Evenwel v. Abbott Brief of Amicus Curiae in Support of Appellees

    IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

UNITED STATES OF AMERICA, 

Plaintiff- Appellant 

Vs. 

LAWRENCE COUNTY SCHOOL 

DISTRICT, et al., 

Defendants- Appellees 

Court of Appeals 

Nos. 28030 and 
28042 

D. C. Civil Action 

No. 2216(H) 

BRIEF OF DEFENDANTS 
  

Post Office Box 1070 

The 301 West Pine Building 

Hattiesburg, Mississippi 39401 

Due Date: May 1, 1970 

JAMES S, GEORGE 

R. W, HEIDELBERG 

ROBERT G. TURNAGE 

Attorneys for Defendants 

 



  

TABLE OF CONTENTS 
  

TABLE OF CONTENTS 

STATEMENT OF THE CASE . 

BURDEN OF PROOF. 

COMPARISON OF PLANS FOR DESEGREGATION 

A. HEW Plan, 

B. The Substitute Plan . 

I. THE SUBSTITUTE PLAN HAS EFFECTIVELY 

ENDED THE DUAL SCHOOL SYSTEM; IT HAS 

EFFECTIVELY DESEGREGATED ALL LAWRENCE 

COUNTY SCHOOLS AND IT HAS EFFECTIVELY 
ESTABLISHED A UNITARY SCHOOL SYSTEM. 

II. THERE WERE SOUND EDUCATIONAL REASONS 

FOR ADOPTING THE SUBSTITUTE PLAN. 

A. Original HEW Plan Contained Glaring 

H. 

Errors and was Impractical and Unrealistic 

Transportation. 

Maximum Use of Facilities . 

Closer Supervision by Principals and Teachers . 

Three-fold Opportunity for Athletic, Extra- 

curricular and Leadership Training 

Local Schools Improve Relations . 

New Hebron and Topeka- Tilton Schools 

Offer Quality Education. 

The Neighborhoos School . 

III. PLAINTIFFS-INTERVENERS' OBJECTIONS 

ARE WITHOUT MERIT. 

CONCLUSIONS AND REQUESTS FOR 

FINDINGS OF FACT AND RECOMMENDATIONS . 

Requested Findings of Fact . 

Requested Recommendation . 

CERTIFICATE OF SERVICE . 

  

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STATEMENT OF THE CASE 
  

The United States Court of Appeals entered its order 

herein November 7, 1969, applicable to thirty school districts in the 

Southern District of Mississippi, including Lawrence County School 

District, which ordered that effective December 31, 1969, each 

school district, with certain exceptions stated in the order, place into 

effect the permanent plans, as distinguished from the interim plans, 

for desegregation of the school district prepared by the Office of 

Education, Department of Health Education & Welfare (HEW). Specific 

modifications of the HEW plans were incorporated in the order with respect 

to the South Pike, Madison County, Wilkinson County, North Pike County 

and Quitman Consolidated School Districts. The order further provided 

that desegregation plans may be modified by the Court through procedures 

set forth therein, that is, Honorable Dan M. Russell, Jr., United States 

District Judge, was designated to receive suggested modifications, 

provided however that no modification may be submitted to Judge Russell 

before March 1, 1970, and any such suggestion shall contemplate an 

effective date of September, 1970, and Judge Russell was directed to 

conduct evidentary hearings and make findings of fact and recommendations 

to be referred to the Court of Appeals for review. Further, no amendment 

or modification to any plan shall become effective without the order of the 

Court of Appeals. 

In the pre-order conference, Honorable Griffin B. Bell, 

United States Circuit Judge, advised counsel that the Court would, during 

the following week only, entertain applications for modifications requiring 

immediate action, before the December 31, 1969, effective date, provided 

that any modification must first be approved by the Department of 

Justice. Pursuant to this announced procedure, the defendant school 

district proposed to the Department of Justice and HEW a modification 

 



  

of the HEW plan and obtained the approval both of HEW and the Justice 

Department. Thereupon, a motion incorporating the agreed modification 

was filed by the defendant school district and an agreed order, signed by 

attorneys for the Justice Department and the defendant school district, 

was submitted to the Court of Appeals and the order was granted by the 

Court of Appeals November 26, 1969, which modified the HEW plan to the 

extent set forth in the motion and order and further ordered that all other 

provisions of the HEW plan be placed into effect December 31, 1969, as 

previously ordered by order entered November 7, 1969. The plan of 

desegregation directed by the Court of Appeals by order of November 7, 

1969; as modified by the Court of Appeals November 26, 1969, was placed 

into effect by the defendant school district on December 31, 1969, as 

directed. 

For convenience herein, the permanent HEW plan, originally 

ordered by the Court of Appeals November 7, 1969, shall be referred to 

herein as ''the original HEW plan'' and the modification approved by order 

of November 26, 1969, shall be referred to herein as ''the modified plan" 

or ''the substitute plan." 

After the modified plan was placed into effect by the 

defendant school district, in accordance with the orders of the Court of 

Appeals of November 7 and 26, 1969, the N.A. A. C.P. Legal and 

Educational Defense Fund, Inc., presumably on its own behalf as amicus 

curiae and on behalf of the private parties who have been permitted to 

intervene herein as plaintiffs-interveners, filed herein on January 7, 

1970, a motion for supplemental relief seeking an order of the Court of 

Appeals that: the substitute plan be tested in a evidentary hearing before 

Honorable Dan M. Russell, Jr. in accordance with the order of November 

7, 1969; the burden of proof be placed upon the defendants to demonstrate that 

 



  

the substitute plan has been promulgated and devised for educational 

purposes only; and in the absence of such a showing by the defendants, 

the HEW plan be reinstated with implementation to be effective by 

September of 1970. 

Pursuant to that motion and without notice to the defendants, 

the Court of Appeals did, on January 12, 1970, enter an order allowing 

the inteverners to intervene as parties plaintiff, ordering the substitute 

plan to be tested by evidentary hearing, placing the burden of proof in 

the hearing on the defendants to demonstrate that the substitute plan was 

devised and promulgated for educational purposes only and ordering that, 

in the absence of such a showing by the defendants, the HEW plan shall 

be reinstated. 

Pursuant to the Court of Appeals order of January 12, 1970, 

Honorable Dan M. Russell, Jr., United States District Judge, ordered 

the evidentary hearing to begin April 20, 1970, in the Federal Courthouse 

in Hattiesburg, Mississippi, and directing that responses be filed with 

the Court by April 15, 1970. Response was duly filed by the United States 

of America, advising the Court that the desegregation plan presently 

employed by the defendant school district (the substitute plan) has effectively 

desegregated the past dual school system and that the interest of the United 

States is satisfied when it has been shown that the school district has 

developed and implemented an adequate system. A response was filed 

by the defendant school district which denied most of the material allegations 

of the motion for supplementary relief and set forth affirmatively the sound 

educational reasons for the adoption of the substitute plan,which reply was 

supported by affidavits of the president of the Lawrence County Board of 

Education (Lawrence County School Board of Trustees), the Lawrence 

 



  

County Superintendent of Education, and the principals of New Hebron 

High School and Topeka-Tilton High School. 

The evidentary hearing was conducted by the District Judge 

on April 20 and 21, 1970, and the parties given until May 1, 1970, to 

file simultaneous briefs. This brief is submitted on behalf of the 

defendants. 

