Crum v. State Training School for Girls Brief for Appellants

    I n  t h e

H & m tib  (Enurt 0! Appeal#
F or t h e  F if t h  C ir c u it

No. 27058

T e r r i M a r ie  C r u m , et al.,
Appellants,

S t a te  T r a in in g  S c h o o l  fo r  G ir l s , et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

D e m e t r iu s  C. N e w t o n  
408 North 17th Street 
Birmingham, Alabama 35203

J a c k  Gr e e n b e r g  
M ic h a e l  M e l t s n e r  
F r a n k l in  E. W h it e  

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

Mae
Preliminary Statement. . . . . . . . . . . . . . . .  1

Statement Of The Case
1. The Pleadings . . . . . . . . . . . . . . .  2
2. The Evidence . . . . . . . . . . . . . . .  4
3. The Initial Decision of the District Court . 7
4. Appellees' Desegregation Plans . . . . . . .  8
5. The Final Order of the District Court. . . .  10

Specifications of Error. . . . . . . . . . . . . . .  10
Argument

I. The Court Erred In Dismissing The 
Honorable G. Ross Bell And The
Juvenile And Domestic Relations H
Court Of Jefferson County, Alabama . . . .

II. The Court Erred In Failing To Require 
The Alabama Industrial School For
Negro Children To Submit A Desegregation 14 
Plan Simultaneously With The Other 
Defendant Schools. . . . . . . . . . . . .

III. The Court Erred In Approving The 
Desegregation Plans Of The Alabama 
Boys Industrial School And The 
State Training School for Girls,
Which Plans Fail Adequately To
Insure That The State's Unconstitutional 
Policy Of Maintaining Racially Segregated 
Facilities, Student Bodies, And Faculties 
Will Entirely And Effectively Be 
Terminated . . . . . . . . . . . . . . . .

Conclusion 25
Certificate of Service 26



Adams v. Matthews, __ _F. 2d
No.26501 (August 20, 1968)
Archie v. Alabama Institute for the Deaf 
and Blind, 395 F. 2d 765, 767 (1968)
Board of Managers v. George 377 F.2d 7 22
228 (8th Cir. 1967)

TABLE OF CASES

Boston v. Rippy 285F. 2d 43 (5th Cir.1960) 22

Brown v. Board of Education, 347 U.S. 14
483 (1954)

PAGE

22
16

Bush v. Leach, 22F. 2d 296 (2nd Cir.1927)
Caddo Parish School Board v. United States, 
389 U.S. 840 (1967)

13
22

Edward v. Sard, 250 F. Supp. 977, 979 (1966)
Fields v. Mutual Ben. Life Ins. Co., 93F. 2d 
559 (4th Cir. 1938)
George v. Board of Managers, 377F. 2d 228 
(8th Cir.1967), cert, denied Oct. 9, 1967 L. Ed)
Goss v. Board of Education, 373 U.S. 683 (1963)
Graves v. Walton County Board of Education,
___F. 2d No.26452 (Sept. 28, 1968)
Green v . County School. Board of New Kent 
County, Virginia, 391 U.S. 430, 442.
Griffin v. County School Board of Prince 
Edward County, 377 U.S. 218 (1964)
Hewitt v. Charles R. McCormick Lumber Co.,
22F. 2d 925 (2nd Cir.1927)
Houston Independent School District v. Ross,
282 F .2d 95 (5th Cir.i960)

21
14

22

17

16,22

22

14

22

Johnson v. Virginia 373 U.S. 61, 10 L. Ed. 
2d 199(1963)
Shultz v. Manufacturers Trading Trust Co., 
103 F. 2d 771 (2nd Cir. 1939) 13



State Board of Public Welfare v. Myers 
224 Md. 167A. 2d 764

Singleton v. Board of Commissioners,
356 F. 2d 771, 772 (1966)
Street and Smith Publications, Inc. 
v. Spikes 107F.2d 755 (5th Cir.1939)
United States v. Jefferson County Board 
of Education, 372F. 2d 836
Washington v. Lee, 263F. Supp. 327
(MD Ala.1966) , af f ' d   U.S.___

88 S.Ct. 457 (1968)
Watson v. Memphis, 373 U.S. 526

STATUTES INVOLVED

Code of Alabama, 1940, Title 52
Recompiled 1958

Section 570 
Section 590 
Section 613 (1)



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE 
FIFTH CIRCUIT 

NO. 27058

TERRI MARIE CRUM , et al.,
Appellants

-  v  -

STATE TRAINING SCHOOL FOR GIRLS et al.,
Appellees.

