Brief in Response to Petition for Writ of Certiorari Including Objections
Public Court Documents
October 6, 1969
157 pages
Cite this item
-
Case Files, Alexander v. Holmes Hardbacks. Brief in Response to Petition for Writ of Certiorari Including Objections, 1969. dfb1f81d-cf67-f011-bec2-6045bdd81421. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b4b298d9-bb70-4dc4-8f7a-12de597b7ff4/brief-in-response-to-petition-for-writ-of-certiorari-including-objections. Accessed August 19, 2025.
Copied!
VOLUME 1
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1969
No. 632
BEATRICE ALEXANDER, et als,
Petitioners,
VS.
HOLMES COUNTY BOARD OF EDUCATION, et als.,
Respondents.
(Including Consolidated Cases)
BRIEF IN RESPONSE TO PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT, INCLUDING
OBJECTIONS TO PETITION WITH MOTION TO AD-
VANCE, AND CROSS-PETITION FOR WRIT OF CER-
TIORARI WITH MOTION TO EXPEDITE HEARING
JUDGE A. F. SUMMER
Attorney General of Mississippi
New Capitol Building
Jackson, Mississippi 39205
JOHN C. SATTERFIELD
SATTERFIELD, SHELL, WILLIAMS AND BUFORD
Post Office Box 466
Yazoo City, Mississippi 39194
Special Counsel for the Respondents,
other than the United States of Amer-
ica, associated with other attorneys of
record in each of the Consolidated
Cases
E. L. MENDENHALL, INC., 926 Cherry Street, Kansas City, Mo. 64106, HArrison 1-3030
INDEX
Objection to Motion to Advance and to the Peti-
tion for Writ of Cerliorar] ..... cnn ccstocensttinns
II. Response to Petition for Writ of Certiorari ..............
111.
1.
2.
3.
Preliminary Statement... i... 0.
Question Stated by Movants and Petitioners ....
Question Actually Presented by Motion and Pe-
RE ONY io Corea e ct mrciass curcanae ehsssnias mista sod R as dbsnmsgaias insane
. The Divergent Plans of Desegregation Filed by
HEW and the School Districts Have Not Been
Considered or Approved by Either the District
Courtorthe Court of Appeals ol. lini...
« DIHOMENE OF FOCUS .ccoecce mii ssermsinscriztssinsatosresieraes
. The Order Entered by the Court of Appeals on
August 28th Is Based upon a Finding of Fact,
Supported by the Record, Made by Both the
District Court and Court of Appeals, and Should
Not Be Disturbed i ..........ccosiomiesmissnict-oeinesocee
. Vacating the Amendment of August 28th Will
Accomplish No Appreciable Expedition of Ac-
tion in These School Suits and Would Be Detri-
mental to the Interest of All Students ................
. The Petition for Writ of Certiorari Being Di-
rected to the Amendment of a Judgment, the
Same Should Be Dismissed or, in the Alterna-
tive, Granted As Being Applicable to the Entire
JUAZMENE . LL... lcimenmitunsiosmvsonioneerh alte etesobins ens dnrstas
Cross=Petition for Writ of Certiorarl i......coo it
1
2.
Judgment and Opinion Below...............................
Jurisdiction ......:: SE Le A LIOR RL
14
16
17
23
26
IT
90
1
ov
r
i
to
INDEX
Reservation ol Bighis «oot anne
. Questions Presented for Review .........oooeeeeeo..
. Constitutional Provisions and Statutes Involved
: Preliminary Statement i ionic iiiadenss
ttement OF Taets ea
Argument Amplifying the Reasons Relied Upon
for Allowance of the Cross-Petition for Writ of
TT ar Ln ee EE ee eg
(1) The school districts have followed their
Constitutional duty as announced and as
changed from year to year by the Supreme
Court and the Court of Appeals of the
Firth Circuit. The districts are now char-
acterized as “reluctant” and “recalcitrant”
because total compulsory integration re-
moving or substantially diminishing racial
imbalance has not been already achieved
“after. 15 YEars? .....cioiinimmn
(2) A freedom of choice plan is the proper ve-
hicle to set up and maintain schools con-
forming to all Constitutional guarantees and
when such plan and the school system are
administered fairly and without discrim-
ination, all vestiges of a dual discriminatory
racial school system are eradicated ...............
(3) The construction by the Court of Appeals
of the Fifth Circuit of the application of
Section 1 of the Fourteenth Amendment to
public schools, announced in Hinds County
and other cases, conflicts with decisions of
IS Coutts ee
(4) The Court of Appeals of the Fifth Circuit is
in direct conflict with the other Circuits.
Jefferson I and Jefferson II (as gradually
expanded and varied by sixteen panels)
now require compulsory integration in the
student bodies and faculties of all schools,
leading to the ultimate end of racial balance
36
36
47
65
72
INDEX III
(5). Best of {8018 imi ennoisiimsimidinnssnitnestisntsiate 84
Exhibit A—Petition for Rehearing in Banc and for Stay
of Proceedings in the United States District Court
for the Southern District of Mississippi, or, in the
Alternative, for Recall of Mandate of This Court ........ le
Exhibit B—Portions of Testimony in the United States
of America v.. Hinds County School Board: ............... 21e
Exhibit C—DMotion in the Court of Appeals, Letter from
Robert H. Pinch, and Amended Order........ccoceeneoniss 35e
Exhibit D—Motion by the Defendants in the Above
Styled Consolidated Cases Joining in the Motion
Therein Filed by the Attorney General of the United
States in Behalf of Secretary Robert H. Finch of the
Department of Health, Education and Welfare and
the United Siotes Of AMETICH. ..... tcoimimmsidiiiietuiosesiibisumedus 40e
Cases and Other Authorities
Acree v. Richmond County, 399. F.24 11. (1968) ......... 74
Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968) ...........
We hn LLIN Se we a 15,53,57,69,70,71,73,75,%8, 79
Armstrong v. Bd. of Ed. of the City of Birmingham,
303 Bod 47 (1864)... 43
Augustus v. Bd. of Public Instruction of Escambia
Cty Fla. 300 F.2d 332 (1902)... 41
Avery v. Wichita Falls Ind. Sch. Dist., (1956) 241
B2d 230. a ENT GH 66
Bell v.. Gary," {7th Cir. 1963), 324 F.2d 209, Cert,
denied, IT UBL020 Li i 74
Berenyi v. District Director, 87 S.Ct. 666, 385 U.S. 630,
LT LEBA24 088 (1967) rt 25
Boykins v. Fairfield, 399 F.2d 11 (1968) wooo 74
Iv INDEX
Broussard .v.. Houston. Ind. School. District, 395 F.24
817 Een 51,52, 65, 74
Brown v. Board of Education, 349 U.S. 294, 75 S.Ct.
755.80 LET 1085 CUO) «crn
a 16, 25, 26, 39, 40, 41, 46, 47, 56, 65, 66, 81
Brown (II) v. Bd. of Ed., 347 U.S. 483, 74 S.Ct. 686,
08 EA: 00 8 .viuncsrineszass ssssomreassssssmssior hentnssngssbusasssst 47-48, 65, 66
Bush v. Orleans Parish School Bd., et als., 303 F.2d
AQ C1962) io di.ochivisess cobiotosnvh toni tosiiertiieluianeid dota 41-42
Calhoun, et als. v. Latimer, et als., 321 F.2d 302 (1963) 42
Carry. Monigomery Cty., 23 1L,.¥d.24 263 ............ 56, 67, 68, 69
Case Co. v. Borak, 84 S.Ct. 1554, 377 U.S. 426, 12 L.Ed.
rr 0 ETAT LL TEI COTE G0 SRT be OC SE NES lt ENOL 25
Clark v. Bd. of Ed. of Little Rock School District, 369
F.2d 661 (1966), Rehearing denied, 374 F.2d 569
A RE RA Bl En RL SE 60, 61, 74, 82
Cooper v. Aaron, 3583 US, 1 (1958) ........... 26, 48, 60, 65, 66
Cumberland Tel. & Tel. Co. v. Louisiana Public Serv.
Com., 67 L.Ed. 217. (1922) 26
Davis v. Bd. of School Commissioners of Mobile Cty.,
B04 TO BOB coeesrirrrssroisviiotsmmsssorims tines turns vse dinasstscassts 45
Deal v. Cincinnati, 369 F.2d 35 (6th Cir. 1966) ....74, 77,78
Downs v. Bd. of Education of Kansas City, 336 F.2d
988 (1964), cert. denied, 380 U.S. 914, 85 S.Ct. 939,
13 1.Ed.24.800 (1963) ....... iio iesissiniinioeres 74, 80-81
Duval v. Braxton, 402 F.2d 900 (1963) ........cccererrnes 43, 57, 73
East Baton Rouge Parish School Bd. v. Davis, 287 F.2d
2 tL TET os LIED DE I hi 41
Gaines v. Daugherty Cty. Bd. of Ed., et als., 329 F.2d
823 (1964) 334 F.9% G38 (1064) .........cvesicuncsiierr 43
Goss v. Bd. of Ed. of Knoxville, Tenn., 406 F.2d 1183
HE Ml NO dE 48, 56, 57, 60, 61, 65, 66, 74, 76, 77, 18
INDEX Vv
Graves v. Walton Cty., 403 F.2d 139 (1963) ............ 57,711,173
Great Atlantic '& Pacific Tea Co. v. .Supermarket
Equipment Corp., 71 S.Ct. 127, 340 U.S. 147, 95 L.Ed.
162 (1950) pon.iotci otitis. cusionesdtiatdiorthe srt chon vipritursspon inns 29
Green v. County School Board, 391 U.S. 430 (1968)
Ahr eeidins 25, 26, 47, 48, 49, 50, 56, 57, 65, 67, 69, 74, 75, 17
Holly, 5%. Helen, 287 BaZa 3705. ati. bcsnenseseiien 73,75, 79
Hampton v. Choctaw County (Not yet reported) 70,74, 78
Kellogg, et als. v. Hicks, et als., 52 S.Ct. 450, 283 U.S.
502 70- Ted, 903 (193 reer teresnss 25
Louisiana State Bd. of Ed., et als. v. Allen, et als., 287
£2432... inn Re PR fa. BO MOR Rin 41
Louisiana State Bd. of Ed., et als. v. Angel, et als., 287
F.2d Beans tng { 5 RX 41
Lacy: V. Adoms; 134 F.SUPP.O23D .cocetibuitiiioiitsossaain aries 26
Mapp v. Bd. of Ed. of Chattanooga, Tenn., 373 F.2d 75
ShuhLixab a csugsshpeaas gash AEE SAN ta nE SetRaRAAI ATOR OPEN SE Ress STR RSs 74, 81
Meredith v. Fair, Q. JuE3.20.44 ......cocnmeeesecnssissisissescorvsenessds 25
Monroe v. Bd. of Com. of City of Jackson, Tenn., 380
F.20..955.. (1087). ...oressessescessessescessessotsavssesrsimmttmastitmnct is
Soon eriss ess eran 37, 46, 47, 48, 49, 50, 57, 58, 60, 65, 67, 69, 74, 75
Plessy .v. Ferguson, 163 1U.8.- 537,616 8.C1.i'1138,°41
L.Ed. 200 (1896)s ...... oi sunumses iE ogstssthossstnsds-—tanesatsutssnlic-sascn 41
Raney v. Gould, 391 U.S. 443, 20 LEd.2d 727 cover...
47,48, 49, 50, 57, 65, 67, 69, 74, 15
Singleton v. Jackson Municipal Sep. School District, 348
F.2d. 729. (1908) -cocismisssicimisicuiisiinsiitotintasintistuitssetinmmmnt tis 44d
Springfield School Committee v. Barksdale, 348 F.2d
SOT oneonsessecinsacnnrnsiunnssisersasnmmsemsarssmchs iii vatisdds dodo} cums Pees 74
As re 66
VI INDEX
U. S. Alkali Export Assn. v. U. S., 325 U.S. 196, 89 L.Ed.
BUTI L PU RL SE iE eal De Ee 26
U. S.. A. v. Baldwin Cty., Nol yet reported... 74
U. S.A. v. Bd. of Bd Pollc County, 395 F.2d 66 ............... 70
U.S. A. v. Cook Gonpt, 404 F.2d 1125 (7th Cir., 1968)
A ee a a ET EE on 74, 719
U. S. A.v. Greenwood, 406 T.24 1086 (1969) ............... 57,73
U.S: A.v. Indionola, 410 P.24 626 (1969) .................... 73.95
U.S. A. v. Jefferson (1), 372 B.24.836 ....o titi
a 31, 54, 58, 65, 66, 70, 72,73, 74
U.S. A. v. Jefferson (11), 330 F.24 335 .......... 31, 38, 39, 46, 51,
i oaeca Lows fire siupssieseua 54, 57, 58, 61, 65,066,467, 63,72, 73, 74,15
U.S. A. v. Jefferson (111), (1969) Not yet reported ...... 5
U.S. A. v. Jefferson (IV), (1969) Not yet reported ....71, 74
Civil Righic Act of1964 Title VI... 0 eli. 62
Civil Rights Act of 1964, Subchapter IV—Public Educa-
T1311 Dordt LE AR CHE 0 geht Le LHe kL RL 32
Civil Rights Act of 1964, Subchapter V—Federally As-
SISted PrOSTamNS oro enhienis ish bsiihntisis. dian dutoh Seseat dd har 33
Civil Rights Act of 1964, Subchapter VI—Equal Em-
Ployment Opportunities .........-.l ein Sn nL 33
Federal Rules of Appellate Procedure, Rule 11 _....._.... 7
Pub.L. 88-352, Title 4, Secs. 401(b), 407 (a), 410 ........ 83-84
ER UD SR I 84
RL ID el A RR i LL ee 84
Supreme Court BUle-d2.0r o.oo bis msikii tome: sinetisl 6
Supreme-Court-Bule-20 ne ann 3,4,95,30
Supreme Court Bulle de i 6, 28
Supreme Court Bulle 21.4 ............ccicsoemmcssmiamioseassrascssscnsensons 8,11
Supreme Court Rule 24.2... oe oecereeesemeraeevnans aimns 3
US.Ci: Title 38, Seca d28d: (1) in.oiiin.isiitinisisismmisiiiiinm 30
USC. Title 42 See, 2000c(h) recon irrareiaboneaseisens: 83
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1969
No. 632
BEATRICE ALEXANDER, et als.,
Petitioners, :
VS.
HOLMES COUNTY BOARD OF EDUCATION, et als.,
Respondents.
JOAN ANDERSON, et als.
Petitioners,
VS.
UNITED STATES OF AMERICA and CANTON
MUNICIPAL SCHOOL. DISTRICT, et .als., and
MADISON COUNTY SCHOOL DISTRICT, et als.,
Respondents.
ROY LEE HARRIS, et als.,
Petitioners,
VS.
YAZOO COUNTY BOARD OF EDUCATION, et
als, YAZ700 CITY MUNICIPAL. SEPARATE
SCHOOL DISTRICT, et als., HOLLY BLUFF LINE
CONSOLIDATED SCHOOL. DISTRICT, et als,
Respondents.
JOHN BARNHARDT, et als,
Petitioners,
VS.
MERIDIAN SEPARATE SCHOOL DISTRICT, et als.,
Respondents.
DIAN HUDSON, et als.,
Petitioners,
VS.
UNITED STATES OF AMERICA and LEAKE
COUNTY SCHOOL BOARD, et als.,
Respondents.
JEREMIAH BLACKWELL, JR. et als.
Petitioners,
VS.
ISSAQUENA COUNTY BOARD OF EDUCATION, et als.,
Respondents.
CHARLES KILLINGSWORTH, et als.,
Petitioners,
VS.
ENTERPRISE CONSOLIDATED SCHOOL DIS-
TRICT and QUITMAN CONSOLIDATED
SCHOOL DISTRICT,
Respondents.
GEORGE MAGEE, JR.,
Petitioner,
VS.
UNITED STATES OF AMERICA and NORTH
PIKE COUNTY CONSOLIDATED SCHOOL
DISTRICT, et als.,
Respondents.
GEORGE WILLIAMS, et als.,
Petitioners,
VS.
UNITED STATES OF AMERICA and WILKINSON
COUNTY SCHOOL DISTRICT, el als.
Respondents.
BRIEF IN RESPONSE TO PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT, INCLUDING
OBJECTIONS TO PETITION WITH MOTION TO AD-
VANCE, AND CROSS-PETITION FOR WRIT OF CER-
TIORARI WITH MOTION TO EXPEDITE HEARING
I
OBJECTION TO MOTION TO ADVANCE AND TO THE
PETITION FOR WRIT OF CERTIORARI
In accordance with the provisions of Supreme Court
Rule 24.2 these Respondents object to the Petition for the
Issuance of a Writ of Certiorari to the United States Court
of Appeals for the Fifth Circuit and the Motion to Advance
filed in this cause for the following reasons:
1. These cases are still pending before the Court of
Appeals for the Fifth Circuit upon Petition for Rehearing
En Banc. Supreme Court Rule 20 is as follows:
4
20. Certiorari to a court of appeals before judg-
ment. A writ of certiorari to review a case pending
in a court of appeals, before judgment is given in such
court, will be granted only upon a showing that the
case is of such imperative public importance as to jus-
tify the deviation from normal appellate processes and
to require immediate settlement in this court. See
United States v. Bankers Trust Co., 294 U.S. 240; Rail-
road Retirement Board v. Alton R. Co., 295 U.S. 330;
Rickert Rice Mills v. Fontenot, 297 U.S. 110; Carter v
Carter Cool Co., 203.1U.8,.238: Ex porte Quirin, 317
U.S. 1; United States v. United Mine Workers, 330 U.S.
258; Youngstown Co. v. Sawyer, 343 U.S. 579.
There is now pending before the Court of Appeals for
the Fifth Circuit a Petition for Rehearing En Banc filed by
all of these respondents and the other defendants in
twenty-five consolidated cases which involve thirty-three
school districts.! Pertinent extracts from the Petition for
1. The consolidated cases are captioned and numbered
in the United States District Court for the Southern District of
Mississippi as United States v. Hinds County School Board, et als.,
No. 4075; Buford A. Lee and United States, et als., v. Milton Evans,
No. 2034; United States v. Kemper County School Board, et als.,
No. 1373; United States (and George Magee, Jr.) v. North Pike
County Consolidated School District, et als., No. 3807; United States
Vv. Natchez Special Municipal Separate School District, et als., No.
No. 1120; United States v. Marion County School District, et als.,
No. 2178; Joan Anderson and United States, et als. v. The Canton
Municipal School District and The Madison County School Dis-
trict, et als., No. 3700; United States v. South Pike County Con-
solidated School District, et als., No. 3984; Beatrice Alexander, et
als. v. Holmes County Board of Education, et als., No. 3779; Roy
Lee Harris, et als. v. The Yazoo County Board of Education, Yazoo
City Municipal Separate School District and Holly Bluff Line Con-
solidated School District, et als., No. 1209; John Barnhardt, et als.
Vv. Meridian Separate School District, et als., No. 1300; United
States v. Neshoba County School District, et als., No. 1396; United
States v. Noxubee County School District, et als., No. 1372; United
States v. Lauderdale County School District, et als., No. 1367; Dian
Hudson and United States, et als. v. Leake County School Board,
et als., No. 3382; United States v. Columbia Municipal Separate
School District, et als., No. 2199; United States v. Amite County
School District, et als., No. 3983; United States v. Covington County
School District, et als., No. 2148; United States v. Lawrence County
School District, et als., No. 2216; Jeremiah Blackwell, Jr., et als.
v. Issaquena County Board of Education, et als., No. 1096; United
States (and George Williams) v. Wilkinson County School Dis-
9)
Rehearing En Banc are attached hereto as Exhibit A and
made a part hereof. A final judgment has not been en-
tered thereon by the Court of Appeals for the Fifth Circuit.
2. The movants and petitioners have wholly failed to
make “a showing that the case is of such imperative public
importance as to justify the deviation from normal appel-
late processes and to require immediate settlement in this
court”. The recitations of the petition and the matters re-
cited in this response demonstrate that the original Peti-
tion for Writ of Certiorari as filed is attempted to be lim-
ited solely to the timetable set up by the Court of Appeals
in its judgment of July 3, 1969, as amended, which orig-
inally required certain action to be taken on or before Sep-
tember 1. The August 28, 1969 amendment of the judgment
changed the timetable upon motion of the Attorney Gen-
eral of the United States acting in behalf of the United
States and of the Department of Health, Education and
Welfare. The Petition for Writ of Certiorari as filed at-
tempts to exclude consideration of the merits of these
cases. The change in a timetable fixed in these nine cases
here clearly does not come within Rule 20. Sixteen cases
are not affected. The hundreds of other school districts
within the Fifth Circuit are not affected. The thousands
of school districts throughout the United States are not af-
trict, et als., No. 1160; Charles Killingsworth, et als. v. The Enter-
prise Consolidated School District and Quitman Consolidated School
District, No. 1302; United States v. Lincoln County School District,
et als., No. 4294; United States v. Philadelphia Municipal Separate
School District, et als., No. 1368; United States v. Franklin County
School District, et als., No. 4256. The seven cases filed originally
by private plaintiffs are numbered in the Court of Appeals as
Cause No. 28030. The remaining nineteen cases, including the
North Pike and Wilkinson County cases in which private plain-
tiffs were permitted to intervene, are numbered in the Court of
Appeals as Cause No. 28042. None of the defendants and appel-
lees in the suits consolidated in the Court of Appeals under Cause
No. 28042 are respondents to the Petition for Writ of Certiorari
other than the defendants and appellees in the cases of United
States and George Williams v. Wilkinson County School District
and United States and George Magee, Jr. Vv. North Pike County
Consolidated School School District.
6
fected. Even these districts are affected only tempo-
rarily. No finding on the merits is included in the amend-
ment of August 28, 1969. Yet the reasons advanced for the
granting of the writ are based upon evidence alleged to have
been introduced in the District Court contained in the Dis-
trict Court record transmitted to the Court of Appeals upon
the appellate hearing of July 3, 1969.
3. The movants and petitioners have failed to file the
record as required by Supreme Court Rules 12 and 21.
It is required by Rule 21 that the petitioners file:
. . . a transcript of the record in the case, including the
proceedings in the Court whose judgment or decree is
sought to be reviewed, which shall be certified by the
clerk of the appropriate court or courts below. The en-
tire record in the court to which certiorari is addressed
shall be filed unless the parties agree that certified
parts may be omitted as unnecessary for the deter-
mination of the Petition or the Writ, if it is granted.
The pleadings, briefs and other documents filed in
the Court of Appeals and its judgment and orders form
only a small part of the record in that Court. The appellate
record in these cases consists of the original record in the
District Court for the Southern District of Mississippi filed
with the appellate court when the appeals were heard on
July 3, 1969. This included a transcript of the hearings
beginning October 7, 1968, and extending into December,
1968, together with all pleadings filed by the parties and
other matters of record in the District Court in these con-
solidated cases. This transcript, together with the plead-
ings, plans of desegregation, reports, orders and other pro-
ceedings, became part of the record of the Court of Appeals
upon the appeal heard July 3, 1969. The record was there-
after returned to the District Court for use related to the
supplemental proceedings. The transcript of the hearing
of August 21 and August 22, 1969, held by the District Court
7
by direction of the Court of Appeals, as well as the plans
of desegregation filed by HEW and those filed by the
school districts, the objections filed to such plans and addi-
tional reports filed in the District Court are also a part of
the appellate record. All of these records are available to
the petitioners under Rule 11 of the Federal Rules of Appel-
late Procedure:
If the record or any part thereof is required in the
district court for use there pending the appeal, the dis-
trict court may make an order to that effect, and the
clerk of the district court shall retain the record or
parts thereof subject to the request of the court of ap-
peals, and shall transmit a copy of the order and of the
docket entries together with such parts of the original
record as the district court shall allow and copies of
such parts as the parties may designate.
The movants and petitioners have made no motion in
the Court of Appeals for an order that the original record
in the District Court be transmitted to the Court of Ap-
peals and by it to this Court. Hence, the said motion and
petition are not sustainable under the rules of this Court.
4. The movants and petitioners have failed to repro-
duce and make available to the Court copies of necessary
pertinent portions of the original record in these cases. The
only “appendices” attached to the Motion and Petition
consist of opinions, orders and directives of the United
States Court of Appeals and the United States District
Court, together with copies of two letters. The appendix
does not even include a copy of the Motion filed by the De-
partment of Justice in its own behalf and in behalf of the
Secretary of Health, Education and Welfare. The amend-
ment complained of was granted upon this motion.
The letter dated August 19 appearing on pages 53a and
54a of the appendix was an exhibit to such motion. The
only other portion of the record reproduced and attached
8
by the movants and petitioners is a letter dated August 11,
1969, appearing on pages 40a through 50a of petitioners’ ap-
pendix. This is one of the thirty exhibits (Tr. page 244)
introduced at the hearing held by the United States Dis-
trict Court on August 21 and August 22 (at the request
and direction of the Court of Appeals of the Fifth Circuit).
This letter was introduced at page 123 of the transcript.
Such transcript has not been filed with the Petition for
Writ of Certiorari. However, these respondents and
cross-petitioners have filed with the Clerk of this Court
under Rule 21.4 a certified copy of the transcript taken on
August 21 and August 22, 1969, upon the hearing of the mo-
tion by the Attorney General of the United States. Perti-
nent extracts therefrom are attached hereto as Exhibit B
for the information of the Court.
11.
RESPONSE TO PETITION FOR WRIT OF CERTIORARI
1. Preliminary Statement
We are amazed at the lack of knowledge of the evi-
dence displayed in the Petition for Writ of Certiorari here-
in filed. The writer of this brief has participated in judi-
cial proceedings in state and federal courts in many states
over a period of forty years and has never observed recita-
tions in any petition which were such a complete departure
from the facts appearing in the record.
2. Question Stated by Movants and Petitioners
In the Petition for Writ of Certiorari the petitioners
state the “Questions Presented” as follows (numbers in-
serted by us for convenient reference):
Did the Court of Appeals err in (1) granting fourteen
Mississippi school districts (2) an indefinite delay
(3) in implementing school desegregation plans (4)
Rn». cs = ses
9
based upon generalized representations by the United
States Department of Health, Education and Welfare
that delay was necessary (5) for preparation of the
communities?
Each phrase underlined by us is a clear misconstruc-
tion of the evidence and proceedings contained in this rec-
ord. We call the Court’s attention to the following phrases:
(1) “Granting fourteen Mississippi school districts”.
To the contrary the motion was made by the Department
of Justice in behalf of the United States and of the Secre-
tary of Health, Education and Welfare, a copy of such mo-
tion being attached hereto as Exhibit C. Additional time
was granted to the Office of Education of the Department
of Health, Education and Welfare (acting in conjunction
with the school districts) to “develop and present to the
District Court on or before December 1, 1969, acceptable
plans of desegregation”. This was done upon motion filed
by the Attorney General in behalf of the United States and
as attorney for the Secretary of Health, Education and Wel-
fare. The new timetable was not initiated by any of the
defendants. It was stipulated of record by the attorneys
for the private plaintiffs as follows (Exhibit B hereto, pp.
21e-22e):
BY MR. SATTERFIELD: May I further inquire
of counsel for the individual Plaintiffs, by the filing
of this objection as entitled, as I understand, it is in-
tended at least to be applicable to all cases in which
they are individual plaintiffs. Does counsel file this
objection recognizing that the motion made by the De-
partment of Justice on behalf of the Secretary and of
the United States, does apply to those seven cases
with a possibility of the addition of two more?
BY MR. AMAKER: Well, we recognize that, yes.
As stated in Note 1 of the Petition, the private plain-
tiffs filed seven suits and were permitted, at the August
21, 1969, hearing, to intervene in two additional cases.
10
The Secretary of Health, Education and Welfare was
directed by the Court to file on August 11, 1969, plans of
desegregation in all of the twenty-five consolidated cases.
The Secretary did file original plans in each case. See
testimony of Mr. Jordan, pertinent portions of which are
included in Exhibit B hereto. The school districts also
filed differing plans on August 11, 1969. Agreement not
having been reached largely due to press of time, the school
districts also filed objection to the HEW plans on August
21, 1969.
It being impossible to resolve the differences before
the timetable deadline of September 1, 1969, either by ne-
gotiation or by hearings affecting the thirty-three districts,
the Attorney General of the United States filed his mo-
tion. The school boards simply joined in the motion made
in behalf of the Secretary of Health, Education and Welfare.
A copy of such joinder is attached hereto as Exhibit D. It
was stipulated by individual plaintiffs that the motion filed
by the Attorney General of the United States was appli-
cable to these nine cases.
