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ARD W. WADSWORTH 
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IN THE UNITED STATES COURT OF APPEALS 

FOR TOF FPIFPTH CIRCUIT 

  

Nos. 28030 & 28042 

  
Orewa 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Ve. 

HINDS COUNTY SCHOOL BOARD 

Defendants~Appellees. 

AND ALL CASES INCLUDED IN 

THE COURT'S ORDER OF 

JULY 3, 1969 AS SUPPLEMENTED 

  

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. . 

  

( 

Before BROWN, Chief Judge, THORNBERRY and MORGAN, Circuit Judges. 

PER CURIAM: 

AUG 28 , 1969) 

The United States Attorney General by motion filed 

with this Court on August 21, 1969, with parallel motions 

filed in the District 

Mississippi as of the 

this Court modify the 

and, on the permission 

Court for the Southern District of 

same date, requests, in effect, that 

mandate and orders heretofore entered, 

of this Court being granted, that the 

 



  

District Court do likewise, to extend the time for filing 

the terminal plans required in our order of July 3, 1969, 

to a date not later than December 1, 1969. 

Because of the relative shortness of time and 

in order to permit the appeals to be heard, Geoided and 

effective action to be taken by the opening of the school 

term September 1969-70, this Court expedited the initial 

appeal from the decision of the District Court entered in 

May 1969. By letter-directive from the Clerk, dated 

June 25, 196% we set the case for oral argument at 9:30 a.m. 

July 2 at New Orleans. 

Paragraph 7 of that letter-directive read as 

follows: 

: 7. To enable the Court to announce =a decision as 
quickly as possible after submission, the appellants 
.are requested to file in 15 copies a proposed opinion- 
order with definitive time table and provisions on the 
hypothesis that the appeal will be sustained, These 
should be modeled somewhat on the form used by the Court 
in its recent opinions in Hall, et al v, St, Helens 
Parish School Board, et al, No. 26450, May 28, 1969, 
and Davis, et al v, Board of School Commissioners of 
Mobile County, et al, No. 26886, June 3, 1959, When and 
as additional opinion-orders of this type are issued in 
other school desegregation eases, copies will be imme 

diately Iransmitied fo all counsel so that the parties 

  

  

  
  

  

  

can make appropriate comments during argument with respect 
to suggested modifications or changes in their proposed 
opinion-orders, 

The Court hopes that the appellants, private and 
government, can collaborate and submit a mutually agrec- 

able proposed opinion-order and it desires from the 
appellees contrary proposed orders covering separately 
(a) on the hypothesis that the decrees of the District 
Court will be affirmed, and (b) on the hypothesis that 

the appellants' motion and appeals will be sustained for 
reversal, i fie 

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In response to this request of the Court 

several proposed decrees were supplied by one or more 

of the parties, including a detailed proposed opinion- 

order submitted by the United States Attorney General 

on the eve of the hearing. As pointed out later, this 

proposed opinion-order prescribed a precise timetable. 

On the argument the Court heard from some 

18 counsel over a period of the entire day. On the fol- 

lowing day, July 3, 1969, the Court handed down its 

opinion-ordexr, which in its opening paragraph stated: 

"As questions of time present such 

urgency as we approach the beginning 

of the new school yan September 

1969-70, the Court requested in 

advance of argument that the parties 

submit proposed opinion-orders modeled 

after some of our recent school 

desegregation cases. We have drawn 

freely upon these proposed opinion-orders.," 

Both the "opinion" portion and, more specifically, 

the "order" portion of the opinion-order of July 3rd (see 

slip opinion p. 16 et seq) was substantially that proposed 

by the United States Attorney General in response to the 

Court's invitation (see paragraph 7 of letter-directive above). 

Except that the Court allowed approximately 10 additional days, 

the timetable schedule fixed by the Court was substantially that 

recommended by the United States Attorney General: 

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Government Date 

Paragraph Proposed Fixed 

of Order kequirement DEES min By Court 

3 Deadline for Aug. 1 Aung. 11 

Boards to 

file plan 

4 Deadline for Aug. 1 Aug. 11 

presenting 
agreed plans 

to Court 

5 eadline for Aug. 1 Aug. 11 

HEW filing 

plan 

6 Deadline for Aug. 13 Aug, 23 

Court hearings 

7 Deadline for Aug. 15 Aug. 27 
Court approval of 

plans 

Subsequently, on July 25, 1969 the Court on its own 

motion modified its July 3rd opinion~order by renumbering 

former paragraph 8 to be number 7 and striking from such order 

paragraphs 5, 6 and 7 to insert in lieu thereof new paragraphs 

5 and 6 with the following resulting timetable: 

