections 
to HEW plan

** Deadline for
Court order 
approving plan

Si°m“ ““  the timetaMe ad°P‘<“1 ™  substan-
G enem nl ”y tte  United Statos Attonwyo be feasible and appropriate

From the numerous other cases referred to in the letter­
ed ective, the Court was conscious that precise timetables 
June m order. Consequently, in the course of the arguments 
tionsdt°oni Uly 3’ f 9’ thG C°Urt addressed specific q ^ !
t metables T Z  “  ^  “ “  C°nCerai^  proposed 
A s s i s t a n t  A H  "n ^  SpecificalIy directed to the
Cnvpr f  GeneraI aPPoai'ing on behalf of the

. ^nien ■ ithout qualification in response to precise 
inquires he affirmed the Government’s view that the time- 
with P1°P0S?d by the Government was reasonable. And
Thaf HEw T  Z T  GeneraPs ProP°scd order’

, , _ . sboa d be called m to advise with the Boards
and the District Coart, he affirmed that safficient resources



75a

Order of the Court of Appeals of August 28, 19G9
of the Executive Department would be made available to 
enable the Office of Education of the United States Depart­
ment of Health, Education and Welfare to fulfill its role 
as specified in the order proposed by it and actually there­
after entered by the Court.

Except for the entry of the modification order on July 25 
which moved the deadline for the effective date of the 
plans from August 27 to September 1, 1969, no further 
action has been taken by this Court. Likewise, until the 
motion of August 21, 1969, there has been no suggestion by 
the United States Attorney General that the times fixed 
by the Court should be relaxed or extended or that such 
timetable was unattainable.

The first information that the proposed and adopted 
timetable was not appropriate came on August 19, 1969 
when Judge John It. Drown, Chief Judge and presiding 
Judge of this panel, received by safeliand courier the com­
munication from the Secretary of Health, Education and

elfare dated August 19, 1969, which in turn enclosed a 
copy of the Secretary’s communication of like date to 
Judges Cox, Russell and Nixon. These matters are set 
forth in this Court’s order (with Exhibits 1 and 2) of 
August 20, 1969, copies of which are annexed as schedule A.

As time was so short, this Court by oral order communi­
cated to the District Court granted full leave to the Dis­
trict Court to receive, consider and hear the Government’s 
motion for extension of time to December 1, 1969. Upon 
the healings to be held after notice to counsel represent­
ing all parties not later than Monday, August 25, it fur­
ther requested the District Court to make its recommenda­
tions to the Court of Appeals. The District Court is to 
communicate its recommended decision and transmit a copy 
of the transcript of any evidence to each of the Judges at



76a

O der of the Cowl of Appeals of August 2 8 ,

vL ’T h Stf  ” ■ TUs CoUrt P«seribed that ir
f i r  S '°rtnoss o{ tlme, “U counsel were required tc
W eis in t  Vt ‘hCir U°m° Sta,i0"S ^  memorandum efs in support of or opposition to the motion and recorn-
mended decision of the District Court so that it would be

August 27 * ”0t latCr ^  11:00 a'nl' We**sday,
Following this the Court lias received and considered the

t gDi°s r : t V ° ntClr nS °f — ndationsthe District Court, the record of the hearings, and the
o( 'IIImat *rgnments at counsel, pro and con. On the basis

further a s t l ir w s  h ^  —  ita •" » «
F irst:

b v t r d e t ' i  °f !h!S1Conrt datod JuIy 3. 1369, as amended by o, de. entered July 25, 1963 is hereby further amended
by renumbering Paragraph 7 to be Paragraph 9 and by
era b 'g ■ ara®ra?hs 3, 4, o, and 6, and the following para- 
giaphs are substituted therefor:

3. The Board, in conjunction with the Office of Educa- 
on, shall develop and present to the District Court on or

before December 1, 1969, an acceptable plan of dcsegrega-

4. If  the Office of Education and a school board a°ree 
upon ap la "  of desegregation, it shall be presented to the 
District Court on or before December 1, 1969. The Court 
s all approve such plan, unless within 15 days after sub 
mission to the Court any parties file any o b je c ta !  "  Im ­
posed amendments thereto alleging that the plan, or any 
part thereof, does not conform to constitutional standards7



I

77a

Order of the Court of Appeals of August 28, 1969

5 If no agreement is reached, the Office of Education 
sha 1 present its proposal for a plan for the school district 
to the District Court on or before December 1, 1969. The 
parties shall have 15 days from the date such a proposed 
plan is filed with the District Court to file objections or 
suggested amendments thereto. The District Court shall 
hold a hearing on the proposed plan and any objections 
and suggested amendments thereto, and within 15 days 
a - ter the time for filing objections has expired* shall by
oi ei approve a plan which shall conform to constitutional 
standards.

6. The District Court shall enter Findings of Fact and 
Conclusions of Law regarding the efficacy of any plan which 
is approved or ordered to disestablish the dual school sys­
tem m question. Jurisdiction shall be retained, however 
under the teaching of Green v. County School Board of 
New Kent County, 1968, 391 U.S. 430, 439, 88 S.Ct. 1689

’ fL .E d .2 d  716, 724, and Raney v. Board of Educa­
tion of Gould School District, 1968, 391 U.S. 443, 449 SS
S.Ct. 1967,----- , 20 L.Ed.2d 727, 732, until it is clear that
disestablishment has been achieved.

7. By October 1, 1969 the Board of Trustees in conjunc­
tion with the Office of Education shall develop a program 
to prepare its faculty and staff for the conversion from the 
dual to the unitary system. The Office of Education shall 
report to the Court on October 1, 1969 with respect to this 
program. If the Board fails to develop a program, the 
Office of Education shall submit a program which the Court 
may approve unless meritorious objections supported by 
affidavit or other documentary evidence are made by any 
party. J

f-&

i i

r



78a

0rder °f  tke C0Urt °f  APP™ls of August 28, 1969

ftraction f /a n y  few ^TcilT  COutracts for the con-
isting facilities'until a terming l ^ i  matona11^ alter any ex- 
the Court, except with the *  P ^  'aS been p r o v e d  by 
or by order of ^  rt u S T  °f  a11 Parti J
Board shall present its n r m  ^ i™0110*1 and fa r in g . The
their consent at least 15 d a ^ p r io ^  t ^  P&-’̂  mid Seek 
approval. ‘ P to moving for Court

S econd:

‘hat ,he plan
significant action * *  require•»--“ sss-rcis:

Third :

In all other respects the o r d e r  nf +i • ^
I9G9, as amended July 25 ldfio • 1S C°Urt of July 3> 
effect. y ’ 1969’ in full forco and



79a

APPENDIX F t
Opinion in Chambers of Mr. Justice Black 

of September 5, 1969

[Caption omitted]

Me. J ustice B lack, Circuit Justice.

For a great many years Mississippi lias had in effect 
wliat is called a dual system of public schools, one system 
for white students only and one system for Negro stu­
dents only. On July 3, 1969, the Fifth Circuit Court of 
Appeals entered an order requiring the submission of new 

- plans to be put into effect this fall to accelerate desegre­
gation in 33 Mississippi school districts. On August 28, 

y ; upon the motion of the Department of Justice and the
recommendation of the Secretary of Health, Education &
Welfare, the Court of Appeals suspended the July 3 order 
and postponed the date for submission of the new plans 
until December 1, 1969. I have been asked by Negro plain- 

j tiffs in 14 of these school districts to vacate the suspension
of the July order. Largely for the reasons set forth below,
I feel constrained to deny that relief.

In Brown v. Board of Education, 347 U. S. 483 (1954), 
and Brown v. Board of Education, 349 IT. S. 294 (1955), 
avc held that state-imposed segregation of students accord­
ing to race denied Negro students the equal protection of 
the laAv guaranteed by the Fourteenth Amendment. Brown 
I  was decided 15 years ago, but in Mississippi as well as 
in some other States the decision has not been completely 
enforced, and there are many schools in those States which 
are still either “white” or “Negro” schools and many that 
are still all-white or all-Negro. This has resulted in large 
part from the fact that in Brown II  the Court declared this

|



)

80a

Opinion in Chambers of Mr. Justice Black 
of September 5, 1969

unconstitutional denial of equal protection should be rem­
edied not immediately, but only “with all deliberate speed ” 

edeial courts have ever since struggled with the phrase

elimin- I c H  T f \ this struggle has not _ immated dual school systems, and I am of the opinion
a so ong as that phrase is a relevant factor they will

never be eliminated. “All deliberate speed” has turned out
to be only a soft euphemism for delay

Case' 0f V. School oaidy 377 U. S. 218, and we said the following:

'■The time for mere 'deliberate speed’ has run out and 
that phrase ean no longer justify denying these Prince 
Ed vard County School children their constitutional 
right to an education equal to that afforded by the 
public schools in the other parts of Virginia.” Id., at

That sentence means to me that there is no longer any 
excuse for permitting the “all deliberate speed” phrase to 
delay the tone when Negro children and white children will 
sit together and learn together in the same public schools 
Pour years later—14 years after Broom 1- this Court de­
cided the case of Orem  v. County School Hoard of New 
Kent County,391 U. S. 430 (1968). In that case Ma Jus- 

tick B rennan , speaking for a unanimous Court said:

" <T?eJ im® f°r m°re “delil)erate speed” has run out.
. . . he burden on a school today is to come forward 
with a plan that promises realistically to work and 
promises realistically to work now.” Id., at 438-439

“The Board must be required to formulate a new plan 
. . . which p rom ise^  realistically to convert promptly



81c>

f
Opinion in Oh „ -<-'4 Mr. Justice Black

Of September 5, .

to a system without a ‘white’ school and a ‘Negro’ 
school, but just schools.” Id., at 442.

