Lawson v. United States of America Opening Brief for Appellant

    1 ixxUb States (Emtrt of Appeals
F ob th e  F if t h  C ircuit

No. 25356

I n  th e

J erby L . L ockett , et al.,
Appellants,

B oard of E ducation , M uscogee C ou nty  S chool D istrict,
Georgia, et al.,

Appellees.

A PPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT FOR T H E  

M IDDLE D ISTRICT OF GEORGIA

BRIEF OF APPELLANTS

J ack  Greenberg 
C harles S teph en  R alston 
M ary M oss

10 Columbus Circle
New York, New York 10019

H oward M oore, J r .
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

C. B. K ing

P.O. Box 1024 
Albany, Georgia

Attorneys for Appellants



TABLE OF CONTENTS

PAGE

Statement of the Case ....................................................... 1

1. History of this litigation ..................................  1

2. Present status of school desegregation ...........  3

A. Pupil desegregation—the choice period .... 3

B. Faculty desegregation ........................   6

C. Other aspects of the school system ..............  8

3. The District Court’s Order .................................. 9

Specification of Error ..................................................   10

A k g u m e n t  :—

I. The Requirements of Jefferson County Ap­
ply to All School Districts in This Circuit 
Against Which School Desegregation Suits 
Are Pending ........................................................  10

II. The Present Plan for Desegregation Is Not 
in Compliance With the Jefferson County 
Decree ....................................................................  12

III. The Grounds set Forth by the District Court
for Denying Belief Were Inadequate .............  16

C onclusion  .........................................................................................  19

Certificate of Service 20



11

T able of C ases

PAGE

Acree, et al. v. County Board of Education of Rich­
mond County, Ga. (No. 25136, August 31, 1967) .....  11

Banks v. St. James Parish School Board (No. 25375,
Nov. 20, 1967) ..................................................................  11

Bivins v. Board of Education and Orphanage for Bibb
County, Ga. (No. 24753, May 24, 1967) .....................  11

Bivins v. Board of Public Education and Orphanage 
for Bibb County (M.D. Ga,, CA No. 1926, Oct. 20, 
1967) ................................................................................ 13,14

Carter v. West Feliciana Parish School Board (No. 
24861, July 24, 1967) ......................................................  11

George v. Davis, Pres, of East Feliciana Parish School 
Board (No. 24860, July 24, 1967) ..............................  11

Hall, et al. v. St. Helena Parish School Board; James 
Williams, Jr., et al. v. Iberville Parish School 
Board; Boyd, et al. v. The Pointe Coupee Parish 
School Board; Terry Lynn Dunn, et al. v. Livingston 
Parish School Board; Welton J. Charles v. Ascen­
sion Parish School Board, et al.; Thomas, et al. v. 
West Baton Rouge Parish School Board, et al. (Nos. 
25092 consolidated, August 4, 1967) ........................... 11

Lee v. Macon County Board of Education, 267 F. Supp.
458 (M.D. Ala. 1967), aff’d sub nom, Wallace v.
United States,------ U.S. ——  (Dec. 4, 1967) ............. 17

Lockett v. Board of Education of Muscogee County 
School District, Ga., 342 F.2d 225 (5th Cir. 1965) ..._2,11,

17,18



Ill

PAGE

Thomie v. Houston County Board of Education, Ga.
(No. 24754, May 24, 1967) ...................... ....... .............  11

United States of America and Linda Stout, et al. v. 
Jefferson County Board of Education, et al., 372 F.2d
836 (5th Cir. 1966) ...................................... 2,10,11,15,16

United States of America and Linda Stout, et al. v. 
Jefferson County Board of Education, et al., 380 F.2d
385 (5th Cir. 1967) .............. ............ 1,3,4,5 ,6,8,9,10,12,

13,14,15,17,18



I n  th e

United States (Hour! of Appeals
F ob th e  F if t h  C ircuit

No. 25356

J ebby L . L ockett, et al.,
Appellants,

B oard of E ducation , M uscogee County  S chool D istrict,
Georgia, et al.,

Appellees.

