Brief of Appellees

     [||2a6bf763-3959-48e6-baf8-afcbebeb3dfb||] IN THE 

UNITED STATES 

COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, ET AL, 

Plaintiffs-Appellants, 

VERSUS 

THE CLARKSDALE MUNICIPAL SEPARATE SCHOOL 
DISTRICT, ET AL., 

Defendants-Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

BRIEF OF APPELLEES 

SEMMES LUCKETT 

121 Yazoo Avenue 

Clarksdale, Mississippi 38614 

ATTORNEY FOR APPELLEES 



IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

REBECCA E. HENRY, ET AL., 

Plaintiffs-Appellants, 

VERSUS NO. 76-1207 

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL, DISTRICT, ET AL., 

Defendants-Appellees. 

CERTIFICATE REQUIRED BY FIFTH CIRCUIT LOCAL RULE 13(a): 

The undersigned, counsel of record for defendants-appellees, 

certifies that the following listed parties have an interest in 

the outcome of this case. These representations are made in order 

that Judges of this Court may evaluate possible disqualifications 

or recusal pursuant to Local Rule 13(a): 

Clarksdale Municipal Separate School District, 
Defendant, Appellee; 

Robert M. Ellard, Superintendent of Schools, 
Defendant-Appellee; 

Robert R. Birdsong, President, Board of Trustees, 
Defendant-Appellee; 

Leon L. Porter, Jr., Member, Board of Trustees, 
Defendant-Appellee; 

Jesse G. Hughes, Jr., Member, Board of Trustees, 
Defendant-Appellee; 

Glenn D. Gates, V.M.D., Member, Board of Trustees, 
Defendant-Appellee; 



Mayo D. Wilson, Member, Board of Trustees, 
Defendant-Appellee; 

N.A.A.C.P. Legal Defense Fund; 

Black school age children of Clarksdale, Mississippi. 

= Semmes Luckett 

Attorney of Record for Defendants- 

Appellees. 

£2 § 



TABLE OF CONTENTS 

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
LOCAL RULE 13(a) ss it ad Sole esnnnsrnvesannins ceeiis 1 

FORENARD oh ss ci BB i laadidililt « « cnnmwicemmirinrisgminrein'e sini 1 

STATEMENT OF FACTS 
APRIL 22, 1964 TO JULY 1, 1972 .cvcvnntsssectsssvrntsenense 5 

ARGUMENT. tector ctvevsisvecesnssnsasnsessnesnnsnssssssssssssnens 32 

DEFENDANTS-APPELLEES DID NOT QUESTION 
THEIR OBLIGATION TO ESTABLISH NONRACIAL 
ATTENDANCE AREAS AND TO MAKE NONRACIAL 
ASSIGNMENTS, AS PRAYED FOR IN THE 
COMPLAINT +c vccvncccecsonosovnsnnnovisssvnsssshissnsseserinsss 37 

DEFENDANTS -APPELLEES' DESEGREGATION 
PLAN PROVIDED AN ACCEPTABLE RATE OF 
DESEGREGATION. +s virve ovis. chervns iio iiss svn sannanennns 41 

DEFENDANTS -APPELLEES' DESEGREGATION PLAN, 
WHEN FILED WITH THE DISTRICT COURT ON 
JULY 27, 1964, AND WHEN ARGUED BEFORE A 
PANEL OF THIS COURT ON MAY 25, 1966, 
FULFILLED EVERY REQUIREMENT SET FORTH IN 
THE APPLICABLE COURT DECISIONS ccccccesecccercerncscoscons Li 

DEFENDANTS-APPELLEES' DESEGREGATION PLAN 
WAS REJECTED BY THIS COURT ON THE BASIS 
OF DECISIONS RENDERED AFTER (1) THE 
SUBMISSION OF THE PLAN TO THE DISTRICT 
COURT, (2) AFTER THE APPROVAL OF THE PLAN 
BY THE DISTRICT COURT, (3) AFTER THE 
ARGUMENTS BEFORE THE COURT OF APPEALS ON 
MAY 25, 1966, AND (4) DURING THE THREE 
YEARS THIS COURT DELAYED PASSING ON THE 
VALIDITY OF THE PLAN :cccccvsvsvscacccrsssvsssnsssovosssnnns 52 

DEFENDANTS-APPELLEES ACTED REASONABLY AND 
RESPONSIBLY IN RESISTING THE IMPOSITION 
OF THE HEW PLAN ON THE DISTRICT .c.ccecececccescccccsncens 58 

DEFENDANTS-APPELLEES HAVE NOT ACTED IN AN 
UNREASONABLE AND OBDURATELY OBSTINATE 
MANNER DURING THIS LITIGATION cccecee coececocecosccnccons 67 

111 



TABLE OF CONTENTS (Continued) 

COULD A LITIGANT, IN GOOD FAITH, BASE HIS 
ACTIONS ON THE PROPOSITION THAT THE 
CONSTITUTION DOES NOT REQUIRE INTEGRATION 
BUT SIMPLY FORBIDS DISCRIMINATION?  ccccceccecrcccccccanns 69 

COULD A LITIGANT, IN GOOD FAITH, BASE HIS 
ACTIONS ON THE PROPOSITION THAT DE FACTO 
SEGREGATION--THAT WHICH OCCURS FORTUITOUSLY 
BECAUSE OF HOUSING PATTERNS--DOES NOT MAKE 
AN OTHERWISE ACCEPTABLE DESEGREGATION PLAN 
UNCONSTITUTIONAL? ctv eeerecsccctesscsscsssssssvsesssssssncscee 72 

COULD A LITIGANT, IN GOOD FAITH, OPPOSE THE 
CONSOLIDATION OF THE DISTRICT'S HIGH SCHOOLS 
INTO ONE HIGH SCHOOL AND THE CONSOLIDATION 
OF THE DISTRICT'S JUNIOR HIGH SCHOOL INTO 
ONE JUNIOR HIGH SCHOOL? = esses cicscovevsssvessosssnsnssnssnes 74 

COULD A LITIGANT, IN GOOD FAITH, OPPOSE THE 
BREAK-UP OF NEIGHBORHOOD ELEMENTARY SCHOOLS 
AND THE FRACTURING OF THE GRADES SERVED 
THEREBY ovine ress cncrsvortentsnrrosssssnsssrsrstsnsssnnes 78 

COULD A LITIGANT, IN GOOD FAITH, CONTEND 
THAT DE FACTO SEGREGATION DOES PREVAIL IN A 
MISSISSIPPI COMMUNITY] © +wssesesnninssssossavsvssnnsisnenmmnn 81 

DEFENDANTS -APPELLEES' DESEGREGATION PLAN 
PROVIDED THE REMEDY REQUIRED BY EQUITY vrs reerserersvnes 85 

THE TRIAL COURT'S FINDING OF FACT THAT THE 
ACTIONS OF DEFENDANTS-APPELLEES HEREIN WERE 
NOT CARRIED OUT IN AN UNREASONABLE AND OB- 
DURATELY OBSTINATE MANNER STANDS UNLESS 
CLEARLY ERRONEOUS, WHICH IT IS NOT cccccececccesocaccncsss 88 

CONCLUSION ¢ccos esses cscecoecsssscsososcscoscoscssssssssssscscsscsocss 90 

CERTIFICATE OF SERVICE  cccccecens Pees sevens esarenssasesstane 91 

IV 



TABLE OF AUTHORITIES 

Page 
CASES: 

Arvizu v. Waco Independent School District, 
493 FF, 2d 499 (May 11, 1974) 40 cucu eevicsnninsnnesnnnes 18, 79 

Augustus v. Board of Public Instruction, 
SO6. VF. 20 B67 «(1U07) =~ 2 ers verisnssovesssscesnenssensnsessnes 42 

Avery v. Wichita Falls Independent School 
District, 241 .F. 2d 230,:, 2335 ceeien se sroencsninsnse 46, 56, 69 

Bell v, School Ciry of Gary, Indiana, 213 
FE. Supp. 819, 324 F. 24 209 + vec csvvsrrsrnranvencavrans 51, 55 

Bivens v, Bibb County Board of Education, 
3. SUDD. J "ie. ssvnetteerevncnrsessnsssssssnasssanssesee 82 

Bivins v.. Board of Education, 342 F, 2d 
II LTOBTY ri etre si rans ti iiss ns sssrsesnnssivissnesnnsns 42 

Board of Public Instruction of Duval County, 
Ylorida v. Braxton, 320 F. 20 616 (Jan. 
Epi Ly eee meet SLE SE Le Ee I 42 

Borders v. Rippy, 19568, 247 .F. .28.268 ......civvnees 47, 56, 69 

BOSON V,. Rippy, 1960, 285 F. 2d 43, 85 + + vcvrivinos 47, 56, 69 

Bradley v. Milliken, 402 F. Supp. 1096 
CAugust 15, 1975), cere csrercessvsssrrvssvsrnessssnnsssnesnns 75 

Bradley v. Richmond School Board, 416 US 
096, 40, Td 2d 470 "(May 15, 1978) . sncnsrsvmrsnssnsvnvsens 32 

Bradley v. The School Board of Richmond, 
Narcinia 300 Fo 2d i OC 005) es rests ress anaes 43 

Bradley v. School Board of the City of 
Richmong, Va., 302 U.5. 103, 15 1. Ed. 
RR TO Re cheb erat ee EY WL 43 

Bronson v. Board of Education of the City 
School District of Cincinnati, 525 F. 24 
344 (September 24, T1975) «vce etter inntetcenentaieninnns 66 

Brown .I, 347 U.S. 433,798 1. EG 873: +civrrsvreren teenie eseiies 44 

Brown 11, 349 U.S. 294, 99 1, Fd 1083 tescinevnrennsaseses 44, 45 



TABLE OF AUTHORITIES (Continued) 

CASES: 

Brown v. Board of Education of Topeka, 139 
F. Supp. 468 .+«.«.-... reece trestiUstIN ENT ES gS, 6, 13, 46, 49 

50.51, 53, 62, 65 
68, 72, 81, 87 

Calhoun v. Cook, 522 F. 24 717 (October 
23, 1075)  cetroveststasssspssssrupsasssonsessarsssssrebiens 70 

Calhoun v. Latimer, 321 F. 2d 302 (1963) «c¢cecevecrncccnnnnns 42 

Carr v. Montgomery County Board of 
Education, S511 TF. 20 1378 + tcecetsesersssssnsssnsnsssnnsys 80 

Carter v. West Feliciana Parish School 
Board, 396 US 226, 24 L Ed 2d 382  cccccececcercccccnanns 22 

Cisneros v. Corpus Christi Independent 
School District, 467 F. 2d 142 (August 
2, 19772) cece rso ELI AE tr ttre ntanrsere otras 2, 57, 13 

City of Montgomery v. Gilmore, 1960, 277 
EL I PPT ee eel ET Te 56, 69 

Cohen v. Public Housing Administration, 
1055, 257 FF. 7d 73, 78 rt rrerasssnnsrvenn 47, 56. 69 

Davis v. East Baton Rouge Parish School 
Board, 348 F. Supp. 1013 (August 2727, 
TOTES. sree do ES dee oun 78 

Deal v. Cincinnati Board of Education, 369 
EL OE PTT PT TTY a Lia i i 66, 72 

Downs v. Board of Education of Kansas City, 
336 F. 2d 938 (certiorari denied 350 U.S. 
O14, 13 L. Fd. 2d B00) .. eccsecesensrosnsvrssssansssvses 50, 72 

Ellis v. Board of Public Instruction, 423 
FE. 2d 203 (5th Cir... T9780) esse rnsrssvsrsnssnsneresses 79 

Evers v. Jackson Municipal Separate School 
District, 328 F. 2d 408, 410 «cccccecececcececnnen 483, 56, 69 

Gilliam v. School Board of the City of 
Hopewell, Va., 345 ¥, 20d 325 pei] 7, 
T968Y eves rss ravers insssrrevrnrssslinisl., teseeceaanans 50, 72 

VI 



TABLE OF AUTHORITIES (Continued) 

Page 
CASES: 

Cong Lum V, Rice, 275. US 78, 72. L Ed 172 svrtavssnnersvninns 86 

Green v. County School Board of New Kent 
County, Va., 391 U.5. 430, 201. kd, 
Ta 710. caves cennteisnsesannsetunssnsnseisvsis 57, 62, 65, 66 

Hall v. Cole, 412 US 1, 36 L Ed 24 702, 
707 (May 21 1973) vr ies cd diss sve es snnnsennnnnnssenss 67 

Henry v. Clarksdale Municipal Separate 
SCHOOL District, G33 FT. 2d 357 crnvsssssevesnnssssssssnnns 80 

Higgins v. Board of Education of City of 
Granc  RADLAS SUB , 70 fY . feeh starrer enrssevssnsnsnnses 66 

Holland v. Board of Public Education, 258 
PF. 24 730, 732 csonne vininieiens vent See sit cess sana mien ison 47 

In Re Carr, 377 F. Supp. 1123 cette ecsisscstsnrcnsessssnning 80 

Jefferson I, 372 F. 2d 836 (December 29, 
T0BE67 terres enrsencesensscenrssnnsnatennenis 54, 57, 73, 81, 383 

Jefferson II, 380 F. 2d 385 (March 29, 
FOGGY eau Caesars isnt ssa nin sant s estan 56. 57, 85 

Keyes v. School District No. 1, 413 US 189, 
BT LI BA JU 528 vor tt tat tasnennsisainenans Pebiiene 73, 79, 81 

Lockett v. Board of Education of Muscogee 
County, 1965, 342 F, 24 225 ceesvveseveenensnnss 42, 57, 69 

Milliken v. Bradleds 418.US 717, °41'L Ed 
2 69, -1089, 1092 .......ccunnnn 71, 73, 80, 86, 87 

Monroe v. Board of Commissioners, 391 U.S. 

450, 1200L,, 1c, T2dET33 sei curiae nieninenieieininiete 57, 065, 66 

Morales Vv, Shartmon, 366 F. Supp. 813 cctv cevicsterersrsncess 73 

Morales v, Shannon, 516 F. 24 411 (July 23, 
Eb Lh pe Ne eR ED a i See 73 

Morgan v. Kerrigan, 530 FP. 2d 401 (January 
OE yO SE a i URE NE Ur TE rn 83 

VII 



TABLE OF AUTHORITIES (Continued) 

Page 
CASES: 

Raney v. Board of Education, 391 U.S. 443, 
20 L. Ed. 2d 727 +. .encevrssrtnrserrisrncrvinrnsrnne 65, 66 

RipDy V. Borders, 1957, 257 F. 2d 73 «vv vcssencssnnsvnes 56, 69 

Riz0 Nu 0000, 56 1 EAe2A. BOLTS crevnssrrarnsrersenianss 86 

Singleton v. Jackson ‘Municipal Separate 
School District, 340 VF, Za 729 «cc tivevsrssvsrssnveces 41, 54 

Singleton v. Jackson Municipal Separate 
School District, 355 I'. 2d BOY  .c.vecsvencsrernnrsssnnrsnss 42 

Spencer v. Kugler, 326 F. Supp. 1235 
EMaY 15, LU) caret tects rset tetera eee 70, 72, 82 

Stell v. Savannah-Chatham County Board of 
Education, 1964, 333 ¥. 2d B55 ceive iersisiavrinrenes 56, 69 

Swann v. Charlotte-Mecklenburg Board of 
Education, 28 L I'd 2d 554, 507 @ ....ccvescssnsons 28, 71, 86 

United States v. Greenwood Municipal 
Separate School District, 460 I, 2d 1205 ...cveeeanvinsnsnns Zz 

U.S. v. Jefferson County Board of Education, 
B80 ©. 2d 305 (March 29, 1987) | +recerstassessessssnssares 70 

U.S. v. Midland Independent School District, 
BIT I. 70 BOF = cece vs vtse zs eeeennronstncsssonressnsessnnnnes 73 

United States v. United States Gypsum 
Compan 333 U.S. 364, 394-395, 68 S. Ct. 