BURDEN OF PROOF 
  

At the outset of the evidentary hearing, on April 20, 1970, 

the defendant school district dictated an oral motion into the record 

addressed to the District Judge, if he had the power to act thereon, or, 

if not, addressed to the Court of Appeals, to modify the Court of Appeals’ 

order of January 12, 1970, so as to place the burden of proof in the hearing 

upon the movant, N. A. A.C. P. Legal and Educational Defense Fund, Inc. 

and the plaintiff-interveners, rather than upon the defendant school district. 

The District Judge announced that he had no power to modify the order of 

January 12, 1970, which had been entered by the Court of Appeals but 

that the motion would be preserved in the record and referred to the Court 

of Appeals for appropriate action. Inasmuch as it is not certain at this 

writing whether this brief will be forwarded to the Court of Appeals for 

consideration along with Judge Russell's findings of fact and recommendations, 

there is included herein this brief section dealing with burden of proof. 

It is respectfully suggested that that part of the order of 

January 12, 1970, placing the burden of proof upon the defendant school 

district was included through inadvertence or perhaps misaprehension as 

to the nature of the modification referred to in the plaintiff-intervener's 

motion for supplemental relief. The Court of Appeals' order of 

November 26, 1969, was entered before the desegregation plan was to 

take effect and the result of that modification, entered by the Court of 

Appeals itself, was precisely the same as if it had been set forth in the 

 



  

original order of November 7, 1969, as one of the exceptions contained 

therein similar to those specifically provided in that order with respect 

to the South Pike, Madison County, Wilkinson County, North Pike County, 

and Quitman Consolidated School District. These exceptions were 

originally incorporated in the order of November 7, 1969, and as best 

the defendant has been able to determine, none of them were subjected to 

an evidentary hearing nor were any of those school districts called upon 

to bear the burden of proving that the Court of Appeals properly modified 

the HEW plan in its inception. It is submitted that the modification 

approved by he Court of Appeals November 26, 1969, was not a modifi- 

cation of the nature contemplated by the order of November 7, 1969, 

which directed that suggested modifications be submitted to Judge Russell 

only after March 1, 1970. Therefore, it is not appropriate in this case 

to place the burden of proof pos the defendant school district. The 

present posture of the case is that the defendant school district has fully 

complied with the orders of the Court of Appeals and it is not now asking 

the Court to take any action whatsoever or to make any further modifi- 

cations of its order. The Court is thus faced with the anomalous situation 

that under the order of January 12, 1970, the burden of proof has been 

placed upon the defendant school district to support the basic order of 

the Court of Appeals which has already been entered and is presently 

being complied with and implemented. On the contrary, the movants, 

plaintiffs-interveners, are the parties who seek affirmative action of 

this Court and it is they who seek modification of the order. Consequently, 

the burden of proof rightfully should be placed upon those movants, not 

upon the defendant. 

The above position is supported and borne out by action 

taken by the Court in other cases with which this one was consolidated. 

For example, reference has already been made to the fact that evidentary 

hearings were not ordered with respect to the specific exceptions, or 

 



  

modifications, contained in the Court's order of November 7, 

1969. The only other case where evidentary hearings have been 

completed, Judge Russell's recommendations made, and the Court 

of Appeals has acted thereon, is the Kemper County School Board 

Matter. In that case, the Court of Appeals entered an order January 2, 

1970, granting a motion of the Kemper County School District to modify 

the order of November 7, 1969. The Court of Appeals' order of January 

2, 1970, specifically provided that it was entered without prejudice to 

the defendant seeking the same or further relief in that Court or before 

Honorable Dan M. Russell, Jr., United States District Judge, pursuant 

to the procedure provided in the order of November 7, 1969. Thereafter, 

the Kemper County School Board filed a further motion for hearing and 

supplemental relief and it was pursuant to this second motion that the 

matter was referred to Judge Russell to conduct an evidentary hearing. 

Thus, as we understand that case, the hearing conducted before Judge 

Russell was pursuant to a motion of the school board for further modifi- 

cation, whereas in the instant case the hearing was held pursuant to a 

motion of the plaintiffs-interveners for modification. Clearly, the burden 

of proof should be placed upon the parties seeking affirmative relief from 

a lawful order of the Court of Appeals. Therefore, the Court of Appeals 

is respectfully requested to modify its order of January 12, 1970, so as 

to place the burden of proof upon the plaintiffs-interveners, and to review 

the evidence in that light. 

Nevertheless, pursuant to the order of the Court, the 

defendant school district moved forward in the evidentary hearing and 

clearly established beyond all question that the substitute plan was 

adopted solely for educational purposes, that its plan was and is educationally 

sound, and, consequently, the defendant clearly met the burden of proof 

which has been placed upon it. The remainder of this brief shall be de- 

voted that proposition. 

 



  

COMPARISON OF PLANS FOR 

DESEGREGATION 
  

Before proceeding to discuss the evidence supporting 

the substitute plan, it will be beneficial to review and clearly summarize 

the essential differences between the HEW plan and the substitute plan. 

Prior to the effectuation of either plan, Lawrence County 

School District had been operating under a freedom of choice plan. There 

were seven schools in the district: 

1. Monticello High School composed of Grades 8 through 

12 for students residing in the Monticello and Silver Creek areas. This 

school had an all white faculty and a predominantly white student body. 

2. McCullough School consisting of Grades 1 through 12, 

located in Monticello. This school had an all Negro faculty and an all 

Negro student body, with students being drawn from the entire county 

(except for those attending Beulah Williams School in the Silver Creek 

area). 

3. Monticello Elementary School consisting of Grades 1 

through 7 for students residing in the Monticello area. This school had 

an all white faculty and a predominantly white student body. 

4. New Hebron School consisting of Grades 1 through 12 

for students residing in the New Hebron area. This school had an all 

white faculty and all white student body. 

5. Topeka- Tilton School consiting of Grades 1 through 12 

for students residing in the Topeka- Tilton area. This school had an 

all white faculty and an all white student body. 

6. Silver Creek School consisting of Grades 1 through 8 

for students residing in the Silver Creek area. This school had an all 

white faculty and an all white student body. 

7. Beulah Williams School consisting of Grades 1 through 8 

for students residing in the Silver Creek area. This school had an all 

 



  

Negro faculty and an all Negro student body. 

With respect to the Silver Creek area, the defendant school 

district adopted the HEW plan which provided for pairing of Beulah 

Williams and Silver Creek Schools. Beulah Williams School now consists 

of Grades 1 through 4 attended by all Negro and White students in Grades 

1 through 4 residing in the Silver Creek area. Silver Creek School now 

consists of Grades 5 through 8 attended by all Negro and White students 

in Grades 5 through 8 residing in the Silver Creek area. Thus, four 

grades were transferred from each school to the other. There is no issue 

with respect to these schools, inasmuch as the HEW plan was adopted and 

implemented by the defendant school district. The remainder of the brief, 

therefore, shall be devoted to the other schools listed above. 

A. HEW Plan 
  

The original HEW plan for the Monticello, Topeka- Tilton 

and New Hebron areas provided: 

(a) McCullough School would consist of Grades 9 through 12 

for all Negro and White students residing in the county. 

(b) Monticello School (formerly Monticello High School) 

would consist of Grades 7 - 8 for all Negro and White students in Grade 

7 - 8 residing in the Monticello area. 