A PPE A L FROM  T H E  U N IT E D  STATES D ISTRICT COURT FOR T H E  

M IDDLE D ISTRICT OF GEORGIA

BRIEF OF APPELLANTS

Statement of the Case

This is an appeal from an order of Honorable J. Robert 
Elliott, Judge of the United States District Court for the 
Middle District of Georgia, denying appellants’ motions 
for an order entering a decree pursuant to the decision in 
United States of America and Linda Stout v. Jefferson 
County Board of Education, et al. with regard to the 
Board of Education of the Muscogee County School Dis­
trict, Georgia.

1. History of this litigation

In 1963, the Board of Education of Muscogee County 
instituted a desegregation plan for its schools (R. 1-4).



2

Subsequently, this action against the Board and school 
officials was filed on January 13th, 1964, by Negro students 
and parents in the City of Columbus and Muscogee County. 
The suit sought to enjoin the continued operation of a 
bi-racial school system and challenged the appellees’ de­
segregation plan as inadequate on a number of grounds.

On April 22, 1964, the district court denied plaintiffs- 
appellants’ motion for a preliminary injunction and ap­
proved the school board’s plan. An appeal was taken to 
this Court and the case was affirmed as to the denial of 
an injunction, but was reversed as to the approval of the 
plan. Lockett v. Board of Education of Muscogee County 
School District, Ga., 342 F.2d 225 (5th Cir. 1965). This 
Court held that it was not error to refuse to enjoin the 
school board because of its “ intention to effectuate the 
law,” 342 F.2d at 229. The plan for desegregation, how­
ever, could be approved only if it conformed with the then 
current minimal standards enunciated in other decisions 
of the Court. Those standards included the giving of ade­
quate notice of the plan and the abolition of any dual or 
bi-racial school attendance system. 342 F.2d at 228-229. 
Desegregation of the teaching and administrative per­
sonnel would not be immediately required, but might be 
more appropriately considered by the school board, and 
the court, if necessary, after the desegregation plan as to 
pupils had progressed to some extent. Subsequently, the 
appellee school board amended its plan from time to time, 
the most recent amendment being on January 31, 1967 
(R. 5-6).

In January and February, 1967, subsequent to the first 
decision in United States of America and Linda Stout v. 
Jefferson County Board of Education, 372 F.2d 836 (1966), 
appellants filed motions for summary judgment and for



3

further relief asking that a Jefferson County decree be 
entered (R. 7-30).1 In May, 1967, after the en banc affirm­
ance of Jefferson (380 F.2d 385 (5th Cir. 1967)), appel­
lants filed a supplementary motion renewing their earlier 
motions and asking that either a Jefferson County decree 
be entered or that an immediate hearing- be granted (R. 
32-33). The appellees filed a response in which they ques­
tioned the necessity and desirability of ordering the 
Muscogee County school system to conform to all of the 
Jefferson County requirements (R. 35-38).

2. Present status of school desegregation

The District Court held a hearing on appellants’ motions 
on June 15,1967. At the hearing, the school board accepted 
appellants’ position that the burden was on it to show why 
a Jefferson County decree should not be entered (R. 40). 
This section of the statement will set out the evidence 
developed by testimony and exhibits relating to the present 
plan and the extent of desegregation under it.

A. Pupil desegregation— the choice period

The Muscogee County school system has 49,384 pupils, 
27.5 percent of whom, or about 13,000, are Negroes (R. 41, 
60). As of November, 1966, there were 316 Negro students 
attending previously all-white schools in regular classes 
(R. 61). Fifteen of these students graduated in June, 1967, 
and 550 more made choices to go to white schools in 
1967-68. Thus, the superintendent estimated that there 
would be 851 attending regular elementary, junior, and

1 The motion for summary judgment was an attempt to have entered 
immediately those portions of the Jefferson County decree dealing with 
the choice period in time for the school year 1967-68. The motion for 
further relief requested the entering of the rest o f the Jefferson County 
decree.