! L. EQ. 740  cccsvcicrsvsssnavsvsssescsensssssnesnns 89 

Zamora v. New Braunfels Independent School 
DISLELEr. 00 T Bip. Ba hm @itustusnsssrsavers 73 

VI1l 



TABLE OF AUTHORITIES (Continued) 

Page 
OTHERS : 

2.8.0. 8 1IBY7 oe ct ccsr sun csrsse ren ast ent snnnsnis 31, 32, 34 

Civil Rights Act of 1964 
Section 401 icv vierirstrtr inns eseninsnsr res iifnerinlannalsne 51 

Mississippi Constitution of 1890 
SB CCLELON. 207 tee tieics ov 0 cs ct tr svsennsosssmonsessnserissetscuses 85 

FoR.C.P. Rules 52 £2) canes isnusivivpspnssoinssessssnsonnnnssnsns 88 

F.RB.CiPvRULE D2 La) wruvivs ss ves se thse iss sesvsssvesnssssnnes 89 

IX 



IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

REBECCA E. HENRY, ET AL., 

Plaintiffs-Appellants, 

VERSUS NO. 76-1207 

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL., 

Defendants-Appellees. 

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

BRIEF FOR DEFENDANTS-APPELLEES 

FOREWARD 

This school desegregation case was begun by the filing of a 

complaint in the district court on April 22, 1964. Nothing was 

said in the complaint about the transportation of pupils, which 

was then, and is now, contrary to the laws of Mississippi insofar 

as the Clarksdale Municipal Separate School District is concerned. 

This case, as to the issues raised by the complaint, was 

terminated by the district court's order of May 27, 1971, described 

by it as '"'a terminal plan of pupil assignment." 

It was on July 31, 1972, more than a year after the district 

court had entered its order which terminated this suit as an action 

to compel compliance with the Fourteenth Amendment to the Constitu- 



tion of the United States as it pertained to elementary and 

secondary education, that plaintiffs-appellants filed their motion 

for an order requiring defendants-appellees to prepare a plan for 

the transportation of all the elementary pupils of the district 

who are assigned to schools more than a mile and a half from their 

homes. It was the first time that transportation of pupils was 

mentioned in the case. 

In response defendants-appellees asked only that the trans- 

portation requirements in any order issued pursuant to the motion 

be minimized, citing Cisneros v. Corpus Christi Independent School 

District, 467 F. 2d 142, as their authority. 

After a hearing, the district court denied defendants- 

appellees' request, on the ground that the issue raised by the 

motion was not an open one but was foreclosed by United States wv. 

Greenwood Municipal Separate School District, 460 F. 2d 1205. 

Defendants-appellees, feeling aggrieved by the fact that the 

transportation requirements imposed on them had not been minimized, 

as they understood they should have been, appealed to this court. 

In their brief in reply to defendants-appellees' brief, plaintiffs- 

appellants moved this court (not the district court) for an award 

of a reasonable attorney's fee, in the amount of $875.00, to be 

taxed as costs incident to such appeal. 

In its opinion disposing of the appeal (480 F. 2d 583) this 

court, despite the fact that plaintiffs-appellants had never asked 

for attorneys' fees for services other than those incident to such 

appeal, directed the district court - 



to grant appellees' request for 

reasonable attorneys' fees incurred since July 1, 

1972. The district court shall also.grant a 

hearing to determine whether or not the appellants’ 

actions in this lawsuit were carried out in an 

'unreasonable and obdurately obstinate' manner in 

the years preceding July 1, 1972, so as to entitle 

appellees to be awarded reasonable attorneys' fees 

for services before that date." 

The first motion ever filed by plaintiffs-appellants in the 

case asking for an award of attorneys' fees was filed on October 

10, 1975, asking ''for an award of attorneys' fees in an amount no 

less than $29,960.00, representing the total requested by Melvyn 

R. Leventhal and Derrick Bell in their affidavits delivered to 

counsel opposite and filed with the clerk of the Court in January, 

1975." (Vol. = , p.. 5). 

An examination of such affidavits will disclose that the 

services of Derrick Bell, for which an allowance of $17,680.00 is 

sought, were performed prior to April 22, 1966, and that Melvyn R. 

Leventhal, for whose services an allowance of $12,580.00 is sought, 

entered the case in May 1969. 

A hearing on plaintiffs-appellants' motion for attorneys’ 

fees was held on November 10, 1975, and at its conclusion the 

district court found from evidence, as well as from the court's 

records and files, -- 



"That the school board, in the conduct of 

the litigation, did not act in an unreasonable 

and obdurately obstinate manner prior to July 

1,:1972, and that: it should not, for: that reason, 

be required to pay for pre-July 1, 1972, legal 

expenses incurred by plaintiffs." 

For legal services rendered on behalf of plaintiffs since 

July 1, 1972, the district court awarded the sum of $1,500.00, and 

such award has been satisfied by defendants-appellees. 

This brief will be limited to a discussion of the actions of 

defendants-appellees, in the conduct of this litigation, from its 

commencement, l.e., April 22,:1964, to. Julyil, 1972. Eveniso, it 

will necessarily have to be much longer than the usual brief. 



STATEMENT OF FACTS 
APRIL, 22, 1964 TO JULY 1, 1972 

On April 22, 1964, plaintiffs-appellants filed in the dis- 

trict court a complaint--the first of its kind filed in the 

Northern District of Mississippi--wherein they sought (Vol. 1, 

pgs. 2-11) ~-- 

a) the end of all racial designations and 

considerations in the budgets, expenditures, 

programs, policies and plans of the school district; 

b) the establishment of school zones or 

attendance areas on a nonracial basis; 

c) the assignment of pupils to the schools of 

the school district on a nonracial basis; and 

d) the assignment of teachers and staff mem- 

bers on a nonracial basis. 

Defendants-appellees did not dispute the right of plaintiffs- 

appellants to such relief. They advised the court that they were 

aware of their duty to meet the requirements of Brown and were 

undertaking a study of how to do so (Vol. 1, pgs. 35, 36) and they 

conceded that the district court should issue an injunction such 

as was prayed for in the motion which accompanied the complaint. 

(Nol. 1, p. 40). 

On June 26, 1964, the district court issued an injunction 

which required defendants-appellees to desist from assigning pupils 

on the basis of race and to make arrangements for the assignment 

and admission of pupils to the schools of the district on a 

5 



nonracial basis. (Vol. 1, pgs. 41-46) It also ordered defendants- 

appellants to prepare and submit ''a plan by which an immediate 

start will be made in the desegregation of such schools, with such 

plan to provide that desegregation is to progress with all 

deliberate speed until all grades in all schools shall be included 

in said plan, and to provide that a minimum of one grade in all 

schools shall come under said plan at the beginning of the school 

term in September 1964." 

Since compliance with Brown clearly required the revision of 

the school district into compact units in order to achieve a system 

of determining admissions to its various schools on a nonracial 

basis, i.e., normal geographic school districting, defendants- 

appellees proceeded to divide the school district into the compact 

units called for by Brown. That job presented little difficulty, 

once it was understood and realized that pupils were to be treated 

simply as pupils, without regard to their race. In Clarksdale, 

that was a relative simple chore because of the way the town was 

laid out and the location of the schools. 

Clarksdale was--and is--a town of approximately 25,000 

inhabitants. It was--and is--bisected by the railroad tracks of 

the Illinois Central Gulf Railroad Company which run in an 

easterly and westerly direction from the northeastern to the south- 

western corner of the town, dividing it into approximately equal 

northerly and southerly halves. Accentuating the division of the 

residential areas of the town made by those railroad tracks is the 

fact that throughout a good portion of the town the lands adjacent 



to both the northerly and southerly side of those railroad tracks 

are occupied by commercial and industrial establishments. Also 

adding to such division is the fact that those railroad tracks, 

located as they are in a town situated in the flat lands of the 

Yazoo-Mississippi Delta, are on an embankment. With but one 

exception (which is where Sunflower Avenue crosses over the tracks), 

no one can cross those railroad tracks from one residential area 

to another except through an underpass. And throughout the length 

of those railroad tracks as they pass through Clarksdale--some 

three and a half miles--there are but four underpasses, with but 

one west of the Sunflower River, and that one right next to the 

river. 

There was a high school north of those railroad tracks which 

was adequate--but not more than adequate--for those high school 

pupils who lived north of those railroad tracks. 

There was a more than adequate high school south of those 

railroad tracks which was modern in every particular--much more so 

than the high school north of the tracks--for those high school 

pupils who lived south of those railroad tracks. 

There was a junior high school north of those railroad 

tracks which was also adequate, although obsolete, for those junior 

high school pupils who lived north of those railroad tracks. 

There was a modern and adequate junior high school south of 

those railroad tracks for those junior high school pupils who lived 

south of those railroad tracks. 

In the light of those facts, defendants-appellees reached the 



obvious conclusion that two high school sub-districts and two 

junior high school sub-districts should be established, with those 

railroad tracks as the dividing line between the sub-districts. 

The southerly half of the town was--and is--bisected almost 

equally by the railroad tracks of the Illinois Central Gulf Rail- 

road Company which run in a southerly direction from Clarksdale to 

Jackson and are referred to in the plans as running from Clarksdale 

to Mattson. But those tracks are not elevated and one can cross 

over at grade level at almost every intersection. About as many 

pupils lived west of the railroad tracks in the southerly half of 

the town as lived east of them. 

There were two modern elementary schools in the southwest 

quadrant of the town which could adequately take care of the pupils 

in that neighborhood. 

There were three elementary schools in the southeast quadrant 

of the town--one quite modern--which could adequately provide for 

the pupils in that neighborhood. 

Since those were the facts with reference to the territory 

and schools south of the east-west railroad tracks of the Illinois 

Central Gulf Railroad Company, defendants-appellees reached the 

obvious conclusion that two elementary sub-districts should be 

established south of those east-west railroad tracks, with the 

north-south railroad tracks of the Illinois Central Gulf Railroad 

Company as the dividing line between them, and with each of those 

sub-districts divided into attendance areas or zones. They then 

divided the southwest quadrant into two attendance areas or zones, 



with an elementary school in each of those attendance areas or 

zones, and they divided the southeast quadrant into three atten- 

dance areas or zones, with an elementary school in each of those 

attendance areas Or zones. 

The northerly half of the town was--and is--bisected by the 

Sunflower River, but there are many more pupils in the northerly 

half of the town west of the river than east of the river, due 

principally to the fact that the central business district of the 

town is in the northerly half of the town east of the river. There 

were--and are--two bridges over the river in that section of the 

town (just as there were-and are--two bridges over the river in 

the southerly half of the town) which enable those elementary 

school pupils who live in the northeast quadrant of the town and 

north of First Street to pass over into the northwest quadrant of 

the town (which is entirely residential) without passing through 

the central business district. 

There were--and are--three elementary schools in the north- 

west quadrant of the town. The northeast quadrant had none but 

defendants-appellees committed themselves to try to have one built 

there in 1966. 

With those facts before them, defendants-appellees established 

two elementary sub-districts in the northerly half of the town with 

Sunflower River as the dividing line between them; divided the 

northwest quadrant of the town into three attendance areas or 

zones, with an elementary school located in each of them; and 

then provided that those elementary school pupils in the northeast 



quadrant of the town (where there was no elementary school) 

could--for the present--attend either Oakhurst Elementary School 

(the easternmost elementary school in the northwest quadrant) or 

Eliza Clark School (the northernmost elementary school in the 

southeast quadrant). 

Thus by simply utilizing the obviously and indisputably 

natural boundary lines which separated Clarksdale into sections, 

as the boundary lines for the various sub-districts, defendants- 

appellees established sub-districts demanded by the topography of 

the town, the location and the capacity of the school buildings, 

the proximity of the pupils to the school buildings, and the 

requirements of good educational practices. They took the same 

action as they would have taken had all of the pupils of the 

school district been white, or all Negro, or had every other 

residence in the town been occupied by whites and the remainder 

by Negroes. They discriminated against no one. 

The trial court had this to say about the boundary line 

between the two junior high school districts and the two senior 

high school districts (Vol, 1, :pgs. 127,,128): 

"It appears to this court without question 

that the use of this raised railroad track as a 

zone boundary for junior high school and high 

school purposes is reasonable. It is a natural 

boundary. Its use will permit efficient utiliza- 

tion of both these school plants, will place a 

great majority of pupils in both zones closer to 

-10~ 



their school than would be the case if any other 

boundary proposed or considered were used and will 

eliminate for all pupils attending both schools 

the risks inherent in movement through busy com- 

mercial and industrial areas." 

It had this to say about the north-south boundary lines 

between the northeast and northwest elementary school districts, 

and the southeast and southwest elementary school districts, 

(Vol. 1, pgs. 128, 129): 

"Defendants propose to use the Sunflower 

River as the boundary between the two sub-districts 

north and to use the north-south railroad (un- 

elevated) as the boundary between the two sub- 

districts south. 

H the sub-district boundary lines as 

proposed, both north and south, are natural boundary 

| lines easily defined and easy to be seen. Plain- 

tiffs have made no objection to these proposed sub- 

district boundary lines directly. Hence, they will 

be approved." 

None of the interior lines dividing the elementary school 

districts into separate attendance areas or zones were ever 

seriously questioned with the exception of the north-south line 

between what was originally the E-1-B (Hall) zone and the E-1-C 

(Clark) zone. It was originally selected so as to ensure suffi- 

-1l1- 



cient room at the Eliza Clark School for those children who lived 

closest to it and those children in the E-3-A zone who had to go 

there because of a lack of an elementary school in their home zone. 

Because of its dubious validity as a dividing line between the two 

zones, and perhaps because of the failure of defendants-appellees’ 

attorney to point out clearly that no pupil resided in that area 

of Clarksdale between Highway 49, on the east, the railroad tracks, 

on the west, and Highway 61, on the north, the trial court, in its 

order of August 10, 1965, directed defendants-appellees to recon- 

sider their proposals with respect to Zones E-1-A, E-1-B, E-1-C, 

E-2-A and E-2-B. (Vol. 1, pgs. 167-169) 

In complying with the court's directions, defendants- 

appellees filed revised plans which showed in detail why each of 

the zones should remain as originally constituted with the excep- 

tion of Zones E-1-B and E-1-C. (Vol. 1, pgs. 191-200) They met 

that problem by proposing what is favorably known as the "Princeton 

Plan' among those active in mixing the races in the schools. It 

called for combining the two zones into one, to be designated 

E-1-B, with the two schools (Hall and Clark) to be administered by 

one set of administrative officials. It proposed that grades one 

and two attend Eliza Clark and grades three, four, and five attend 

Myrtle Hall. 

