Alabama v. United States and Davis Brief for Appellee Bridie Mae Davis

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 30287

STATE OF ALABAMA, et al.,
Appellants,

v.
UNITED STATES OF AMERICA, BIRDIE MAE 
DAVIS, et al.,

Appellees.

On Appeal From The United States District Court 
For The Southern District Of Alabama

BRIEF FOR APPELLEES BIRDIE MAE DAVIS, ET AL.

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
NORMAN CHACHKIN 
LOWELL JOHNSTON

10 Columbus Circle 
Suite 2030
New York, New York 10019

VERNON CRAWFORD 
A. J. COOPER, JR.

1407 Davis Avenue 
Mobile, Alabama 36603

Attorneys for Appellees
Ollie Mae Davis, et al.



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii; 

QUESTION PRESENTED 1 

STATEMENT OF THE CASE 2

ARGUMENT
The District Court Was Clearly Correct 
In Dismissing The Action For Declaratory 
Judgment On The Ground That Act No. 1 
Was Unconstitutional in Violation Of The 
Supremacy Clause Of The Constitution Of The United States. 6

CONCLUSION 10

ii



TABLE OF AUTHORITIES

CASES page

Andrews v. City of Monroe,
425 F.2d 1017 (5th Cir. 1970) 3,7

Carter v. West Feliciana School Board,
396 U.S. 226 (1970) 3

Davis v. Board of School Commissioners 
of Mobile County, 414 F.2d 609 (5th Cir.
1969) , affirmed in part and remanded
in part, 39 U.S.L.W. 44447 (April 20, 1971) 2,3,9

Ellis v. Board of Public Instruction of
Orange County, 423 F.2d 203 (5th Cir. 1970) 3,7

Green v. County School Board of Kent County,
391 U.S. 430 (1968) 3,7,8,9

Griffin v. School Board, 377 U.S. 218 (1964) 8

Jackson v. Choate, 404 F.2d 910
(5th Cir. 1968) 4

Lee v. Macon County Board of Education,
267 F. Supp. 458 (M.D. Ala. 1967),
Aff'd Sub Nom Wallace v. United States,
389 U.S. 215 2,3,4

North Carolina State Board of Education
v. Swann, ___U.S. ____ (No. 498, April 20,1971) 6 , 9

Singleton v. Jackson Municipal Separate 
School District, 419 F.2d 1211 (5th Cir.1970) 3 , 7

Swann v. Charlotte-Mecklenburg Board of
Education, ___ U.S. ___, 39 U.S.L.W.4437 (April 20, 1971) 9

STATUTES, RULES AND REGULATIONS
Act No. 1, Special Session of the AlabamaLegislature 1970 1 , 4

iii



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 30287

STATE OF ALABAMA, et al.,
Appellants,

v.
UNITED STATES OF AMERICA, BIRDIE MAE DAVIS, et al..

Appellees.

On Appeal From The United States District Court 
For The Southern District Of Alabama

BRIEF FOR APPELLEES BIRDIE MAE DAVIS, ET AL.

Question Presented

Whether the district court was correct in dismissing 
the action for declaratory judgment on the ground that 
Act No. 1, Special Session of the Alabama Legislature 1970, 
(hereinafter referred to as Act No. 1) was unconstitutional 
in violation of the supremacy clause of the Constitution of 
the United States, in that it attempted to nullify decisions 
of the Supreme Court and lower federal courts requiring 
school districts to act affirmatively to disestablish segre­
gated school systems by whatever means necessary, by limiting



boards to so-called "freedom-of-choice" plans?

Statement of the Case

This is an appeal by the State of Alabama from an 
order by the United States District Court for the 
Southern District of Alabama dismissing a complaint 
filed by the State that sought a declaratory judgment 
that a state statute was constitutional. The defendants 
in that action, appellees here, are the United States 
Department of Justice and Health, Education and Welfare 
responsible for enforcing statutes relating to school 
desegregation, and the individual plaintiffs in Davis 
v. Board of School Commissioners of Mobile County, 414 
F .2d 609 (5th Cir. 1969) affirmed in part and reversed and 
remanded in part, 39 U.S.L.W. 4447 (April 20, 1971). It 
is on behalf of these individuals that this brief is filed.

