Norwood v. Harrison Jurisdictional Statement

    I n the

Snxpnmx (tort nt tlt̂  Initrft States
October Term, 1972 

No.............

Delobes Norwood, et al.,
Appellants,

— v . —

D. L. H arrison, Sr-, et al.

ON APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOB THE NORTHERN DISTRICT OP MISSISSIPPI

JURISDICTIONAL STATEMENT

Melvyn R. L eventhal 
F red L. B anks, Jr.
R euben V. A nderson

538% North Farish Street 
Jackson, Miss. 39202

Jack Greenberg 
J ames M. Nabrit, III 
Norman J. Chachkin 
Charles Stephen R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

Opinion Below ......................  1

Jurisdiction .....        1

Constitutional and Statutory Provisions Involved....... 2

Question Presented .............    3

Statement ........................................................................... 3
I. Proceedings Below ............................................  3

II. The Growth of Private Academies and Their 
Impact on Public Education .............................  7
A. State-Wide Perspective ......................-......  7
B. Impact of Private Academies on Public

School Desegregation in Specific School 
Districts .......................................................... 10
(1) Holmes County School District.......11
(2) Canton Municipal Separate School

District ............................ -....................  11
(3) Jackson Municipal Separate School

District ................. ....... -................ -......  12

III. The State’s Textbook Program .......................  14
A. The Program Generally ...............................  14
B. The Extent of Textbook Aid to Private

Racially Segregated Academies ................   16

The Questions Presented Are Substantial .......... -........  17

Conclusion .............................................   26

PAGE



A ppendix A —  page

District Court Opinion ............................................  la
District Court Judgment ....    23a

Notice of Appeal ......................................................  24a

A ppendix B—
Mississippi Textbook Statutes.................................  27a

A ppendix C—

Statewide School Enrollments, 1963-64— 1970-71 ..44a 

A ppendix D—
Private Non-Sectarian Academies Participating 
in State’s Textbook Program ................................-  46a

11



I l l

T able of A uthorities

Cases : p a g e

Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958) ........... 21
Alexander v. Holmes County Board of Education, 396

U.S. 19 (1969) ..........   .....3,4,7,8,11,12
Anderson v. Canton Municipal Separate School Hist.

& Madison County School Dist., No. 28030 (5th Cir.,
Dec. 22, 1969) ............................................................... 21

Blackwell v. Anguilla Line Consolidated School Dist.,
No. 28030 (5th Cir., No. 24, 1969) ...........................  21

Board of Education v. Allen, 392 TT.S. 236 (1968) .....6, 23
Brown v. South Carolina Board of Education, 296 F. 

Supp. 199 (D. S.C. 1968), affirmed per curiam, 393 
U.S. 222 (1968) ............. ........... ...................... ..........19,20

Coffey v. State Educational Finance Commission, 296
F. Supp. 1389 (S.D. Miss. 1969) ...................... 8,9,11,21

Coit y . Green, 404 U.S. 997 (1971) .............................  19
Cooper v. Aaron, 358 U.S. 1 (1958) ........ .....17, 22, 24, 25

Evers v. Jackson Municipal Separate School District,
328 F.2d 408 (5th Cir. 1964) .......................................  7

Green v. Connally, 330 F. Supp. 1150 (D. D.C. 1971 
affirmed sub nom. Coit v. Green, 404 U.S. 997 (1971)

18, 23
Green v. Connally, 330 F. Supp. 1150 (D. D.C. 1971),

U.S. 430 (1968) ............................................ 3, 4, 7, 8,17,19
Green v. Kennedy, 309 F. Supp. 1127 (D. D.C. 1970), 

appeal dismissed for want of jurisdiction sub nom.
Cannon v. Green, 398 U.S. 956 (1970) ..................11,18,19

Griffin v. State Board of Education, 296 F. Supp. 1178 
(E.D. Va. 1969) 2 0



IV

PAGE

Jackson Municipal Separate School District v. Derek 
Jerome Singleton, 402 U.S. 944 (1971) — ................  13

Kennedy v. Mendoza-Martinez, 372 U.S, 144 (1963) .... 2

Lee v. Macon County Board of Education, 267 F. Supp.
458 (M.D. Ala. 1967), affirmed sub nom. Wallace v.
United States, 389 U.S. 215 (1967) .......... .............. . 25

Lemon v. Bossier Parish School Board, Civ. No. 10,687
(W.D. La., Sept. 25, 1970) .................................. ........  21

Lemon v. Kurtzman, 403 U.S. 602 (1971) ----- ----- ------- 24

North Carolina Board of Education v. Swann, 402 U.S.
43 (1971) .........................................................................  18

Poindexter v. Louisiana Finance Commission, 274 F. 
Supp. 833 (E.D. La. 1967), affirmed per curiam, 389 
U.S. 571 (1968) ........................ ..........-................. ......19,20

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ............................................ .............-  18

United States v. Covington County School Dist., No.
28030 (5th Cir., Dec. 17, 1969) ............. ................ . 21

United States v. Hinds County School Board, 433 F.2d
598 (5th Cir. 1969) .................... ....... ............................ 21

United States v. Jefferson County Board of Education,
372 F.2d 836, affirmed en banc, 380 F.2d 385 (5th
Cir. 1967) ..................................... ................. -.............. 18

U. S. v. Tunica County School District, 323 F. Supp.
1019 (N.D. Miss. 1970), affirmed, 440 F.2d 377 (5th 
Cir. 1971) ......................... ............................................. 4



V

Wallace v. U. S., 389 U.S. 215 (1967), affirming Lee 
v. Macon Connty Bd. of Ed., 267 F. Supp. 458 (M.D.

PAGE

Ala. 1967) .................................. ........ ....... ....... ............. 19
Wright v. City of Brighton, 441 F.2d 447 (5th Cir.), 

cert, denied sub nom. Hoover Academy, Inc. v.
Wright, 404 U.S. 915 (1971) ............................... .......  20

Wright v. Council of the City of Emporia, 40 U.S.L. 
Week 4806 ........ ....................................................... 18, 21, 23

Statutes:

28 U.S.C. § 1253 .......................................................... ......  2
28 U.S.C. §§ 2281, 2284 ......................................................  1
Miss. Code, 1942, § 6511....          14
Miss. Code, 1942, § 6634 ........       14
Miss. Code, 1942, Sections 6634-6659.5 ......... .................  14
Miss. Code, 1942, § 6641 ............................................... 14,15
Miss. Code, 1942, § 6646 ........................................ .14,15,16

Miss. Code, 1942, § 6656 .................................................... 2, 3

Miss. Code, 1942, § 6658 .................................... ........ ......  14

Other Authority:

U.S. Code Congressional and Admin. News, Sept. 5, 
1970, P.L. 91-381, 84 Slat. 806 ................................... . 15



I n  the

&upr?ut? Qlmtrt uf f c  United States
October Term, 1972 

No.............

Delobes Norwood, et at.,
Appellants,

D. L. H arrison, Sr ., et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI

JURISDICTIONAL STATEMENT

Opinion Below

The opinion of the United States District Court for 
the Northern District of Mississippi, reported at 340 F. 
Supp. 1003 (N.D. Miss. 1972), is appended hereto, Ap­
pendix A, pp. la-22a.

Jurisdiction

This is an appeal from a final judgment entered by a 
three-judge district court, convened pursuant to 28 U.S.C. 
§§2281 and 2284, denying a permanent injunction enjoin­
ing state officers from enforcing a state statute having 
state-wide application. Jurisdiction of this Court is ac-



2

cordingly invoked pursuant to 28 U.S.C. §1253. Kennedy 
v. Mendoza-Martines, 372 U.S. 144 (1963).

Complaint was filed on October 8, 1970. The case was 
submitted to the district court on the basis of stipulations, 
depositions, briefs and oral argument on July 9, 1971. 
The district court’s judgment, denying all relief and dis­
missing the complaint, was rendered on April 17, 1972, 
and entered on April 18, 1972 (Appendix A, p. 23). Notice 
of appeal was filed in the United States District Court for 
the Northern District of Mississippi on May 16, 1972 
(Appendix A, p. 24a).

Constitutional and Statutory Provisions Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

This case also involves §6656 of the Mississippi Code, 
1942 (volume 5, pp. 495-96 of the Mississippi Code, 1942, 
Chap. 152, Laws of 1940), which states:

Plan.—This act is intended to furnish a plan for the 
adoption, purchase, distribution, care and use of free 
textbooks to be loaned to the pupils in all elementary 
and high schools of Mississippi.

The books herein provided by the board shall be 
distributed and loaned free of cost to the children of 
the free public schools of the state, and all other 
schools located in the state, which maintain educa­
tional standards equivalent to the standards estab­
lished bv the state department of education for the 
state schools.

Teachers shall permit all pupils in all grades of 
any public school to carry to their homes, for home



3

study, the free text books loaned to them, and to 
carry to their homes, for home study, all other regular 
text books used in the public schools of the state 
whether they be free text books or not.1 (Emphasis 
added.)

Question Presented

Whether Miss. Code, 1942, §6656, to the extent that it 
provides for the distribution and use of state owned text­
books to private racially segregated academies formed for 
the purpose and/or having the effect of providing white 
students with an alternative to public integrated schools, 
violates the Equal Protection Clause of the Fourteenth 
Amendment.