(c) Monticello Elementary School would consist of Grades 1 

through 6 for all Negro and White students in Grades 1 - 6 residing in the 

Monticello area. 

(d) Topeka-Tilton School would consist of Grades 1 through 

8 for all Negro and White students in Grades 1 through 8 residing in the 

Topeka- Tilton area.(This school would no longer serve as a high school.) 

(e) New Hebron school would consist of Grades 1 through 8 

for all Negro and White students in Grades 1 through 8 residing in the 

New Hebron area. (This school would no longer be used as a high school.) 

 



  

B. The Substitute Plan 
  

The modified plan or substitute plan, proposed by the 

defendant school district and approved by HEW and the Justice Depart- 

ment, and approved by the Court of Appeals by order of November 26, 

1969, modifies the HEW original plan only in the following particulars: 

(a) Monticello High School would consist of Grades 10 

through 12 for all Negro and White students in Grades 10 through 12 

residing in the Monticello and Silver Creek areas. 

(b) McCullough School would consist of Grades 5 through 

9 for all Negro and White students in Grades 5 through 9 residing in the 

Monticello area and all Negro and White students in Grade 9 residing 

in the Silver Creek area. 

(c) Monticello Elementary School would consist of Grades 1 

through 4 for all Negro and White students in Grades 1 through 4 residing 

in the Monticello area. 

v (d) Topeka-Tilton School would consist of Grades 1 through 

12 for all Negro and White students residing in the Topeka- Tilton area. 

(e) New Hebron School would consist of Grades 1 through 

12 for all Negro and White students residing in the New Hebron area. 

(f) In all other respects the original HEW plan will remain 

in full force and effect. 

In summary, therefore, the essential difference between 

the original HEW plan and the substitute plan is that (a) the original HEW 

plan would require three high schools to be closed, to wit: Monticello 

High School, Topeka-Tilton High School and New Hebron High School, 

and all high school students in the county would be required to attend 

McCullough High School in Monticello, whereas (b) the substitute plan 

already approved by the Court of Appeals would maintain the existing 

high schools at Topeka- Tilton and New Hebron, to serve students residing 

 



  

in those respective areas, and utilize the facilities at Monticello 

High School for the third high school serving the remaining students in 

the Monticello-Silver Creek area. All other differences in grade 

structuring between the two plans result from this basic essential difference. 

I. THE SUBSTITUTE PLAN HAS 

EFFECTIVELY ENDED THE DUAL SCHOOL SYSTEM; 

IT HAS EFFECTIVELY DESEGREGATED ALL 

LAWRENCE COUNTY SCHOOLS AND IT HAS 

EFFECTIVELY ESTABLISHED A UNITARY SCHOOL SYSTEM 
  

The requirements of the Supreme Court in this casel 

and the order of the Court of Appeals entered November 7, 1969, was 

that the defendant school districts may no longer operate a dual system 

based on race or color but the district is to operate henceforth as a 

unitary school system within which no person is effectively excluded 

from any school because of race or color. There can be no doubt what- 

soever that this mandate has been accomplished by the defendant school 

district. A unitary school system has been established and every school 

in the system is fully integrated as to student body, faculty, staff, trans- 

portation, facilities and all of the various extracurricular activities such 

as athletics, band, chorus, student council and other student activities. 

Today, in Lawrence County, there exists ''an integrated, 

unitary school system in which there are no Negro schools and no white 

schools~--just schools. "a 

That the substitute plan of the defendant school district has 

effectively desegregated the past dual school system is clearly supported 

by the United States, plaintiff in this action. Its response to the motion 

for supplemental relief, filed herein on or about April 15, 1970, states 

without equivocation: 

"The desegregation plan presently employed by the 

defendant school district has effectively desegregated the past 

dual school system. The interest of the United States is satisfied 

when it has been shown that the school district has developed and 

implemented an adequate system." 

  

1 Atexander v. Holmes County Board of Education, 

396 U. S. 19, 24 L. Ed. 2d 19 (1969). 

2United States v. Jefferson County Board of Education, 380 F.2d 

385 at 389 (5th Cir. 1967). 
i] 

 



  

The President of the Lawrence County Board of Education, Mr. W. C. 

Sharp, and the County Superintendent of Education, Mr. Harold Denison, 

both testified, without contradiction, that the following official policies 

have been established by the Board of Education and are presently being 

administered: Total desegregation of students, faculty, facilities, and 

programs; no discrimination because of race; and to place into effect 

‘and carry out orders of this court with respect to desegregation. Further, 

this policy has been fully disseminated to all staff, faculty, students, 

parents and the general public. These witnesses further testified that 

desegregation has been accomplished in all schools and that children of 

both'races were presently actively participating in all educational and 

extracurricular programs without discrimination. Their testimony in 

this regard was supported by the following witnesses: (a) Alton N. Magee, 

Principal of Topeka- Tilton School, (b) James M. Price, Principal of 

Monticello High School, (c) John Flynt, Principal of New Hebron School, 

(d) Charles Little, President of Board of Trustees of New Hebron School, 

(e) Otho R. Cross, former school teacher, former football coach, former 

Superintendent of Education, and parent of child in Monticello High School, 

(f) Albert Mikell, Negro parent of child in New Hebron School, (g) Bob 

Newsom, Negro parent of child in Topeka- Tilton School, (h) Hollis 

Wilson, Negro parent of child in Topeka- Tilton School, (i) James Herron, 

Negro parent of five children in Topeka- Tilton School, (j) James Ray 

Calhoun, former school teacher and parent of child in Topeka- Tilton 

School. It was further supported by two witnesses called by the plaintiffs- 

interveners: (1) Swancy Brown, Negro football coach and classroom 

teacher at New Hebron School, and (2) Willie Pearl Jones, a Negro teacher at 

Topeka- Tilton School. There was no testimony to the contrary. 

The report of Lawrence County School District (petitioner's 

Exhibit No. 1) leaves no doubt that Lawrence County has a unitary, 

integrated school system in which there are no Negro schools, no White 

 



  

schools--just schools. The total enrollment in the current session is: 

White - 1, 758; Negro - 1,235; total - 2,993. This enrollment is 

distributed among the seven schools of the district® as follows: 

  Name of School White Negro Total 

McCullough School 381 333 714 

New Hebron School 272 169 441 

Beulah Williams School 82 17 159 

Monticello High School 215 220 435 

Topeka- Tilton School 388 92 480 

Silver Creek School 60 115 175 

Monticello Elementary School 360 229 589 

The Court's attention is called to the fact that in Monticello High School 

there are more Negro students enrolled than White students and the same 

is true of the Silver Creek School. The desegregation of the faculty is 

equally as complete. The report shows the number of full time teachers 

by race in the district to be: White - 82; Negro - 50; Total - 132. These 

teachers are assigned to the seven schools of the district as follows: 

  

Name of School White Negro Total 

Monticello High School 17 8 25 

” Beulah Williams School 2 2 5 

Monticello Elementary School 16 9 25 

New Hebron School 13 8 21 

Silver Creek School 4 3 7 

Topeka- Tilton School 15 7 22 

McCullough School 15 12 27 

Negro principals are assigned to Beulah Williams School and McCullough 

School and have under them a total of 17 White teachers and 15 Negro 

teachers. 

The only constitutional basis for the Court of Appeals order 

of November 7, 1969, was the removal of racially discriminatory 

segregation in the school system, by requiring the school district to 

desegregate the past dual school system and operate henceforth a 

unitary system. This goal has now been reached and the Court's order 

has accomplished its purpose of eliminating unconstitutional discrimination. 

