Colquitt County Board of Education v. Harrington Brief in Opposition to Certiorari

    Isr th e

(Emtrt a t %  M nlitb B ta tm
O ctober T e rm , 1972 

No. 72-206

C olqu itt  C o u nty  B oard op E ducation , et al.,

Petitioners,
— vs.—

W il m a  J oyce H arrin gton , et al., and E. E. R eid, Jr., et al.

P E T IT IO N  FOR W R IT  OF CERTIORARI TO T H E  

U N IT E D  STATES COURT OF APPE A LS FOR T H E  F IF T H  C IR C U IT

BRIEF IN OPPOSITION TO CERTIORARI FOR 
RESPONDENTS HARRINGTON, ET AL.

C. B. K ing  
H erbert E. P h ipps  

P. 0. Box 1024 
Albany, Georgia 31702

J ack  G reenberg 
J am es M. N abrit , III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents 
Harrington, et al.



I n  th e

S m p n n w  Gliutrf rtf %  luifrft ^tatrn
O ctober T e r m , 1972 

No. 72-206

C olquitt  C ounty  B oard of E du cation , et al.,

Petitioners,
—vs.—

W il m a  J oyce H arrington , et al., and E. E. R e i d , Jr., et al.

P E T IT IO N  FOR W R IT  OF CERTIORARI TO T H E  

U N IT E D  STATES COURT OF A P PE A L S FOR T H E  F IF T H  C IR C U IT

BRIEF IN OPPOSITION TO CERTIORARI FOR 
RESPONDENTS HARRINGTON, ET AL.

Opinions Below

The opinions of the Court of Appeals relating to the 
issues raised in the Petition are reported at 460 F.2d 193 
(5th Cir. 1972) and 450 F.2d 1113 (5th Cir. 1971). The 
relevant district court decisions of February 28, 1972 and 
August 9, 1971 are unreported and appear in the Appendix 
to the Petition at pp. 9a-15a and 21a-23a, respectively.

Prior reported opinions in this case are found at 449 
F.2d 161 (5th Cir. 1971); 446 F.2d 1011 (5th Cir. 1971).



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1254(1).

Question Presented

Whether the Court of Appeals erred in refusing to ap­
prove a school board’s elementary grade desegregation 
plan for its city-county school system, which rezoned, 
paired and restructured city schools while leaving county 
schools with disproportionate racial compositions, and in 
ordering implementation of a feasible alternative plan 
presented to the district court which involves both city 
and county schools.

Statement

This suit was commenced by Negro parents and school- 
children on February 16, 1965 to desegregate the public 
schools of Colquitt County, Georgia.1 The instant proceed­
ings arise from a Motion for Further Relief filed by plain­
tiffs seeking further desegregation after a free choice 
decree (modeled upon United States v. Jefferson County 
Bd. of Educ., 372 F.2d 836 (1966), aff’d en banc, 380 F.2d 
385 (5th Cir.), cert, denied, sub nom. Caddo Parish School 
Bd. v. United States, 389 U.S. 840 (1967)) proved in­
effective.

A  pending appeal from the decree ultimately entered by 
the district court upon the Motion for Further Relief was

1 Suit was originally brought against the Colquitt County Board 
of Education and the Board of School Commissioners of the City 
of Moultrie, which jointly administered the schools in Colquitt 
County. The functions of the two bodies were consolidated in the 
Colquitt County Board during the course of the litigation.



3

held in abeyance until this Court’s decisions in Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971), 
and companion cases, were rendered. On June 29, 1971, 
the Court of Appeals remanded the matter to the district 
court with directions to “ implement a plan for the 1971-72 
school term which . . . plan shall comply fully with the 
principles establishes in Swann . . . . ” 446 F.2d at 1012.3

On remand the school board submitted a plan which 
proposed to cluster five of the system’s elementary schools, 
to which specific reference had been made by the Court of 
Appeals, and restructure the grades so that the formerly 
black Gray Elementary School would serve grades 5-7 and 
the students who formerly attended it would be distributed 
among the other schools. A  group of white parents inter­
vened and proposed an alternative plan which would also 
involve other elementary schools in the system in the 
desegregation process. Without a hearing, the district 
court approved the school board’s plan on the ground that 
it had no authority to require any desegregation beyond 
that involving the schools specifically mentioned in the 
prior Court of Appeals opinion.