4

senior high school classes in the 1967-68 school year (R. 65). 
In addition, there were 112 in the adult school and man­
power program and 275 in the Columbus Area Vocational 
Technical Schools with whites (Ibid).2 Thus, only 9.7% 
of the total Negro enrollment was attending desegregated 
schools, with a smaller percentage in desegregated regular 
classes. To the superintendent’s knowledge, only one white 
pupil was attending a Negro school (R. 75).

The choice period for the 1967-68 school year was made 
pursuant to the resolution of January 31, 1967, amending 
the desegregation plan (R. 5-6). Although the resolution 
provided for a period from March 1 through March 31, 
1967, it was extended through April 3 (R. 43). An ex­
planatory letter, copy of the resolution and choice form 
were sent home to parents by pupils (Plaintiffs’ Exhibit 2). 
Choice forms were returned to the principals of the indi­
vidual schools; only those requesting a change of school 
were sent to the superintendent’s office for processing. 
Seven thousand seven hundred fifty three (7,753) such 
forms were processed by the central office (R. 45).3 Of 
these, 550 were requests by Negro pupils to be trans­
ferred to formerly all-white schools.

A  central question was whether the plan involved the 
mandatory exercise of choice by all pupils as required by 
Jefferson. The language of the January 31 resolution and 
the explanatory letter does not require that every pupil 
make a choice (see, Plaintiffs’ Exhibit 2; R. 5) as does

2 In his opinion, the district judge stated that there would be 1250 
Negro pupils attending formerly all-white schools in September, 1967 
(R. 124). However, it is clear that this figure is the total of regular 
and special pupils.

3 All choices had been acted upon at the time of the hearing except for 
those of 16 white students requesting transfer to other white schools (R. 
125).



5

the Jefferson County decree. 380 F.2d 385, 391, 395. 
Bather, it only says that they may choose to attend any 
school if they so wish.4 Pupils who did not make a choice, 
according to the resolution, “ shall register and enroll at 
the school the pupil is now attending or at a school in 
the area in which said pupil’s residence is located” (R. 5).

The procedure used for assignment of pupils who made 
choices supports the conclusion that there was no manda­
tory choice. There was no central processing of all choice 
forms; only those requesting a different school than that 
attended were sent to the main office (R. 67). In fact, the 
superintendent did not know whether every student had 
filled out a choice form, or even whether any pupils who 
wished to stay in the same school did so. It was simply 
assumed that students who did not bring in a choice form 
chose the school they already attended (R. 65-67). The 
superintendent admitted, in essence, that students who 
wished to stay where they were were not required to make 
a choice (R. 68).

The absence of mandatory choice and a lack of central 
processing of all choices was further shown by the testi­
mony of a Negro parent. He had sent in a form choosing 
a white school which was denied for overcrowding. He 
made a second choice which was similarly denied.5 Upon 
a third application his child was assigned to a white school 
(R. 105-112; Plaintiffs’ Exhibits 3, 4, and 5). The superin­
tendent’s office could not have known whether all the pupils 
already in the first two schools had made choices within

4 In contrast, the resolution and explanatory letter state that new 
pupils must make a choice of school at the time of enrollment (R. 5-6; 
plaintiffs’ Exhibit 2).

5 There was a conflict in the testimony of the parent and the super­
intendent over whether or not the parent was informed of a school that 
was not overcrowded after his first choice was denied (R. 107; 113).



6

the choice period, since it received only the forms request­
ing changes (E. 86-88). Thus, preference in assignment 
was given to pupils already attending the school whether 
or not they had made choices, a practice not in conformity 
with the Jefferson County decree.

B. Faculty desegregation

The evidence was clear that there was to he no desegre­
gation of regular classroom teachers for the year 1967-68 
(E. 76-77). No Negro teachers were teaching in regular 
white classes or vice versa (E. 74). The only faculty de­
segregation was in special classes6 and in summer pro­
grams funded by the Federal Government where receipt 
of funds was conditioned on such desegregation7 (E, 76- 
77). Since 1966, general and group faculty meetings have 
been integrated (E. 49). Plans were under way to inte­
grate the white and Negro teachers’ professional associa­
tions (E. 49-50).