All unconstitutional practices have been eliminated. This being so, it is 

  

3The report further gives a detailed breakdown by race of each 

class in each school. 

 



  

submitted with great deference that the Court has exhausted its 

constitutional power and that the selection of two alternate, equally 

constitutional, plans should be a matter for determination by the local 

school authorities. This determination was made by the defendant 

school district in adopting the substitute plan, which was approved by 

the Court of Appeals. The substitute plan clearly meets the Court of 

Appeals admonition that "The only school desegregation plan that meets 

constitutional standards is one that works. '#® This plan works! 
  

II. THERE WERE SOUND EDUCATIONAL 

REASONS FOR ADOPTING THE 

SUBSTITUTE PLAN 
  

The Court of Appeals in its November 7, 1969 order 

recognized that many of the HEW plans ordered into effect may, 

in fact, be impractical and not educationally sound. The Court stated: 

'""It is entirely possible that more effective plans can be devised on a 

local level and that these will insure the simultaneous accomplishment 

of maximum education and unitary school systems.' The original HEW 

plan for Lawrence County was certainly cursory in nature and contained 

many glaring defects which made it impractical and unrealistic. An 

examination of this plan, together with the sound educational reasons 

discussed below,made it imperative to modify the original HEW plan 

and to adopt the more effective substitute plan so as to insure the 

simultaneous accomplishment of maximum education and unitary school 

systems. 

A. Original HEW Plan Contained 

Glaring Errors and Was 

Impractical and Unrealistic 
  

The projected enrollment 1969-70 appearing on page 4 of 

the original HEW plan, on the first three lines, deals with schools located 

in Monticello. It would assign all high school students in grades 9 through 

  

. Yunited States v. Jefferson County Board of Education, 

372 F.2d 836 at 847 (5th Cir. 1966). [Emphasis added. ] 

 



  

12 to McCullough School. According to the HEW plan, the total 

enrollment in Grades 9 through 12 would be 659. Actually the total 

enrollment in the current session in Grades 9 through 12 in all schools 

the county is 904 students. B Thus the actual enrollment in Grades 9 

through 12 was nearly 50% greater than the figures upon which HEW 

based its original plan. Furthermore, the capacity of 1170 shown on 

the HEW plan, page 4, is the theoretical capacity of the entire school 

complex, not merely the high school division. McCullough traditionally 

has housed Grades 1 through 12 and the newest and latest portion of the 

complex is the elementary school which was designed and built for small 

children. Page 17 of the HEW plan, giving building information for 

McCullough, states at the bottom of the page "Three elementary buildings 

in complex.' This same page shows that in Grades 9 through 12 only 

370 students were enrolled during the 1968-69 session. The Superintendent 

of Education, Mr. Denison, testified that in the high school division of 

McCullough there were 14 rooms with a total capacity of 420 students (14 

times 30). Yet, under the HEW original plan, 904 students would be 

crammed into a high school building with a capacity of only 420 whose 

then current enrollment was only 370. 

With respect to the Monticello Junior High (formerly 

Monticello High School), the HEW plan, page 4, shows the building to 

have a permanent capacity of 455, but the plan proposes to enroll 494 

students in this building - a substantially greater number of students 

than the entire capacity of the building. 

The same is true with respect to the Monticello Elementary 

School. Page 4 of the HEW plan shows this school to have a permanent 

capacity of 805 and, yet, the plan proposes to enroll 892 students in that 

building - a substantially greater number than the entire capacity of the 

building. 

  

5 Witness Denison, through error in addition, fixed the figure at 

903," The report of the school district, petitioner's Exhibit No. 1, reflects: 

Monticello High (grades 10-12) 435; Topeka- Tilton (grades 9 - 12) 138; New 

Hebron (grades 9 - 12) 154; McCullough (9th grade) 177; total - 904. 

HE WH 

 



  

It will thus be seen that the original HEW plan would 

result in substantial overcrowding of every school in the Monticello 

area from its inception. It is further to be observed that there is a 

discrepancy between the text of the plan, page 3, and the supporting 

chart of projected enrollment, page 4, with respect to the Topeka- 

Tilton and New Hebron Schools. The text recommends that each of 

these schools be limited to Grades 1 through 8, whereas the chart on 

the following pages projects each of these schools to contain Grades 1 

through 12. Corresponding errors are made in the projected enrollment 

for these schools and demonstrates the HEW figures to be toally unreliable. 

The original HEW plan totally ignores the immense trans- 

portation problem discussed below and would require many students to 

ride on a school bus for an additional two hours each day longer than 

under the substitute plan. 

In addition, the original HEW plan: failed to make the best 

use of existing school facilities; ignored the fact that Monticello High 

School was the newest and best equipped high school in the county, built 

and equipped solely for a senior high school; would discontinue the use 

of three existing high schools built and equipped for high school age 

children, which include equipment and facilities for high school children 

such as science laboratories, libraries, commercial departments, 

home economics departments, agricultural vocational training and lighted 

athletic field with seats for spectators, and placed all high school students 

in one school whose high school division is inadequate to handle the 

projected enrollment, whose science laboratories, libraries, commercial, 

home economics and vocational departments would not be adequate to 

handle the large enrollment, whose athletic field is not lighted and has no 

seats and whose school property is divided by a heavily traveled U. S. 

Highway; would concentrate all high school students at one site containing 

only 18 acres and providing little or no room for expansion while failing 

oe) 5+ 

 



  

to utilize the three other high school locations consisting of a total of 

56 acres with ample room for expansion at each location; overlooked 

the educational benefits to be derived from the operation of three 

smaller high schools with resulting closer direction and supervision 

by principals and teachers, increased opportunity for student participation 

in athletics, band, dramatics, chorus, student government and other 

leadership and character building activities; failed to take into account 

the merit of the neighborhood school concept, now a matter of national 

policy, whereby children attend the school near their homes with the re- 

sulting improvement of educational quality, substantial savings and 

transportation time, closer and better relations between teacher and 

pupil, betweenteacher and parent, between pupils themselves and between 

the parents themselves; and failed to recognize that the integration of 

the public schools can be accomplished smoother and with less difficulties 

through the present transitional period in smaller neighborhood schools 

where there exists this close relationship between all parties concerned. 

These defects have an immediate and direct bearing upon the educational 

quality of the schools of the district. The substitute plan of the school 

district remedies most of these defects and is supported by sound 

educational reasons developed by the testimony and discussed below. 

B. Transportation 
  

One of the major problems created by the original HEW 

plan, and sought to be lessened by the substitute plan, was the immense 

problem of transportation of school children, particularly those children 

residing in the New Hebron and Topeka- Tilton areas. If the original 

HEW plan were adopted, then all high school students residing in those 

two areas would be compelled to ride the school bus for a much greater 

length of time each day than under the substitute plan. Presently, all 

students, Negro and White, residing in the Topeka- Tilton area are 

16m 

 



  

assigned to school at Topeka- Tilton which comprises Grades 1 through 

12. Many of of these students will live close enough to walk to school. 

For those who ride the school bus, the distance from their homes to 

the school building, and the resulting time required, are much shorter 

than if they had to be transported on into Monticello. The same is true 

with the New Hebron area where the testimony shows from 30 to 35% of 

the present students live within walking distance of the school. 