After a hearing, defendants-appellees' revised plans were 

approved by the trial court and ordered into effect for the 1966-67 

school year. (Vol. 1, pgs. 209,210) :iThe effect of ithe order was, 

of course, to eliminate Wilson Avenue as a boundary line between 

12 



the Hall and Clark zones. 

Racially, Clarksdale was--and is--almost evenly divided 

between Negroes and whites, and of course, as in all other towns 

and cities where there is a bi-racial population, there was--and 

is--no even distribution of the races throughout the community. 

A majority of the whites lived--and live--north of those tracks. 

But there are sizable areas where the races were--and are--mixed. 

In Zone E-2-B (Riverton), about half of the area was--and is-- 

composed of white residences and a considerable proportion of the 

population is white. In Zone E-2-A (Booker T. Washington), there 

were a few people who are not Negroes. The original Zone E-1-C 

(Eliza Clark) was populated entirely by whites, but it was com- 

bined with Zone E-1-B (Myrtle Hall) which was--and is--predominant- 

ly, but not entirely, populated by Negroes. Zone E-1-A (George 

Oliver) had a considerable number of whites among its predominant- 

ly Negro population. By adopting a ''meighborhood school" plan 

and requiring all pupils in desegregated grades to attend the 

school in the zone wherein he or she lives--thus basing their ad- 

missions policy on residence and not on race--defendants-appellees 

met all requirements of Brown and established, as much as it was 

within their power so to do, a desegregated school system which 

necessarily has to result in integrated schools if the school 

children of Clarksdale attend public schools. 

The district court's memorandum opinion, in which it upheld 

defendants-appellees' desegregation plan, and its order ordering 

such plan into effect, dated August 10, 1965, can be found in 

-13- 



Volume 1, at pages 118-169. In its order the district court 

deferred for later resolution all issues relating to racial 

desegregation of faculties and administrative personnel. (Vol. 1, 

p.:169) 

To be specific, under the plan ordered into effect by the 

district court -- 

The segregation of pupils on the basis of race 

was ended. 

Compact attendance areas or zones, with reason- 

able, rational and natural boundaries, were estab- 

lished in order to achieve a system of determining 

admission to the schools of the district on a 

nonracial basis. 

All racial designations were abolished and all 

racial considerations were abandoned. 

A timetable for the desegregation of all grades 

was put into effect which ensured a faster rate of 

desegregation than any other Mississippi district 

proceeding to that goal under court order. 

All students new to the district were allowed 

to attend the school which served the children in 

desegregated grades in the zone wherein he or she 

lived. 

All students in a grade not yet desegregated 

were permitted, if he or she desired to do so, to 

attend the school which served the childred in 

mT 



desegregated grades in the zone wherein he or she 

lived. 

All students desiring to take a course not 

offered at the school he or she attended but 

offered at another school were allowed to trans- 

fer to the latter school. 

No transfers other than those referred to in 

the three paragraphs immediately preceding this 

paragraph were to be granted. 

Defendants-appellees were required to offer 

an identical curriculum at all of the district's 

elementary, junior high and senior high schools; 

to maintain substantially the same teacher-pupil 

ratios for each grade in all of the district's 

schools; to maintain substantially the same level 

of expenditures of public funds per pupil at all 

of the district's elementary schools, each of the 

district's junior high schools, and at each of the 

district's senior high schools. 

Those requirements--which were a part of the district court's 

order of August 10, 1965--made certain that no school in the dis- 

trict would be inferior to any other school in the district. But 

lest this court be misled into believing what plaintiffs-appellants 

say about what were formerly the Negro schools of the district, 

defendants-appellees--with understandable pride--call attention to 

these facts: 

«l5w 



Every school in the district was fully 

accredited, with every so-called Negro school 

graded AA. 

Every school in the district was a member of 

the Southern Association of Colleges and Schools. 

But one other school system in Mississippi could 

make that claim. 

Every Negro teacher in the system possessed 

a Class A or Class AA professional certificate. 

Teacher salaries, pursuant to a program 

adopted five years prior thereto, had been 

equalized. 

There was no real difference in the courses 

offered throughout the system and any course really 

desired by pupils in any of the schools was pro- 

vided. 

With the additional classrooms added within the 

prior two years, there was no overcrowding in any 

of the schools. 

The teacher-pupil ratios--which at the time 

of one of the hearings was the best of any major 

system in the state--had been improved to the 

point that there was one teacher for every nineteen 

senior high pupils, one for every twenty-one junior 

high pupils, and one for every twenty-seven elemen- 

tary school pupils, with all enrolled pupils--not 

«16: 



just pupils in average daily attendance--counted. 

Those ratios prevailed at every school in the 

district. 

Per pupil expenditures had been equalized as 

much as possible, with any differences attribu- 

table to differences in costs of maintenance due 

to the varying ages of the several buildings. 

The district court's memorandum opinion, in which it approved 

the proposal of defendants-appellees to combine Zones E-
1-B and 

E-1-C into one zone, to be designated as Zone E-1-B, and its order 

to that effect dated December 13, 1965, can be found in Volume 1, 

at pages 237-246. 

Plaintiffs-appellants appealed to this court from the distri
ct 

court's order of December 13, 1965, and parlayed it into an appeal 

from the district court's order of August 10, 1965. Hearing of 

the appeal was expedited so that it would be, and was, argued 

along with the Jefferson cases, in April of 1966. However, it was 

not decided along with the Jefferson cases; probably becaus
e they 

were ''freedom-of-choice' cases. 

No action was taken on the appeal for almost three years. 

It was not until March 6, 1969, that this court handed down the 

opinion which appears in 409 F. 2d, at pages 682 et seq. 

Defendants-appellees sought, unsuccessfully, to have the 

March 6, 1969, decision of this court reviewed by the court en 

banc. It also sought to have the decision reviewed by the Sup
reme 

Court of the United States, but their petition for writ of 

S17 



certiorari was denied. 

When the case again came on for hearing before the district 

court, the court had before it defendants-appellees' desegregation 

plan and a plan developed by the United States Office of Education, 

Department of Health, Education and Welfare, which the court had 

had prepared. After hearing the evidence with respect to them, 

the district court was forced to recognize defendants-appellees' 

plan as fundamentally sound. 

"The board's plan that has evolved has, from 

the very beginning, had certain basic merit in 

that the seven elementary schools, structured on 

grades one to six, are located throughout the 

different parts of the city and they serve areas 

in which most of the children of grades one to 

six are able to walk to school for distances of 

less than a half a mile. These buildings were 

built, apparently, with that thought of convenience 

in mind. They have been structured grades one to 

six because that seems to be the overwhelming 

educational philosophy in the United States, that 

a six grade elementary school is superior to one 

of a different grade structure. Not that that is 

always the case, but that seems to be the over- 

whelming point of view. 

"Other advantages deemed to flow from that 

grade structure relate to teaching practices, 

-1%8- 



including the ability to check on the child's 

progress during those critical years, the advan- 

tages of having a child in conditions with which 

he is familiar and to which he develops an early 

attachment without being shifted too often too 

soon. 

"The board's plan as regards the grades one 

to six is based on all of those obvious consi- 

derations, as well as the boundaries, the natural 

boundaries, the railroads, the rivers, and the 

other obstacles, the traffic hazards that have 

been referred to in this evidence. 

"The city has no public transportation facili- 

ties that operate on a schedule basis. The 

district does not provide school buses and is 

without funds to furnish that facility. This Court 

knows from observation that these children in 

these elementary grades by and large walk to their 

schools and do not ride. 

"The grades seven, eight and nine are recog- 

nized in the Clarksdale schools and given the 

intermediate junior high school treatment, or at 

least they are in part. There are many educational 

advantages in this. Here again the board, by the 

location of its schools, has recognized that there 

10 



is due an increase in the walking or travel area 

over that of the grade school by trying to locate 

the junior highs within one and a half miles of 

the residence of the children attending the junior 

high. Until fairly recent years there was one 

junior high north of the tracks and one south of 

the tracks, and then the Riverton junior high school 

was added south of the tracks. 

"The district operates two traditionally dual 

type high schools, with the thought that children 

of the grade age could safely travel up to two miles 

to attend high school. These two high schools, the 

Clarksdale High School and the Higgins High School, 

are about two miles apart." 

The district court could fault defendants-appellees' plan 

for only one thing: it had not produced racially balanced schools. 

"The one defect in that concept is that it 

hasn't produced an acceptable degree of integration. 

If it had, why, that would be an ideal plan." 

In assessing the HEW plan, the district court found its 

proposals for the district's elementary schools to border on the 

indefensible and beyond the rule of reason. 

"Under the HEW proposal one of the most serious 

objections is that the walking distance for children 

in grades one to six will be increased to two miles 



or more, as against the present average of approxi- 

mately a half a mile. That is a serious factor that 

rises above the role of inconvenience and borders 

almost on the indefensible. I am sure that more 

study could improve that situation. The evidence 

in the case is that to recast these grade schools in 

line with the HEW plan would result in great ob- 
| 

stacles and great discomfort of the children attending 
| 

school from a purely physical standpoint. It would 

place an undue burden on their parents if the grade 

schools were restructured at this time in the light 

of the HEW proposal. It does seem that, while it is 

necessary to achieve desegregation, a better plan 

could be devised than one which would make one child 

go to three schools to get to the sixth grade. That 

seems to be segmenting it beyond the rule of reason." 

On January 10, 1970, the district court chose to adopt a 

plan of its own, the salient features of which were as follows: 

(a) A single senior high school was established. 

(b) A single junior high school was established. 

(c) Elementary pupils in grades 1 through 6 pres- 

ently attending Oliver Elementary School were 

assigned either to Myrtle Hall Elementary 

School or Riverton Junior High School in 

accordance with proximity of student's resi- 

dence. 



(d) The remainder of the elementary schools, 

grades 1 through 6, remained unchanged. 

As a result of the decision of the Supreme Court in Carter 

v, West Feliciana Parish School Board, 396 US 226, 24 L Ed 24 382, 

the court's plan became effective February 2, 1970. Loss of 378 

of the school district's 381 white 7th and 8th grade pupils was 

only the most visible disaster flowing from the implementation of 

the plan. All but three of those pupils chose to withdraw from 

school rather than attend school under such a plan. 

In its order of January 10,1970, the district court also, 

"because of the unusual complexities of the Clarksdale school 

situation, particularly due to the location of its various 

elementary schools,' appointed a Special Master ''to make full 

study and proper recommendations for student desegregation in all 

grades for the 1970-71 school year as a result of all relevant 

data," and in connection therewith directed the Special Master to 

confer with and consider suggestions by the School Board, the 

United States Office of Education, Department of Health, Education 

and Welfare, and the biracial advisory committee created by the 

order. 

On March 11, 1970, the Special Master submitted A Plan for 

the Continued Operation of the Clarksdale Municipal Separate School 

District of Clarksdale, Mississippi. Objections thereto were 

thereafter filed by both plaintiffs-appellants and defendants- 

appellees. After a hearing, the district court, by its order of 

-T 0 



May 8, 1970, overruled such objections and incorporated the 

recommendations of the Special Master into its order of that date. 

By that order, 'the prior order of this court with respect to 

public school desegregation entered January 10, 1970, (was) 

supplemented and amended to provide for student desegregation to 

be instituted in all of the district schools effective September 

1970." 

The salient features of the district court's plan were: 

(a) A single senior high school was established. 

(b) A single junior high school was established 

to serve grades 8 and 9. 

(c) A single intermediate school was established 

to serve grade 7. 

(d) All students enrolled in grades 1-6 were 

assigned to the elementary school nearest each 

student's residence, regardless of zone or the 

present or previous racial enrollment in the school. 

If the capacity of any school was exceeded, the 

student was to attend the school next nearest his 

residence, regardless of any zone line, present or 

previous racial enrollment. However, the attendance 

of any student at the school nearest his residence 

was subject to the paramount, absolute right ordered 

for any student transferring in accordance with the 

order. 

(e) Any student transferring from an elementary 

«33 



school, the majority of whose students were of the 

same race, to another elementary school, the majority 

of whose students were of a different race, would be 

granted an absolute right to transfer, regardless of 

space, and such right to transfer would not be 

dependent upon available space. Any student thus 

displaced from an overcrowded school would have to 

attend the next nearest elementary school. 

The appeals which were taken from the District Court's 

order of May 8, 1970, resulted (on August 12, 1970) in the 

reversal of the District Court's orders of January 10, 1970, and 

May 8, 1970, as they applied to elementary schools, and in direc- 

tions to implement the plan developed by the Department of Health, 

Education and Welfare, despite the fact that the district court 

had said that it "bordered almost on the indefensible . . . and 

was beyond the rule of reason.” 

In obedience to this court's order of August 12, 1970, the 

District Court entered an order on August 21, 1970, which 

provided, in part, as follows: 

1. All pupils residing in the Heidelberg, 

Kirkpatrick and Riverton zones should attend 

grades 1 and 2 at Riverton Elementary School, 

grades 3 and 4 at Heidelberg Elementary School, 

and grades 5 and 6 at Kirkpatrick Elementary 

School. 

2. All pupils residing in the Oliver, Myrtle 

2 



Hall and Oakhurst zones should attend grades 1 and 

2 at Myrtle Hall Elementary School, and grade 3 at 

Oliver Elementary School. Grades 4, 5 and 6 from 

Oakhurst and Myrtle Hall zone should attend Oakhurst 

Elementary School. Grades 4, 5 and 6 from Oliver 

zone should attend Oliver Elementary School. 

3. All pupils residing in the Booker T. Washing- 

ton zone should attend Washington Elementary School. 

and in directions to the biracial advisory committee to conduct 

studies during the first semester of the 1970-71 school year of 

the ultimate use to be made of the Booker T. Washington School, 

and the assignment of Negro pupils presently attending such school, 

so as to eliminate it as an all-black school. 

By an order dated January 19, 1971, (Vol. 2, pgs: 111-113) 

the district court ordered, on the basis of a plan submitted by 

plaintiffs-appellants, that effective for the school year beginning 

in September 1971 all children enrolled in elementary grades 1-6 

should be assigned in accordance with the following desegregation 

plan: 

(a) All pupils residing in the Heidelberg, 

Kirkpatrick and Riverton zones should attend grades 

1 and 2 at Riverton Elementary School, grades 3 and 

4 at Heidelberg Elementary School, and grades 5 and 

6 at Kirkpatrick Elementary School. 

(b) All pupils residing in the Myrtle Hall, 

Oakhurst and Booker T. Washington zones should 

he Lo 



attend grades 1 and 2 at Myrtle Hall Elementary 

School, grades 3 and 4 at Booker T. Washington 

Elementary School, and grades 5 and 6 at Oakhurst 

Elementary School. 

(c) Oliver Elementary School should be re- 

established as an elementary school serving grades 

1-6, to be attended by all pupils residing in the 

elementary zone heretofore established for Oliver 

Elementary School and such territory as may be 

added thereto to produce a substantial biracial 

assignment of pupils at said school. 

and 

(d) That the biracial advisory committee should 

study new attendance zone lines for the Oliver 

Elementary School and make recommendations thereasto 

in writing to the court not later than April 1, 1971. 

On March 26, 1971, the biracial committee advised the Dis- 

trict Court: 

"That the Committee does not have the capacity 

to alter or change the boundaries of George H. 

Oliver Elementary School to the extent that sub- 

stantial desegregation will be achieved as so 

ordered by the Court." 