This case arises in the context of continuing efforts 
to disestablish segregated schools in Mobile County and 
throughout the State of Alabama. The history of these 
efforts need not be repeated here, and appellees refer 
the Court to the case of Davis v. Board of School Commis­
sioners of Mobile County, supra, and to the decision of 
the Middle District of Alabama in Lee v. Macon County 
Board of Education, 267 F. Supp. 458 (M.D. Ala. 1967), 
aff'd, sub nom Wallace v. United States, 389 U.S. 215. 
Suffice it to say that early last year the State of Alabama,

2



acting through its legislature, embarked on yet one more
1/

attempt to interfere with the desegregation of its 
public schools.

The device this time was Act No. 1, Special Session
of the Alabama Legislature 1970, approved on March 4,
1970. The statute, as the court below recognized (see
Appendix, pp. 60-62) was an attempt to limit school

2/systems to so-called "freedom-of-choice" plans in the 
face of decisions of the Supreme Court (Green v. County 
School Board, 391 U.S. 430) and of this Court (Singleton 
v. Jackson Municipal Separate School District. 419 F.2d 
1211 (5th Cir. 1970); Andrews v. City of Monroe. 425 F.2d 
1017 (5th Cir. 1970); Ellis v. Board of Public Instruction 
of Orange County, 423 F.2d 203 (5th Cir. 1970) and of 
orders of various federal district courts in Alabama 
entered in conformance to Green and decisions of this 
Court.

Following the passage of Act No. 1, the Mobile County 
School Board, relying on it, announced that it would not 
obey the order of the Southern District of Alabama entered 
following the remand of the Davis case after the Supreme 
Court's decision in Carter v. West Feliciana School Board. 
396 U.S. 226, 290 (1970). The District Court quite properly 
required the school board to conform to its order and held

1/ See, Lee v. Macon County, supra, for accounts of 
earlier and equally abortive attempts.
2/ Thus, the statute purports to prohibit not only pupil 
assignment to achieve desegregation, but also the establish­
ment, reorganization, or maintenance, of any school district, 
school zone, or attendance unit for the same purpose.

- 3 -



that Act No. 1 was no more than an unlawful attempt 
of the State legislature to annul the judgments of 
courts of the United States (see, Appendix, pp. 54-55, 
60-62). Similarly, the three-judge federal court sitting 
in Lee v. Macon County Board of Education (M.D. Ala.
Civ. No. 604-E), refused on three occasions to modify 
school desegregation orders to allow school boards to 
continue to operate freedom-of-choice plans in purported 
reliance on Act No. 1 (see, Appendix, p. 62, n. 16).

At this point the State of Alabama through its 
Attorney General, commenced the present action. In its 
complaint, the state sought a declaratory judgment that 
Act No. 1 was constitutional, modification of pending 
orders in school desegregation cases, and an injunction 
against federal officers to require them to act in 
accordance with the Act's provisions. No attack on 
the constitutionality of any federal statute was made, 
nor was any injunction sought against the enforcement 
of any such statute.

The district judge requested the chief judge of the 
Fifth Circuit to appoint a three-judge court which would 
determine in the first instance whether such a court was 
required to hear the case. See Jackson v. Choate, 404 F.2d 
910 (5th Cir. 1968). The three-judge court convened, 
heard the matter, and unanimously concluded that a three- 
judge court was not required under any applicable statute. 
Thus, it remanded the case to the original single district

4



judge, who adopted the decision of the three-judge panel 
that Act No. 1 was not constitutional and therefore 
dismissed the complaint for declaratory relief (Appendix, 
pp. 63-64).