There were no plans, however, for the integration of 
the regular classroom faculties. There are 1828 teachers 
in the system, 500 of whom are Negro (E. 45). It was 
claimed that all teacher contracts and assignments had 
been made for 1967-68 and it could create difficulties to 
comply with the Jefferson County requirement for this

6 There is one Negro teacher at the Reading Center, one Negro con­
sultant in English, one part-time Negro teacher in the Adulx Education 
Program, one Negro guidance counsellor at the vocational technical school, 
one Negro teacher in audio-visual aids, and two white teachers in Radio 
and TV at the Negro trade school (R. 47).

7 There were 8 white and 3 Negro teachers, 4 wnite and 1 Negro 
examiners, 4 white and 2 Negro bus drivers, and 3 white and 1 Negro 
clerks in the integrated summer diagnostic center. In the summer remedial 
program there were 3 white and 2 Negro principals and 38 white and 
34 Negro teachers. In the tutoring program there were 28 white and 27 
Negro teachers; however, only three of the twelve schools in the program 
had integrated faculties (R. 48-49).



7

year (R. 52-53, 58). However, it was admitted that the 
system had 88 vacancies, evenly distributed between the 
65 schools in the system, but there was no plan to fill the 
vacancies in the white schools with Negro teachers or vice 
versa (R. 77-79).

The superintendent testified that he had not asked any 
teachers to integrate faculties, even though he knew of 
some that would be willing to do so ; he had not talked 
with even 100 of the more than 1800 teachers in the system 
to find out who would be willing to integrate faculties; no 
attempt had been made to explain what would have to be 
done or to otherwise prepare the way for such desegrega­
tion (R. 82-83). Teachers applying for positions were 
not informed that they might be assigned to schools with 
faculties and student bodies of the opposite race (R. 77- 
78); nor were white student teachers assigned to Negro 
schools or Negro to white (R. 78).

It was clear that neither the superintendent nor the 
school board had any plans or intended to make any plans 
for faculty desegregation until some indefinite time in the 
future when pupil desegregation would be completed (R. 
83-84; 97-98; 104-05).8

8 The superintendent, the president of the Board of Education, and the 
chairman of the committee of the Board entrusted with desegregation 
testified, respectively, as follows:

1. Superintendent:
Q. So, in fact, you have not really done much of anything of 

much substance to prepare the way for desegregation of the regular 
classroom teachers in your system? A. No, the emphasis has been 
on pupils up to this point, which we tried to do without confusion 
and chaos in our schools.

Q. Do you have any plans now to do any o f these things that I ’ve 
mentioned? A. No, I have none to announce at this time (R. 83) ;
2. President:

Q. Mr. Kinnett, as President of the Board of Education, have you 
and other members of the Board informally or formally in meeting



8

C. Other aspects of the school system

Additional evidence bearing on other Jefferson County 
requirements was introduced. The superintendent testi-

discussed the question of faculty desegregation? A. Oh naturally, 
we discussed it.

Q. And have you discussed making plans? A. We have not dis­
cussed making any plans yet because the Fifth Circuit Court in­
dicated to us, when our case was before them, which was the Lockett 
case, that the faculty would come later. In fact, as I recall, hearing 
one of the Judges make the statement that they weren’t interested
in faculty at this time. I believe that’s possibly the exact words.

# »  #

Q. But you regarded the Fifth Circuit opinion as allowing you 
not to discuss or make future plans for faculty desegregation? A. 
Well, we didn’t feel that until such time as we completed the integra­
tion of the children, the pupils, that we had an obligation to go into 
that.

# # #

Q. In view of those motions and in view of Jefferson County 
opinion, did you or the members of the Board generally feel that 
you should make any plans for faculty desegregation? A. No, very 
frankly, we or I felt personally that the time had not arrived when 
we were obligated to do it.

Q. What, sir, specifically is your personal attitude toward integra­
tion of the faculties in the School System? A. I think when the 
time comes and we can do it and maintain the quality of education, 
I think that will be the time.

