Plaintiffs' Brief in Opposition to Special Master's Recommendations

    a}
 | IN TH 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NOS. 28030 and 28042 

BEATRICE ALEXANDER, et al., 

VS. 

v BOLMES COUNTY BOARD OF EDUCATION, 

et al.,   

  

Defendants—-Appellees 

JOAN ANDERSON, et al., 

STATES OF AMERICA, 

Plaintiffs~Appellants, 

r
n
 

e
y
 

. CANTON MUNICIPAL SEPARATE SCHOOL 

DISTRICT, et al. 

  

£2 oy 5 TP a, Bk LEO 
Defendants-Appellees. 

oY aq 3 AEEh 8 ~ a PUT IEA Je J noo l ong — IN | 

i On Appeal from the United States District Court for the 

Southern District of Mississippi | 

PLATNIITRS BRIEF x 

TO SPECIAI MASTER'S 

MELVYN R. LEVENTHAL 

JOHN A. bi 

538% North Farish Street 

Jackson, Mississippi 39202 

October 29, 1970 ; 
JACK GREENBERG 

JAMES NABRIT I11 

LJ 

Columbus Circle 

York, New York 1001¢° 

   



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NOS. 28030 and 28042 

  

BEATRICE ALEXANDER, et al., 

Plaintiffs-Appellants, 

vs. 

HOLMES COUNTY BOARD OF EDUCATION, 
et al. 

Defendants-Appellees. 

JOAN ANDERSON, et al., 

UNITED STATES OF AMERICA, 

Plaintiffs-Appellants, 

vs. 

CANTON MUNICIPAL Sorarare SCHOOL 
DISTRICT, et al. 

Defendants-Appellees. 

    

PLAINTIFFS' BRIEF 
IN OPPOSITION 

TO SPECIAL MASTER'S RECOMMENDATIONS 

  

ott
 

A 
a 

    

 



  

TABLE OI" CONTENTS 
  

STATEMENT OF THE FACTS 

. A. The Past Dual System ========e-ecoaa- 

Be THe HT TD A = = wires msn sn oh tie sm or sg mst 

C. Defendants! Proposal =====m=memmmnwn- 

ARGUMENT 

I DEFENDANTS' PROPOSAL WOULD 
NOT ELIMINATE THE BASIC AND 
ESSENTIAL FEATURES OF THE 
DUAL SCHOOL. SYSTEM == rm mmm mmm sso me 

a i THE HEW PLAN OF DESEGREGATION 
IS EDUCATIONALLY ADMINISTRATIVELY 
AND OTHERWISE SOUND = »==wwmanmnneans 

J 

Conclusion =~~===~—mmcccmmcmmncmm———————————— re 

Exhibit A 

Projected Enrollments Under 
HEW and School District 
Plans =====mmesanmmnmmn- em 

  

+
 

Ww
 

m
d



  

STATEMENT OF THE FACTS 
  

A. The Past Dual System 
  

The Canton Municipal Separate School District is 

located approximately 25 miles north of Jackson. It con- 

tains what the state statutes refer to as "added territo- 

ry": the school district embraces not only the city of 

Canton but it extends into the rural areas surrounding the 

town. Under state law, all children residing outside the 

corporate limits of Canton but within the school district 

are entitled to transportation; all children residing within 

the corporate limits must walk or provide their own trans- 

portation (Transcript, p. y.1/ 

Residential segregation within the city of Canton 

is virtually complete. The entire black community, except 

for approximately 100 persons, resides west of Liberty Street; 

  

1/ The city of Canton is approximately 3% miles wide 
(east-wide) and 3 miles long (north-south). The school 
district, however, contains approximately 200 square miles. 

 



  

and the entire white community, except for approximately 50 

persons, resides east of Liberty Street (Transcript, p. ). 

Outside of the city limits, i.e., in the rural sections of 

the school district, there is no significant or noteworthy 

residential segregation, (Transcript, p. y.2/ 

There are five schools in the district, three for- 

merly black and two formerly white, all located within the 

city limits of Canton. Of course, the black schools are 

located west of Liberty Street and the white schools are lo- 

cated east of Liberty Street. Prior to the November 7, 1969, 

order, but within the past two years, the school district 

made extensive additions to the black schools. 3/ 

Until the November 7, order of this Court freedom of 

choice controlled pupil assignments. The three black schools 

  

' 2 apvroninately 1,300 blacks but only 240 whites reside 
outside the city and are eligible for transportation. Stated 
another way approximately 187% of the white students and 35% 
of the black students reside outside the city limits of Canton 
but within the defendant school district. 