On March 31, 1971, the District Court ordered defendants- 

appellees to file with the court not later than April 20, 1971, a 

-26- 



proposal for altering the zone lines for the Oliver Elementary 

School to serve grades 1-6. 

Defendants-appellees, subjected to the requirements of such 

order and a provision in the District Court's order of January 19, 

1971, requiring them to file with the court in writing its views 

and recommendations for the Oliver attendance zone lines and such 

other zone line changes as it deemed necessary to promote desegre- 

gation, and chained to the absurdities of the HEW plan by this 

court's directions in its opinion of August 12, 1970, proceeded 

to file with the District Court six separate proposals for pairing 

or clustering the district's elementary schools, supplemented with 

(1) their views about the best method for the operation of the 

schools of the district, (2) a recital of the unfortunate results 

which followed from the changes in the operation of the schools 

of the district imposed in response to the directions of the court, 

and (3) a suggestion that further unfortunate results could be 

expected from additional changes in the operation of the schools 

of the district. (Vol. 2, pgs. 176-180) . (Over twelve hundred 

white children had been driven from the schools of the district 

by the changes made as a result of such orders, and it was clearly 

apparent that further changes in the operation of the schools of 

the district would only compound those difficulties.) In addition, 

defendants-appellees stated to the court: 

What defendants, and particularly the Clarks- 

dale Municipal Separate School District, now 

desperately need, are directions from this Court 

“2 



for the future operations of the schools of the 

district, coupled with a judicial determination 

that the schools of the district, operated in 

conformity with such directions, provide a 

"unitary" school system. This school district, if 

it is to provide the pupils of the district with 

the education they deserve, must attain that 

point spoken of in Swann: 

'""At some point, these school authorities 

and others like them should have achieved 

full compliance with this Court's decision 

in Brown I. The system will then be 'unitary' 

in the sense required by our decisions in 

Green and Alexander." 

And because every proposal they had heretofore made, regard- 

less of its reasonableness and its conformity with the require- 

ments of the decisions of the Supreme Court of the United States, 

had been rejected out of hand, defendants-appellees added: 

In order to eliminate the possibility that 

the school system which will result from the order 

of the court which will be entered herein, will not 

be accepted an a "unitary" system, defendants ask 

that the court make clear in its order that its 

arrangements for the future operation of the schools 

of this school district did not originate with any 

suggestions by defendants. 

-28- 



Then, when the cause came on for hearing on May 27, 1971, 

defendants-appellees stated that they would implement that one of 

the plans which the plaintiffs-appellants might select and the 

court approve, or any different plan devised by plaintiffs- 

appellants and approved by the court, in order to bring an end 

to the continual disruptions in the operations of the schools of 

the district and so that plaintiffs-appellants could no longer 

contend that defendants-appellees were not operating a "unitary" 

school system. 

Upon the making of such announcement by defendants-appellees, 

plaintiffs-appellants advised the court their desires in the 

matter, and the same being agreeable to the court, the following 

"terminal plan of pupil assignment" was instituted, to begin with 

the school year 1971-72 (Vol. 2, pgs. 185-187): 

(a) All pupils in grades 10, 11 and 12 shall 

be assigned to Clarksdale High School, which shall 

be housed in the building complex consisting of 

the Bobo, Elizabeth Dorr, and Annex buildings, 

located at 100 West Second Street. 

(b) All pupils in grades 8 and 9 shall be 

assigned to Clarksdale Junior High School, which 

shall be housed in the buildings formerly used by 

the Higgins Senior-Junior High Schools. 

(c) All pupils in grade 7 shall be assigned 

to the Clarksdale Intermediate School, which shall 

be housed in the building formerly used by the 

=29= 



Riverton Junior High School. This school shall be 

a part, and subject to the administration of, the 

Clarksdale Junior High School. 

(d) All elementary pupils residing in the 

Heidelberg, Kirkpatrick, and Riverton Elementary 

Zones shall be assigned to the Heidelberg, Kirk- 

patrick and Riverton Elementary Schools. Grades 1 

and 2 shall be assigned to Riverton, grades 3 and 4 

shall be assigned to Heidelberg, and grades 5 and 6 

shall be assigned to Kirkpatrick. 

(e) All elementary pupils residing in the 

Myrtle Hall, Booker T. Washington and Oakhurst 

Elementary Zones shall be assigned to Myrtle Hall, 

Booker T. Washington and Oakhurst Elementary Schools. 

Grades 1 and 2 shall be assigned to Myrtle Hall, 

grades 3 and 4 to Booker T. Washington, and grades 

5 and 6 to Oakhurst. 

(f) All elementary pupils attending grades 1 

to 6 residing in the Oliver Elementary Zone and 

zones E3-A shall be assigned to Oliver Elementary 

School. 

When the district court entered its order of May 27, 1971-- 

by which it established "a terminal plan of pupil assignment," 

from which no appeal was taken--this case, as a case for compli- 

ance with the Fourteenth Amendment to the Constitution of the 

United States as it pertains to elementary and secondary education, 

-30- 



was terminated. This case, within the purview of 20 USCS #1617, 

was not a pending case on July 1, 1972, the effective date of 

such statute. 

The schools of the school district have been operated under 

the plan ordered into effect by the district court's order of 

May 27, 1971, since September 1, 1971. 

There were no proceedings in the case, of any moment, between 

May 27, 1971, when the trial court handed down its ''terminal plan 

of pupil assignment," and July 1, 1972, the effective date of 

20 USCS #1617. 

31 



ARGUMENT 

Plaintiffs-appellants, in support of their claim that 20 

U.S.C. #1617, which became effective July 1, 1972, authorizes the 

allowance of attorneys' fees for services extending back to the 

beginning of this action, on April 22, 1964, place themselves on 

Bradley v. Richmond School Board, 416 US 696, 40 L Ed 2d 476 

(May 15, 1974). But Bradley was concerned with the question, as 

the court itself pointed out, of "the applicability of that sec- 

tion to a situation where the propriety of a fee award was pending 

resolution on appeal when the statute became law.'" There was no 

such situation in this case. 

In Bradley, which was instituted in 1961, plaintiffs, on 

March 10, 1970, requested an award of attorneys' fees. 

The district court, having found that "at least since 1968 

the Board had been in default in its constitutional duty as 

enunciated in New Kent County," awarded plaintiffs attorney's fees 

from March 10, 1970, the date on which their motion for attorneys’ 

fees was filed with the court, to January 29, 1970, the date on 

which the court declined to implement the plan proposed by 

plaintiffs. 

The School Board appealed from that award, and its appeal 

was pending when Congress enacted what is now 20 U.S.C. #1617. 

The holding of the court, in the last paragraph of the 

opinion, was -- 

"Accordingly, we hold that #718 is applicable 

to the present situation, and that in this case the 

«37 



District Court in its discretion may allow the 

petitioners a reasonable attorneys' fee for 

services rendered from March 10, 1970, to or 

beyond April 5, 1971." 

Attention is particularly directed to the fact that the fee 

to be allowed was not to include any fee for services performed 

prior to the date of the filing of the motion for the allowance of 

attorneys' fees. 

On the other hand, in this case no motion for the allowance 

of attorneys' fees was pending resolution on appeal when the 

statute became law on July 1, 1972. No such motion was filed in 

this case until October 10, 1975, except the motion filed with 

this court on or about January 5, 1973, which was limited to a 

request for $875.00 for services incident to the appeal from the 

order refusing to minimize transportation requirements. And inso- 

far as those services are concerned, recovery therefor was 

included in the district court's award of attorneys' fees for 

services rendered since July 1, 1972. 

The fact of the matter is that this action was terminated 

by the district court's order of May 27, 1971, by which every 

remaining issue raised in the complaint was finally and completely 

resolved, and from which no appeal was taken by any party. As 

the District Court said on this point: 

"At the time Section 1617 was enacted, all 

definitive or substantive orders of this Court 

and of the Fifth Circuit for desegregating the 

“33 



Clarksdale public schools as to students, faculty, 

staff and services had been entered, were being 

complied with, and there were pending no appeals 

of any sort. Moreover, at that time there had 

been filed no motion for attorney fees which was 

undisposed of, nor had a claim been made." 

The transportation issue, raised as an afterthought by 

plaintiffs-appellants by motion filed July 31, 1972, involved no 

claim of discrimination on the basis of race, color or national 

origin, and no claim of violation of anyone's constitutional 

rights. Hence 20 U.S.C. #1617 is not applicable to this action. 

On the question of whether they have acted in an ''unreason- 

able and obdurately obstinate" manner during this litigation, 

defendants-appellees respectfully submit that not only were their 

actions in this case not carried out in an unreasonable and 

obdurately obstinate manner, but that, throughout this litigation, 

they have acted reasonably and responsibly and have, in fact, 

sought to provide plaintiffs-appellants with all rights vouchsafed 

to them by the Constitution of the United States, as interpreted 

by the Supreme Court of the United States. 

To the question--which was one of fact--the district court 

found as a fact: 

"In answer to this aspect of the Fifth 

Circuit's directive, we find on the evidence, as 

well as on our records and files, that the school 

board, in the conduct of the litigation, did not 

-34- 



act in an unreasonable and obdurately obstinate 

manner prior to July 1, 1972, and that it 

should not, for that reason, be required to pay 

for pre-July 1, 1972, legal expenses incurred 

by plaintiffs." 

The trial court's finding of fact that the actions of 

defendants-appellees herein were not carried out in an unreasonable 

and obdurately obstinate manner must stand unless clearly errone- 

ous, which it is not. 

In support of the trial court's finding of fact defendants- 

appellees show -- 

First, they did not question their obligation to establish 

nonracial attendance areas and to make nonracial assignments, as 

prayed for in plaintiffs' complaint. 

Second, they submitted a desegregation plan which fulfilled 

every requirement set forth in applicable court decisions. 

Third, their desegregation plan was rejected by this court 

on the basis of decisions rendered after (1) the submission of 

the plan to the district court, (2) after the approval of the plan 

by the district court, (3) after the arguments before the court of 

appeals on May 25, 1966, and (4) during the three years this court 

delayed passing on the validity of the plan. 

Fourth, they acted reasonably and responsibly in resisting 

the imposition of the HEW plan on the district. 

Fifth, they have not acted in an unreasonable and obdurately 

obstinate manner during this litigation. 

35 



Sixth, their desegregation plan provided the remedy required 

by equity. 

Seventh, the trial court's finding of fact that the actions 

of defendants-appellees herein were not carried out in an unreason- 

able and obdurately obstinate manner stands unless clearly errone- 

ous, which it is not. 

-36~ 



DEFENDANTS -APPELLEES DID NOT QUESTION THEIR 
OBLIGATION TO ESTABLISH NONRACIAL ATTENDANCE 
AREAS AND TO MAKE NONRACIAL ASSIGNMENTS, AS 

PRAYED FOR IN THE COMPLAINT 

In the complaint filed April 22, 1964, which was the first 

of its kind to be filed in the Northern District of Mississippi-- 

plaintiffs-appellants asked that defendants-appellees desist 

(Vol 1, pgs. 9, 10) -- 

"from continuing to maintain a dual scheme 

or pattern of school zone lines or attendance 

area lines based on race or color;" and 

from assigning pupils to schools in Clarks- 

dale, Mississippi, on the basis of the race or 

color of the pupils;" 

and that defendants-appellees -- 

"present a complete plan * * * for the 

reorganization of the entire Clarksdale School 

systems into a unitary nonracial system which 

shall include a plan for the assignment of 

children on a nonracial basis * * * and the 

drawing of school zone or attendance zone area 

lines on a nonracial basis." 

In their response to the complaint, defendants-appellees did 

not question the right of plaintiffs-appellants to such relief. 

To the contrary, in their answer they advised the court that (Vol. 

1, pgs. "35, 36): 

-37- 



they (were) aware of the fact that 

they are required by the Supreme Court of the 

United States to make 'a prompt and reasonable 

start towards full compliance' with the require- 

ments of Brown v. Board of Education of Topeka, 

349 U.S) i294,+15:8,:6L+:753;99:L5:Ed.,,1083, and 

cases of a similar import. In view of that fact, 

these defendants have seen to it that budgets 

relating to the operation of the schools of the 

School District do not contain racial designations, 

that new construction plans are not based upon 

the continuance of a biracial system of schools 

and that the funds appropriated and expended in 

the operation of the schools of the School District 

are not appropriated and expended separately for 

Negro schools and separately for white schools. 

They have begun a study looking toward the estab- 

lishment of attendance zones for the School District, 

applicable to white pupils and Negro pupils alike. 

In other words, they have made a start towards full 

compliance with the requirements of Brown, 

Nor did defendants-appellees raise any question about the 

duty of the district court to issue an injunction such as w
as 

prayed for in the motion which was filed along with the complaint, 

an injunction requiring defendants-appellees to prepare and
 

file with the court a desegregation plan for the operation of the 

-38- 



schools of the school district. In its order for such an injunc- 

tion (Vol. 1, pgs. 40-46) the district court stated that it had 

been ''conceded" that it was its duty to issue such an injunction. 

In obedience to the district court's injunction, defendants- 

appellees prepared and filed with the district court a desegrega- 

tion plan which provided plaintiffs-appellants with the relief 

prayed for in their complaint. (Vol. 1, pgs. 50-72). Under their 

plan -- 

The schools of the district were to be 

completely desegregated by the beginning of the 

1967-68 school year. 

The segregation of pupils on the basis of 

race was ended. 

Compact attendance areas or zones, with reason- 

able, rational and natural boundaries were estab- 

lished in order to achieve a system of determining 

admission to the schools of the district on a non- 

racial basis. 

All racial designations were abolished and all 

racial considerations were abandoned. 

All students desiring to take a course not 

offered at the school he or she attended but 

offered at another school were given permission to 

transfer to the latter school. 

Transfers other than those referred to in the 

preceding paragraph were prohibited. 

-39- 



They (defendants-appellees) assumed the 

obligation to offer an identical curriculum at 

all of the district's elementary, junior high 

and senior high schools; to maintain substan- 

tially the same teacher-pupil ratios for each 

grade in all of the district's schools; to 

maintain substantially the same level of ex- 

penditures of public funds per pupil at all of 

the district's schools. 

Beyond peradventure, defendant-appellees' desegregation plan 

provided the identical relief called for in plaintiffs-appellants’ 

complaint. It brought to an end -- 

1) the practice of segregating pupils on 

the basis of their race; and 

2) the maintenance of dual school zone 

lines or attendance areas based on race or 

color. 

Defendants-appellees' desegregation plan affirmatively provided 

for -- 

1) the revision of the school district into 

compact areas; 

2) single school zone lines having no racial 

basis; 

3) a system of determining admissions on 

a nonracial basis; and 

-40- 



4) a system not based on color distinctions. 

It is submitted that any fair appraisal of defendants- 

appellees' desegregation plan will lead to the conclusion that it 

provided plaintiffs-appellants with the exact relief prayed for by 

them in their complaint. 

DEFENDANTS -APPELLEES' DESEGREGATION PLAN 
PROVIDED AN ACCEPTABLE RATE OF DESEGREGATION 

Defendants-appellees' desegregation plan contemplated that 

the grades in the schools of the district would be desegregated 

at a faster rate than those of any other school district in 

Mississippi whose plan was then being policed by a federal court. 