Statement

I. Proceedings Below.

January 23, 1970, the United States District Court for 
the Northern District of Mississippi entered an order re­
quiring the integration of all public schools of Tunica 
County, Mississippi, no later than February 2, 1970, in 
accordance with standards established by this Court in 
Green v. County School Board of New Kent County, 391 
U.S. 430 (1968), and Alexander v. Holmes County Board 
of Education, 396 U.S. 19 (1969). Upon the entry of this 
order all white students of Tunica County withdrew from 
public schools and formed a private academy housed in 
church facilities. The principal and 17 of 21 high school 
teachers of the Tunica County system resigned in mid­
year to assume positions with the new private school.

1 The statutes defining Mississippi’s textbook program are ap­
pended hereto, Appendix B, pp. 27a-43a.



4

December 4, 1969, the Executive Secretary of the Missis­
sippi Textbook Purchasing Board, appellee herein, cir­
culated a memorandum to “County and Separate District 
Superintendents” which stated:

Subject: Textbooks for Private Schools.
We have many disturbed parents since the Court de­
cisions. Many of them are going to organize private 
schools, and they are going to need books.
Since all the money has been allotted for this year, it 
will be necessary for the superintendents to transfer 
books with the student as he transfers to the private 
school. . . .
We appreciate your cooperation in this difficult situa­
tion.

As a result of this memorandum the textbooks used by 
white students fleeing integrated education in Tunica 
County and throughout the state were transferred from 
public schools to private segregationist academies in Jan­
uary, 1970.2

October 8, 1970, four black students of Tunica County 
filed this class action to enjoin the Mississippi Textbook 
Purchasing Board and its Executive Secretary from dis­
tributing state-owned textbooks to the private academies 
of Tunica County and all other academies of Mississippi 
formed in response to the implementation of this Court’s 
B row n * * A lexander  and G reen  decisions. Plaintiffs alleged, 
in ter alia, that:

2 Tunica County public school officials continued to pay the 
salaries of the white teachers and the principal who abandoned 
the public schools in favor of the newly formed private academy. 
This practice was enjoined and restitution ordered. U.S. v. Tunica 
County School District, 323 P. Supp. 1019 (N.D. Miss. 1970), 
affirmed, 440 F.2d 377 (5th Cir. 1971).

* Brown v. Board of Education, 347 U.S. 483 (1954); 349 U.S. 
294 (1955).



5

[T]heir right to a racially integrated and otherwise 
non-discriminatory public school system, vindicated by 
order of . . . [the district court] dated January 23, 
1970 [United States and Driver v. Tunica County 
School District, . . .] and their right to the elimination 
of state support for racially segregated schools, have 
been frustrated and/or abridged by the creation of the 
racially segregated Tunica County Institute of Learn­
ing and the policies and practices of defendants as set 
forth below . . .

Beginning with the 1964-65 school year—when the 
first school districts in Mississippi were required to 
integrate under freedom of choice—and through the 
present, numerous private schools and academies have 
been either formed or enlarged, which schools have 
established as their objective and/or have had the effect 
of affording the white children of the State of Missis­
sippi racially segregated elementary and secondary 
schools as an alternative to racially integrated and 
otherwise non-discriminatory public schools.

The defendants have provided these racially segre­
gated schools and academies and the students attending 
such schools, . . . textbooks purchased and owned by 
the State of Mississippi and have thereby provided 
state aid and encouragement to racially segregated 
education and have thereby impeded the establishment 
of racially integrated public schools in violation of 
plaintiffs’ rights assured and protected by the Four­
teenth Amendment to the Constitution of the United 
States.

Appellants prayed for an order enjoining the Missis­
sippi Textbook Purchasing Board from any further distri­
bution of state owned textbooks to segregationist academies 
and for an order recalling state textbooks which had al­



6

ready been distributed to sucb institutions. After stipula­
tions were filed and depositions taken, appellants refined 
tbeir prayer for relief: we sought an order withdrawing 
state textbook aid from 148 specifically named private 
academies formed or enlarged for the purpose or with the 
effect of providing white students with an alternative to 
public integrated education.3

April 17, 1972, the district court rendered its opinion 
holding that: (a) plaintiffs had failed to demonstrate that 
textbook aid was vital to the private schools, i.e., that 
whites would return to public schools if textbook aid was 
withdrawn; moreover, public integrated education was 
secure since 90% of the student population of the state 
continued to enroll in public schools; (b) the statute under 
challenge was enacted in 1940 and was hence free of any 
specific intent to aid private racially segregated academies;
(c) the state’s statute contemplated textbook aid to 
students and not to schools and was therefore valid under 
the distinction approved by this Court in the context of the 
First Amendment and aid to parochial education. Board 
of Education v. Allen, 392 U.S. 236 (1968).

3 Appellants did not challenge textbook aid to the Catholic 
School System of the state which contains 47 schools and enrolls 
12,100 students because that system has generally not been made 
available to white students fleeing integrated public schools. In 
addition, we excluded 7 academies which were either all-black, 
integrated or serving the needs of abandoned, orphaned or retarded 
children.

Of the 148 specifically named academies against which plain­
tiffs sought relief, 107 were receiving textbooks and another 41 
were eligible but not participating in the state’s program.



7

II. The Growth o f Private Academies and Their Impact on 
Public Education.

A. State-Wide Perspective.

The district court found that by the commencement of 
the 1970-71 school year a network of 148 private segre­
gated academies enrolling approximately 42,000 students 
had been formed in the state to provide white students 
with an alternative to integrated public schools. As we 
demonstrate below the creation and enlargement of these 
academies occurred simultaneously with major events in 
the desegregation of public schools and frustrated the 
attainment of fully integrated public schools and the pro­
mise of Brown, Green and Alexander.

The decade immediately following Brown—1954-1964— 
was marked by “Massive Resistance” and public schools 
were operated on an absolutely segregated basis. Accord­
ingly, as late as the 1963-64 school year there was virtually 
no private segregationist school system in the state.4

In 1963, black students in Jackson, Leake County, 
Biloxi and Clarksdale filed the state’s first school desegrega­
tion suits.5 In 1964, these four districts were required to 
admit black first graders into white schools and the private 
segregationist academy appeared for the first time. "White 
Citizens’ Council School j i l  and Southside Academy

4 During the 1963-64 school year there were 17 private non­
catholic academies enrolling 2,362 students operating in the state. 
Five enrolled black students only; two were schools for retarded, 
orphaned or abandoned children; one was a Military Academy; 
two were parochial schools now operated on an integrated basis; 
two operated part time programs enrolling only 25 students. The 
five remaining schools enrolled only 722 students.

5 The late Medgar Evers filed the state’s first school desegrega­
tion suit in April, 1963. Evers v. Jackson Municipal Separate 
School District, 328 F.2d 408 (5th Cir. 1964).



8

opened their doors in Jackson; Clarksdale Baptist School 
began an elementary program for the first time; and St. 
George Day School, also of Clarksdale, doubled its enroll­
ment and added three grades to its curriculum. The Lake 
County Academy opened with a curriculum limited to first 
graders. These five schools were the only new or enlarged 
private academies operating in the state during the 1964- 
65 school year.

1965-66 witnessed the implementation of the Civil Rights 
Act of 1964 and the beginning of a concert of effort involv­
ing the Department of Justice, Department of Health, 
Education and Welfare and private litigants to promote 
integrated public schools. Prodded by Singleton v. Jaclcson 
Municipal Separate School District, 348 F.2d 729 (5th Cir. 
1965), most public school districts in the state integrated 
at least four grades under freedom of choice during the 
1965-66 school year. And by 1965-66 Mississippi counted 
41 private segregationist academies enrolling 3,841 white 
students.

[I)juring the 1965-66 school year twenty new 
private schools . . . were added [to the twenty-one] 
that had been in operation in 1964-65. In each instance 
the new schools opened in public school districts which 
either were under court order to desegregate or had 
submitted voluntary desegregation plans to the United 
States Department of Health, Education and Welfare. 
Coffey v. State Educational Finance Commission, 296 
F. Supp. 1389, 1391 (S.D. Miss. 1969).

Green and Alexander implemented in Mississippi dur­
ing the 1969-70 or 1970-71 school year signalled the end 
of freedom of choice and token deseg’reg'ation; all students 
in Mississippi public schools were then assigned under 
“ terminal” plans for desegregation. 1969-70 also witnessed



9

the opening of 55 new private academies and the with­
drawal of 21,875 white students from public schools. Dur­
ing the 1970-71 school year an additional 11,061 white 
students withdrew from public schools to enroll in 31 
new academies. (Public and private school enrollments 
for each year, 1963-64 through 1970-71, are contained in 
Appendix C hereto.)6

In almost all cases the private segregationist academies 
were opened without any meaningful planning and on the 
“thinnest financial basis.” Coffey v. State Educational 
Finance Commission, 296 F. Supp. 1389, 1392 (S.D. Miss. 
1969). No less than 19 were opened in obsolete and aban­
doned public school buildings; an additional 26 were 
opened in church facilities intended for Sunday School 
purposes only; seven academies were opened in private 
homes or in buildings that were not constructed to house 
educational facilities. Of the approximately 100 academies 
for which information is available through deposition,7 
only four opened in newly constructed facilities designed 
to house an educational program. Many of the schools 
operate without any formal budget and a few depended 
upon contributions rather than tuition.

Virtually all of the academies obtained the majority of 
their teachers and administrators from the public school 
systems. Virtually all rely upon the desegregation of 
public schools and “white flight” for their survival.

6 The record in this case was closed before exact 1970-71 enroll­
ment figures were available and all references to such enrollments 
are estimates accepted by the district court.