3/ =/ McNeal was constructed in 1952 with six classrooms 
added in 1962 and twelve classrooms added in 1968; Rogers 
was constructed in 1959 with twelve classrooms added in 1961, 
four classrooms added in 1963 and twelve classrooms added in 
1968; Nichols was constructed in 1920 with a two story addi- 
tion in 1936 and eight classrooms added in 1968 (Testimony of 
Dr. Fortemberry, October 14, 19683, on plaintiffs! motion for 
Green relief). 

 



  

and their enrollments during the 1968-69 school year were as 

  

follows: 

Black White 

Nichols (Cameron Street) 
Elementary School (1-8) 1,221 0 

McNeal Elementary School 
(1-4) : 651 0 

Rogers High School (5-12) 1,917 0 

’ 
3,789 

The two white schools and their enrollments during 

the 1968-69 school year were as follows: 

    

~ Black White 

Canton Elementary School ; 

(1-7) | 14 770 

Canton High School (8-12) 4 610 

18 1,330 

(above statistics from testimony of Dr. Fortenberry, October 

14, 1968, on plaintiffs' motion for Green relief.) 

B. The HEW Plan 
  

The HEW proposal ordered implemented by this Court 

on November 7, 1969, and presently controlling pupil assign- 

ments establishes two "neighborhood" elementary schools for 

grades 1-3. It establishes two geographic zones divided by 

highway 22 or 16 (See map attached hereto which is an approx- 

imate copy of plaintiffs' exhibit 2 to the proceedings of 

September 28, 1970). The HEW plan requires that all children 

 



  

in grades 1-3 residing south of highvay 22 or 16 attend the 

formerly white Canton Elementary School; and all children in 

grades 1-3 residing north of highway 22 or 16 must attend the 

McNeal Elementary School. 

All remaining grades are paired as follows: grades 

4-6 are taught at the Nichols Elementary School; grade 7 is 

taught at the Canton High School and grades 8-12 are located 

4/ at Rogers.— 

C. Defendants! Proposal. 
  

The defendants propose and whe Special Master has 

recommended the adoption of a new plan of pupil assignment 

which would completely restructure and reorganize the school 

district. Pirst, three geographic zones would be established: 

an east zone, west zone and north zone (see map attached here- 

to, plaintiffs’ exhibit 2 to proceedings of September 28, 1970 

and map appended to defendants' Motion for Modification of 

Desegregation Plan). Liberty Street would divide the east 

  

4/ there is some confusion as to the grade structures 

under the proposals before this Court because the defendants 

have changed the name of Rogers High School (formerly black) 

to "Canton High School". Thus, in defendants' proposal ref- 

erences to "Canton High School" are references to the former 

Rogers High School. To avoid confusion all schools are 

identified in this brief according to the original nomen- 

clature. 

 



  

S/ 
zone from the north and west zones.=’ Second, four elementary 

schools serving grades 1-7 would be created: students residing 

within the east zone would attend the formerly white Canton 

Elementary School; students residing within the west zone 

would attend the Nichols Elementary School; students residing 

in the north zone and within the city limits would attend 

McNeal Elementary School; and finally, students residing out- 

side the city limits in the north zone would attend the Rogers 

Elementary School. 

Two junior high schools serving grades 8-9 would be 

established with all children in those grades residing in the 

east zone attending the formerly white Canton High School (re- 

named Canton Junior High School), and children residing in 

the north and west zones attending the formerly black Rogers 

Junior High School. 

  

2/ br. Fortenberry testified that the zone boundary is 
in fact between Liberty and Union Streets. The map attached 
to defendants' motion for a new plan charts the line as cor- 

responding to Liberty Street. Practically, there is little 
difference. We understand that if the line is drawn between 
Liberty and Union a few black children and a few white chil- 

dren residing on the west side of Liberty Street will be in- 
cluded in the Canton Elementary Zone. The attached map charts 
the zone line on Liberty Street and corresponds to the map 
appended to defendants' motion for a new plan. 

 



  

One consolidated senior high school, grades 10-12 

6/ would be established at Rogers.— 

  

&/paciay composition of student bodies and other infor- 
mation relating to the HEW and school district plans are con- 
tained in exhibit A, hereto. 