These cases, along with others, are the foundation of ray 
belief that there is no longer the slightest excuse, reason, 
or justification for further postponement of the time when 
every public school system in the United States will be a 
unitary one, receiving and teaching students without dis­
crimination on the basis of their race or color. In my opin­
ion the phi ase with all deliberate speed” should no longer' 
have any relevancy whatsoever in enforcing the constitu­
tional rights of Negro students. The Fifth Circuit found 
that the Negro students in these school districts are being 
denied equal protection of the law, and in my view they 
are entitled to have their constitutional rights vindicated 
now without postponement for any reason.

Although the foregoing indicates my belief as to what 
should ultimately be done in this case, when an individual 
Justice is asked to grant relief, such as a stay, he must 
consider in light of past decisions and other factors what 
action the entire Court might possibly take. I recognize 
that, in certain respects, my views as stated above go be­
yond anything this Court has expressly held to date. Al­
though Green reiterated that the time for all deliberate 
speed had passed, there is language in that opinion which 
might be interpreted as approving a “transition period” 
during which fedeial courts would continue to supervise 
the passage of the Southern schools from dual to unitary 
systems.* Although I feel there is a strong possibility that

* “The obligation of the district courts, as it always has been, is 
to assess the effectiveness of a proposed plan in achieving desegre­
gation. There is no universal answer to comp-ex problems of de-



82a

° p in i0 n  in  C h a m b e r s  o f  M r .  J u s t i c e  B la c k  
o f  S e p t e m b e r  5 , 1 9 6 9

to consider the L l f  l  v  f J thWOfore 1 compelled
p’ostpql1̂ ^ tpe 10 ^  upon 111 e°urts below for
orde j C  6 ° f th° ° righla] ^segregation

On August 21 the Department of Justice requested the 
Com-t of Appeals to delay its original desegregation time

on W ?  "** "'”S Se,“  t0 « “  distrlc< oonrt for hearings 
o the Governments motion. At those hearings both the
Department of Justice and the Department of Health L  
eat,on & « *  position that t i m f r v t t o  stort
and the administrative problems too difficult to accomplish 
a complete and orderly implementation of (he d e ,e g r e t  
ton plans before the beginning of the 1969-1970 S S  

yea, The district court found as a matter of ac ° 
the time was too short, and the f W f  e ■ , 1

that these findings were supported by the ev fd en t  
fore^ d to say that these findings arc not supported. There­
fore, deplorable as it is to me, I must uphold the court’s 
r  or which both sides indicate could have the effect of

i /e v f "  case T ,e T  P'T- " ,at wil1 *  the job
W p m e i t  and “be o . S s ^ v S 'V "  'H ’1-”1 the “ cum
incumbent upon the school board m c“  ab ,1? 11,','1 n“ “ ' 14 is 
plan promises meaningful and iinmorWn that lts Proposed 
establishing state-imposed se^rLatimt }" Pr°gl'ê  to™rd dis- Board, supra, at 439. negation. Green v. County School

8egregation^program^o^effectunt^coii^  Promise of aiding a de­
dual system to a unitary non-racial °f a . state-imposed
jection to allowing such\a device S  might be no ob-

“The New Kent School 7® lts,elf ln operation____
be accepted as a sufficient sten to ‘o f f f°m'of‘fiboice’ plan cannot 
unitary system. . . “  tte trailsiti°u’ to a

■o



83a

° P m to n  in  C h a m b e r s  o f  M r .  J u s t i c e  B la c k  
of S e p t e m b e r  5 , i960

a tT y e a r !0"  <* « —  schools for as long

^^Tlns conclusion does not comport with my ideas of what

S £ £ dr  \ r case — «c „ L “ ho
to the f!n  r  ;  , T  r C applicants "’in P«sent the issue 

J Court at the earliest possible opportunity I 
would then hold that there are no longer »  S  
issues in the question of making effective not only p r o m p f  
but at once—now orders sufficient to vindicate the righto 
of any pupil an the United States who is effectively excluded 
f  “ \ a pubIlc sch°o1 on account of his race or color

cases ?hateeani f  ■ V ™ *  w e  declai'ed “  the two B r o w nscs that a law which prevents a child from going- to a
public school because of his color violates the Equal Pro

reC°rd con^tusively shows, there are
7 1 a m lJUS country the schools are either

“white” or “Negro” and not just schools for ah^chiTdrm
che Constitution requires. In my opinion there is no 

reason why such a wholesale deprivation of constitutional 
rights should be tolerated another minute. I fear that this 
d i g  denial of c o n s t i t u t e !  rights is due in Targe ‘ 
to the phrase “with all deliberate speed.’- I would do a la y  
with that phrase completely. ^

Application to vacate suspension of order denied.



m m

hmni,

* . V * ,■ . • jV-»



I N D E X

Page
Opinions below______________________________  1
Jurisdiction_________________________________ 1
Question presented___________________________ 2
Statutes involved____________________________  2
Interest of the United States__________________
Statement__________________________________
Summary of Argument_______________________
Argument__________________________________

An employee does not waive his right under 
title VII of the Civil Rights Act to bring 
suit in federal district court for employment 
discrimination merely by having his union 
pursue to termination the grievance-arbitra­
tion procedure under the collective-bargain­
ing agreement between the union and his
employer_____________________________  9

A. The federal courts are the forum
established by Congress for deter­
mining the rights conferred by title 
V II___________________________  9

B. Title VII and collective-bargaining
agreements provide legally distinct 
rights that are properly enforceable 
in different forums______________  12

C. Judicial deference to arbitral decisions 
is inappropriate in title VII cases, 
and would be especially un­
warranted in the circumstances
here----------------------------------------  25

Conclusion_________________________________  32
in

524—727— 73 ------- 1

CO 
00 

CO 
05



I I

CITATIONS
Cases:

Bernhardt v. Polygraphic Co., 350 U.S. 198. __ *19
Bowe v. Colgate-Palmolive Co., 416 F. 2d 711_ 24
Boys Markets, Inc., v. Clerks Union, 398 U.S.

235---------------------------------------------------  12j 22
Carey v. Westinghouse Corp., 375 U.S. 261__  21
Collyer Insulated Wire, 192 NLRB 837_____  22
Carey v. Westinghouse Corp., 375 U.S. 261__  21
Cooper v. Philip Morris, Inc., 464 F. 2d 9___ 10
Dewey v. Reynolds Metals Co., 429 F. 2d 324. 6, 22, 25 
Edward G. Budd Mfg. Co. v. National Labor 

Relations Board, 138 F.2d 86 certiorari
denied, 321 U.S. 778___________________  30

Hutchings v. United States Industries, Inc.,
428 F.2d 303----------------------------  10, 21, 24-25

J. I. Case Co. v. Rational Labor Relations
Board, 321 U.S. 332____________________ 26

Love v. Pullman Co., 404 U.S. 522____________  11
McDonnell Douglas Corp v. Green, 411 U.S.

792----------------------------------------------- 10j n } 12
McKinney v. Missouri-Kansas-Texas R. Co.

357 U.S. 265--------------- --------------------- 13, 15
Norman v. Missouri Pacific R. R., 414 F 2d

73---------------------------------------------- 24
Oubichon v. North American Rockwell Corp

482 F.2d 569__________________________ 25
Republic Steel v. Maddox, 379 U.S. 650... 13, 14, 18 
Rios v. Reynolds Metals Co., 467 F. 2d 54. .  28, 29, 31 
Steelworkers v. American Mfg. Co., 363 U.S.

564---------------------------------------------------- 12
Steelworkers v. Enterprise Corp., 363 U.S.

593----------------------------------------------  12> 13, 15
Steelworkers v. Warrior & Gulf Co., 363 U.S.