7 There are 104 depositions contained in this record.



10

B. Impact of Private Academies on Public School Desegrega­
tion in Specific School Districts.

Although the district court found that 90% of the state’s 
school population continues to attend public schools it 
carefully refrained from any specific finding that private 
academies have not undermined public integrated educa­
tion. In fact, the state-wide retention statistic of 90% 
depends upon the inclusion of many schools districts which 
have only a token number of black students. In the entire 
“gulf coast” of Mississippi and several of the northern­
most school districts of the state, for example, there has 
been less resistance to public school desegregation.8 But 
in districts where public officials have provided no leader­
ship for desegregation and blacks constitute a larger per­
centage of the student population, the implementation of 
freedom of choice or terminal plans of pupil assignment 
triggered the decimation of the white public school enroll­
ment and the resegregation of public schools.

The following desegregation histories of specific school 
districts illustrate the pattern which emerged upon de­
segregation in all school districts wherein blacks constitute 
a substantial segment of the student enrollment.

8 Indeed, the record shows that such districts were generally 
desegregated without litigation and at least one year in advance of 
compliance in other parts of the state. Biloxi Municipal Separate, 
one of the defendant districts in the original school desegregation 
cases in 1963-64, is 85% white and without any private academy. 
It desegregated all twelve grades under freedom of choice by the 
1966-67 school year although it could have easily obtained a stay 
until the 1967-68 school year.



11

(1) Holmes County School District9

In September, 1965, the United States District Court for 
the Southern District of Mississippi ordered Holmes 
County to desegregate grades 1-4 under freedom of choice. 
Concurrently, three private academies, limited to grades 
1-4 or 1-6 and enrolling approximately 450 students, were 
opened. By the close of the 1967-68 school year, when the 
Holmes County system was desegregated under freedom 
of choice for all twelve grades, the private schools had 
expanded their program to twelve grades and their com­
bined enrollment to 650 white students.

Holmes County desegregated its schools under a ter­
minal plan in September, 1970.10 At that moment one 
additional private school opened in the county and all but 
a handful of white students formerly enrolled in the 
county’s public schools withdrew to attend private segre­
gationist academies. Holmes County presently has two 
school systems: one public, staffed and attended by 
blacks; the other private, and staffed and attended by 
whites who abandoned the public schools upon this Court’s 
mandate in Alexander. The appellees treat both school 
systems as equals under the state’s textbook program.

(2) Canton Municipal Separate School District

The Canton Academy was opened in September, 1965 
concurrently with the implementation of a freedom of 
choice plan for grades 1-4 in the public school system. At

9 The interdependence of public school desegregation and the 
formation and growth of private academies in Holmes County "was 
discussed in Coffey v. State Educational Finance Commission, 296 
F. Supp. 1389, 1391, f.n. 7, (SD . Miss. 1969) and Green v. Ken­
nedy, 309 F. Supp. 1127 1133 (D.C. 1970).

10 Holmes County was one of three districts consolidated under 
the Alexander caption which was given until September 1970 to 
implement a “ terminal” plan.



12

the close of the freedom of choice, stage of desegregation 
(1968-69), the Canton Academy enrolled 140 students in 
a curriculum limited to grades 1-8. On January 19, 1970, 
at the precise moment public schools opened under the 
terminal plan of pupil assignment mandated by this Court 
in Alexander, the Canton Academy expanded to serve 
grades 1-12. Its enrollment surged to 1,322, or virtually 
the entire white student body of the Canton Municipal 
Separate School District. At the same moment, the acad­
emy was moved into an abandoned tent factory with a 
staff of 20 white teachers who had left the public schools 
and with textbooks supplied by appellees herein. (The 
experience of the Tunica County system, wherein named 
plaintiffs attend school, was identical to that of Canton 
and Holmes County, supra, pp. 4-5.)

(3) Jackson Municipal Separate School District

Prior to the 1964-65 school year Jackson and the sur­
rounding Hinds County counted only three white private 
academies.11 All were limited to the elementary grades 
and their combined enrollment totaled 411. The 1964-65 
school year witnessed the deseg'regation of grade one under 
freedom of choice and Citizen’s Council School #1  and 
Southside .Academy opened as small elementary schools 
serving grades 1-4. In September, 1965, Jackson and Hinds 
County desegregated four grades under freedom of choice 
and announced that all twelve grades would be so de­
segregated by 1967-68. During the same month White 
Citizen’s Counsel # 1  expanded its program to all twelve 
grades and increased its enrollment from 25 to 103 stu­
dents while Southwest Academy and First Presbyterian 
Day School opened for the first time. When all twelve 
grades of the public system had been desegregated in

11 St. Andrews Episcopal (integrated), Jackson Academy 
(opened in. 1959) and Jackson Christian.



13

1967-68, there were nine segregationist academies enroll­
ing 1,250 students operating throughout Jackson and Hinds 
County.

Terminal plans of pupil assignment were implemented 
in Jackson and Hinds County in January and September, 
1970. In September, 1969, the White Citizen’s Council 
operated three schools enrolling 449 students. In Jan­
uary, 1970, enrollment at Council Schools rose to 2,920 
and other groups opened three new academies. In Sep­
tember, 1970, when further changes in the plans of pupil 
assignment were implemented, the White Citizen’s Council 
opened three new academies while other private groups 
opened two more. By the 1970-71 school year there were 
at least 18 private academies enrolling over 10,000 students 
operating in the Jackson-Hinds County area.12 Jackson 
school officials recently explained the impact of private 
academies upon their system to the court:

For this pattern is emerging: the Courts will attempt 
to achieve a percentage result on the basis of projected 
enrollments; these enrollments will be rendered in­
accurate by continued loss of white students. . . .
It is an undeniable fact that desegregation cannot be 
accomplished without the presence of white students 
in the public schools. Surely it is not absolutely neces­
sary for a community to watch more than 40% of its 
white students leave the public schools [to attend 
private academies] in the space of one year. Enroll­
ment of white students in the system was 20,966 in 
September, 1969 and 12,095 in September, 1970.13

12 These 1970-71 statistics are estimates accepted by the district 
court.

13 Jackson Municipal Separate School District v. Derek Jerome 
Singleton, cert, denied, 402 U.S. 944 (1971); Petition for Writ of 
Certiorari, pp. 29-30.



14

The histories reviewed above are not exceptional. The 
pattern—public school desgregation followed by the with­
drawal of a substantial number of white students to 
private academies and the resegregation of public schools 
—was repeated in school district after school district 
throughout the state.

III. The State’ s T ex tb ook  Program .

A. The Program Generally.

Sections 6634-6659.5 of the Miss. Code of 1942 (Appendix
B, p. 27a et seq.), provide the framework for the selection, 
purchase and distribution of textbooks used in the state’s 
schools. The laws were enacted in 1940 and amended, 
insignificantly, in 1942, 1944, 1946, 1960 and 1966. Prior 
to the initiation of the free textbook program, parents 
were required to purchase textbooks (§6511). Initially 
the Act provided textbooks for the elementary curriculum 
only; in 1942, the legislature extended the program to 
high school grades (§6658).

Sections 6634 and 6641 establish the Mississippi Text­
book Purchasing Board and assign to that agency plenary 
authority over the state’s multi-faceted program. Board 
members are the Governor, the State Superintendent of 
Education, and three others appointed by the Governor 
for terms of four years. The Board employs an Executive 
Secretary who serves as full-time administrator. All 
members of the Board and the Executive Secretary are 
appellees herein.

Textbooks may only be purchased “for use in those 
courses set up in the state course of study adopted by the 
State Board of Education, or courses established by special 
acts of the legislature” (§6646). For each such course 
of study there is a “rating committee” consisting of



15

educators, and other “persons competent in the appraisal 
of books” appointed by the Governor and State Superin­
tendent of Education (§6641(d)). No textbook may be 
adopted or purchased by the appellees unless it is first 
approved by the responsible rating committee.

Once approved, textbooks are purchased under contracts 
between appellees and publishers at a price “n ot. . . higher 
than the lowest prices at which the same hooks are being 
sold elsewhere in the United States” (§6646(1)). The 
publishers are required to “maintain a depository at a 
place within Mississippi to be named by the Board 
[Jackson] where a stock of books sufficient to meet all 
reasonable and immediate demands [is] kept” (§6641 (f)).

Appellees send to each school district (and now each 
private school)14 requisition forms which list all textbooks 
available free through the state. The school district or 
private school completes the requisition form and returns 
it to the Purchasing Board where it is reviewed by the

14 Prior to 1970 each County Superintendent of Education was 
required to requisition textbooks for all schools, public and private, 
geographically located within his county. The requisition was then 
approved by the Textbook Purchasing Board and thereafter ship­
ment was made by the School Book Depository directly to the con­
signee specified by the County Superintendent of Education.

In 1970 Congress enacted the Emergency School Assistance Act 
appropriating funds to aid school districts converting to unitary 
systems. The act made it unlawful for any recipient to “engage 
/ .  . in the gift, lease or sale of real or personal property or services 
to a non-public elementary or secondary school or school system 
practicing discrimination on the basis of race, color or national 
origin.”  P.L. 91-381, 84 Stat. 806, U.S. Code Congressional and 
Administrative News, September 5, 1970, pp. 3318-3319. Public 
school officials wishing to participate in this federal program were 
forced to disassociate themselves from the private segregatist acad­
emies. As a result, the Textbook Board, in 1970, established new 
distribution regulations which eliminated County Superintendents 
as conduits for the distribution of textbooks to private academies. 
The distribution regulations are reproduced in the district court’s 
opinion, footnote 2, Appendix A  hereto, pp. 5a-6a.