A return to the original HEW plan would severely 

discriminate against high school students assigned to these two schools 

for it would lengthen their travel day an average one hour and half to 

two hours each day. The distance from New Hebron to Monticello is 

17 miles by the shortest and most direct highway route. The distance 

from Topeka- Tilton to Monticello is about the same, perhaps slightly 

less. The witnesses agreed that the additional time required to transport 

these children from Topeka- Tilton and New Hebron on into Monticello 

would be at least one hour per day round trip, on the average. The 

original HEW plan would require that the bus routes be so designed that 

the school buses would first pick up the children at their respective 

homes and come into Topeka- Tilton or New Hebron, respectively, so 

as to drop off those students attending the elementary schools and then 

proceed on into Monticello with the high school students. The problem 

can be illustrated with an example. James Herron testified as a 

witness for the defendant school district. He is a Negro parent having 

five children enrolled in Grades 3, 4, 5, 8 and 10. Under the HEW 

plan, all five of his children would get on the bus at or near their home 

and go first to Topeka- Tilton where the four youngest children would 

get off the bus. The tenth grader would then proceed on into Monticello 

with other high school students. Next year, when the children are a 

year older, he will have three getting off at Topeka- Tilton and two 

going on into Monticello. Under the substitute plan, however, all five 

 



  

simply ride from their home to Topeka- Tilton School which contains all 

twelve grades. Witness Herron, himself, was a school bus driver and 

he testified that it formerly took about two hours each way to drive his 

bus from the lower Topeka- Tilton area into Monticello, for a total of 

four hours each day. Under the substitute plan, it takes his children 

only about 45 minutes each way to get from their home to school at 

Topeka- Tilton. Witness Herron urged the Court to leave the substitute 

plan in effect so that his children could continue to go to Topeka- Tilton. 

Transportation was one of the reasons offered. The substitute plan has 

afforded a very substantial savings in transportation time for the Negro 

children living in the Topeka- Tilton and New Hebron areas formerly 

attending McCullough School in Monticello. ; 

The savings in transportation distance and time has two 

important educational benefits. First, and perhaps more importantly, 

the 5 to 10 hours per week additional travel time is time which should 

properly be spent in study or rest and recreation, so as to better equip 

the student to handle his academic assignments. This additional travel 

will constitute a terrible waste of time and energy which should be 

and can be spent more productively than riding a school bus. ? The 

second reason why the savings in transportation time is important from 

an educational viewpoint is that it affords more time for the students to 

participate in after-school extracurricular activities, especially athletics. 

  

Transportation problems under the proposed HEW plan are not 
comparable to those existing with respect to transportation of Negro 
students to McCullough School in former years, as implied by counsel 
for plaintiffs-interveners. Formerly, McCullough comprised grades 1 
through 12 for all Negro students in the county except in the Silver Creek 
area. Thus, all students, both elementary and high school traveled on 
the same buses directly from their homes to the same identical school in 
Monticello. It was not necessary, as it will be under the HEW plan,first 
to go into Topeka- Tilton or New Hebron to drop off the elementary students 
before proceeding into Monticello with the high school students. Thus, 
transportation under the substitute plan is substantially less than under the 
original HEW plan and also substantially less than former transportation 
requirements for Negro students living in these areas. 

Counsel's suggestion that these school children are discussing 
academic matters, and learning from each other, while riding the bus is 
naive to say the least. We suggest that the court could take judicial notice 
(as most parents do) that the conversation more than likely centers 
around the latest record of '"The Beatles' or whatever singing group 

. happens to be popular that week. 
-18-~ 

 



This opportunity will be denied to students who must spend an extra 

  

hour or more each afternoon on the bus. For example, James Herron 

testified that his son now is on the track team at Topeka- Tilton but was 

unable to participate in athletics at McCullough because of the bus 

schedule. If a child rode the bus to McCullough and desired to participate 

in after-school athletics, he had to either forego the opportunity or make 

other transportation arrangements. Mr. John Flynt, the principal of ’ 

New Hebron High School, testified that there were 25 Negro students now 

participating in spring football drills, only three of whom were able to 

participate at McCullough and, in addition, Negroes have participated 

both in the basketball and track programs. This was confirmed by 

Coach Swancy Brown, a witness for the plaintiffs-interveners. A 

similar result was experienced by Mr. Alton N. Magee, the Principal 

of Topeka- Tilton High School. 

C. Maximum Use of Facilities   

The substitute plan provides for the maximum use of all 

existing facilities, in the manner for which they were designed. The 

original HEW plan would amount to a virtual abandonment of all high 

school facilities in the New Hebron and Topeka- Tilton schools and a 

failure to properly utilize the high school facilities at Monticello High 

School. The substitute plan continues the use of all of these facilities 

in a practical and workable manner. 

Attention is first called to the Monticello High School 

facility. Monticello High School is the newest and best equipped high 

school in the county. 5 It was originally constructed in 1960 and had 

a classroom added in 1967. It was designed only as a high school with 

room size, lockers, desks and other equipment, science laboratory, 

library, home economics department, commercial department, vocational 

department, cafeteria, gymnasium and other facilities required for 

  

8 Typical of the reckless allegations contained in the motion for 

supplemental relief is the statement on page 3: '"McCullough is the 

newest high school in the district, has the largest capacity...and contains 

the most modern equipment and facilities available in the district." No 
effort was made to prove this allegation and the testimony is uncontradicted 
that Monticello High School, not McCullough, is the newest and best 
equipped facility in the county, -19- 

 



  

education of senior high school students. It has ample outside athletic 

facilities such as baseball field and a new football field and track with 

seats for spectators and lights for night athletic activities. The school 

is situated on a 20 acre tract with ample room for expansion. It is well 

off of any highway and is not surrounded by any built-up areas. Photo- 

graphs of this school are in evidence and its facilities are described by 

Witnesses Denison and Price. The school has a permanent capacity 

of 455 and a present enrollment of 435 with an average daily attendance 

of 410. The uncontradicted testimony is that these new facilities cannot 

be used as efficiently for lower grades as for higher grades. 

On the other hand, McCullough school was not designed 

solely as a high school but, instead, is a school containing Grades 1 

through 12. It was originally built around 1948 with elementary buildings 

being added later and one additional classroom in 1967. The elementary 

buildings, designed solely for small children, are physically separated 

from the high school building and connected only with a covered walkway. 

Playground facilities adjacent to the elementary building consist of such 

items as swings, seesaws and other playground equipment for small 

children. The high school building has a permanent capacity of only 420. 

It has already been pointed out above that this building would be less than 

half the size required for all high school students of the county. This 

school does not have a lighted football field although it does have an un- 

fenced practice field which is unlighted and has no seats. This practice 

field together with a baseball field are not connected with the school 

grounds but, instead, are located on the opposite side of a heavily 

traveled highway, U. S. Highway 84. McCullough School contains 18 

acres, including the practice fields on the south side of the highway, 

and the facilities now occupy all available land north of the highway. 

The area is closely built up on all sides and there is no room for 

substantial expansion of this facility. Photographs of this school are 

 



  

in evidence and the facilities are described by Witness Denison with 

some amplification by Witness Edgar Bridges. 

There can be no question but that the facilities at 

Monticello High School are newer and far superior to those at McCullough 

School for the operation of a high school. In fact, plaintiffs-interveners' 

star witness, Edgar Bridges, testified that '"The facilities at Monticello 

High School are excellent for its capacity. 

