Carr v. Montgomery County Board of Education Reply Brief of Petitioners

    I n  THE

^ t r p m n e  © H u rt  ni %  H u ffe d  S t a l l 's
October Term, 1975 

No. 75-476

A rlam  Carr, J r ., et al., 

and
P enelope A n n e  J e n k in s , et al.,

Petitioners,
vs.

M ontgomery C o u n ty  B oard op E ducation , et al.

on petitio n  eoe a w r it  oe certiorari to t h e  u n ited  states 
court oe appeals eor t h e  e ipt h  circuit

REPLY BRIEF OF PETITIONERS

J ack  G reenberg 
J am es M. N abrit , III 
D rew  S. D ays , III 
C harles S teph en  R alston  
M elvyn  L even th al  

10 Columbus Circle 
New York, New York 10019

S olomon S. S eay , Jr.
F red T. G ray

Gray, Seay and Langford 
352 Dexter Avenue 
Montgomery, Alabama 36104

H oward A. M andell

212 Washington Building 
P.O. Box 1904
Montgomery, Alabama 36103 

Attorneys for Petitioners



I k t h e

(Horn*! Hi tffp Inttefo States
October Term, 1975

No. 75-476

A klam Carr, Jh., et al., 

and

P enelope A n n e  J e n k in s , et al.,
Petitioners,

vs.

M ontgomery C o u n ty  B oard of E ducation , et al.

on petitio n  for a w r it  of certiorari to th e  u nited  states

COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF OF PETITIONERS

Introduction.

In their Brief in Opposition1 the respondents argue, in 
essence, that this Court should not grant a writ of cer­
tiorari herein for the following reasons:

1. The Board has continually acted in good faith in at­
tempting to meet its responsibility to desegregate;

1 References to the Brief in Opposition will be noted as (Res. 
Br. — ).



2

2. The trial judge was correct in finding that the remain­
ing all-black schools were not vestiges of the dual 
system;

3. Plans submitted by petitioners for achieving greater 
desegregation of the remaining one-race schools were 
impractical and designed with impermissible goals in 
mind (“racial balance” ) ; and that

4. The Board’s plan achieves meaningful desegregation 
in a fashion that does not unduly burden blacks.

Point two above has been dealt with at length in our brief 
in chief which establishes, we submit, that the remaining 
all-black elementaries have been all-black since a state- 
imposed dual system was sanctioned by law in Montgomery 
County.2 We would like to take this additional opportu­
nity, however, to address points one, three and four in 
order to correct certain material misstatements and in­
accuracies in the Brief in Opposition.

Argument

Petitioners do not seek to quarrel here over the question 
of whether the Montgomery County Board of Education 
has acted in good faith in carrying out its constitutional 
duty to dismantle its dual system of segregated schools. 
For “good faith” is simply not at issue in this litigation or 
in any school desegregation case, for that matter. The 
central issue turns, rather, upon the answers to factual 
questions, as ths Court has pointed out so often: Is the 
desegregation plan under consideration one “that promises 
realistically to work nowV’ Green v. County School Board 
of New Kent County, 391 U.S. 430, 439 (1968); does the 
plan “achieve the greatest possible degree of actual de­

2 Petition for a Writ of Certiorari at 12-21.



3

segregation?” Stvann v. Charlotte-Mecklenburg Bd. of 
Educ., 402 U.S. 1, 26 (1971).

As the most recent enrollment statistics for the 1975-76 
academic year in Montgomery County reflect, the answers 
to both the foregoing questions must be in the negative.3 
According to this report, 35,211 students are enrolled in 
the Montgomery County system for the current academic 
year, of which 17,029 are black and 18,182 are white. Out 
of the total black enrollment, 8484 are attending elementary 
schools. And of this number, 5011 or 59% are enrolled in 
facilities that are 85% or more black. The following chart 
indicates with more specificity the schools and black ratios 
which vividly attest to the continuing dual nature of 
elementary education in Montgomery County:

Black White
School Enrollment Enrollment % Black

Bellinger Hill 188 34 85
Booker Washington 234 3 99
Carver 393 9 98
Daisy Lawrence 363 5 99
Davis 678 47 94
Dunbar 296 38 89
Fews 643 1 99.9
Hayneville Road 713 22 97
Loveless 823 1 99.9
Paterson 516 21 97
Pintlala 164 13 93

Totals4 5011 193

3 A  copy of the Board’s “ Report to the Court”  of September 24.
1975 is attached hereto as an appendix for the Court’s benefit.