BRIEF FOR APPELLANTS

Preliminary Statement
This is an appeal from orders of the United 

States District Court for the Northern District of Alabama 
(Hon. Clarence W. Allgood) entered August 2, 1968, and 
October 4, 1968. The August 2, 1968 order granted the 
motion to dismiss as to defendants G. Ross Bell and the 
Juvenile and Domestic Relations Court of Jefferson County, 
and failed to require desegregation of the Alabama Industrial



School for Negro Children for another year. The order of October
4, 1968 approved plans for desegregation of the Alabama Boys
Industrial School and the State Training School for Girls, which

fails
appellants' contend/to insure that the State's unconstitutional 
policy of maintaining racially segregated facilities, student

•i-bodies and faculties will entirely and effectively be terminated.

Statement of the Case
1. The Pleadings
Appellants filed May 31,1967 a class action seeking to

_2_yenjoin the maintenance pursuant to state law, of separate
facilities for the races at three schools operated by the
State of Alabama for delinquent children - - The Alabama Boys
Industrial School, the State Training School for Girls, and The
Alabama Industrial School for Negro Children. The complaint
also alleged that plaintiffs at the Alabama Institute for Negro
Children are injured by " inferior and unequal facilities, treatment
and training provided them by the school to which they are

_i_/
assigned. " (A. 5)

1 / Appellants filed notice of appeal, October 22, 1968, and a
a timely amended notice was filed October 23, 1968 (A.51)

2 / The Alabama Statutes creating and governing the operations
of the three Institutes are at Code of Alabama, Tit. 52 
§ 570-613. Section 570 provides for the establishment of 
" a correctional and educational institution . . . for
delinquent white girls . . . " ; Section 590 provides that 
the Alabama Boys Industrial School " Shall receive, care and 
provide for the welfare of white boys . . . " ; Section 613 (1) 
establishes the Alabama Industrial School for Negro Children.

3../ The pre-fix " A " refers to pages of the Appendix to
Appellants' brief.

2



The Institutions, their Superintendents and Boards of

Trustees, the Juvenile and Domestic Relations Court of
4a /

Jefferson County and Judge G. Ross Bell were named defendants.
On July 10, 1967 Paul J. Hooton, moved to dismiss himself

and other members of the Board of Trustees of the Alabama Boys
Industrial School. On July 17, 1967 the Juvenile and Domestic
Relations Court of Jefferson County and the Hon. G. Ross Bell
moved to be dismissed as defendants. The District Court August
23, 1967 entered an order taking these matters under advisement
pending the decision of the Supreme Court in Washington v. Lee,

4b_/
263 F. Supp. 327 ( M.D. Ala. 1966) (A. 29) Appellants moved
for summary judgement May 14, 1968, immediately after the
United States Supreme Court __ U.S. __ 88 S. ct.457, (1967)
affirmed the District Court decree in Washington v. Lee 
declaring segregation of the races in prisons and jails 
unconstitutional.

A hearing was held before the Hon. Clarence W. Allgood 
July 26, 1968.

4a / Judge Bell has authority under Alabama law to commit 
delinquent children to state training schools.

-.4b/ Washington v . Lee involved the desegregation of prisons
and jails in Alabama.

3



The Evidence
Testimonial evidence given by the Superintendents of the 

three defendant Schools, disclosed the following:
Children between the ages of 12 and 18 are committed to 

the three defendant institutions by the juvenile courts of 
the state of Alabama after a finding by the judge of the Juvenile 
jurisdiction that such children are delinquent. (A - TR. 3,39,66). 
White boys from any of Alabama's 67 counties are sent to the 
Alabama Boys Industrial School (A - TR 35); white girls are 
sent to State Training School (A - TR 16); Negro boys and girls 
are sent to the Alabama Industrial School for Negro Children 
(A - TR 63)o At the time of the hearing there were no staff 
members of the opposite race in two of the schools, (State 
Training School for Girls, (A - TR 11) and Alabama Industrial 
School for Negro Children (A - TR 63)Jl and presumably none in 
the third (Alabama Boys Industrial School).