The New Hebron School and Topeka- Tilton School were 

described by Witnesses Flynt and Magee, respectively. Each of them 

contains a complete high school, designed and equipped as such, including 

the usual classrooms, desks, equipment, lockers, science laboratory, 

library, cafeteria, commercial department, home economics department 

and each has ample outdoor athletic facilities including football field and 

track with lights for night contests and seats for spectators. Each of 

these schools is located on an 18 acre tract with ample room for future 

expansion. Photographs of these schools are in evidence. 

The intelligent and efficient use of all facilities under the 

substitute plan is clearly demonstrated by the following chart: 

    

School Capacity Present Enrollment 

Monticello High 455 435 

McCullough School 1170 714 

Monticello Elementary 805 589 

Topeka- Tilton 520 480 

New Hebron 520 441 

Thus, the total enrollment at each school is within present 

capacity. By contrast, the original HEW plan would have all schools in 

the Monticello area overcrowded from the beginning, as discussed above. 

It is true that while the total enrollment at Topeka- Tilton 

is well within the total capacity of the school, there are at the present 

time some instances in the lower grades where enrollment in particular 

classes is higher than desired, especially in the fifth grade. To the 

extent that there may be some temporary overcrowding in this area, 

 



® . 

  

it is nothing compared with the overcrowding in all of the schools in 

the Monticello area which would result from the original HEW plan. 

Moreover, the problem at Topeka- Tilton in the lower grades would 

appear to be relatively minor in relation to the over-all picture and 

no doubt should be considered as a temporary problem during the 

transition period of integrating this school. The Superintendent of 

Education, Mr. Denison, while taking note of the problem stated that 

it can be easily solved by the use of portable claserodtas. teacher 

switches, and rotating classroom schedules. At any rate, these are 

matters of detailed school operations resting solely within the discretion 

of the local school authorities and are not the subject of judicial scrutiny, 

absent unconstitutional discrimination on account of race, which is 

certainly not the case here. 

D. Closer Supervision 

by Principals and Teachers 
  

On the question of whether the educational quality would be 

better by maintaining three high schools in the county as opposed to 

maintaining one high school for all students, the proof was overwhelming and 

virtually uncontradicted that the educational quality would be vastly | 

improved by maintaining three separate high schools. Educators of long 

experience were in complete agreement that the smaller student bodies 

and smaller classes would permit closer supervision of teachers by the 

principals and closer individual attention of the students by the teachers 

and it would also permit the principals to know personally nearly all 

students in the school. These professional educators testified without 

exception that this was an extremely important factor, from an educational 

point of view, in support of the substitute plan. These witnesses were: 

W. C. Sharp, President of the Board of Education; Harold Denison, 

  

7 The original HEW plan itself, page 4, contemplates relocation 
of two portable classromms from McCullough School to Monticello 

Elementary School. These portable classrooms are scheduled for re- 

location at Topeka- Tilton. 

ar 

 



  

@ » 

Superintendent of Education with 18 years experience as educator, 

teacher, principal and superintendent; Alton N. Magee, Principal of 

Topeka- Tilton School, holder of Masters Degree in School Administra- 

tion with 15 years experience in teaching and 10 years experience in 

school administration; James M. Price, Principal of Monticello High 

School, holder of Masters Degree with 13 years experience as teacher 

and principal; John Flynt, Principal of New Hebron School, holder of 

Masters Degree with 10 years experience as classroom teacher, coach 

and principal; Otho R. Cross, former Superintendent of Education, 

coach and teacher; James Ray Calhoun, former school teacher and 

parent; and Charles Little, President of the Board of Trustees of 

New Hebron School with 15 years experience as a board member with 

two children presently enrolled in the school. 

The testimony of these expert witnesses and professional 

educators, was supported by lay witnesses who are most vitally interested 

in the question before the court,all of them being parents of children who 

will be directly affected by the decision of this court. It happens that all 

four of these lay witnesses are Negro parents of children enrolled in New 

Hebron or Topeka- Tilton Schools: Albert Mikell, Bob Newsom, Hollis 

Wilson and James Herron. They wanted their children to continue 

attending these schools through high school. Each one felt that his child 

was receiving a good education. Bob Newsom said that his child was re- 

ceiving better education at New Hebron than in his former school. So did 

Hollis Wilson. 

It goes without saying that in addition to closer instruction 

by teachers and closer supervision by principals, three high schools will 

afford three times as much exposure and opportunity for learning in such 

fields as science, commercial work and home economics. For example, 

three science laboratories instead of one obviously means that the students 

will have three times as much opportunity for scientific experimentation. 

 



  

® ® 

E. Three-fold Opportunity for 

Athletic, Extracurricular and 

I.eadership Training 
  

All educators agree that schools must do more than teach 

the three R's. The responsibility of education is not only to dispense 

knowledge vel non but to prepare the student for effective citizenship. 

For this reason, a wide range of athletic, extracurricular and leadership 

training activities are included in every school program. There is the 

football team, the basketball team and the track team. There is the band, 

the chorus and the debate team. There is the student government organi- 

zation and the officers of the student body and there are the innumerable 

clubs, each withits own officers. Each of these activities is important 

from an educational standpoint and the over-all educational quality of the 

school system is very substantially influenced in proportion to the 

opportunity afforded students for training in fields of athletics, extra- 

curricular and leadership activities. 

These educational considerations weighed strongly in favor of 

adoption of the substitute plan and the testimony was clear that the 

operation of three separate high schools instead of one increased three- 

fold the opportunity of student participation in these activities. There can 

be only one football team for a school and only 11 men can play at a time. 

There can be only one band or only one debate team. There could be but 

one president of the student body, one president of the Latin Club, one 

president of the Homeroom. Three schools means three football teams, 

three basketball teams, three track teams, three debate teams, three 

student government organizations, three times as much opportunity for 

growth and development as a part of the educational process. 

The president of the Board of Education and the Superintendent, 

of Education both testified that these factors weighed strongly in the Board's 

decision to recommend the substitute plan and their opinion was firmly 

supported by the testimony of Witnesses Magee, Calhoun, Price, Cross, 

24 

 



  

Little and Flynt and, by implication, by Witnesses Mikell, Newsom, 

Wilson and Herron. There was no evidence to the contrary. 

F. Local Schools 

Improve Relations 
  

All of the professional educators agreed in their testimony 

that the local school improves relation between teacher and student, 

principal and student, teacher and parent, principal and parent, as well 

as relations between students themselves and between their respective 

parents. This is because the local school serves the area surrounding 

the school where the students live. It permits the principal and the 

teacher to know the child, his parents, the home from which he comes, 

and makes for a much better understanding of the child and his back- 

ground. This is important from an educational point of view and it 

permits the principal and the teacher to do a far better job in educating 

the child. This is possible only where the local school is maintained 

with relatively small student bodies. It is virtually impossible in a 

large consolidated high school drawing students from the entire county. 

The matter of school integregation is by nature delicate, 

at least in areas where substantial school integregation has not heretofore 

existed. Most people tend to become extremely emotional where their 

children are concerned, and these emotions are not unique to either race. 