574---------------------------------------------------- 12, 17
Taylor v. Armco Steel Corp., 429 F. 2d 498__  24

in

Cases—Continued
Textile Workers Union v. Lincoln Mills, 353

U.S. 448---------------------------------------------  i 2> 22
Tipler v. E. I. duPont de Nemours and Co

443 F. 2d 125_______________________ 24
U.S. Bulk Carriers v. Arguelles, 400 U.S.

351----------------------------------------------- 14, 15, 16
United Packinghouse Workers v. National 

Labor Relations Board, 416 F. 2d 1126
certiorari denied, 396 U.S. 903__________21

Vaca v. Sipes, 386 U.S. 171______________  13 26
Statutes involved:

Equal Employment Opportunity Act of 1972
86 Stat. 103___________________ _ ’ jq

Civil Rights Act of 1964: Title VII, 78 Stat.
241, et seq., 42 U.S.C. 2000a, et seq.:

Section 703(a)(1), 42 U.S.C. 2000o-
2 (a)(1) ___________________________  2

Section 706, 42 U.S.C. 2000e-5________  2
Section 706(b), 42 U.S.C. 2000e-o(b)_ 10, 11 23
Section 700(c), 42 U.S.C. 2000e-5(c)___ ’ ’ 11
Section 706(e), 42 U.S.C. 2000n-5(e)___  n
Section 706(f), 42 U.S.C. 2000n-5(f)___ 8, 10, 12
Section 706(f)(1), 42 U.S.C. 2000e-

5(f)(1)------------------------------------------
Section 706(g), 42 U.S.C. 2000e-5(g)___

11
10

716(c), 42 U.S.C. 2000e-15_____ 23Section
Miscellaneous:

American Law Institute, Restatement of Judg­
ments, § 2 (1942)_________________  9g

American Law Institute, Restatement of Judg­
ments, §71__________________ __ 2g

American Law Institute, Restatement of Judg­
ments, §85, comment e___________  _ 2g

Bureau of National Affairs, Labor Relations 
Yearbook: 1970, 38_________________  __ 2g



IV

Miscellaneous—Continued ' Pa(re
110 Congressional Record 7207____________  23
110 Congressional Record 12596-12597_____  10
Comment, Dewey v. Reynolds Metals Co.:

Labor Arbitration and Title VII, 119 U. Pa.
L. Rev. 684 (1971)_____________________ 22

Cox, Rights Under a Labor Agreement, 69
Harv. L. Rev. 601 (1956)_______________  18

Edwards & Kaplan, Religious Discrimination 
and the Role of Arbitration under Title VII,
69 Mich. L. Rev. 599 (1971)____________  18, 28

Elkouri & Elkouri, How Arbitration Works, 155
(1960)________________________________ 19

Fleming, The Labor Arbitration Process (1965). 19
Gould, Labor Arbitration of Grievances Involv­

ing Racial Discrimination, 118 U. Pa. L. Rev.
40 (1969)_____________________________  16, 18

Hebert & Reischel, Title V II and the Multiple 
Approaches to Eliminating Employment Dis­
crimination, 46 N.Y.U. L. Rev. 449 (1971) _ 17

Jalet, Judicial Review of Arbitration: The 
Judicial Attitude, 45 Cornell L.G. 519
(1960)_______________________________  17

Jones, The Accretion of Federal Power in Zabor 
Arbitration— The Example of Arbitral Dis­
covery, 116 U. Pa. L. Rev. 830___________ 19

Lev & Fishman, Suggestion to Management: 
Arbitration v. The Labor Board, 10 B.C.
Ind. & Com. L. Rev. 763 (1969)_________  18

Meltzer, Labor Arbitration and Overlapping 
and Conflicting Remedies for Employment 
Discrimination, 39 U. Chi. L. Rev. 30
(1971)____________________________ 16, 22, 28

Platt, The Relationship Between Arbitration and 
Title V II  of the Civil Rights Act of 1964, 3 
_Ga. L. Rev. 398 (1969)_________________ 16

v

Miscellaneous—Continued
Smith, Merrifield & Rothchild, C o lle c tiv e  B a r -  Pa(fe

g a in in g  a n d  L a b o r  A r b i t r a t io n  217 (1970).., 19
Note, Developments in the Law-Discovery, 74

Harv. L. Rev. 940 (1961)_______________  19
Note, J u d ic i a l  R e v ie w  o f  A r b i t r a t io n  A w a r d s  on

the M e r i t s ,  63 Harv. L. Rev. 681 (1950)___  17
Note, T h e  N L R B  a n d  D e fe re n c e  to  A r b i t r a t io n ,

I I  Yale L.J. 1191 (1968)________________ 16,23



O ctober T erm , 1973

No. 72-5847

H arrell Alexander, S r., petitioner

v.
Oardner-D enver Company

ON WR IT  OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the district court (App. 33-43) is 
reported at 346 P. Supp. 1012. The opinion of the 
court of appeals (App. 45-47) is reported at 466 F. 
2d 1209.

JURISDICTION

The judgment of the court of appeals (App. 48) 
was entered on August 11, 1972. On November 4, 
1972, Mr. Justice IV hite extended the tune for filins? 
a petition for a w rit of certiorari to and including’ 
December 8, 1972, and the petition was filed on the 
latter date. The petition was granted on February 20, 
19/3. 410 U.S. 925. This Court’s jurisdiction rests 
on 28 U.S.C. 1254(1).



2

QUESTION PRESENTED

W hether, by invoking the grievance-arbitration pro­
cedures of a collective-bargaining agreement which 
are pursued to termination by his union, an employee 
waives his right under Title V I I  of the Civil R ights 
Act of 1964 to bring suit in federal district court for 
employment discrimination.

STATUTES INVOLVED

Section 703 of the Civil Rights Act o f 1964, 42 
U.S.C. 2000e-2(a) (1 ), provides in pertinent part:

I t  shall be an unlawful employment practice 
for an employer * * * to discharge any indi­
vidual, or otherwise to discriminate against 

' any individual with respect to his compensation, 
terms, conditions, or privileges of employment, 
because of such individuars race, color, religion, 
sex, or national origin * * *.

Section 706 of the Civil R ights Act of 1964, 42 
U.S.C. 2000e-5, provides in pertinent part:

(e) I f  within thirty days after a charge 
[of unlawful employment practice] is filed with  
the Commission * * * the Commission has been 
unable to obtain voluntary compliance * * *, 
the Commission shall so notify the person ag­
grieved and a civil action may, within thirty  
days thereafter, be brought against the respond­
ent named in the charge (1) by the person 
claiming to be aggrieved, or (2) i f  such charge 
was filed by a member of the Commission, by 
any person whom the charge alleges was ag­
grieved by the unlawful employment prac­
tice. * * *

3

( f ) Each U nited States district court * * * shall 
have jurisdiction of actions brought under this 
subchapter * * *.

(g ) I f  the court finds that the respondent has 
intentionally engaged in * * * an unlawful em­
ployment practice charged in the complaint, the 
court may enjoin the respondent from engaging 
in  such unlawful employment practice, and order 
such affirmative action as may be appro­
priate * * *.

INTEREST OF THE U N IT E D  STATES

The decision in this case is likely to have a signifi­
cant impact upon enforcement of federal rights 
under T itle V II  of the Civil R ights Act of 1964. In  
that Act Congress has entrusted the Equal Em ploy­
ment Opportunity Commission and the Attorney Gen­
eral with important responsibilities for elim inating  
religious, racial, ethnic, or sexual discrimination in 
employment. B ut Title V II  also strongly relies on 
private court actions as a means of enforcing statu­
tory rights against discriminatory employment prac­
tices. A t the same time, federal labor policy favors 
settlement of disputes arising under collective bar­
gaining agreements through the grievance and arbi­
tration procedures provided for in such agreements. 
The decision of the court of appeals, which in effect 
requires an employee to choose between grievance- 
arbitration and suit under Title V II , interferes with  
both of these federal statutory policies. The United  
States believes that the policies are complementary 
and that an election of forums, which necessarily en­
tails also an election of' rights, should not be required.

5 2 4 -7 2 7 — 73--------2



4
STATEM ENT

In  May 1966 petitioner, a black man, was hired by­
respondent to do maintenance work. In  June 1968 be 
was promoted to a position as a trainee drill opera­
tor. He was discharged from employment in Septem­
ber 1969. Respondent informed petitioner at that time 
that he was being discharged for producing too many 
defective or unusable parts that had to be scrapped 
(App. 19-20).

Petitioner protested his discharge by filing a griev­
ance under the collective bargaining agreement be­
tween respondent and United Steelworkers of 
America, Local Union No. 3029, of which petitioner 
was a member (App. 11, 20). Petitioner’s grievance did 
not allege that his discharge was racially motivated, 
only that it was unjust (App. 32). Under the 
collective bargaining agreement, respondent had re­
tained “the right to hire, suspend or discharge for 
proper cause” (App. 23) but had agreed with the 
union “that there shall be no discrimination against 
any employee on account of race, color, religion, sex, 
national origin, or ancestry” (ibid.).