The State Training School for Girls 
The school has facilities for 78 girls? (A - TR 4) , and at the 

time of the hearing had exactly that number (A - TR 3). The 
Superintendent testified that a cottage was then in the process 
of being renovated which would make room for 20 more girls after 
October 1st 1968 (A - TR 19). There are a number of cottages in 
which each girl has an individual private room (A - TR 6 ). The 
girls share bathroom facilities, recreational facilities, and all

2 .

4



the students eat together ( A - TR 6 ).
The school provides academic schooling up to the 9th grade. 

For older girls a program is available for the high school 
equivalency diploma (A - TR 8 ). The School receives psychiatric 
consultation from the State Department of Education (A - TR 7); 
a reading program is made available under the University of 
Alabama Language Development Center (A - TR 16); medical care, 
dental care, recreation and work programs are also provided 
(A - TR 4). The girls are kept a minimum of 16 months and the 
school therefore keeps other girls on waiting lists for admission 
after the court has found them delinquent (A- TR 5). The 
rehabilitation rate is good, and the Superintendent feels the 
school " really has something to offer . . . 11 (A- TR 7) .
Mrs. Weiss; the Superintendent, received a Masters degree from 
Western Reserve University in Cleveland, Ohio and has been in 
social work for 34 years (A - TR 12).

The Alabama Boys Industrial School
This school had, at the time of the hearing an enrollment of 

200 boys, with a capacity for 214 (A - TR 36). The average length 
of stay for a boy is 10 months (A - TR 37). Mr. Carr testified 
that he would rather have a shorter period of stay than have the 
boys wait for admission in jail (A - TR 37). The School offers 
academic programs for the 1st through the 10th grade. Academic 
achievement is stressed, he indicated, in both the academic and 
vocational programs (A - TR 38), despite the fact that most of

5



the children have sub-normal intelligence (the average I.Q is 89)
(A - TR 43). The school has a bus which they use to take the
students to cultural events; there is also a school band, and
a school newspaper. (A - TR 44). Mr. John Carr,Superintendent
of the Alabama Boys Industrial School, has a Masters Degree in
Social Work from Columbia University in New York.

The Alabama Industrial School for Negro Children
In contrast to the other two schools, the Alabama Industrial

School for Negro children, enrolls both boys and girls. At the
time of the hearing, the school had an enrollment of 460— -106
girls and 357 boys, in a school with a capacity of only 300
students (A - TR 47-48). Unlike the white schools, the enrollments
of which were at or under capacity, the Negro school was and is
"bursting at the seams." The program at the school is essentially
a work program (A — TR 52). The school raises cucumbers,

5 /
and sold $13,000 worth in 1967 (A - TR. 47). There is a canning 
plant on the campus (A - TR 50). Academics are not stressed: 
many of the children have never been to school before (A - TR 50), 
and textbooks are not donated by the state but must be purchased 
from the school’s already inadequate budget (A - TR 51).

5 / Mr. Carr testified that the farming was necessary 
to support the school: " My money is scarce and if it 
wasn't for us farming out there, you see, we would be 
up against it . ..." (A - TR 56).

6



Boys and girls live in separate dormitories, all of which 
have double beds. All 106 girls live in a single building, which 
was built to house 80 students (A - TR 61).

There are 14 teachers for 460 students (A ~ TR 62). One group 
goes to school for six days while the other group is out farming, 
and the groups then alternate (A - TR 62). This school, in contrast 
to the white institutions, does not have a single welfare worker 
(A - TR 64)

Mr. E.B. Holloway, Superintendent of the School was the Farm
Director of the school prior to being promoted to Superintendent 
(A - TR 46) .

3• The Initial Decision of the District Court
On August 2, 1968, the Court entered an opinion and order.