Integration of the schools can be made to work if, but only if, there is 

a genuine understanding and mutual respect between students, teachers, 

school administrators and parents. This understanding and respect is 

best promoted in the small local schools where all parents are neighbors 

and, consequently, know and understand each other. Responsible 

school officials of Lawrence County have stated under oath that the pro- 

gram of desegregation thus far has worked very well in Lawrence County, 

due primarily to the adoption of the substitute plan and the operation of 

the three separate high schools has promoted harmony between the races 

v2 bu 

 



  

and cooperation between parents, faculty and students. They state, 

however, that an abandonment of the substitute plan and return to the 

original HEW plan would cause serious disruption and would cause the 

present good relations to detiorate with resulting impairment of 

educational quality. 

This point of view was simply but eloquently stated by 

Witness Hollis Wilson, a Negro parent who pleaded with the court to 

leave the high school at New Hebron. He testified substantially: 

'"'I'de rather my child go to school in New Hebron with his friends." 

G. New Hebron 

and Topeka-Tilton Schools 

Offer Quality Education 
  

An effort has been made by plaintiffs-interveners to imply 

(they offered no real proof) that New Hebron and Topeka- Tilton schools 

were inferior and inadequate. a The sworn testimony, however, totally 

refutes this implication. The testimony of Witnesses Sharp, Denison, 

Magee and Flynt established without contradiction that the same academic 

program is offered at all high schools and that Topeka- Tilton and New 

Hebron High Schools have adequate physical facilities such as classrooms, 

science laboratories, libraries, commercial departments, athletic 

facilities and other facilities required for total all-around program. 

Moreover and more importantly, each school has a qualified well-trained 

faculty. At Topeka- Tilton, for example, there are twenty teachers, all 

of whom hold Class A teacher certificates or higher and, in addition to 

undergraduate degrees, five members of this faculty hold Masters 

Degrees and one has completed a year of work toward his doctoral study. 

Graduates from Topeka-Tilton High School and New Hebron High School 

have been successful in competing at the college level, some being out- 

standing scholars, and in various business pursuits. See testimony of 

  

10 
Affidavits of W. C. Sharp, Harold L. Denison and John A. Flynt 

filed in support of defendant's response to motion for supplemental relief. 

11 Another example of reckless charges, unsupported by proof. 

 



  

Witnesses Flynt, Little and Magee and affidavits of Flynt and Magee 

in support of defendant's response. 

It is common knowledge that old established schools 

continue to provide education of a superior quality year after year. In 

this case, Monticello High School has been in existence for more than 

100 years while schools have been operating at New Hebron and in the 

Topeka- Tilton area for about 50 years each. The substitute plan permits 

this quality education to be continued. It would be destroyed under the 

original HEW plan. 

H. The Neighborhood School 
  

The concept of the neighborhood school, and the necessity 

for maintaining neighborhood schools, has now become a part of the 

national policy as recently announced by the President of the United 

States. The neighborhood school, the community school, the area school-- 

call it what you will --the school which operates in the locality where the 

students reside must be preserved as a matter of educational necessity. 

It offers the inestimable benefits of reduced transportation problems, 

maximum use of facilities, closer supervision by principals and teachers, 

greater opportunity for participation in athletics, extracurricular and 

leadership activities, close relations between student, teacher, and 

parent, emotional stability for the student, and over-all improvement 

in educational quality. New Hebron and Topeka- Tilton High Schools 

should be preserved by this court. 

111. PLAINTIFFS-INTERVENERS' 

OBJECTIONS ARE WITHOUT MERIT 
  

We have already discussed the wholly unsupported and un- 

founded charges of plaintiffs-interveners relative to McCullough High 

School allegedly being the newest and best equipped facility in the county 

and relative to the alleged inferiority and inadequacy of Topeka- Tilton 

and New Hebron Schools. Two other charges, equally unfounded, remain 

 



  

to be discussed. 

The first complaint expressed by counsel's introductory 

statement at the hearing was an alleged failure of the defendant to 

confer with the private plaintiffs. Even if true, this would afford no 

constitutional objection to the substitute plan adopted by the defendant 

school district and approved by the Court of Appeals. Moreover, it 

is not true. The principal witness for the plaintiffs-interveners was 

Mr. Edgar Bridges. He identified himself as president of Lawrence 

County Educational and Recreational Association, a director of the 

Lawrence County Educational Convention and a member of the Lawrence 

County Voters' League, the Lawrence County Civic League, and the 

Lawrence County Chapter of the N. A. A. C. P., all of which organizations 

he describes as being Negro organizations interested in some way with 

education in Lawrence County. He described himself as ''a leader" 

among the Negro citizens of the county and in all of his meetings with 

the Lawrence County Board of Eiucaiiohie County Superintendent of 

Education, members of the Board of Education, and with the attorney 

for the Board of Education, described below, he was acting in the 

capacity as leader and ''spokesman'' for these groups. 

Witness Bridges himself testified that pursuant to request 

a meeting was held with the Board of Education and a committee composed 

of the presidents of the Lawrence County Education and Recreational 

Association, Lawrence County Voter League, McCullough Parent- Teachers 

Association, and Lawrence County Educational Convention, including, 

of course, Mr. Bridges, the spokesman. The Bridges committee dis- 

cussed school matters with the Board of Education and delivered to the 

Board of Education written recommendations concerning plans for de- 

segregating Lawrence County Schools. He was advised at that time 

that no immediate action could be taken in view of the fact that the matter 

was then pending in the Federal Court. Thereafter, Bridges as spokesman 

28. 

 



  

for the committee, conferred on numerous occasions with the County 

Superintendent of Education, with members of the Board of Education, 

and "many, many, times' with the attorney for the Board of Education 

and on all of these occasions discussed school matters and school de- 

segregation. He admitted “that the recommended plan submitted by 

his cominiites would keep open all four high schools, that is, McCullough, 

Monticello High, New Hebron and Topeka- Tilton, that this fecomimendaiion 

was submitted to the Justice Department for consideration, and that the 

Justice Department would not approve of his plan. 

As described by Witness Bridges, it seems that there was 

constant and continual communication between various school officials 

of the county and Mr. Bridges as spokesman for the Negro organizations. 

Finally, plaintiffs-interveners, in their motion for supple- 

mental relief, page 3, state that the substitute plan is "dominated by 

racial discrimination" because it "places the burden of new assignments 

and transfers primarily upon black children.' No proof was offered to 

support this reckless charge. What ad the facts? 

The truth is that the substitute plan of the school district 

results in fewer transfers of Negro students than the original HEW 
  

plan which plaintiffs-interveners now seek to reinstate! The substitute 

plan of the school district resulted in the transfer from McCullough 

School of 7 grades with a total enrollment of 538 students. 12 On the 

other hand, the original HEW plan would transfer from McCullough 

School 8 grades with a total enrollment of 576 students. 13 Therefore, 

the substitute plan transferred few grades and fewer students from the 

  

1240 later attempted to deny it. 

2 Witness Bridges testified that no bi-racial committee had been 

appointed or at least he had not learned of one being appointed. Actually, 

the report of the Lawrence County School District, petitioners' Exhibit 

No. 1, reports that there is a bi-racial committee to the school board. 

Apparently, Witness Bridges, who considers himself a leader among the 

Negro citizens, was unhappy because he was not named as a member of 

the committee. 

14 
~ Grades 1 through 4 to Monticello Elementary School, 260; Grades 

10 through 12 to Monticello High School, 278; total 538. See page 17 of 

HEW plan showing McCullough's enrollment by grades. 