16

Executive Secretary. After approval, the form is sent 
to the Textbook Depository in Jackson which fills the 
order and ships the textbooks directly to the school district 
or private school. All shipping charges are billed to the 
Textbook Purchasing Board (§§6645(f), 6646(i)).

B. The Extent o f Textbook Aid to Private Racially Segregated 
Academies.

Appendix D hereto (46a) lists the 107 academies which 
receive textbooks from the State of Mississippi and which 
were found by the district court to have been “formed 
throughout the state since the inception of public school 
desegregation.”

During the 1970-71 school year these academies enrolled 
approximately 34,500 students and held 175,000 volumes 
costing the state of Mississippi approximately $490,000. 
The annual per pupil expenditure for new or replacement 
textbooks approximates $6.00, which will result in an 
annual recurring state expenditure for these academies 
of approximately $207,000.

The district court found that there are 8,000 students 
enrolled in an additional 41 private academies which do 
not, at this time, participate in the state’s program. 
Accordingly, an additional $120,000 in initial inventories 
and $50,000.00 annually thereafter is available to private 
segregationist academies.15 16

15 The Executive Secretary testified that the program was not 
administered strictly on a per pupil allotment basis. Rather, they
sought to provide all textbooks needed and a school could exceed its 
allotment by merely requesting additional aid.



17

The Questions Presented Are Substantial

The decision of the court below upholds the action of 
the State of Mississippi in providing* financial assistance 
to buy textbooks for pupils attending more than 100 
racially segregated private schools which were formed to 
promote evasion of public school desegregation in the 
State. The court below held inapplicable prior precedents 
striking down as unconstitutional other forms of state aid 
to these same segregationist academies. The court below 
upheld the supplying of textbooks bought with tax money 
and distributed by state officials at these segregationist 
institutions on the ground that the state acted under a 
statute which had no racial motive, that the textbook aid 
was not essential to continued operation of the segrega­
tionist academies, and that similar aid had been held to be 
consistent with the Establishment of Religion Clause of 
the First Amendment. We believe that the first ground 
is legally insufficient. The second ground is both incorrect 
and legally irrelevant. The Constitution forbids all public 
support of school segregation. Cooper v. Aaron, 358 U.S. 
1, 19 (1958). The third ground relating to the Establish­
ment Clause is not decisive of the racial discrimination 
issues in this case under the Equal Protection Clause.

The State of Mississippi and all of its agencies must be 
guided by their “affirmative” and continuing duty to 
remedy the effect of past racial discrimination and convert 
school systems from dual to unitary operation. The provi­
sion of free textbooks to academies which drain public 
schools of white students and faculties and which thereby 
frustrate the attainment of fully integrated public schools 
is inconsistent with the paramount duty.

In Green v. County School Bd. of New Kent County, 391 
U.S. 430, 437-38, the Court was confronted with the very



18

argument relied upon by the court below. There, the de­
fendant school board asserted that its only duty under the 
Equal Protection Clause was to adopt a neutral stance 
and permit “ every student regardless of race . . . [to] 
‘freely’ choose the school he will attend.” The Court held 
that the state could not remedy its long history of support 
and encouragement for racial segregation by standing neu­
trally aside. Rather, state agencies were charged with an 
“ affirmative” duty to take whatever steps might be neces­
sary to convert to a unitary system.16

This mandate which commands appellees to align them­
selves unequivocally with public integrated education was 
recently imposed upon the federal government in Green 
v. Kennedy, 309 F. Supp. 1127 (D. D.C. 1970), appeal dis­
missed for want of jurisdiction, sub nom. Cannon v. Green, 
398 U.S. 956 (1970); and see Green v. Connolly, 330 F. 
Supp. 1150 (D. D.C. 1971), affirmed sub nom. Coit v. Green, 
404 U.S. 997 (1971). There the Court was confronted with 
mere indirect aid to private academies and with a neutral 
statute enacted without any discriminatory motive. The

16 In Swann v. Charlotte-Meclclenburg Board of Education, 402 
U.S. 1 (1971), the Court again relied upon the state’s duty to 
form a meaningful remedy for past policies and practices of 
segregation, upholding the use of a variety of techniques aimed at 
uprooting an entrenched dual system. In North Carolina Board of 
Education v. Swann, 402 U.S. 43 (1971), a statute tending to 
interfere with the formulation of a remedy for racial segregation 
was held unconstitutional. And in Wright v. Council of the City 
of Emporia, 40 U.S.L. Week 4806, 4812, the Court held that “a 
new school district may not be created where its effect would be 
to impede the process of dismantling a dual system.”

See also United States v. Jefferson County Board of Education, 
372 F.2d 836, 869, affirmed en banc, 380 F.2d 385 (5th Cir. 1967) :

“ The only adequate redress for a previously overt system-wide 
policy of segregation directed against Negroes as a collective 
entity is a system-wide policy of integration”  (emphasis in 
original).



19

Court held on motion for preliminary injunction17 that 
donations to segregationist academies of Mississippi could 
not be offset against income as charitable contributions for 
federal income tax purposes because:

Where there is a showing, as here, that a dual system 
of segregated schools was established and maintained 
in the past either under State mandate or with sub­
stantial help from State involvement and support, the 
State and the school districts are under a present, con­
tinuing and affirmative duty to establish a “unitary, 
nonraeial system of public education * * # a system 
without a ‘white’ school and a ‘Negro’ school, but just 
schools.” * * # The Federal Government is not con­
stitutionally free to frustrate the only constitutionally 
permissible state policy, of a unitary school system, 
by providing government support for endeavors to 
continue under private auspices the kind of racially 
segregated dual system that the state formerly sup­
ported. (Green v. Kennedy, 309 F. Supp. 1127 at 1137) 
(emphasis added)).

The affirmative duty of Green v. County School Bd. 
of New Kent County, supra, underlies the recent decisions 
of this Court holding unconstitutional legislation providing 
tuition grants for students attending private segregated 
academies. Broivn v. South Carolina Board of Education, 
296 F. Supp. 199 (D. S.C. 1968), affirmed per curiam, 393 
U.S. 222 (1968); Poindexter v. Louisiana Finance Com­
mission, 274 F. Supp. 833 (E.D. La. 1967), affirmed per 
curiam, 389 TT.S. 571 (1968). See Wallace v. U. S., 389 U.S. 
215 (1967), affirming Lee v. Macon County Bd. of Ed., 267

17 The final decision reached the same result on statutory rather 
than constitutional grounds, but the decision has obvious strong 
constitutional overtones. See Coit v. Green, supra.



20

F. Supp. 458, 475 (M.D. Ala. 1967). And relying entirely 
upon this Court’s decisions in Brown and Poindexter, a 
district court stated the rule of law in Griffin v. State 
Board of Education, 296' F. Supp. 1178, 1181 (E.D. Ya. 
1969):

“ [T]he validity of a tuition plan is to he tried on a 
severer issue: whether the arrangement in any mea­
sure, no matter how slight, contributes to or permits 
continuance of segregated public school education.

* # #
To repeat, our translation of the imprimatur placed 

upon Poindexter by the final authority is that any 
assist whatever by the State towards provision of a 
racially segregated education, exceeds the pale of 
tolerance demarked by the Constitution.” (Emphasis 
in original.)

Under this text the Court held that the Virginia statutes 
were void:

Indisputably, the State supplies the money; incomes 
from the public treasury; it goes to individual residents 
who may expend it for a segregated classroom. Thus, 
the Virginia payments are made available to help 
in giving life to an educational forum decried by the 
Federal Constitution. . . .

An absolute and unequivocal prohibition is the 
logical effectuation of the intendment flowing from the 
recent rulings of the Supreme Court. (Griffin, supra, 
at 1181.)

The courts have similarly outlawed a variety of other 
schemes in which public school properties were transferred 
to aid private racially segregated schools. See Wright v. 
City of Brighton, 441 F.2d 447 (5th Cir), cert, denied sub



21

nom. Hoover Academy, Inc. v. Wright, 404 ILS. 915 (1971); 
Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958); United States 
v. Hinds County School Board, 433 F.2d 598 (5th Cir. 
1969). Accord: Blackwell v. Anguilla Line Consolidated, 
School Dist., No. 28030 (5th Cir., Nov. 24, 1969) (“No 
abandoned school facility under this plan, if any, shall he 
used for private school purposes” ) ; United States v. 
Covington County School Dist., No. 28030 (5th Cir., Dec. 17, 
1969) (“It is further ordered that the Lincoln Elementary 
School facility shall not be used, leased, or sold for private 
school purposes” ) ; Anderson v. Canton Municipal Separate 
School Dist. & Madison County School Dist., No. 28030 
(5th Cir., Dec. 22,1969) (rule to show cause why injunction 
should not issue); Lemon v. Bossier Parish School Board, 
Civ. No. 10,687 (W.D. La., Sept. 25, 1970) (granting injunc­
tion against use of public school athletic field for game 
between two private schools; field had been leased in Lions 
Club, sponsor of game).