Petitioner’s grievance was presented by the union 
through a multistep grievance procedure. Apparently 
the issue of racial discrimination was first raised in 
the final pre-arbitration step of the grievance proce­
dure (App. 12-13). All of petitioner’s claims were 
rejected by respondent and the grievance proceeded 
to arbitration (App. 20). P rio r to arbitration, how­
ever, petitioner filed a parallel charge of racial dis­
crimination with the Colorado Civil Rights Commis­
sion, which referred the complaint to the Equal Em­

5

ployment Opportunity Commission on November 5, 
1969 (App. 46).

A t the arbitration hearing, held on November 20, 
1969, the union did not press the issue of racial dis­
crimination (App. 13-14). The only mention made by 
the union of any kind of discrimination was the bare 
recital of the text of a letter to the union by petitioner, 
which stated that “I  am knowledgeable that in the 
same plant others have scrapped an equal amount and 
sometimes in excess, but by all logical reasoning I  * * * 
have been the target of preferential discriminatory 
treatm ent” (App. 30). The union representative did 
testify, however, that respondent’s normal practice 
was to transfer unsatisfactory trainee drill operators 
back to their former positions (App. 22). Petitioner, 
who believed that the union was not adequately repre­
senting him with respect to his claim of racial dis­
crimination (App. 14), informed the arbitrator that he 
had filed a claim with the Colorado Commission be­
cause he “could not rely on the union” (ibid.).

On December 30, 1969, the arbitrator issued his de­
cision, finding that petitioner had been “discharged for 
just cause” (App. 22). The arb itra to r’s five-page opin­
ion did not refer to the question of racial discrimina­
tion. The arbitrator stated that the union had failed 
to produce evidence of a practice of transferring 
rather than discharging unsatisfactory drill operators, 
but he referred to that issue only in relation to the 
general propriety or fairness of petitioner’s discharge 
(see ibid.).

On July  25, 1970, the Equal Employment Opportu­
nity Commission determined that there was not rea-



6

son able cause to believe that a violation of the Act 
had occurred (App. 33). The Commission thereafter 
notified petitioner of his right under Title V II  of the 
Civil Rights Act of 1964 to institute a private action 
against respondent in federal district court (ibid,). 
Petitioner then timely filed this action in the United 
States D istrict Court for the District of Colorado, 
alleging that his discharge resulted from a racially 
discriminatory employment practice made unlawful by 
the Act.

The district court found that petitioner’s claim of 
racial discrimination had been submitted to the 
arbitrator. The court then held that petitioner, having 
elected the arbitration remedy, had no right to sue under 
the Act. The court acknowledged the existence of a 
conflict of authorities on this issue but chose to relv 
on Dewey v. Reynolds Metals Co., 429 F.2d 324 (C.A. 
6), affirmed by an equally divided court, 402 U.S. 689. 
The court of appeals affirmed per curiam on the basis 
of the district court’s opinion.

SUM M ARY OF ARGUMENT

A

Congress has placed the final responsibility for en­
forcement of Title V II  guarantees upon the federal 
courts. This Court has in prior cases recognized the 
importance of judicial enforcement of Title V II  
by upholding the right of individual access to 
the courts. Petitioner here satisfied all the statutory 
requisites for bringing a civil action: there is no 
statutory basis for the dismissal of his action by the 
courts below.

7
B

In  dismissing petitioner’s action, the courts below 
purported to rely upon the national labor policy 
favoring arbitration as a method of settling labor dis­
putes. However, that policy makes arbitration the 
exclusive means only of settling disputes that arise 
out of a collective bargaining agreement. This Court 
has expressly held that the arbitral forum does not 
displace the courts in the adjudication of statutory 
claims. Contract rights are to be vindicated in the 
arbitral forum, statutory rights in the courts. And the 
right asserted by petitioner is peculiarly statutory in 
nature, existing independently of the collective bar­
gaining agreement.

Moreover, arbitration is an inadequate forum for the 
vindication of the important civil rights guaranteed by 

ltle \  I I . The role of the arb itrator is merely to inter­
pret and apply the terms of the contract; in doing so he 
rarely relies upon public law concepts, and he has 
no authority to decide purely statutory matters. More­
over, the arbitrator, who is typically not trained in 

ie law, has no special competence or experience in the 
adjudication of statutory questions. The employee’s 
claim of discrimination may not be adequately pre­
sented by his union. And the grievance-arbitration 
process does not ensure careful, accurate fact-finding 
of a kind necessary for the proper determination of 
statutory claims.

The national labor and civil rights policies are there­
fore best accommodated by separate enforcement of con­
tractual and statutory rights. A requirement that an



8

aggrieved employee must elect between the arbitral and 
judicial forums would mean that, as to any broad class 
of employees, neither contractual nor statutory rights 
would be fully vindicated. Both rights should be given 
full protection. Arbitration should be available for ex­
peditious consideration of contractual claims of dis­
crimination and thus to put an end to the dispute be­
tween the union and employer, but the employee 
should be free to pursue his statutory claims inde­
pendently in the courts. This approach is consistent 
with the general statutory scheme, which provides 
multiple forums for the consideration of discrimina­
tion claims, and is necessary to the full effectuation of 
the congressional guarantee against employment dis­
crimination.

C

The courts, in hearing Title V II  claims, should not 
defer to arbitral findings or decisions with respect 
to contract claims. The factors that render arb itra­
tion an inadequate forum for the adjudication of stat­
utory rights also make inappropriate any judicial 
deference to the arbitrator.

But even assuming arguendo the desirability of a 
policy of partial deference, there is no basis for de­
ference to the arbitral decision in this case. The claim 
of discrimination, and the important facts relating 
to that claim, were not adequately presented to the 
arbitrator. The arbitrator did not purport to decide 
the issue of discrimination or to find any of the facts 
that would have been necessary for such a decision. 
His determination that respondent had just cause 
to dismiss petitioner does not resolve the question

9

whether under the circumstances it was racially dis­
criminatory to discharge, rather than demote, 
petitioner.

ARGUMENT

-AN EMPLOYEE DOES NOT WAIVE HIS RIGHT UNDER TITLE 
VII OF THE CTVTL RIGHTS ACT TO BRING SUIT IN FEDER AL 
DISTRICT COURT FOR EMPLOYMENT DISCRIMINATION 
MERELY BY HAVING HIS UNION PURSUE TO TERMINA­
TION THE GRIEVANCE-ARBITRATION PROCEDURE UNDER 
THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE 
UNION AND THE EMPLOYER

A. T H E  FEDERAL COURTS ARE T H E  FORUM ESTABLISHED BY CONGRESS 

FOR D ETERM IN IN G  T H E  RIGHTS CONFERRED BY TITLE V II

1. The broad goal of Title V II  of the Civil Rights 
Act of 1964, 42 U.S.C. 2000e et seq., is to eliminate 
discrimination in employment because of race, color, 
religion, sex, or national origin. Congress hoped that 
this comprehensive goal would lie achieved prim arily 
through conciliation and persuasion. To that end it 
created the Equal Employment Opportunity Commis­
sion and established a procedure under Title V II  
whereby existing state and local equal employment op­
portunity agencies, as well as the Commission, would 
have the opportunity to conciliate a dispute before an 
individual was permitted to sue. Congress has 
vested the Commission with authority to investigate 
an individual charge of discrimination, to attem pt to 
achieve voluntary compliance with the requirements 
of Title V II, and to bring a civil action against the 
employer or union named in the charge. 42 U.S.C. 
(1970 ed., Supp. I I )  2000e-5(f). But the Commission 
itself has no direct powers of enforcement; it has no 
authority to impose administrative sanctions.



10

Congress placed the final responsibility for enforce­
ment of Title V II  guarantees in the federal courts. 
They are authorized under the Act to grant injunctive 
relief, and to order affirmative action if they find that 
the Act has been violated. 42 U.S.C. (1970 ed., Supp. 
I I )  2000e-5(g). The courts are empowered to grant 
such relief whether or not the Commission has made a 
finding of reasonable cause to believe that the Act has 
been violated. McDonnell Douglas Corp. v. Green, 411 
U.S. 792, 798-799. Similarly, findings and orders made 
by state agencies do not bar an individual from pur­
suing his claim before the Commission and in the fed­
eral courts. See 42 U.S.C. (1970 ed., Supp. I I )  2000e-5 
(b) ; Cooper v. Philip Morris, Inc., 464 F. 2d 9 (C.A. 6).