The first grade was to be desegregated for the first semes- 

ter of the 1964-65 school year, the second grade for the second 

semester of that school year, and the third, fourth and twelfth 

grades throughout the school year 1965-66. Grades five, six, ten 

and eleven were to be desegregated in September, 1966. The whole 

process was to be completed in September, 1967, when the seventh, 

eighth and ninth grades would be desegregated. 

Thus the court will see that, by defendants-appellees' 

desegregation plan, the grades in their school district were to 

be desegregated at a faster pace than was required by this court 

in Singleton v. Jackson Municipal Separate School District, 348 F. 

2d 729, and that all of them were to be desegregated by HEW's then 

target date of September, 1967. At that time, literally dozens of 

Mississippi school districts were desegregating the grades in their 

<A1= 



schools, with the consent and approval of HEW, at a much slower 

pace. 

And in order to permit any pupil in a grade not yet desegre- 

gated to free himself or herself from an assignment based on race, 

as required by Singleton v. Jackson Municipal Separate School 

District, 355 F. 2d 865, defendants-appellees had amended their 

desegregation plan to permit any pupil entitled to admission in a 

grade not yet desegregated to transfer and attend the school which 

served those pupils living in the same zone who were already in 

desegregated grades. 

Defendants-appellees cannot be faulted for the rate of 

desegregation proposed in their desegregation plan. 

THE QUESTION OF FACULTY DESEGREGATION WAS 
PROPERLY DEFERRED 

At the time of the preparation of defendants-appellees' 

desegregation plan, and at the time of the District Court's order 

of August 10, 1965, the law in this circuit on the question of 

faculty desegregation was that found in Board of Public Instruction 

of Duval County, Florida v. Braxton, 326 F. 2d 616 (Jan. 10, 1964); 

Augustus v. Board of Public Instruction, 306 F. 2d 862 (1962); 

Calhoun v. Latimer, 321 F. 24.302 (1963); Lockett v. Board of 

Education, 342 F. 2d 225 (1965); and Bivins v. Board of Education, 

342 F. 2d 229 (1965). For that reason ''resolution of the problem 

of faculty desegregation (was) deferred for the time being." 

The action of defendants-appellees and the court with respect 

fd 



thereto was in accord with what this court had said in those cases, 

just as it followed what the Circuit Court of Appeals for the 

Fourth Circuit had recently said in Bradley v. The School Board of 

Richmond, Virginia, 345 F.:2d4 310 (1965). 

It was after the court's order of August 10, 1965, that the 

Supreme Court handed down its decision in Bradley v. School Board 

of the City of Richmond,” Va., 382 U.S. 103, 15 L. Ed. 24 187, in 

which it held that the Court of Appeals for the Fourth Circuit 

should not have approved the action of the District Court for the 

Eastern District of Virginia whereby appellants' desegregation 

plans were approved without full inquiry into the contention that 

faculty allocation on an alleged racial basis rendered the plans 

inadequate. The Supreme Court concluded: | 

"We hold that petitioners were entitled to 

such full evidentiary hearings upon their con- 

tention.” 

When defendants-appellees' desegregation plan came on to be 

argued before this court, defendants-appellees advised the court, 

in their brief, that they were aware of the holdings of the several 

courts on the question and of their responsibility to comply 

therewith. 

-43- 



DEFENDANTS -APPELLEES' DESEGREGATION PLAN, WHEN 
FILED WITH THE DISTRICT COURT ON JULY 27, 1964, 
AND WHEN ARGUED BEFORE A PANEL OF THIS COURT ON 
MAY 25, 1966, FULFILLED EVERY REQUIREMENT SET 

FORTH IN THE APPLICABLE COURT DECISIONS 

On July 27, 1964, when defendants-appellees filed their 

desegregation plan for the schools of the district, and on May 25, 

1966, when the constitutionality of such plan was argued before a 

panel of this court, the sum and substance of every requirement of 

such a desegregation plan was set forth in Brown I, 347 US 483, 

98 1 E4 873, decided May 17, 1954, and Brown II, 349 US 294, 99 L 

Ed 1083, decided May 31, 1955. In that case (actually four cases 

grouped under the same name) the question posed, according to the 

court, was -- 

"Does segregation of children in public schools 

solely on the basis of race, even though the physical 

facilities and other 'tangible' factors may be equal, 

deprive the children of the minority group of equal 

education opportunities?' (Emphasis added.) 

To that question, the court gave this succinct answer: 

"We believe that it does." 

And then went on to say: 

"'To separate (black children) from others 

of similar age and qualifications solely because 

of their race generates a feeling of inferiority 

that may affect their hearts and minds in 

a way unlikely ever to be undone.' (Emphasis added.)" 

bln 



It was in Brown II that the court spelled out the manner in 

which the remedy it called for should be achieved. It directed 

school boards and federal courts to consider -- 

’. problems related to administration, 

arising from the physical condition of the school 

plant, the school transportation system, revision 

of school districts and attendance areas into 

compact units to achieve a system of determining 

admission to the public schools on a nonracial 

basis." (Emphasis added.) 

The sort of attendance areas which the court had in mind 

was indicated in one of the questions propounded for reargument, 

as attendance areas resulting from -- 

"normal geographic school districting." 

Those words, given the construction normally accorded them 

by the courts, meant attendance areas or zones honestly and 

conscientiously constructed without regard for race, as opposed to 

attendance areas gerrymandered for racial purposes. 

The Supreme Court then went on to direct school boards 

"to achieve a system of determining admission to the public 

schools on a nonracial basis." 

That the school systems to be recast pursuant to its direc- 

tions should be free of racial considerations was made clear in 

one of the questions propounded by the court for reargument, when 

it described the sort of system it desired as -- 

-45= 



"A system not based on color distinctions." 

Thus the mandate of Brown was -- 

a) To cease the practice of segregating 

children solely on the basis of race; 

b) To revise school districts and attendance 

areas into compact units; 

c) To achieve a system of determining 

admissions to the public schools on a 

nonracial basis; and 

d) To create a system not based on color 

distinctions. 

It must be remembered that on July 27, 1964, and May 25, 

1966, the distinction between ''desegregation' and "integration" 

had not then been lost sight of. It was then well understood, in 

this circuit as well as throughout the nation, that the Constitu- 

tion did not require integration but merely forbade discrimina- 

tion. 

For example, on January 9, 1957, this court, the Court of 

Appeals for the Fifth Circuit, had declared in Avery v. Wichita 

Falls Independent School District, 241 F. 2d 230, 233: 

"The Constitution as construed in the School 

Segregation Cases * * * forbids any state action 

requiring segregation of children in public schools 

solely on account of race; it does not, however, 

require actual integration of the races." 

f= 



And on July 23, 1957, this court had declared in Borders wv. 

Bippy, 247:P.:. 24.268, 271: 

"The equal protection and due process clauses 

of the fourteenth amendment do not affirmatively 

command integration, but they do forbid any state 

action requiring segregation on account of their 

race or color of children in the public schools." 

And on June 30, 1958, this court had declared in Cohen wv. 

Public Housing Administration, 257 F. 24 73, 78: 

"Neither the Fifth nor the Fourteenth Amend- 

ment operates positively to command integration 

of the races but only negatively to forbid govern- 

mentally forced segregation." 

And on August 26, 1968, this court had declared in Holland 

v. Board of Public Education, 258 F. 24 730, 732: 

"The Fourteenth Amendment does not speak in 

positive terms to command integration, but nega- | 

tively, to prohibit governmentally enforced segre- 

gation." 

And on November 30, 1960, this court had declared in Boson 

v. Rippy, 285 F.-24:45.; 

"Negro children have no constitutional right 

to the attendance of white children with them in 

the public schools. Their constitutional right to 

'the equal protection of the laws' is the right ta 

47 



stand equal before the laws of the state; that is, 

to be treated simply as individuals without regard 

to race or color. The dissenting view of the elder 

Mr. Justice Harlan in Plessy v. Ferguson, 1895, 41 

L. Ed. 256, has been proved by history to express 

the true meaning of our Constitution: 

n . There is no caste here. Our constitution 

is color-blind, and neither knows nor tolerates 

classes among citizens. In respect of civil rights, 

all citizens are equal before the law. The humblest 

is the peer of the most powerful. The law regards 

man as man, and takes no account of his surroundings 

or of his color when his civil rights as guaranteed 

by the supreme law of the land are involved.'" 

And on February 13, 1964, this court had declared in Evers 

v. Jackson Municipal Separate School District, 328 F. 2d 408, 410: 

"This is not to say that the Fourteenth Amend- 

ment commands integration of the races in the schools, 

or that voluntary segregation is not legally permissible. 

* % * The Supreme Court did not hold otherwise in 

Brown Vv. Board of Education, 1954, 347 U.S. 483, 74 

S. Ct. 686, 98 1... E4. 873.. 1ts holding was that 

enforced racial segregation in the public schools is 

a denial of the equal protection of the laws enjoined 

by the Fourteenth Amendment." 

48 



The most famous of the legion of cases to the same effect 

was that of Briggs v. Elliott, 132 F.Supp. 776° (July 16," 1955), 

in which Judge Parker, speaking for a South Carolina three-judge 

court said: 

"The Constitution, in other words, does not 

require integration. It merely forbids discrimi- 

nation." 

The first case which comes to mind in which the understanding 

of the Constitution, as enunciated in Briggs v. Elliott was given 

effect, is that of Brown v. Board of Education of Topeka, 139 F. 

Supp. 468, in which the trial court, after the original Brown case 

had been returned to it, said: 

'""Desegregation does not mean that there must 

be intermingling of the races in all school dis- 

tricts. It means only that they may not be pre- 

vented from intermingling or going to school together 

because of race or color. 

"If it’ 1s a fact, as we understand’it is, with 

respect to Buchanan School that the district is in- 

habited entirely by colored students, no violation 

of any constitutional right results because they are 

compelled to attend the school in the district in 

which they live." 

Even before this case was filed, the Court of Appeals for 

the Seventh Circuit had reached the same conclusion in Bell wv. 

BAT 



School City of Gary, Ind., 324 F. 2d 209, decided January 29, 

1963, which presented the question whether the schools of Gary, 

with some having all-white and some all-colored student bodies, 

met the requirements of Brown. After pointing out that the com- 

position of those student bodies was the result of the concentra- 

tion of the city's Negroes in certain sections, the court added: 

"We approve . . . the statement in the District 

Court's opinion, 'Nevertheless, I have seen nothing 

in the many cases dealing with the segregation 

problem which leads me to believe that the law 

requires that a school system developed on the 

neighborhood school plan, honestly and conscientious- 

ly constructed with no intention or purpose to segre- 

gate the races, must be destroyed or abandoned because 

the resulting effect is to have a racial imbalance 

in certain schools where the district is populated 

almost entirely by Negroes or whites. * * *'V 

Before the district court had determined the validity of 

defendants-appellees' desegregation plan, two other Courts of 

Appeal, the Tenth and the Fourth, had also reached the same 

conclusion. Downs v. Board of Education of Kansas City, 336 F. 

2d 988 (Sept. 25, 1964) and Gilliam v. School Board of the City of 

Hopewell, :Va.,:345 F.: 2d. 325. (April 7, 1965). 

The Supreme Court of the United States had refused certiorari 

in each of those cases. Bell (377 US 924, 12 L Ed 2d 800), and 

Gilliam (382 US 103, 15 L.Ed 24 18). 

«50= 



Congress, in the Civil Rights Act of 1964, had also reached 

the same conclusion. In its Section 401, it adopted this defini- 

tion of a desegregated school, set forth in Bell v. School City 

of ‘Gary, Indiana, 213°P. Supp. 819: 

"The fact that certain schools are completely 

or predominantly Negro does not mean that the de- 

fendant maintains a segregated school system. 

A school is not segregated because it is attended 

by all Negro students if the district is inhabited 

entirely by Negroes and they are compelled to attend 

the school in the district in which they live." 

"Sec. 401." As used in this title -- 

"(b) '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 students to public schools in order 

to overcome racial imbalance." 

With the law on the subject thus clearly to the effect that 

a desegregation plan which provides for compact attendance areas 

or zones fairly arrived at, constructed without regard to race 

and not gerrymandered for racial purposes, and which requires all 

pupils living in each attendance area or zone, without regard to 

his or her race or color, to attend the school in that attendance 

area or zone, is exactly the sort of desegregation plan called for 

by Brown and the other cases which up to then had been decided, 

51 | 

| 
| 

| | 
4 



and that no violation of the Fourteenth Amendment resulted there- 

from even though the concentration of pupils of one race in 

particular areas or zones resulted in racial imbalance in the 

schools of the district, it is submitted that defendants-appellees' 

original desegregation plan, when filed with the district court 

on July 27, 1964, and when argued before this court on May 26, 

1966, fulfilled every requirement in the applicable court decisions. 

DEFENDANTS -APPELLEES' DESEGREGATION PLAN WAS 
REJECTED BY THIS COURT ON THE BASIS OF DECI- 
SIONS RENDERED AFTER (1) THE SUBMISSION OF 
THE PLAN TO THE DISTRICT COURT, (2) AFTER THE 
APPROVAL OF THE PLAN BY THE DISTRICT COURT, 
(3) AFTER THE ARGUMENTS BEFORE THE COURT OF 
APPEALS ON MAY 25, 1966, AND (4) DURING THE 

THREE YEARS THIS COURT DELAYED PASSING ON THE 

VALIDITY OF THE PLAN 

On March 6, 1969, almost three years after the arguments 

before a panel of this court on the constitutionality of 

defendants-appellees' desegregation plan, that panel, by a two to 

one vote, returned the case -- 

M ..¢, ‘for a hearing to determine the 

effectiveness of the Clarksdale plan in today's 

factual setting and in the light of Green and 

other decisions of the Supreme Court and of this 

Court. 

In its opinion, the majority conceded (409 F. 2d 682, 687) 

that -- 

"The basic criteria the school board used in 

-52- 



this case were rational: (1) maximum utilization 

of school buildings; (2) density of population; 

(3) proximity of pupils to schools; (4) natural 

boundaries; and (5) welfare of students." 

But the majority added (409 F. 2d 682, 688): 

"But there is a sixth basis criterion the 

Board did not use; promotion of desegregation." 

It was on that basis, and on the authority of cases decided 

subsequent to the hearing of such appeal, that this Court refused 

to affirm the order approving defendants-appellees' desegregation 

plan. 

By placing its decision on its conclusion that defendants- 

appellees, in drawing up their desegregation plan, had not used 

as a criteria the promotion of desegregation, which it equated 

with integration, and by grounding its decision on cases decided 

subsequent to the hearing of such appeal, this Court, in effect, 

admitted that such desegregation plan, at the time it was filed 

with the district court, and at the time of the district court's 

order of August 10, 1965, and at the time of the argument of the 

appeal on May 25, 1966, met every requirement of Brown, the 

Constitution of the United States, and the decisions of the courts 

of the United States then in existence. For at the times men- 

tioned, there was no requirement that desegregation plans should 

be formulated with the idea of promoting integration. Plaintiffs 

themselves had not so contended, as is shown by this paragraph 

«55 



from the district court's Memorandum Opinion of August 10, 1965: 

"Nor, as it must be noted, do plaintiffs seek 

here a right to require affirmative integration in 

these schools. They clearly so state in their 

briefs." 

And his court, the Court of Appeals for the Fifth Circuit, as 

has already been pointed out, had held in a number of cases that 

there was no obligation on the part of anyone to further the 

mixing of the races in public institutions. 