 



  

ARGUMENT 
  

1 

DEFENDANTS' PROPOSAL WOULD NOT 
ELIMINATE THE BASIC AND ESSENTIAL 
FEATURES OF THE DUAL SCHOOL SYSTEM 
  

This is the third time since this Court's July, 1969 

onda 2h that defendants have sought approval for a plan of 

pupil assignment which relies upon Liberty Street as the key 

zone boundary dividing their proposed attendance end 2 

Liberty Street was the proposed dividing line under defend- 

ants' alternative of August, 1969 and again when defendants 

sought relief from this Court in January, 1970. Past efforts 

have failed. But defendants try again - this time distin- 

guishing previous efforts by their present willingness to ac- 

cept Rogers Senior High Scheol as a consolidated district- 

wide facility; but Liberty Street still marks the key bound- 

ary for pupil assignments for all grades, 1-9. 

  

2/u.3, v, Hinds County Bogzd of Bducation, 417 F.2d 852 
{5th Cir. 1969). Defendanis’' first errort or August, 1969, 
was advanced upon the submission of the HEW plan to the dis- 
trict court. However, when the government moved for delay, 
the school board withdrew its plan and joined in the govern- 
ment effort. After Alexander v. Holmes County, defendants 
submitted their geographic zoning alternative to this Court. 

    

  

2/1 ibercy Street is not the full boundary for the east 
zone. In order to include in the east zone those whites re- 
siding in the relatively new subdivision located in the nor- 
thern-most section of Canton (Wells Street, Willow Avenue, 
Oak Street), defendants have included part of Liberty Street 
in the east zone (see Map attached hereto and Tramscript, 
P- 

   



  

The special master records defendants' position 

with regard to the proposed zone line as follows: 

[Superintendent Fortenberry]. . . 
said that he personally started 
out with a ruler and compass to 
locate the geometric center of 
the three elementary school areas, 
taking into consideration the ca- 
pacity of schools, and the two 
most heavily trafficked streets 
[Highways 51 and 16-22] bisecting 
the city. The lines were drawn as 
straight as possible to avoid any 
appearance of gerrymandering. 

Findings of Fact and Recommendations, 
October 6, 19/0, vp. o~7. 
  

Although we do not concede that defendants' zone 

boundary avoids "any appearance of gerrymandering"? our po- 

sition turns upon a similar but different ground. Defendants 

have freely admitted that they have mot drawn lines so as to 

maximize desegregation. They merely insist that Liberty 

Street is a neutral line - race, they argue, was simply not 

a factor. That Liberty Street also divides the white and 

black communities of Canton is, they remarkably assert, co- 

incidental (Transcript, p. ). This threshold admission by 

defendants reveals the fatal weakness of their plan for this 

Court has held in numerous cases that historic dividing lines 

between the white and black communities are not neutral and 

  

2 see footnote 8, above. 

 



  

cannot form the bases for attendance areas. Defendants' duty 

10/ 
is to chart boundaries which promote integration.=—/ Mannings   

Vv, doard of Public Instruction of Hillsborouzh, Fla., 427 P.2d4 
  

874 (5th Cir. 1970); U.S. v. Indianola Municipal Separate School 
  

District, 410 F.2d 626 (5th Cir. 1969); Singleton v, Jackson 
  

  

Municipal Separate School District, 5th Cir. No. 29226, May 

5s 1970, 

  

The statistical results under defendants' proposal 

given the zone lines would be more than predictable. The 

overwhelming majority of black students of the district would 

be assigned to the formerly black schools with only a token 

number of white students: 

      

White Black % White 

McNeal (1-7) 36 596 6% 

Nichols (1-7) 126 1042 11% 

Rogers Ele. (1-7) 72 L67 13% 

Rogers Jr. High (8-9) 52 307 yo YT 

286 2412 

Total Number of 
Students in grades 
1-9 097 3104 

% of Total Number 
of Students, grades 
1-9, in black schools 28% 78% 

  

10/ The distinction between gerrymandering and a failure 
to draw lines to maximize integration is recognized in Singleton, 
May 5, 1970, ‘slip opinion, pp. 8-9. 

  

 



  

Thus, under defendants' proposal, grades 1-9: 787% 

of all black children would be assigned to formerly black 

schools; only 227 of the black children would be assigned to 

the formerly white Canton Elementary and Canton High Schools; 

72% of all white children in the district would be assigned 

to the formerly white facilities; and only 28% of the white 

children would be assigned to formerly black schools, 

The token integration achieved at the formerly 

black schools desalts from the assignment of whites residing 

outside the city of Canton. Since the record shows that ap- 

proximately 50 white students reside inside the city of 

Canton and west of Liberty Street it is clear that the re- 

maining 236 whites assigned to black schools reside in the 

rural parts of the school district and in the proposed north 

and west zones iu! 