(2) “An indefinite delay”. There was nothing in-
definite about the delay granted. The change in the time-
table requested by the Secretary of Health, Education and
Welfare was granted to permit it (in conjunction with the
school districts) to develop and present to the District Court
on or before December 1, 1969, acceptable plans of desegre-
gation. The next step required was approval by the Dis-
trict Court unless objections were filed within fifteen days.
The District Court was then required to hold a hearing
within fifteen days after objections were filed to enter
findings of fact and conclusions of law in each case. In
addition, October 1, 1969, was set as the limit for the filing
of a program developed by the Office of Education and the
boards “to prepare its faculty and staff for conversion from
1
the dual to the unitary system”. In general, this schedule
has been met and programs have been filed approved by
both HEW and the several school districts. The schedule
also included the following requirement (Petition page
78a):
It is a condition of this extension of time that the
plan as submitted and the plan as finally approved
shall require significant action toward disestablish-
ment of the dual school systems during the school year
September 1969-June 1970.
(3) “Based upon generalized representations by the
United States Department of Health, Education and Wel-
fare”. We have filed with the Clerk of this Court under
Supreme Court Rule 21.4 a transcript of the entire testi-
mony taken August 21 and 22, 1969, at the hearing held at
the direction of the Court of Appeals. The testimony of
Mr. Jordan, head of the Atlanta Regional Office of the
Department of Education, was particularly specific and de-
tailed as hereinafter discussed. It pointed out the reasons
why it had not been possible for HEW to develop full, com-
plete and satisfactory plans nor to prepare for the imple-
mentation thereof.
(4) “That delay was necessary for preparation of the
communities”. This is contrary to the facts. This time was
granted for the reasons advanced by Mr. Finch, Secretary
of Health, Education and Welfare, in his letter to Honor-
able John Brown, Chief Judge of the Court of Appeals of
the Fifth Circuit. Such letter (Petitioners’ Appendix, pp.
53a and 54a) was attached as an exhibit to the Motion by
the Attorney General of the United States and made a part
thereof by reference (Exhibit C hereto). Mr. Finch’s state-
ments thus became allegations of the motion upon which
the Court of Appeals based its action:
On Thursday of last week, I received the terminal
plans as developed and filed by the experts from the
12
Office of Education. I have personally reviewed each
of these plans. This review was conducted in my ca-
pacity as Secretary of the Department of Health, Ed-
ucation and Welfare and as the Cabinet officer of our
government charged with the ultimate responsibility
for the education of the people of our Nation.
In this same capacity, and bearing in mind the
great trust reposed in me, together with the ultimate
responsibility for 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 Ed-
ucation to develop terminal plans which can be imple-
mented this year. The administrative and logistical
difficulties which must be 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.
I request the Court to consider with me the short-
ness of time involved and the administrative difficul-
ties 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.
The motion was not for the purpose of preparing com-
munities for acceptance of plans. It was to allow time for
the development of terminal plans based upon meaningful
studies in depth. It was to give the Secretary of Health,
Education and Welfare sufficient time, after proper studies
and in collaboration with the school districts, to recom-
mend terminal plans to be submitted to the Court not later
than December 1, 1969. The “preparation of the commu-
nities” is only incidental to the implementation of sound
and proper plans.
i mmm oS —
13
Honorable John Leonard, Assistant Attorney General
of the United States, Civil Rights Division, stated the posi-
tion of the United States and the Secretary of Health,
Education and Welfare as follows (Exhibit B hereto, pp.
22e-23e):
I think it is also safe to say that most of the school
boards did cooperate in that at least information was
provided and the educators were received by the col-
leagues in the district and were able to draw and pull
together the information necessary to provide some
kind of a plan.
I think, however, that it became obvious to the Sec-
retary of Health, Education and Welfare that as the
time pressure was building here both with respect to the
field work that needed to be done, the investigation by
his people, out in the field, in the districts, that it soon
became apparent to him that in order to have, in fact,
an orderly movement from a dual to a unitary system,
in order to accomplish in fact what we believe the Su-
preme Court seeks, that is a plan that works, one that
is going to accomplish the objectives, both with re-
spect to the development of the plans and with respect
to the implementation of those plans, that the time
was simply too short.
Now, I would be less than candid if I didn’t say
that the Government was somewhat embarrassed by
this because we gave the Fifth Circuit some assurance
that there was time but we are lawyers, not educators,
and it is the educational judgment it seems to me, that’s
important here. These are the men who are trained
to educate our children. They are the ones that have
to make the administrative and the educational deci-
sions that go with bringing about not just a unitary
system but a plan for education in the framework of
elimination of racial discrimination that’s going to,
in fact, result in quality education.
Mr. Jesse J. Jordan, Senior Program Officer of the
United States Office of Education, Atlanta, Georgia (who
14
was in charge of development of all the plans of desegre-
gation for HEW for the thirty-three districts included in
the twenty-five consolidated cases), testified (Exhibit B
hereto, p. 30e):
Q. Back to the plans Mr. Jordan, with respect to
the time frame in which they were developed. Do
you have an opinion as to whether or not that time
frame had any effect on the validity of the plans
themselves?
A. 1 think probably the plans themselves were
sound; however, my personal belief in developing
plans of this nature, it is necessary to do a number of
curriculum studies which time did not allow for. Cur-
ricular was not examined at all, finance, no financial
studies were made, no social or economic study was
made to determine the needs of any given district, and
if these studies were made, you probably will come up
with a superior plan than just a purely segregated plan.
You would come up with a plan for educational change
for which the desegregated is a part. . . .
3. Question Actually Presented by Motion and Petition
Shall this Court reverse the finding of fact and law
by the Court of Appeals affirming the findings of the Dis-
trict Court that the Secretary of Health, Education and Wel-
fare, the United States and the local school boards required
and should be granted sufficient time to develop reasonable
and satisfactory plans of desegregation within a definite
time schedule?
The nine captioned cases are pending in the United
States District Court for the Southern District of Missis-
sippi. All were included in the twenty-five cases consoli-
dated in the District Court for the original hearing and
later consolidated upon appeal by the Court of Appeals of
the Fifth Circuit under Docket Nos. 28030 and 28042. These
cases generally are referred to as U.S.A. v. Hinds County
15
Board et als. Originally, the captioned cases were con-
solidated with thirty-five other cases from various district
courts and heard by the Court of Appeals upon motion to
set aside District Court docket entries. They were cap-
tioned Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968).
All twenty-five of the consolidated cases were included
in the judgment and opinion of the Court of Appeals dated
July 3, 1969 (Petitioners’ Appendix B, p. 28a), as amended
by order dated July 25, 1969 (Petitioners’ Appendix B, p.
38a), the Findings of Fact and Conclusions of Law by the
District Court dated August 26, 1969 (Petitioners’ Appen-
dix D, p. 56a), and also order adopted by the Court of Ap-
peals of the Fifth Circuit on August 28, 1969, amending the
judgment of July 3, 1969 (Petitioners’ Appendix D, p. 71a).
The judgment and mandate of the Court of Appeals
dated July 3, as amended on July 25, reversed the action of
the District Court which had found that the plans adopted
by each school board under Jefferson-type decrees were
operating in conformity with the teachings of Green,
Monroe and Raney. The judgment and mandate did not
approve any plan but set up a time schedule ending Sep-
tember 1, 1969, for formulation, submission and approval of
such plans. The mandate required a hearing on such plans
by the District Court and the adoption of a plan conform-
ing to Constitutional standards, all to be accomplished on
or before September 1, 1969.
As set out in the “Findings of Fact and Conclusions of
Law by the District Court” (Petitioners’ Appendix D, p.
56a), the Attorney General on behalf of the United States
and the Secretary of Health, Education and Welfare, in-
troduced evidence demonstrating that it was impossible for
the original schedule to be met. The Findings of Fact by
the District Court were affirmed by the Court of Appeals.
16
4. The Divergent Plans of Desegregation Filed by HEW
and the School Districts Have Not Been Considered
or Approved by Either the District Court or the
Court of Appeals
No new plan of desegregation for any one of the dis-
tricts involved in the twenty-five consolidated cases has
been considered by either the District Court or the Court
of Appeals. The Secretary of Health, Education and Wel-
fare filed in the Court of Appeals a formal motion (Ex-
hibit C hereto, p. 35e) with his letter attached (sup-
ported by the evidence in this proceeding). He requested
time to develop and present to the District Court on or be-
fore December 1, 1969, acceptable plans of desegregation.
The defendant districts filed proposed plans on or about
August 11, 1969, reserving all of their rights under the pend-
ing Motion for Rehearing En Banc, their rights to file Peti-
tion for Writ of Certiorari, and other procedural rights.
They alleged in their joinder in the motion of the Attor-
ney General that it was “impossible to work out a plan
satisfactory to either the Court, the defendants or the plain-
tiff” in the time allowed (Exhibit D hereto, p. 43e).
No hearing has been had by either the District Court
or the Court of Appeals upon the merits of any plan of
desegregation. Hence, if the Motion and Petition are
granted, the new plans to be filed by the Secretary of
Health, Education and Welfare after full and complete in-
vestigation, study in depth, and consultation with the school
districts, will not be before the Court; the original plans
filed by the Secretary have not been considered by either
the District Court or the Court of Appeals. The plans filed
by the school districts have not been considered by the
District Court or the Court of Appeals. There is nothing
to be put into effect in these school districts under the teach-
ings of Brown, Green, Monroe and Raney.
17
If the Motion and Petition are granted, it would sim-
ply reinstate an impossible time schedule, deny the Secre-
tary of Health, Education and Welfare and the Department
of Justice an opportunity to carry out the procedures out-
lined in the motion and evidence presented by them and
deny the school districts both a hearing by the District
Court and the opportunity to collaborate with HEW in de-
veloping terminal plans.
5. Statement of Facts
A. The Court of Appeals proceeded in these cases
with all possible dispatch. All districts have been operat-
ing under model Jefferson decrees and were in compliance
with such decrees. After the decision in Green, plaintiffs
filed motions in the District Court for supplemental re-
lief, seeking the formulation and implementation of de-
segregation plans other than freedom-of-choice. The Dis-
trict Court found that these school districts were in com-
pliance with Green and denied these motions by order
entered on or about May 16, 1969 (Appendix D to Petition,
pp. la-22a). After notices of appeal and preliminary
steps the following transpired:
(1) On June 23, 1969, the United States of America
filed Motion for Summary Reversal and Motion
to Consolidate Appeals.
(2) On June 23, 1969, the Clerk of the Court of Appeals
mailed a letter stating the motion of the United
States of America would be presented on July
3, together with any response filed prior to that
date by opposing counsel.
(3) On June 25, 1969, the Court of Appeals issued a
directive to counsel of record (Appendix B to
Petition, p. 24a) that the Court would hear
oral argument on these cases “on motion for sum-
mary reversal and the merits in all of the cases”.
(4)
18
(All emphasis in this response is ours unless
otherwise indicated.) This directed that the argu-
ment would be held in New Orleans beginning at
9:30 A.M. July 2, 1969, and any memoranda or
responses must be filed with the Clerk by noon,
July 1, 1969. The letter further recited the Court
had taken notice of the District Court’s order with
respect to the record; but, since appeal was being
expedited on the original record, the United States
Attorney should make arrangements with the Dis-
trict Clerk to transmit to the Clerk of the Court
of Appeals the entire record of the District Court
so that the same would be available to the Court
if needed during the argument and summation.
It was further stated that the Court recognized
that “this is a huge record involving a large num-
ber of parties and matters of great public interest
and importance”. This letter was received by
counsel on June 25 and June 26.
The directive of the Court of Appeals contained
the following finding by the Court (Appendix B
to the Petition, p. 26a):
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 based thereon. To the extent that
appellants, private or government, assert that
any one or more specific fact findings (as dis-
tinguished from mixed questions of law and
fact) are clearly erroneous, the appellants con-
cerned shall xerox copies of pertinent excerpts
of the transcript of the evidence for use by
the Judges (4 copies) which may be made
available during argument.
No party filed xerox copies of pertinent excerpts
from the record asserting that any findings of fact
of the District Court were erroneous.
19
(5) On July 2, 1969, oral argument was presented and
was concluded before the Court adjourned for
lunch.
(6) On July 3, 1969, the judgment of the Court of Ap-
peals was entered. It was amended, ex mero
motu, July 25, 1969.
B. The schedule provided in the Appeals Court Order
of July 3 (as amended July 25)required immediate ac-
tion, without time for study by HEW or collaboration
with the school districts.
The Appeals Court Order of July 3 (later amended
on July 25) provided (Appendix B to Petition, pp. 28a
and 38a):
(1) The District Court should forthwith request that
educators from HEW collaborate with the defend-
ant school boards in the preparation of plans to
disestablish the dual school systems in question
(the District Court so ordered on July 5, 1969).
(2) Each board and HEW should present to the Dis-
trict Court before August 11 an acceptable plan of
desegregation for each district.
(3) If an agreed plan was submitted by a board and
HEW on August 11, the plan would be approved
unless within seven days a party filed objections
grounded on Constitutional standards.
(4) If no agreement was reached, HEW should file
its plan by August 11 and the parties would have
ten days within which to file objections or sug-
gested amendments. The District Court would
hold a hearing and enter a plan by August 31 which
conformed to Constitutional standards.
|
|
20
(5) A plan for each school district was required to be
entered not later than September 1, 1969, to be
effective for the beginning of the 1969-70 school
year.
On July 15, pursuant to this expedited plan of action,
educators employed by HEW met at Mobile, Alabama, to
plan their collaboration with the thirty-three districts em-
braced in the orders of the Court of Appeals and the Dis-
trict Court (Exhibit B, pp. 27e-28e).
C. The timetable fixed by the Court of Appeals
(upon recommendation of the Department of Justice)
when placed in operation was found by HEW to be im-
possible of effective execution.
Jessie J. Jordan is an experienced educator who be-
lieves a unitary school system is superior to a dual school
system. He is Senior Program Officer for Title Four in
the United States Office of Education in the Atlanta region
and coordinated the overall effort of planning for the thirty-
three Mississippi school districts and reviewed all of the
plans. (Exhibit B hereto, pp. 25e-26e).
Between July 16 and July 23 these teams made their
first trip into Mississippi. Mr. Jordan testified that on
this first trip “. . . the teams gathered statistical informa-
tion on enrollment, certain building information, pupil lo-
cation maps where available, school location maps, visita-
tion of schools and tried to get a general feeling and input
from the school system.” (Exhibit B, p. 28e).
On July 23, all teams returned to Atlanta and worked
on “. .. trying to put together some tentative recommenda-
tion for the school system.” (Exhibit B, p. 28e).
Between July 29 and extending through August 1,
the teams made a second trip into Mississippi. Mr. Jordan
21
said: “On this trip the teams met with the school systems
the second time to present some of their recommendations
and to try to get input from the school systems.” (Ex-
hibit B, p. 28e).
From August 2 through August 6, all teams were in
Atlanta formalizing the plans upon which they were work-
ing. Mr. Jordan testified:
After they had been formalized, duplicated and so
forth, a third trip was made into Mississippi from
the 7th through the 9th at which time the plans were
formally presented to the superintendent or the board
or whoever the superintendent wished present.
On August 11 such HEW plans were filed with the
Court. Mr. Jordan further testified:
The teams were working on a very tight schedule
and each team had to, depending on the size of the
school system, had from two to six districts to cover
which meant, I believe, I'm not absolutely positive
of this, but I would say that the average time in a
school district on the first visit was a day and a half.
The average on the second visit, maybe a half a day.
Because of the lack of time to confer and collaborate,
none of the thirty-three defendant districts reached an
agreement with HEW.,
On August 11 each defendant district also filed a
separate plan with the District Court.
Prior to August 19, Mr. Jordan reported voluntarily
and on his own initiative by telephone to his superior,
Dr. Anrig, that in his expert judgment more time was re-
quired for development and implementation of plans for
desegregation in the subject school districts.
22
On or before August 21, the districts filed objections
to the plans of HEW and attached affidavits containing
testimony supporting their own plans and criticizing the
plans of HEW. No objections to the school district plans
were thus filed by the plaintiff or invervenors.
On August 26, after the hearings held August 21
and 22, the District Court filed its Findings of Fact and
Conclusions of Law and recommended that the Court
of Appeals grant the relief sought by the United States
of America (Appendix to the Petition, p. 56a).
On August 28 the Court of Appeals affirmed the
Finding of Fact and Conclusions of Law of the District
Court, after considering the record of the August 21st
hearing and in light of the full record in these cases. It
sustained the motion of the United States of America and
amended its previous judgment as herein above set forth
(Petitioners’ Appendix, p. 71a).
In addition to Findings of Fact based upon the testi-
mony of Mr. Jordan, the District Court found as follows
upon the testimony of Mr. Howard O. Sullins, another
witness for the United States and Program Officer for the
United States Office of Education in Atlanta (Petitioners’
Appendix D, pages 67a-68a):
The witness was of the opinion and the Court finds,
‘that in order to formulate and implement successful
and effective desegregation plans, the additional time
requested will be required. This witness suggested ad-
ditional programs which should be undertaken to ef-
fect a smooth, workable conversion to a completely
unitary school system, such as a workshop for teachers
and pupils to discuss potential problems of desegre-
gation and their solution, as was done in other dis-
tricts in which this witness worked, including some
in South Carolina. These committees of students
and teachers must meet with experts to obtain more
nae ET _s
23
knowledge on how to solve problems that will arise.
The witness stated that all defendant school districts
with which he dealt cooperated fully with his team
but that his team was mot authorized to negotiate
any differences with the school boards. The first time
that the defendant school districts saw the HEW plan
in written form was on August 7, 1969, at which time
there could be no more collaboration from HEW'’s
standpoint, that is, there could be no further change
in the HEW plan which was filed subsequently in
this Court in all these school district cases.
Even if the motion of the Government for addi-
tional time had not been filed in this case with all
due deference, it is extremely doubtful if this Court
could have physically complied with the mandate of
the United States Court of Appeals for the Fifth Cir-
cuit, because of the devastating effect of super Hurri-
cane Camille, which this Court does not have to take
judicial notice of, because it has personal and actual
knowledge thereof. This deadly, gigantic ‘“hurricane-
tornado” struck not only the Mississippi Gulf Coast
where the undersigned Judges reside, but also caused
great damages to many other parts of the State of
Mississippi, including many of the areas in which the
defendant school districts are located.
We embody in this Response by reference the detailed
refutation of erroneous and unfounded statements in the
original Petition which we set forth in the Cross-Petition
for Writ of Certiorari.
6. The Order Entered by the Court of Appeals on
August 28th Is Based upon a Finding of Fact, Sup-
ported by the Record, Made by Both the District
Court and Court of Appeals, and Should Not Be
Disturbed
As set out above, the amendment of August 28 permits
the consideration by the District Court of new plans de-
veloped by HEW and the school districts during the period
24
from August 31 to December 31st. At the same time, the
Court required: (1) a program of faculty orientation for
conversion from a dual to a unitary system to be adopted
by October 1; (2) further study for better plans and more
efficient implementation; (3) additional joint study by
HEW and local boards looking toward improvement of and
agreed plans of desegregation; and (4) a condition that
plans submitted and approved call for significant actions
to disestablish the dual school system during the Septem-
ber 1969-June 1970 school year.
Upon the evidence, including the testimony of experts
presented by the United States, the District Court found
(Petitioners’ Appendix, p. 69a):
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
recommendations 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, 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 Govern-
ment 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 elim-
ination 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 Amended Order” as revised in this hearing,
which was filed by the United States and attached to
its Amended Motion filed here and in the Court of Ap-
peals.
25
The Court of Appeals reached a similar factual con-
clusion as follows (Petitioners’ Appendix, p. 76a):
Following this the Court has received and considered
the findings of fact, conclusions of law and recom-
mendations of the District Court, the record of the
hearings, and the briefs and arguments of counsel, pro
and con. On the basis of the matter set forth herein,
the Court amends its order further as follows: [Here
follows the amendment of August 28.]
The present petition seeks to vacate the August 28th
amendment of the judgment, even though the District
Court and the Court of Appeals have found as a fact that
action upon the time schedule previously fixed would
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. We re-
spectfully submit that this is not required by Brown v.
Board of Education, 1055, 349 11.8. 204, 75 S.Ct. 753, 99
L.Ed. 1083, by Green v. County School Board, 1968, 391
U.S. 430.
The Supreme Court has consistently declined to take
such action. The Linseed King, 1932, 52 S.Ct. 450, 285 U.S.
502, 76 L.Bd. 903; J. 1. Case Co. v. Borak, 1964, 84 S.Ct.
1554, 377 U.S. 426, 12 L.Ed. 423; Great Atlantic & Pacific
Tea Co. v. Supermarket Equipment Corp., 1950, 71 S.Ct.
127, 340 U.S. 147, 95 L.Ed. 162; Berenyi v. District Director,
1967, 87 S.Ct. 666, 335 U.S. 630, 17 L.Ed. 656. In Meredith
v. Fair, supra, Mr. Justice Black said:
I further agree with the Court of Appeals that there
is very little likelihood that this Court will grant
certiorari to review the judgment of the Court of
Appeals, which essentially involves only factual is-
sues. (9 L.Ed.2d, p. 44).
26
The Supreme Court is reluctant to interfere with fac-
tual decisions of the lower Courts. United States Alkali
Export Ass’n v. United States, 1945, 325 U.S. 196, 89 L.Ed.
1554. In Cumberland Telephone & Telegraph Co. v. Loui-
siana Public Service Commission, 1922, 67 L.Ed. 217, the
Supreme Court said:
But the court which is best and most conveniently
able to exercise the nice discretion needed to deter-
mine this balance of convenience is the one which has
considered the case on its merits, and therefore, is
familiar with the record. (67 L.Ed., p. 224).
The action desired, if the present petition is granted,
is easily distinguishable from that in Lucy v. Adams, supra,
wherein the Supreme Court was asked to implement the
findings of fact of the District Court (134 F.Supp. 235).
In so doing the Supreme Court was not called upon to
reverse or set aside the findings of fact of the lower Court,
as would be the case if the present motion were granted.
To the contrary, this matter falls within the teaching
of Brown v. Board of Education, supra, Cooper v. Aaron,
1958, 358 U.S. 1, and Green v. County School Board, supra,
that the District Courts can best perform the necessary
judicial appraisal for the implementation of desegregation
of schools.
7. Vacating the Amendment of August 28th Will Ac-
complish No Appreciable Expedition of Action in
These School Suits and Would Be Detrimental to
the Interest of All Students
If the mandate which was in effect prior to August
28th were to be reinstated at this time, the original time-
table would have to be revised to permit the District
Court to carry out its function. All that could be gained
from reinstating such mandate would be a hurried entry
at some future date of partially completed and admittedly
27
inadequate plans, which future date might approach closely
the December 1st to December 31st dates set in the amend-
ment of August 28th. However, such order specifically
requires ‘significant action toward disestablishment of
the dual school system during the school year September,
1969-June, 1970.”
The effect of reinstating the earlier order of the
Court of Appeals would be to direct the District Court to
hold hearings for each district and to enter new plans for
desegregation (under whatever new timetable the Court
of Appeals would deem appropriate). The only plans
before the District Court are those submitted by HEW
and those submitted by the school districts. The District
Court is now confronted with the opinion of Secretary
Finch that the plans HEW prepared should not be entered
or implemented at this time, as the Secretary stated:
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 administrative and logistical difficul-
ties which must be encountered and met in the ter-
ribly short space of time remaining must surely in
my judgment, produce chaos, confusion, and a cata-
strophic 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.
8. The Petition for Writ of Certiorari Being Directed
to the Amendment of a Judgment, the Same Should
Be Dismissed or, in the Alternative, Granted As
Being Applicable to the Entire Judgment
Under the statutes and the rules of this Court, a Writ
of Certiorari will not lie to review the amendment of a
judgment entered by a Court of Appeals. The statutes
28
were adopted and the rules were promulgated to permit
the review of any judgment of a Court of Appeals. A
piecemeal review of one or more amendments to a judg-
ment cannot be sustained. Hence, this Petition for Writ of
Certiorari should either be dismissed, or, in the alterna-
tive, should be construed to be a petition to bring before
this Court the entire judgment entered on July 3, 1969,
including the amendments of July 25, 1969 and August 28,
1969, together with all matters therein involved.
As will be set forth in the Cross-Petition for Writ of
Certiorari herein filed, if such review is granted these re-
spondents and cross-petitioners will move for an expedited
hearing consistent with the full record being filed with
this Court, sufficient time being allowed for preparation
of appropriate appendices, and for full, complete and
proper briefs by all parties.
For the foregoing reasons the respondents respect-
fully submit that their objections to the Petition for Writ
of Certiorari herein filed and the Motion to Advance the
same should be sustained and both such Petition and Mo-
tion should be denied.
FE
CROSS-PETITION FOR WRIT OF CERTIORARI
And now having fully responded to and answered the
Petition for Writ of Certiorari herein filed and the Motion
to Advance the same, all of the respondents named in the
caption hereto (other than the United States of America)
file this, their Cross-Petition for Writ of Certiorari under
Rule 21 of the Rules of this Court against the Petitioners
and the United States of America, subject to the reserva-
tion of rights hereinafter set forth. Cross-Petitioners adopt
all of the allegations above set forth in their Response and
make such allegations a part hereof by reference.
29
Cross-Petitioners pray that a Writ of Certiorari issue
to review the judgment of the United States Court of
Appeals for the Fifth Circuit entered on July 3, 1969, as
modified by order dated July 25, 1969, and by order dated
August 28, 1969. Said judgment of the Court of Appeals
of the Fifth Circuit is the same judgment which is the
subject of the Petition for Writ of Certiorari filed by the
Petitioners.
1. Judgment and Opinion Below
The original judgment with the opinion appended
thereto was rendered on July 3, 1969 (Petitioners’ Ap-
pendix B, page 28a). Said judgment has been amended by
order entered by the said court on July 25, 1969 and later
amended by order entered by the said court on August 28,
1969. Neither of said orders has been reported. As copies
of the said judgment and the said amendments are at-
tached to the Petition for Writ of Certiorari herein filed,
the same are embodied herein by reference and copies are
not attached to this Cross-Petition for Writ of Certiorari,
under the provisions of Supreme Court Rule 21.
2. Jurisdiction
The judgment of the United States Court of Appeals
for the Fifth Circuit was dated and entered on July 3,
1969. Opinion and mandate were issued on that date.
Such judgment was amended by order entered July 25,
1969 and by order entered August 28, 1969. Petition for
Rehearing En Banc was filed in the said Court of Appeals
in accordance with and within the time limited by the
Federal Rules of Appellate Procedure, having been filed
on July 16, 1969.
Petition for Rehearing En Banc is still pending and
undisposed of by the said Court of Appeals. A copy of
30
said Petition for Rehearing En Banc is a part of this
record in the Supreme Court and pertinent extracts there-
from have been attached as Exhibit A to the above Re-
sponse filed herein by these Cross-Petitioners. Said Pe-
tition for Rehearing is made a part hereof by reference.
Jurisdiction of this Court is invoked pursuant to the
provisions of Title 28 U.S.C. § 1254 (1).
3. Reservation of Rights
The Cross-Petitioners reserve their objections filed
to the original Petition for Writ of Certiorari and to the
Motion to Advance the same. This Cross-Petition for Writ
of Certiorari is filed to protect the rights of Cross-Peti-
tioners and to assure that if a Writ of Certiorari is issued
it will bring the entire matter before this Court as dis-
tinguished from one amendment to one portion of the
judgment of the Court of Appeals. It is also filed taking
cognizance of the fact that the Petition for Rehearing En
Banc is under consideration by the Court of Appeals of
the Fifth Circuit and that should such Petition be over-
ruled during the pendency of this proceeding, Rule 20
would become inapplicable as of that date. The Cross-
Petitioners further reserve their objection to the original
Petition for Writ of Certiorari on the ground that it at-
tempts to obtain a review of an amendment to a judgment
and not of the entire judgment. It can only be sustained
if construed to be a Petition for Writ of Certiorari to re-
view the judgment of July 3, 1969, as amended on July
25, 1969 and August 28, 1969.
4. Questions Presented for Review
(1) Is a freedom of choice plan a proper vehicle to
set up and maintain schools conforming to all Constitu-
tional guarantees, where such plan is properly formulated
31
complying with all requirements laid down by the courts,
administered fairly and without discrimination, and which
permits truly free and uninfluenced choice by students and
their parents? If so, what are the vestiges of a dual sys-
tem which must be eradicated in order to maintain a
freedom of choice plan?
(2) Do the decisions of the Court of Appeals of the
Fifth Circuit construing, implementing and broadening
Jefferson I and Jefferson II, or any other decisions thereof
applying Section 1 of the Fourteenth Amendment to the
administration of public schools, conflict with the decisions
of other Courts of Appeal on the same question?