However, out of an "abundance of caution" and in 
order to avoid any delays in resolving the important 
issues involved, the other two judges concurred in the 
single judge's order to assure that an appeal could be 
perfected to whatever court was appropriate (Ibid.) 
Simultaneous notices of appeal were filed to this Court 
and to the Supreme Court of the United States. On motion 
of appellants, this Court deferred action on the appeal 
to it pending disposition of the appeal to the Supreme 
Court. The Supreme Court dismissed the appeal for lack 
of jurisdiction (400 U.S. 954); hence the appellants 
prosecuted the appeal to this Court.

On the merits the court below held that Act No. 1 
was clearly an attempt to nullify decisions of the 
Supreme Court and lower federal courts requiring school 
districts to act affirmatively to disestablish segregated 
school systems by whatever means were necessary, by limit­
ing boards to so-called "freedom-of-choice" plans. Such 

attempt to interpose the state and block orders of 
federal courts violated the Supremacy Clause of the Consti- 
tution of the United States (Article VI). Therefore, the 
declaration requested by the state was denied and the 
action dismissed.

5



ARGUMENT

The District Court Was Clearly Correct 
In Dismissing The Action For Declaratory Judgment On The Ground That Act No. 1 
Was Unconstitutional In Violation Of The 
Supremacy Clause Of The Constitution Of 
The United States.

Defendants-appellees urge this Court to summarily 
affirm the decision below on the ground that it is so 
clearly correct that oral argument and plenary hearing 
of the appeal is unnecessary, particularly in light of 
the Supreme Court's decision in North Carolina State
Board of Education v. Swann, __ U.S. __ (No. 498, April
20, 1971) . The opinion by District Judge Gewin, Thomas 
and Pittman fully support the judgment, and nothing in 
the record raises any substantial issue as to the 
correctness of that decision.

The district court opinion describes the statute 
in these words:

The statute [Section 2] purports to make 
school administrators neutral on the question of desegregation and limits their 
tools for the accomplishment of this con­
stitutional obligation to "freedom-of-choice" 
plans. It is clear, indeed, it is insisted 
by the State of Alabama, that such a limita­
tion is in direct conflict with numerous 
desegregation plans approved and ordered by 
federal courts throughout Alabama (Appendix,
p. 60).
The settled state of the law convinces us 
that there is no substantial federal question 
presented in this case. Where Section 2 of 
the subject Act conflicts with an order of the 
federal court drawing its authority from the 
Fourteenth Amendment, the Act is unconstitu­
tional and must fail. The supremacy clause of

6



our compact of government will admit no 
other result. Indeed this has already 
been the result in cases where this and 
similar legislation has been asserted as a bar to constitutional obligations.
(Appendix, p. 62.)

The court below concluded that the action should be 
dismissed on two grounds urged by appellees. First, the 
court held that the settled state of the law in the area 
of school desegregation clearly established that no 
substantial federal question was involved. Secondly, 
the court held that Act No. 1 was clearly an attempt to 
nullify decisions of the Supreme Court and lower federal 
courts requiring school districts to act affirmatively to 
disestablish segregated school systems by whatever means 
necessary, by limiting boards to so-called "freedom-of- 
choice" plans in the face of decisions of the Supreme 
Court (Green v. County School Board, 391 U.S. 430) and 
this Court (Singleton v. Jackson Municipal Separate 
School District, 419 F.2d 1211 (5th Cir. 1970); Andrews 
v. City of Monroe, 425 F.2d 1017 (5th Cir. 1970); Ellis 
v. Board of Public Instruction of Orange County, 423 F.2d 
203 (5th Cir. 1970)) and of orders of various district 
courts entered in conformance to Green and decisions of 
this Court. The court pointed out that such an attempt 
to interpose the state and block orders of federal courts 
violated the Supremacy Clause of the Constitution of the 
United States (Article VI). The court held that an 
unwaivering line of Supreme Court cases made it clear that 
more than administrative neutrality is constitutionally

7



required, and that "under explicit holdings of the 
Supreme Court the obligation of every school district 
is to terminate dual school systems at once and to 
operate now and hereafter only unitary school systems. 
Griffin v. School Board, 377 U.S. 218, 234 (1964);
Green v. County School Board of Kent County, 391 U.S.
430, 438-439, 442 (1968)." The court followed the 
Green decision and held that "freedom-of-choice" plans 
are not the optimum tool for accomplishment of this 
obligation.