‘This then is plaintiffs' objection to defendants’ 

proposal: the basic features of the past dual system and 

structure would remain in tact. The previously white schools 

would continue to serve the white students and community and 

the formerly black schools would continue to serve the black 

students and community. This results from the fact that the 

  

1/gee Motion to Supplement the Record; pp. 1-2 above 
and footnote 2, above. 

 



  

entire white community of Canton resides in defendants' pro- 

posed east zone and the entire black community resides in 

defendants' proposed north and west zones. Defendants' as- 

signment of a token number of whites residing outside of the 

city to the formerly black schools merely scratches the sur- 

face of the dual system and the discrimination that system 

pasures Sal 

This then, is not an effort by plaintiffs to achieve 

racial balance. Rather it is an effort to prevent defendants 

from implementing a plan which has the purpose and effect of 

creating racial imbalance and perpetuating the foundations of 

the dual system. 

The HEW team of educators acknowledged the resi- 

dential segregation of Canton. Instead of depending upon 

Liberty Street or a north-south traffic artery as a zone 

boundary, the HEW team selected a heavily travelled east- 

west artery, highway 22-16, thereby splitting the dual sys- 

tem asunder. And not only does the HEW plan offer the 

crucial advantage of eliminating the dual system "root and 

branch" but, as we will demonstrate in detail below, it is 

educationally, administratively and otherwise sound. 

  

12/ye note parenthetically, that it can be predicted 
with virtual certainty that the formerly white schools under 

defendants! plan will receive a disproportionate share of the 

educational resources of the school district. 

- 11 - 

 



  

11 

THE HEW PLAN OF DESEGREGATION 
IS EDUCATIONALLY, ADMINISTRA- 
TIVELY AND OTHERWISE SOUND   

History has repeated itself in school desegregation 

cases. Upon the Brown I decision defendant school districts 

advanced a myriad of arguments against "sudden integration"; 

they argued that a host of "educational and administrative" 

considerations demanded a snail's pace. Defendants convinced 

the Supreme Court and so under Brown II "deliberate speed"   

and "earliest practicable date" mired school desegregation 

cases for ten to fifteen years. Under the mask of "education- 

al considerations" school boards (elected not appointed) and 

school administrators (appointed by and responsive to the 

boards) convinced cautious judges that they were neither ed- 

ucators nor school administrators and that the admission of 

a handful of blacks into white schools under freedom of 

choice created herculean problems. They also argued that 

freedom of choice "was one of the most effective means. . . 

[for improving] education for all people that the World has 

  

ever ¥nowa. 14 

23 vost inony of Dr. Fortenberry, October 14, 1968, on 
plaintiffs' motion for Green relief. It is today widely 
recognized that school administrators arguing in support of 
delay and freedom of choice were responding not to education- 
al consideration but to white community opposition. 

- 12 - 

 



  

Green signalled round two. But this time the 

courts were ready and there is hardly an educational consid- 

eration now advanced by defendants of the Canton school dis- 

trict against the HEW plan which has not been reviewed, di~ 

gested and rejected by this Court in other school cases. Lest 

there be any doubt regarding the transparency of defendants’ 

claims we respond to each of their objections separately. 

The special master on pp. 4-6 of his findings and 

recommendations faithfully records Dr. Fortenberry's 14 ob- 

jections to the HEW plan. In fact, the reasons given over- 

lap and really involve only three arguments: first, defend- 

ants argue that the HEW plan ignores the "neighborhood school 

concept;" secondly, they argue that the HEW grade structure, 

3-3-1-5, is educationally and administratively unsound; and 

thirdly, they argue that the HEW plan creates transportation 

problems abl 

  

A bonus derarions numbered 3,4,8,9,13, listed in the 

special master's recommendations are all a part of the 

"neighborhood school" argument. Considerations 1,5,10,11, 

12, and 14 are all a part of defendants' attack relating to 

grade structures. Considerations 6 and 7 are the transpor- 

tation argument. Consideration 2, wherein the special mas- 

ter records that whites have withdrawn from the system and 

hence that the HEW plan has not resulted in a unitary sys- 

tem in a legal not an educational conclusion; this argument 

is considered later in this brief, pp. . 