(3) Does Section 1 of the Fourteenth Amendment
require enforced integration of the public schools as dis-
tinguished from prohibiting enforced segregation thereof
to the extent that any plan is unconstitutional under which
there are schools composed of students of only the Negro
race, or only a small fraction of Negroes are enrolled in
formerly white schools, or there are schools with faculties
composed chiefly of teachers of one race?
(4) Has the Court of Appeals of the Fifth Circuit in
Hinds County and other cases announced by various panels
applied Section 1 of the Fourteenth Amendment to the
administration of public schools so that it has decided a
Federal question in a way which conflicts with applicable
decisions of this Court, or so as to determine important
questions of Federal law which have not been, but should
be, settled by this Court?
(5) Have the Cross-Petitioners been accorded due
process of law or did the Court of Appeals of the Fifth
Circuit err in reversing and remanding the consolidated
cases in Hinds County without an opportunity for the
32
record to be considered, for full briefs to be filed, and
for the Court to consider the differing local situations and
differing attainments in the districts involved?
5. Constitutional Provisions and Statutes Involved
The following are the Constitutional provisions and
statutes involved with citation of the volume and page
where they may be found in the official edition:
Fourteenth Amendment to the Constitution of the
United States,
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immu-
nities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this
article.
CIVIL RIGHTS ACT OF 1964, SUBCHAPTER 1V.
PUBLIC EDUCATION
Section 401 (b) of the Civil Rights Act of 1964, being
Pub.L. 88-352, Title IV, § 401, July 2, 1964, 78 Stat. 246,
and appearing as Title 42, Section 2000c-(b), U.S.C.A.:
“Desegregation” means the assignment of students to
public schools and within such schools without regard
to their race, color, religion, or national origin, but
“desegregation” shall not mean the assignment of stu-
dents to public schools in order to overcome racial im-
balance.
33
Section 410 of the Civil Rights Act of 1964, being Pub.
L. 88-352, Title IV, § 410, July 2, 1964, 78 Stat. 249, and
appearing as Title 42, Section 2000c-9, U.S.C.A.:
Nothing in this subchapter shall prohibit classification
and assignment for reasons other than race, color, re-
ligion, or national origin.
Section 407 of the Civil Rights Act of 1964, being Pub.
L. 88-352, Title IV, § 408, July 2, 1964, 78 Stat. 249, appear-
ing as Title 42, Section 2000c-6 (a), U.S.C.A.:
. . . provided that nothing herein shall empower any
official or court of the United States to issue any order
seeking to achieve a racial balance in any school by
requiring the transportation of pupils or students from
one school to another or one school district to another
in order to achieve such racial balance or otherwise
enlarge the existing power of the court to insure com-
pliance with constitutional standards.
CIVIL RIGHTS ACT OF 1964, SUBCHAPTER V.
FEDERALLY ASSISTED PROGRAMS
Section 604 of the Civil Rights Act of 1964, being Pub.L.
88-352, Title VI, § 604, July 2, 1964, 78 Stat. 253, and ap-
pearing as Title 42, § 2000d-3, U.S.C.A.:
Nothing contained in this subchapter shall be con-
strued to authorize action under this subchapter by
any department or agency with respect to any employ-
ment practice of any employer, employment agency, or
labor organization except where a primary objective
of the Federal financial assistance is to provide em-
ployment.
CIVIL RIGHTS ACT OF 1964, SUBCHAPTER VI.
EQUAL EMPLOYMENT OPPORTUNITIES
Section 702 of the Civil Rights Act of 1964, being
Pub.L. 88-352, Title VII, § 702, July 2, 1964, 78 Stat. 255,
and appearing as Title 42, Section 2000e-1, U.S.C.A.:
34
This subchapter shall not apply to an employer with
respect to the employment of aliens outside any State,
or to a religious corporation, association, or society
with respect to the employment of individuals of a
particular religion to perform work connected with
the carrying on by such corporation, association, or so-
ciety of its religious activities or to an educational in-
stitution with respect to the employment of individuals
to perform work connected with the educational ac-
tivities of such institution.
In addition to the above statutes directly applicable
to these suits, the Congressional intent concerning these
matters has been expressed repeatedly since 1964. An il-
lustration thereof is Public Law 90-557, 82 Stat. 969, which
included the current appropriations for the Departments
of Health, Education and Welfare and Labor. The section
relating to elementary and secondary education, contain-
ing the following clear prohibition is as follows:
No part of the funds contained in this Act may be used
to force bussing of students, abolishment of any school
or to force any student attending any elementary or
secondary school to attend a particular school against
the choice of his or her parents or parent in order to
overcome racial imbalance.
6. Preliminary Statement
Due to the limited time involved it has been impossible
to obtain and file with the Clerk of this Court a transcript
of the entire record of these nine consolidated cases,
which the original Petitioners failed to do. However, for
the purposes of this Response and Cross-Petition, we have
filed under Rule 21.4 transcripts and other portions of the
record originally made in the District Court necessary to
give this Court a full understanding of the necessity of a
full review of the entire record upon which the judgment of
July 3, 1969, as amended, is based, which, upon appeal, be-
35
came a part of the record of the Court of Appeals. These
portions of the record are illustrative of the facts proved
in the District Court and involved in the judgment of the
District Court dated May 16, 1969, and of the Court of Ap-
peals rendered July 3, 1969.
We have chosen the transcript of proceedings in three
typical cases:
(1) John Barnhardt, et als. v. Meridian Separate
School District, et als., Civil Action No. 1300. Meridian is
the largest school district among the fourteen included in
the nine suits now before this Court. See Note 1 on pages
2 and 3 of the Petition for a listing of these districts, in
addition to the listing contained in the caption of this plead-
ing.
(2) Charles Killingsworth Vv. The Enterprise Con-
solidated School District, Civil Action No. 1302, which is
one of the smallest school districts now before this Court.
(3) Roy Lee Harris, et als. v. Yazoo County Board of
Education, Yazoo City Separate Municipal School District
and Holly Bluff Line Consolidated School District, Civil
Action No. 1209. These districts are about the average size
of those now before this Court.
(4) United States v. Hinds County School Board, et
als., Civil Action No. 4075. Under the consolidation of the
twenty-five cases, the testimony of the educators and ex-
perts in the Hinds County case was adopted by and be-
came a part of the record of the remaining twenty-four
cases.
(5) We also discuss the facts appearing in the rec-
ord of the United States District Court and the Court of
Appeals for the Fifth Circuit in the suit of United States
v. Natchez Special Municipal School District, et als. This
36
suit is not before this Court but it is typical of many of the
other school districts not involved in the Petition for Writ
of Certiorari. It is included because of the broad and in-
accurate statements contained in the Petition for Writ of
Certiorari. The testimony, the reports originally filed in
the District Court and the other judicial proceedings therein
are typical of the twenty-five consolidated cases. If this
Petition for Writ of Certiorari is granted, we will more fully
and completely give to this Court all facts and law neces-
sary for a decision in this case.
7. Statement of Facts
Because of the necessity of considering the facts in the
light of the decisions of this Court and the Courts of Appeal
of the various Circuits, we will call the Court’s attention
to the facts which are pertinent upon this Cross-Petition
for the Issuance of a Writ of Certiorari after discussing the
applicable judicial decisions. See page 84e of this Cross-
Petition.
8. Argument Amplifying the Reasons Relied Upon for
Allowance of the Cross-Petition for Writ of Cer-
tiorari
(1) The school districts have followed their Con-
stitutional duty as announced and as changed
from year to year by the Supreme Court and
the Court of Appeals of the Fifth Circuit. The
districts are now characterized as “reluctant
and recalcitrant” because total compulsory in-
tegration removing or substantially diminishing
racial imbalance has not been already achieved
“after 15 years”
“Line upon line, precept upon precept, here a little,
there a little” has been the theme of the integration ac-
tivists. They have said so often that the delay from 1954
to 1969 is solely caused by “reluctant and recalcitrant school
37
boards” that some of the courts have been persuaded to
accept that allegation. Nothing could be further from the
truth. This discussion will be limited to school districts
within the Fifth Circuit for brevity and clarity.
The Court of Appeals of this Circuit first realized the
enormous problems facing the administrators of schools in
this Circuit, as well as in other Circuits. They carefully
followed the admonition of the Supreme Court that the
process of desegregation should be carried out “with all de-
liberate speed”. The officials of the school districts con-
formed to these requirements, many beginning prior to the
decisions mentioned below of February 9, 1961. One illus-
tration is that discussed in this brief of the Meridian
School District, which began its process leading to desegre-
gation in the year 1954.
The present chaos and confusion which exists has
arisen chiefly through the rendition of Jefferson I on De-
cember 29, 1966, its confirmation by the Court of Appeals
en banc on March 29, 1967, writ of certiorari denied on Oc-
tober 9, 1967. This has been correctly characterized by
the Court of Appeals of the Sixth Circuit in Monroe v.
Board of Commissioners of City of Jackson, Tennessee,
380 F.2d 955, rendered July 21, 1967, as follows:
We are asked to follow United States v. Jefferson
County Board of Education, 372 F.2d 836 (CA 5, 1966),
which seems to hold that the pre-Brown biracial states
must obey a different rule than those which desegre-
gated earlier or never did segregate. This decision de-
crees a dramatic writ calling for mandatory immediate
integration. . ..
However ugly and evil the biracial school systems ap-
pear in contemporary thinking, they were, as Jeffer-
son, supra, concedes, de jure and were once found law-
ful in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138,
41 L.Ed. 256 (1896), and such was the law for 58 years
38
thereafter. To apply a disparate rule because these
early systems are now forbidden by Brown would be
in the nature of imposing a judicial Bill of Attainder.
Such proscriptions are forbidden to the legislatures of
the states and the nation—U. S. Const., Art. I, Section
9, Clause 3 and Section 10, Clause 1. Neither, in our
view, would such decrees comport with our current
views of equal treatment before the law. . ..
When the Court of Appeals of this Circuit in Jeffer-
son II overruled eight cases decided by it over a long period
of years, announced a dramatic and revolutionary writ
contrary to the Constitutional principles announced by the
other Circuits and those elucidated by this Court, the pub-
lic school systems within this Circuit began a deteriora-
tion which can only be stopped by an examination by this
Court of the decisions now destroying that system, followed
by a clear statement of the rules which must be followed
and the results obtained in order that the students in our
public schools and their parents may receive equal treat-
ment under the law and may be truly free.
It is hard to realize that only two school years have
elapsed since Jefferson II, being the school years 1967-1968
and 1968-1969. In fact, the school districts here and hun-
dreds of other school districts throughout the Fifth Circuit
had accepted the meaning ascribed to “total desegregation”
by the Court of Appeals of this Circuit, i.e., the extension
of a true, reasonable and proper plan of freedom of choice
to every grade in the school system. This had been varied,
as time passed. Action required was to change from a plan
of one-grade-a-year to a plan of two-grades-a-year, then a
plan of four-grades-a-year, and then full extension of free-
dom of choice to all grades with the school year beginning
in 1967. At no time prior to March 29, 1967 (made certain
on October 9, 1967) had these school officials been told by
their Court of Appeals that a plan which “promises realisti-
39
cally to work now” and an extension of “total desegrega-
tion” to their schools meant anything more than removal
of the true vestiges of a dual school system and the
formulation and implementation of a true freedom of
choice plan.
The Secretary of Health, Education and Welfare has
stated his opinion that if the timetable set up in the judg-
ment of the Court of Appeals of the Fifth Circuit dated
July 3, 1969, were to be enforced it would:
. . produce chaos, confusion and catastrophic ed-
ucational setback to the 135,700 children, black and
white alike, who must look to the 222 schools of
these 33 school districts for their only available
educational opportunity.
This belief is supported by the chaos and confusion
now existing in the hundreds of school districts through-
out the Fifth Circuit. That condition has resulted from
repeated and unheralded changes made by the Court of
Appeals of this Circuit in its “guidelines” and “directives”,
which disrupted the educational process. Indeed, Bedlam
and the Tower of Babel? were each a “Sea of Tranquility”
compared to the present state of our public schools.
Until Jefferson I was handed down on December 29,
1966, was confirmed by Jefferson II upon a rehearing
en banc on March 29, 1967, with certiorari denied October
9, 1967, the school districts had been working under the
commands of Brown I, Brown II, Cooper and their prog-
eny. The very first sentence under the “STATEMENT”
in the Petition for Writ of Certiorari is in direct conflict
with the facts shown by this record. This is also true con-
2. Bedlam was a ‘“madhouse” erected in the edge of
London in the early sixteenth century, from which the use of
the present term has been derived. All are familiar with the
Biblical account of what occurred during the erection of the Tower
of Babel.
40
cerning the statement at the bottom of page 3 and top of
page 4, and the statement on page 17 of the Petition for
Writ. We will not attempt to detail or refute each state-
ment, most of which are based upon generalized opinions
of the writer. However, for the convenience of the Court,
we quote these three particular statements:
These cases test how much longer Negro school-
children in 14 substantially segregated school dis-
tricts in Mississippi 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. .
These freedom of choice plans did not work to dis-
establish the dual school system. Indeed, the token
results achieved by these plans were even less than
the results held insufficient in Green. . . .
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, how-
ever circumscribed, will be treated as an invitation
for ready ingenuity to exploit.
These statements necessarily assume that “all deliber-
ate speed” was not of judicial origin. As demonstrated be-
low, the Court of Appeals held as late as 1965 and 1966
that extension of “freedom of choice” at the rate of four
grades a year resulted in the school district being “fully
desegregated”. The record shows that freedom of choice
has already been extended to every grade in every school
district here.
We briefly trace the development of the rules laid
down by the Court of Appeals of the Fifth Circuit under
Brown I, Brown II, Cooper, Goss, Watson, Green, Monroe,
Raney, Carr and other cases. It is of vital importance to
remember that “hindsight is better than foresight”. The
41
Petitioners are urging that there be imposed “a judicial Bill
of Attainder” against school officials throughout the na-
tion and particularly within this Circuit.
Looking back over the years, we see that the over-
ruling of Plessy v. Perguson, 163 11.8. 537, 16 S.Ct. 1138,
41 L.Ed. 256 (1896), and the myriad of supporting cases
has been broadened rather than narrowed. However, the
Court will take judicial notice of the fact that when there
is a revoluntionary departure from Constitutional con-
struction which had been accepted for many generations,
it is reasonable for all citizens to await the gradual develop-
ment of decisional law in order to determine the exact
and true meaning of the broad principles originally an-
nounced.
On Februnry 9, 1961, after Brown 1, Brown II,
Cooper and succeeding cases clarified the new Constitu-
tional principles, a group of cases was decided by the Court
of Appeals of the Fifth Circuit. These cases were St.
Helena Parish School Board, et al. v. Hall, 287 F.2d 376;
East Baton Rouge Parish School Board v. Davis, 287 F.2d
380; Louisiana State Board of Education, et al. v. Allen,
et al., 287 F.2d 32; and Louisiana State Board of Educa-
tion, et al. v. Angel, et al., 287 F.2d 33. These cases enjoined
the school boards from requiring racial segregation in public
schools but did not set up any time limit or schedule of
“desegregation”.
Then on July 24, 1962, the Fifth Circuit handed down
its decision in Augustus v. Board of Public Instruction of
Escambia County, Florida, 306 F.2d 862. In that decision
the Court found that the Board must amend its plan to
provide for one grade per year desegregation.
Again in August of 1962 the Court of Appeals of the
Fifth Circuit in Bush v. Orleans Parish School Board, et al.,
42
308 F.2d 491, held that a policy of desegregation of one
grade per year was proper and Constitutionally sufficient.
The District Court had earlier withdrawn an order for
desegregation of the first six grades by the fall of 1962.
The Board presented a long-range plan providing for
a grade a year desegregation and for redistricting of at-
tendance areas in future years. This long-range plan
was approved by the Court.
Almost one year later in June, 1963, in Calhoun, et
al. v. Latimer, et al., 321 F.2d 302, the Court of Appeals
found that a desegregation plan earlier approved provid-
ing for one grade a year desegregation was operating in
good faith and with substantial progress and that school
officials were following the letter and the spirit of the
plan. The Court found that plaintiff’s objection to the
feature of the plan which allowed the board to continue
to assign pupils to the same school they formerly attended
but with the right to transfer given those in the desegre-
gated grades was unjustified. However, the Supreme
Court reversed on May 25, 1964, 377 U.S. 263, 12 L.Ed.2d
288, 84 S.Ct. 1235, without fixing the timing of further
desegregation.
On January 10, 1964, the Fifth Circuit decided Board
of Public Instruction of Duval County, Florida, et al. v.
Braxton, 326 F.2d 628. Here the Court approved a grade
a year desegregation plan beginning with the first grade
for the 1962-63 school year to be achieved by the use of a
single geographical school district in the desegregated
grades by permitting students in those grades to apply for
admission to the school of their choice. This plan was ap-
proved but the Court noted that it doubted that it would
be necessary for twelve years to pass to accomplish deseg-
regation. and noted that desegregation plans could be
speeded up. The Court said that problems related to ad-
43
ministration arising from the physical condition of the
school plants, school transportation system and personnel
could be considered.
Three months later, on March 20, 1964, the Fifth Cir-
cuit decided the case of Gaines v. Daugherty County Board
of Education, et al., 329 F.2d 823. This case modified a
plan submitted by the Board of Education by requiring
the first two grades and the vocational schools to be deseg-
regated in the first year. The Court postponed a de-
cision on whether or not one grade per year desegregation
was adequate pending a decision of the United States Su-
preme Court.
On June 18, 1964, the Fifth Circuit handed down its
decision in Armstrong v. Board of Education of the City of
Birmingham, 333 F.2d 47, where the Court required deseg-
regation to proceed at the rate of two grades per year
so as to accomplish complete desegregation within six years,
i.e, by 1970.
Then on July 31, 1964, the Fifth Circuit again took up
the case of Gaines v. Daugherty County Board of Educa-
tion; the opinion following this consideration is reported
in 334 F.2d 983. As a result of the Calhoun decision by the
Supreme Court, the Fifth Circuit directed the District Court
to enter an order in Gaines requiring immediate total deseg-
regation of vocational schools by giving any pupil the
choice of attending either the formerly Negro or formerly
white vocational school. Freedom of choice for the fall of
1964 for all children in the first, second and twelfth grades
and desegregation in the same manner of two additional
grades each year above the second grade and one additional
grade below the twelfth so that total desegregation would
be accomplished in four years.
During the years 1964, 1965, 1966 and 1967, the school
officials throughout the Fifth Circuit were looking to the
44
Court of Appeals for guidance and direction as to those ac-
tions which should be taken by them in order to be in
obedience to Constitutional principles. Through hindsight,
the Civil Rights activists are attempting to lay all blame
upon these officials for not having not only accomplished
desegregation as now required by the decisions of the
courts, but also for not having brought about many years ago
total integration or mixing of students. It is forgotten that
the districts here, in common with many other school dis-
tricts throughout the Fifth Circuit, were administering their
schools in accordance with the principles announced by the
Court of Appeals of this Circuit. This is illustrated by
Singleton v. Jackson Municipal Separate School District,
348 F.2d 729, which was decided by the Court on June 22,
1965. This Circuit, speaking through Judge Wisdom, noted
that on “July 15, 1964, the Board filed a grade-a-year seg-
regation plan offering ‘freedom of choice’ type assign-
ments to pupils entering the first grade in September, 1964”.
This was the first desegregation undertaken by the School
Board. The significant portion of the opinion of the Court
of Appeals which is applicable to many of the districts
here is as follows:
The United States Office of Education, Department of
Health, Education and Welfare, has fixed minimum
standards to be used in determining the qualifications
for schools applying for federal financial aid. “The
fall of 1967 is set as the target date for the extension
of desegregation to all grades of school systems not
fully desegregated in 1965-1966 as a qualification for
Federal financial assistance”; a good faith start re-
quires designation of at least four grades for the 1965-
1966 school year. . ..
If Selma, Alabama, can commence with desegregation
of four grades for 1965-1966, Jackson, Mississippi, can
at least catch up. And indeed in all but the most ex-
ceptional cases, all school districts commencing deseg-
regation in fall 1965 should be expected to do as well.
45
Again, on August 16, 1966, there was before the Court
of Appeals the question of action required under the Con-
stitution by a school board. This was in the case of Davis
v. Board of School Commissioners of Mobile County, 364
F.2d 896. Under this case, as well as Singleton, the school
districts here were in compliance with the principles an-
nounced by the Court of Appeals of this Circuit and are
not subject to being penalized because they could not fore-
see the complete reversal of principles and of policies
which would take place on March 29, 1967, when Jeffer-
son II was pronounced. In Davis, the pertinent provisions
of the opinion which was issued through Chief Judge Tuttle
are as follows:
The plan was to have application in the school year
1963-64 to the twelfth grade in the City of Mobile only,
in the school year 1964-65 it was to have application
to the eleventh and twelfth grades in all schools in
Mobile County and to the first and tenth grades in
the City of Mobile schools. In 1965-66 it was to have
application to grades one, two, nine, ten, eleven and
twelve of all schools of Mobile County. In 1966-67,
grades three and eight were to be added, in 1967-68,
grades four and seven were to be added, in 1968-69
grade five was to be added, and in 1969-70 it became
applicable to grade six. . . .
In addition, two further modifications of the Mobile
plan must be made. The first is that the time must be
shortened in such manner that all grades will be fully
desegregated by the beginning of school in the fall of
1967, the target date announced in the H.E.W. regula-
tions. There is nothing on the record before us that
demonstrates the need for any additional time under
the formula announced in the Brown decision.
Criticism of past actions has not been confined to the
period from 1964 to 1967. In fact, it still continues to be
applied to actions taken by boards of education prior to
46
Brown I. The tendency to place burdens upon public of-
ficials for past actions which had been judicially declared
to be lawful at that time, has unfortunately been followed
by some of our courts and is now urged by the petitioners
here. Judge J. P. Coleman of the Court of Appeals of the
Fifth Circuit well said in his specially concurring opinion
in Jefferson II:
Prior to 1954, racially separate, if equal, schools had
not been condemned as unconstitutional. One is not to
be punished or harassed for an act which was lawful
when it was done. Indeed, such condemnation in this
instance would inferentially include some of the most
highly respected Judges who ever graced the Supreme
Court. They had opportunities to condemn the sys-
tem but, in the exercise of perfect judicial integrity,
did not. As I understand it, an Omnipotent God does
not change yesterday when it is past and gone. Cer-
tainly this Court cannot do it. . . .
I further believe that whatever the Fourteenth Amend-
ment requires of any State it requires of all States.
If we are requiring something here in the enforcement
of Fourteenth Amendment rights that should not be re-
quired of all fifty States then we have exceeded our
authority and we have misapplied the Constitution.
Judge Coleman’s position is clearly and emphatically
supported by the United States Court of Appeals of the
Sixth Circuit in Monroe v. Board of Commissioners, City of
Jackson, Tennessee, 380 F.2d 955, decided on July 21, 1967.
That Court aligned itself with other Circuits in direct con-
flict with the Court of Appeals of the Fifth Circuit, as fol-
lows:
The District Judge’s opinion discusses pertinent au-
thorities and concludes that the Fourteenth Amend-
ment did not command compulsory integration of all
of the schools regardless of an honestly composed uni-
tary neighborhood system and a freedom of choice plan.
cnc . crepe - _
47
We agree with his conclusion. . . . He concluded “We
read Brown as prohibiting only enforced segregation.”
369 F.2d at 60. We are at once aware that we were
there dealing with the Cincinnati schools which had
been desegregated long before Brown, whereas we con-
sider here Tennessee schools desegregated only after
and in obedience to Brown. We are not persuaded,
however, that we should devise a mathematical rule
that will impose a different and more stringent duty
upon states which, prior to Brown, maintained a de
jure biracial school system, than upon those in which
the racial imbalance in its schools has come about
from so-called de facto segregation—this to be true
even though the current problem be the same in each
stale...
In Mapp v. Board of Education, 373 F.2d 75, 78 (CA 6,
1967), Judge Weick said,
“To the extent that plaintiffs’ contention is based
on the assumption that the School Board is under a
constitutional duty to balance the races in the school
system in conformity with some mathematical for-
mula, it is in conflict with our recent decision in
Deal v. Cincinnati Board of Education, 369 F.2d 55
{6th Cir. 1368). ...”
But to the extent that United States v. Jefferson
County Board of Education, and the decisions reviewed
therein, are factually analogous and express a rule of
law contrary to our view herein and in Deal, we re-
spectfully decline to follow them.
(2) A freedom of choice plan is the proper vehicle
to set up and maintain schools conforming to all
Constitutional guarantees and when such plan
and the school system are administered fairly
and without discrimination, all vestiges of a
dual discriminatory racial school system are
eradicated
A careful study of Green, Monroe and Raney reveals
that these cases are not inconsistent with Brown I, Brown
43
II, Cooper, Goss and preceding decisions of this Court.
School systems from three different states lying within
three different Circuits were considered. The Court of Ap-
peals of the Fifth Circuit has seized upon three of the many
elements and held that the presence of any one of them will
render a freedom of choice plan unconstitutional. This
is a narrow view. A careful study (of Green, Raney and
Monroe) reveals that the clauses and phrases which were
utilized in reviewing these systems reflect the innumer-
able facets of school administration.
The elements elucidated in these cases included:
N
N
OS
Oa
BB
»
Ww
DN
HE
12.
. Every facet of school operations;
. Faculty, staff and student body;
. Transportation and construction of new buildings;
Extracurricular activities and facilities;
. Majority to minority transfer;
Method of exercising the freedom of choice;
. Assignment of students who did not exercise the
freedom of choice;
Whether or not the “public school facilities for
Negro pupils (were) inferior to those provided for
white pupils”;
Operation of the freedom of choice plan “in a con-
stitutionally permissible fashion”;
“All aspects of school life including faculties and
staffs’;
Whether “the board had indeed administered the
plan in a discriminatory fashion”;
The comparative treatment of students attempting
“to transfer from their all-Negro zone schools to
schools where white students were in the major-
ity”,
49
13. The comparative treatment of “white students
seeking transfers from Negro schools to white
schools”;
14. Whether “the transfer (provision) lends itself to
perpetuation of segregation”.
Within the broad statements of Green, Monroe and
Raney fall the following additional phases of school ad-
ministration:
15. Athletic activities within the schools;
16. Parent-teacher associations;
17. Faculty and staff meetings within schools and of
faculties and staffs of the various schools at the
elementary, junior high school and high school
levels;
18. School-sponsored visitation of student body officers
and student committees;
19. In-service training of teachers and staff to assist
in the desegregation process;
20. Participation by students in various types of stu-
dent organizations.
It is clear that the following do not constitute vestiges
of a de jure racially discriminatory dual school system:
(1) All-Negro schools and all-white schools, iden-
tifiable as being attended by students of only one race or
by students predominantly of one race.
(2) Schools being served by faculty and staff com-
posed of members of one race or composed predominantly
of members of one race.
(3) Schools in which the number of students of the
two races do not materially vary from year to year, ie.,
in which statistics do not demonstrate that the number of
Negro students is increasing in a school attended predom-
50
inantly by white students or in which Negro teachers are
not increasing where the faculty is composed predomi-
nantly of members of the white race.
(4) Statistical information may be considered in con-
nection with evidence concerning all other phases of the
administration of schools. However, statistics cannot be
the sole or major basis of a judicial determination as to
whether or not the vestiges of a dual school system have
been eliminated.
This Court in Green, Raney and Monroe, clearly
enunciated the basic principles that the Constitution re-
quires all districts to be operated on a unitary, nonracial,
nondiscriminatory basis and that, in districts having a
history of de jure segregation, the school boards operating
such: school systems were required to effectuate a transition
to a racially nondiscriminatory school system. In this con-
text, this Court stated that steps must be taken in which
racial discrimination would be eliminated, root and branch.
These decisions, it is submitted, clearly establish that each
school district of the nation must be operated as a unitary,
nonracial, nondiscriminatory school district and that, in
districts that have a history of de jure segregation, the
trustees of the school district have the affirmative duty of
“eradicating the last vestiges of the dual system”. The con-
fusion and misunderstanding now rampant in this Circuit
grows out of the interpretation and application of these
basic concepts. It is essential that this confusion be
eliminated. Literally hundreds of thousands of children
are involved, as well as the entire educational system. The
interpretation and application of these basic concepts, it is
submitted, is probably the most important question facing
the courts of this nation today. Involved in the answer to
this question is whether the schools will be operated, in
their day to day operations, by a federal department under
the supervision and guidance of the federal judiciary, or
51
whether the officials of the districts can, through quali-
fied educators, operate the schools in conformity with the
concepts of the applicable provisions of the Constitution as
defined by the courts.