The intervenors appealed and on October 28, 1971 the 
Fifth Circuit vacated and remanded, 450 F.2d 1113, clarify­
ing its earlier opinion and directing the district court to 
hold an evidentiary hearing on the intervenors’ proposal 
and any objections thereto. Following such a hearing, the 
district court again approved the board’s plan. The inter­
venors again appealed and the Fifth Circuit vacated, 
noting that the board’s plan would leave five elementary 
schools in the county over 90% white, or virtually in the 2

2 The Court of Appeals also specifically directed that the plan 
“achieve a greater degree of desegregation” at five named ele­
mentary schools, four of which are located within Moultrie. See 
discussion in text inf ra.



4

same status as they were prior to any desegregation at all 
having taken place.3 On the other hand, found the Court 
of Appeals, the interveners’ plan would affect all schools, 
“achieve the greatest possible degree of actual desegrega­
tion,” citing Davis v. Board of School Comm’rs of Mobile, 
402 U.S. 33 (1971), and eliminate predominantly one-race 
schools throughout the system. The Court again directed 
hearings for any modifications which might be required 
to implement the intervenors’ plan, and “caution[ed] 
against placing the burden of disestablishment of the dual 
school system in Colquitt County predominantly upon the 
black students. See, e.g., Lee v. Macon County Board of 
Education, 5 Cir., 1971, 448 F.2d 746.” 4

Reasons Why the Writ Should Be Denied
Petitioners suggest (pp. 9-10) that the Fourteenth 

Amendment guarantee of equal educational opportunity 
free from imposed segregation benefits only black students. 
We agree that most desegregation cases since Brown have 
focused upon the treatment of black students but we think 
that fact furnished little support for the Petitioners’ sub 
silentio argument that the intervenors below had no stand­
ing to seek complete dissolution of the dual school system

3 Two other formerly black schools located in the county had 
previously been closed.

4 On remand the district court approved (without a hearing) a 
school board modification of the intervenors’ proposal, resulting in 
the placing of grades six and seven at the Grays Elementary 
School and the transportation of students in grades one through 
six residing in its former zone (vitrually all of them black) to nine 
other elementary schools. All younger black children are thus 
bearing the full transportation burden of the plan, and no young 
white students. Plaintiffs (respondents Harrington, et al.) have 
therefore filed, subsequent to the remand proceedings, a motion 
for further relief seeking modification of the plan to more equitably 
distribute the burden of disestablishment, in accordance with the 
directions of the Court of Appeals.



5

in Colquitt County. Indeed, we note that the Court of 
Appeals for the Fourth Circuit reached a result similar 
to that below in Whitley v. Wilson City Bd. of Educ., 427 
F.2d 179 (4th Cir. 1970).

The modifications to the Board’s plan proposed by the 
intervenors and directed by the Court of Appeals are 
identical in nature to the noncontiguous zone created by the 
district court in Charlotte for Independence High School, 
to insure that it would not remain wholly disproportionate 
and attract students seeking a haven from desegregation. 
See 306 F. Supp. 265, 269 (E.D.N.C. 1969), a fd  on this 
issue, 431 F.2d 138, 145-46, rev’d on other grounds, 402 
U.S. 1 (1971). The ruling below is in no way inconsistent 
with Swann, and the petition raises no issues not already 
settled by this Court.

CONCLUSION

For the foregoing reasons, respondents Harrington, 
et al. respectfully pray that the writ be denied.

Respectfully submitted,

C. B. K ing  
H erbert E. P h ipps  

P. 0. Box 1024 
Albany, Georgia 31702

J ack  Greenberg 
J am es  M. N abrit , III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents 
Harrington, et al.



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