The proper question then is whether state textbook aid 
to academies which interfered with, and in some cases 
rendered meaningless, the promise of fully integrated 
public schools, “hinders or furthers” 18 the dismantling of 
dual school systems. The question almost answers itself: 
textbook aid enables private academies operating on the 
“thinnest financial basis” (Coffey v. State Educational 
Finance Commission, 296 F. Supp. 1389, 1392 (S.D. Miss. 
1969)) to avoid expending sums for a vital aspect of their 
educational program. It obviously aids the segregationist 
schemes to have textbooks selected, purchased, and dis­
tributed by the State. But whatever the extent of benefit, 
“ state support of segregated schools through any arrange­

18 See Wright v. Council of the City of Emporia, 40 U.S.L. Week 
4806, 4809 ( “Under the principles of Green and Monroe, such a 
proposal must be judged according to whether it hinders or fur­
thers the process of school desegregation” ).



22

ment, management, funds or property cannot be squared 
with the [Fourteenth] Amendment’s command that no 
State shall deny to any person within its jurisdiction the 
equal protection of the laws.” Cooper v. Aaron, 358 U.S. 
1, 19 (1958).

In the face of these authorities, the district court held:

[T]he racial identity of the child had nothing to do 
with the original enactment of the Mississippi statute 
nor has it had anything to do with the receipt of a 
free textbook throughout a period of more than 70 
years. Every Mississippi school pupil, before and since 
1954 . . . whether enrolled in public, private or paro­
chial schools, of whatever race, has received the free 
textbooks without question or impediment. (Appendix 
A, 15a.)

# # #

It is plain . . . that the books have not been issued
to the schools but to the students. As in the case of 
public schools, private and sectarian school authorities 
are held responsible for books as a matter of orderly 
administration. The statute does not authorize the 
distribution of books to schools, only to pupils. (Ap- 
dix A, 16a).

* * #

There is no showing that any child enrolled in private
school, if deprived of free textbooks, would withdraw 
from private school and subsequently enroll in pub­
lic schools now unitary. (Appendix A, p. 21a.)

The district court has thus upheld Mississippi’s textbook 
legislation on the grounds that the statute is neutral on its 
face and devoid of any purpose to aid private segregation­
ist academies. But this Court has made it abundantly clear



23

that state legislation and policy, especially in the field of 
education and in systems converted from dual to unitary 
operation, must be measured by its effect rather than its 
purpose:

[A]n inquiry into the “dominant” motivation of school 
authorities is as irrelevant as it is fruitless. The 
mandate of Brown II was to desegregate schools and 
we have said that “the measure of any desegregation 
plan is its effectiveness.” . . . Thus, we have focused 
upon the effect—not the purpose or motivation—of a 
school board’s action in determining whether it is a 
permissible method of dismantling a dual system. The 
existence of a permissible purpose cannot sustain an 
action that has an impermissible effect. Wright v. 
Council of the City of Emporia, supra, 40 U.S. Law 
Week at 4810.

Similarly, the district court’s reliance upon Board of 
Education v. Allen, 392 U.S. 236 (1968), is misplaced. All of 
the tuition grant legislation provided grants directly to stu­
dents and not to schools and all such legislation has been 
held unconstitutional by this Court. Although the distinction 
between aid to a student and aid to a school may be relevant 
in the context of aid to parochial education and the First 
Amendment, it finds no support in the equal protection 
decisions of this Court. Green v. Connally, 330 F. Supp. 
1150, 1167-1169 (D. D.C. 1971), affirmed sub nom. Coit v. 
Green, 404TJ.S. 997 (1971).

The Court’s inquiry in the Allen case was properly ad­
dressed to whether state textbook aid was impermissible 
state aid to a church school and thus was an establishment 
of religion or whether it was merely state aid to individual 
students. But such an inquiry is not helpful here since 
Mississippi cannot constitutionally help either schools or



24

pupils maintain or attend racially segregated schools with 
tax money. Cooper v. Aaron, 358 U.S. 1, 19 (1958). Mr. 
Justice White pointed to the difference between considera­
tions involved in establishment of religion cases and racial 
discrimination cases in his concurring opinion in Lemon 
v. Kurtzman, 403 U.S. 602, 671, n. 2 (1971):

As a postscript I should note that both the federal 
and state cases are decided on specified Establishment 
Clause considerations, without reaching the questions 
that would be presented if the evidence in any of these 
cases showed that any of the involved schools re­
stricted entry on racial or religious grounds or re­
quired all students gaining admission to receive in­
struction in the tenets of a particular faith. For 
myself, if such proof were made, the legislation would 
to that extent be unconstitutional.

Finally, the district court’s holding requiring appellants 
to prove textbook aid vital to segregationist academies 
imposes an impossible burden of proof. For neither in the 
tuition grant or the tax exemption cases was there any 
evidence that whites would return to public schools if only 
tuition grants or tax benefits were withdrawn. And since 
the private academies have grown in number and size 
recently, rather than retreated, the standard approved by 
the district court would argue for the restoration of tuition 
grants and tax benefits to the academies of Mississippi. 
The absurdity of this result and the authorities cited above 
are sufficient answer to the standard the district court 
would impose upon plaintiffs in cases such as this.

The need to provide an effective remedy for the state’s 
historic alignment with racial segregation leads us to still 
another fundamental principle controlling in this case:



25

The constitutional rights of children not to be dis­
criminated against in school admission on grounds of 
race or color declared by this Court in the Brown case 
can neither be nullified openly and directly by state 
legislators or state executive officers, nor nullified by 
them through evasive schemes for segregation whether 
attempted “ingeniously or ingenuously.” Cooper v. 
Aaron, 358 U.S. 1, 17 (1958).

One such “ingenious or ingenuous” method used by states 
to circumvent their duty under Brown, is to support private 
persons in efforts which they cannot directly undertake. 
Such a scheme was at the foundation of an Alabama tuition 
grant statute and resulted in a holding that “it is axiomatic 
that a state may not induce, encourage or promote private 
persons to accomplish what it is constitutionally forbidden 
to accomplish.” Lee v. Macon County Board of Education, 
267 F. Supp. 458, 475-76 (M.D. Ala. 1967), affirmed sub 
now. Wallace v. United States, 389 U.S. 215 (1967). It 
should be axiomatic that the State of Mississippi, re­
strained from directly operating a segregated school sys­
tem, cannot give financial support or basic educational 
resources—textbooks—to privately operated segregated 
schools. Cooper v. Aaron, 358 U.S. 1 (1958).



26

CONCLUSION

For the foregoing reasons probable jurisdiction should 
be noted, and the judgment below should be reversed.

Respectfully submitted,

Melvyn R. L evs nth al 
F eed L. B anks, Jr.
R euben V. A nderson

538% North Farish Street 
Jackson, Miss. 39202

J ack Greenberg 
J ames M. Nabrit, III 
Norman J. Chachkin 
Charles Stephen R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



APPENDICES



Appendix A

E ntered: A pril 18, 1972

I n the United States D istrict Court eor the 

Northern D istrict of Mississippi 

Civil A ction No. WC70-53K

Delores Norwood, et al.,
Plaintiffs,

D. L. Harrison, Sr ., et al.,
Defendants.

(April 17, 1972)
Before Coleman, Circuit Judge, and K eady and Smith , 

District Judges.
Opinion of the Court 

Coleman, Circuit Judge:

I

The Nature of the Case

This suit, a class action by Negro children attending 
the public schools, is brought through their parents as 
next friends.

The defendants are the members of the Mississippi 
State Textbook Purchasing Board and the Executive Secre­
tary of that Board.

The gravamen of the complaint is that:
“Under the laws of the State of Mississippi, defen­

dants select, purchase, distribute, loan and otherwise



2a

dispose of textbooks, in behalf of the State of Mis­
sissippi, for the use of children enrolled in the elemen­
tary and secondary schools in the State of Mississippi 
(Miss. Code Anno. Sections 6634 et seq.) * * # .

“Beginning with the 1964-65 school term. * * * when 
the first school districts in Mississippi were required 
to integrate under freedom of choice # * # and through 
the present, numerous private schools and academies 
have been either formed or enlarged, which schools 
have established as their objective and/or have had 
the effect of affording the white children of the State 
of Mississippi racially segregated elementary and sec­
ondary schools as an alternative to racially integrated 
and otherwise non-discriminatory public schools.

“The defendants have provided these racially segre­
gated schools and academies and the students attend­
ing such schools, either through sale or loan, textbooks 
purchased and owned by the State of Mississippi and 
have thereby provided state aid and encouragement to 
racially segregated education and have thereby im­
peded the establishment of racially integrated public 
schools in violation of plaintiffs’ rights assured and 
protected by the Fourteenth Amendment to the Con­
stitution of the United States.”

Plaintiffs thus assert that defendants’ lending of state- 
owned textbooks to children now attending racially segre­
gated private schools situated within the State of Mis­
sissippi is violative of plaintiffs’ Fourteenth Amendment 
rights and constitutes illegal state aid to racially segre­
gated education. Plaintiffs emphasize that they do not 
challenge the right of students attending private schools, 
either sectarian or nonsectarian, to receive state-owned

A ppen d ix  A



3a

textbooks so long as the schools they attend were not 
organized in the wake of public school desegregation and 
do not engage in racially discriminatory admission prac­
tices, but as to students attending schools of the latter 
category, their claim is that the state may not validly 
provide them with free textbooks.

Plaintiffs pray an order requiring an accounting by de­
fendants of all textbooks purchased from the State of 
Mississippi or on loan from the State of Mississippi to 
private schools and students enrolled therein; that defen­
dants be directed immediately to recall, and otherwise 
assure the return to state depositories, of all textbooks 
used by students in attendance at private schools which 
have already been adjudged by other United States Courts 
as racially segregated and which have been formed for 
the purpose of providing white students with an alter­
native to racially integrated, non-discriminatory public 
schools; that the defendants be enjoined from further sale 
or distribution of such textbooks to any private schools 
or students enrolled therein without first notifying plain­
tiffs and obtaining court approval; and that defendants 
be enjoined from distributing state-owned textbooks to 
any private schools or students enrolled therein without 
first establishing that the school is racially integrated and 
has not had the effect of frustrating or impeding the estab­
lishment of racially integrated public schools.