The first intimation that this court was to abandon its 

understanding of the Fourteenth Amendment and substitute for it a 

contrary interpretation came in Singleton 1, 348 PF. 2d 729, decided 

by a panel composed of Judges Hutcheson, Brown and Wisdom, 
in a 

footnote by Judge Wisdom: 

"Judge Parker's well-known dictum ('The Con- 

stitution, in other words, does not require integra- 

tion. It merely forbids discrimination.') in 

Briggs v. Elliott, E.D.S.C. 1955,.1132 F. Supp. 776, 

777, should be laid to rest." 

But it was in Jefferson 1, 372 F. 2d 836 (Dec. 29, 1966) 

that this court officially repudiated its former understandi
ng 

that the Fourteenth Amendment does not require integr
ation but 

forbids discrimination. In the opinion in that case, written by 

Judge Wisdom and concurred in by Judge Thornberry, it was declared: 

"The United States Constitution, as construed 

25 f 



in Brown, requires public school systems to inte- 

grate students, faculties, facilities, and activi- 

ties." 

And it was also held therein: 

1) That there is no such thing as de facto 

segregation, i.e., racial imbalance resulting 

fortuitously from housing patterns, in the 

communities served by the school districts in 

this circuit; 

2) That the holding in Bell v. School City 

of ‘Gary, Indiana, 213 F. Supp. 819,324 P. 24.2009, 

dealing as it did with racial imbalance in schools 

caused by housing patterns, had no application to 

cases in this circuit, because there is no such 

thing as de facto segregation in this circuit; 

3) That the definition in Section 401 (b) of 

the Civil Rights Act of 1964: 

"'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 assign- 

ment of students to public schools in order 

to overcome racial imbalance." 

is inapplicable in this circuit, because it was 

taken from Bell and intended to apply only to cases 

-55- 



involving defacto segregation; and 

4) That it was the duty of the court, when 

possible, to cooperate with Congress in carrying 

out congressional policy. 

Then, when that case was considered by this court en banc, 

the declaration that the Constitution requires public school 

systems to integrate students, faculties, facilities, and 

activities, was affirmed by eight of the Judges, in this language 

(Jefferson II, 380 PF. 24.385 (March 29,:1967)): 

"Expressions in our earlier opinions dis- 

tinguishing between integration and desegregation 

must yield to this affirmative duty we now recog- 

nize." 

And the following cases (in which the court had declared 

that the Fourteenth Amendment does not positively command integra- 

tion of the races in the public schools, but only negatively 

forbids discrimination) were specifically overruled: 

Avery v. Wichita Falls Independent School 

District, 1956, 241 F. 24 230; Borders v. Rippy, 

1957, -247:F..24,268; Rippy v. Borders, 1957,.257 

F. 2d 73; Cohen v. Public Housing Administration, 

1958,:.257.F. 24.73; City of Montgomery Vv, Gilmore, 

1960, -277:F.: 24364; Boson-v. Rippy, 1960,:285 F. 

2d 43; Stell v. Savannah-Chatham County Board of 

Education, 1964, 333 F. 2d 55; Evers v. Jackson, 

«56 



1964, 328 F. 2d 408; Lockett v. Board of Education 

of Muscogee County, 1965, 342 F. 2d 225. 

In Cisneros v. Corpus Christi Independent School District, 

467 F. 2d 142 (Aug. 2, 1972), the majority then on this court 

confirmed their conclusion that racial imbalance was unconstitu- 

tional--not de facto, not de jure, but unconstitutional. 

. we discard the anodyne dichotomy of 

classical de facto and de jure segregation." 

In returning this case to the district court with the 

admonition that the promotion of integration had to be a major 

objective of a desegregation plan, the court also relied, in 

addition to what it had held in Jefferson I and Jefferson II, on 

Green v. County School Board of New Kent County, Virginia, 391 US 

430, 20 L Ed 2d 716, and Monroe v. Board of Commissioners of the 

Cicy of Jackson,” 391 US 450,920 L'Ed 2d 733, both decided in 1968. 

Since it was on the authority of what it had itself said 

in Jefferson I and Jefferson II, decided December 29, 1966, and 

March 29, 1967, and on what was supposed to have been held in 

Green and Monroe, both decided in 1968, that this court rejected 

defendants-appellees' desegregation plan, it cannot be gainsaid 

that defendants-appellees' desegregation plan, which was filed 

with the district court in 1964 and argued before this court on 

May 25, 1966, was rejected on the basis of decisions rendered 

after the submission of such plan to the district court and the 

argument on its constitutionality before this court, 

-57- 



DEFENDANTS -APPELLEES ACTED REASONABLY AND RE- 
SPONSIBLY IN RESISTING THE IMPOSITION OF THE 

HEW PLAN ON THE DISTRICT 

When the case came on again for hearing in the district 

court after this court's decision of March 6, 1969, the district 

court had before it defendants-appellees' desegregation plan and 

a plan developed by the United States Office of Education, 

Department of Health, Education and Welfare, which the court had 

had prepared. After hearing the evidence with respect to them, 

the district court was forced to recognize defendants-appellees’ 

plan as fundamentally sound. It could fault it for only one thing: 

it had not produced racially balanced schools. 

"The one defect in that concept is that it 

hasn't produced an acceptable degree of integra- 

tion. If it had, why, that would be an ideal plan.” 

In assessing the HEW plan, the district court found its 

proposals for the district's elementary schools to border on the 

indefensible and beyond the rule of reason. 

On January 10, 1970, the district court chose to adopt a 

plan of its own, the salient features of which were as follows: 

(a) A single senior high school was established. 

(b) A single junior high school was established. 

(c) Elementary pupils in grades 1 through 6 pres- 

ently attending Oliver Elementary School were 

assigned either to Myrtle Hall Elementary 

School or Riverton Junior High School in 

-58= 



accordance with proximity of student's 

residence. 

(d) The remainder of the elementary schools, 

grades 1 through 6, remained unchanged. 

On May 8, 1970, the district court amended its plan by 

incorporating therein the recommendations of its Special Master, 

which it had appointed in its order of January 10, 1970. As 

amended, the salient features of the plan were: 

(a) A single senior high school was established. 

(b) A single junior high school was established 

to serve grades 8 and 9. 

(c) A single intermediate school was established 

to serve grade 7. 

(d) All students enrolled in grades 1-6 were 

assigned to the elementary school nearest each 

student's residence, regardless of zone or the 

present or previous racial enrollment in the school. 

If the capacity of any school was exceeded, the 

student was to attend the school next nearest his 

residence, regardless of any zone line, present or 

previous racial enrollment. However, the attendance 

of any student at the school nearest his residence 

was subject to the paramount, absolute right ordered 

for any student transferring in accordance with the 

order. 

-59- 



(e) Any student transferring from an ele- 

mentary school, the majority of whose students 

were of the same race, to another elementary 

school, the majority of whose students were of 

a different race, would be granted an absolute 

right to transfer, regardless of space, and such 

right to transfer would not be dependent upon 

available space. Any student thus displaced 

from an overcrowded school would have to attend 

the next nearest elementary school. 

Under the HEW plan, sponsored by plaintiffs-appellants and 

which, according to the district court, ''bordered almost on the £ 

" 
indefensible . . . and was beyond the rule of reason,' the restruc- 

turing of grades at the elementary level would be as follows: 

Grades served under Students' previous 
School HEW proposal assignments 

Myrtle Hall 1-2 Oliver, Myrtle Hall 
and Oakhurst 

Oakhurst 4-6 Myrtle Hall and 
Oakhurst 

Oliver (Part of Higgins- 
Oliver Complex; 
closed as elementary 
school) 

Riverton Junior 3-6 Oakhurst and Myrtle 
High (converted Hall (grades 3 only); 
to elementary Oliver grades 3-6 
school) 

Heidelberg 3-4 Heidelberg, Kirkpatrick 
and Riverton elementary 

Kirkpatrick 5-6 Heidelberg, Kirkpatrick 
and Riverton elementary 

-60- 



Grades served under Students' previous 
School HEW proposal assignments 

Riverton 1-2 Heidelberg, Kirkpatrick 
elementary and Riverton elementary 

Plaintiffs-appellants appealed from the district court's 

orders of January 10, 1970 and May 8, 1970, on the ground that the 

district court should have ordered the HEW plan, with the exception 

of its proposal for the Booker T. Washington Elementary School, 

into effect. As to the Booker T. Washington Elementary School, 

they asked that the district court be required to enter an order 

which would integrate that facility. 

Defendants-appellees cross-appealed from the district court's 

orders of January 10, 1970 and May 8, 1970, and in connection 

therewith called attention to the fact that the Supreme Court of 

the United States, which was the only tribunal that could really 

settle it, had yet to pass on the question, which could be stated 

in either one of two ways: First, does de facto segregation-- 

which occurs fortuitously because of housing patterns--make an 

otherwise acceptable desegregation plan unconstitutional?, or 

Second, is there a constitutional mandate which requires the courts 

to bring about racial balance in the public schools of the nation? 

They further stated to this court that they, in asking the 

court not to subject defendant school district to more stringent 

requirements than are imposed elsewhere, did not seek an exemption 

from their obligation to provide equal educational opportunities 

for all pupils of the school district, without discrimination on 

<61~ 



account of race, color, religion or national origin. They sub- 

mitted that they had fulfilled that obligation by abolishing their 

dual zone lines and by formulating a desegregation plan on the 

exact lines called for by Brown, Alexander and Green, i.e., a plan 

whereby compact attendance areas or zones with reasonable, rational 

and natural boundaries, were created, and which required all 

pupils, without exception, to attend the school in the zone wherein 

he or she lived. Their zones, they said, were the result of the 

"normal geographic school districting' called for in Brown. Their 

plan achieved "a system of determining admissions to the public 

schools on a nonracial basis," as required by Brown. Their plan 

created "a system not based on color distinctions,' as commanded by 

Brown. No person was effectively excluded from any of the dis- 

trict's schools because of race or color, in disobedience to 

Alexander. In other words, the schools of the district, to which 

pupils were assigned by virtue of their residences and regardless 

of their race, color, religion, or national origin, were "just 

schools," as Green envisioned they should be. Hence, they con- 

tended, their desegregation plan, since it met all constitutional 

requirements, as enunciated by the Supreme Court of the United 

States, should be approved by this court, regardless of racial 

imbalance caused either (1) by the housing patterns of the 

community or (2) by the refusal of whites in the mixed neighbor- 

hoods of the community to attend the schools of the district. 

Defendants-appellees did not have to be clairvoyant to know 

that the HEW plan would not "work," unless a plan which worked 

2 



meant one which succeeded in driving white pupils from the public 

schools largely built and supported by their parents' tax dollars. 

When the district court, in its order of January 10, 1970, estab- 

lished a single junior high school for the district's 7th and 8th 

grade pupils, to be located in the formerly Higgins High School, 

thereby requiring the 7th and 8th grade junior high school pupils 

who formerly attended Clarksdale Junior High School, if they con- 

tinued to attend a junior high school of the district, to walk or 

travel excessive distances in order to get to and from school, at 

considerable inconvenience to themselves or their parents and at 

considerable hazard to their safety, 378 of those 381 pupils 

immediately withdrew from school. It was inevitable that the 

lunacies inherent in the plan devised by the incompetents from 

the Department of Health, Education and Welfare would bring 

catastrophe to the school district. The projected enrollments 

which the district court and this court were told would result 

from the adoption of the plan were so distorted--as everyone 

acquainted with the district knew they were--as to cast doubt upon 

the motives of their sponsors. And the results bear out that 

statement, as can be seen from the figures for the elementary 

schools clustered as called for in the HEW plan: 

HEW PLAN ACTUAL RESULTS 

School Grades Whites Blacks Whites Blacks 

Heidelberg 3-4 224 138 78 96 

Kirkpatrick 5-6 223 115 113 77 

Riverton 1-2 266 155 66 140 

«63+ 



Overall, HEW forecast these results for the seven elementary 

schools: 

HEW PLAN ACTUAL RESULTS 

Whites Blacks Whites Blacks 

All Elementary Schools 1029 1832 283 1605 

HEW predicted that three of the seven elementary schools 

would have a majority of white pupils. In actuality, but one of 

those schools has a white majority. 

Those figures, reflecting the enrollments in the seven ele- 

mentary schools as of April 1, 1976, expose the grim results of 

the plan imposed at the instance of plaintiffs-appellants: 

School Grades Whites Blacks Whites Blacks 

Heidelberg 3-4 78 96 457% 60% 
Kirkpatrick 5-6 113 77 60% 40% 
Oakhurst 5-6 14 237 6% 947% 
Riverton 1-2 66 140 32% 68% 
Washington 3-4 4 252 2% 98% 
Oliver 1-6 4 522 1% 997% 
Myrtle Hall 1-6 4 281 1% 99% 

All schools 283 1605 19% 817% 

The remainder of the district's schools have fared no better. 

In the two schools set aside to serve the district's junior high 

pupils, the results have been: 

School Grades Whites Blacks Whites Blacks 

Riverton 
Intermediate 7 50 279 15% 85% 

Clarksdale 
Junior High 8-9 17 554 3% 97% 

642 



The Clarksdale High School has a majority black enrollment, 

426 blacks and 230 whites. 

Manifestly, the figures foisted on this court by the 

Department of Health, Education & Welfare, at the urgings of 

plaintiffs-appellants, and described by this court as "apparently 

derived from reliable sources,' were dreamed up to support their 

proponents' ideological conclusions. 

In their cross-appeal, in addition to pointing out that the 

Supreme Court of the United States had never ruled that de facto 

segregation--that which occurs fortuitously because of housing 

patterns--was unconstitutional, and had never ruled that the 

Fourteenth Amendment to the Constitution requires the integration 

of the races in public schools, defendants-appellees also pointed 

out that cases such as Green v. County School Board of New Kent 

County, Va.,.391:U.8, 430, 20. L. Bd. 2d 716; Raney v. Board of 

Education, 391 U.S. 443, 20 L. Ed. 2d 727; and Monroe v. Board of 

Commissioners, 391iU.5. 450,:20' 1: Ed. 2d.733,: did not so hold 

because they were ''freedom-of-choice' cases wherein the question 

presented was whether, and what conditions, a defendant district 

could be permitted to operate its schools by a method designed to 

avoid the zoning requirements of Brown. Such question was, of 

course, vastly different from the question of whether a district 

organized and operating under an attendance area plan in accordance 

with the requirements of Brown could ignore the race of its pupils 

in creating its attendance areas or zones, or had to take the race 

of its pupils into account when creating its attendance areas or 

-65- 



zones. 

They also pointed out that Green did not call for integration 

as such; with painstaking care, its aim was repeatedly stated in 

terms of ''desegregation.'" The opinion could not have been more 

clear. The obligation on school boards, it said, is to produce 

effective plans ''achieving desegregation.' They must make progress 

"toward disestablishing state-imposed segregation.' They must 

"dismantle the state-imposed dual system.'" Lower courts should 

make certain that ''state-imposed segregation has been completely 

removed." 

In brief, according to Green, the responsibility of the 

Southern school boards is "to effectuate conversion of a state- 

imposed dual system to a unitary, nonracial system." And conver- 

sion means ''a system without a 'white' school and a 'Negro' school, 

but just schools." 