The two concepts are as follows: (A) a unitary, non-
racial, nondiscriminatory school system, and (B) the
vestiges of a dual system which must be removed by the
trustees of the school districts. We will briefly discuss these
two concepts with the thought in mind of at least demon-
strating the necessity for a clearcut, understandable judi-
cial definition—a definition that is based upon constitu-
tional principles and not upon the changing guidelines of a
department of the executive branch of our government deal-
ing with the expenditure of funds.
What is a unitary, nonracial, nondiscriminatory school
system?
It is submitted that the answer to this question is not
too difficult. It is a school system which is open and free
to all pupils and in which race is not a factor. In fact, if
it is to be “nonracial”, then it is a contradiction on its face
to take action that is motivated by the race of the pupil.
One panel of the Fifth Circuit has given a definition in
Broussard, as follows:
“...1it would appear that an ‘integrated, unitary school
system’ is provided where every school is open to
every child. It affords ‘educational opportunities on
equal terms to all’ That is the obligation of the
Board.”
This Court in Jefferson II stated as follows:
“The governmental objective of this conversion is—
educational opportunities on equal terms to all.”
It is submitted that this concept is clear, can be fol-
lowed and implemented by school trustees of all school dis-
i
52
tricts. The school districts throughout the nation, whether
they have a history of de jure, de facto, or no segregation
at all, must be operated on a unitary, nonracial basis. This
is easily understood and can be easily implemented by the
trustees that are acting in good faith. If the trustees are
not acting in good faith, such can be easily demonstrated
to and corrected by the district court and will not require
that the federal courts become involved in the day to day
operations of the schools in the school districts.
It is submitted that, if this Court expressly adopts the
definition of a unitary, nonracial, nondiscriminatory school
system as succinctly set out in Broussard, which, with def-
erence, it ought to do, then the only problem which would
remain would be to properly deal with the second concept.
What are the vestiges of the dual system which must
be eradicated by the trustees of the school districts?
Quite frankly, it would also appear that the answer to
this question should not be too difficult. It is submitted,
however, that some of the recent decisions of various panels
of this Circuit have made requirements of school districts
that are not in keeping with the obligation to remove the
vestiges of the dual system and have thereby created con-
fusion and consternation concerning the meaning of this
obligation.
Our discussion here will be based upon the assumption
that we are correct in that the obligation of the trustees of
the school districts located in formerly de jure segregated
states is the affirmative duty to eradicate the last vestiges
of the dual system. If this be true, then these vestiges
must be identified and eradicated. It is not enough to
operate a unitary system at this time. These trustees must
go further and eradicate or eliminate any vestiges of the
dual system.
53
Illustrative of the points we are attempting to make
here is the decision by a panel of this Circuit in Adams.
The panel in Adams, with no record before it, and with
no opportunity being offered counsel to be heard, made a
specific finding that an all-Negro school was a vestige of
the dual system and must be eradicated in all districts in
the Fifth Circuit. Since that time, the language in Adams
has been quoted by several panels of this Circuit. Inso-
far as we know, however, no case has ever been presented
to this Court which contained facts which would support
a finding that this is a vestige of a dual system. A study
of the history of litigation in this field indicates that the
“racial statistics” approach as a measuring device for de-
termining whether the last vestiges of the dual system
have been removed originated with the office of Health,
Education and Welfare. That office promulgated guide-
lines which contained statistical requirements to be used
in determining whether funds would be made available to
the various school districts. It is submitted that this ap-
proach has been adopted by some of the panels in this
Circuit as a constitutional requirement, when, as a matter
of fact, the office of Health, Education and Welfare has no
authority to make constitutional interpretations that are
binding on the courts and that office had no hearing or
proof upon which to reach such a conclusion in the first
place. Certainly the decisions of this Court should be sup-
ported by proof.
The situation is, therefore, that we have Courts of
Appeal for different circuits reaching opposite conclusions
based on judicial notice and without the benefit of any
actual proof in the record on which these conclusions could
be based.
In these proceedings now before this Court, there is
proof, which was uncontradicted, that the existence of all-
54
Negro schools is not a vestige of the dual system. In ad-
dition, there is before this Court statistical information
taken from the official records of the office of Health, Ed-
ucation and Welfare showing the racial composition of
schools in the one hundred largest school districts in this
nation. Most of these districts have never had a dual
system. These statistics show, and we submit this is con-
clusive, that all-white and all-Negro schools exist in every
school district where there is a large percentage of both
white and Negro pupils. These statistics show, beyond
question, that all-white and all-Negro schools do exist in
school districts that have never had a dual system. As a
matter of fact, of the 12,497 schools in these one hundred
school districts, assuming that a school with less than one
percent of the minority race is an all-Negro or all-white
school, 6,137 are either all-white or all-Negro. In other
words, over forty-eight percent of the schools in the one
hundred largest school districts in this nation are either
all-white or all-Negro. Most of these districts are in areas
that have never had a dual system. We submit, there-
fore, that for this Court to adjudicate that the existence of
an all-Negro or an all-white school is, in and of itself,
a vestige of the dual system is without support of any
proof, is incorrect, and is clearly erroneous.
The language of the Court in Jefferson, sitting in banc,
was that there was to be “no Negro schools and no white
schools—just schools”. This language of this Court in its
in banc decision is in accord with the obligation of the
school trustees to operate a unitary school system. The
schools are not to be Negro schools nor are they to be
white schools. They are to be just schools. This does not,
however, mean that there must be both white and Negro
pupils in attendance at each and every school. Since the
existence of schools at which only Negroes attend, or the
existence of schools at which only whites attend is not,
99
in and of itself, a vestige of the dual system, then there is
no constitutional basis on which the courts may or can re-
quire their elimination or eradication as being a vestige
of the dual system.
In addition to the foregoing, there is in this record tes-
timony of experts which demonstrates conclusively that
(1) all-Negro or all-white schools are not vestiges of the
dual system and (2) a definite or specific amount of inte-
gration of the races in the schools is not an indication or
even proof that the schools are operated on a unitary basis
with the vestiges of the dual system eliminated or eradi-
cated—at best, it is only peripherally relevant to the issues.
This evidence also stands uncontradicted and will be
discussed and presented in full, if this petition is granted
and this Court hears these cases.
What we have stated concerning pupils is equally ap-
plicable to faculties. The proof is that an all-Negro faculty
or an all-white faculty is not, in and by itself, a vestige
of the dual system and does not destroy the unitary nature
of the school system.
Other illustrations could be given. It is submitted,
however, that the foregoing discussion points up the abso-
lute necessity of this Court determining the issues presented
by these cases.
Much confusion has arisen from the various interpre-
tations of the duty of school boards articulated in Green:
School boards such as the respondent then operating
state-compelled dual systems were nevertheless clearly
charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary sys-
tem in which racial discrimination would be elimi-
nated root and branch. See Cooper v. Aaron, supra, at
7, 3 L.Ed.2d at 10; Bradley v. School Board, 382 U.S.
103, 15 L.Ed.2d 187, 86 S.Ct. 224; cf. Watson v. City of
56
Memphis, 373 U.S. 526, 10 L.Ed.24 529, 33 S.Ct. 1314.
The constitutional rights of Negro school children ar-
ticulated in Brown I permit no less than this; and it
was to this end that Brown II commanded school
boards to bend their efforts. . . . Note. “We bear in
mind that the court has not merely the power but the
duty to render a decree which will so far as possible
eliminate the discriminatory effects of the past as well
as bar like discrimination in the future.” Louisiana v.
United States, 380 U.S. 145, 154, 13 L.Ed.2d 709, 715, 85
5.Ct. 317.
Heretofore we have quoted the words used by the Su-
preme Court of the United States to describe constitutionally
acceptable school systems and to delineate constitutional
duties of school officials. Although the passage of time
now requires more realistic results and more comprehen-
sive steps without further delay, the basic constitutional
principles originally announced in Brown I have not been
changed in the succeeding pronouncements by the Supreme
Court up to and including Carr.
The Court of Appeals of the Sixth Circuit in Goss con-
strued the meaning of Green and succeeding cases. In do-
ing so it said:
In Green the Court said school boards must adopt
plans which “promise realistically to convert promptly
to a system without a ‘white’ school and a ‘Negro’
school, but just schools.” 391 U.S. at 442, 88 S.Ct. at
1696. The Court further said that it would be their
duty “to convert to a unitary system in which racial
discrimination would be eliminated root and branch.”
391 U.S. at 437-438, 88 S.Ct. at 1694. We are not sure
that we clearly understand the precise intendment of
the phrase “a unitary system in which racial discrim-
ination would be eliminated,” but express our belief
that Knoxville has a unitary system designed to elimi-
nate racial discrimination.
oT
The unitary, nondiscriminatory, nonracial school sys-
tem in Knoxville was found by the Court to contain five
all-Negro schools and 29 schools in which the teaching
staffs were composed exclusively either by members of the
Negro race or members of the white race.
In Goss the Court chose between the constitutional
principles enunciated in Green, Raney and Monroe as
against those announced by this Circuit by the panels of
the Court in Adams, Duval, Graves and Greenwood,
which had varied and extended Jefferson II. It denied
the contentions of the plaintiffs (identical with those
which have now been embraced by panels of this Circuit)
as follows:
Presented to us upon plaintiffs’ appeal are the follow-
ing statements of questions involved:
I. Whether the Knoxville School System is com-
pletely desegregated in spite of the fact that the
Negro schools under dual operation remain identifi-
able as Negro schools and are attended almost ex-
clusively by Negro students?
II. Whether the Knoxville School System should
have been ordered to pair identifiable Negro schools
which could be paired, locate new construction to
help eliminate identifiable Negro schools, and take
other affirmative action to disestablish segrega-
tion?
Preliminarily answering question I, it will be sufficient
to say that the fact that there are in Knoxville some
schools which are attended exclusively or predomi-
nantly by Negroes does not by itself establish that the
defendant Board of Education is violating the consti-
tutional rights of the school children of Knoxville.
Deal v. Cincinnati Bd. of Education, 369 F.2d 55 (6th
Cir. 1966), cert. denied, 389 U.S, 847, 88 S.Ct. 39, 19
L.Ed.2d 114 (1967); Mapp v. Bd. of Education, 373 F.2d
73, 78 (6th Cir. 1886), cert. denied, 389 U.S. 847, 33
58
S.Ct. 39, 19 L.Ed.2d 114 (1967). Neither does the fact
that the faculties of some of the schools are exclusively
Negro prove, by itself, violation of Brown.
Four months later the Court of Appeals of the Sixth
Circuit had before it Monroe v. Board of Commissioners of
the City of Jackson, Tennessee, 380 F.2d 955, which was
decided July 21, 1967. This involved formerly racially
segregated de jure school systems. Because of its sig-
nificance here, its consideration of Jefferson I and Jeffer-
son II and its express repudiation of the construction there-
of later adopted by panels of this Court, we quote at length
from such decision:
Appellants argue that the courts must now, by recon-
sidering the implications of the Brown v. Board of Ed-
ucation decisions in 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.
873 (1954) and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083
(1955), and upon their own evaluation of the com-
mands of the Fourteenth Amendment, require school
authorities to take affirmative steps to eradicate that
racial imbalance in their schools which is the product
of the residential pattern of the Negro and white
neighborhoods. The District Judge’s opinion discusses
pertinent authorities and concludes that the Four-
teenth Amendment did not command compulsory in-
tegration of all of the schools regardless of an honestly
composed unitary neighborhood system and a freedom
of choice plan. We agree with his conclusion. We
have so recently expressed our like view in Deal et al.
v. Cincinnati Board of Education, 369 F.2d 55 (CA 6,
1966), petition for cert. filed, 35 LW 3394 (U.S. May 5,
1967) (No. 1358), that we will not here repeat Chief
Judge Weick’s careful exposition of the relevant law
of this and other circuits. He concluded “We read
Brown as prohibiting only enforced segregation.” 369
F.2d at 60. We are at once aware that we were there
dealing with the Cincinnati schools which had been
desegregated long before Brown, whereas we consider
here Tennessee schools desegregated only after and in
99
obedience to Brown. We are not persuaded, however,
that we should devise a mathematical rule that will
impose a different and more stringent duty upon states
which, prior to Brown, maintained a de jure biracial
school system, than upon those in which the racial im-
balance in its schools has come about from so-called
de facto segregation—this to be true even though the
current problem be the same in each state.
We are asked to follow United States v. Jefferson
County Board of Education, 372 F.2d 836 (CA 5, 1966),
which seems to hold that the pre-Brown biracial states
must obey a different rule than those which desegre-
gated earlier or never did segregate. . . . In Mapp v.
Board of Education, 373 ¥.2d 75, 78 (CA 6, 1987),
Judge Weick said,
“To the extent that plaintiffs’ contention is based
on the assumption that the School Board is under a
constitutional duty to balance the races in the school
system in conformity with some mathematical for-
mula, it is in conflict with our recent decision in
Deal v. Cincinnati Board of Education, 369 F.2d 55
(6th Cir. 1966).”
However ugly and evil the biracial school systems ap-
pear in contemporary thinking, they were, as Jeffer-
son, supra, concedes, de jure and were once found law-
ful in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138,
41 L.Ed. 256 (1896), and such was the law for 58 years
thereafter. To apply a disparate rule because these
early systems are now forbidden by Brown would be
in the nature of imposing a judicial Bill of Attainder.
Such proscriptions are forbidden to the legislatures of
the states and the nation—U.S. Const. Art. I, Section
9, Clause 3 and Section 10, Clause 1. Neither, in our
view, would such decrees comport with our current
views of equal treatment before the law. ... But to the
extent that United States v. Jefferson County Board of
Education, and the decisions reviewed therein, are fac-
tually analogous and express a rule of law contrary to
our view herein and in Deal, we respectfully decline
to follow them.
60
A writ of certiorari was granted by the Supreme Court
in this case and the decision appears as Monroe. The sole
issue in that case was the constitutionality of a “free trans-
fer” provision in the plan of desegregation. When the
same suit again came before the Court of Appeals of the
Sixth Circuit on February 10, 1969, as Goss the Court con-
strued the holding of the Supreme Court in Monroe and up-
held the above rule set forth in Judge Coleman’s specially
concurring opinion:
In Monroe v. Bd. of Commissioners, 380 F.2d 955, 159
(6th Cir. 1967), we expressed our view that the end
product of obedience to Brown I and II need mot be
different in the southern states, where there had been
de jure segregation, from that in morthern states in
which de facto discrimination was a fortuity. Our ob-
servations in that regard were mot found invalid by
the Supreme Court’s opinion reversing our Monroe de-
cision. See Monroe v. Board of Commissioners, 391
U.S. 450, 33 S.Ct. 1700, 20 1.B4.24 733 (1963).
When Cooper again reached the Court of Appeals of
the Eighth Circuit the opinion was rendered as Clark v.
Board of Education of Little Rock School District, 369 F.2d
661, decided December 15, 1966, rehearing denied, 374 F.2d
569. The Court delineated a school system and its opera-
tion which falls within the constitutional mandate of the
Supreme Court as follows:
The Constitution prohibits segregation of the races, the
operation of a school system with dual attendance
zones based upon race, and assignment of students on
the basis of race to particular schools. If all of the
students are, in fact, given a free and unhindered choice
of schools, which is honored by the school board, it
cannot be said that the state is segregating the races,
operating a school with dual attendance areas or con-
sidering race in the assignment of students to their
classrooms. We find no unlawful discrimination in the
giving of students a free choice of schools.
61
The school system of Little Rock had been a dual seg-
regated school system. Hence, the decision of the Eighth
Circuit in Clark and that of the Sixth Circuit in Goss
(both considering formerly de jure segregated systems) are
in direct conflict with Hinds County.
A classic definition of a constitutionally permissible
freedom of choice plan is that used by Judge Godbold in
clarifying the terms contained in his dissenting opinion
to Jefferson II as follows:
Throughout this opinion “freedom of choice” and “free
choice” refer to a plan validly set up, properly admin-
istered, and with choices freely exercised without ex-
ternal pressures, so that the plan itself (as opposed to
the statistical results produced by exercised choices)
is in all respects constitutionally acceptable.
There is no difference between the ultimate constitu-
tional goal of school authorities in northern and southern
states, those administering de facto systems as compared to
those administering formlery de jure systems. The differ-
ence lies in the necessity of affirmative action to remove
the vestiges of the dual school system.
The rule applied in Clark to the Little Rock school
system is certainly applicable to the fourteen districts here:
Though the Board has a positive duty to initiate a plan
of desegregation, the constitutionality of that plan does
not necessarily depend upon favorable statistics indicat-
ing positive integration of the races. ... The system
is not subject to constitutional objections simply be-
cause large segments of whites and Negroes choose to
continue attending their familiar schools. It is true
that statistics on actual integration may tend to prove
that an otherwise constitutional system is not being
constitutionally operated. However, these statistics
certainly do not conclusively prove the unconstitution-
ality of the system itself. . ..
62
In short, the Constitution does not require a school sys-
tem to force a mixing of the races in school according
to some predetermined mathematical formula. There-
fore, the mere presence of statistics indicating absence
of total integration does not render an otherwise proper
plan unconstitutional.
The initial step to determine what are vestiges of a
racially discriminatory dual school system (in which sep-
aration of the races has been de jure) as distinguished
from racially nondiscriminatory unitary school systems (in
which separation of the races has been de facto) is to elim-
inate those elements common to both.
In Hinds County educational experts of unimpeached
ability, training and experience testified, without contra-
diction, that all-Negro and all-white schools occur through-
out the United States wherever there are sufficient num-
bers of Negro students to bring this result through neigh-
borhood patterns or natural desires of students and their
parents. This evidence also demonstrated that any specific
amount of integration or change of percentages of integra-
tion of the races in schools does not constitute a material
element in determining whether a school system is oper-
ated on a racially discriminatory basis or is operated as a
nonracial, nondiscriminatory unitary system, such matters
being only peripherally relevant to such issue.
Compilations before this Circuit were assembled from
the statistical information filed with the Department of
Health, Education and Welfare and show the racial compo-
sition of schools in the one hundred largest school districts
in this nation as of October 15, 1968. They were filed by
school districts under the requirements of Title VI of the
Civil Rights Act of 1964 and are upon Civil Rights Forms
OS/CR 102-1 and OS/CR 101. Most of these districts have
never had a dual system.
63
Assuming that a school with less than one percent of
the minority race is an all-white or all-Negro school, of the
12,497 schools in the one hundred largest school districts
in the United States 6,137 schools are ether all-white or
all-Negro. Thus, more than forty-eight percent of the
schools in these districts are either all-white or all-Negro.
It is also found that in districts having as much as twenty
percent or more Negro student enrollment, only one district
does not have within it all-Negro schools. This is the
Rochester, New York, Monroe County School District. In
the consolidated cases at bar only one of the thirty dis-
tricts has less than twenty percent Negro student enroll-
ment. These facts cannot be a “vestige of the dual system
of schools” but resulted from the natural process of educa-
tion in a unitary, non-racial school system:
64
Schools
Total of
Schools Desegregated One All-Negro
District in Dist. Schools Race Schools
Chicago Public Schools,
Chicago, Ill. 610 218 392 208
Indianapolis Public Schs.,
Indiana 119 67 52 17
Des Moines Community
Schs., Iowa 81 45 36 —
Boston School Dept.,
Massachusetts 196 140 56 11
Detroit Public Schools,
Michigan 302 204 98 67
Special School Dist. No. 1,
Minneapolis, Minn. 98 06 42 —
St. Louis City Sch. Dist.,
Mo. 164 50 114 83
Kansas City School Dist.,
Mo. 99 56 43 19
Newark Public Schools
Newark, N. J. 80 53 27 27
Oklahoma City Public Sch.
Dist., I-89, Okla. 115 44 71 15
Dallas Indep. Sch. Dist.,
Texas 173 56 117 26
Los Angeles School Dist.,
Calif. 591 232 359 65
Sch. Dist. No. 1, City
& Co. of Denver, Colo. 116 62 54 3
District of Columbia
Public Schools 188 74 114 114
Gary Community Schools,
Gary, Ind. 45 20 25 21
Cleveland, Ohio,
Cuyahoga Co. 180 65 115 87
New York City Public Schs.
NY. NY. 853 695 158 113
Houston Indep. Schools,
Houston, Texas 225 86 139 61
School Dist. of
Philadelphia, Pa. 278 191 87 63
65
Broussard approved the Houston Independent School
District as being in compliance with constitutional require-
ments under a freedom of choice plan. According to its
official report as of October 15, 1968, there then remained
sixty-one all-Negro schools, seventy-eight all-white
schools, and there were eighty-six desegregated schools.
(3) The construction by the Court of Appeals of the
Fifth Circuit of the application of Section 1 of
the Fourteenth Amendment to public schools,
announced in Hinds County and other cases,
conflicts with decisions of this Court
There is a fundamental conflict between the constitu-
tional principles announced by the Supreme Court in Brown
I, Brown II, Green, Raney and Monroe and those announced
by this Court first in Jefferson I and Jefferson II and there-
after radically broadened by Adams and succeeding panel
decisions.
In Brown I the Supreme Court found that “segrega-
tion in public education . . . is a denial of equal protection
of the laws” and violates the Fourteenth Amendment.
In Brown II a constitutionally acceptable school sys-
tem is described as: “A racially nondiscriminatory school
system”.
In Cooper the Court stated the action required to
fashion a constitutionally acceptable school system as:
“The elimination of racial discrimination in the public
school system”.
In Goss® the rule was stated: “That state-imposed
separation in public schools is inherently unequal and re-
sults in discrimination”.
3. Goss v. Bd. of Ed. of Knoxville, Tennessee, 373 U.S. 683,
83 S.Ct. 1405, 10 1..Ed.2d 632 (1963).
66
After Brown I, and during the period included in the
rendition of Brown II, Cooper, Goss and parallel cases, the
Fifth Circuit rendered nine decisions construing the consti-
tutional principles announced by the Supreme Court.
A succinct statement of these constitutional principles
appears in Stell:
No court has required a “compulsory racially inte-
grated school system” to meet the constitutional man-
date that there be no discrimination on the basis of
race in the operation of public schools. See Evers v.
Jackson Municipal Separate School District, 5 Cir.,
1964, 328 F.2d 408, and cases there cited. The inter-
diction is against enforced racial segregation. Inci-
dental integration, of course, occurs through the
process of desegregation. Cf. Stone v. Board of Edu-
cation of Atlanta, 5 Cir., 1962, 309 F.2d 638.
The panels of this Circuit rendering the nine decisions
bottomed upon the Avery and Stell construction of Brown I,
Brown II and Cooper included nine of the members of the
Court of Appeals of the Fifth Circuit. For thirteen years
the school officials in the hundreds of school districts in the
Fifth Circuit relied upon such construction and fashioned
their school systems upon its framework. Then, Jefferson
II (rendered March 29, 1967, with certiorari denied Octo-
ber 9, 1967) swept this aside. Such decision substituted a
radically different constitutional concept.
We have already quoted from Jefferson I. Jefferson
II began this radical departure by using one additional
word in describing a constitutionally planned and oper-
ated school system:
4. Avery v. Wichita Falls Independent School District, 1956,
241 F.2d 230; Borders v. Rippy, 1957, 247 F.2d 268; Rippy Vv. Bor-
ders, 1957, 250 F.2d 690; Cohen v. Public Housing Administration,
1958, 257 F.2d 73: City of Montgomery, Ala. v. Gilmore, 1960, 277
F.2d 364; Boson Vv. Rippy, 1960, 285 F.2d 43; Stell v. Savannah-
Chatham County Board of Education, 1964, 333 F.2d 55; Evers
Vv. Jackson Municipal Separate School District, 1964, 328 F. 2d 408;
Lockett v. Bd. of Ed. of Muscogee Co., 1965, 342 F. 2d 225.
67
The Court holds that boards and officials administer-
ing public schools in this circuit have the affirmative
duty under the Fourteenth Amendment to bring about
an integrated, unitary school system in which there are
no Negro schools and no white schools—just schools. . .
The necessity of overcoming the effects of the dual
school system in this circuit requires integration of
faculties, facilities, and activities, as well as students.
To the extent that earlier decisions of this Court
(more in the language of the opinions, than in the ef-
fect of the holdings) conflict with this view, the de-
cisions are overruled.
Later decisions of numerous panels of this Circuit have
stretched the meaning and application of such terms far
beyond the result originally appearing to be intended.
It does not seem to have been generally recognized that
the Supreme Court of the United States in Green, Raney,
Monroe and Carr not only failed to place its stamp of ap-
proval upon Jefferson II, but affirmatively declined to hold
that the Fourteenth Amendment requires compulsory in-
tegration in public schools. These cases clearly and unmis-
takably describe the school system which meets all consti-
tutional guarantees.
In Green such system is described as: “A raciolly
nondiscriminatory school system”—“a unitary, nonracial
system of public education” —*a unitary system in which
racial discrimination would be eliminated root and branch.”
In Raney such system is described as: “A unitary,
nonracial school system”.
In Monroe such school system is described as: “A
racially nondiscriminatory system”—%“a unitary system in
which racial discrimination would be eliminated root and
branch”—“a system without a ‘white’ school and a ‘Negro’
school, just schools”.
68
In Carr such school system is described as: “A sys-
tem of public education free of racial discrimination” —
“a completely unified unitary nondiscriminatory school
system”—‘“a racially nondiscriminatory school system”.
This Court affirmatively declined to hold in Green
that the Fourteenth Amendment requires “compulsory in-
tegration”, saying:
The Board attempts to cast the issue in its broadest
form by arguing that its “freedom-of-choice” plan
may be faulted only by reading the Fourteenth Amend-
ment as universally requiring “compulsory integra-
tion”, a reading it insists the wording of the Amend-
ment will not support. But that argument ignores the
thrust of Brown II. In the light of the command of
that case, what is involved here is the question
whether the Board has achieved the “racially nondis-
criminatory school system” Brown II held must be ef-
fectuated in order to remedy the established uncon-
stitutional deficiencies of its segregated system.
Contrary to the decision of many of the panels which
we have cited above, Jefferson II does not support their
holdings for, as Judge Coleman then said:
Nor do I understand it to direct that there shall be
a specified percentage of the various races in any par-
ticular public school or that there shall be proportional
representation of the races brought about by arbitrary
order. I agree with Judges Gewin and Bell that the
opinion strongly portends such a possibility. But para-
graph 5 of the en banc opinion certainly disclaims any
such intention.
Indeed the panel decisions are a far cry from the de-
scription of the role of statistics contained in Jefferson II.
They do not conform to the constitutional objective an-
nounced by the majority opinion:
The governmental objective of this conversion is—ed-
ucational opportunities on equal terms to all. The
69
criterion for determining the validity of a provision
in a school desegregation plan is whether the provision
is reasonably related to accomplishing this objective.
The Adams dicta and its progeny have arisen through
the consideration of one paragraph, one sentence or even
a portion of one sentence in Green, Raney, or Monroe.
A study of these opinions as a whole (supplemented by
Carr) reveal the fallacy of the reasoning upon which the
Adams dicta was based. The panels of this Court have
failed to follow the teachings of these cases. It is only by
a consideration of the many complex factors entering into
the educational process and particularly into the desegrega-
tion of a formerly de jure and formerly de facto segregated
school, that we are able to chart the course which is in
the best interest of the students and of our public schools.
This was the objective stated by Mr. Justice Black in
Carr.
In Green the Supreme Court found that the school
system of New Kent County was a dual school system
and described such system as follows:
. . . Racial identification of the system’s schools was
complete, extending not just to the composition of
student bodies at the two schools but to every facet of
school operations—faculty, staff, transportation, ex-
tracurricular activities and facilities.
In Green, Raney and Monroe there was considered
many of the factors which, when taken as a whole and
in. combination, should be utilized in determining the
application of the following test:
Where the Court finds the board to be acting in good
faith and the proposed plan to have real prospects of
dismantling the state-imposed dual system “at the
earliest practicable date” then the plan may be said
to provide effective relief. . . . Moreover, whatever
plan is adopted will require evaluation in practice. . . .
70
Yet under the Adams dicta, any one of the follow-
ing factors standing alone will outlaw freedom of choice
and require compulsory integration by mandatory student
assignment:
If there is an all-Negro school in the district freedom
of choice is “impermissible”; or
If “only a small fraction of Negroes [have] enrolled
in white schools” freedom of choice is impermissible; or
If “no substantial integration of faculties and school
activities” has been attained, freedom of choice is imper-
missible.
In Choctaw a panel bottomed its decision upon a
court’s finding that there was an all-Negro school in the
district and then relied upon statistics holding that it is
insufficient to require 10% integration one school year,
followed by 20% integration the next year and that even if
such percentages were attained, complete student deseg-
regation must be compelled now and freedom of choice
is rendered constitutionally impermissible.