HE 

 



  

A. The "neighborhood schools" of Canton. 
  

Although defendants argue that their proposal cre- 

ates "neighborhood schools" the record speaks conclusively 

to the contrary. Children would not be assigned to schools 

closest to home. The testimony of the superintendent and 

the maps in evidence demonstrate that under defendants' plan 

a substantial number of blacks are assigned to the proposed 

Rogers Junior High School (8-9) despite their proximity to 

the proposed Canton Junior High School (8-9). And there 

are a substantial number of whites assigned to Canton Ele- 

mentary School who reside closer to Nichols Elementary School. 

These facts are uncontradicted, (Transcript, pp. ). When 

asked by plaintiffs why these white and black children were 

not assigned to schools closest to home, the superintendent 

asserted that the proposed assignments were "in the best 

interest" of the children. He rotused to elaborate (Tran- 

seript, SpDe = Jo 

The school district's assertion that many children 

in grades 1-3 are required under the HEW plan to walk the 

width of the school district borders on the absurd. Under 

their plan children will have to walk 2-3 miles, or the 

length of the district to attend grades 1-7 at the Canton 

Elementary School. 

 



  

Defendants rejoin that although students do not at- 

tend schools located closest to their homes, nevertheless, 

their proposed zones are neighborhood oriented in that heavi- 

ly travelled traffic arteries require deviations from strict 

proximity assignments. This allegation is refuted by the 

record. Highway 16-22, the HEW zone line, is at least as 

heavily travelled as Liberty Street (Highway 51), (Transcript, 

PP. ). Defendants did not and cannot explain why whites 

residing in north Canton and in the east zone would find 

Highways 16-22 easier to negotiate when assigned to Canton 

Elementary School them Highway 51 when assigned to McNeal. 

In addition, Highway 51 contains both sidewalks and traffic 

signals; contrast Highway 16-22 which contains neither traf- 

fic signals nor sidewalks and is clearly the more dangerous 

crossing (Transcript, pp. ). Thus the assignment of whites 

in north Canton to McNeal Elementary School, as proposed by 

HEW, is more responsive to traffic hazards than the assign- 

ment of such children to Canton Elementary School as proposed 

by defendants. 

Defendant superintendent was specifically asked 

whether he would endorse a plan of pupil assignment which 

assigned all children to the schocls closest to home. Dr. 

Fortenberry answered that any deviation from the plan be- 

fore the special master would not receive his endorsement 

 



  

{ Transcript, p. Yai It is therefore manifestly clear that 

defendants plot and define neighborhoods not in terms of 

proximity of pupils to school but rather in terms of race: 

the east zone "neighborhood attendance zone" within the 

city of Canton, is marked by the first and last white resi- 

The HEW plan for grades 1-3 is basically a neigh- 

borhood assignment plan. Instead of dividing thé town of 

Canton by a north-south line, HEW divides it by an east-west 

line. And since Canton is approximately as long as it is 

wide and since Highway 16-22 is as travelled and is more 

hazardous than Highway 51 and Liberty Street, there can be 

no convincing objection to the HEW zone line. 

We submit further that even if defendants were ad- 

vancing a true neighborhood school assignment plan it would 

be based more upon the desires of the white community for 

  

33/ve note parenthetically that there is only one private 
school in Canton and that it enrolls the overwhelming majority 
of white students residing in the district. It is located in 
an abandoned tent factory in the black section of town. Evi- 
dently, the "neighborhood school" is negotiable and segrega- 
tion vital to the entire white community and the school ad- 
ministrators affiliated with the Canton Academy. 

This Court ought to realize that the only school dis- 
trictVrequesting neighborhood attendance plans are those which 
have a marked degree of residential segregation. There has 
been no rural district before this Court which ever found 
neighborhood schools important, much less vital, to a sound 
educational program. : 

EL TE 

 



  

segregation than on the basis of sound educational principles. 

The district court in Swann v. Charlotte-Mecklenburg Board of 
  

Education, 300 FP. Supp. 1352, 1369 (W. D. N. C., 1969), after 
  

hearing lengthy and elaborate testimony from a battery of 

educators representing all viewpoints of the profession, 

opined as follows: 

If this court were writing the philoso- 
phy of education, he would suggest that 
educators should concentrate on plan- 
ning schools as educational institutions 
rather than as neighborhood proprietor- 
ships. The neighborhood school concept 
may well be invalid for school adminis- 
trative purposes even without regard for 
racial problems. « . . 

When racial segregation was required by 
law nobody evoked the neighborhood school 
theory to permit black children to attend 
white schools close to where they lived. 
The values of the theory somehow were not 
recognized by the 1955 North Carolina 
General Assembly and still stands repud- 
jated in the Pupil Placement Act of 1955- 
WN The neighborhood school 
theory has no standing to override the 
Constitution. 