In its opinion the Court denied the motion of defendant Paul B. 
Hooten to dismiss the suit as to members of the Board of Trustees 
of the Alabama Boys Industrial School (A. 38); granted the motion 
to dismiss of Judge G. Ross Bell and the Juvenile and Domestic 
Relations Court of Jefferson County (A. 38); and denied plaintiffs' 
motion for a summary judgment. Regarding the challenged Alabama 
Statutes, the Court found that :

/t/o the extent that Sections 570, 590, 613(1) 
of Title 52 Code of Alabama 1940, Recompiled 
1958, require segregation of juveniles to 
white schools or Negro Schools based solely 
upon the race of the individual; to the extent 
that the statute's require commitment to segregated 
facilities; to the extent that the statutes require 
maintenance of segregated facilities, they are clearly 
unconstitutional. Board of Managers of Arkansas Training

7 -



School for Bovs v. George, 377 F. 2d 228 
(8th Cir. 1967). (A. 38-39).

The Court ordered the State Training School for Girls and
the Alabama Boys Industrial School J to submit a plan within
60 days after the date of the decree, and stated that the :

proposed plan or Iplans to be submitted by 
the defendants provide for some practicable 
or feasible method of selecting and designating 
the school to which those juveniles committed 
by the juvenile court judges will be sent.
(A.39) .

The Court, noting the over-crowded condition of the 
Alabama Industrial School for Negro Children, it's co­
educational status, and (without benefit of testimony to 
this effect) the fact that some of the children in the 
school were sex offenders (A. 40), declined to require 
the school to submit a plan with the other defendant insti­
tutions. It was allowed, instead, a yeear in which to file 
such a plan. (A. 40). Although a year has passed, no such 
plan has been submitted.

4. Appellees' Desegregation Plans
The Alabama Boys Industrial School filed their plan 

September 30, 1968 (A. 42-45). The plan provides in 
essence that the school will:

1) Accept Negro students from 29 of the 67 counties 
in the state, such counties being located in the 
northern part of the state.

8



2) Notify the 67 juvenile court judges that no boy 
is to be brought to the school for admission until 
approval has been received from the institution.

3) Admit 4 Negro students at a time of approxi — 
n.ately the same age and size, who would all be 
assigned to the same cottage at the end of a 12 

day orientation period.
4) Accept (after some undesignated period thereafter) 

cwo Negro students per orientation period.
5) Report to the Court every 90 days on their 

progress.
6 ) Fill future vacancies on the staff with the 

persons possessing the best qualifications regard­
less of race, color or creed.

The State Training School for Girls filed with the 
Court December 4, 1968 a copy of their Board Minutes, 
which included in essence the following desegregation 
plan (A. 47-48) :

1) Applications of Negro students would be accepted
on the same basis as applications of white students.

2) The Juvenile Court Judges will be kept informed 
of space and progress.

3) Applications for staff vacancies would be considered 
without regard to race (one Negro teacher has been 
employed).

9



4) The program will be reviewed by the Board of 
Trustees once a year.

5. The Final. Order of the District Court
On October 4, 1968 the District Court approved 

the plans of two defendant schools (A. 50). Appellants 
filed an amended Notice of Appeal on October 23, 1968.

Specifications of Error 
The Court below erred in:

1) Dismissing Judge G. Ross Bell and the Juvenile 
and Domestic Relations Court of Jefferson County 
as defendants?

2) Failing to require the Alabama Industrial School 
for Negro Children to submit a desegregation 
plan simultaneously with the other defendant 
schools; and

3) Approving the desegregation plans of the 
Alabama Boys Industrial School and the State 
Training School for Girls, which plans fail

to insure that the State's unconstitu­
tional policy of maintaining racially segregated 
facilities, student bodies and faculties will 
entirely and effectively be terminated.

10



ARGUMENT

I .
The Court Erred In Dismissing Judge 
G. Ross Bell And The Juvenile And 
Domestic Relations Court of Jefferson 
County As Defendants.

The Juvenile and Domestic Relations Court and Judge 
G. Ross Bell were properly named as Defendants in the 
original complaint, and are proper parties in this appeal. 
The complaint alleged, and indeed, the Alabama statutes

Vprovide, that boys and girls may not be admitted to the 
Industrial Schools except by commitment of a Juvenile 
Court, and that such courts must assign delinquent children 
to certain schools on the basis of race. There can be no 
doubt but that plaintiffs are thus denied their constitu- 
tional right to be free of state-imposed segregation.
The District Court so found in the opinion below (A. 39).