      

Revised 

New Fa Date fixed 

Paragraph Reguirement By Court 

5 Deadline for Avg, 11 

HEW filing plan 

5 Deadline for Aug. 21 

filing objections 

to HEW plan 

5 Deadline for Sept. 1 

Court order 

approving plan 

 



  

wy pa ha 2 a ey PT ly Pl dF mn de ade = PN FATT, IO. CT C5 Thus it is shown that the timetable adopted was 

Tr Tey $-Ty om te Fo ye YS ’ y SEEN My A Yu vy de Ph | Sb oy fe on an alli if gv gm 2 substantially that recommended by the United States Attorney 

. " : ™ a 7 i rh TI A Pon 5 7 A seneral to be feasible and appropr: 

From the numerous other cases referred to in the 

letter—-directive, the Court was conscious that precise 

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° timetables were Consequently, in the course 

of the arguments heard on July 3, 1969, the 

specific questions to all counsel in the case concerning 

the proposed timetables. Questions were specifically 

directed to the Assistant Attorney General appearing on 

behalf of the Government. Rithoud gualification in 

response to precise inquiries he affirmed the Government's 

view that the timetable proposed by the Government was 

reasonable. And,with emphasis on the Attorney General's 

1 

proposed order that HEW should be called in to advise 
* 

0 Q ~ oy with the Boards and the Distric t. he A EEL vad that 

sufficient resources of the Executive Department would 

be made available to enable the Office of Education of 

the United States Department of Health, Education and 

Welfare to fulfill its role as specified in the order 

proposed by it and actually thereafter entered by the 

Court. 

Except for the entry of the modification order 

on July 25 which moved the deadline for the effective 

date of the plans from August 27 to September 1, 1269, 

 



  

no further action has been taken by this Court. Likewise, 

* v wc SR ° [ oh on " y 2 de rm or 20F ee the times fixed by the Court should be relaxed or extended 

RR EN a ” pg 
'D cime table was unat ta in 1a ble 

[3 The first information that the proposed and 

Ld adopted timetable was not appropriate came on August 

19, 1969 when Judge John R. Brown, Chief Judge and pre- 

~~ siding Judge of this panel, received by safehand courier br
 

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the communication from the Secretary of Health, Education 

and Welfare dated August 19, 1969, which in turn enclosed 

a copy of the Secretary's communication of like date to p=
. 

Judges Cox, Russell and Nixon. These matters are set 

forth in this Court's order (with Exhibits 1 and. 2) of 

August 20, 1969, copies of which are annexed as schedule A, 

As time was so. short, this Court by oral order 

communicated to the District Court granted full. leave 

to the District Court to receive, consider and hear the 

Government's motion for extension of time to December 1, 

1969. Upon the hearings to be held after notice to 

counsel representing all parties not later than Monday, 

August 25, it further requested the District Court to make 

its recommendations to the Court of Appeals. The District 

Court is to communicate its recomn ended decision and 

transmit a copy of the transcr "ipt of any evidence to each 

 



  

of the Judges at his home station. This Court further 

prescribed that in view of the.shortness of time, all 

counsel were required to forward directly to their home 

stations any memorandum briefs in support of or opposition j
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to the motion and recommended decision of the District 

Court so that it would be in the Judge's hands not later 

than 11:00 a.m. Wednesday, August 27. 

Following this the Court has received and con- 

sidered the findings of fact, conclusions of law and 

recommendations of the District Court, the record of the 

hearings, and the briefs and arguments of counsel, pro and 

con. On the basis of the matter set forth herein, the 

Court amends its order further as follows: 

 



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FIRST: 

The order of this Court dated July 3, 1969, as 

amended by order entered July 25, 1969 is hereby further 

renumbering Paragraph 7 to be Paragraph 9 and by 
amended by/deleting Paragraphs 3, 4, 5, and 6, and the 

following paragraphs are substituted therefor: 

3. The Board, in conjunction with the Office of 

Education, shall develop and present to the District Court 

on or before December 1, 1969, an acceptable plan of 

desegregation. 

4, If the Office of Education and a school board 

agree upon a plan of desegregation, it shall be presented 

to the Distyict Court on. or before December 1, 1969, The 

Court shall approve such plan, Wnkens within 15 days after 

submission to the Court any parties file any objections or 

proposed amendments thereto alleging that the plan, or any 

part thereof, does not conform to constitutional standards. 