  

B. Defendants' objections to pairing of grades. 

Defendants' objections to the pairing of grades are 

not remarkable. Virtually every other school district which 

has come before this Court has entered similar objections. 

But the Court has read elaborate testimony on this question 

from many experts and has determined that the pairing of 

 



  

grades is educationally sound and an important tool for 

achieving unitary school systems. 

Thus, this Court has read the testimony of Dr. 

Forrest Murphy in Henry v. Clarksdale Municipal Separate 
  

School District, 5th Cir. No. 29165, August 12, 1970. Dr. 
  

Murphy was Dean of the University of Mississippi School of 

Education from 1946 to 1960; prior to 1946 he was Superin- 

tendent of the Greenville School System. There are few white 

principals and superintendents of this State who have not 

taken education courses under Dr. Murphy. In Clarksdale Dr. 
  

Murphy testified as follows: 

Q. Dr. Murphy, would you give us your 
view on the 6-3-3 grade structure, 
or alternatively, what you consider 
to be a sound educational structure 
for a school district? 

A. Well, there are many different pos- 
sible organizations of grade struc- 
ture which will provide for an edu- 
cational setting which would be ef- 
ficient. The 6-3-3 idea emerged 
about, I suppose, the mid-20s super- 
seding what had been a grade struc- 
ture of 8-4. There have been many 
combinations since tried, 4-4-4, 4-3- 
5, almost any combination of grades, 
so that it seems to me that the or- 
ganizational pattern is not as im- 
portant as how this pattern is ad- 
ministered and the instruction which 
is carried on within the pattern. 

  

  

  

  
  

  

  

Q.. Tell me if this is an accurate stale- 
ment of your position: virtually any 
grade structure is educationally 
sound if you have the facilities and 
develop the curriculum for it? 1s 
that an accurate statement? 

= 18 «7 

 



  

A, I would think so, yes. 

Only after reviewing and approving the pairing 

techniques many times did this Court speak definitively on 

the subject: 

  

In the conversion from dual school 
systems based on race to unitary 
school systems, the continued ex- 
istence of all-black or virtually 
all-black schools is unacceptable 
where reasonable alternatives exist. 
And it is clear that one acceptable 
way to achieve reasonable alterna- 
tives is by pairing schools. The 
tenor of our decisions is unmistak- 
able: where all-black or virtually 
all-black schools remain under a 
zoning plan, but it is practicable 
to desegregate some or all of the 
black schools by using the tool of 
pairing, the tool must be used. 
Thus we have required the pairing 
or clustering of schools in Dade 
County, Florida, in Pinellas County, 
Florida, in Hillsborough County, 
Florida, in Alachua County, Florida, 
in Clarksdale, Mississippi and in 
Jackson, Mississippi, to mention 
only a few instances. It is now 
clear beyond peradventure that the 
tool of school pairing - a most 
viable tool in the school desegre- 
gation process =~ must be embraced 
where it is practicable and deseg- 
regation cannot be achieved by other 
MEANS + + 

There are indeed many roads to Rome, 
and the pairing rcad must not be 
avoided like the plague simply be- 
cause it presents some problems to 
the school board and the community. 
We are not insensitive to the 
abrasions and dislocations that can 
sometimes be caused by the pairing



  

technique - and in every case the 
courts must strive to keep such 
problems to a minimum - but the 
pairing technique cannct be 
totally eschewed because it is 
not perfect. The Supreme Court 
has commanded courts and school 
boards to eliminate school segre- 
gation "root and branch.” . . . 
and to 40 it now. . + We must 
be responsive to this constitu- 
tional mandate. 

Allen v. Broward Cty., Florida, 
Sth Cir. No. 30032, August 13, 
1970, slip opinion, pp. 10-11 
(citations omitted). 

  

We think that even the firm holding of Allen under- 

states the case for the pairing of grades and that the alter- 

natives being reviewed for this school district make our 

point. 

There are educational advantages to pairing espe- 

cially when the past dual system, as in Canton, resulted in 

the duplication of facilities and equipment. Dr. Murphy 

testified in Clarksdale, supra, that when grades are consol-   

idated a school district can concentrate its resources for 

particular grades in fewer attendance centers. Similar tes- 

timony is before this Court in this case (Transcript, p. ; 

Thus, instead of distributing your elementary specialists and 

their equipment in four different attendance centers as de- 

fendants suggest in their proposal, the HEW plan concen- 

trates the system's educational resources for grades 1-3 in 

only two schools and its resources for grades 4-6 in only 

 



  

one school. Such testimony has also been reviewed in this 

Court in Singleton, supra. 
  