It is now a truism that segregation in 
any state-owned and operated institutions 
violates the Equal Protection Clause of 
the Fourteenth Amendment. As the Supreme 
Court recently put it: "It is no longer 
open to question that a state may not 
constitutiona1 ly require segregation of 
public facilities," Johnson v. Virginia,
373 U.S. 61, 62 (1963)(courtroom). Dawson 
v. Mayor and City Council of Baltimore,
220 F.2d 386 (4th Cir.), affirmed 350 U.S.
877 (1955) (beaches and bathhouses);

6/ Code of Alabama, Vol. 12, Tit. 52, Sec. 573, Sec. 590, 
and Sec. 613(4).

11



Watson v. City of Memphis, 373 u.S. 526 (1963)
(parks and playgrounds). Washington v. Lee,
263 F. Supp. 327 (M.D. Ala. 1966) affd. ____
U • S. _____ , 88 S. Ct. 45 7 (1968) . George v.
Board of Managers, No. 18536, decided May 23,
1967 (8th Cir.) (reform schools).

Under Alabama law only the Juvenile Court through its 
judges has the power to commit delinquent juveniles to the 
Industrial Schools named in the complaint. Since appellants' 
complaint seeks to enjoin the assignment of children to, and 
the maintenance of, these schools on the basis of race, it 
follows that relief can appropriately be sought against the 
court and its judges. Indeed, to be effective any order must 
run against judges who make the actual assignment. The trans­
cript of the hearing below is replete with statements by all 
three Superintendents of the defendant schools which acknow­
ledge the control of the Juvenile Courts and their judges over 
the enrollment in the various schools.

For example, Mrs. Weiss, Superintendent of the State 
Training School for Girls stated: "Well, of course, I can't
take a girl unless the judge commits her." (A-TR 24), "The 
girl goes under the judge's authority and I am, to a certain 
extent under the judge’s authority. . ." (A-Tr 25) Mr. Carr
of the Boys Industrial School stated, "We always accepted any 
boy. We don't make the choice, the judge commits the boy." 
(A-TR 39). Mr. Holloway of the Negro Industrial School 
stated, "[W]hen the judge wants to send somebody [h]e says,

12





296 (2nd Cir. 1927); Hewitt v. Charles R. McCormick Lumber 
Co./ 22 F.2d 925 (2nd Cir. 1927) ; Fields v . Mutual Ben. Life 
Ins. Co., 93 F.2d 559 (4th Cir. 1938); Street and Smith 
Publications, Inc, v. Spikes, 107 F.2d 755 (5th Cir. 1939).

It was necessary for appellants to see the proposed plans 
of the defendant institutions before they were in a position to 
decide if an appeal were necessary at all. Had the plans 
submitted satisfied the standards and criteria previously laid 
down by this court for the dismantling of segregated school 
systems, an appeal might have been unnecessary.

If this court accepts the position of Appellants regarding 
the unacceptability of the desegregation plans approved, it is 
imperative that further plans incorporate the Court and Judges 
responsible for making the assignments to the training schools.

II.
The Court Erred In Failing To 
Require The Alabama Industrial 
School to Submit a Desegregation 
Plan Simultaneously With The 
Other Defendant Schools.

Under Brown v . Board of Education, 347 U.S. 483 (1954)
—  t -7---------- --------------------------

and subsequent decisions, it is clear that a state may not

U  Johnson v . State of Virginia, 373 U.S. 61, 10 L.ed.
2nd 199 (1963).

14



constitutionally require the segregation of public facilities. 
Singleton v. Board of Commissioners of State Institutions,356 F.2d 
771, 772 (5th Cir. 1966) held that reformatories fell within the 
principle of Brown:

" Twelve years ago, in Brown v. Board of 
Education of Topeka . . . , the Supreme 
Court effectively foreclosed the question 
of whether a state may maintain racially 
segregated schools. The principle extends 
to all institutions controlled or operated 
by the state. "

Similarly in State Board of Public Welfare v. Robert Myers, 224 Md 
246, 167 A. 2d. 764, the Court of Appeals citing Brown, ordered 
the desegregation of Maryland training schools. Arkansas training 
schools were ordered to desegregate their facilities in Board of
Managers v. George,377 F.2d 228 (8th Cir.1967) cert.denied ___ U.S.
______1 0/9/67 -