The point made by defendants-appellees about Green, Raney, 

and Monroe not being applicable to cases involving a desegregation 

plan providing for attendance areas or zones as called for by 

Brown, has been confirmed by the recent holdings of the Court of 

Appeals for the Sixth Circuit in Higgins v. Board of Education of 

City of Grand Rapids, 508 F. 2d 779 (December 6, 1974) and Bronson 

v. Board of Education of the City School District of Cincinnati, 

525 F. 2d 344 (September 24, 1975), both of which held that Deal 

v. Cincinnati Board of Education, 369 F. 2d 55, which was to the 

same effect as Bell, is still good law and was unaffected by Green, 

Raney, Monroe, for the reasons stated. 

-66~ 



Taking into consideration the uncertain state of the law as 

it existed when defendants-appellees took their cross appeals 

from the orders of the district court dated January 10, 1970 and 

May 8, 1970, and the disaster which was certain to follow the 

imposition of the HEW plan on the district, it cannot possibly be 

said, with any degree of fairness, that defendants-appellees did 

not act reasonably and responsibly in resisting the imposition of 

the HEW plan on the district. 

DEFENDANTS-APPELLEES HAVE NOT ACTED IN AN 
UNREASONABLE AND OBDURATELY OBSTINATE MANNER 

DURING THIS LITIGATION 

The question of whether defendants-appellees have acted in 

an unreasonable and obdurately obstinate manner during this liti- 

gation depends upon a determination of whether they have been 

acting in bad faith. As the Supreme Court said in Hall v. Cole, 

412-US 1, 36 1. EQ 24 702, 707 (May 21, 1973): 

"Thus, it is unquestioned that a federal 

court may award counsel fees to a successful 

party when his opponent has acted 'in bad faith, 

vexatiously, wantonly, or for oppressive reasons. 

6 J. Moore, Federal Practice #54.77 (2), p. 1709 

(2d ed 1972); see, e.g., Newman v. Piggie Park 

Enterprises, Inc., 890 US 400, 402 n 4, 19 L Ed 

2d 1263, 88 S Ct 964 (1968); Vaughan v. Atkinson, 

369 US527. 81. Ed 2d 88, 82'S Ct 997 (1962); Bell 

vy. School ‘2d. of Powhatan County, 321 F 2d 494 

BF 



(CA4 1963); Rolax v. Atlantic Coast Line R. Co. 

186 F 2d 473 (CA4 1951). In this class of cases, 

the underlying rationale of 'fee shifting' is, of 

course, punitive, and the essential element in 

triggering the award of fees is therefore the 

existence of 'bad faith' on the part of the 

unsuccessful litigant." 

From the very beginning of this litigation, defendants- 

appellees have tried to respond to the requirements of the Consti- 

tution and laws of this nation, and to meet their responsibilities 

under the decisions of the courts, in a way which should receive 

the approval of this court. They did not contest plaintiffs’ 

right to the relief prayed for in their complaint. They proceeded 

to do that which plaintiffs had petitioned them to do, in the 

manner required by Brown, i.e., by, first, abolishing their dual 

zone lines, and then by adopting a desegregation plan which called 

for compact attendance areas or zones, with reasonable, rational 

and natural boundaries, and which included the requirement that 

all pupils, without exception, attend the school in the zone 

wherein he or she lived, thereby basing their admission policy on 

residence and not on race. 

Defendants-appellees' desegregation plan was based, ad- 

mittedly, on two propositions: 

First, the Constitution does not require integration, it 

simply forbids discrimination; and 

+68 



Second, de facto segregation--that which occurs 
fortuitously 

because of housing patterns--does not ma
ke an otherwise acceptable 

desegregation plan unconstitutional. 

Ergo, if defendants-appellees are to be convicted 
of having 

acted in bad faith in formulating their d
esegregation plan, it 

must be because of their sponsorship of a
 desegregation plan based 

on those two propositions. Let us, therefore, consider whether a 

litigant could, in good faith, base his actions on thos
e proposi- 

tions. 

COULD A LITIGANT, IN GOOD FAITH, BASE HIS 

ACTIONS ON THE PROPOSITION THAT THE CONSTI
- 

TUTION DOES NOT REQUIRE INTEGRATION BUT 

SIMPLY FORBIDS DISCRIMINATION? 

Many judges, and many courts, have based their deci
sions on 

the proposition that the Constitution
 does not require integration 

but simply forbids discrimination. 

Judge Clayton, in approving defendants-appellees' desegrega- 

tion plan in this case, did so. 
| 

This court, the Court of Appeals for the Fifth C
ircuit, did 

so in Avery v. Wichita Falls Independent
 School District, 1956, 241 

F. 2d 230; Borders v. Rippy, 1957, 247 F. 2d 268; Rippy v. Borders, 

1957, 257 F. 2d 73; Cohen Vv. Public Housing Administration, 1958, 

957 F. 2d 73; City of Montgomery V. Gilmore, 1960, 277 F. 2d 364; 

Boson v. Rippy, 1960, 285 F. 2d 43: Stell v. Savannah-Chatham 

County Board of Education, 1964, 333 F. 2d 55; Evers v. Jackson, 

1964, 328 F. 2d 408; Lockett v. Board of Education
 of Muscogee 

-60= 



County, 1965,:342. .F.. 2d 225. 

Judges Gewin, Bell, Coleman and Godbold, of this court, in 

their dissents in U.S. v. Jefferson County Board of Education, 

380 F. 2d 385 (March 29, 1967), said that the Constitution of the 

United States did not require integration but simply forbids 

discrimination. 

Many District Judges in this circuit have also declared the 

same thing. 

Several Courts of Appeals, and many district courts out of 

this circuit, have handed down decisions based on that proposition. 

This court, in the very recent case of Calhoun Vv. Cook, 522 

F. 2d 717 (October 23, 1975), said: 

"The aim of the Fourteenth Amendment guarantee 

of equal protection on which this litigation is 

based is to assure that state supported educational 

opportunity is afforded without regard to race; it 

is not to achieve racial integration in public 

schools." 

And the Supreme Court of the United States, by affirming the 

holding of the three-judge New Jersey court in Spencer v. Kugler, 

326 F. Supp. 1235 (May 13, 1971), although without an opinion 

(30 L Ed 2d 723), placed its imprimatur on the following: 

"Brown never required anything more than a 

unitary school system. ... . It was held in 

Bell, supra, that segregation resulting from 

housing patterns did not require correction. 

-70- 



If the drawing of district lines is 

reasonable and not intended to foster segrega- 

tion then that action satisfied the mandate of 

Brown." 

"The above cited portions of Swann conclu- 

sively demonstrate that a federal court is 

precluded, by Title IV of the Civil Rights Act 

of 1964, 42 U.S.C. #2000c, and also by the 

unanimous opinion of the Supreme Court, from 

imposing upon school authorities the affirmative 

duty to cure racial imbalance in the situation 

of 'de facto' segregation described herein. 

"A continuing trend toward racial imbalance 

caused by housing patterns within the various 

school districts is not susceptible to federal 

judicial intervention." 

See also Milliken v. Bradley, 418 US 717, 41 L Ed 24 1069, 

1088-1089, 1092, and particularly this language from its opinion: 

"The constitutional right of the Negro 

respondents residing in Detroit is to attend a 

unitary school system in that district. Unless 

petitioners drew the district lines in a dis- 

criminatory fashion, . . . they were under no 

constitutional duty to make provision for Negro 

students to do so." 

hy & 0 



COULD A LITIGANT, IN GOOD FAITH, BASE HIS 
ACTIONS ON THE PROPOSITION THAT DE FACTO 
SEGREGATION--THAT WHICH OCCURS FORTUITOUSLY 
BECAUSE OF HOUSING PATTERNS--DOES NOT MAKE 
AN OTHERWISE ACCEPTABLE DESEGREGATION PLAN 

UNCONSTITUTIONAL? 

Prior to the formulation of defendants-appellees' desegrega- 

tion plan, the Court of Appeals for the Seventh Circuit, in Bell 

v. School City of Gary, Ind., 324 F. 2d, 209 (certiorari denied 

377 US 924, 12 L Ed 2d 216), had held that schools which were 

all-black or all-white did not violate the commands of Brown if 

their racial compositions had fortuitously resulted from housing 

patterns. 

The Tenth Circuit Court of Appeals reached the same conclu- 

sion in Downs v. Board of Education of Kansas City, 336 F. 2d 988 

{certiorari denied 330 U.S. 914,"'13' 1. Ed. 2d 800). 

The Fourth Circuit Court of Appeals reached the same conclu- 

sions in Gilliam v. School Board of the City of Hopewell, Va., 

345 F.. 2d 325. 

Deal v. Cincinnati Board of Education, 369 F. 2d 55, decided 

by the Sixth Circuit Court of Appeals on December 6, 1966, was also 

to the same effect. 

Many other courts, including district courts in this circuit, 

have also so decided. 

In Spencer v. Kugler, supra, the Supreme Court of the United 

States gave its approval to the statement that, "If the drawing of 

district lines is reasonable and not intended to foster segregation 

then that action satisfies the mandate of Brown." 

FD 



In Milliken v. Bradley, supra, the Supreme Court of the 

United States said the same thing in different words. 

In Keyes v. School District No. 1, 413 US 189, 37 L Ed 2d 

548, the Supreme Court found that the essential factor differen- 

tiating de jure segregation in school zones from de facto segrega- 

tion in those zones, is the purpose or intent to segregate. 

Keyes clearly holds that if school zone lines are fairly and 

reasonably drawn, without any intent or purpose to further segre- 

gation, the fact that student bodies in those zones are of one 

race is a matter of no consequence. 

As a result of Keyes, and the opinion in Morales v. Shannon, 

366 F. Supp. 813, and Zamora v. New Braunfels Independent School 

District, 362 F. Supp. 552, this court, in Morales v. Shammon, 

516 PF. 2d 411 (July 23, 1925) and 1.8. v. Midland Independent 

School District, 519 F. 2d 60, abandoned the position it had 

enunciated in Cisneros v. Corpus Christi Independent School Dis- 

trict, 467 FP. 2d 142, and in Jefferson I, 372.F. 24 836,  i.e., 

that there is no difference between de jure and de facto segrega- 

tion and that any neighborhood school with a student body of one 

race necessarily resulted from unconstitutional de jure segrega- 

tion, and acknowledged that a school zone with reasonable and 

rational lines, drawn with no purpose or intent to further segre- 

gation, was constitutionally permissible, even though the pupils 

attending the school in that zone were of one race. 

Other questions may possibly arise because of the cross- 

appeals taken by defendants-appellees from the orders of January 

“73 



10; 1970 and May 8,::1970, 

COULD A LITIGANT, IN GOOD FAITH, OPPOSE THE 
CONSOLIDATION OF THE DISTRICT'S HIGH SCHOOLS 
INTO ONE HIGH SCHOOL AND THE CONSOLIDATION 
OF THE DISTRICT'S JUNIOR HIGH SCHOOL INTO 

ONE JUNIOR HIGH SCHOOL? 

This question arises because defendants-appellees, in their 

cross-appeal from the orders of the district court dated January 

10, 1970 and May 8, 1970, opposed the dismantlement of their 

neighborhood high schools and neighborhood junior high schools and 

their consolidation into one high school and one junior high school. 

In the statement of facts herein, defendants-appellees have 

attempted to describe the physical characteristics of their school 

district, in the hope that this court will understand that the 

continuance of its neighborhood school policy was necessary to its 

survival as a school system serving all it was designed to serve, 

including the children of those to whom it must, of necessity, 

look to for support. 

The result of the district court's orders of January 10, 

1970, ordering a single junior high school for the district's 7th 

and 8th grade pupils, to be located in what was then the Higgins 

High School and to be established by February 1, 1970, should be 

enough to persuade any fair minded observer that such a consoli- 

dation would not "work," except as a gimmick to drive white 

pupils out of the schools of the district. 

As a result of such order of January 10, 1970, 378 of the 

district's 381 7th and 8th grade white pupils withdrew from the 

70 



schools of the district. 

Defendants-appellees recognize that "white flight," like 

community resistance to desegregation, is not one of the 

"practicalities" to be considered in formulating a workable 

desegregation plan. The law must be obeyed notwithstanding those 

considerations. But, as the court said in Bradley v. Milliken, 

| 402 F. Supp. 1096 (August 15, 1975), when the Detroit case was 

returned to it: 

"On the other hand, it is unreasonable to 

expect the Central Board to administer a large 

school system in a vacuum. It is one thing to 

consider white flight to avoid or limit desegre- 

gation; it is quite another thing to consider the 

practical problems with which a board of education 

is faced in attempting to achieve an acceptable 

racial balance without aggravating conditions that 

produce a self-defeating exodus of the middle class 

white and black. Higgins v. Board of Education of 

City of Grand Rapids, supra. 

"Not only is it constitutionally permissible to 

take these 'practicalities at hand' into account 

in forming a desegregation plan, but it would be 

irresponsible for this court not to consider such 

practicalities where the very survival of an already 

bankrupt school system is at stake. To act irre- 

«75 



sponsibly would deny all school children the right 

to quality education. 

"The Board was justified in considering the 

'phenomenon of resegregation' in devising its plan 

for desegregation. Well-intentioned middle class 

blacks and whites will prefer private schools and 

suburban schools to the prospect of remaining in 

a school district becoming incapable of delivering 

basic Sula fLonaL services. A white and middle 

class black exodus will assuredly result if, as a 

result of desegregation orders, the school district 

became chaotic and hostile to intellectual achieve- 

ment. It was these 'practicalities' that were con- 

sidered by the Board in attempting to achieve a 

degree of racial stability, and we find that it is 

constitutionally permissible to take such practical- 

ities into account. As we have previously said, the 

plaintiffs' plan itself sufficiently demonstrates 

the justification for allowing one-race schools to 

operate in Detroit. The alternative is to make each 

and every school in the district identifiably black. 

"There are measures for assuring a perception 

that schools are desegregated other than the presence 

of white students: equal facilities, integrated 

faculties and meaningful guarantees that every student 

“76= 



is welcome in any school notwithstanding race. 

"In a district where the racial percentages are 

as disparate as in this district, the existence of 

predominantly black schools is not demeaning to 

blacks. A plan that does no more than attempt to 

achieve the system-wide ratio in each and every 

school may result in transporting children merely 

to scatter a few white students here and there among 

the black students who are in the majority. To seek 

this result assumes that there is some divine grace 

in being white. The notion that the mere dispersing 

of whites here and there is educationally beneficial 

to black students is demeaning. An appropriate 

desegregation plan recognizes all the practicalities 

with which a particular school district is faced. A 

desegregation plan must be based upon constitutional 

and equitable rights of individual students and upon 

the educational goals that desegregation seeks to 

attain." 

Any plan which results in the loss of 99% of all of a dis- 

trict's white 7th and 8th grade pupils is necessarily a plan 

which does not "work." Defendants-appellees would have been 

derelict in their duties had they not opposed it, even though their 

efforts proved to be in vain. 

-77- 



It is submitted that the question must be answered in the 

affirmative. 

COULD A LITIGANT, IN GOOD FAITH, OPPOSE THE 
BREAK-UP OF NEIGHBORHOOD ELEMENTARY SCHOOLS 
AND THE FRACTURING OF THE GRADES SERVED 

THEREBY? 