Subject matter jurisdiction, not contested, is predicated 
upon 42 U.S.C., §1983 and 28 U.S.C., §1343(3) and (4).

II

Three-Judge Court Jurisdiction

Subsequent to the original filing of the complaint, plain­
tiffs submitted the following motion:

A ppen d ix  A



A ppen d ix  A

“Plaintiff's, pursuant to Jackson v. Choate, 404 F.2d 
910 (5th Cir., 1968), respectfully move this Court to 
certify this cause to the Chief Judge of the United 
States Court of Appeals for the Fifth Circuit to 
convene a Three-Judge District Court pursuant to 28 
U.S.C., §§2281, 2284.

“We further move that the Three-Judge District 
Court thereafter determine whether this action should 
be litigated before it or a single district court judge.”

In response thereto, the managing District Judge con­
cluded that the complaint called for the convening of a 
Three-Judge District Court in accordance with 28 U.S.C., 
§2284, and requested the Chief Judge of the Circuit to 
constitute a Court as contemplated by the statute. There­
after, the Court was constituted.

The present views of the plaintiffs to the contrary not­
withstanding, the Court is of the opinion that, sitting as 
a Three-Judge District Court, it has jurisdiction of this 
controversy.

Title 28, U.S.C., §2281, provides:
“An interlocutory or permanent injunction restrain­

ing the enforcement, operation or execution of any 
State statute by restraining the action of any officer 
of such State in the enforcement or execution of such 
statute or of an order made by an administrative 
board or commission acting under State statutes, shall 
not be granted by any district court or judge thereof 
upon the ground of the constitutionality of such stat­
ute unless the application therefor is heard and deter­
mined by a district court of three judges under §2284.”

To authorize the convention of a Three-Judge Court 
the controversy must possess the following characteristics:



5a

(1) the constitutional question raised must be substantial;
(2) a state statute or administrative order of general state­
wide application must be assailed as unconstitutional; (3) 
a state officer must be party defendant; and (4) injunctive 
relief must be sought. Idlewild Bon Voyage Liquor Cor­
poration v. Epstein, 1962, 370 U.S. 713, 82 S.Ct. 1294, 
8 L.Ed.2d 794; Hall v. Carson, 5 Cir., 1970, 430 F.2d 430, 
442-443; Moore’s Federal Practice, 1 A., §0.205; C. A. 
Wright, Law of Federal Courts, §50 at 189 (2nd Ed. 1970).

This case meets these tests.
An injunction is sought against the enforcement by 

state officials of a state statute, §§6634, et seq., Mississippi 
Code, 1942,1 and Board regulations.2 The contention is

1 Section 6641(1) (a) Mississippi Code of 1942:
“ The hoard shall have the power and is hereby authorized: 

(a) To promulgate rules and regulations for the purchase, 
care, use, disposal, distribution, and accounting for all books 
to be furnished under the terms of this Act and to promulgate 
such other rules as may be necessary to the proper administra­
tion of this Act.”

Section 6656 Mississippi Code of 1942:
“ Plan. This Act is intended to furnish a plan for the adop­

tion, purchase, distribution, care and use of free textbooks to 
be loaned to the pupils in all elementary and high schools of 
Mississippi.

“ The books herein provided by the board shall be distributed 
and loaned free of cost to the children of the free public 
schools of the state, and all other schools located in the state, 
which maintain educational standards equivalent to the stan­
dards established by the state department of education for 
the state schools.”

2 The regulation for distribution of state-owned textbooks from 
1940 through 1970 provided as follows:

“ For the distribution of free textbooks the local control will 
be placed in the hands of the County Superintendent of Edu­
cation. All requisitions for books shall be made through him 
and all shipments of books shall be invoiced through him. At

A ppen d ix  A



6a

that although the statute requires the free lending of 
textbooks to all educable children, it should not include 
those attending private racially segregated schools. Plain­
tiffs say that they do not object to other educable children 
receiving the books. Thus it is argued that they are not 
claiming the statute to be altogether unconstitutional but 
they are only challenging the constitutionality of its ap­
plication. Since, however, the statute specifically provides 
that all children shall receive the books and this Court 
has no authority to amend that language, we must con­
sider the complaint as an attack on the statute as written. 
Our jurisdiction, of course, extends to a consideration of 
whether a facially valid statute has been unconstitutionally 
applied by officers in charge of its enforcement.

As to substantiality, see Ex Parte Poresky, 1933, 290 
U.S. 30, 32; 54 S.Ct. 3, 4; 78 L.Ed. 152, 153; Local Union

A ppend ix  A

his discretion he may set up certain regulations governing the 
distribution of books within the county, such regulations not 
to conflict with the regulations adopted by the State Textbook 
Board or provisions of the Free Textbook Act.”

The above regulation was revised on October 14, 1970, to read 
as follows:

“Public Schools. The administration of the textbook pro­
gram in the public schools shall be the responsibility of the 
administrative heads of the county units, consolidated districts, 
and municipal separate districts set up by the Legislature. 
All textbook transactions between the public schools and the 
State shall be carried on through them. It shall be the duty 
of these local custodians to render all reports required by the 
State; to place orders for textbooks for the pupils in their 
schools; . ..

“Private Schools. Private and parochial school programs 
shall be the responsibility of the State Textbook Board. All 
textbook transactions will be carried out between the Board 
and the administrative heads of these schools. Their duties 
shall be the same as outlined above for public schools.”



7a

No. 300, Amalgamated Meat Cutters & Butchers Workmen 
of North America, AFL-CIO v. McCulloch, 5 Cir., 1970, 
428 F.2d 396, 399-400.

Contrary to the position taken by defendants, we hold 
that these plaintiffs, black children who are attending 
the public schools, have standing to prosecute this com­
plaint, Chance v. Mississippi Textbook Bating Board, 1941, 
190 Miss. 453, 200 So. 706 ; Association of Data Processing 
Service Organizations, Inc. v. Camp, 1970, 397 U.S. 150; 
Barlow v. Collins, 1970, 397 TT.S. 159.

A ppen d ix  A

I ll

The Merits

Near the close of the Great Depression, Governor Paul 
B. Johnson, Sr. on January 16, 1940, delivered his In­
augural Address to a joint session of the Mississippi 
Legislature.3 He said that 75,000 children in Mississippi 
were without textbooks, that all states surrounding Mis­
sissippi gave free textbooks to each child in those states, 
that the failure to provide free textbooks to the children 
of Mississippi was “an indictment of our state govern­
ment” , and that the State should furnish free textbooks 
to all educable children in the elementary grades.

The result of this appeal was the enactment of Chapter 
202 of the General Laws of the State of Mississippi of 
1940, approved February 16, 1940, now codified as indi­
cated supra, by which a textbook purchasing board was 
established. The board was cloaked with authority to 
select, purchase, distribute, and care for free textbooks in 
all schools in the State, through the first eight grades.

Mississippi House Journal, 1940, page 42.



8a

In Ms message to the Legislature on January 7, 1942,4 
Governor Johnson recommended that the free textbook 
program be extended to high school students. This re­
sulted in the enactment of Chapter 152 of the General 
Laws of Mississippi of 1942, approved March 23, 1942, 
also codified as above, by which the program was extended 
to include high school students.

The program had not long been in existence, however, 
before a state court suit was filed to enjoin the Textbook 
Purchasing Board from distributing free textbooks to pri­
vate and sectarian schools. This wTas a taxpayers’ suit, 
complaining that textbooks were about to be requisitioned 
by and loaned to pupils in thirteen private elementary 
schools, all of which were sectarian, and that the issuance 
of such books for the free use of students in sectarian 
schools would be a violation of §208 of the Mississippi 
Constitution of 1890.

Section 208 provides that:
“No religious or other sect or sects shall ever con­

trol any part of the school or other educational funds 
of this state; nor shall any funds be appropriated 
toward the support of any sectarian school, or to any 
school that at the time of receiving such appropriation 
is not conducted as a free school.”

In a 5-1 decision, the Supreme Court of Mississippi 
upheld the legality and the constitutionality [under §208] 
of providing free textbooks to students in private, sec­
tarian institutions.

A ppen d ix  A

4 Mississippi House Journal, 1942, page 52.



9 a

In an opinion written by the late [and we may justifiably 
say, great] Justice Julian P. Alexander, Sr., the Missis­
sippi Supreme Court spoke the following:

“Although the act allows the loaning of such books 
to pupils in properly qualified private elementary 
schools, whether sectarian or not, the sectarian char­
acter of some of the schools whose pupils would be 
loaned school books is vigorously stressed in com­
plainant’s brief and argument, and some alarm is 
confessed by counsel lest this legislation be viewed 
otherwise than as a threat to the mutual independence 
of church and state.

“ The bases for such anxiety are founded upon con­
siderations which bulked large in the minds and hearts 
of those who founded our republic, and who, in order 
to insure domestic tranquility and secure the blessings 
of liberty, established its Constitution with its restric­
tions, and the flag, which it follows, with its freedom.