The District Court in this case found that the operation of
separate training schools for Negro and white children violated
the guarantees of the Fourteenth Amendment of the Constitution.(A.
39 ). Yet it ordered only two of the three institutions to submit
desegregation plans within 60 days of the order. The third school,
the Alabama Institute for Negro Children was given a full year
more to continue as a segregated institution , (A. 40 ) in clear
contravention of the rights of the plaintiff-appellants herein.
As the United States Supreme Court stated in Watson v. City of
Memphis, 373 U.S. 525, 531-530 (1963):

" The rights here asserted are, like all such 
rights; they are not merely hopes to some future 
enjoyment of some formalistic constitutional 
promise. The basic guarantees of our Constitution 
are warrants for the here and now and, unless

15



there is an overwhelmingly compelling reason, 
they are to be promptly fulfilled . . . "

There is no suggestion in this record of an 
" overwhelmingly compelling ’’ reason to delay desegregation 
of all the reform schools in Alabama, indeed, there are 
compelling reasons for requiring simultaneously the 
desegregation of all three schools. The defendant institutions 
in this case constitute the only reform schools for delinquent 
children in the State of Alabama. But for the unconstitutional 
requirement of the Alabama Statutes that such children be 
assigned to schools according to their race, there would be 
only one distinction required, that is to separate boys and 
girls in so far as possible for administrative and disciplinary 
reasons.

The system is therefore unitary in nature and should be 
treated as such in an attempt to dismantle the unconstitutional 
dual classification by race.

On May 27, 1958 the Supreme Court of the United States 
rendered an opinion in Green v. County School Board of New Kent 
County, Virginia, 391 U.S. 430, 442, in which it held that 
school boards are now required " to convert promptly to a 
system without a 'white' school and 'Negro'school, but 
just schools. "

In Adams v. Matthews , ____ F . 2d ______ , No.26501
(August 20, 1968) the Fifth Circuit applied Green in 
another public school desegregation case and crystallized its

16



rule as follows:

If in a school district there are still 
all-Negro schools, or only a small fraction 
of Negroes in white schools, or no substantial 
integration of facilities and school activities 
then, as a matter of law, the existing plans 
fail to meet constitutional standards as 
established in Green. (Emphasis added.)

In Graves v. Walton County Board of Education, _______ F. 2d__
No. 26452 (Sept. 28, 1968), the Court reaffirmed its earlier
ruling that any plan which would permit a single all-Negro
school is prima facie unconstitutional;

In its opinion of August 20, 1968, this Court 
noted that under Green (and other cases), a 
plan that provides for an all-Negro school 
is unconstitutional.

It added that the all-Negro schools in this circuit;
Are put on notice that they must be integrated 
or abandoned by the commencement of the next 
school year. . .

Appellants are, of course, aware that State correctional 
institutions present some special considerations. Yet the 
United States Supreme Court recently affirmed a three-judge 
Federal Court order requiring immediate desegregation for the 
educational programs and youth centers of Alabama prisons and 
jails. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala., 1966)
aff'd ___ U.S.   , 88 S. Ct. 457 (1968). There is no
meaningful distinction between the youth centers involved in 
Washington v. Lee, supra and the training schools in this case. 
Despite the fact that the court below stated that the Washington 
v . Lee case was controlling in the instant suit, it failed to 
order immediate desegregation of any of these educational 
institutions.

17



The overcrowded condition of the Alabama Industrial 
School (163 over capacity) (A-TR H-S ) would logically be in­
centive to require simultaneous desegregation of the three 
schools, with a view toward alleviating that very condition 
by sending some children to the other schools which are now 
at or under-capacity in enrollment (A-TR 3,19,36). Otherwise, 
the full burden of overcrowded and inferior facilities will 
be carried by Negro students.

Approval of desegregation plans of the two white 
institution without consideration of the future of the Negro 
school is therefore unwarranted by the facts, unconstitutional 
hy standards laid down in the Green and subsequent decisions, 
and totally ineffective in dismantling the prohibited dual 
system.