Q. Well, how far in the future do you see this time coming? 
A. Well, I ’m not an educator but I would say not any sooner than 
we can do it and still maintain quality education for all children 
(R. 97-98);
3. Chairman:

Q. What is your specific attitude toward racial integration of 
faculty? A. I am not against it at the proper time.

Q. And when is that, sir? A. It’s the next step.
Q. And when is the next step, as you envision it? A. I  would say 

that we will begin thinking about that very seriously— we finish the 
pupil integration this year and I think that will be one of the next 
steps for consideration probably in 1968.

Q. I see. And how long do you envision you will have to think 
about it, after you commence thinking about it in 1968? A. I ’m 
one member of the committee, I think when we begin to think about it, 
we’ll come up with some plan.

Q. In the how distant future, sir? A. In ’68, next year.
Q. Next year you think you will? A. Yes.
Q. You will start thinking about that at that time and you’ll 

up with something? A. Sure, I think we will (R. 104-05).
come



9

fled that teacher-pupil ratios in the schools were the same 
(R. 46); that all classes would be desegregated in Sep­
tember of 1967 {Ibid) ; that athletic and band activities in 
desegregated schools were integrated (R. 50-51); parent- 
teacher meetings and commencement exercises were inte­
grated (55-56); and all schools were accredited (R. 41-42). 
On cross-examination he testified that at one Negro school 
an old wooden building had been and might still be used 
as a classroom (R. 91-92); that segregated social clubs 
were allowed to use school facilities (R. 92-94). Evidence 
was also adduced as to the routing of school buses within 
the system (R. 89-91).

3. The District Court’s Order

On August 15, 1967, the district court handed dawn its 
order denying appellants any injunctive relief, on the 
ground that the school board was “ earnestly striving to 
comply with constitutional requirements in the operation 
of its school and is successfully doing so” (R. 130-131). 
The only requirement as to pupil desegregation imposed 
by the court was that “ the choice period in 1968 and the 
manner and means of conducting it shall be in compliance 
with the rules prescribed in Jefferson”  (R. 129). The 
court also stated that the school board should continue 
to extend the desegregation of faculties in the coming 
school year, and that “ if the action taken by the Board 
in this regard is not consistent with that required by 
Jefferson and other cases of the Court of Appeals, it 
will be necessary for this Court to enter such other orders 
as are required to bring about such compliance.” How­
ever, the court felt “ that it is not necessary at this time 
to enter an order requiring specific action in addition to 
that which has already been accomplished by the Board” 
(R. 130).



10

A notice of appeal to this Court was filed on Septem­
ber 7, 1967 (E. 132). Subsequently, a motion for summary 
reversal was filed by appellants, but was, in effect, denied 
by a panel of this Court which rather ordered an ex­
pedited appeal.

Specification of Error

The court below erred in refusing to enter an order 
requiring the Muscogee County School , Board to comply 
in all respects with the decision and decree in Jefferson 
County.

A R G U M E N T

I.
The Requirements of Jefferson County Apply to All 

School Districts in This Circuit Against Which School 
Desegregation Suits Are Pending.

In the first opinion in United States of America and 
Linda Stout v. Jefferson County Board of Education, 372 
F.2d 836 (5th Cir. 1966), adopted by the Court en banc, 
380 F.2d 385 (5th Cir. 1967), this Court stated:

[T]he provisions of the decree are intended, as far 
as possible, to apply uniformly throughout this circuit 
in cases involving plans based on free choice of 
schools. School boards, private plaintiffs, and the 
United States may, of course, come into court to 
prove that exceptional circumstances compel modifi­
cation of the decree. . . . Other schools have earlier 
court-approved plans which fall short of the decree. 
On motion by proper parties to re-open these cases,



11

we expect these plans to be modified to conform with 
our decree. 372 F.2d at 894, 895.