The court below did not rule that state school 
systems can never constitutionally operate "freedom-of- 
choice" plans. But the court held, citing Green, "if 
there are reasonably available other ways, such for 
illustration as zoning, promising speedier and more 
effective conversion to a unitary, non-racial school 
system, 'freedom-of-choice' must be held unacceptable."
In summary, the court took notice of the fact that Act 
No. 1 precluded state school boards from ever considering 
any school desegregation theories other than a "freedom-of- 
choice" plan.

8



Contrary to appellants' contention, boards of 
education are required to have unitary school systems. 
Green, supra, 391 U.S. at 438-439, 442; Swann v.
Charlotte-Mecklenburg Board of Education, ___ U.S. ___,
39 U.S.L. W. 4437 (April 20, 1971). In contrast to 
the constitutional requirements established by Green 
and Swann, supra, and the relief granted by the district 
court in Davis v. Board of School Commissioners of Mobile 
County, affirmed in part and reversed and remanded in
part, ___ U.S. ___, 39 U.S.L.W. (April 20, 1971), the
State of Alabama has enacted a law which threatens to 
void the state's duty to convert to a unitary system.
The Supreme Court made it especially clear in North 
Carolina State Board of Education v. Swann, supra, that 
state-imposed limitations on a school authority's dis­
cretion which operates to inhibit or obstruct the opera­
tion of a unitary school system or impede the disestablish­
ing of a dual system is unconstitutional. The North 
Carolina State Board of Education case involved an attempt 
by the State of North Carolina to prohibit the operation 
of a unitary school system within the state and to obstruct 
the remedies granted by federal district courts in North 
Carolina in school desegregation cases by enacting an anti­
busing statute. The Supreme Court held the North Carolina 
Anti-Busing Law invalid as preventing implementation of 
desegregation plans required by the Fourteenth Amendment.

9



The Court stated that state legislation which flatly 
forbids assignment of any student on account of race or 
for the purpose of creating a racial balance or ratio 
in schools and which prohibits busing for such purposes 
is unconstitutional. Inasmuch as the Alabama statute 
forbids assignment of any student on account of race 
or for the purpose of creating a racial balance or 
ratio in schools, it too must be held invalid.

CONCLUSION

For the foregoing reasons, the decision of the 
court below should be affirmed.

Respectfully submitted,

CHARLES STEPHEN RALSTON 
NORMAN CHACHKIN 
LCWELL JOHNSTON

10 Columbus Circle 
Suite 2030
New York, New York 10019

VERNON CRAWFORD 
A. J. COOPER, JR.

1407 Davis Avenue 
Mobile, Alabama 36603

Attorneys for Appellees 
Ollie Mae Davis, et al.

10



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the 
foregoing Brief for Appellees upon the following attorneys 
for appellants and appellees, placing same in the United 
States mail, air mail, postage prepaid on t h i s d a y  of 
May, 1971.

Hon. William J. Baxley 
Attorney General of Alabama 
Hon. Gordon Madison 
Assistant Attorney General of Alabama
Office of Attorney General 
250 Administrative Building 
64 North Union Street 
Montgomery, Alabama 36104
Hon. Joseph D. Phelps 
Special Assistant Attorney General of Alabama 
36 South Perry Street 
Montgomery, Alabama 36104
Hon. Charles S. White-Spunner 
United States Attorney 311 Federal Building 
Mobile, Alabama 36602
Hon. Jerris Leonard 
Assistant Attorney General 
U. S. Department of Justice 
Washington, D. C. 20530
Hon. Sara J. Berry 
Attorney
U. S. Department of Justice Washington, D. C. 20530

•V

Attorney for

o
Appellees