In Singleton, supra, this Court reviewed and ap-   

proved an HEW plan which undercut the Jackson School Dis- 

trict's traditional junior high school and which established 

several single grade attendance centers at the 9th and the 

10th grade level. Defendants responded that the single 

grade attendance center was educationally unsound and that 

the 7-9 junior high school is basic to all good school 

systems. But the testimony in that case from HEW educators 

and specialists in curricula development provided sufficient 

answer: 1) the junior high school, grades 7-9, is on the de- 

cline since children are maturing earlier and Seth waders 

have more in common with 10th graders than 8th graders; 7) 

the single grade attendance center is educationally sound 

since the key to a sound educational program lies in cur- 

‘ricula development not in grade structure and a diverse cur- 

riculum can. be developed in a single grade school. Canton 

defendants would ignore these educational considerations 

and would establish two junior high schools serving 

 



  

grades 30 12/ 

And this Court has read testimony against the "unit" 

school, i.e., one which contains all twelve grades. Such 

schools are presently found only in the poorest rural coun- 

ties and present what the educators refer to as an impossible 

arrangement due to the age span of students forced into a sin- 

gle attendance center. Defendants' plan would establish Rogers 

as a "unit" school in the face of these educational objections. 

We submit that when the final chapter is written 

this Court and school desegregation will be credited with 

eliminating much of what was unsound - from a strictly educa- 

tion administration standpoint - in defendant school districts. 

  

16/ rhe special master records defendants' assertion 
that their plan would "better utilize the existing facili- 
ties in assigning students in the grades for which the 
buildings were constructed arid equipped, whereas the HEW 
plan ignores this feature." This argument has merit only 
for the Canton High School which HEW converted to a 7th grade 
center; all other schools are presently serving the grades 
for which they were constructed. But even defendants argu- 
ment relating to Canton High School is seriously undercut by 
proof that the Rogers High School is presently using and can 
use much of the equipment and facilities located at Canton 
High, (Transcript, p. .). The two schools are less than 
one mile apart. In addition, the Canton High School equip- 
ment which is presently underutilized was designed for high 
school, not junior high school, students and defendants! 
alternative does not represent a substantial improvement 
over the HEW alternative, (Transcript, p. ; 

=
 

    

 



  

C. The Transportation Problems 
  

This school district has, under the dual system and 

through the present, established bus routes on the basis of 

geography and not upon the basis of schools attended. That 

is, every child along a given route is picked up, irrespective 

of the school he attends. t. Each bus thereafter stops at 

all schools in the system. In the past this has meant two 

stops for white buses (Canton Elementary and Canton High 

Schools). 

It is clear then that under the HEW plan all buses 

must stop at four schools; under the school district's pro- 

posal each bus would stop at either three or two schools. 

This means that many buses are forced to travel an additional 

10-30 minutes under the HEW plan. This is the sum total of 
  

defendants' objection to the HEW plan as it relates to 
    

transportation, (Transcript, p. }. 
  
  

  

17/0¢ course, the bus routes were superimposed upon the 

dual system. An examination of bus routes for the 1968-69 

school year, (see Motion to Supplement Record), reveals the 

extraordinary cost - in terms of education and dollars - of 

the dual system: two of the five white buses were operated 

at ¥ of capacity; many of the black buses were overcrowded; 

all white buses made only one trip daily; seven black buses 

were required to make two trips daily. 

 



  

We think it extraordinary that the HEW plan com- 

pletely eliminates the dual school system of Canton and 

suffers only from the fact that some buses must travel 10-30 

minutes longer than some buses travelled under the dual sys- 

tem. It is a plan which this Court should endorse as edu- 

cationally feasible and responsive to constitutional im- 

peratives. 

OE 

 



  

111 

The special master, in approving the school board 

plan, relied heavily upon his holding that there could be 

no unitary system when the whites withdraw from the public 

schools. He recommends that in such a school district vir- 

tually any plan will pass muster: 

On paper, the HEW plan may be unitary, 
but as implemented, it has resulted in 
a 99% black attendance with no promise 
of increased white attendance. The 
board hopes to regain some white at- 
tendance with its plan. 

(Findings of Fact and Recommendations, 
October 6, 1970, pp. 4-5.) 