4 This total does not include elementary students attending 
Bellingrath which serves junior high school students as well since 
no breakdown by grade is given in the Report. The total black- 
white enrollment is 858 black and 232 white.



4

Plans submitted by petitioners were deficient, the Board 
asserts, first, because they relied upon non-contiguous pair­
ing and clustering and rezoning to achieve greater de­
segregation and, secondly because they were designed with 
an eye to achieving an impermissible racial balance among 
schools in the system. Non-contiguous pairing and cluster­
ing have been sanctioned by this Court as viable tools for 
achieving a unitary school system. Swann, supra. The 
fact that a system must alter grade structures in its schools 
from the traditional 1-6, 7-9, 10-12 arrangement to accom­
modate desegregation in this fashion is of no constitutional 
moment. Moreover, the Board undoubtedly intends in its 
brief to leave the false impression, as did the trial court 
in its opinion, that petitioners’ plans involved travel times 
and distances far out of line with transportation of stu­
dents prior to 1974 and under its own “desegregation plan” . 
The facts are otherwise. Under the plan approved by the 
district court in 1970, a significant number of students 
transported lived in so-called “periphery zones” in rural 
Montgomery County and were bused to schools in the City. 
During the 1973-74 academic year, the longest one-way 
bus-trip was 46 miles and a number of trips exceeded 30 
miles one way. Most of the children bused under this ar­
rangement traveled more than 10 miles one way; and the 
shortest distance any child traveled was 6 miles one way. 
Under the plan approved by the district court currently in 
force some black children are bused distances of nine and 
twelve miles each way.

In contrast, petitioners’ plans envisioned transportation 
times and distances often far below those previously or 
presently approved by the Board and district court. It 
must be remembered that of those all-black schools listed 
in the chart at page 3 supra, only Dunbar and Pintlala 
are located outside of the City of Montgomery. The City



5

of Montgomery at its furthest extremities is about 12 miles 
from west to east and 10 miles from north to south. Move­
ment from point-to-point in any direction within the city 
limits is facilitated by the existence of two major freeways. 
It has no major natural or man-made obstacles to trans­
portation within its limits. Given these facts, the following 
times and distances in petitioners’ plans for desegregating 
the city elementary schools are not surprising:

1. Under the plan of petitioners Carr, et ah, the longest 
distance and time between paired schools would have 
been 10 miles and 30 minutes, involving two schools 
at the extreme opposite ends of the City. Other pair­
ings would have required less travel;

2. Under the plans of petitioners Jenkins, et al. the 
longest route within the city would have been 7.3 miles 
and 18 minutes. And, if certain satellite zone features 
of the plans had been discarded (an option available 
to the trial court), routes would have rarely exceeded 
5 miles. The average travel distance under these 
plans would have been 4-5 miles.

In light of these figures the Board’s reliance upon North- 
cross v. Board of Education of Memphis, 489 F.2d 15 (6th 
Cir. 1973), cert, denied, 416 U.S. 962 (1974) seems ill- 
founded. There the lower courts rejected as unreasonable 
a plan that would have transported students between 46-60 
minutes one way. As in Swann v. Charlotte-MecJclenburg 
Board of Education, 402 U.S. 1 (1971), where this Court 
approved student transportation averaging about seven 
miles and taking not over 35 minutes, Id. at 30, transporta­
tion times and distances in petitioners’ plans fell well 
within the bounds of previous busing arrangements and 
often fell below the Board’s projections under its own plan. 
The Board has, nevertheless, joined the trial court in ig­



6

noring this Court’s directive in Swann to evaluate trans­
portation plans in terms of whether “the time or distance 
of travel is so great as to either risk the health of the 
children or significantly impinge on the education process.” 
The district court’s bald assertion that pairings and 
clusterings “would substantially increase the time and dis­
tance that students would have to travel” 5 and emphasis 
upon the number of students to be transported under the 
respective plans, which the Board echoes in its brief,6 are 
plainly attempts to avoid the facts vindicating petitioners’ 
position.