“Freedom of conscience was one of the blessings of 
liberty sought to be secured by constitutional separa­
tion of church and state. These principles are historical 
and fundamental. Yet it is quite true that while liberty 
is to be maintained at the price of eternal vigilance, 
such vigilance should include within its scope the com­
mon welfare of those who have the right to view 
educational opportunity as one of the ‘blessings of 
liberty’ .

# # # # #

“There is no requirement that the church should 
be a liability to those of its citizenship who are at the 
same time citizens of the state, and entitled to priv­
ileges and benefits as such. Nor is there any require­

A ppen d ix  A



10a

ment that the state should be godless or should ignore 
the privileges and benefits of the church. Indeed, the 
state has made historical acknowledgment and daily 
legislative admission of a mutual dependence one upon 
the other.

“It is the control of one over the other that our 
Constitution forbids. Sections 18, 208. The recog­
nition by each of the isolation and influence of the 
other remains as one of the duties and liberties, 
respectively, of the individual citizen. It is not amiss 
to observe that by too many of our citizens the political 
separation of church and state is misconstrued as 
indicating an incompatibility between their respective 
manifestations, religion and politics. The state has 
a duty to respect the independent sovereignty of the 
church as such; it has also the duty to exercise vigilance 
to discharge its obligation to those who, although sub­
ject to its control, are also objects of its bounty and 
care, and who, regardless of any other affiliation are 
primarily wards of the state. The constitutional bar­
rier which protects each against invasion by the other 
must not be so high that the state in discharging its 
obligation parens patriae, cannot surmount distinctions 
which, viewing the citizens as a component unit of 
the state, become irrelevant.

“ The religion to which children of school age adhere 
is not subject to control by the state; but the children 
themselves are subject to its control. If the pupil 
may fulfill its duty to the state by attending a pa­
rochial school it is difficult to see why the state may 
not fulfill its duty to the pupil by encouraging it ‘by 
all suitable means’. The state is under duty to ignore 
the child’s creed, but not its need. It cannot control

A ppen d ix  A



11a

what one child may think, hut it can and must do all 
it can to teach the child how to think. The state which 
allows the pupil to subscribe to any religious creed 
should not, because of his exercise of this right, pro­
scribe him from benefits common to all.

“If the safety of the republic is to remain the su­
preme law, the safety and welfare of the citizens 
who compose it must remain supreme. In obedience 
to this duty the state may and should supply the 
child with protection against physical disease and 
danger, and under our Constitution must encourage 
the promotion of intellectual and moral improvement. 
Such benefits once made available by the state, may 
be demanded by the citizen or by any group of citizens. 

# * # # #
“Calm reason must not be stampeded by random 

cries of church or state or sectarian control, or by 
the din from the conflict of catechism and dogmatism. 
A wholesome sanity must keep us immune to the dis­
abling ptomaine of prejudice. If throughout the stat­
ute there are words which arrest the attention of over­
sensitized suspicion and are seen by a jaundiced eye 
as symptoms of secular control, one may regain com­
posure by viewing the state’s book depository as a 
great public libary of books available to all, which 
sells any books to anybody, and which, subject to 
reasonable regulation, allows the free use thereof to 
any child in any school. Cf. ch. 289, Laws 1938.

# # # # *
“We are of the opinion that the appropriation in 

chapter 18 of the Laws of 1940 was not a use or 
diversion of school or other educational funds as

A ppen d ix  A



12a

contemplated by section 208, Mississippi Constitution 
of 1890, nor did it become a part thereof. The ap­
propriation for schools is entirely separate, ch. 17, 
Acts of 1940. The use of the textbook fund consti­
tutes no charge against any public school funds, 
properly so called, nor against any trust funds avail­
able for particular schools or educational purposes. 
Such funds are not appropriated ‘toward the support 
of any sectarian school’, nor does the furnishing of 
such books to the pupils in properly qualified private 
schools constitute a pledging or loaning of the credit 
of the state ‘in aid of any person, association, or cor­
poration’ in contravention of section 258 thereof. The 
books belong to, and are controlled by, the state; 
they are merely loaned to the individual pupil therein 
designated; their preservation is fostered by exaction 
of suitable compensation for their loss or damage; 
the duty of protection through fumigation against 
contagion by use is assumed by the state.

A ppen d ix  A

“Nor is the loaning of such books under such cir­
cumstances to the individual pupils a direct or indirect 
aid to the respective schools which they attend, al­
though school attendence is compulsory. Such pupil 
is free to attend a proper public or private school, 
sectarian or otherwise.”

The judgment of the Chancery Court of Hinds County, 
Mississippi, denying the injunction, was affirmed. Chance 
v. Mississippi Textbook Rating Board, 1941, 190 Mass. 
453, 200 So. 706.



13a

This 1941 decision of the Supreme Court of Mississippi 
seems generally to be in accord with one delivered twenty- 
seven years later by the Supreme Court of the United 
States in Board of Education of Central School District 
No. 1 v. Allen, 1968, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 
1060.

In that case a New York statute requiring school dis­
tricts to purchase and loan textbooks to students enrolled 
in parochial as well as in public and private schools was 
under constitutional attack. The Supreme Court held that 
the New York statute did not constitute a “law respecting 
an establishment of religion or prohibiting the free exer­
cise thereof” in conflict with the First and Fourteenth 
Amendments to the Constitution of the United States. 
We quote from the opinion in Allen, supra:

“Everson v. Board of Education, 330 U.S. 1, 67 
S.Ct. 504, 91 L.Ed. 711 (1947), is the case decided by 
this Court that is most nearly in point for today’s 
problem. New Jersey reimbursed parents for expenses 
incurred in busing their children to parochial schools. 
The Court stated that the Establishment Clause bars 
a State from passing ‘laws which aid one religion, 
aid all religions, or prefer one religion over another’, 
and bars, too, any ‘tax in any amount, large or small 
* * * levied to support any religious activities or in­
stitutions, whatever they may be called, or whatever 
form they may adopt to teach or practice religion’. 
330 U.S., at 15-16, 67 S.Ct., at 411. Nevertheless, said 
the Court, the Establishment Clause does not prevent 
a State from extending the benefits of state law to all 
citizens without regard for their religious affiliation 
and does not prohibit ‘New Jersey from spending tax-

A ppen d ix  A



14a

raised funds to pay the bus fares of parochial school 
pupils as a part of a general program under which 
it pays the fares of pupils attending public and other 
schools’ . The statute was held to be valid even though 
one of its results was that ‘children are helped to 
church schools’ and ‘some of the children might not 
be sent to the church schools if the parents were com­
pelled to pay their children’s bus fares out of their 
own pockets’. 330 U.S., at 17, 67 S.Ct., at 512. As 
with public provision of police and fire protection, 
sewage facilities, and streets and sidewalks, payment 
of bus fares was of some value to the religious school, 
but was nevertheless not such support of a religious 
institution as to be a prohibited establishment of 
religion within the meaning of the First Amendment.

# ^r. .y. -V- -O'*iv *7r ~n~ vT'

“The express purpose of §701 was stated by the 
New York Legislature to be furtherance of the edu­
cational opportunities available to the young. Appel­
lants have shown us nothing about the necessary 
effects of the statute that is contrary to its stated 
purpose. The law merely makes available to all chil­
dren the benefits of a general program to lend school 
books free of charge. Books are furnished at the re­
quest of the pupil and ownership remains, at least 
technically, in the State. Thus no funds or books are 
furnished to parochial schools, and the financial benefit 
is to parents and children, not to schools. Perhaps 
free books make it more likely that some children 
choose to attend a sectarian school, but that was true 
of the state-paid bus fares in Everson and does not 
alone demonstrate an unconstitutional degree of sup­
port for a religious institution.” [Emphasis ours].

A ppen d ix  A



15a

To be specific, the racial identity of the child had nothing 
to do with a the original enactment of the Mississippi 
statute nor has it had anything to do with the receipt of 
a free textbook throughout a period of more than thirty 
years. Every Mississippi school pupil, before and since 
1954, the date of Brown v. Board of Education, whether 
enrolled in public, private, or parochial schools, of what­
ever race, has received the free textbooks without ques­
tion or impediment.

Plaintiffs say, however, that furnishing the textbooks 
free to those students who now choose to attend racially 
segregated private schools, established in Mississippi since 
1964 for the purpose of affording a child an opportunity 
of not attending integrated public schools, is unconstitu­
tional because it conflicts with the “affirmative duty to take 
whatever steps might be necessary to convert to a unitary 
system in which racial discrimination would be eliminated 
root and branch” , Green v. County School Board of New 
Kent County, 1968, 391 U.S., at 437.

In line with this position plaintiffs say (Brief, p. 25) 
“We challenge this statute to the extent that it requires 
or authorizes the distribution of state-owned textbooks to 
schools formed for the purpose of having the effect of 
providing whites with an alternative to public integrated 
education.”

The evidence establishes that 34,000 students are pres­
ently receiving state-owned textbooks while attending 107 
all-white, nonsectarian private schools which have been 
formed throughout the state since the inception of public 
school desegregation.5 This number is to be compared

5 An additional 8,000 students are enrolled in 41 private, non- 
seetarian schools which do not participate in the state textbook 
program.

A ppen d ix  A



16a

with 534,500 students in more than 1,000 public schools 
and 12,100 students in desegregated parochial schools wrho 
are receiving free textbooks. It is plain, however, that 
the books have not been issued to the schools but to the 
students. As in the case of public schools, private and 
sectarian school authorities are held responsible for the 
books as a matter of orderly administration. The statute 
does not authorize the distribution of the books to schools, 
only to pupils.