At one stroke this Circuit set up a test which, under
the Court’s own announcements, automatically outlaws
every freedom of choice system within the Circuit. In
Jefferson I it was held:
In this circuit white students rarely choose to attend
schools identified as Negro schools. (372 F.2d 836,
889).
On April 18, 1968, it was held in United States V.
Board of Ed., Polk County, 395 F.2d 66, 69:
The record here discloses what the courts have pre-
viously commented on, that is it is rare, almost to the
point of nonexistent, that a white child, under a
freedom of choice plan, elects to attend a “predomi-
71
nantly Negro” school. As this court said in the first
Jefferson case:
“In this circuit white students rarely choose to
attend schools identified as Negro schools. . . .”
Yet on August 20, 1968, only four months later, the
Adams dicta outlawed any freedom of choice plan “if
in a school district there are still all-Negro schools”.
Again on September 24, 1968, in Graves the panel
said:
In its opinion of August 20, 1968, this Court noted that,
under Green (and other cases), a plan that provides
for an all-Negro school is unconstitutional.
Judge Bell sounded a warning in Jefferson IV which
is accentuated by the decision in these twenty-five con-
solidated cases. The deviation from accepted constitu-
tional principles and the destructive effect upon the deseg-
regation process is increasing with every decision by a
panel of this Court. On July 1 of this year, Judge Bell
said in Jefferson IV:
I concur in the opinion and the result thereof
except to the extent, if any, that the decisions of this
court cited therein may exceed the requirements laid
down by the Supreme Court in Green v. County
School Board of New Kent County, Virginia, 391 U.S.
430 (1968); Raney v. Board of Education of Gould,
Arkansas, 391 U.S. 443 (1968); Monroe v. Board of
Commissioners of the City of Jackson, Tennessee,
391 U.S. 450 (1968), to-wit: that the dual school
systems be disestablished. I am in fundamental dis-
agreement with the approach of an appellate court
stipulating the details of transition plans where
couched in terms of constantly escalating interim de-
mands. The specter of escalation, with no end in
sight, retards the disestablishment process.
72
Congress has never acted as it could have under Sec-
tion 5 of the Fourteenth Amendment to set uniform
standards for disestablishing dual school systems.
Meanwhile, no court has defined “disestablishment”.
My view continues to be that school systems are en-
titled to know the ultimate standard. United States Vv.
Jefferson County Board of Education, 5 Cir., 1967,
380 F.2d 385, dissenting opinion at p. 413.
(4) The Court of Appeals of the Fifth Circuit is in
direct conflict with the other Circuits. Jefferson
I and Jefferson II (as gradually expanded and
varied by sixteen panels) now require com-
pulsory integration in the student bodies and
faculties of all schools, leading to the ultimate
end of racial balance
Suddenly the “rug was pulled from under” thousands
of devoted educators in the Fifth Circuit by Jefferson
I and Jefferson II. Ever since that time these officials have
been kept off balance and unable to mount and pursue a
definite and effective program by the perennial changes
and expansions of those decisions.
Although the opinion in Jefferson I covers sixty-
five printed pages and contained many qualifying state-
ments which have kept lawyers and educators confused to
this date, the panel decisions have now developed mention
that the ultimate effect of this decision is contained in one
statement (372 F.2d 845):
The United States Constitution, as construed in
Brown, requires public school systems to integrate
students, faculties, facilities and activities . . . As
we see it, the law imposes an absolute duty to deseg-
regate, that is, disestablish segregation. And an
absolute duty to integrate, in the sense that a dis-
proportionate concentration of Negroes in certain
schools cannot be ignored; racial mixing of students
is a high priority educational goal.
73
The great danger in slogans and catch words is that
they may be accepted in the belief that they mean one thing
and, too late, it will be realized that they meant another.
This is true of the decisions in Jefferson I and II,
with their many qualifying and explanatory phrases. In
fact, Judge J. P. Coleman specially concurred in Jefferson
II saying:
I do not understand that this Court has abandoned
freedom of choice, if that choice is real instead of il-
lusory. Nor do I understand it to direct that there
be a specified percentage of the various races in any
particular public school or that there be proportional
representation of the races brought about by arbitrary
order.
Nevertheless, Judges Gewin and Bell stated at page
409 of 380 F.2d the following:
The majority rule requiring compulsory integration
is new and novel, and it has not been accepted by the
Supreme Court or by the other circuits.
Seven of the actions included in these consolidated
cases were before the panel which decided Adams v.
Mathews, 403 F.2d 181, August 20, 1968, upon appeals from
docket settings. Since that date different panels of this
Circuit have decided fifteen additional school desegrega-
tion cases.’
5. Adams Vv. Mathews, No. 265452, . August 20, 1968,
Judges Wisdom, Goldberg and Morgan, 403 F.2d 181; Duval Vv.
Braxton, No. 25479, August 29, 1968, Judges Wisdom, Coleman
and Rubin, 402 F.2d 900; Graves v. Walton Cty., No. 26452, Sep-
tember 24, 1968, Judges Wisdom, Goldberg and Morgan, 403
F.2d 189; U. S. A. v. Greenwood, No. 25714, February 4, 1969,
Judges Brown, Thornberry and Taylor, 406 F.2d 1086; Henry Vv.
Clarksdale, No. 23255, March 6, 1969, Judges Wisdom, Thorn-
berry and Cox, 409 F.2d 682; U. S. A. v. Indianola, No. 25655,
April 11, 1969, Judges Dyer, Simpson and Cabot, 410 F.2d 626;
Anthony v. Marshall Cty., No. 26432, April 15, 1969, Judges Ains-
worth, Simpson and Mitchell, 409 F.2d 1287; Hall v. St. Helena,
No. 26450, May 28, 1969, Judges Brown, Godbold and Cabot,
ik F.24 ......; Davis v. Mobile City., Nos. 26386, 27491, 27260,
74
These panel opinions conflict with each other and
with prior decisions of panels of this Circuit. They con-
strue, restrict, extend, vary and violate not only the prin-
ciples laid down by this Circuit en banc in Jefferson II
(limiting Jefferson I) but also those laid down by the
United States Supreme Court in Green, Monroe and
Raney.” They conflict with decisions of other Circuits.®
As a result, the district courts and the school boards in this
Circuit are in utter confusion.
The only members of this Circuit serving upon more
than two of these panels were Judge Wisdom, who was
the presiding judge of nine panels; Judge Brown, who was
the presiding judge of four panels, and Judge Thornberry,
June 3, 1969, Judges Brown, Dyer and Hunter, ________ Bod: :
U. S. A. v. Jefferson III, No. 27444, June 26, 1969, Judges Bell,
Goldberg and Atkins, F224... ; Hampton v. Choctaw Cty.,
No. 27297, June 26, 1969, Judges Wisdom, Carswell and Roberts,
RES B.2d oi og Choctaw City. v.. U.S. 2, No. 25639, June 26,
1969, Judges Wisdom, Carswell and Roberts, fe vd. :
U. S A. v. Jefferson Iv, No. 26584, July 1, 1969, Judges Wisdom,
Bell and Godbold, ........ P24... : U.S. A. v. Hinds Cty., Nos.
28030, 28042, July 3, 1969, Judges Brown, Thornberry and Mor-
gan. Ls. Bod. : : U, 5.47. Crisp, No. 27446, July 3, 1969,
Judges Wisdom, Morgan and Davis, ___.___ F.2d ...... a Say
Baldwin Cty., No. 272381, July 9, 1969, Judges Wisdom, Carswell
and Roberts, _______ F.2d se...
6. Broussard Vv. Houston Independent School District,
May 30, 1968, 403 F.2d 34, Petition for Rehearing en banc (in
the light of Green, Monroe and Raney) denied October 2, 1968;
Acree v. Richmond County, July 30, 1968, 399 F.2d 11; Boykins
Vv. Fairfield, July 30, 1968, 399 F.2d 11.
7. Green ¥. New Kent Co., (U.S. Syor. Ct. 1963) 391. U.S.
430, 20 1L.Ed.2d 716; Monroe v. Jackson, Tenn., (U.S. Supr. Ct.
1968) 391 U.S. 450, 20 L.Ed.2d 733; Raney y. Gould, (U.S. Supr.
Ct. 19638) 391 U.S. 443, 20 L.Ed.2d 727.
8. Goss v. Knoxville, (6th Cir. 1969), 406 F.2d 1183; Free-
man :V..Gould, (8th Cir. 1969) 405 F.2d 1153; U. S. A. v. Cool:
County, (7th Cir. 1969) 404 F.2d 1125; Deal v. Cincinnati, (6th
Cir. 1966) 369 F.2d 35; Springfield v. Barksdale, (1st Cir. '1965)
348 F.2d 261; Downs v. Bd. of Ed. of Kansas City, 336 F.2d 988
10th Cir. 1964), cert. denied 380 US, 914, 85 S.Ct, 893, 13
L.Ed.2d 800 (1965); Mapp v. Bd. of Ed. of Chattanooga, Term., 373
F.2d 75 (1967); Clark v. Board of Education, (8th Cir. 1966, 1967)
369 F.2d 661, rehearing denied 374 F.2d 569; Bell v. Gary, (7th
Cir. 1963) 324 F.2d 209, cert. denied 377 U.S. 924.
75
who sat on four panels. The presiding judges upon the other
three panels were Judge Dyer, Judge Bell and Judge Ains-
worth. Eleven of these decisions were rendered with only
two members of this Circuit participating, the third mem-
ber of the panel being a District Judge.
The recent decisions of the Court of Appeals of the
Fifth Circuit conflict directly with decisions of the Sixth
Circuit, the First Circuit, the Seventh Circuit, the Eighth
Circuit and the Tenth Circuit. They are in direct conflict
with provisions of the Civil Rights Act of 1964 and with the
Congressional intent expressed last year in the act carry-
ing the appropriation for the Department of Health, Educa-
tion and Welfare. All of these are hereinafter quoted.
Through a misconstruction both of the “trilogy of
cases”, Green, Monroe and Raney, and of the en banc de-
cision of Jefferson II, many panels of the Fifth Circuit find
themselves in direct conflict with decisions of other Cir-
cuits. The dicta of Adams, repeated in Hall, Hinds County
and other cases, deviates from the teaching of Green, Mon-
roe and Raney as well as that of Jefferson II. As we will
later point out, the panels have seized upon numerous ele-
ments which were considered in combination and sepa-
rated them, so that each separate element is now made the
sine qua non of continuance of freedom of choice. This is
also true in the varying definitions of what constitute the
“vestiges of a dual school system” that must be removed.
Hinds County, Hall, Indianola, Jefferson III and other
decisions have based their destruction of freedom of choice
plans upon dicta first appearing in Adams:
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.
76
The panel in Hinds County rejected freedom of choice
as an acceptable plan in any of the thirty districts, saying:
(Comp., pages 278-279, 281-2.)
The record compels the conclusion that to eliminate
the dual character of these schools, alternative methods
of desegregation must be employed which would in-
clude such methods as zoning and pairing. . ..
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 con-
stitutional 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 dis-
establishing their dual school systems.
The Court of Appeals of the Sixth Circuit determined
on February 10, 1969, in Goss v. Board of Education of
Knoxville, Tennessee, 406 F.2d 1183, that the elimination
of all-Negro and all-white schools is not a condition pre-
cedent to either the establishment of a unitary, nonracial
school system, or to the continuation of a freedom of choice
plan of desegregation. The Court found that there were
five all-Negro schools in the Knoxville school district. It
also found that in 1960 the district had “a school system
completely and de jure segregated both as to students and
faculty”. In holding that the Knoxville school system was
constitutionally acceptable, the Court of Appeals said:
Preliminarily answering question I, it will be sufficient
to say that the fact that there are in Knoxville some
schools which are attended exclusively or predomi-
nantly by Negroes does not by itself establish that the
defendant Board of Education is violating the consti-
tutional rights of the school children of Knoxville.
Deal v. Cincinnati Bd. of Education, 369 F.2d 55 (6th
Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19
L.Ed.2d 114 (1967); Mapp v. Bd. of Education, 373 F.2d
3
75, 78 (6th Cir. 1967). Neither does the fact that the
faculties of some of the schools are exclusively Negro
prove, by itself, violation of Brown.
The Court then discussed the rule set forth in Green,
including in the statement that the school boards are
“charged with the affirmative duty to take whatever steps
might be necessary to convert to a unitary system in which
racial discrimination would be eliminated root and branch”.
In applying this to the Knoxville District and discussing
its effect, the Court of Appeals of the Sixth Circuit said:
The Court further said that it would be their duty “to
convert to a unitary system in which racial discrim-
ination would be eliminated root and branch.” 391
U.S. at 437-438, 88 S.Ct. at 1694. We are not sure that
we clearly understand the precise intendment of the
phrase “a unitary system in which racial discrimina-
tion would be eliminated,” but express our belief that
Knoxville has a unitary system designed to eliminate
racial discrimination.
The Court brushed aside the position that different con-
stitutional principles should be applied to southern states
where there had been in the past de jure segregation as
contrasted to northern states where there had been in
the past de facto segregation. This was of particular
importance as Deal involved formerly de facto segrega-
tion and Goss involved formerly de jure segregation. The
Court said:
In Monroe v. Bd. of Commissioners, 380 F.2d 955, 958
(6th Cir. 1967), we expressed our view that the end
product of obedience to Brown I and II need mot be
different in the southern states, where there had been
de jure segregation, from that in northern states in
which de facto discrimination was a fortuity. Our ob-
servations in that regard were not found invalid by
the Supreme Court’s opinion reversing our Monroe de-
cision. See Monroe v. Board of Commissioners, 391
U.S. 450, 83 S.Ct. 1700, 20 L.Ed.2d 733 (1968).
78
The constitutional principles thus found to be applica-
ble to both southern states and northern states were stated
by the Sixth Circuit in Deal, cited as supporting authority
in Goss. Deal involved the Cincinnati school system in
which de facto segregation had resulted in heavy racial im-
balance in the schools.” Racial discrimination may be re-
moved by different methods, including freedom of choice
plans, validly set up, properly administered, with choices
freely exercised without external pressures so that the plan
itself (without regard to the statistical results produced by
choices thereunder) is constitutionally acceptable. Hinds
County, Choctaw, Adams and other decisions actually bot-
tomed solely upon statistics are in direct conflict with both
Goss and Deal. In Deal the Sixth Circuit said:
The cases recognize that the calculus of equality is not
limited to the single factor of “balanced schools”;
rather, freedom of choice under the Fourteenth Amend-
ment is a function of many variables which may be
manipulated differently to achieve the same result in
different contexts. . . .
This is in accord with our holding that bare statistical
imbalance alone is not forbidden. There must also be
present a quantum of official discrimination in order to
invoke the protection of the Fourteenth Amendment.
Finally, in the one case in which a District Court ap-
parently accepted the appellants’ theory of racial im-
balance, Barksdale v. Springfield School Comm., 237
F.Supp. 543 (D. Mass. 1965), the First Circuit, in va-
cating the decision and dismissing the complaint with-
out prejudice specifically rejected any such asserted
constitutional right. Springfield School Comm. wv.
Barksdale, 348 F.2d 261, 264 (1st Cir. 1965).
9. As detailed below the report to HEW for the school year
1968 revealed that of the 106 schools in the Cincinnati Public
School System, forty were composed of students of one race (i.e,
more than 99 per cent Negro or 99 per cent white students), of
which thirteen schools were Negro and twenty-seven schools were
white.
79
Adams and its progeny, including Hinds County and
Hall, are in direct conflict with Springfield School Com-
mittee v. Barksdale, 348 F.2d 261, rendered by the Court
of Appeals of the First Circuit in 1965. The district court
found that two of the elementary schools had over 80 per
cent Negro pupils, that fourteen elementary schools had no
Negro pupils or less than one per cent Negro pupils, and
that the school system was racially imbalanced. The
Court of Appeals said:
Having reached its conclusions, the court ordered the
defendants to submit a plan to correct racial imbalance
in the Springfield schools.
The Court vacated the order of the district court and
reversed, stating the constitutional principles as follows:
Certain statements in the opinion, notably that “there
must be no segregated schools,” suggest an absolute
right in the plaintiffs to have what the court found to
be “tantamount to segregation” removed at all costs.
We can accept no such constitutional right. Cf. Bell v.
School City of Gary, 7 Cir., 1963, 324 F.2d 209, cert. den.
377.10.8. 924, 34 S.Ct. 1223, 12 1.Ed.2d 216; Downs v.
Board of Education, 10 Cir., 1964, 336 F.2d 988, cert.
den. 330 1.8, 814 35 S.Ct. 393, 13 1.Ed.24 300. . . .
But more fundamentally, when the goal is to equalize
educational opportunity for all students, it would be
no better to consider the Negro’s special interests ex-
clusively than it would be to disregard them com-
pletely.
The hard and fast Adams rule, the statistically-based
Hinds County decision, and like decisions conflict with
United States v. Cook County, 404 F.2d 1125, 1135, decided
by the Court of Appeals of the Seventh Circuit on Decem-
ber 17, 1968. The panels of this Circuit have brushed aside
good faith. They require hard and fast statistical results
now. To the contrary, the Court said in Cook County:
80
In the Brown II case, Brown v. Board of Education,
349 U.S. 294, at 300-301, 75 S.Ct. 753, at 756, 99 L.Ed.
1083 (1955), the Court said, that with respect to de-
segregating a school system, lower courts “may con-
sider problems related to administration, arising from
the physical condition of the school plant, the school
transportation system, personnel, revision of school
districts and attendance areas into compact units to
achieve a system of determining admission to the pub-
lic schools on a nonracial basis, and revision of local
laws and regulations which may be necessary in solv-
ing the foregoing problems.”
There is no hard and fast rule that tells at what point
desegregation of a segregated district or school occurs.
The court in Northcross said the “minimal require-
ments for non-racial schools are geographic zoning, ac-
cording to the capacity and facilities of the buildings
and admission to a school according to residence as a
matter of right.” 333 F.2d at 662. On the other hand,
“The law does mot require a maximum of racial mix-
ing or striking a rational balance accurately reflecting
the racial composition of the community or the school
population.” United States v. Jefferson County Board,
372 F.2d 338, 347, n. 5 (5th Cir. 1966) aff'd en banc,
380 F.2d 385 (5th Cir.), cert. denied, Cado Parish
School Board v. United States, 389 U.S. 840, 88 S.Ct.
67, 19 1.Ed.2d 103 (1967). The district court’s judg-
ment here must be made upon a determination
whether defendants—by what they have done since
the beginning of the 1968-69 school year, under the
July 8 and July 22, 1968, orders—have shown a good
faith performance, and whether the plans they may sub-
mit hold promise of future good faith performance to-
ward achieving a non-racially structured school system
which is reasonably related to the objective of the
court’s order.
The decisions of the panels of this Circuit conflict with
the opinion of the United States Court of Appeals for the
Tenth Circuit in Downs v. Board of Education of Kansas
City, 336 F.2d 988 (1964), cert. denied 380 U.S. 914, 85
81
S.Ct. 898, 13 LL.LEd.2d 800 (1965). This involved the public
schools of the Kansas City, Kansas, school system, which
was operated on a segregated basis prior to Brown I.
Thereafter the schools were integrated based chiefly upon
zones and neighborhood school systems including the right
of transfer. The Court held:
There is, to be sure, a racial imbalance in the public
schools of Kansas City. . ..
Appellants also contend that even though the Board
may not be pursuing a policy of intentional segrega-
tion, there is still segregation in fact in the school sys-
tem and under the principles of Brown v. Board of
Education, supra, the Board has a positive and affirma-
tive duty to eliminate segregation in fact as well as
segregation by intention. While there seems to be au-
thority to support that contention, the better rule is
that although the Fourteenth Amendment prohibits
segregation, it does mot command integration of the
races in the public schools and Negro children have no
constitutional right to have white children attend
school with them. (Citing authorities.)
Moreover, the question was conclusively answered in
Bell v. School City of Gary, Indiana, 7 Cir., 324 F.2d
209, 213, cert. denied, 377 U.S, 924, 34 S.Ct. 1223, 12
L.Ed.2d 216, where the court held that “. . . ‘there is
no affirmative U. S. Constitutional duty to change in-
nocently arrived at school attendance districts by the
mere fact that shifts in population either increase or
decrease the percentage of either Negro or white pu-
pils.’?’
See also Mapp v. Board of Education of Chattanooga,
Tennessee, 373 F.2d 75, rendered by the United States Court
of Appeals for the Sixth Circuit on February 27, 1967. This
involved a school system in which de jure segregation
continued until it was removed by a grade-to-grade ex-
tension of a freedom of choice plan resulting in “full inte-
82
gration of all grades in September 1966”. In response to
| an attack upon the plan by the plaintiffs, the Court upheld
the plan and said:
I To the extent that plaintiffs’ contention is based on the
assumption that the School Board is under a constitu-
tional duty to balance the races in the school system
in conformity with some mathematical formula, it is in
|
|
| conflict with our recent decision in Deal v. Cincinnati
| Board of Education, 369 F.2d 55 (6th Cir. 1966).
| The Supreme Court of the United States and the Courts of
the various Circuits, as well as the District Courts, have re-
| peatedly emphasized the difference between an unconsti-
| tutional system of desegregation and the unconstitutional
| operation of an acceptable system. Hinds County is in di-
| rect conflict with the decision of the Eighth Circuit in
| Clark v. Board of Education, 369 F.2d 661, rendered on De-
| cember 15, 1966, rehearing denied 374 F.2d 569 (1967), in
which the Court said:
We find no unlawful discrimination in the giving of
| students a free choice of schools. The system is not
I subject to constitutional objections simply because
large segments of whites and Negroes choose to con-
tinue attending their familiar schools. It is true that
statistics on actual integration may tend to prove that
an otherwise constitutional system is not being con-
stitutionally operated. However, these statistics cer-
tainly do not conclusively prove the unconstitutionality
of the system itself.
Gary, decided by the Court of Appeals of the Seventh
| Circuit prior to the adoption of the Civil Rights Act of 1964,
is of particular importance as it is in direct conflict with
| Hinds County. Judge Beamer’s interpretation of the Con-
stitution in Gary was adopted by Congress and thus con-
firmed as national policy under Section 5 of the Fourteenth
Amendment. During the consideration of the legislation
83
which became the Civil Rights Act of 1964, Senator Hum-
phrey, manager of the bill in the Senate, made this state-
ment during the debate:
Judge Beamer’s opinion in the Gary case is significant
in this connection. In discussing this case, as we did
many times, it was decided to write the thrust of the
court’s opinions into the proposed substitute. 110 Cong.
Rec. 12715.
The “thrust” of the Gary decision was accurately de-
scribed by Senator Humphrey to be:
I should like to make one further reference to the
Gary case. This case makes it quite clear that while
the Constitution prohibits segregation, it does mot re-
quire integration. The busing of children to achieve
racial balance would be an act to effect the integra-
tion of schools. In fact, if the bill were to compel it,
it would be a violation, because it would be handling
the matter on the basis of race and we would be
transporting children because of race. The bill does not
attempt to integrate the schools, but it does attempt to
eliminate segregation in the school systems. 110 Cong.
Rec. 12717.
It was upon this interpretation and assurance of Vice
President Humphrey that the Congress adopted the Civil
Rights Act of 1964 under the authority granted by Section
5 of the Fourteenth Amendment “The Congress shall have
the power to enforce, by appropriate legislation, the pro-
visions of this article.” The portions of the Act appearing
as U.S.C.A,, Title 42, Sec. 2000c(b), et seq.; Pub.L. 88-352,
Title 4, Sec. 401(b), Sec. 407 (a), Sec. 410, define and limit
the desegregation of public schools and colleges:
Section 401(b): . . . but “desegregation” shall not
mean the assignment of students to public schools in
order to overcome racial imbalance.
84
Section 407 (a): ... provided that nothing herein shall
empower any official or court of the United States to
issue any order seeking to achieve a racial balance in
any school by requiring the transportation of pupils
from one school to another or one school district to
another in order to achieve such racial balance or
otherwise enlarge the existing power of the court to
insure compliance with constitutional standards.
Section 410: Nothing in this title shall prohibit clas-
sification and assignment for reasons other than race,
color, religion or national origin.
The latest expression of Congressional intent that dis-
crimination was not to be measured by the racial distribu-
tion of students among the schools, or within a particular
school, is contained in the current appropriation act for
HE. W. (Pub.L. 90-557; 82 Stat. 969), Section 409 of Title
4, relating to elementary and secondary education, contains
the following clear prohibition:
No part of the funds contained in this Act may be
used to force busing of students, abolishment of any
school, or to force any student attending any ele-
mentary or secondary school to attend a particular
school against the choice of his or her parents or
parent in order to overcome racial imbalance.
(5) Resume of facts
The complete inaccuracy of the broad sweeping state-
ments contained in the original petition is demonstrated
by the evidence concerning the Meridian Separate School
District. The school board faculty and staff began prep-
aration for desegregation in 1954.
Many people of the Caucasian race have attempted
to articulate what they believe to be the feeling and judg-
ment of our Negro citizens and their children. Regardless
of whom they may be and of the position they take, those
who disagree question the ability of a white individual to
89
reflect the beliefs, wishes and sentiments of the black com-
munity. “Since the memory of man runneth not to the
contrary” if the statements of an individual cannot be met
or his arguments cannot be refuted, the individual is then
attacked on any ground within the imagination of man.
In these cases the testimony of Mrs. Jeanie Ruth Crump
in the Meridian case (our Appendix 3) is irrefutable and
beyond question. She speaks from thirty years’ experience
as an educator in Mississippi.
Mrs. Crump is the Principal of the Wechsler Elemen-
tary School in Meridian. She holds a Bachelor of Arts
degree from Rust College in Holly Springs, Mississippi, and
a Master of Education and Administration from Tuskeegee
Institute. She is a member of the National Education As-
sociation, and of the American Teachers Association, of the
National Elementary Principals Association, the National
Classroom Teachers Association, the Department of Early
Childhood Education, a member of the Mississippi Teachers
Association, the Fifth Educational District Association, the
State Association of Principals and Supervisors, the Merid-
ian District Teachers Association. She is Chairman of
the Study Group Committee for the State Principals and
Supervisors Association and has served three times as
Secretary of the Mississippi Teachers Association. She
testified:
I have been involved in Civil Rights since I was a child.
I'm a protege of Mary McCall Bethune and Eleanor
Roosevelt and I have been since I was a youth and I
still am. I am a member of the NAACP. I'm a mem-
ber of the Black Methodists of the United Methodist
Church. I suppose that my husband has paid our dues
in the Southern Christian Leadership. I'm a member
of the Fellowship of the Concerned and I’m also a very
active in the Board of Social Concerned of the Metho-
dist Church, and also the National Council of Negro
Women.
86
Q. With your broad contact with the entire Negro
community, do you know of any fear of retaliation, any
hostility, or any type of pressure that has been ap-
plied by the White community or by anyone to keep
Negro children from choosing formerly all White
schools?
A. Ido not personally know.
Q. Have you heard of any?
A. I have not heard of any.
Q. Do you know of any public officials or school of-
ficials who has improperly influenced or sought to in-
fluence the choice of the Negro children?
A. "Not any,
Q. Are you aware of any effort or any practice by the
Meridian Separate School District to discourage Ne-
groes from choosing formerly all white schools?
A. No. Not any.
Q. Mrs. Crump, you stated you’ve been with the
Meridian system for thirty years. State what changes,
if any, have been made since 1954, in the city school
system with reference to whether it’s dual or non-
unitary.
A. Well, of course, that’s self-evident. In 1954, we
know that we had a dual system and I don’t know
whether this is irrelevant or not, but I think that’s one
of the reasons why I stayed in Meridian, because of
the fact that I felt it needed to, if it didn’t do this on
its own integrity that it would need to do it. I felt that
this was this type of community. But in 1954, you know
that we had this dual system of education. But so far
as I'm concerned now, and my interpretation to the
community is that we have a unitary system, and if
any of our parents make reference to a White or Negro
school, I say “No, we don’t have such now. We have
the Meridian Separate School District. We just have
schools”.
87
Q. Have you participated personally in mixed faculty,
principal, and other professional meetings within the
Separate School District?
A. Well, it interests me greatly about the word mixed,
because I think of how that I mix a cake, but we do
have integrated faculty meetings. We've had inte-
grated principals’ meetings I guess for about twelve
years. But not any of our professional meetings are
anything but integrated. All of our teachers meetings
are intregrated. All of our principals meetings are in-
tegrated. In fact, all of our staff meetings are inte-
groted. . . .
Well, I personally—you asked for an opinion—and I
personally think that at this time that this freedom of
choice is working well, and I think that it will work
even better, because, as I said before, I think that the
community of Meridian has accepted this and I think
that they are really more interested in good education
and good teachers than they are Black and White. . . .
Yes, I predict further faculty integration in Meridian,
and I think it’s possibly going to be faster than maybe
what Mr. Vincent assesses it to be. I think this par-
ticularly in regard to the Negro teachers.