5. If no agreement is reached, the Office of 

Education shall present its proposal for a plan for the 

school district to the District Court on or before 

December 1, 1969. The parties shall have 15 days from the 

date such a proposed plan is filed with the District Court 

to file objections or suggested amendments thereto. The 

District Court shall hold a hearing on the proposed plan 

and any objections and suggested amendments thereto, and 

within 15 days after the time for filing objections has 

expired shall by order approve a plan which shall conform 

to constitutional standards. 

 



  

6. The District Court shall enter Pindings of 

Fact and Conclusions of Law regarding the efficacy of any 

plan which is approved or ordered to disestablish the dual 

school system in question. Jurisdiction shall be retained, 

however, under the teaching of Green v. County School Board 

OF New Rent County, 1968, 391 U.S. 430, 439, 88 8.Ct. 1689, 

So dL. Bd.24 716, 724, and Raney v. Board of Education 

of Gould School District 1968, 391 U.S. 443, 449%, B8 8.Ct. 

1697, , 20 1..F4d.24 727, 732, until it is cleay that 

disestablishment has been achieved. 

7. ‘By October 1, 1969 the Board of Trustees in 

conjunction with the Office of Education shall develop a 

program to prepare its faculty and staff for the conversion 

from the dual to the unitary system. The Office of 

Education shall report to the Court on October 1, 196% 

with respect ta this program. If the Penna Calll to 2evelion 

a program, the Office of Education shall submit a program 

which the Court may approve unless meritorious objections 

supported by affidavit or other documentary evidence are 

made by any party. 

8. The Board shall not let any new contracts for 

the construction of any new facilities nor materially alter 

any existing facilities until a terminal Sian has been 

approved by the Court, except with the prior agreement of 

all parties or by order of the Court upon motion and hearing. 

The Board shall present its proposals to the parties and seek 

their consent at least 15 days prior to moving for Court approval. 

 



  

It is a condition of this extension of time that 

the plan as submitted and the plan as finally approved shall 

require significant action toward disestablishment of the 

dual school systems during the school year September 1969- 

June 1970. 

THIRD: 

In all other respects the order of this Court of 

July 3, 1969, as amended July 25, 1969, remains in full 

force and effect. 

 



  

! IN TBE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

Nos. 28030 & 28042 

  

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UNITED STATES OF AMERICA, 

Paint £6-Aomellant, 

Vv. 

HINDS COUNTY SCHOOL BOARD 

Defendanls-—-Appellees. h | 

AND ALL CASES INCLUDED IN 

THE COURT'S ORDER OF 

JULY 3, 196% AS SUPPLEMENTED 

  

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI °° 

  

( ’ 1969) 

Before PROVE, Chief Judye, THORNBERRY and MORGAN, Circuit Judges. 

PER CURIAM: 

On August 19, 1983, Judge got R. Brown 

received by safehand courier the soils communication 

of August 19, 1969 (marked annie 1) from the Secretary 

Of Heal th, Education and Welfare which in turn enclosed 

8 copy Of his communication of like date to Judges Cox, 

Russell and Nixon Gahan Exhibit 2). Presumably this 

was delivered directly to the Judges concerned because 

Scucovrs A 2 
   



  

the orders of thie Court and the District Court pursuant 

thereto call upon the Department of Health, Education and 

Welfare to take certain action. 

As the timetable heretofore fixed was substantially 

that recommended by the United States Attorney General in 

response to the request made by this Court to all parties 

prior to the argument of this case in July 1969, the Court, 

being of the opinion that it was essential to know at the 

earliest time the position of the parties as expressed in 

due order through their respective counsel, made lnguiry 

Of the Department of Justice. The Court was informed that 

motions were in the course of preparation for immediate 

filing in the District Court with appropriate similar motions 

in the Court of Appeals seeking the entry of orders granting 

the suggested extension to December 1, 1969, 

The Court has taken no action other than to 

record these facts. 

ENTER: August 20, 1969, 

 



THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE 

WASHINGTON, D.C. 2020 

August 19, 1969 

Dear Judge Brown: 

Enclosed is a copy of a letter which I have address 

to, and delivered to, Judges Cox, Russell, and Nixon 

by special courier. I have directed that the special 

courier deliver this copy to you at or nearly at the 

same time. 

Secretary 

Honorable John R. Brown 
Chief Judge, U. S. Court 

of Appeals, Fifth Circuit 
Houston, Texas 

Enclosure 

 



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IDENTICAL LETTER SENT THIS IMATE TO: Honorable Don M. Russell, Jr. 

Judge, U. S. District Court 
of the Southern District 

Honorable Walter IL. Nixon 
Judge, U. S. District Court 

of the Southern District 
Gulfport, Mississippi