III.
The Court Erred in Approving The 
Desegregation Plans of the Alabama 
Boys Industrial School and the State 
Training School for Girls, Which 
Plans Fail Adequately to Insure That 
The States' Unconstitutional Policy 
of Maintaining Racially Segregated 
Facilities. Student Bodies, and 
Faculties Will Entirely and Effectively 
Be Terminated.

The desegregation plan submitted by the State Training 
School for Girls provides nothing more than general statements 
that it will in the future accept students and hire new faculty 
members on a non-discriminatory basis (A. 46-47).

18



proposesThe plan offered by the Boys Industrial School 
to take Negro students only from a limited part of the State 
(29 northern counties, in a total of 67 counties) ;; to require 
the courts to, in effect, ask permission of the school before 
sending Negro students to its School: to assign the Negro
students so enrolled to the same dormitory in groups of four, 
and to reduce the number of Negro students being enrolled by 
half after some unspecified period of time. (A. 43-45). The 
oniy plan for faculty integration is a statement that future 
vacancies will be filed regardless of race, color or creed 
(A. 45).

Appellants contend that these plans fail to adequately 
insure that the States' unconstitutional policy of maintaining 
racially segregated facilities, student bodies and facilities 
will entirely and effectively be terminated.

These plans fail first, as was discussed at pages 14-17, 
xr̂ frei, because they are not part of a uniform plan including 
the Alabama Industrial School for Negro children.

The plans fail in addition in lack of specifity as 
follows:

1. No dates are given for the achievement of complete 
desegregation of the Schools.

2. in the case of the Girls' School, the agreement to 
comply with the Court s order is too general to serve as a 
guideline for future administrative conduct.

19



3. The Boys' School plan proposes to perpetuate the 
prohibited discrimination by taking only limited numbers of 
Negro applicants, and decreasing rather than increasing the 
number at a time left to the Schools discretion to chose,

4. No specific procedures for accomplishing the ends 
stated in both plans are included.

5. No provision is made for the immediate transfer of 
students from one school to another.

6 . They continue, instead of eliminating segregation 
in dormitories.

The District Court below took several preliminary matters
connected with this case under advisement pending the decision
of the Supreme Court in the case of Washington v. Lee, 263
F. Supp. 327 (M.D. Ala. 1966), which the court considered
controlling (A. 29). The Supreme Court, per curiam,-" upheld
the three-judge District Court decree which declared specified
Alabama statutes unconstitutional to the extent that they
required segregation of the races in Alabama prisons and jails.
In that decision, the Court recognized the special circumstance
involved m  desegregation of correctional institutions, stating

the association between men in correctional 
institutions is closed and more f raught with 
physical danger and psychological pressures 
than is almost any other kind of association 
between human beings.

U.S. ___88 S.Ct. 457 (1968).8/



The Court, therefore, ordered desegregation of the penal 
facilities of the State of Alabama at different rates of time, 
the longest period being one year for total desegregation for 
maximum security adult facilities:

The several honor farms, the educational
the youth c e n t e r 1 « 

in the state system must be desegregated 
immediately. All facilities in the minimum 
and medium security institutions. . . must be 
completely desegregated within six months. As 
to the maximum security institutions. . . the 
Court will expect complete and total desegregation 
• . . within a period of one year. (Emphasis added.)

It has now been over a year since the District Court 
ordered two of the defendant schools in this case to desegregate 
their schools. These schools clearly fall within a parallel 
classification of the Lee case as educational programs and Youth 
Centers. Their complete and total desegregation should therefore 
have been accomplished immediately, and the District Court erred 
in approving plans which accomplished less than that required 
by the Lee decision.

Unjustifiable delay perpetuates the prohibited segregation. 
As the united States District Court for the District of Columbia 
stated in another case challenging discrimination in 
re forma tone s :

Since full racial integration is invariably 
a desirable goal, racial discrimination may be 
seen as any unjustifiable delay in achieving 
this goal.

The District Court's acceptance of the plans in question 
reflects that court's failure to grasp the settled principle

2/ Edward v. Sard, 250 F. Supp. 977, 979 (1966).