15Grades 1 through 6 to Monticello Elementary School, 397; 
Grades 7 - 8 to Monticello Junior High School, 179; total 576. See page 17 

of HEW plan for McCullough enrolimen by grades. 

 



  

all Negro McCullough School than would be transferred under the 

original HEW plan. Moreover, of the 538 Negro students to be 

transferred under the substitute plan, 261 of these were transferred 

to and are now attending the New Hebron and Topeka- Tilton Schools 

in the areas where they live, thus placing them closer to their 

homes and requiring less transportation time. 

It is now clear, therefore, that the substitute plan causes 

much less transfer and disruption of Negro students than would result 

from the original HEW plan. 

CONCLUSIONS AND 

REQUESTS FOR FINDINGS OF FACT 

AND RECOMMENDATIONS 
  

The substitute plan of desegregation has effectively ended 

the dual school system in Lawrence County and has complied with all 

constitutional requirements. This fact is recognized and asserted by 

the United States in this case and the United States does not request 

any further modifications. The Lawrence County Board of Education 

has adopted and implemented policies to effectively desegregate the 

school system and to comply with all orders of this court and the facts 

revealed by the hearing leave no doubt that this has been accomplished. 

Every school has been desegregated both as to student body, faculty, 

athletics and all other student activities. The ratio of Negro and 

White students in each school is substantially in relation to the ratio 

of White and Negro students in the entire school district. Likewise, 

the ratio of White and Negro teachers in each school is in substantially 

the same ratio as the students. Of the seven schools previously 

operated in the county, all seven are still operating but on an integrated 

basis. Two of the schools have Negro principals. All constitutional 

objections to the school system, therefore, have been removed, the 

Court's constitutional power has been exhausted, and the selection of 

specific alternate plans, either of which would remove constitutional 

-30- 

 



  

objections, is a matter for the local school authorities to determine 

in their discretion. This determination was made by the adoption of 

the substitute plan and was approved by the HEW and the Justice Depart- 

ment and authorized by the Court of Appeals. That action should not 

now bs overturned. 

The substitute plan was devised and promulgated for 

educational purposes only as distinguished from racially discriminatory 

purposes and this fact has been established by the evidence beyond 

question. All of the evidence points to the educational factors requiring 

the adoption of the substitute plan and there is absolutely no evidence 

to indicate any racially discriminatory purposes in its adoption. 

We respectfully submit, therefore, that the Court should 

enter an order denying the plaintiffs-interveners' motion for supplemental 

relief and leaving the orders of November 7, 1969, and November 26, 

1969, undisturbed. 

Honorable Dan M. Russells Jr., United States District 

Judge, is respectfully requested to make the following specific findings 

of fact and recommendations and to submit the same to the Court of 

Appeals. 

Requested Findings of Fact 
  

1. The modified or substitute plan adopted by the 

defendant school district and approved by the Court of Appeals 

November 26, 1969, has effectively desegregated the Lawrence County 

school system. 

2. The defendant school district now operates only an 

integrated, unitary school system within which no person is effectively 

excluded from any school because of race or color. 

3. The Lawrence County Board of Education has adopted, 

and effectively implemented, a policy of (a) operating a unitary school 

system, without discrimination of any kind because of race or color, 

-3]= 

 



  

(b) fully desegregating the school system, and all schools therein, 

with respect to faculty, staff, students, school facilities, transporta- 

tion, athletics and all other school programs and activities, and (c) 

good faith compliance with orders of this Court respecting desegregation. 

This policy has been,and continues to be, enforced and implemented and 

it has accomplished, and continues to accomplish, its purpose. 

4. The modified or substitute plan adopted by the 

defendant school district and approved by the Court of Appeals on 

November 26, 1969, was adopted and promulgated for sound educational 

reasons only. It was not adopted and promulgated for racially dis- 

criminatory purposes. The substitute plan does not result in racial 

discrimination but on the contrary it eliminates racial discrimination. 

5. The substitute plan relieves and reduces tremendous 

transportation problems which would result from the original HEW plan. 

It reduces very substantially the distance in travel time for students 

“ 

- and permits more time and energy to be devoted to academic study and 

school related activities. 

6. The substitute plan provides for maximum use of all 

school facilities and results in a more efficient use of facilities than 

under the original HEW plan. 

7. The original HEW plan contains serious errors in 

projected student enrollment statistics in the high school grades and 

would result in immediate and acute overcrowding of schools in the 

Monticello area. Total present enrollment under the substitute plan 

is within the total capacity of each school. 

8. Monticello High School was designed and equipped 

solely as a high school to serve high school age students. It is the 

newest and best equipped high school in the county and has the greatest 

capacity for high school students. It is much better suited for the 

operation of a high school than is McCullough School. 

 



9. The New Hebron and Topeka- Tilton Schools, while 

  

+ 
w 

somewhat older, are adequate and each contains a complete high school 

facility, designed and equipped for high school students. These schools 

provide quality education comparable to other high schools throughout 

this state and elsewhere in the country. Each school has an adequate 

curriculum and a qualified faculty. 

10. The substitute plan affords a better quality of instruct- 

ion than the original HEW plan because it permits closer supervision of 

teachers by principals and closer individual attention and instruction of 

each student by the teachers. 

11. The substitute plan affords to students much greater 

opportunity for participation in athletics, extracurricular and leader= 

ship activities than does the original HEW plan, and the substitute plan 

is more effective in preparing students for citizenship responsibilities. 

12. The substitute plan, by maintaining three high 

schools instead of only one, promotes better understanding and better 

  

  

  

  

: relations between principals, teachers, students and parents and 

> improves the over-all educational opportunity of all students in a 

more harmonious atmosphere. 

13. The substitute plan is supported by sound educational 

reasons and is educationally more sound than the original HEW plan. 

14, The welfare, best interest and educational opportunity of 

all school children will best be served by approval and continuation 

of the substitute plan. 

Requested Recommendation 

1. The motion for supplemental relief should be denied. 

Respectfully submitted, 

Cassy 4 Sooe 
James S. George 

Box 493, Monticello, Mississippi 

He! ? J 7 = 

Al Lo Le Clery om : Lr a lpeldh ZL 

R. W. Heidelberg / Robert G. Turnage rd 
Box 1070 Monticello, Mississippi 

2 Hattiesburg, Mississippi 

1 Attorneys for Defendant 

~33 

 



  

CERTIFICATE OF SERVICE 
  

I, the undersigned, one of the attorneys for the 

defendant in the foregoing matter, do hereby certify that I have 

this date served a copy of the foregoing brief upon the plaintiff- 

appellant and plaintiffs-interveners-appellants by mailing a true 

copy thereof by United States mail properly addressed and postage 

prepaid to the following counsel of record: 

Honorable Ben 1L.. Krage, Attorney 

United States Department of Justice 

Washington, D. C. 20530 

Attorney for plaintiff-appellant 

Honorable Melvyn R. Leventhal 

Honorable Reuben V. Anderson 

Honorable Fred 1.. Banks, Jr. 

Honorable John A. Nichols 

538 1/2 North Farish Street 

Jackson, Mississippi 39202 

Honorable Jack Greenberg 

Honorable Norman Chachkin 

Honorable Jonathan Shapiro 

Suite 2030 

10 Columbus Circle 

New York, New York 10019 

- Attorneys for plaintiffs-interveners - 

appellants 

WITNESS my signature on this 30th day of April, 

A. D., 1970, 

  
CAL . Leeley” 
R. W.'Heidelberg /