In at least 12 instances this Court has enforced this 
language by granting summary reversals of refusals of 
district courts to enter Jefferson County decrees. Bivins 
v. Board of Education and Orphanage for Bibb County, 
Ga., Thomie v. Houston County Board of Education, Ga. 
(Nos. 24753 and 24754, May 24, 1967); George v. Davis, 
Pres, of East Feliciana Parish School Board, Carter v. 
West Feliciana Parish School Board (Nos. 24860 and 
24861, July 24, 1967); Hall, et al. v. St. Helena Parish 
School Board; James Williams, Jr., et al. v. Iberville Parish 
School Board; Boyd, et al. v. The Pointe Coupee Parish 
School Board; Terry Lynn Dunn, et al. v. Livingston 
Parish School Board; Welton J. Charles v. Ascension 
Parish School Board, et al.; Thomas, et al. v. West Baton 
Rouge Parish School Board, et al. (No. 25092 consolidated, 
August 4, 1967); Acree, et al. v. County Board of Educa­
tion of Richmond County, Ga. (No. 25136, August 31, 
1967); Banks v. St. James Parish School Board (No. 25375, 
Nov. 20, 1967). The purpose of the rule thus enunciated 
and enforced is clear: to bring about substantial uni­
formity between court-ordered and HEW-directed school 
desegregation throughout this Circuit.

The present case comes squarely within the language 
of Jefferson County. The Muscogee County school system 
has been operating under a court-approved freedom of 
choice plan. See Lockett, et al. v. Board of Education of 
Muscogee County School District, Georgia, et al., 342 
F.2d 225 (5th Cir. 1965). Appellants contend that: (1) the 
plan for desegregation involved herein does not comply 
in any substantial way with the Jefferson County decree; 
and (2) there has been no showing of any circumstances,



12

exceptional or otherwise, to justify the school system not 
being required to bring its plan into full confirmity with 
that decree.

II.

The Present Plan for Desegregation Is Not in Com­
pliance With the Jefferson County Decree.

Initially, it is clear from the evidence in this case that 
the present plan deals only with pupil desegregation. The 
resolutions of the school board speak only to that question, 
and the testimony of the superintendent and school board 
members show conclusively that there is no plan for faculty 
desegregation.

The desegregation plan under which the Muscogee County 
school system is now operating differs from the Jefferson 
decree and is deficient in the following respects:

(1) The provisions for the exercise of choice have not 
been made specific by the district court’s order, partic­
ularly with regard to mandatory exercise of choice and 
the question of priority given because of prior attendance 
(see, corrected decree, sections 11(b) and (d), 380 F.2d 
at 391). Indeed, the testimony of the superintendent (R. 
65, 85-86) demonstrates the necessity for entering the 
detailed provisions of Jefferson so there will be no mis­
understanding on the part of school officials as to the 
procedure they must follow.

(2) The plan does not have the provisions contained in 
Section IV  of the Jefferson decree (380 F.2d at 393)’ 
setting restrictions on the permitting of transfers.

(3) The provisions prohibiting the segregation of or 
discrimination against students on account of race in all



13

services, facilities, activities and programs are absent 
(Section Y, 380 F.2d at 393).

(4) Section VI (380 F.2d at 393-94), requiring that 
Negro schools be equalized, that reports be made to the 
district court of pupil-teacher ratios, pupil-classroom 
ratios, and per-pupil expenditures, and remedial programs 
be provided, is absent. In Jefferson I, the Court put spe­
cial emphasis on the need to equalize school facilities in 
order to make desegregation under freedom of choice plans 
a reality (372 F.2d at 891-92). Of particular importance 
are the reporting provisions which will provide the court 
and parties with information essential to the continuing 
supervision of the progress of the plan.

(5) Section II(n ) (380 F.2d at 392), requiring the re­
routing of bus lines where necessary, is absent.