I t  is thus obvious that “ [t]o  the federal courts alone 
is assigned the power to enforce compliance with [Title 
V I I ] .” Hutchings v. United States Industries, Inc., 428 
F. 2d 303, 310 (C.A. 5).1 Indeed, this Court has recog-

1 This conclusion is further confirmed by the legislative his­
tory of earlier versions of Title VII, which would have given 
the Commission more power. The original Senate version pro­
vided for a quasi-judicial board with authority to receive un­
resolved complaints of employment discrimination from an Ad­
ministrator within the Department of Labor, and to issue broad 
remedial orders. See Comparative Analysis of Title V II of 
II.R. 7152 as Passed by the House with S. 1937, as Reported, 
110 Cong. Eec. 12596-12597. Moreover, the statute as originally 
enacted did not authorize the Commission to institute civil ac­
tions, except to compel compliance with orders rendered in private 
suits. That power was conferred on the Commission by the Equal 
Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 
103. But in authorizing the Commission to bring suit to enforce 
Title V II, Congress expressly preserved the private right of ac­
tion. 42 U.S.C. (1970 ed., Supp. II) 2000e-5(f), ( 1 ).

11

nized the importance of judicial enforcement of Title 
V II  guarantees in upholding the right of individual 
access to the courts against allegations of procedural 
obstacles. See McDonnell Douglas Corp. v. Green, 
supra; Love v. Pullman Co., 404 U.S. 522.

2. In  keeping with the statutory plan, petitioner in 
this suit sought judicial enforcement of his Title V II  
rights. The courts below held that petitioner, by having 
had his grievance under the no-discrimination clause 
of his collective bargaining agreement pursued to final 
arbitration, had waived his right to sue his employer 
for unlawful racial discrimination under Title V II. 
They cited no statutory authority for this result, and 
there is none.

Plaintiff had filed timely charges of racial discrimi­
nation with the Colorado Civil Rights Commission, 
which referred the complaint to the Equal Employ­
ment Opportunity Commission.2 After investigation, 
the Equal Employment Opportunity Commission de­
termined that there was not reasonable cause to be­
lieve that the Act had been violated; it thereupon 
notified petitioner of his right to bring a private suit 
against his employer.3 There is no statutory provision 
for waiver of that right, and, as we have noted, this

2 Section 706(b), 42 U.S.C. 2000e-5(b), required that a charge 
of unlawful employment practice must first be submitted to a 
state or local agency. The same requirement is now set forth at 42 
U.S.C. (1970ed., Supp. II) 2000e-5(c).

3 Section 706(e), 42 U.S.C. 2000e-5(e), permitted siut by an 
individual upon the Commission’s failure, within a certain time, to 
achieve voluntary compliance with the requirements of Title VII. 
Such suits are now permitted under 42 U.S.C. (1970 ed., Supp. II) 
2000e-5(f)( 1 ).

5 2 4 -7 2 7 — 73 --------3



12

Court in McDonnell Douglas Corp. v. Green, supra, 
expressly held that a ‘‘no reasonable cause” finding by 
the Commission does not bar a private suit based on 
the same complaint. There is also no statutory pro­
vision for withdrawal of a federal district court’s 
jurisdiction over Title V II  suits on account of prior 
arbitration of similar contractual issues; the Act 
grants the federal district courts jurisdiction over 
such suits without restriction or qualification, aside 
from that of timeliness (see 42 U.S.C. 2000e-5(f) ; 42 
U.S.C. (1970 ed., Supp. I I )  2000e-5(f) (3) ), and peti­
tioner’s suit was timely filed.

B. TITLE V II AND COLLECTIVE BARGAININ G AGREEMENTS PROVIDE

LEGALLY D ISTIN CT RIGHTS TH A T  ARE PROPERLY ENFORCEABLE IN

D IFFER EN T FORUMS

1. Notwithstanding the absence of any statutory au­
thority for doing so, the courts below held that the pur­
suit of petitioner’s claim under the no-discrimina­
tion clause of his collective bargaining agreement to 
final arbitration foreclosed the possibility of judicial 
consideration of his Title V II  claim. In  so holding, 
the courts below relied on what they perceived to be 
the dictates of national labor policy, as exemplified by 
this Corn t s decisions m Textile Workers Union v. 
Lincoln Mills, 353 U.S. 448, and the three Steelwork- 
ers cases (Steelworkers v. American Mfg. Co., 363 
U.S. 564; Steelworkers v. W arrior & Gulf Co., 363 
L.S. 574; Steelworkers v. Enterprise Corp., 363 U.S. 
593). See also Bogs Markets, Inc. v. Clerks Union, 398 
U.S. 235. The Court in those cases held that both employ­
ers and unions may be compelled to arbitrate a contract

13

grievance in accordance with the terms of the govern­
ing collective agreement and emphasized that “ so far 
as the arb itrator’s decision concerns construction of 
the contract, the courts have no business overruling 
him because their interpretation of the contract is d if­
ferent from his.” Steelworkers v. Enterprise Corp., 
supra, 363 U.S. at 599. And in Republic Steel v. Mad­
dox, 379 U.S. 650, the Court held that contract griev­
ance procedures must lie exhausted before contract 
claims may be submitted to the courts.

I t  is clear, however, that the holdings in these cases 
fall far short of requiring a court to accept an 
arb itrator’s denial of a contractual claim as also dis­
positive of a distinct statutory claim. The judgments 
and opinions in those cases stand only for the primacy 
of arbitration as a means of resolving contractual 
issues; they do not call into question the independent 
responsibility of the judiciary to resolve noncontrac­
tual, statutory issues. Moreover, this Court has ex­
plicitly indicated that the arbitral forum does not 
displace the courts in the adjudication of peculiarly 
statutory claims. For example, in McKinney v. Mis- 
souri-Kansas-Texas R. Co., 357 U.S. 265, the Court 
held that an employee returning to employment after 
his term of m ilitary service could sue to enforce his 
seniority rights under the Universal Military Train­
ing and Service Act, without having pursued the griev­
ance-arbitration remedy under his collective bargain­
ing agreement; the Court’s reasoning suggested (357 
U.S. at 270) that even if the plaintiff had first asserted 
his contractual seniority rights through arbitration, he 
would nevertheless have been entitled to bring



14

suit under the statute. Similarly, in U.S. B ulk Car­
riers v. Arguelles, 400 U.S. 351, the Court held that 
the federal district courts have jurisdiction over a 
seaman’s statutory suits for wages, even when the sea­
man has ignored an available arbitral remedy. In  dis­
tinguishing between Arguelles and Maddox, Mr. 
Justice H arlan emphasized that where the substantive 
rights being asserted "derive solely from the con­
trac t,” strong policy concerns support the exclusivity 
of the arbitral forum, but that where a right is claimed 
under a federal statute, “ the presumption of compre­
hensiveness of the arbitral remedy is * * * rebutted” 
and remedies prescribed by statute for vindication of 
the statutory right remain available. U.S. B idk Car­
riers v. Arguelles, supra, 400 U.S. at 361-362 (con­
curring opinion).

In  short, contract rights are to be vindicated in the 
arbitral forum, statutory rights in the courts. This 
principle applies a fortiori where, as here, the statute 
confers upon individuals a right that is wholly in­
dependent of the collective bargaining agreement—a 
right whose substance derives entirely from the statute 
itself (and from the regulations adopted under it by 
the agency responsible for its enforcement).4 Thus, in

4 Because Title VII rights are in this sense self-contained, the 
present case does not present the difficulty that divided the 
Court in Arguelles. In that case, the claimant's statutory and 
contractual rights were interdependent—whether (and in what 
measure) he was entitled to the statutory remedy depended 
“entirely on interpretation and application of the bargaining 
agreement.” Arguelles, mpra, 400 U.S. at 371 (dissenting opin­
ion of Mr. Justice White). By contrast, Title VII rights apply 
equally and in the same measure irrespective of whether a col­

15

our view, a fundamental error conunitted by the courts 
below was in assimilating petitioner’s contractual and 
statutory claims, without giving due recognition to the 
fact that the rights created by Title V II  are legally 
distinct from those established by contract. Since the 
rights are separate, an individual asserting violations 
of both should be entitled to bring each claim before 
the separate forum which is uniquely authorized to 
interpret and enforce it,

2. There are significant differences between the proc­
esses of arbitration under a collective bargaining- 
agreement and litigation under Title V II that high­
light the importance of recognizing that the separate 
rights established by the contract and the statute are 
appropriately enforceable in separate forums.