It is also suggested by the Board that petitioners’ plans 
were constitutionally defective because they sought to 
achieve racial balance to the detriment of all other reason­
able considerations. In actuality, petitioners’ plans did 
no more than rely upon this Court’s approval in Swann, 
supra of the use of system-wide ratios as starting points 
in any reasonable attempt to desegregate a dual system. 
Racial balance was not the objective of nor was it the result 
achieved by petitioners’ plans. In the City of Montgomery, 
racial ratios under the plan of petitioners Carr, et al. 
ranged from 24% black to 66% black. And under the plans 
of petitioners Jenkins, et al. black percentages were 84% 
to 27% black and 100% to 7% black respectively. The 
Board’s brief itself establishes that the “racial balance” 
charge leveled at petitioners’ plans is spurious by ac­
knowledging that some all-black schools and racially- 
identifiable schools were left under all Submissions.7 Hence, 
on yet another issue, the district court and Board have 
characterized petitioners’ plans in a fashion at odds with 
the factual record.

5 Appendix to Petition p. 16a-17a.
6 Res. Br. 30.
7 Res. Br. 36, 40, 47.



7

The Board has also attempted to convey the impression 
that its desegregated plan does not impose undue burden 
upon blacks nor transport blacks disproportionately. It 
does so by pointing out that “2401 white children [are] 
transported to schools which are predominantly black or 
would be predominantly black without the white transporta­
tion involved,” 8 that several formerly all black schools will 
become predominantly white,” 9 and that “no white child 
is transported past a majority black school to a majority 
white school.” 10 We would respectfully submit that the 
Board’s references are entirely to transportation or as­
signment of white junior high or senior high students. It 
remains true, nevertheless, that no white elementary child 
is bused to increase desegregation and that whites bused 
as part of the plan are sent to majority white schools, often 
by-passing closer majority black schools in transit.11 The 
Board plan, in fact, envisioned a decrease in elementary 
school transportation. In 1973-74, the Board transported 
5,388 elementary students of which 3,177 or 59% were 
black. Under the plan presently in effect, 4,465 elementary 
students were to be transported, of which 3,157 or 71% 
were to be black. As a result, 903 fewer white students and 
only 2 fewer black students were to be bused in 1974-75 as 
compared to 1973-74 figures.12 That the transportation of

8 Res. Br. 19.
9 Res. Br. 22.
10 Id.
11 For example, 130 black children and 14 white children who 

previously attended Chilton, a school closed under the Board’s 
plan, are being transported four and five miles to Head Elemen­
tary and Dalraida Elementary, majority-white schools even though 
Bellinger Hill, Booker Washington, Fews, Loveless and Daisy 
Lawrence are within walking distance of the Chilton zone.

12 Much of the reduction in white elementary student transpor­
tation can be attributed to the construction of two new elementa- 
ries, Vaughn Road and Eastern By-Pass (now Dozier), at the 
eastern edge of Montgomery City.



solely blacks for purposes of elementary desegregation was 
a consequence of the Board’s concern for “white flight” 
was not, contrary to the assertion in its brief, a rationale 
of petitioners’ creation. The testimony quoted below of Mr. 
Silas Garrett, Superintendent of Schools for the Mont­
gomery system, on this point is dispositive, we submit:

The Court: His question is why doesn’t the Board 
propose to transport white students to predominantly 
black [elementary] schools? He says under your plan, 
there is [sic] no instances where you do that.

Witness: Oh.
The Court: Is there a reason? That is his question.
Witness: Yes, sir: Our reason is this; that we do 

not believe that white children so assigned would at­
tend in any substantial numbers. And, here again, it 
would, in our opinion, be an operation in futility, and 
it would not further the overall desegregation of this 
school system.13

In order to avoid potential white flight, therefore, the 
Board’s plan was designed such that only one elementary 
school out of 33 was projected to be between 40-60% white; 
twenty schools were projected to be between 60-80% and 
eleven schools were projected to be between 0-19% white. 
The pattern is one of arranging for the maintenance of 
60% or better white schools or virtually all-black schools. 
In sum, the Board, not petitioners, was concerned about 
“racial balance”—to avoid anticipated white flight—in 
structuring its plan.14

13 Tr. p. 240 (April 24, 1974 hearing). Similar testimony oc­
curs at Tr. pp. 251-52 with respect to the potential for “a white 
exodus.”