(6) Section VII (380 F.2d at 394), placing an affirma­
tive obligation on the school board to locate new schools 
and expand existing schools “with the objective of erad­
icating the vestiges of the dual system” is absent. The 
importance of this provision being entered, with its im­
position of a present and continuing obligation on the 
school board in planning school construction, cannot be 
stressed too much. It is best illustrated by the recent 
order of the district court in Bivins v. Board of Public 
Education and Orphanage for Bibb County (M.D. Ga., 
C.A. No. 1926, Oct. 20, 1967). In Bivins, District Judge 
Bootle had similarly refused initially to enter the entire 
Jefferson County decree. After a summary reversal by 
this Court on May 24, 1967, the decree was entered, in­
cluding the school construction provision. Subsequently, 
in September, 1967, the plaintiffs in that case tiled sup­



14

plementary pleadings to enjoin the construction of a high 
school just prior to the contracts for construction being 
let. Plaintiffs alleged, and proved, inter alia, that the 
school was to be constructed in a Negro neighborhood, 
would have an all-Negro student body and would, there­
fore, have the effect of promoting segregation, rather than 
integration as required by the Jefferson County decree. 
The district court enjoined the construction in the planned 
location. In his order, the judge stressed that the order 
entering the Jefferson County decree was applicable to 
the proposed construction, that it imposed an affirmative 
obligation on the school board, and that by enjoining the 
construction the court was, by supplementary order, en­
forcing the obligation thus imposed. In other words, Sec­
tion VII is of vital importance in making explicit and 
binding a present and future requirement to plan all school 
construction so as to bring about maximum integration.

(7) Section VIII (380 F.2d at 394), the provision re­
quiring immediate specific steps toward the desegregation 
of faculties so that the faculty and staff of each school is 
not composed exclusively of members of one race, is absent. 
To date there has been very little done to effect faculty 
desegregation. The testimony of the superintendent re­
vealed that there are no teachers teaching or assigned to 
schools to teach in a classroom situation where they are 
in racial minority (R. 74). Progress in faculty desegrega­
tion has been limited to integrated staffs in special classes 
and in summer programs heavily funded by the Federal 
Government which requires such programs to be inte­
grated as a prerequisite to the receipt of funds (R. 76-77). 
Eighty-eight teacher vacancies exist in the system about 
evenly distributed between predominantly Negro and 
predominantly white schools but there are no plans to



15

fill vacancies in predominantly white schools with Negro 
teachers or to fill vacancies in predominantly Negro schools 
with white teachers (R. 77-79). There has been no con­
certed attempt on the part of the school administration 
to find out whether there are teachers in the system who 
would be willing to teach in a school predominantly not of 
their color if they were asked (R. 82-83). There are, in 
fact, no plans to bring about regular classroom desegrega­
tion (R. 81-84).

The district court’s order relating to faculty desegrega­
tion is clearly insufficient. It approves the wholly inade­
quate steps taken to date and only indicates that if future 
action is not consistent with Jefferson then further orders 
may be entered (R. 129-30). This is in sharp contrast to 
the detailed requirements of Jefferson which order a 
significant beginning to regular classroom desegregation 
immediately.

(8) Finally, the provisions of Section IX  (380 F.2d at 
395), requiring periodic reports to the opposing party and 
the district court on the choice period, the progress of 
the desegregation plan and faculty desegregation, is absent. 
The importance of this provision was stressed by this 
Court in Jefferson I :

Scheduled compliance reports to the court on the 
progress of freedom of choice plans are a necessity 
and of benefit to all the parties (372 F.2d at 892).

And, it continued:

What the decree contemplates, then, is continuing 
judicial evaluation of compliance by measuring the 
performance—not merely the promised performance— 
of school boards in carrying out their constitutional



16

obligation “to disestablish dual, racially segregated 
school systems and to achieve substantial integration 
within such systems.” 372 F.2d at 895.

III.

The Grounds set Forth by the District Court for 
Denying Relief Were Inadequate.

At the hearing below appellee school board accepted 
appellants’ position that the burden was on it to show 
why the Jefferson County decree should not be entered 
(R. 40). The language of Jefferson I  quoted above (372 
F.2d at 894, 895) clearly required the board to make such 
a showing. Appellants contend that this burden was not 
carried, but that the evidence, as set out above, clearly 
required the entrance of a Jefferson County decree in its 
terms.