The role of the arbitrator is to interpret and apply 
the contract. This Court emphasized the restricted 
scope of the arbitral inquiry in Steelworkers v. Enter­
prise Corp., supra, 363 U.S. at 597:

* * * [A]n arbitrator is confined to inter­
pretation and application of the collective bar­
gaining agreement ; he does not sit to dispense 
his own brand of industrial justice. He may of 
course look for guidance from many sources, 
yet his award is legitimate only so long as it

lective bargaining agreement exists or whether that agreement, 
if it does exist, contains a no-discrimination clause. Moreover, 
in further contrast to the statute involved in Arguelles, Title 
VII was enacted long after use of arbitration under collective 
agreements had become widespread, and yet Congress specifi­
cally provided for judicial enforcement of Title VII rights. In 
this second respect the present case is more similar to McKin­
ney, supra (see 357 U.S. at 268), in which the Court was unani­
mous on this issue, than it is to Arguelles.



16

draws its essence from the collective bargain­
ing agreement.

The narrow responsibility conferred on the arbitrator 
does not include investigation into and vindication of 
statutory rights. See Meltzer, Labor Arbitration and 
Overlapping and Conflicting Remedies for Employment 
Discrimination, 39 U. Chi. L. Rev. 30, 32-35 (1971). As 
a recent commentator has observed (Gould, Labor Arbi­
tration of Grievances Involving Racial Discrimination, 
118 U. Pa. L. Rev. 40, 47-49 (1969)):

Even where there is a no-discrimination 
clause prohibiting discrimination on the basis 
of race—and even where the clause has been 
negotiated subsequent to the passage of civil 
rights legislation—arbitrators are generally re­
luctant to rely upon public law concepts in their 
opinions and awards. The prim ary reason for 
this attitude is the well-accepted notion that the 
arbitrator is a creature of the parties and is 
commissioned to interpret their -wishes. * * * 

* * * Ordinarily, * * * the parties do not 
intend arbitrators to function as a mini-Equal 
Employment Opportunity Commission. * * *

Moreover, arbitrators are without special compe­
tence or experience in the interpretation and applica­
tion of statutory and constitutional rights. See TJ.S. 
Bulk Carriers v. Arguelles, supra. See, also, P latt, 
The Relationship Between Arbitration and Title V I I  
of the Civil Rights Act of 1964, 3 Ga. L. Rev. 398 
(1969). A substantial proportion of practicing labor 
arbitrators are not lawyers. See Note, The N L R B  and 
Deference to Arbitration, 77 Yale L .J. 1191, 1194, n. 
28 (1968). The arb itra to r’s expertise is in the “indus­
tria l common law—the practices of the industry and

17

the shop.” Steehvorkers v. W arrior & Gulf Co., supra, 
363 U.S. at 581-582. Such expertise does not guarantee 
effectuation of the underlying purposes of Title V II :

Few arbitrators possess experience in dealing 
with problems in the civil rights area. Such 
problems, particularly those arising under Title 
V II, are often quite difficult * * * . * * *  [ E n ­
trusting the protection of the rights created by 
Title V II  to the relatively unreviewable discre­
tion of an arbitrator would seem to involve a 
substantial curtailment of the protection pro­
vided by Congress. [Hebert & Reischel, Title 
V II  and the Multiple Approaches to Eliminat­
ing Employemnt Discrimination, 46 N'.Y.U. L. 
Rev. 449, 469 (1971); footnotes omitted.]

This problem is compounded by the very limited scope 
of judicial review of arbitration awards. See, e.g., 
Jalet, Judicial Review of Arbitration: The Judicial 
Attitude, 45 Cornell L.Q. 519, 532-542 (1960); Vote, 
Judicial Review of Arbitration Awards on the Merits, 
63 Harv. L. Rev. 681 (1950). The limited scope of judi­
cial review of arbitration awards is appropriate, at 
least in part, because arbitrators merely in terpret and 
apply the disparate provisions of privately-adopted 
agreements. But Congress has, in Title V II, created 
nation-wide rights and provided methods for their en­
forcement intended to assure that they wall be ju ­
dicially defined and uniformly applied. The availa­
bility of uniform judicial enforcement of Title V II  
rights thus serves an important public interest in as­
suring that the decisions in Title V II  cases will affect 
the entire class of persons who are the victims of dis­
crimination mid not merely the parties to a contract.



18

There is also a serious risk that an employee assert­
ing prim arily statutory claims may be inadequately 
represented in the grievance-arbitration process. In  
contrast to Title V I I ’s emphasis upon the individual's 
right of access to the courts, collective bargaining 
agreements place the responsibility for the extent and 
manner of processing a grievance on the union, not 
the individual aggrieved. See Vctca v. Sipes, 386 U.S. 
171; Republic Steel Co. v. Maddox, supra. See, also, 
Cox, Rights Under a Labor Agreement, 69 Harv. L. 
Rev. 601 (1956). Ordinarily the employee will be rep­
resented by a union officer with no legal training. See 
Lev & Fishman, Suggestions to Management: Arbi­
tration v. The Labor Board, 10 B.C. Ind. & Com. L. 
Rev. 763, 768 (1969). Moreover, in some instances, at 
least, the union may have little interest in pressing 
claims of racial discrimination. That may have been 
true in this very case; certainly petitioner thought that 
the union tried to “ water * * * down” his claim of 
discrimination (App. 11). Inadequate presentation of 
such claims may be endemic under a system of collec­
tive bargaining: “ [t]he collective bargaining process 
is premised on majority rule, whereas Title V II  sets 
forth certain statutory protections for the individual 
who is a member of a proscribed minority.’’' Edwards 
& Kaplan, Religious Discrimination and the Role of 
Arbitration under Title V II ,  69 Mich. L. Rev. 599, 
648 (1971) (emphasis in the original). See, also, 
Gould, supra, 118 U. Pa. L. Rev. at 49. And it is not 
without significance that Congress found it necessary 
to afford the protections of Title V II  against unions 
as well as employers, and that much of the significant

19

litigation under the Act has been directed against 
union defendants.

Furthermore, the grievance-arbitration process is 
not designed to ensure the kind of careful fact-finding 
appropriate where important civil rights are at is­
sue. Racial discrimination is rarely practiced openly 
and therefore must frequently be proved by detailed 
comparison of the treatm ent of the class protected 
by Title V II  with that afforded other individuals. Ex­
tensive discovery may be essential, yet discovery in 
arbitration is limited and compulsory process is prob­
ably not available.5 In  arbitration proceedings wit­
nesses do not testify under oath and there is a lack 
of skilled cross-examination (and frequently no cross- 
examination at all). See Elkouri & Elkouri, How Arbi­
tration W orks 155-156 (1960) ; see generally Fleming, 
The Labor Arbitration Process (1965). The process is 
basically an informal one in which “ [a rb itra to rs  * * * 
need not give their reasons for their results [and] the 
record of their proceedings is not as complete as it is 
in a court tria l * * Bernhardt v. Polygraphic Co., 
350 U.S. 198, 203. This is not the method prescribed 
by Congress for the adjudication of Title V II  rights.

3. Separate enforcement of Title V II  and collective 
bargaining rights properly accommodates congres­
sional policies favoring both private resolution of em­
ployment disputes and full protection of the individ-

5 Seo generally Smith, Merrifield & Rothchild, Collective Bar­
gaining aivl Labor Arbitration 217-218 (1970). The extent of the 
discovery procedures presently afforded parties to labor arbitra­
tion proceedings is subject to debate. Compare Note, Develop- 
me.nts in the Law-Discovery, 74 Ilarv. L. Rev. 940, 949, (1961) 
with Jones, The Accretion of Federal Power in Labor Arbitra- 
tion—The Example of Arbitral Discovery, 116 U. Pa. L. Rev. 
830,877-885 (1968).



20

' ual against discrimination. By contrast, the approach 
adopted by the court below would undermine both 
national labor policy, favoring arbitration of contract 
disputes, and the policy of the civil rights laws, which 
provide for adjudication of statutory claims.

I f  employees were required to elect between the 
arbitral and judicial forum, as the decision below 
would force them to do, individuals who believe that 
their contractual remedies are inadequate or that surer 
relief may be obtained under Title V II  would be likely 
to bypass the grievance procedure, while the speed and 
lesser expense of the arbitral remedy might prom pt 
others to forego judicial enforcement of their statu­
tory rights. Such a haphazard method of enforcement 
would only ensure that, as to any broad class of em­
ployees, neither contract rights nor statutory rights 
would be fully vindicated: valid contract claims would 
in some instances be suppressed in the interest of stat­
utory adjudication, whereas in other cases legitimate 
Title V II  claims would be sacrificed in order to ob­
tain prompt settlement of a contract dispute. Yet there 
is no reason why contract rights and statutory rights 
should not both be given full protection, by allowing 
an employee’s claim to be resolved in the appropriate 
forum with respect to each of his distinct rights.