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that schemes which technically approve desegregation but 
retain the school system in its dual form must be struck down. 
Goss v. Board of Education, 373 U.S. 683 (1963); Griffin v.
County School Board of Prince Edward County, 377 U.S. 218 (1964); 
Boston v. Rippy, 285 F.2d 43 (5th Cir. 1960); Houston Independent 
School District v . Ross, 282 F.2d 95 (5th Cir. 1960); United 
States v. Jefferson County Board of Education, 372 F.2d 836, 
affirmed with modifications on rehearing en banc, 380 F.2d 385, 
cert, denied sub nom Caddo Parish School Board v. United States, 
389 U.S. 840 (1967); Green v. County School Board of New Kent 
County, Virginia, 391 U.S. 430, 441.

This principle is equally applicable to state correctional, 
institutions as it is to Public Schools. Singleton v . Board of 
Commissioners, 356 F.2d 771, 772 (1966); Board of Managers v. 
George, supra; Washington v. Lee, supra.

The plans of both boys' and the girls' industrial schools 
fail to provide for satisfactory faculty as well as student 
desegregation. This difficulty was encountered in the desegrega­
tion plans of another special school system in Alabama, for deaf 
and blind children. The Court there stated clearly what would 
be required of such plans regarding faculty:

This Court's Jefferson parish decision, makes 
it clear that teaching staffs must be integrated 
without waiting for the filling of future 
vacancies on a non-racial basis. Every effort 
must be made by this institution to comply with 
this requirement in Jefferson in the same manner 
as is required of public schools.1 0/

10/ Archie v . Alabama Institute for the Deaf and Blind,
395 F.2d 765, 767 (1968).

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The only feasible method by which the dual reform school 
system in the State of Alabama can desegregate its operations 
as required by Lee, Jefferson and Green is by adoption of a 
unitary plan for the assignment of children pursuant to non- 
racial geographic zones and/or pairing of schools. There are, 
for example 106 girls at the Alabama School (A-TR. 47) who 
might be moved to the State Training School for Girls, and the 
Alabama Boys and Alabama School for Negro children might then 
be paired-one, to take all boys from age 12-15 and the other 
16-21, or paired geographically. Present staff, both 
professional and non-professional could be shared between the 
schools, thus achieving integration of the faculty.

Appellants are mindful that desegregation may cause a 
number of administrative problems at these schools. But the 
complaint in this case was filed on May 31, 1967 and appellees 
[the Alabama Boys' Industrial School and the State Training 
School for Girls] were ordered to bring in a plan on August 2, 
1968. Appellees have been given adequate notice that 
reorganization of the segregated schools is a constitutional 
imperative.

Appellants there fore respectfully submit that this case 
be remanded to the district court with directions that the 
appellee schools be directed to file promptly and serve upon 
opposing counsel:

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1. A plan for the complete integration of all three 
schools which plan shall be implemented no later 
than September 1969. The plan shall provide for 
the integration of classrooms, dormitories, 
athletic programs and all other activities and 
services at each school. It shall provide for 
the assignment of students by region or sex, or 
both. No school may enroll only students of the 
same race.

2. A plan for the complete integration of faculty. 
Which plan shall provide for the immediate 
reassignment of teachers and other service 
personnel in such manner that the ratio of Negro 
teachers at each site will be approximately the 
same as the ratio throughout the system.

3. periodic reports to that Court on the progress 
of the plan.

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Conclusion

WHEREFORE, for the foregoing reasons it is respectfully 
submitted that the orders of the lower court be vacated and 
that the case be remanded with instructions that appellees be 
required to modify their plans in the respects outlined herein 
and in any other manner deemed necessary by this Court.

Respectfully submitted,

FRANKLIN E. WHITE 
10 Columbus Circle 
New York, New York 10019

DEMETRIUS NEWTON
408 North 17th Street 
Birmingham, Alabama 35203

Attorneys for Appellants

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CERTIFICATE OF SERVICE

I hereby certify that three (3) copies of the foregoing 
Brief for Appellants have been served this 17th day of 
January 1969, by air mail, postage prepaid to counsel for Appellees 
as follows:

MacDonald Gallion Philip H. Smith
Attorney General Special Assistant Attorney

General
Montgomery, Alabama 36101

Robert P. Bradley 
State Office Building 
Montgomery, Alabama 36101

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