Q. Do you predict further student integration in Mer-
idian?
A. Yes, I predict that and I predict that there will be
more, rather, there will be some students coming into
Negro schools. I believe here, come the 69 session.
BY THE COURT: Take from your school, from Wech-
sler, would they resent the Court telling them they had
to get into some other school? Or go to an all White
school?
A. I believe that they would. I believe that they
would. ....
BY THE COURT: So you think to take that choice
away from them and tell them they had to go into
another school that they would rebel or what-not?
88
A. 1 think so. I think the children would rebel as
much as their parents would, because I think they have
fundamental reasons for their choices. In fact, I'm sure
some of them do. ...
Q. That they've experienced the zoning plan and
didn’t like it too well?
A. Yes, that’s right. For example, sir, we have stu-
dents coming from every section of the city to Merid-
ian, I mean, to Wechsler. We have them from com-
ing past Chalk, coming past West End. We have them
coming past East End; we have them coming past Mt.
Barton, coming to Wechsler. They chose to come. . . .
Mr. Paul L. Franklin, Assistant Superintendent for
Business Affairs, testified as follows:
We have a teacher salary schedule. All teachers are
employed without regard to race on a single salary
schedule, being paid the same, based upon their experi-
ence and qualifications. We have salary schedule for
all non-certified or classified employees, and these are
paid on the same salary schedule based upon their ex-
perience and training without regard to race. Our
school buses are operated without regard to race, and
as a bus becomes in need of replacing, it’s replaced
without regard to race. We do have uniform budget-
ing, the allocations are made to the individual schools
in operation, based upon the per pupil allocations, and
this is without regard to race. We have uniformity in
our building construction and this is also without regard
to race. Our buildings have been corrected. The in-
adequacies and our buildings and equipment through-
out the School District will be comparable without re-
gard to race. We have central planning of menus for
our school system. This is done with a committee of
cafeteria managers from each individual school. This
is on an integrated basis. We have in-service training
for our non-instructional or classified employees strictly
on an integrated basis and this has taken place for at
least ten years, now. We have all of our teachers now,
89
with the exception of a few vocational shop teachers,
have a degree or better, in regardless of what school
they teach or regardless of the race. . .
No, this took place gradually over a period of time,
beginning with 1954. In 1954, we adopted a salary
schedule for teaching personnel. This was the first
step, I would say, to this.
Q. And, what was the next step?
A. Well, in 1958, we began integrated in-service pro-
gram for our non-certificated personnel.
Q. And what was the next step?
A. During this same period of time of, say ’57, 1957-
’58, we began an extensive construction program to
try to make our schools uniform and all of them ade-
quate.
Q. The other matters, the other items that have been
made unitary, did they take part from year to year?
A. Yes, they did. Of course, in 1958, we began uni-
form menus throughout the school system.
Q. When did you testify that the professional per-
sonnel policies was adopted by the board on the first
occasion?
A. I'm not, I don’t remember the exact date on that,
but I think it was in ’54, but this can be verified by
the Superintendent or Assistant Superintendent for
Instruction.
Mr. Arnold Vincent, Assistant Superintendent of In-
struction, testified as follows:
Q. Mr. Vincent, based upon your experience, your
observation, and other work you have done with the
Meridian school district, what is your best judgment
about whether or not the freedom of choice plan is
working?.. ...
A. "The {rst year wag 20. That was ’65-66. This
next year was 103 Colored children chose traditionally
White schools. In ’67-68, 253. In 1968-69, 457. There
90
has been about 100% increase every year in both the
faculty desegregation and the student population de-
segregation in schools.
Mr. Charles A. Armstrong, Principal of Meridian
Senior High School, testified as follows:
Since 196—well, actually since 1953 in Meridian, I've
been involved, but since 1960 direct responsibility of
school beginning, of course, rests upon my shoulders
with a lot of other people we involve. I would say
that we had the best beginning of this year that we
have had in any of the time of which I know about.
It was smooth and orderly. No report of any harass-
ment, any intimidation. Our teachers and our stu-
dents on the first day of school are ready to teach and
just a smooth beginning of school.
Q. Do the Negro students participate in the same ac-
tivities as all the other students?
A. Yes, sir. There’s no regard to race or color here
at all.
Q. What about your athletic program?
A. We have Negro students involved in football,
basketball and track and baseball. Our championship
football team of last year, one of the starting members
was a young man who played tackle, a 265 pound
youngster who attracted a lot of attention with his
prowess as an athlete. In basketball, we had two
members, and there were several, eight or nine stu-
dents who were out for football. This year, one other
Negro student is a starter on the kicking teams. In
basketball, we had two members who made our travel-
ing squad and who both played in varsity and B
competition. In other activities, in band, I think we
have—
Q. Chorus?
A. Chorus, Choralaires, all of our club activities, club
activities stemming from special interests, and class-
room activities, service clubs. I think twelve of these
clubs have Negro members by their choice.
91
Q. What is your own attitude toward desegregation
at this school, Mr. Armstrong?
A. Well, IT have no problem with the whole idea.
These are children. I'm involved in public education.
I think it’s awfully important that public education
continue. I have no problem whatsoever personally
with it at all. And I think that these youngsters
need to be treated as human beings with educational
problems and everything that we do is directed to
this. With all our students, now, with Negro and the
White. This permeates our organization.
Q. Do you feel that a true and real free choice is
being exercised by the students?
A. ldo,
Q. Do you feel that the freedom of choice plan is
working, Mr. Armstrong?
A. I certainly. do...
BY THE COURT: Excuse me, Counsel. Do you know
of any plan which be more effective than the freedom
of choice plan to accomplish the result that the Supreme
Court asked for in the Green case, that is, to destroy
every root and branch of the traditional dual system,
and at the same time to accomplish the highest level
of educational achievement?
BY THE WITNESS: I don’t know of any such plan
that would do this. I think that if it happens and as
it happens it'll happen with people wanting it to hap-
pen by making choices, for people seeing that the
procsss will work by choice.
The Enterprise Consolidated School District is one of
the smallest school districts among these consolidated
cases. The undisputed testimony appearing in the record
(Appendix 2) reveals that 27% of the black students in
such district attend schools formerly predominantly
white. As the ratio of black students to white students
in this district is 40% black and 60% white, this is an out-
92
standing achievement. The projected percentage for the
school year 1968-1969 is 30%. This demonstrates the un-
reliability of the statistics appearing in the Petition for
Writ of Certiorari, particularly in Note 3 on page 4 thereof.
It is said that such statistics are taken “for the most part”
from compilations by the United States submitted to the
Court of Appeals. However, it is seen by comparing the
statistics utilized by the Court of Appeals (Petitioners’
Appendix B, pp. 30a-3la), that only seven of the four-
teen school districts now before the Court are included
therein. This demonstrates a complete unreliability of
the figures or “statistics” utilized in this petition.
We have attached as appendix the pertinent extracts
from the evidence applicable to the Yazoo City and Yazoo
County School Districts. As these districts are about aver-
age size they may also be considered typical.
The testimony of Honorable John Holmes, President
of the Board of Trustees of the Yazoo City District, is of
material importance. He is the son of a former distin-
guished member of the Court of Appeals of the 5th Circuit,
Judge Edwin Holmes, now deceased. The District Court
found concerning all of the school districts in the consoli-
dated cases that the injunction prohibiting any member
of the faculty from influencing the choice of any parent or
student has constituted a major factor in preventing more
mixing under the freedom of choice plan (See Petitioners’
Appendix A, pp. 4a-5a).
In response to a question concerning such provision
of the injunction, Mr. Holmes testified that this particular
provision, in his opinion, had destroyed the ability of the
school officials to obtain greater numbers of transfers by
the students to schools in which their race is in the minor-
ity (See Appendix 1 hereto). This record also demon-
strates that the one statistic chosen by the Petitioners con-
93
veys a false picture of the actual accomplishments under
the freedom of choice plans.
The one statistic utilized in the petition for Writ of
Certiorari is very misleading. An illustration is the fact
that in the formerly white Bentonia School the percentage
of Negro students to total enrollment averages 15.8% and
five grades have more than 20%. In the formerly white
Bentonia School the percentage of Negro students varies
in the several grades, averaging 10 1/2%. Other evidence
appears in the record demonstrating a true compliance
with Constitutional requirements.
The Natchez Special Municipal School District is a
defendant in one of the 25 consolidated cases. Although
not now before this Court, it is typical of the 19 school
districts necessarily affected by the determination of the
pending proceeding.
The Opinion of the District Court rendered on May 16,
1969 (at p. 9a of Petitioners’ Appendix), made a find-
ing concerning the Natchez schools. The Court of Appeals
did not disturb this finding in its opinion of July 3, 1968
(appearing at p. 28a of Petitioners’ Appendix). Such
finding by the District Court is as follows:
The Natchez schools, appearing as Civil Action No.
1120(W), have demonstrated outstanding progress
with the freedom of choice plan. These schools ac-
commodate approximately 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 children in the
predominantly white schools. There are 40 white and
70 Negro children in the vocational schools. A Negro
is on the school board. All decisions of the school
board have been unanimous. It is the view of the Court
94
in this case that these schools have shown satisfactory
and acceptable progress under all of the facts and cir-
cumstances in complying with all of the requirements
of the model decree. In this case, as in all of these
cases, the bare figure statistics are misleading and tell
only part of the story.
The evidence introduced at the August 21-22, 1968,
hearing discloses that in the Natchez Special Municipal
Separate School District (herein referred to as Natchez)
does not operate a dual system of schools. All of the schools
in the Natchez system are fully and equally accredited by
the two Mississippi Accrediting Commissions and by the
regional agency known as the Southern Association of
Schools and Colleges. All schools in the Natchez system
are comparable as to facilities, per pupil expenditure,
teacher-pupil ratio and curricula. The Instructional Ma-
terials Center for all schools, including library and teach-
ing aid materials, is operated from a central office. The
transportation system is desegregated and is operated from
a central office, with buses scheduled for the convenience
of all students equally. A transportation system within
the Natchez city limits, supported entirely by local funds,
is operated in order to make the freedom of choice plan
more effective.
The Natchez freedom of choice plan is working ef-
fectively to accomplish desegregation. The Natchez school
board is composed of members of both races and has never
had a dissenting vote on any issue involving school de-
segregation. The administrative staff is desegregated.
Forty Negro teachers teach in the white schools and 53
white teachers teach in the Negro schools on a permanent
half-day basis. Of the 16 attendance centers nine are in-
tegrated. Eight of these are predominantly white and one
is predominantly Negro. In at least one predominantly
white school there are approximately 30% Negro students
95
in attendance. In the predominantly Negro school which is
desegregated, there are approximately 40% white students
in attendance. Integration among students of the district
increased approximately 100% from the 1967-68 school year
to the 1968-69 school year.
All faculty and staff meetings are integrated, and all
in-service workshops are integrated. Athletic programs
at the various schools are integrated and students of both
races are on the squads at the mixed schools.
This extensive integration and complete desegregation
has taken place during the two and one-half years since
the freedom of choice plan was inaugurated. This is par-
ticularly remarkable in view of the “near state of anarchy”
which had existed at Natchez during recent months re-
ferred to in the District Court’s order dated January 28,
1966. During 1965 the District Court rendered its findings
of fact and conclusions of law as to Natchez, reciting:
The City of Natchez and Adams County, Missis-
sippi, are now and have, for the past two months, been
subjected to unusual racial tension and unrest. Dem-
onstrations, boycotts, and riots have been and are being
threatened, and the situation recently developed to the
extent that the National Guard was ordered into said
City to protect persons and property against violence.
96
PRAYER
Petitioners pray that upon the issuance of a writ of
certiorari the hearing thereof be expedited as rapidly as
is consistent with the filing in this Court of the full rec-
ords, preparation of transcripts of proper portions thereof
and complete briefing by the attorneys for the parties.
Respectfully submitted, this 8th day of October, 1969.
en
A. F. SUMMER
Attorney General for the
State of Mississippi
JOHN C. SATTERFIELD
Attorney
IN BEHALF OF
CALVIN R. KING, Attorney for Holmes County Board
of Education, et als.,, Civil Action No. 2779(J) in
the District Court;
BRIDGFORTH & LOVE; CAMPBELL & CAMP-
BELL; SATTERFIELD, SHELL, WILLIAMS AND
BUFORD, Attorneys for The Yazoo City Municipal
Separate School District, The Yazoo County Board
of Education and The Holly Bluff Line Consolidated
School District, Civil Action No. 1209(W) in the
District Court;
HAROLD M. DAVIDSON, Attorney for Leake County
School Board, et als., Civil Action No. 3382(J) in
the District Court;
HERMAN GLAZIER, Attorney for the Issaquena
County Board of Education, et als., The Sharkey
County Board of Education, et als., The Anguilla
97
Line Consolidated School District, et als., and The
Sharkey-Issaquena Line Consolidated School Dis-
trict, et als., Civil Action No. 1096 (W) in the Dis-
frict Court;
TALLY D. RIDDELL and ROBERT H. COVINGTON,
Attorneys for The Enterprise Consolidated School
District, et als., The Quitman Consolidated School
District, et als., and The Clarke County Board of
Education, et als., Civil Action No. 1302(E) in the
District Court;
THOMAS H. WATKINS, JOHN ROACH and RICH-
ARD WATSON, Attorneys for North Pike Consoli-
dated School District, Civil Action No. 2807(J)
and Wilkinson County School District, Civil Action
No. 1160 (W) in the District Court;
WILLIAM B. COMPTON, Attorney for The Meridian
Separate School District, et als., Civil Action No.
1300 (E) in the District Court;
W. A. ALLAIN, Assistant Attorney General for the
State of Mississippi, Attorney for all Respondent
School Districts;
JOE R. FANCHER and ROBERT GOZA, Attorneys
for The Canton Municipal School District, et als.,
and The Madison County School District, et als.,
Civil Action No. 3700(J) in the District Court.
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Brief
in Response to Petition for Writ of Certiorari to the United
States Court of Appeals for the Fifth Circuit, Including
Objections to Petition with Motion to Advance, and Cross-
Petition for Writ of Certiorari with Motion to Expedite
Hearing, were served on the Petitioners on this 8th day
98
of October, 1969, by mailing copies of same, postage pre-
paid, to their counsel of record at the last known address
as follows:
Melvyn R. Leventhal
Reuben V. Anderson
Fred L. Banks, Jr.
John A. Nichols
538-1/2 North Farish Street
Jackson, Mississippi 39202
Jack Greenberg
Jonathan Shapiro
Norman Chachkin
Suite 2030
10 Columbus Circle
New York, New York
Jerris Leonard
Assistant Attorney General
Department of Justice
Washington, D. C.
Erwin N. Griswold
Solicitor General of the U.S. Department of Justice
Washington, D. C.
Robert E. Hauberg
United States Attorney
Post Office Building
Jackson, Mississippi
Of Counsel
le
EXHIBIT A
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Nos. 28030 and 28042
UNITED STATES OF AMERICA,
Plaintiff- Appellant,
y.
HINDS COUNTY SCHOOL, BOARD, ET AL,
Defendants-Appellees.
(Civil Action No. 4075(J))
(The Remaining 24 Consolidated Cases Are Also Captioned
but Not Listed Here.)
ON APPEAL FROM THE UNITED STATES District COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
PETITION FOR REHEARING IN BANC AND FOR STAY
OF PROCEEDINGS IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF MISSIS-
SIPPI, OR, IN THE ALTERNATIVE, FOR RECALL OF
MANDATE OF THIS COURT
TO THE COURT OF APPEALS FOR THE FIFTH CIR-
CUIT AND THE JUDGES THEREOF:
It is the understanding of counsel for all of the ap-
pellees that the foregoing entitled causes were consolidated
2e
by this Court for the purpose of the hearing on appeal,
even though counsel have not been furnished with copy
of any such order, if such be in existence. Each of the
school districts involved is represented by separate coun-
sel, even though there are some counsel that represent
more than one of the districts. The facts in each district
differ from the facts in the other districts and the issues
presented vary with each district. Nevertheless, there
are some basic general issues that are common to all of
the appellee school districts. Therefore, counsel for ap-
pellee school districts have concluded that only one pe-
tition should be filed covering these general basic issues
that are common to all districts, rather than have separate
petitions filed for each of the appellee school districts.
Accordingly, this petition is filed on the assumption that
the Court will accept this petition as being applicable to
all of the appellee school districts, even though it is not
signed by the counsel of record for each of the appellee
school districts.
This petition for a rehearing of the above entitled
causes is being filed with the belief and conviction that
it is essential that the issues presented herein receive full
and complete consideration by this Court in banc, the
proceedings in the district court must be stayed or the
mandate of this Court recalled. This petition is being filed
in accordance with Rule 40 and Rule 35 of the Rules of
Appellate Procedure, and in support of this petition, your
petitioners assert as follows:
1. The appellees have not been accorded due process
of law in this appeal.
2. Various panels of this court have not been con-
sistent in their interpretation and application of the deci-
sion of this Court rendered, in banc, in United States of
3e
America v. Jefferson County Board of Education, 380 F.2d
385, and this Court, sitting in banc, should establish what
was meant by the in banc decision of this Court in the
Jefferson case, supra.
3. Various panels of this Court have not been con-
sistent in their interpretation and application of the de-
cisions of the United States Supreme Court in Green V.
County School Board of New Kent County, Virginia, 319
U.S. 430, 20 L.Ed.2d 716, 88 S.Ct. 1689; Raney v. Board of
Education of Gould School District, 391 U.S. 433, 20 L.Ed.2d
727, 88 S.Ct. 1697; and Monroe v. Board of Commissioners
of the City of Jackson, Tennessee, 391 U.S. 450, 20 L.Ed.2d
733, 383 S.Ct. 1700; and this Court, sitting in banc, should
make an interpretation and application of those decisions
of the United States Supreme Court that can be uni-
formly applied.
4. These proceedings involve questions of excep-
tional importance.
This is a petition, not a brief, and there should not
be, and therefore will not be, any extended discussion of
the issues involved. It is our intent and purpose, how-
ever, to set forth sufficient of the issues to illustrate and
demonstrate the need for the grant of the relief sought
by this petition.
1. The Appellees Have Not Been Accorded Due Process
of Law in This Appeal.
The chronology of events in connection with the ap-
peal to this Circuit is as follows:
A. The district court, consisting of three judges, for
the Southern District of Mississippi, sitting in banc, ren-
dered its opinion on May 13, 1969.
de
B. The district court entered its order pursuant to
the foregoing opinion on or about May 16, 1969 in each of
the above referenced cases.
C. On May 28, 1969, the district court entered ad-
ditional findings of fact.
D. Attorneys for the private plaintiffs filed notice
of appeal and a motion for summary reversal on June 10,
1969.
E. The United States of America filed notice of ap-
peal on June 12, 1969 in the cases where the United States
of America was plaintiff but filed no motion for summary
reversal in connection with said notice of appeal.
F. On June 10, 1969, notice was issued by the Clerk
of the United States Court of Appeals for the Fifth Circuit
to the attorneys for the school districts in which there
were private plaintiffs, that the motion for summary re-
versal would be presented for ruling without oral argu-
ment on or about June 20, 1969, together with any re-
sponse or opposition that may be filed by opposing counsel
by that date.
G. On June 23, 1969, the United States of America
filed a “Motion for Summary Reversal and Motion to Con-
solidate Appeals, etc.” in the cases in which the United
States of America was plaintiff.
H. On June 23, 1969, the Clerk of the United States
Court of Appeals for the Fifth Circuit mailed a letter to
counsel of record to the effect that the motion of the United
States of America had been filed and would be presented
on or about July 3, 1969 together with any response or
opposition that may be filed by opposing counsel by that
date. This notice was received by some of the counsel
on June 24, 1969 and other counsel on later dates.
be
I. On June 24, 1969, the district court entered
an “order as to the appellate record” in which the district
court recognized that the record in these cases was vol-
uminous and that it would be “a Herculean task for the
appellate court to examine such a voluminous record in
any reasonable length of time”. Accordingly, the district
court ordered that appellants’ counsel was to file with
the Clerk of the court within five days a designation of so
much of the record in each of the cases that they desired
to be used in the appeal. The district court further ordered
that within three days after receipt of a copy of such des-
ignation by appellants’ counsel, appellees’ counsel was to
file a designation of those parts of the record not previously
designated which they deemed necessary for use on ap-
peal. The court further ordered that the Clerk should have
thirty days in which to prepare the record and to forward
same to the Clerk for the Court of Appeals for the Fifth
Circuit in New Orleans.
J. On June 25, 1969, the Clerk of the United States
Court of Appeals for the Fifth Circuit addressed a letter
to counsel of record in all cases, including those in which
there were private plaintiffs and those in which the plain-
tiff was the United States of America, to the effect that
the Court would 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”. (Emphasis added). This letter further
advised that the argument would be held in New Orleans
beginning at 9:30 A.M., July 2, 1969, and any memoranda
or responses would have to be filed in the office of the
Clerk by noon, July 1, 1969. In this letter, it was recited
that the Court had taken notice of the district court’s order
with respect to the record but that since appeal was being
expedited on the original record, the United States attorney
6e
should make arrangements with the District Clerk to
transmit to the Clerk of the Court of Appeals the entire
record of the district court so that same would be available
to the Court if needed during the argument and summa-
tion. It was further stated that the Court recognizes that
“this is a huge record involving a large number of parties
and matters of great public interest and importance”.
K. The foregoing letter dated June 25, 1969 was re-
ceived by some of the counsel of record on June 26, 1969
and by others on June 27, 1969. This meant that counsel
had, at best, Friday June 27, Saturday June 28, Sunday
June 29 and Monday June 30 to prepare any response,
since it had to be filed by noon, July 1, 1969.
L. Briefs filed by the United States of America were
received by some of the counsel on Monday, June 30, 1969
and by others on Tuesday, July 1, 1969. In addition, sup-
plements to the brief were delivered to counsel on the
morning of the hearing, July 2, 1969. Thus, counsel were
afforded no opportunity whatsoever to examine or inspect
same in order to reply thereto either in writing or orally.
M. The proposed opinion-orders as submitted by
the private plaintiffs and the United States of America
were not submitted to nor seen by opposing counsel until
the morning of the hearing, July 2. Accordingly, there
was no opportunity to examine same or make any mean-
ingful comments in regard thereto.
N. The record in the district court was brought into
the courtroom and was present during the argument on
July 2. It is the understanding of counsel that this record
consisted of four large packing boxes and that these boxes
were still sealed as same had been sealed by the Clerk
of the district court and remained sealed during the entire
argument.
Te
O. The oral argument of counsel was concluded dur-
ing the middle of the afternoon on July 2.
P. The opinion of the panel of this Court was en-
tered July 3, 1969, applying to all of the cases.
It is submitted that the record in these cases has not
been examined by any member of the Fifth Circuit Court
of Appeals. Yet, on July 1, 1969, another panel of the
Fifth Circuit in Cause No. 27281, styled United States of
America Vv. Board of Education of Baldwin County,
Georgia, rendered an opinion in which it was stated as
follows:
“In the case now before the Court, we conclude, after
a study of the record, that the district court correctly
decided that a freedom of choice plan was more suit-
able than a zoning plan for Baldwin County, Georgia.
We base this conclusion on the county’s racial resi-
dential patterns, the location of the schools and the
projections for 1969-70.”
Thus, we have a clearcut illustration and demonstra-
tion of, in one case, a panel of this Court examining the
record of a case and, after analysis of the facts of that
particular case, reaching a conclusion. No consideration
was given by the panel deciding these cases as to the
facts as they exist in any of these cases other than bare
statistics; and, in the panel’s opinion which purported to
cover statistics in each of the districts involved, the Court
omitted any findings of statistics as to a number of the
school districts which were appellees.
8e
2. Various Panels of This Court Have Not Been Con-
sistent in Their Interpretation and Application of
the Decision of This Court Rendered, In Banc, in
United States of America v. Jefferson County Board
of Education, 380 F.2d 385, and This Court, Sitting
In Banc, Should Establish What Was Meant by the
In Banc Decision of This Court in the Jefferson Case,
Supra.
(The discussion under this point is omitted as the entire
Petition is a part of the Record in the Supreme Court of
the United States.)
3. Various Panels of This Court Have Not Been Con-
sistent in Their Interpretations and Application of
the Decisions of the United States Supreme Court
in Green v. County Board of Education of New Kent
County, Virginia, 319 U.S. 430, 20 L.Ed.2d 716, 88
S.Ct. 1689; Raney v. Board of Education of Gould
School District, 391 U.S. 433, 20 L.Ed.2d 727, 88
S.Ct. 1697; and Monroe v. Board of Commissioners
of the City of Jackson, Tennessee, 391 U.S. 450, 20
L.Ed.2d 733, 88 S.Ct. 1700; and This Court, Sitting
In Banc, Should Make an Interpretation and Ap-
plication of Those Decisions of the United States
Supreme Court That Can Be Uniformly Applied.
The United States Supreme Court in the Green case,
supra, Raney case, supra, and Monroe case, supra, clearly
enunciated the basic principles that the Constitution re-
quires all districts to be operated on a unitary, nonracial,
nondiscriminatory basis and that, in districts having
a history of de jure segregation, the school boards oper-
ating such school systems were required to effectuate a
transition to a racially nondiscriminatory school system.
In this context, the Supreme Court stated that steps must
be taken in which racial discrimination would be elim-
inated, root and branch. These decisions, it is submitted,
clearly establish that each school district of the nation
Je
must be operated as a unitary, nonracial, nondiscrimina-
tory school district and that, in districts that have a his-
tory of de jure segregation, the trustees of the school district
have the affirmative duty of “eradicating the last vestiges
of the dual system”. The confusion and misunderstand-
ing now rampant in this Circuit grows out of the interpre-
tation and application of these basic concepts. It is es-
sential that this confusion be eliminated. Literally hun-
dreds of thousands of children are involved, as well as
the entire educational system. The interpretation and ap-
plication of these basic concepts, it is submitted, is prob-
ably the most important question facing the courts of this
nation today. Involved in the answer to this question is
whether the schools will be operated, in their day to day
operations, by a federal department under the supervision
and guidance of the federal judiciary, or whether the of-
ficials of the districts can, through qualified educators,
operate the schools in conformity with the concepts of the
applicable provisions of the Constitution as defined by
the courts.
The two concepts are as follows: (A) a unitary, non-
racial, nondiscriminatory school system, and (B) the
vestiges of a dual system which must be removed by the
trustees of the school districts. We will briefly discuss
these two concepts with the thought in mind of at least
demonstrating the necessity for a clearcut, understandable
judicial definition—a definition that is based upon consti-
tutional principles and not upon the changing guidlines
of a department of the executive branch of our govern-
ment dealing with the expenditure of funds.
A. What is a unitary, nonracial, nondiscriminatory
school system?
It is submitted that the answer to this question is not
too difficult. It is a school system which is open and free
10e
to all pupils and in which race is not a factor. In fact, if
it is to be ‘‘nonracial”, then it is a contradiction on its face
to take action that is motivated by the race of the pupil.
One panel of the Fifth Circuit has given a definition in
the Broussard case, supra, as follows:
[13 . it would appear than an ‘integrated, unitary
school system’ is provided where every school is open
to every child. It affords ‘educational opportunities
on equal terms to all.’ That is the obligation of the
Board.”
This Court in the Jefferson decision, supra, in banc,
stated as follows:
“The governmental objective of this conversion is—
educational opportunities on equal terms to all.”
It is submitted that this concept is clear, can be fol-
lowed and implemented by school trustees of all school
districts. The school districts throughout the nation,
whether they have a history of de jure, de facto, or no
segregation at all, must be operated on a unitary, nonracial
basis. This is easily understood and can be easily imple-
mented by the trustees that are acting in good faith. If
the trustees are not acting in good faith, such can be easily
demonstrated to and corrected by the district court and
will not require that the federal courts become involved
in the day to day operations of the schools in the school
districts.
It is submitted that, if this Court in banc expressly
adopts the definition of a unitary, nonracial, nondiscrim-
inatory school system as succinctly set out in Broussard,
supra, which, with deference, it ought to do, then the only
problem which would remain would be to properly deal
with the second concept.
B. What are the vestiges of the dual system which
must be eradicated by the trustees of the school districts?
1le
Quite frankly, it would also appear that the answer
to this question should not be too difficult. It is submit-
ted, however, that some of the recent decisions of various
panels of this Court have made requirements of school
districts that are mot in keeping with the obligation to
remove the vestiges of the dual system and have thereby
created confusion and consternation concerning the mean-
ing of this obligation.