Harmonious resolution of labor disputes is of course 
promoted by encouraging employees to invoke griev­
ance-arbitration procedures; the availability of arbi­
tration as a prompt remedy for such disputes lessens 
the likelihood of labor strife. Arbitration should 
therefore be available for expeditious consideration 
of contractual claims of discrimination. “This com­
ports not only with the national labor policy favor-

21

ing arbitration as a means for the final adjustment of 
labor disputes * * * but also with the specific enforce­
ment policy of Title V II  that discrimination is better 
curtailed through voluntary compliance with the Act 
than through court orders.” Hatchings v. United 
States Industries, Inc., supra, 428 F. 2d at 313. The un­
restricted availability of arbitration, and its utiliza­
tion on behalf of employees raising claims of discrimi­
nation, tends to strengthen the process of collective 
bargaining by buttressing the allegiance of minority 
group members to their labor organizations. Cf. 
United Packinghouse W orkers v. National Labor Re­
lations Board, 416 F. 2d 1126, 1135-1136 (C.A. D.C.), 
certiorari denied, 396 U.S. 903.

At the same time, allowing the employee to pursue 
his statutory claims independently in the courts 
ensures fuller effectuation of the congressional guar­
antee against employment discrimination and thus 
also serves an important public interest (see p. 17, 
supra). Allowing resort to both appropriate forums 
would be similar to the procedure under the National 
Labor Relations Act, permitting some issues to be pre­
sented both to the arbitrator and to the National Labor 
Relations Board:

By allowing the dispute to go to arbitration 
* * * those conciliatory measures which Con­
gress deemed vital to “ industrial peace” * * * 
and which may be dispositive of the entire dis­
pute, are encouraged. The superior authority 
of the Board may be invoked at any time. Mean­
while the therapy of arbitration is brought to 
bear in a complicated and troubled area. [Carey 
v. Westinghouse Gorp., 375 U.S. 261, 272.]



22

Resort to both appropriate forums was foreclosed by 
the courts below prim arily on the ground that the em­
ployee, but not the employer, would thereby be enabled 
to relitigate the arbitral award. B ut this falsely char­
acterizes the nature of the employee’s lawsuit. In  pu r­
suing his statutory claim in court, an employee is not 
challenging the arb itra to r’s interpretation of the col­
lective bargaining agreement; he is asserting that he 
has different, and additional, statutory rights that the 
arbitrator did not—indeed, probably could not— 
vindicate. The reason why the employer, unlike his 
employee, cannot subsequently proceed in the courts 
is simply that Title V II  does not grant employers sub­
stantive rights against their employees; an employer 
cannot as a m atter of law be the victim of employment 
discrimination by his employee. See Comment, Dewey 
v. Reynolds Metals Co.: Labor Arbitration and Title 
V I I , 119 U. Pa. L. Rev. 684, 691-b92 (1971); Meltzer, 
supra, 39 U. Chi. L. Rev. at 38-39.

The district court below also was of the view that 
the availability of a Title V II  suit after arbitration 
“would sound the death knell for arbitration clauses 
in labor contracts” (App. 43). Such a result seems 
highly unlikely. As this Court has repeatedly recog­
nized, an arbitration agreement is the quid pro quo 
for a no-strike clause. See, e.g., Boys Markets, Inc, v. 
Clerks Union, supra; Textile Workers Union v. Lincoln 
Mills, supra. An employer thus has ample incentive to 
agree to an arbitration clause, regardless of the possi­
bility that it may7 not prevent litigation about emplov- 
ment discrimination.6 Indeed, even in an employment

6 The experience under the National Labor Relations Act also 
indicates that occasional subsequent litigation does not deter

23

discrimination case, an arb itrator’s award in favor of 
the employer ends the la tte r’s dispute with the union 
(subject, of course, to limited judicial review) and thus 
provides valuable assurance against disruption of the 
employer’s activities by labor-management strife, even 
though the employer remains subject to suit by an em­
ployee under Title V II  on a similar claim. This is an­
other important reason why such a suit does not amount 
to a relitigation of the a rb itrato r’s award.

Furthermore, Congress in enacting Title V II  evi­
dently concluded that the need to vindicate rights 
against employment discrimination outweighs the de­
sirability of protecting employers against similar 
claims in more than one forum. Congress recognized 
that several different forums would have jurisdiction 
over employment discrimination disputes. See, e.g., 
42 U.S.C. (1970 ed., Supp. I I )  2000e-5(b) (state agen­
cies) ; 42 U.S.C. 2000e-15 (President’s Committee on 
Equal Employment O pportunity); 110 Cong. Rec. 
7207 (National Labor Relations Board). The rights 
enforced in each forum were considered to be inde­
pendent of each other. Senator Clark, a leading spon­
sor of the bill, explained (110 Cong. Rec. 7207) :

[TJitle V II I  * * * does not deny to any individual, 
rights and remedies which he may pursue under 
other Federal and State statutes. I f  a given action

parties from entering into arbitration clauses. At least prior to its 
decision in Oollyer Insulated Wire, 192 NLRB 837 (1971), the 
board deferred to arbitral decisions in only a small percentage of 
the arbitration cases it reviewed (see Note, The YLR B  and Defer­
ence to Arbitration., supra, 77 Yale L.J. at 1201—1208), yet a rep­
resentative sampling of collective bargaining agreements showed 
that 94 percent contained arbitration clauses. Bureau of National 
Affairs, Labor Relations Yearbook: 1970,38.



24

should violate both title V II  and the National 
Labor Relations Act, the National Labor Rela­
tions Board would not be deprived of jurisdiction.

Accordingly, three Courts of appeals have held that 
Title V II  actions are not barred by prior adverse de­
terminations under other federal laws with respect to 
the same practices. Tipler v. E .I. duPont de Nemours 
and Co., 443 F. 2d 125 (C.A. 6 ); Taylor v. Armco Steel 
Corp., 429 F. 2d 498 (C.A. 5) ; Norman v. Missouri 
Pacific R.R., 414 F. 2d 73 (C.A. 8). There is, if anything, 
even less reason why employers and unions (against 
both of whom Title V I I ’s anti-discrimination provi­
sions are directed) should, by private agreement, be 
able to deprive individuals of the right of access to the 
courts conferred on them by Congress.

In  sum, while Congress was silent on the relation­
ship of arbitration and Title V II  rights, the multiple 
forum approach which it adopted with respect to 
other means of securing rights against discrimination 
strongly suggests that arbitration is merely an addi­
tional means by which relief from discrimination may 
be sought under relevant provisions of the collective 
agreement, without depriving individuals of their 
statutory right to a judicial determination of their 
Title V II  rights. Both federal labor policy and fed­
eral civil rights policy can most effectively be served 
by allowing “plaintiffs to utilize dual or parallel pros­
ecution both in court and through arbitration so long 
as election of remedy was made after adjudication so 
as to preclude duplicate relief which would result in 
an unjust enrichment.” Bo ice v. Colgate-Palmolive Co., 
416 F. 2d <11, <15 (C.A. 7). Accord: Hutchings v.

25

United States Industries, Inc., 428 F. 2d 303 (C.A. 5) ; 
Ouhichon v. North American Rockicell Corp., 482 F. 
2d 569 (C.A. 9).7 Indeed, this is the only approach 
that is fully consistent with the intention of Con­
gress to preserve all available rights against dis­
crimination in employment.

C. JU D IC IA L  DEFERENCE TO ARBITRAL DECISIONS IS  IN  APPROPRIATE IN

TITLE V II CASES, AND WOULD BE ESPECIALLY UNW ARRANTED IN  T IIE

CIRCUMSTANCES HERE

For the reasons discussed above, we believe that an 
employee asserting Title V II  rights is entitled to 
have his claims adjudicated by a court notwithstanding 
any prior exhaustion of remedies available under the 
pertinent collective bargaining agreement. The same 
reasons support the conclusion that in hearing such 
claims, the courts should not defer to arbitral find­
ings or decisions, which relate only to m atters of con­
tract and not to statutory rights. However, even if a 
policy of limited judicial deference to the arbitral deci­
sion is adopted, there is no basis in this case for such 
deference.

We discuss this issue as a question of judicial 
“ deference” because it is clear that the principles of 
res judicata and collateral estoppel do not bar litiga­
tion, subsequent to the arbitration award, of all ques­
tions pertaining to an employee’s statutory claims. In  
the first place, the doctrines of res judicata and col­
lateral estoppel do not appear to be technically ap­
plicable at all. At common law these doctrines applied

7 These decisions, of course, conflict with the decision below and 
witli Dewey v. Reynolds Metals Co., supra.



26

only with respect to prior judgments in judicial pro­
ceedings. W hether decisions of an administrative tr i­
bunal “are binding in subsequent controversies depends 
upon the character of the tribunal and the na­
ture of its procedure and the construction of the stat­
ute creating the tribunal and conferring powers upon 
it .” American Law Institute, Restatement of Judg­
ments7} 2 (1942). The arbitrator, however, is not a pub­
lic official or tribunal but is essentially a private agent of 
the parties to the contract. H is award is given effect 
by the courts basically because it thus becomes a part 
of the parties’ contractual agreement, rather than as 
a m atter of res judicata or collateral estoppel.