14 Cf. Brewer v. School Board of City of Norfolk, 434 F.2d 408, 
411 (4th Cir. 1970) cert, denied, 399 U.S. 929 (1970).



9

CONCLUSION

For the foregoing reasons, petitioners respectfully sub­
mit that a writ of certiorari should be granted in this 
cause.

Respectfully submitted,

J ack  Greenberg 
J am es M. N abrit , III 
D rew  S. D ays , III 
C harles S tephen - R alston  
M elvyn  L even th al

10 Columbus Circle 
New York, New York 10019

S olomon S. Seay, Jr.
F red T. G ray

Gray, Seay and Langford 
352 Dexter Avenue 
Montgomery, Alabama 36104

H oward A. M andell
212 Washington Building 
P.O. Box 1904
Montgomery, Alabama 36103 

Attorneys for Petitioners



A P P E N D I X



EXHIBIT "A

MONTGOMERY PUBLIC SCHOOLS 
M ontgom ery, Alabama

A REPORT TO THE FEDERAL COURT 
Septem ber 1 5 , 1975

SCHOOL
NORMAL
CAPACITY

ACTUAL ENROLLMENT 
BLACK WHITE

NO. FACULTY 
BLACK WHITE

B aldw in 780 457 54 11 17
Bear 630 183 346 0 14
B e l l in g e r  H i l l 300 188 34 5 6
B e l l in g r a t h 1 ,2 3 0 * 853 232 17 26
B ooker W ashington 420 234 3 6 6
C a p ito l  H e ig h ts  E le . 570 128 191 6 8
C a p ito l  H e ig h ts  J r . 1 ,2 0 0 314 662 17 23
C arver E le . 780 393 9 8 9
C arver J r . 660 350 547 16 18
C arver S r . 1 ,1 0 0 * * 773 645 24 41
Catoma 240 52 125 3 4
Chisholm 810 331 478 15 19
C lo v e r d a le 1 ,1 7 0 445 832 17 30
Crump 990 219 775 16 22
D aisy  Lawrence 720 363 5 8 9
Da I r a id a 630 116 389 9 13
Dannel.ly 780 220 495 11 17
D avis 630 678 47 14 17
D oz ie r 750 120 712 15 17
Dunbar 660 296 38 8 9
lew s 720 643 1 14 15
F low ers 780 150 522 11 16
Floyd 1 ,3 5 0 * 416 695 16 27
F o re s t  Avenue 480 120 248 8 10
G eorg ia  W ashington 1 ,2 9 0 428 1 ,0 1 0 21 34
Goodvyn 1 ,5 0 0 586 902 22 32
H a rr ison 750 283 393 13 16
H a y n e v ille  Road 1 ,2 0 0 713 22 13 18
Head 690 107 481 10 15
H igh lan d  Avenue . 390 106 211 5 9
•Highland Cardens 1 ,0 2 0 287 485 15 18
H ouston K i l l  J r . 570 263 350 10 16
J e f f e r s o n  D avis 2 ,1 0 0 832 1 ,4 8 6 37 62
Johnson 660 123 484 9 16
L a n ier 2 ,2 5 0 737 739 23 46
Lee 2 ,3 0 0 889 1 ,6 1 0 36 73
L o v e le s s 1 ,1 4 0 823 1 16 20
M acM illan 390 205 69 6 7
M cIn tyre .1 ,5 0 0 802 20 15 16
M ontgomery Co. High* 570 392 55 8 17
M orningview 600 99 445 10 14
P a terson 810 516 21 11 14
P e te rso n 600 119 320 8 11
P in c la la 270 164 13 3 6
South lawn 840 314 375 13 14
■‘aughn Road 750 194 608 14 19

* Combined e lem en ta ry  
••’•'•Six rooms n o t  nceclei

and ju n io r  h igh  
■l in  the e lem en tary program  are used by the s e n io r  h igh s c h o o l



MEILEN PRESS IN C  —  N. Y. C 219