Our discussion here will be based upon the assumption
that we are correct in that the obligation of the trustees
of the school districts located in formerly de jure segre-
gated states is the affirmative duty to eradicate the last
vestiges of the dual system. If this be true, then these
vestiges must be identified and eradicated. It is not
enough to operate a unitary system at this time. These
trustees must go further and eradicate or eliminate any
vestiges of the dual system.
Illustrative of the points we are attempting to make
here is the decision by a panel of this Court in the Adams
case, supra. The panel in the Adams case, supra, with
no record before it, and with no opportunity being offered
counsel to be heard, made a specific finding that an all-
Negro school was a vestige of the dual system and must
be eradicated in all districts in the Fifth Circuit. Since
that time, the language in the Adams decision, supra, has
been quoted by several panels of this Court. Insofar as
we know, however, no case has ever been presented to
this Court which contained facts which would support a
finding that this is a vestige of a dual system. A study of
the history of litigation in this field indicates that the
“racial statistics” approach as a measuring device for de-
termining whether the last vestiges of the dual system
have been removed originated with the office of Health,
12e
Education and Welfare. That office promulgated guide-
lines which contained statistical requirements to be used
in determining whether funds would be made available
to the various school districts. It is submitted that this
approach has been adopted by some of the panels in this
Circuit as a constitutional requirement, when, as a matter
of fact, the office of Health, Education and Welfare has
no authority to make constitutional interpretations that
are binding on the courts and that office had no hearing
or proof upon which to reach such a conclusion in the first
place. Certainly the decisions of this court should be
supported by proof.
If it be assumed that the Fifth Circuit has found, with-
out the benefit of any proof of any kind, that an all-Negro
school constitutes a vestige of the dual system, then we
think it important that this Court’s attention be called
to the case of Goss v. Board of Education of Knoxville,
Tennessee, 406 F.2d 1183 (decided February 10, 1969). In
the Goss case, supra, the Court of Appeals for the Sixth
Circuit specifically found and adjudicated that:
“The fact that there are in Knoxville some schools
which are attended exclusively or predominantly by
Negroes does not by itself establish that the defend-
ant Board of Education is violating the constitutional
rights of the school children of Knoxville. . . . Neither
does the fact that the faculties of some of the schools
are exclusively Negro prove, by itself, violation of
Brown.”
We do not know the extent of the proof, if any, on
this particular point that was in the record in the Goss
case; however, for purposes of presenting the point here
being discussed we are assuming that there was mo actual
proof before the court and that the Sixth Circuit, like
the Fifth Circuit, has made a finding based on taking
judicial notice.
13e
The situation is, therefore, that we have Courts of
Appeal for different circuits reaching opposite conclusions
based on judicial notice and without the benefit of any
actual proof in the record on which these conclusions
could be based.
In these proceedings now before this Court, there is
proof, which was uncontradicted, that the existence of
all-Negro schools is not a vestige of the dual system. In
addition, there has been filed in the Fifth Circuit statis-
tical information taken from the official records of the
office of Health, Education and Welfare showing the
racial composition of schools in the one hundred largest
school districts in this nation. Most of these districts have
never had a dual system. These statistics show, and we
submit this is conclusive, that all-white and all-Negro
schools exist in every school district where there is a
large percentage of both white and Negro pupils. These
statistics show, beyond question, that all-white and all-
Negro schools do exist in school districts that have never
had a dual system. As a matter of fact, of the 12,497
schools in these one hundred school districts, assuming
that a school with less than one percent of the minority
race is an all-Negro or all-white school, 6,137 are either
all-white or all-Negro. In other words, over forty-eight
percent of the schools in the one hundred largest school
districts in this nation are either all-white or all-Negro.
Most of these districts are in areas that have never had a
dual system. We submit, therefore, that for this Court
to adjudicate that the existence of an all-Negro or an
all-white school is, in and of itself, a vestige of the dual
system is without support of any proof, is incorrect, and
is clearly erroneous.
It is submitted that such a finding by a panel of this
Court is not in keeping with the opinion of this Court in
14e
the in banc Jefferson decision. The language of this Court
in Jefferson, sitting in banc, was that there was to be
“no Negro schools and no white schools—just schools”.
This language of this Court in its in banc decision is in
accord with the obligation of the school trustees to operate
a unitary school system. The schools are not to be Negro
schools nor are they to be white schools. They are to
be just schools. This does not, however, mean that there
must be both white and Negro pupils in attendance at
each and every school. Since the existence of schools at
which only Negroes attend, or the existence of schools at
which only whites attend is not, in and of itself, a vestige
of the dual system, then there is no constitutional basis
on which the courts may or can require their elimination
or eradication as being a vestige of the dual system.
For the benefit of this Court, we are attaching as
Exhibit “A” to this petition the report of Peat, Marwick,
Mitchell and Company, dated June 27, 1969, which, it is
submitted, is self-explanatory.
In addition to the foregoing, there is in this record
testimony of experts which demonstrates conclusively
that (1) all-Negro or all-white schools are not vestiges
of the dual system and (2) a definite or specific amount
of integration of the races in the schools is not an indication
or even proof that the schools are operated on a unitary
basis with the vestiges of the dual system eliminated or
eradicated—at best, it is only peripherally relevant to the
issues.
This evidence also stands uncontradicted and will be
discussed and presented in full, if this petition is granted
and this Court hears these cases in banc.
What we have stated concerning pupils is equally ap-
plicable to faculties. The proof is that an all-Negro fac-
15e
ulty or an all-white faculty is not, in and by itself, a vestige
of the dual system and does not destroy the unitary nature
of the school system.
Other illustrations could be given. It is submitted,
however, that the foregoing discussion points up the ab-
solute necessity of this Court, in banc, determining the
issues presented by these cases. We feel that this is par-
ticularly true in view of the fact that some of the panels
of this Court, without the benefit of a record, have ad-
judicated that all-Negro schools cannot exist, while other
panels of this Court have, upon review of the record, per-
mitted all-Negro schools to exist.
4. The Decision of This Panel Is Contrary to the Civil
Rights Act of 1964 and other Federal Statutes En-
acted under Authority of Section 5 of the Fourteenth
Amendment.
(The discussion under this point is omitted as the entire
Petition is a part of the Record in the Supreme Court of
the United States.)
5. This Is a Case of First Impression in Which It Has
Been Proved by Competent Evidence Admitted by
the District Court and by the Court of Appeals That
Freedom of Choice Is the Most Promising Course of
Action to Bring About Meaningful and Lasting De-
segregation.
(The discussion under this point is omitted as the entire
Petition is a part of the Record in the Supreme Court of
the United States.)
6. Recall of the Mandate or Stay of Further Proceed-
ings by the District Court Is Necessary If Justice
Is to Be Done in These Twenty-Five Cases.
(The discussion under this point is omitted as the entire
Petition is a part of the Record in the Supreme Court of
the United States.)
16e
CONCLUSION
It is respectfully submitted that it is essential that
the relief sought herein be granted. Not only are the
school districts included in this proceeding vitally affected
—but every district in this Circuit. In some of the larger
districts, the eradication of schools attended only by
Negroes or only by whites will be an impossibility—yet,
this, according to a panel of this Court, is unconstitutional.
Obviously, this holding is, in effect, a holding that the
Constitution requires one thing in one school district and
an entirely different thing in another school district. If
an attempt is made to justify such inconsistency by re-
ferring to the factual situation in the respective school
districts, then the fact is that the record in these cases
was not even examined to attempt to determine the facts.
If the courts are to require the trustees and boards
of education to take action that is not based upon consti-
tutional concepts, then the courts will have launched into
the detailed operations of the schools of this Circuit which
will become only more involved and to which there will
be no end. The issues here presented are vital and should
receive the attention of this full Court, sitting in banc.
Until this has been done and the decision made after full
consideration, the action of the district court in these cases
should be stayed or the mandate should be recalled. The
actual continued existence of a responsible public educa-
tional program may be involved in many of the districts
in this Circuit.
17e
EXHIBIT TO PETITION FOR REHEARING IN BANC
PEAT, MARWICK, MITCHELL & CO.
Certified Public Accountants
Post Office Box 690
1232 First National Bank Building
Jackson, Mississippi 39205
Mr. Robert C. Cannada
Attorney-at-Law
Jackson, Mississippi
Dear Sir:
In accordance with your request we have prepared
the attached schedule which reflects an analysis of student
enrollment and professional instructional staff of the one
hundred largest school districts, based on student en-
rollment, in the United States.
The information contained in the schedule was sum-
marized from data obtained by our personnel from Office
for Civil Rights forms OS/CR 102-1 and OS/CR 101 or
from data processing cards or tapes filed in lieu of the
specified forms, which are on file with the U. S. Depart-
ment of Health, Education and Welfare, Washington, D. C.
The above mentioned forms which were required,
under Title VI of the Civil Rights Act of 1964, to be filed
by each school district by October 15, 1968 contain gen-
erally the following information:
Form OS/CR 102-1, Individual School Report:
School enrollment, with breakdown of minority
group membership
Professional instructional staff, with breakdown
of minority group membership
18e
Form OS/CR 101, School System Report:
Summary of information contained in individual
school reports for district related schools
As instructed by you we did not ascertain whether the
school system reports agreed with the combined total of
the individual school reports for each district.
The figures reflected in columns 1, 2, 4, 9 and 10 of
the attached schedule were taken from the school system
reports (Form OS/CR 101) and the figures in columns
5, 6,17 8 12, 13, 14, and 15 were summarized by us from
the individual school reports (Form OS/CR 102-1). As
instructed by you we considered all students and staff
members not designated as minority group members on the
forms to represent white students and white instructional
staff.
The school districts listed in the schedule were rep-
resented to us by the Department of Health, Education
and Welfare to be the one hundred largest in the United
States. We did not attempt to verify the correctness of
this representation.
In our opinion, the accompanying schedule fairly sets
forth the analytical data as to student enrollment and
professional instructional staff of the school districts listed
therein as extracted from the above referenced docu-
ments.
/s/ Peat, Marwick, Mitchell & Co.
June 27, 1969
19e
19e
Analysis of Student Enrollment and Professional Instructional Staff
of One Hundred Largest School Districts
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9 Column 10 Column 11 Column 12 Column 13 Column 14 Column 15
PROFESSIONAL INSTRUCTIONAL STAFF
STUDENTS: No. of Schools No. of Schools
Enrollment . No. of Schools No. of Schools No. of Schools No. of Schools No. of Schools Having Less No. of Schools Having Less
Total White in Which No Having Less in Which No Having Less ] Having No White Than 20% White Having No Negro Than 20% Negro
and Negro Total Schools White Students Than 1% White Negro Students Than 1% Negro Total White Instructional Instructional Instructional Instructional
District White Negro Enrollment in District are Enrolled Enrollment are Enrolled Enrollment White Negro and Negro Staff Members Staff Members Staff Members Staff Members
Chicago Public Schools, Chicago, Ill. 219,478 308,266 527,744 610 141 67 132 52 15,678 7,825 23,503 8 80 228 109
Fort Wayne Community Schools, Fort Wayne, Ind. 35,377 5,760 41,137 56 ; - - 8 13 1,753 74 1,827 - - 31 20
Indianapolis Public Schools, Indiana 72,010 36,577 108,587 119 6 1% 18 17 3,467 1,009 4,476 - 3 1 74
Des Moines Community Schools, Iowa 42,425 3,611 46,036 81 - - 14 22 2,059 4p 2,103 2 z 52 28
Jefferson Co. Schools, Louisville, Kentucky 82,354 4,109 86,463 82 - 1 33 21 3, 638 70 3,708 z Z 61 19
Louisville Indep. Schools, Kentucky 29,702 25,470 554172 ) 65 2 5 7 3 1,759 775 2,534 1 9 2 17
East Baton Rouge Schools, Louisiana 39,770 23,753 63,523 102 34 ! 2 18 17 2,005 973 2,978 17 17 20 46
Calcasieu Parish School Board, Lake Charles, La. 29,104 9,934 39,038 73 21 = 13 12 1,361 408 1,769 14 1 JAA 8
Anne Arundel Co. Schools, Annapolis, Maryland 565457 8,923 65,380 90 - ir 6 9 2,747 382 3,129 - = 9 60
Baltimore City Public Schools, Maryland 66,997 125,174 = 192,17) 204 63 26 10 11 3,859 4,350 8,209 29 56 2 41
Montgomery Co. Public Schools, Rockville, Md. 113,630 4,872 118,502 173 - - 9 51 55379 296 5,875 - - 51 114
Baltimore Co. Board of Ed. Baltimore, Md. 119,378 4,299 12 34.677 160 - - 38 40 5.977 263 6,240 1 73 80
Prince George Co. Board of "Ed. Marlboro, Md. 124,663 22,313 146,976 210 5 1 20 39 6,132 972 7,104 - 5 35 123
Boston School Department, Massachusetts 64,500 25,482 89,982 196 1 10 30 15 4,841 234 5,075 - il 108 78
Detroit Public Schools, Michigan, 115,225 176,478 291,703 302 20 47 18 13 7,669 4,830 12,499 1 6 9 92
Special School Dist. No. 1, Minneapolis, Minn. 62,490 5,255 67,745 98 - - 19 23 3,309 122 3,431 - - 52 43
glider School Dist. No. 625, St.. Paul, Minn. 46,686 2,917 49,603 83 - - 22 18 2,070 40 2,110 - S 59 21
te Louis City School Dist., Mo. 41,806 73,408 115,214 164 62 21 25 6 2,128 2,455 4,583 48 28 33 34
rr City School’ Dist. s Mo. 239,510 34,692 74,202 99 7 12 18 6 1,049 1,959 3,008 1 12 13 46
maha Public Schogls Dist. No. 1, Neb.- 49,932 11,284 61,216 95 - 2 22 24 2,373 160 2,533 - v 72 13
Jey tk Public Sc¢hools, Newark, N. J. 13,716 55,057 68,773 80 10 17 - - 2,834 1,240 4,074 - - 1 23
G3 ark Co. School Dist., Las Vegas, Nev. : 56,723 8,233 64,956 86 - 1 20 : 18 2,646 136 2,782 1 - 48 32
Jefsey City School Dist., N, J. 16,457 15,998 32,455 35 ! ! : 2 Loh gos Loe : - 4 27 loins que Public Schinl System, N. M. 47,710 1,897 49,607 110 - 1 25 36 2,774 41 2,815 - - 83 27
Ot 3 rlotte - Mecklenburg Schools, N. C. -= 58,623 24,241 82,864 112 14 6 16 12 2,910 961 3,871 14 7 - 79
WW na ton-Salem/Forsyth Co., Winston-Salem, N. C. 35,975 13,798 49,773 67 14 - 11 10 1,576 606 2,182 - 13 5 46
‘Ok{ahoma City Public School Dist., I-89, Okla. 58,472 16,255 74,727 115 3 12 45 21 2,424 544 2,968 5 2 5 82
Pott1and Public Schools, Oregon 71,331 6,463 77,79% 1i5 - - 9 31 3,479 123 3,602 - - 80 32
Independent School Dist. No. 1, Tulsa, Okla. 66,413 9,728 76,141 105 6 2 BZ 21 2,887 377 3,264 1 i 2 92
Pittsburgh City School Dist. ba. 46,005 29,898 75,903 113 6 7 9 4 3,109 428 3,537 - - 49 42
Charleston Co. School Dist., charleston, S.-C. 30,351 16,730 47,081 73 29 - 5 8 1,345 597 1,942 10 15 21 23
Richland Co. School Dist., Columbia, S. C. 21,387 18,735 40,122 63 20 4 4 3 1,149 679 1,828 4 19 15 23
Greenville Co. Schools, Greenville, S. C. 43,853 12,453 56,306 103 20 1 19 19 1,976 469 2,445 13 8 64 17
Shelby Co. School Dist., Memphis, Tenn. 29,618 14,281 43,899 51 17 1 8 8 1,161 548 1,709 1 7 - 14
Memphis City School System, Tenn. ° 58,271 67,395 125, 666 128 43 4 28 13 2,841 2,276 5,117 5 38 2 69
Metro. Nashville-Davidson Co. Schools, Tenn. 71,039 22,561 93, 600 142 14 i 29 18 3,169 853 4,022 - 15 39 68
Austin Indep. School Dist., Texas 33,934 25783 41,717 67 3 4 11 19 2,204 369 2,573 - 7 11 43
Corpus Christi School Dist., Texas 21,097 2,496 23,593 60 3 3 20 17 1,729 60 1,789 - - 22 36
Dallas Indep. School Dist., Texas 97,888 49,235 147,123 173 17 9 79 12 5,112 1,665 6,777 21 10 128 6
El Paso Indep. School Dist., Texas 26,29 1,804 28,098 62 3 3 5 18 2,321 69 2,390 - 1 39 22
Fort Worth Indep. School Dist., Texas 58,011 21,398 79,409 118 25 3 45. 11 2,864 852 3,716 9 12 69 21
Birmingham Public Schools, Ala. 32,278 34,156 66,434 102 41 2 15 6 ¥,213 1,189 2,402 22 24 - 50
19e
Analysis of Student Enrollment and Professional Instructional Staff
of One Hundred Largest School Districts, Continued
Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9 Column 10 Column 11 Column 12 Column 13 Column 14 Column 15
PROFESSIONAL INSTRUCTIONAL STAFF
: STUDENTS No. of Schools No. of Schools
Enrollment No. of Schools No. of Schools No. of Schools No. of Schools No. of Schools Having Less No. of Schools Having Less
Total White in Which No Having Less in Which No Having Less Having No White Than 207% White Having No Negro Than 20% Negro
and Negro Total Schools White Students Than 1% White Negro Students Than 1% Negro Total White Instructional Instructional Instructional Instructional
District White Negro Enrollment in District are Enrolled Enrollment are Enrolled Enrollment White Negro and Negro Staff Members Staff Members Staff Members Staff Members
Jefferson Co. Schools, Birmingham, Ala. 47,142 18,186 65,328 106 29 = 49 7 2,019 666 2,685 14 il 24 56
Mobile Co. Schools, Mobile, Ala. 44,023 31,441 75,464 92 20 9 14 8 1,524 1,091 2,615 6 25 1 51
San Juan School Dist., Carmichael, Calif. 51,481 134 51,615 77 - - 27 45 2,194 8 2,202 - = 69 8
Montgomery Co. Schools, Montgomery, Ala. 22,402 16,691 39,093 54 20 - 4 8 823 566 1,389 - 10 1 29
Fresno City School Dist., Fresno, Calif. 40,748 5,251 45,999 74 1 2 8 22 2,309 37 2,346 - : 54 19
Garden Grove School Dist., Garden Grove, Calif. 47,147 83 47,230 70 - - 40 28 1,956 9 1,965 - = 61 9
Long Beach School Dist., Long Beach, Calif. 61,454 5,489 66,943 78 - - 19 27 2,934 100 3,034 - . 40 35
San Francisco School Dist., Calif. 40,824 253923 66,747 154 3 3 2 5 4,223 381 4,604 - 1 39 9%
Los Angeles School Dist., Calif. 350,909 147,738 498, 647 591 19 46 91 203 21,376 3,935 25,311 1 6 228 233
Mt. Diablo Unified Schools, Concord, Calif. 45, 645 369 46,014 56 - - 21 26 2,122 9 2,131 = = 48 8
Oakland Unified Schools, Oakland, Calif, 19, 835 35,386 55,221 88 3 9 - - 2,227 661 2,888 - - i 48
Richmond Unified, Richmond, Calif. 28,860 10,424 39,284 63 1 | 6 7 1,676 198 1,874 s ¥ 19 34
Sacramento City Unified, Calif. 34,763 7,324 42,087 77 - - - 3 1,925 106 2,031 - 3 22 48
San Diego Schools, Calif. 98,163 15,004 113,167 153 - 1 24 46 5,381 229 5,610 - - 82 66
School Dist. No. 1, City & Co. of Denver, Colo. 63,398 13,639 77,037 116 - 3 16 35 4,166 338 4,504 v, - 32 69
Jefferson Co. Schools, Lakewood, Colo. 58,909 60 58,969 111 - - 78 30 2,3% 7 2,601 = c 105 5
District of Columbia Public Schools 8,280 139,006 147,286 188 55 59 - - 1,645 6,038 7,683 25 83 1 i
Dade Co. Public Schools, Miami, Fla. 135,598 56,518 192,116 215 29 13 58 35 8,037 2,016 10,053 1 21 2d 137
Orange Co. Board, Orlando, Fla. 63,034 13,055 76,089 96 17 - 25 19 2,630 578 3,208 5 11 13 60
Hillsborough Co. Schools, Tampa, Fla. 74.573 19,212 93,785 231 21 2 38 15 3,260 694 3,954 8 13 71 34
Palm Beach Co. Board, West Palm Beach, Fla. 42,972 17,158 60, 130 91 21 - 11 18 2,549 776 3,325 1 5 4 50
Brevard Co. Board, Titusville, Fla. 55,511 6,327 62,138 67 2 - 8 11 2,617 213 2,830 - - 5 56
Pinellas Co. Board, Clearwater, Fla. 65,296 12,715 78,011 109 5 6 44 11 3911 481 3,792 = 6 9 85
Duval Co. Board, Jacksonville, Fla. 87,999 34,638 122,637 135 24 4 26 18 4,100 1,551 5,651 16 4 71 29
‘Broward Co. Board, Fort Lauderdale, Fla. 77,487 24,516 102,003 107 20 3 31 15 3,808 957 4,765 3 19 39 43
Escambia Co. Board, Pensacola, Fla. 33,729 12,924 46,653 76 18 - 12 9 1,603 476 2,079 11 7 13 42
Polk Co. Schools, Bartow, Fla. 40,371 11,652 52,023 94 19 - 19 6 1,990 487 2,477 4 14 25 47
Dekalb Co. Schools, Decatur, Ga. 73,695 4,124 77,819 102 3 - 42 25 3,229 234 3,463 - 2 11 85
Gary Community Schools, Gary, Ind. 14,063 29,826 43,889 45 13 8 2 2 973 1,287 2,260 3 13 1 10
Unified School Dist. No. 259, Wichita, Kan. 58,060 8,913 66,973 116 - 2 42 13 3,173 197 3,370 - < 43 65
New Orleans Public Schools, La. 34,673 74,378 109,051 131 45 16 8 3 2,260 2 +560 4,820 36 23 31 35
Atlanta Public Schools, Ga. 42,506 68, 662 111,168 160 63 9 20 9 2,354 2,834 5,188 6 58 8 64
Muscogee Co. Schools, Columbus, Ga. 29,571 124517 42,088 67 13 3 20 9 1,317 497 1,814 - 16 5 39
Chatham Co. Schools, Savannah, Ga. 24,967 17,449 42,416 63 24 2 3 6 1,076 675 1,751 13 12 5 26
Cleveland, Ohio, Cuyahoga Co. 66,324 87,241 153,565 180 23 34 35 23 4,184 2,505 6,689 2 13 36 44
Cincinnati, Ohio, Hamilton Co. 49,231 372275 86,506 106 8 5 11 16 2,990 867 3,857 1 - 7 60
Toledo, Ohio, Lucas Co. 43,658 16,473 60,131 76 2 1 18 10 2,275 452 2,727 - 1 27 32
Akron, Ohio, Summit Co. 43,341 15,137 58,478 71 1 1 11 12 2,304 187 2,491 - z 16 48
Columbus, Ohio, Franklin Co. 81,655 28,729 110,384 168 2 4 38 33 4,124 594 4,718 - 2 49 80
Dayton, Ohio, Montgomery Co. 36,582 22,790 59,372 69 4 10 13 8 1,963 776 2,739 1 9 11 33
Tacoma, Wash., Pierce Co. 32,646 3,535 36,181 66 - - 3 4 1,839 51 1,890 1 - 36 26
Seattle, Wash., King Co. 775293 10,376 87,669 130 - - 10 15 4,131 201 4,332 - 5 69 54
19e
Analysis of Student Enrollment and Professional Instructional Staff
of One Hundred Largest School Districts, Continued
Column 1 Column 2 Column 3 Column 4&4 Column 5 Column 6 Column 7 Column 8
Column 9 Column 10 Column 11 Column 12 Column 13 Column 14 Column 15
PROFESSIONAL INSTRUCTIONAL STAFF
STUDENTS : No. of Schools No. of Schools
Enrollment No. of Schools No. of Schools No. of Schools No. of Schools No. of Schools Having Less No. of Schools Having Less
Total White in Which No Having Less in Which No Having Less Having No White Than 207% White Having No Negro Than 20% Negro
and Negro Total Schools White Students Than 17 White Negro Students Than 17 Negro Total White Instructional Instructional Instructional Instructional
District White Negro Enrollment in District are Enrolled Enrollment are Enrolled Enrollment White Negro and Negro Staff Members Staff Members Staff Members Staff Members
Buffalo, N, Y., Erie Co. 43,942 26,331 70,323 101 4 12 3 2 3,439 374 3,813 - = 21 61
Rochester, N. Y,, Monroe Co. 32,016 13,679 45,695 59 - = = 2 2,276 165 2,441 - - 21 29
New York City Public Schools, N. Y., N. Y. 467,365 334,841 802,206 853 39 74 20 25 55,663 5,002 60, 665 - 1 297 533
Houston Indep. Schools, Houston, Texas 131,099 81,966 213,065 225 48 13 49 29 7,005 32255 10,290 8 47 1 154
San Antonio Indep. Schools, Texas 21,310 11,637 32,97 102 14 4 23 22 2,538 412 2,950 7 2 49 34
Granite School Dist., Salt Lake, Utah 60,276 59 60,335 67 - - 42 24 2,534 - 2,534 - - 67 po
Fairfax Co. Schools, Fairfax, Va. 117,906 3,322 121,228 152 - = 40 28 55917 124 6,041 - 78 71
fossotk City Schools, Norfolk, Va. 31,824 23,499 552323 74 21 4 9 4 1,796 913 2,709 1 18 " 42
Richmond City Schools, Richmond, Va. 13,542 29,441 42,983 66 30 2 1 3 902 1,277 2,179 19 13 4 20
Knawha Co. Schools, Charleston, W. Va. 52,471 3,548 56,019 144 - - 66 11 2,349 152 2,501 1 & 26 58
Milwaukee Public Schools, Milwaukee, Wis. 95,089 31,130 126,219 157 7 5 37 30 4,799 671 5,470 1 1h 68 53
Caddo Parish School Dist., Shreveport, la. 33,909 26,429 60,338 76 26 1 14 13 1,513 1,186 2,699 8 19 5 41
Jefferson Parish School Board, Gretna, La. 46,673 12,312 59,485 71 14 - 23 7 2,086 470 2,556 12 1 39 18
School Dist. of Philadelphia, Pa. 109,512 166,083 275, 595 278 9 54 7 17 9,181 4,074 13,253 - 2 3 83
Flint City School Dist., Flint, Mich. 28, 645 07,212 45,857 55 - 3 6 6 1,740 456 2,196 - - 4 28
Jackson Mun. Separate Schools, Jackson, Miss. 20,793 17,919 38,712 56 19 = 14 7 936 663 1,599 nn 8 31 6
6,202,430 3,281,418 9,483,848 12,497 1,400 715 22236 1,786 220,552 97,277 467,829 448 889 3,789 5,290
This schedule is subject to comments contained in the accompanying letter of transmittal.
21e
EXHIBIT B
PORTIONS OF TESTIMONY IN THE UNITED STATES
OF AMERICA v. HINDS COUNTY SCHOOL BOARD
[83] BY MR. SATTERFIELD: May I further inquire of
counsel for the Individual Plaintiffs, by the filing of this
objection as entitled, as I understand, it is intended at least
to be applicable to all cases in which they are individual
plaintiffs. Does counsel file this objection recognizing
that the motion made by the Department of Justice on
behalf of the Secretary and of the United States, does
apply to those seven cases with a possibility of the ad-
dition of two more?
[84] BY MR. AMAKER: Well, we recognize that, yes.
BY THE COURT: Very well, is the rule invoked?
Is there any desire that the rule be invoked? All right.
The rule will not be invoked.
Now, Mr. Leonard, do you want to make an opening
statement?
BY MR. LEONARD: May it please the Court, Judge
Russell and Judge Nixon, I think it appropriate for me to
take just a few minutes and I will attempt to be brief, in
order to help the Court to understand more clearly what
the position of the Government is here and I think a bit of
a review with respect to these cases might be helpful for
all of us in order to set the framework in which the wit-
nesses that we intend to call are going to testify.
We are here, if I understand correctly, attempting
to make a record on which this court is going to make a
recommendation to the Fifth Circuit and I think it is im-
portant to try to keep possibly that in mind as these wit-
nesses are adduced and examined and their testimony put
on the record.