The importance of the omitted portions of that decree 
has been pointed out above. More generally, appellants 
urge that the standard intended to be applied by this 
Court in all school cases is:

The only school desegregation plan that meets con­
stitutional standards is one that works. # * * The 
question to be resolved in each case is : How far have 
formerly de jure segregated schools progressed in 
performing their affirmative constitutional duty to 
furnish equal educational opportunities to all public 
school children! 372 F.2d at 847, 896.

Under any standard of measurement the plan in this 
case has not worked in any substantial way. Only 851 out 
of 13,000 Negro pupils are attending regular classes with 
white children. There is no desegregation of regular class­



17

room teachers. White schools remain white schools and 
Negro school remain Negro schools.

No reason was given by appellees or by the district court 
why the Muscogee County schools should not conform to 
the same standards and requirements as other systems 
in Georgia and, indeed, every school system in the neigh­
boring state of Alabama (see, Lee v. Macon County Board 
of Education, 267 F.Supp. 458 (M.D. Ala. 1967), aff’d
sub nom., Wallace v. United States,------U .S .-------  (Dec. 4,
1967)).

The stated reason for the district court’s action was that 
the school board had been acting in good faith and had 
amended its plan to keep ahead of the schedule for deseg­
regation set by the courts (E. 130). The presence or 
absence of good faith on the part of the school board is, 
appellants urge, irrelevant to the question of whether the 
school board’s plan is adequate and whether the board 
should be required to upgrade it to Jefferson County 
standards. The district court relied heavily on this Court’s 
decision in the earlier appeal in this case, Lockett v. Board 
of Education of Muscogee County School District, 342 F.2d 
225 (5th Cir. 1965). However, at that time all that deseg­
regation plans involved was the initiation and implemen­
tation of free choice provisions. This Court was not re­
quiring the carrying out of a detailed plan for overall 
integration and dissolution of the dual school system. 
Given the relative simplicity of plans, reliance then on a 
demonstrated good faith rather than the granting of an 
injunction was appropriate.

The Jefferson decree requires something more. Eequire- 
ments for school construction, equalization of facilities, 
faculty desegregation, and reporting must be imposed 
so that they may be enforced if necessary. The only



18

effective way for ensuring the elimination of all vestiges 
of segregation is to give Negro plaintiffs and the courts 
the proper tools—the specific and detailed provisions of 
the Jefferson County decree.

Further, even assuming that good faith efforts by the 
school board justified the denial of injunctive relief, the 
district court’s reliance on this Court’s earlier decision 
to deny appellants’ request that the current plan be 
amended in all respects to meet Jefferson County stan­
dards was clearly misplaced. In that decision, this Court 
affirmed the district court’s denial of appellants’ motion 
for an injunction but reversed and remanded insofar as 
the school board’s plan did not comply with the then cur­
rent standards for school desegregation established by 
decisions of the Court (342 F.2d 225, 228-29). Here, again, 
appellants are seeking the upgrading of the school board’s 
plan, and again, the district court should be instructed to 
require such an upgrading. This should be done by the 
entering of the specific Jefferson County decree, the cur­
rent standard established by this Court as the minimum 
requirement for all freedom of choice plans in this Circuit.



19

CONCLUSION

For the foregoing reasons, the decision of the court 
below should be reversed and the cause remanded with 
instructions to enter a plan in conformance with this 
Court’s opinion and decree in Jefferson County.

Respectfully submitted,

J ack  Greenberg 
Charles S teph en  R alston 
M ary M oss

10 Columbus Circle 
New York, New York 10019

H oward M oore, J r .
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

C. B. K ing

P.O. Box 1024 
Albany, Georgia

Attorneys for Appellants



20

Certificate of Service

This is to certify that the undersigned, one of the attor­
neys for appellants, served copies of the foregoing Brief 
for Appellants on the attorneys for appellees, J, Madden 
Hatcher, Esq., and A. J. Land, Esq., P.O. Box 469, Colum­
bus, Georgia, by depositing the same in the United States 
mail, air mail, postage prepaid.

Done this ----------day of December, 1967.

Attorney for Appellants



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