In view of the minimal white attendance 
in this school system, there is a com- 
plete absence of any constitutional ob- 
jection to the board plan. In this 
absence, the Court recognizes the pre- 
rogative and ability of the school 
board to propose a plan administrative- 
ly, educationally and economically ac- 
ceptable to it, a position which the 
government has here endorsed and, under 
this standard, recommends the adoption 
of the plan as proposed by the school 
board. If is laudable if the plan at 
the same time accomplishes the return 
of white attendance, which is conjec- 
tural now. Should white attendance 
materially increase to the extent of 
causing a constitutionally objection- 
able racial imbalance in any school, 
the problem may then be dealt with. 
There is no such imbalance now. 

(Findings of Fact and Recommendations, 
October 6, 1970, p. 7.) 

25 - 

 



  

The special master's recommendation and argument is 

but a gloss of defendants' position in Monroe v. Board of 
  

Commissioners of Jackson, Tenn., 391 U.S. 450, 459 (1969). 
  

Instead of arguing that whites will withdraw and therefore a 

defective plan should be approved, the special master herein 

finds that whites have withdrawn and therefore any plan is 

acceptable. But Brown II and Monroe do not turn upon the 
  

adequacy of proof that whites will withdraw; rather the 

cases hold that such withdrawal threatened or accomplished 

is immaterial. 

This Court's responsibility is to assure the as- 

    

signment of eligible students to schools so as to eliminate 

the dual system "root and branch." The judiciary must de- 

termine the location of schools and the residences of eligi- 

ble pupils and assure pupil assignment on a non-racial basis. 

Any other approach would permit resegregation, or a return 

to the old patterns, to attract those students who disagree 

with constitutional principles and would undermine the hold- 

  

In addition, for this Court to accept an otherwise 

unconstitutional plan merely because whites have withdrawn 

from the schools would lead to the reopening of every school 

desegregation case which has witnessed withdrawal of students. 

All such school districts would press for a return to freedom 

 



  

of choice or some other equally defective plan. This is pre- 

cisely the foundation of the Canton echool district's request 

and the white community of Canton waits eagerly for an order 

returning their system to the cld pattern. 

 



  

CONCLUSION 
  

The defendants' alternative plan of desegregation 

would return the Canton school district to the basic features 

of its past dual school system and the existing HEW plan of 

desegregation is constitutionally and otherwise sound. That 

whites have withdrawn from the public schools cannot affect 

the court's inquiry regarding the adequacy of aliernztive 

plans. 

For the foregoing reasons this Court ought to enter 

an order rejecting the special master's recommendations and 

findings and denying defendants' Motion For Modification of 

Desegregation Plan. 

October 28, 1970 ' Respectfully submitted, 

dl —2N..9 ( 
WO os r—, ~~ on AJ 

MELVYN LEVENTHAL 
JOH Ne Shady 

538% North Farish Street 
Jackson, Mississippi 39202 

  

JACK GREENBERG 

JAMES NABRIT III 
NORMAN CHACHKIN 

Suite 2030 
10 Columbus Circle 

New York, New York 10019 

Counsel for Plaintiffs-Appellants 

“0 

 



  

CERTIFICATE OF SERVICE 
  

This is to certify that on this 29th day of 

October, 1970, I caused to be served by United States mail, 

postage prepaid, a copy of the foregoing Plaintiffs' Brief 

In Opposition To Special Master's Recommendations upon 

Honorable Joe R. Fancher, Post Office Box 245, Caen, Mis- 

sissippi 39046 and Honorable Daniel Rinzel, United States 

Department of Justice, Washington, D. C. 

  

‘Sa LN. [4] a -T AS NS) WAAAY 
    J Skid LEVENTHAL 

 



  

EXHIBIT A 
  

PROJECTED ENROLLMENTS 
UNDER HEW AND SCHOOL DISTRICT PLANS 
  

UNDER SCHOOL 
UNDER HEW PLAN DISTRICT PLAN 
    

  

Grades White Black Grades White Black 
    

  

  

Formerly Black 
Schools 
  

1. Nichols 
(Cameron St.) 
Elementary 
School 4-6 311 909 1-7 126 1042 

2. McNeal 
Elementary 
School 1-3 140 481 1-7 36 596 

3. Rogers 
Junior- 
Senior High 1-7 72 467 
School 8-32 575 1285 8-9 52 307 

10-12 322 640 

Formerly White 
Schools 
  

1. Canton 
Elementary 
School 1-3 191 677 1-7 528 403 

2. Canton High : 

School 7 109 320 §-0 183 289   
wi 30)