22e
These thirty-three districts—I hope I have the number
right and I realize that we are not in all of these cases, but
I think again the record ought to reflect that we have ad-
dressed [85] our attention to the total group as the order
of the Fifth Circuit applied to all of the cases—had been
operating under freedom of choice plans under the Jeffer-
son Decree until the Green case was decided in May of
1968. Subsequent to that, either the Government or the
private Plaintiffs or both sought orders of this court to re-
quire the Boards to disestablish more affirmatively and
move more affirmatively from their dual systems to a uni-
tary system, and I think it is fair to say that by en-
large these Boards are not complying with the Court in
attempting to move from a dual to a unitary system to
that in July the Government found itself in a position be-
fore the Court of Appeals where it suggested after con-
sultation with appropriate officials with the Department
of HE. W. and with some precident, the precident being
in a bank of cases that were pending in the Courts in South
Carolina, and in some other cases, to bring the office of
Education and the professional educators in that office in
as aids to the Court, as aids to the districts in order to at-
tempt to get some movement from dual to unitary systems
and to aid the school boards in attempting to draw plans
that would in fact disestablish these dual school systems. I
think it is also safe to say that most of the school boards
did cooperate in that at least information was provided
and the educators were received by the collegues in the
districts and were able to draw and pull together the in-
formation necessary to provide some kind of a plan.
[86] I think, however, that it became obvious to the Secre-
tary of Health, Education and Welfare that as the time
pressure was building here both with respect to the field
work that needed to be done, the investigation by his
people, out in the field, in the districts, that it soon became
23e
apparent to him that in order to have, in fact, an orderly
movement from a dual to a unitary system, in order the
accomplish in fact what we believe the Supreme Court
seeks, that is a plan that works, one that is going to ac-
complish the objectives, both with respect to the develop-
ment of the plans and with respect to the implementation
of those plans, that the time was simply too short.
Now, I would be less than candid if I didn’t say that
the Government was somewhat embarrassed by this be-
cause we gave the Fifth Circuit some assurance that there
was time but we are lawyers, not educators, and it is the
educational judgment it seems to me, that’s important here.
These are the men who are trained to educate our chil-
dren. They are the ones that have to make the administra-
tive and the educational decisions that go with bringing
about not just a unitary system but a plan for education
in the framework of elemination of racial discrimination
that’s going to, in fact, result in quality education.
I think it is important that the Government’s position
with respect to the constitutional requirement be made
clear. There is no question that we believe that these
school boards have an [87] affirmative obligation to dis-
establish their dual systems and convert to unitary systems,
just as soon as it is administratively and educationally
feasible to do that on a sound basis and again, pursuant to
a plan that is going to work, and I think that is the key
to us here. We are going to try to show today that to con-
vert to a unitary system on a sound educational basis re-
quires some real planning, some real preparation but it
also requires collaboration from the local school board
officials who are public officials elected by the public and
who have an affirmative obligation to uphold the law, in-
cluding the mandates of the Constitution of the United
States, and we would hope in this process and through the
testimony that we will provide today to show that there
24e
are some techniques, some methods that can be employed
to help the administration, the faculty in these school dis-
tricts to bring that process about, to provide the leadership
in these communities which are necessary in order to infact
get community support for what is required by the Con-
stitution and I think it is fair to say that unfortunately in
too many cases that leadership has not been provided at
the local level of Government where it should be provided.
I think that the position that the Secretary of Health,
Education and Welfare found himself in was one that he
obviously recognized that it would be difficult for the
Boards to implement the plans successfully within the time
that was provided by [88] by the Fifth Circuit in its orders
and that the Boards, not having seriously considered how
they were going to develop a program to successfully de-
segregate these districts, carry this desegregation process
out in an educationally sound basis, rather than to be
responsible for chaos and confusion that could well result
from an implementation within the time period set and
obviously have detremental effects on the children and
that, after all, is his and our consideration, that it was
better to ask the Court to provide some additional time,
and thus, that, may it please the Court, is the framework
in which the Government has moved pursuant to the
Secretary’s letter, to seek a delay in the implementation
of these plans and to give the office of education and the
superintendents and the school boards involved some ad-
ditional time by collaboration to see if, in fact, some agree-
ment cannot be worked out in order to establish the end
of the disestablishment of these districts. Now, it is within
that framework we would like to call our witnesses. We
will do our very best to try to limit their testimony to the
issue at hand here and that’s whether or not a delay should
be recommended by this court and approved by the Fifth
Circuit.
25e
BY THE COURT: I think all counsel should direct
their questions to witnesses in that same light. Let’s
not stray afield here today. We have a limited issue before
the Court and I think all counsel [89] should keep that in
mind.
BY THE COURT: Is there anything further before
we begin testimony? All right, you may call your first
witness.
MR. JESSIE J. JORDAN, was thereupon called as a
witness and having been duly sworn, testified on his oath
as follows:
Direct Examination by Mr. Leonard
Q. Mr. Jordan, would you state your full name, ad-
dress and your occupation? A. Jessie J. Jordan, 782
Pine Hill Drive, Smyrna, Georgia, which is a suburb of
Atlanta. At the present time I am the Senior Program
Officer for Title Four in the U. S. Office of Education in
the Atlanta Region, based in Atlanta, Georgia.
A. Mr. Jordan, would you briefly state for the bene-
fit of the record, your background in education? A. 1
have a B.S. Degree in mathematics and Education, a Mas-
ter’s Degree in School Administration. Three years of
teaching experience, three years as a principal. Twelve
years as a school administrator, director of Transportation,
Director of Program, Director of Maintenance and Opera-
tions, Assistant Superintendent, General Administration.
Q. How long have you been with the Department of
Health, Education and Welfare, and more specifically, the
office of Education? [90] A. I have been with the office
of Education approximately two years.
Q. And during that period of time would you explain
to the Court what your duties have consisted of? A. Title
Four of the Civil Rights Act of 1964 is set up to lend tech-
nical assistance to school systems with problems incident
26e
to desegregation. This takes four forms. One is the fund-
ing of University Centers and Institutes to provide in serv-
ice training, institute seminar programs and other techni-
cal assistance to school systems upon their request. The
second form is a grant to State Boards of Education to
operate a Title Four office within each State Department
of Education. Again, to render technical assistance through
the expertees of the State Department upon request of the
school system. Thirdly, we operate a grant program to
fund grants to local education—boards of education to deal
with probrams incident to desegregation, and then we
maintain a professional staff in Atlanta to render tech-
nical assistance upon request of the school system.
Q. During the period of time that—prior to your
coming with the office of education did you have any
experiences revolving around the problem of desegregation
of the local school system? A. Before coming with the
office of education?
Q. Yes, sir. A. Yes, sir, the school system from
which I cam desegregated [91] in 1967. At that time we
eliminated the dual school system.
Q. And where was that? A. That was in Cobb
County Georgia.
Q. And what was the size of that system? A. Ap-
proximately 40,000 students.
Q. How many schools were there in the system?
A. At that time I believe there were fifty-five.
Q. And you indicated that you were a director of
transportation at one time, was that in Cobb County? A.
Yes, sir.
Q. What was briefly, the extent of their transpor-
tation system? A. At that time Cobb County operated
approximately 145 to 150 busses transporting about 28,000
students.
Q. During the two years that you have been with the
Office of Education, have you been involved with the
I
27e
problems of desegregation of local school districts? A.
Yes.
Q. Would you give us some of ghe background, some
of the states and areas that you have been involved with?
A. We operate in a six state area, South Carolina, Georgia,
Alabama, Mississippi, Florida and Tennessee. We have
had input into a number of desegregation plans at Boards’
request in South Carolina, Georgia, Florida and Tennessee.
In court-order cases we have worked with some twenty-six
in South Carolina, [92] approximately fifteen in Georgia,
ten or twelve in Alabama, and approximately forty-five in
Mississippi.
Q. You have had occasion, have you not, to testify in
Court with respect to the desegregation processing plans
from time to time? A. Yes, sir.
Q. With respect to your position with the Office of
Education, could you tell us how your duties there relate
to the desegregation process specifically? In other words,
what do you do with respect to it? A. The framework
in which we usually work is when a superintendent or a
board, or a superintendent through his board contacts us
or the University and asks for assistance in developing a
plan, which this is done we go into the school system
and work with them to try to develop a plan. We also
work with them in other areas, of course, in service train-
ing and things of this nature.
Q. And in this process do you become personally
familiar with the desegregation plans that are involved?
A. Yes.
Q. And the details of the districts? A. Yes, sir.
Q. Can you tell the Court when you first became in-
volved with the cases that are involved in this lawsuit?
A. My first involvement in the present court-order in
[93] Mississippi was on July 15th.
Q. And what occurred on that date? A. On July
15th, there was a meeting in Mobile, Alabama in which
28e
various Title Four people in our office and other Title
Four offices within the country were pulled together to
discuss and plan the work ordered by the Court in these
particular court-order cases.
Q. What occurred from that meeting? A. From that
meeting there were ten teams formed to contact the school
systems. These teams made their first trip into Mississippi
beginning the 16th and 17th of July, lasting through the
22nd and 23rd of July. Then these teams returned to At-
lanta on the 23rd and worked on putting recommendations
together—
Q. —Let me interrupt, Mr. Jordan for just a minute.
During this first field trip generally tell the Court what the
teams did? A. On the first field trip the teams gathered
statistical information on enrollment, certain building in-
formation, pupil locator maps where available, school lo-
cator maps, visitation of schools and tried to get a general
feeling and in-put from the school system.
Q. And then you were going to say they returned
to Atlanta. What did they do with this information? A.
They came to Atlanta and worked with this information
[94] trying to put together some tentative recommenda-
tions for the school system. Then a second trip was made
into Mississippi.
Q. Can you tell us about when that second visita-
tion occurred? A. Yes, sir, that was begun on July 29th
through August 1st. At this trip the teams met with the
school systems the second time to present some of their
recommendations and to try to get in-put from the school
system.
Q. Then what happened? A. They then returned to
Atlanta during the period of August 2nd to August 6th,
they formalized the plans that they were working on to
recommend to the Board. After they had been formalized,
duplicated and so forth, a third trip was made into Missis-
29e
sippi from the 7th through the 9th at which time the plans
were formally presented to the superintendent or the
board or whoever the superintendent wished present, and
then on August 11th they were filed with the Court.
Q. Tell me, at what point in this process did you
personally become involved? A. I did not make any trips
into Mississippi. I was coordinating the over-all effort
as travel, field coordination and so forth, and reviewing
with the teams a member of a review team, of the plans as
they were put together.
Q. And what did your personal involvement in that
review process consist of? [95] A. The team that devel-
oped the plan, presented the plans to us and we had
critical questions about the plans.
Q. Did that team, was that the team members them-
selves? A. Yes.
Q. Did the review members have any in-put in the
actual development itself? A. The committee did not
actually develop the plans, they did examine the plans
and they accepted the plans.
Q. The review members then was more or less an
advisory committee to iron out any problems that needed
to be corrected? A. That is correct.
Q. Incidentally, Mr. Jordan, do you have on opinion
as to whether or not an unitary school system is superior
education as to the dual system? Q. Yes, I think the uni-
tary school system is far superior to the dual system.
Q. Could you tell us what educational grounds you
base that opinion on? A. To learn to live in this society,
I think its important to students to be trained in a desegre-
gated setting, so each race may learn of the culture of the
other. If they are going to live an adult life together, then
they should be trained together. Statistics and research has
shown this advantage to students, they do better work in
a desegregated setting than they do in a segregated setting,
30e
and advantage students do not do work in a desegregated
setting.
Q. Back to the plans Mr. Jordan, with respect to the
time frame in which they were developed. Do you have
an opinion [96] as to whether or not that time frame had
any affect on the validity of the plans themselves? A. I
think probably the plans themselves were sound; however,
my personal belief in developing plans of this nature, it is
necessary it is necessary to do a number of curriculum
studies which time did not allow for. Curricular was not
examined at all, finance, no financial study was made, no
social or economic study was made to determine the needs
of any given district, and if these studies are made, you
probably will come up with a superior plan than just a
purely segregated plan. You would come up with a plan
for educational change for which the desegregated is a
part.
Q. Now, with respect specifically Mr. Jordan, to the
implementation of the plan, and again within the time
reference, the time frame that is involved in this case.
Do you have an opinion as to whether or not that time refer-
ence and implementation of the plans will have any affect
on the ability of the school administrators in these cases to
put the plans into effect. A. I think the school adminis-
trator begins planning for the opening of the new school
year in the Spring of each year. In order to implement
a new plan, something entirely different, involving the
changing of facilities, and in the sense I'm using from may-
be elementary grades to high school grades, in changing the
resulting curriculum that will come from that and in
accomplishing the renovation and building schools that
must be made, and adjusting such parts as laboratories,
home ec departments, shops, libraries, all of this takes
great planning, [97] and one area that takes even greater
planning is one of faculty members and student prepara-
tions.
3le
Q. Let me interrupt you just one moment before you
go to that. Does that opinion apply to some or all the
school districts involved in these particular cases before
this Court? A. Yes, sir, I think that planning is neces-
sary. I do not think you could have these schools opening
without this planning.
Q. Now, back to the faculty preparation, would you
continue on that? A. I think that faculty preparation is a
must for a school opening, and particularly a must for a
plan involving great changes. For a faculty and principal
and supervisor for a given school system to go into this
with no planning could create very unusual conditions.
This planning takes time and I do not believe that the
period of time between now and the opening of these schools,
is time to accomplish these changes or this much planning.
Q. Would it be your opinion, Mr. Jordan, that fa-
culty preparation that you testified to would be effective
in a move to bringing about a smoother desegregation in
these particular school districts in this area? A. Yes,
sir, I do.
Q. Do you have an opinion, Mr. Jordan, from your
experience, with respect to moving districts together of
rather similarly or the same case in the desegregation
process? A. Yes, sir, we have found in an adjoining dis-
tricts or like districts move together at the same pace, that
it is an [98] advantage to the schools involved. An ex-
ample of this is in Alabama where we have founded what
we call cluster projects. Each of these projects involve
from four to fifteen school systems. In-service training
program which everyone participates in jointly and these
particular school systems in these projects are moving the
same.
Q. And would that opinion apply to school districts
involving the cases in suit? A. Yes, sir.
Q. And would that opinion apply in these instant
case? A. Yes, sir.
32e
Q. Mr. Jordan, earlier in your testimony when you
were discussing the second visitation that was made by
the teams to the school districts involved here, you men-
tioned that they attempted to get in-put from the district,
from the board and the personnel. Could you amplify that
a little bit? What do you mean by in-put? A. Well,
what we actually tried to do, I believe was for the Super-
intendent and members of the Administrative Staff to
give the team any idea they had to give the team any
ideas they might have that should be incorporated into a
desegregated plan or any ideas they had for a desegrega-
ton plan.
Q. Mr. Jordan, have you had in your experience sit-
uations where by doing the preparation process that you
testified to, that the school administrators and the faculty
and the boards are in the position to provide some com-
munity leadership in order to smooth out the desegregation
problems? A. Yes, sir, of course the educational leader-
ship in any [99] school system is the Superintendents,
Principals, Supervisors, and teachers. This is the only
group that can represent the educational leadership, and
if they are adequately trained and prepared, they can, in-
deed, be an educational leader within a group to insure a
smoother, more acceptable movement from a dual to a uni-
tary school system.
Q. Mr. Jordan, the motion filed by the government
would envision that your office would need to work with
the school districts in developing this preparation program
you testified to. Do you believe the capacity of your of-
fice can handle such a program? A. We have the facilities
of the University of the Title Four Center and we have the
facilities of the Atlanta Office. We also would have the
assistance of the State Department, the Title Four office
in the State Department of Education. I think there would
be ample personnel, but I can not guarantee you there
would be enough dollars.
33e
Q. But it is your opinion that if the dollar resources
are available, the personnel would be available to carry this
out? A. That is correct
Q. Can you give the Court a specific example of
where the in-service program, the preparation program
that you testified to was used in a desegregation plan?
A. Yes sir. Twiggs County, Georgia. TWIG GCS.
Twiggs County began a preparation program a year ago
by attending work shops we provided at the University of
Georgia. I believe almost their entire faculty attended a
three week [100] session at the University of Georgia on
desegregation planning and the problems involved in it.
Then, the work shop continued during the school year that
has just ended, throughout the school year. Throughout
that period of time a desegregation plan was designed. The
plan was a two-step plan involving movement in ’69, and
completed the job in 1970. The plan was not under court
order. The plan was adopted by the Twiggs County Board
of Education and will begin implementation in 1969.
Twiggs County is a majority district of about seventy per-
cent black.
Q. Have you had opportunity to see some of the re-
sults specifically of that program? A. The University
people tell me that where they have held this workshop
they have seen remarkable change and attitude among
teachers.
Q. Do you feel in your opinion as an educator, Mr.
Jordan, that the attitude of the faculty and the adminis-
tration of the school district has an impact on the com-
munity itself? A. Yes, sir,
Q. And of the students? A. Yes, definitely on the
students.
Q. And is it your opinion that this leads to a greater
acceptance of movement from a dual to a unitary school
34e
system? A. This is correct, this is what we consider
proper planning.
Q. Ihave no further questions.
BY MR. CANNADA: We have no questions, if the
Court please.
BY THECOURT: [101] Allright.
* LJ *
3be
EXHIBIT C
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Nos. 28030 and 28042
UNITED STATES OF AMERICA,
Plaintiff- Appellant,
HINDS COUNTY SCHOOL BOARD, et al,
Defendants-Appellees,
(And Consolidated Cases)
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI
MOTION IN THE COURT OF APPEALS
The United States moves this Court for an order
amending its order of July 3, 1969 and subsequent amend-
ments thereto in accordance with the proposed amend-
ment order attached hereto.
This motion is based upon the following considerations:
By letter dated August 19, 1969 (a copy of which
is attached) to Honorable William Harold Cox, Chief Judge,
United States District Court for the Southern District of
Mississippi, Secretary Robert H. Finch of the Department
of Health, Education and Welfare requested to be per-
36e
mitted additional time during which experts of the Office
of Education may go into each school district in these
cases and develop meaningful studies in depth and recom-
mend terminal desegregation plans to be submitted to the
Court not later than December 1, 1969. Since Secretary
Finch is in the best possible position to judge the need and
capacities in the Office of Education, we respectfully re-
quest that this motion be granted. We have filed simul-
taneously with this motion a motion in the district court
for an order granting leave to file this motion in this
Court.
Respectfully submitted,
Jerris Leonard
Assistant Attorney General
Civil Rights Division
Washington, D.C. 20530
August 19, 1969
Honorable William Harold Cox
United States District Judge
Jackson, Mississippi 39205
Dear Judge Cox:
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 dises-
tablish the dual school systems in 33 Mississippi school dis-
trict cases.
These terminal plans were developed, reviewed with
the school districts, and filed with the United States Dis-
trict 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 termi-
37e
nal plans were developed under great stress in approxi-
mately three weeks; they are to be ordered for implemen-
tation on August 25, 1969, and ordered to be implemented
commencing with the beginning of the 1969-70 school year.
The schools involved are to be opened 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 conducted in my capacity as Secre-
tary of the Department of Health, Education and Welfare
and as the Cabinet officer of our government charged with
the ultimate responsibility for the education of the people
of our Nation.
In this same capacity, and bearing in mind the great
trust reposed in me, together with the ultimate responsi-
bility for the education of the people of our nation, I am
gravely concerned that the time allowed for the develop-
ment of these terminal plans has been much too short for
the educators of the Office of Education to develop ter-
minal plans which can be implemented this year. The ad-
ministrative and logistical difficulties which must be en-
countered and met in the terribly short space of time re-
maining must surely in my judgment, produce chaos, con-
fusion, 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 avail-
able 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
38e
of the Office of Education may go into each district and
develop meaningful studies in depth and recommend ter-
minal plans to be submitted to the Court not later than
December 1, 1969.
Sincerely,
Secretary
/s/ ROBERT H. FINCH
cc: Hon. Dan M. Russell, Jr.
Hon. Walter L. Nixon, Jr.
39e
IN THE
United States Court of Appeals
POR THE FIFTH CIRCUIT
Nos. 28030 and 28042
UNITED STATES OF AMERICA,
Plaintiff- Appellant
HINDS COUNTY SCHOOL BOARD, et al.
Defendants-Appellees
(And Consolidated Cases)
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI
Amended Order
The order of this Court dated July 3, 1969, as amended
by Order entered July 25, 1969, is hereby further amended
as follows:
Paragraphs 3, 4, 5, 6, and 7 are deleted and the follow-
ing paragraphs will substitute therefor:
3. The Board, in conjunction with the Office of Edu-
cation, shall develop and present to the District
Court on or before December 1, 1969, an acceptable
plan of desegregation.
4. If the Office of Education and a school board agree
upon a plan of desegregation, it shall be presented
to the District Court on or before December 1, 1969.
40e
The Court shall approve such plan unless within 15
days after submission to the Court any party files
any objection or proposed amendment thereto al-
leging that the plan, or any part thereof does not
conform to Constitutional standards.
5. If no agreement is reached, the Office of Education
shall 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 sug-
gested amendments thereto, and shall promptly ap-
prove a plan which shall conform to Constitutional
standards. The District Court shall enter Findings
of Fact and Conclusions of Law regarding the ef-
ficacy of any plan which is approved or ordered to
disestablish the dual school system in question.
Jurisdiction shall be retained until it is clear that
disestablishment has been achieved.
August , 1969,
EXHIBIT D
Caption of Cover Page Not Included Here
MOTION BY THE DEFENDANTS IN THE ABOVE
STYLED CONSOLIDATED CASES JOINING IN THE
MOTION THEREIN FILED BY THE ATTORNEY GEN-
ERAL OF THE UNITED STATES IN BEHALF OF SEC-
RETARY ROBERT H. FINCH OF THE DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE AND THE
UNITED STATES OF AMERICA
Now come all of the defendants in the above styled
consolidated cases and join in the motion filed therein by
41e
the Attorney General of the United States entitled
“UNITED STATES OF AMERICA, PLAINTIFF-APPEL-
LANT HINDS COUNTY SCHOOL, BOARD. ET AL.
DEFENDANTS-APPELLEES (AND CONSOLIDATED
CASES)—MOTION IN THE COURT OF APPEALS” filed
in this Court on or about August 21, 1969, and show to the
court the following:
1. This motion is filed in the United States Court of
Appeals for the Fifth Circuit by permission of the United
States District Court for the Southern District of Missis-
sippi granted in open court and made of record therein.
2. That the said motion thus filed in this Court on or
about August 21, 1969, was filed in the consolidated pro-
ceedings numbered upon the docket of this Court as
“Nos. 28030 and 28042”, particularly referring to the first
listed case of the UNITED STATES OF AMERICA VS.
HINDS COUNTY SCHOOL. BOARD, ET AL. and par-
ticularly being filed not only applicable to said case but
applicable to it “AND CONSOLIDATED CASES”.
3. That there were appealed to this Court and as-
signed the above docket numbers twenty-five school de-
segregation cases involving a total of thirty-three school
districts. That the said twenty-five consolidated cases in-
cluded those listed above in which this Motion of Joinder
is filed.
4, That in the opinion and mandate of the Court of
Appeals dated July 3, 1969, the following findings were
made:
These are twenty-five school desegregation cases in a
consolidated appeal from an en banc decision of the
U. S. District Court for the Southern District of Missis-
gippi...-
The order of the District Court in each case is re-
versed and the cases are remanded to the District
Court with the following direction:
42e
1. These cases shall receive the highest priority.
2. The District Court shall forthwith request that edu-
cators from the Office of Education of the United
States Department of Health, Education and Wel-
fare collaborate with the defendant school boards
in the preparation of plans to disestablish the dual
school systems in question ... (Emphasis ours.)
4, That the United States District Court for the South-
ern District of Mississippi requested the United States De-
partment of Health, Education and Welfare to collaborate
with the defendant school boards “in each of these cases”
and to file plans of desegregation for all of the defendant
school districts, including the defendants making this Mo-
tion. That on or about August 11, 1969, proposed plans of
desegregation were filed by the United States Depart-
ment of Health, Education and Welfare in each of the above
cases.
5. That in accordance with the mandate of this Court
and the direction of the said District Court each of the
above defendant school districts filed proposed plans of
desegregation on or about August 11, 1969, reserving, how-
ever, all of their rights existing under the order of the Dis-
trict Court dated May 16, 1969, the appeal therefrom to the
United States Court of Appeals for the Fifth Circuit, the
Petition for Rehearing en banc now pending before this
Court, the right to file a petition for Writ of Certiorari with
the Supreme Court of the United States and all other
rights existing in them. Such plans were filed subject to
such reservation.
6. On or about August 21, 1969, these defendants
filed additional motions for supplemental relief, including
prayer that the Court grant additional time for further col-
laboration between the Department of Health, Education
and Welfare and the defendants with plans to be submitted
43e
not later than December 1, 1969. The motions filed by
the three school districts above named in Civil Action No.
1209 (W) in the District Court, The Yazoo County Board
of Education, The Yazoo City Municipal Separate School
District and The Holly Bluff Line Consolidated School Dis-
trict alleged that within the time allowed it was “impossible
to work out a plan satisfactory to either the Court, the de-
fendants or the plaintiff”. Similar allegations were made
by the other defendant school districts.
7. These movants join in the motion to amend the
mandate of this Court filed in behalf of the Secretary of
Health, Education and Welfare and by the United States of
America as the same was filed on or about August 21, 1969,
joining in the allegations and prayer thereof as it was filed
and joining in the motion for the amendment of the man-
date as therein stated.
8. These defendants by this motion adopt any proof
which may be introduced in the said District Court in sup-
port of the said Motion as it was filed on or about August
21, 1969, but do not adopt any amendment, should an
amendment be requested. These defendants adopt the
proof which may be presented in behalf of the Secretary
of Health, Education and Welfare and the United States of
America solely to the extent that such proof supports the
said Motion as it was filed.
9. That said motion is proper and sufficient, but these
defendants join therein because of the “OPPOSITION TO
MOTION FOR PERMISSION TO WITHDRAW PLANS
FILED BY THE DEPARTMENT OF HEALTH, EDUCA-
TION AND WELFARE” which has been filed by attorneys
for certain individual plaintiffs in this consolidated appeal.
These defendants deny all of the allegations and conclu-
sions set forth in such “OPPOSITION TO MOTION” to the
extent that such allegations are inconsistent with this
44e
Motion and the Motion filed herein in behalf of the Secre-
tary of Health, Education and Welfare and by the United
States of America.
WHEREFORE, these defendants join in the said Mo-
tion as filed herein on or about August 21, 1969, includ-
ing the prayer for relief therein contained.
Executed under authority granted in open Court and
respectfully submitted this 23rd day of August, 1969.
CALVIN R. KING, Attorney for Holmes County
Board of Education, et als., Civil Action No. 2779 (J)
in the District Court
BRIDGEFORTH & LOVE; CAMPBELL & CAMP-
BELL; SATTERFIELD, SHELL, WILLIAMS & BU-
FORD, Attorneys for The Yazoo City Municipal Sepa-
rate School District, The Yazoo County Board of Edu-
cation and The Holly Bluff Line Consolidated School
District, Civil Action No. 1209(W) in the District
Court
HAROLD M. DAVIDSON, Attorney for Leake
County School Board, et al., Civil Action No. 3382 (J)
in the District Court
HERMAN GLAZIER, Attorney for The Issaquena
County Board of Education, et al., The Sharkey County
Board of Education, et al.,, The Anguilla Line Consoli-
dated School District, et al. and The Sharkey-Issa-
quena Line Consolidated School District, et al., Civil
Action No. 1096 (W) in the District Court
TALLY D, RIDDELL: and ROBERT H. COVING-
TON, Attorneys for The Enterprise Consolidated
School District, et al.,, The Quitman Consolidated
School District, et al., and The Clarke County Board
of Education, et al., Civil Action No. 1302(E) in the
District Court
By:
/s/ John C. Satterfield
John C. Satterfield, Attorney
45e
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Motion
by the Defendants in the above Styled Consolidated Cases
Joining in the Motion Therein Filed by the Attorney Gen-
eral of the United States in Behalf of Secretary Robert H.
Finch of the Department of Health, Education and Welfare
and the United States of America were served on the plain-
tiffs on this 23rd day of August, 1969, by mailing copies
of same, postage prepaid, to their counsel of record at the
last known address as follows:
Melvyn R. Leventhal
Reuben V. Anderson
Fred L. Banks, Jr.
John A. Nichols
538-1/2 North Farish Street
Jackson, Mississippi 39202
Jack Greenberg
Jonathan Shapiro
Norman Chachkin
Suite 2030
10 Columbus Circle
New York, New York
I further certify that I have also mailed a copy of said
Motion to the Department of Health, Education and Wel-
fare of the United States addressed as follows:
Mr. J. J. Jordan, Regional Director
United States Office of Education
Room 404
50 Seventh Street, N. E.
Atlanta, Georgia 30323
/s/ John C. Satterfield
Of Counsel