In  any event, the judgment of any tribunal of 
special and limited jurisdiction is conclusive only as 
to questions within its competence. American Law 
Institute, Restatement of Judgments, §71. The effect 
on subsequent litigation of an a rb itra to r’s award is 
therefore restricted to contract issues. This is true 
not only of the arb itrator’s legal determinations but 
of his findings of fact as well. Id., § 71, comment d 
and illustration l .8

8 Moreover, while the union acts in a representative capacity 
in the grievance proceeding, it does not act as a mere agent 
subject to the control of the complaining employee as princi­
pal (see J . / .  Case Co. v. National Labor Relations Board, 
321 U.S. 332), and it is the union rather than the employee 
that controls the presentation to the arbitrator ( Vaca v. Sipes, 
supra). For this reason, also, it would be inappropriate to 
apply the principle of collateral estoppel to claims of the 
employee not directly presented to and decided by the arbi­
trator. Cf. American Law Institute, Restatement of Judgments, 
§ 85, comment e.

27

- 1. In  addition to the foregoing general considera­
tions, the reasons why the courts, in specifically consid­
ering Title Y II  claims, ought not to defer to arbitral de­
cisions may be briefly restated and summarized. F irst, 
the arbitral award involves a different issue of law than 
the one before the court: the arbitrator, typically not 
a lawyer himself, decides only whether the employer’s 
conduct conforms to the contract, and in so deciding 
he ordinarily does not draw upon public law concepts; 
certainly, such concepts are not binding upon the 
arbitrator in interpreting the collective bargaining 
agreement.

Second, the arbitral fact-finding process falls far 
short of judicial standards. Normal rules of evidence 
do not app ly ; often there is no opportunity for cross- 
examination of witnesses and their testimony is not 
given under oath; discovery is limited. These informal 
and relatively crude procedures expedite the resolution 
of labor disputes, but they do not proride a sufficient 
guarantee of accuracy when important civil rights are 
at issue.

Third, the employee’s claim of discrimination may 
be inadequately presented to the arbitrator. The union, 
which controls its presentation, may be unsympathetic 
to the claim or may, as a m atter of litigation strategy, 
subordinate that claim to others that may appear to be 
sounder or more appealing to the arbitrator. Or the 
union’s representation of its employees generally may 
in some cases be inadequate; the union representatives 
themselves are often not trained in the law.

We believe these considerations demonstrate that the 
policy adopted by the courts below—one of total defex- 
ence to the arbitral decision—is unsound and would re-



28

suit in a substantial and unwarranted diminution of the 
protective force of Title V II. We further believe that 
a policy of partial deference, such as that enunciated in 
Rios v. Reynolds Metals Co., 467 F. 2d 54 (C.A. 5) (see, 
also, Edwards & Kaplan, supra, 69 Mich. L. Rev. at 651- 
652), is also unwarranted and should be rejected by this 
Court. See generally Meltzer, supra, 39 U. Chi. L. Rev. 
at 35-46.

The F ifth  Circuit in Rios held that, in cases such 
as this, a district court should examine the prior griev­
ance arbitration on the basis of the following cri­
teria (467 F. 2d at 58) :

F irst, there may be no deference to the deci- 
arbitral hearing dealt adequately with all factual 
right coincides with rights under Title V II. 
Second, it must be plain that the a rb itra to r’s 
decision is in no way violative of the private 
rights guaranteed by Title V II, nor of the pub­
lic policy which inheres in Title V II. In  addi­
tion, before deferring, the district court must 
be satisfied that (1) the factual issues before it 
are identical to those decided by the arbitrator; 
(2) the arbitrator had power under the collec­
tive agreement to decide the ultimate issue of dis­
crimination ; (3) the evidence presented at the 
arbitral hearing dealt adequately with all factual 
issues; (4) the arbitrator actually decided the 
factual issues presented to the court; (5) the a r­
bitration proceeding was fair and regular and 
free of procedural infirmities. The burden of 
proof in establishing these conditions of lim ita­
tion will be upon the respondent as distinguished 
from the claimant.

'29

W e agree with the respondent here that under such 
a procedure, “the district court would find itself hold­
ing a hearing to determine if [deference] was appro­
priate, which hearing could * * * in length and com­
plexity be similar to a Title V II  tria l” (Reisp. B r. 
35). At the same time, the Rios guidelines are not, in 
our view, sufficiently protective of the important civil 
rights established by Title V II. For example, a no­
discrimination clause in a collective bargaining agree­
ment may by its terms appear to create a right identi­
cal in substance to that conferred by Title V II, yet 
if the arbitrator does not apply Title V II  concepts as 
elaborated by the courts the rights will not in fact 
coincide; but Rios apparently does not require the 
district courts to defer only to arbitral decisions ex­
pressly and accurately relying upon public law con­
cepts. Similarly, even when all prim ary factual issues 
are raised before the arbitrator, there is no reason 
to believe that he will be as sensitive to subtle forms 
of discrimination, or to the potentially discriminatory 
implications of an engrained industrial practice, as are 
the courts: the arb itrator’s findings of fact are unlikely 
to reflect the kind of vigilant inquiry into employment 
practices Congress envisioned in enacting Title V II . 
This is further emphasized by the fact that even 
“fair and regular” arbitration proceedings are pro- 
cedurallv inadequate under traditional judicial stand- 
ads and do not provide as full an opportunity, through 
proof, to reveal subtle forms of discrimination. More­
over, the Rios guidelines do uot fully take into consid-



30
eration the possibility of inadequate representation 
before the arbitrator. . • -

F o r all of these reasons, we believe that judicial 
deference to an arb itrator’s findings in a grievance 
proceeding is wholly inappropriate in a Title Y U  case.

2. B ut even assuming arguendo that some policy 
of partial deference is appropriate, there is no basis 
for deference to the arbitral decision in this case. Even 
though the district court found that the claim of dis­
crimination was presented to the arbitrator (App. 34), 
the arbitrator did not discuss or purport to decide the 
issue of discimination. His finding was simply that 
“the discharge * * * was for just cause” (App. 21). 
That finding is not inconsistent with petitioner’s claim 
of discrim ination: even if petitioner was not qualified 
for the position he held, and therefore properly sub­
ject to dismissal, he was discriminated against if 
white employees similarly unqualified are treated dif­
ferently (e.g., demoted but not discharged).9 But the 
union presented no probative evidence on this issue 
(see App. 22). In  fact, the union in representing peti­
tioner did not even raise the claim of racial discrim­
ination; that issue was put before the arbitrator—to

9 In the field of labor relations it is well established that a 
finding of just cause for discharge does not preclude a finding 
that the discharge was discriminatory. See, e.g., Edward G. 
Budd Mfg. Co. v. National Labor Relations Board, 138 F. 2d 
8G (C.A. 3), certiorari denied, 321 U.S. 778.

31
the limited extent that it can be said to have been 
raised at all—only by petitioner, and his principal 
reference to the issue was to state that because the 
union’s representation of his claim was inadequate, he 
had lodged a complaint against respondent with the 
state equal employment agency (App. 14).

Thus the arbitral proceeding here failed to satisfy 
even the Rios guidelines. I t  is not clear that the no­
discrimination clause of the contract coincides with 
Title V II  rights, as interpreted and applied by the 
courts. Nor is it plain that the arb itrator’s decision, 
by sustaining a discharge in circumstances where 
white employees may only be demoted, does not con­
travene Title V II  policy. Moreover, the evidence pre­
sented did not deal adequately with all factual issues 
raised by the claim of discrimination, and the arbi­
trator did not expressly decide those factual issues. To 
permit such cursory arbitral consideration of claimed 
discrimination to foreclose an employee’s efforts to 
obtain judicial vindication of his Title Y II  rights 
would seriously weaken enforcement of Title Y II  and 
thus jeopardize achievement of the important eco­
nomic and social objectives of that Act.



32

CONCLUSION

For the reasons stated above, the judgm ent below 
should be reversed and the case remanded for trial 
of petitioner’s Title V II  claims.

R espectfully submitted.
R obert H . B ork,

Solicitor General.
J .  S tanley P ottinger, 
Assistant A ttorney General. 
L awrence G-. W allace, 

Deputy Solicitor General. 
K e ith  A. J ones,

Assistant to the Solicitor General. 
D enis F. Gordon,
E ileen  M. S tein ,

Attorneys.
W illiam  A. Carey,

General Counsel,
J oseph T. E ddins,

Assistant General Counsel,
B eatrice R osenberg,
Charles L. R eischel,

Attorneys,
Equal Employment Opportunity 

Commission.

October 1973.

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