This question also arises because of defendants-appellees'’ 

cross-appeal from the district court's orders of January 10, 1970 

and May 8, 1970. In their cross-appeal they opposed the break-up 

of their neighborhood elementary schools and the fracturing of 

the grades served thereby. 

There can be no doubt about the desirability of neighborhood 

schools, especially for children in the elementary grades. In 

Arvizu v. Waco Independent School District, 495 F. 2d 499 (May 11, 

1974), this court spoke of ''the catholicity of opinions as to the 

hardship occasioned by the loss of neighborhood schools." In 

Davis v. East Baton Rouge Parish School Board, 348 F. Supp. 1013 

(August 21, 1975), the court, after observing that in all of its 

hearings in connection with the operation of public school systems, 

it had never heard a single qualified educator state that the 

neighborhood school concept was not a sound educational concept, 

went on to say: 

"Indeed, the almost unanimous opinion of those 

who have testified before this Court is that if we 

are truly interested in the educational welfare of 

the children involved, the neighborhood concept, at 

«78% 



least as far as initial assignment is concerned, 

should be preserved at all cost." 

As this court observed in a footnote to Arvizu, supra, the 

most eloquent statement of the case for neighborhood sc
hools was 

made by Mr. Justice Powell in Keyes V. School District No. 1, 413 

US 189,:37.L Ed 24 548 (June 21, 1973). Particularly apropos, in 

view of Judge Keady's approval of neighborhood schools for 
ele- 

mentary school children in his orders of January 10, 1970 and 

May 8, 1970, is what Mr. Justice Powell said of neighborhood 

schools for elementary age children: 

"As a minimum, this Court should not require 

school boards to engage in the unnecessary trans- 

portation away from their neighborhoods of elemen- 

tary-age children. It is at this age level that 

neighborhood education performs its most vital role. 

It is with respect to children of tender years that 

the greatest concern exists for their physical and 

psychological health. It is also here, at the 

elementary school, that the rights of parents and 

children are most sharply implicated." 

Judge Keady's plan was designed, of course, with Ellis v. 

Board of Public Instruction, 423 F. 2d 203 (5th Cir., 1970), in 

mind. It proposed for the elementary schools of the district,
 a 

neighborhood or proximity plan under which elementary
 school 

children would attend schools nearest their home. 
It was almost 

0 Ln 



identical to the plan recently approved in In Re Carr, 377 F. 

Supp. 1123, and confirmed in Carr v. Montgomery County Board of 

Education, 511 F. 2d 1374, despite the fact that the plan in Carr 

would necessarily result in a large number of all-black schools. 

But the existence of those all-black schools in Carr was said to 

be "genuinely nondiscriminatory'" because, ''the situation (was) a 

result of residential patterns and not of the school board's 

action--either past or present.' The same reasoning should have 

led to the affirmance of Judge Keady's almost identical plan for 

the elementary schools of this district. 

An attempt was made in Carr to differentiate it from this 

case (Henry v. Clarksdale Municipal Separate School District, 433 

F. 2d 387) on the ground that Clarksdale is a small city with but 

seven elementary schools. But that was not a valid distinction 

between the plans. As the Supreme Court said in a footnote in 

Milliken v. Bradley, 41 L. Ed. 2d 1069 (July 25, 1974): 

"The dissents also seem to attach importance 

to the metropolitan character of Detroit and 

neighboring school districts. But the constitu- 

tional principles applicable in school desegrega- 

tion cases cannot vary in accordance with the size 

or population dispersal of the particular city, 

county, or school district as compared with neigh- 

boring areas." 

One of the objections which Judge Keady had to the HEW plan 

was that it required the fracturing of the grades served by the 

-30- 



district's elementary schools so that thereafter an elementary 

school child would have to attend three schools by the time he 

or she arrived at the fifth grade. The testimony on the point, 

given by qualified educators, was that such a procedure would be 

educationally unsound; a conclusion which should have been obvious 

to everyone. Hence an additional need to speak out in opposition 

to such plan. 

It is submitted that the question must be answered in the 

affirmative. 

COULD A LITIGANT, IN GOOD FAITH, CONTEND THAT DE 

FACTO SEGREGATION DOES PREVAIL IN A MISSISSIPPI 
COMMUNITY? 

This question arises because defendants-appellees have 

always contended, despite the assertions of the majority of this
 

court in Jefferson I, supra, that there is no such thing as de 

facto segregation, i.e., racial imbalance resulting fortuitously 

from housing patterns, in the communities served by the school 

districts in this circuit, that such racial imbalance in the 

schools of this district which results from the neighborhood 

school concept ordered by Brown is fortuitously caused by de facto 

segregation. 

Now that Keyes, supra, is in the books, it must be acknow- 

ledged by all that if a one race neighborhood has developed with- 

out any purpose or intent of a school board to bring about it
s 

racial character, the segregated composition of the student body 

in the school which serves that neighborhood is the result of de
 

-81% 



facto--not de jure--segregation, and is therefore not objection- 

able. As the Supreme Court of the United States observed in 

Spencer v. Kugler, supra: 

segregation resulting from housing 

patterns (does) not require correction." 

It just happens to be an incontrovertable fact that the 

housing patterns in Clarksdale, Mississippi, flow from the purely 

voluntary actions of its citizens. No action of any school board 

in the community--past or present--has influenced, in the 

remotest degree, their development. To think otherwise is to 

refuse to acknowledge that which all know to be true. 

Bivens v. Bibb County Board of Education, 331 F. Supp. 9, 

states the facts in these words: 

"Housing patterns are not vestiges of state- 

imposed school segregation. Similar housing 

patterns exist throughout the nation in areas 

where school segregation is said to be de facto 

rather than de jure. The relatively small amount 

of racial imbalance existing in the Bibb County 

Schools today is not segregation nor is it a 

'vestige' of segregation. The demography of 

other sections of this nation teaches us that 

this imbalance would be here today in Bibb County 

if there never had been state-imposed segregation. 

The School Board is by no stretch of the imagination 

responsible for housing patterns." 

-82= 



Recognition of the fact that similar housing patterns exist 

throughout the nation will require the renunciation of the view 

expressed in Jefferson I, 372 F. 2d 836, that there is no such 

thing as de facto segregation in the communities served by the 

school districts in Chis. clroais, But, with all due respect, 

that view never made sense to anyone acquainted with the residen- 

tial patterns in Southern communities. There was no residential 

segregation in those communities. There were. no laws requiring 

the people of the different races to live in different sections 

of the communities. Blacks and whites lived in a salt-and-pepper 

fashion throughout those communities. Whatever residential segre- 

gation existed was fortuitous. The pressures which existed in 

Northern communities to bring about residential segregation in 

order to achieve de facto segregation in schools simply did not 

exist in Southern communities, for the simple reason that Jim Crow 

laws took care of that objective. The true statement is that 

residential patterns in the South developed freely, without 

reference to school attendance, while residential patterns in the 

Northern communities responded to pressures to preserve de facto 

segregation in the schools. 

If it be true, as was proved to be true in this community, 

that some white pupils in a mixed neighborhood will not attend 

the school in that neighborhood, even at the loss of their right 

to attend public school, that fact does not take away the district's 

right to operate its schools on a neighborhood basis. As was said 

in Morgan v. Kerrigan, 530 F. 2d 401 (January 14, 1976): 

«83 



Appellants’ claim that white flight destroys 

the effectiveness of the school desegregation 

plan, because of 'resegregation' of the school 

system, founders on the constitutional definition 

of unlawful segregation. The Supreme Court has 

recently reemphasized that the constitutional 

right is to attend school in a unitary, non- 

discriminatory, public school system. It is not 

to attend school in a system which is comprised 

of students of a racial balance which exists in 

the general geographical area. Milliken v. 

Bradley, 418 4.8. 717, 746, 94 °S.-CE£'31¥2, 74] 

L. Ed. 2d 1069 (1974). ‘Accord Calhoun v. Cook, 

522. F. 2d “717'at 719 "(5th Cir. 1975); Mapp 'v. 

Board of Education of Chattanooga, 525 F. 2d 169, 

at 170-171: (6th Cir. 1975). - What “a layman calls 

'resegregation' is not constitutionally recognized 

segregation. . . . This racial isolation becomes 

constitutionally significant only when the district 

boundaries are drawn with segregative intent." 

It is submitted that the question must be answered in the 

affirmative. 

~S4= 



DEFENDANTS -APPELLEES' DESEGREGATION PLAN 
PROVIDED THE REMEDY REQUIRED BY EQUITY 

Most of that which has been heretofore said has been directed 

towards establishing that defendants-appellees' desegregation plan 

met the requirements of the Constitution. But it should not be 

forgotten that a school district which formerly operated under 

laws which required the separation of the races in public schools 

is not only required to open its schools to pupils of all races, 

regardless of their color or national origin, but also to provide 

a remedy which will restore the victims of such laws to the posi- 

tion they would have occupied but for such laws. 

Defendants-appellees' desegregation plan not only met all 

constitutional requirements but also provided the remedy required 

to restore the victims of such laws to the position they would have 

occupied but for such laws. 

The laws which required the separation of the races in public 

schools were enacted to carry out Section 207 of the Mississippi 

Constitution of 1890, which provided that -- 

"Separate schools shall be maintained for 

children of the white and colored races." 

In assessing what is necessary to remedy the effect of such 

laws, it should be remembered, as Judge Bell pointed out in 

Jefferson II, 380 F. 24 385, that -- 

"Segregation by law was legal until the Brown 

decision in 1950. Such segregation should hardly 

give rise to punitive treatment of those states 

-85- 



employing what was then a legal system. The 

Supreme Court has never so indicated." 

In fact, as late as 1927, the Supreme Court, in a unanimous 

opinion written by Chief Justice Taft in Gong Lum v. Rice, 275 US 

78, 72 L Ed 172, said of the Mississippi statutes on the subject: 

"The decision (to require the establishment 

of separate schools for pupils of separate races) 

is within the discretion of the state in regulat- 

ing its public schools and does not conflict with 

the 14th Amendment." 

As to the remedy required by the invalidation of such laws, 

the nature of the violation determines the scope of the remedy. 

To quote the Supreme Court of the United States: 

"As with any equity case, the nature of the 

violation determines the scope of the remedy." 

Swann v. Charlotte-Mecklenburg Board of Education, 28 L Ed 2d 554, 

567; Milliken v. Bradley, 41 L Ed 24 1069, 1087; Rizzo v. Goode, 

46 L Ed 2d 561, 573. 

In Milliken, the court, after referring to cases which ad- 

dressed the issue of constitutional wrong in terms of an estab- 

lished geographic and administrative school system populated by 

both Negro and white children, went on to say -- 

"In such a context, terms such as 'unitary' 

and 'dual' systems, and 'racially indentifiable 

schools,' have meaning, and the necessary federal 

-86= 



authority to remedy the constitutional wrong is 

firmly established. But the remedy is necessarily 

designed, as all remedies are, to restore the 

victims of discriminatory conduct to the position 

they would have occupied in the absence of such 

conduct." (Emphasis supplied) 

In view of those decisions, it is submitted that the remedy 

for the prior enforcement of laws which required separate schools 

for the children of the separate races would be for a school dis- 

trict to open all of its schools to pupils of all races, regard- 

less of their color or national origin, and then, in obedience to 

Brown, provide compact attendance areas or zones, fairly arrived 

at and constructed without regard to race and not gerrymandered 

for racial purpose, and require all pupils living in each 

attendance area or zone, without regard to his or her race or 

color, to attend the school in that attendance area or zone. Such 

a remedy would, in the words of Milliken v. Bradley, 41 L Ed 2d 

1069, "restore the victims of discriminatory conduct to the posi- 

tion they would Have occupied in the absence of such conduct." 

And it would not impair the liberty and privacy of pupils and 

parents guilty of no wrongdoing, by requiring such pupils, white 

or black, to leave their neighborhoods in order to attend school. 

Defendants-appellees' desegregation plan provided such 

remedy. 

-27- 



THE TRIAL COURT'S FINDING OF FACT THAT THE 
ACTIONS OF DEFENDANTS-APPELLEES HEREIN WERE 
NOT CARRIED OUT IN AN UNREASONABLE AND OB- 
DURATELY OBSTINATE MANNER STANDS UNLESS 

CLEARLY ERRONEOUS, WHICH IT IS NOT 

This action was tried upon the facts without a jury. The 

trial court, in obedience to the mandate of Rule 52 (2) of the 

Federal Rules of Civil Procedure, found the facts specially and 

stated separately its conclusions of law. Consequently its find- 

ing of fact that the actions of defendants-appellees herein were 

not carried out in an unreasonable and obdurately obstinate manner 

should not be set aside unless clearly erroneous. 

The district court found as a fact: 

"In answer to this aspect of the Fifth Circuit 

Court's directive, we find on the evidence, as 

well as on our records and files, that the school 

board, in the conduct of the litigation, did not act 

in an unreasonable and obdurately obstinate manner 

prior to July 1, 1972, and that it should not, for 

that reason, be required to pay for pre-July 1, 

1972, legal expenses incurred by plaintiffs." 

Rule 52 (a) Federal Rules of Civil Procedure says: 

MH. . . findings of fact shall not be set 

aside unless clearly erroneous, and due regard 

shall be given to the opportunity of the trial 

court to judge the credibility of the witnesses 

-88- 



The question of whether defendants-appellees acted, in the 

conduct of this litigation, in an unreasonable and obdurately 

obstinate manner, seems to be the type of question for which 

Rule 52(a) is peculiarly applicable, for it involves a deter- 

mination of the credibility of actions, an inquiry into motives, 

the drawing of inferences from conduct, and those are the kinds 

of assessments the trial judge is Best situated to make. 

The trial court's finding of fact was clearly supported by 

the testimony in this case, and by the record made in the district 

court. Hence it should be confirmed by this court. But lest 

there be some question on that score, attention is called to the 

often quoted language from United States v. United States Gypsum 

Company, 333 U.S. 364, 394-395, 68 8. Ct. 525, 92 L.. Bd. 746, tO 

the effect that a court of appeal will not overturn a trial court's 

finding of fact unless it has a "definite and firm conviction that 

a mistake has been committed." Such language would also necessari- 

ly require the affirmance of the trial court's finding of fact 

that defendants-appellees have not acted, in the conduct of this 

litigation, in an unreasonable and obdurately obstinate manner. 

«30. 



CONCLUSION 

In conclusion, defendants-appellees quote the conclusion 

drawn by the district court from the evidence, as well as from 

the court's records and files, -- 

"That the school board, in the conduct of 

the litigation, did not act in an unreasonable 

and obdurately obstinate manner prior to July 

1,'1972, and that it should not, for that 

reason, be required to pay for pre-July 1, 1972 

legal expenses incurred by plaintiffs." 

Respectfully submitted, 

SEMMES LUCKETT 3 
121 Yazoo Avenue 

Clarksdale, Mississippi 38614 

Attorneys for Defendants-Appellees 

“9 0< 



CERTIFICATE OF SERVICE 

A copy of the foregoing Brief for Defendants-Appellees was 

mailed, postage prepaid, to Hon. Melvyn R. Leventhal, Suite 2030, 

10 Columbus Circle, New York, New York 10019, on June 14 , 1976. 

rea <e tts 
Semmes Luckett ~~ 

Attorney for Defendants-Appellees 

«G] 



SCOFIELD PRINTING CO., INC. 

Burt Scofield 

P.O. BOX 24142 

NEW ORLEANS, LA. 70184 

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