We are thus brought to the point of determining whether 
the state’s furnishing of free textbooks to students attend­
ing racially segregated schools is a support of such schools, 
for whose promotion and encouragement public funds, of 
course, may not be constitutionally provided. In terms of 
the unequivocal prohibition contained in the First Amend­
ment, made applicable to the states by the Fourteenth 
Amendment, the question has been clearly settled. Free 
textbooks to the students is not a financial benefit to the 
church-related schools, as held in Allen, and is not a direct 
or an indirect aid to such schools, as held in Chance. In 
the recent case of Lemon v. Kurtzman, 403 U.S. 603, 29 
L.Ed.2d 745, the United States Supreme Court continued 
to recognize the distinction between permissible state aid 
to the student and impermissible state aid to the church- 
related school, and invalidated a Pennsylvania statute 
which undertook to provide financial aid directly to church- 
related schools.

The essential inquiry, therefore, is whether we should 
appfy a more stringent standard for determining what 
constitutes state aid to a school in the context of the Four­
teenth Amendment’s ban against denial of the equal pro­
tection of the law than the Supreme Court has applied 
in First Amendment cases. On the record made before us

A ppend ix  A



17a

we perceive neither the logic nor the necessity for applying 
any different test to a universally free school textbook 
program.

Plaintiffs rely primarily upon Coffey v. State Educa­
tional Finance Commission, 296 F. Supp. 1389 (S.D., Miss., 
1969); Poindexter v. Louisiana Financial Assistance Com­
mission, 275 F. Supp. 833 (E.D., La., 1967); Griffin v. 
State Board of Education, 296 F. Supp. 1178 (E.D., Va.,
1969) ; and Green v. Kennedy, 309 F. Supp. 1127 (D.C.,
1970) , appeals dismissed for want of jurisdiction, sub mom. 
Cannon v. Green, 398 U.S. 956 (1970), and Coit v. Green, 
400 U.S. 986 (1971); continued as Green v. Connally, 330 
F. Supp. 1150 (D.C., 1971); affirmed sub mom. Coit v.
Green, ------ - U.S. ------ , 92 S.Ct. 564 (1971). These cases,
which are clearly distinguishable on their faces, are not 
in point on the present issue.

In Coffey it was held that state tuition grants to students 
attending private segregated schools, first begun in 1964, 
and which in three years time was followed by an increase 
in private non sectarian schools from three to forty eight 
in number, were “critical to most of the schools” , 296 
F. Supp. at 1392. The Court further found “that the tuition 
grants have fostered the creation of private segregated 
schools * * * encourages, facilitates, and supports the 
establishment of a system of private schools operated on 
a racially segregated basis as an alternative available to 
white students seeking to avoid desegregated schools * * * 
and that grants ‘tend in a determinative degree to per­
petuate segregation’ ” . Therefore, the grants, and the Mis­
sissippi statute which authorized them, were struck down 
as violative of the equal protection clause of the Four­
teenth Amendment.

A ppen d ix  A



18a

The Court further pointed out:
“There is no claim in this case that the Constitu­

tion requires all children to attend public schools, or 
that a private citizen may not select a private segre­
gated school for his child because of a desire to keep 
the child from being educated with children of a dif­
ferent race. What is involved here are legislative en­
actments which ‘will significantly encourage and in­
volve the State in private discriminations’ . Reitman 
v. Mulkey, 387 U.S. 369, 381, 87 S.Ct. 1627, 1634, 
18 L.Ed.2d 830, 838 (1967).”

Similar tuition grant cases from other states are col­
lated in Footnote 1 to Coffey, 296 F. Supp., at 1390, and 
will not be cited here.

Similarly in Poindexter a statute providing for tuition 
grants to pupils attending private segregated schools was 
invalidated. The Court held that any affirmative and pur­
poseful state aid promoting private discrimination violates 
the equal protection clause, a state cannot legitimately be 
just a little bit discriminatory, and that the object or pur­
pose of legislation is to be determined by its natural and 
reasonable effect. In speaking for the Court, Judge Wisdom 
wrote:

“ # * * any aid to segregated schools that is the prod­
uct of the State’s purposeful policy of fostering segre­
gated schools and has the effect of encouraging dis­
crimination is significant state involvement in private 
discrimination. (We distinguish therefore, state aid 
from tax benefits, free school-books, and other prod­
ucts of the State’s traditional policy of benevolence 
toward charitable and educational institutions).” 275 
F. Supp. 854.

A ppen d ix  A



19a

The United States Supreme Court affirmed, 389 U.S. 
571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968).

The result of this decision was that Louisiana enacted 
a revised tuition grant law. This statute, too, was in­
validated by a subsequent Three-Judge Court. Poindexter 
v. Louisiana Financial Assistance Commission, 296 F. Supp. 
686. Judge Wisdom again wrote:

“The free lunches and textbooks Louisiana provides 
all childen in public and private schools are the fruits 
of a benevolent racially neutral policy.”

Again the United States Supreme Court affirmed, 393 
U.S. 17 (1968).

In Griffin, a three-judge district court invalidated Vir­
ginia’s statute allowing tuition grants to children attend­
ing segregated schools. Expressly adopting Judge Wis­
dom’s reasoning in Poindexter, the Court held the statute 
impermissibly provided for payments to children who may 
expend such funds for a segregated classroom, thereby 
“giving life to an educational forum decried by the Fed­
eral Constitution.” 296 F. Supp. at 1181. ^

The tuition grant cases, which emphasize the financial 
support thereby afforded to educational instituitons, rest 
upon wholly different considerations from the case sub 
judice. Here we are concerned only with the act of fur­
nishing a state-owned textbook to the student.

Finally the Green case, upon which plaintiffs place great 
reliance, involved the grant of federal tax exempt status 
and deductibility of contributions to private segregated 
schools in Mississippi. The Green Court emphasized that, 
apart from tax exemption to the schools, the deductions 
from income taxes by individuals and corporations who 
make contributions to racially segregated private schools

A ppen d ix  A



20a

amounted to substantial and significant governmental sup­
port for the segregated private school pattern. Thus the 
exemptions were held invalid as against federal public 
policy without reaching constitutional issues.

We find no federal decision which has suggested the 
invalidation of the beneficient policy of a state to furnish 
textbooks to all of the educable children within its borders. 
To the contrary, under settled case law, the state’s legit­
imate interest in the education of its youth, in whatever 
school the student or his parents may select, is a proper 
and adequate basis upon which the state may administer 
its free textbook program.

It has already been demonstrated that in Mississippi 
the free textbook program began without racial motivation 
and the books have long been uniformly supplied to all 
children alike, regardless of race, in both public and private 
schools. Only one prerequisite must be satisfied for the 
student who attends a private school, i.e., the school shall 
maintain educational standards equivalent to those estab­
lished by the State Department of Education for public 
schools. In fact, plaintiffs concede that Mississippi has 
historically maintained a benevolent and racially neutral 
policy in the administration of its state-owned textbook 
program.

We find it wholly illogical to require an alteration in 
the state’s textbook program simply because of the advent 
of more private schools following the desegregation of 
the public school system. Depriving any segment of school 
children of state-owned textbooks at this point in time is 
not necessary for the establishment or maintenance of 
state-wide unitary schools. Indeed, the public schools which 
plaintiffs acknowledge were fully established as unitary 
schools throughout the state no later than 1970-71, continue

A p p en d ix  A



21a

to attract 90% of the state’s educable children. There 
is no showing that any child enrolled in private school, 
if deprived of free textbooks, would withdraw from private 
school and subsequently enroll in the public schools, now 
unitary. We are mindful of the fact that children are free 
to attend private schools of their choice, for whatever 
reason satisfactory to them and to their parents. See the 
concurring opinion of Mr. Justice Brennan in Abington 
School District v. Sehempp, 374 U.S., at 242 (1963).

There could be considerable doubt about the consti­
tutionality, under the equal protection clause, of a pro­
gram which would provide free books to some children 
while denying them to others. Providing schools to some 
children and denying others access to those schools solely 
for racial reasons was held invalid in Brown v. Board of 
Education, supra.

Plaintiffs say that furnishing the free textbooks to 
pupils in private schools encourages attendance at such 
institutions. This, of course, is conjectural, as there is no 
substantial proof on that score. It occurs to us, however, 
that if encouragement alone is a sufficient test and if im­
permissible encouragement necessarily follows from the 
issuance of the books and subsequent attendance at a 
particular school, then the books may not be issued to 
those attending private sectarian schools (something which 
the Supreme Court has thus for declined to invalidate).

Since the issuance of free textbooks to students attend­
ing private schools has failed to defeat the establishment 
of a state-wide unitary school system in Mississippi, and 
since plaintiffs are themselves receiving their free text­
books, there is serious question as to whether plaintiffs 
are threatened with the irreparable injury which is pre­
requisite to injunctive relief. Federal judicial power is to

A ppen d ix



22a

be exercised to strike down legislation, whether state or 
federal, only if a plaintiff is himself immediately harmed, 
or immediately threatened with harm, by the challenged 
action, Poe v. Tillman, 1961, 367 U.S. 497, 504.

Lurking beneath all this is the principle that two wrongs 
do not make a right. Punitive action against the children 
now receiving free textbooks in the private schools will 
do nothing to cure acts committed by others (not children) 
in the years now dead and gone.

We hold that the free textbook program and the Mis­
sissippi statutes authorizing it, for the consideration herein 
recited, are not constitutionally invalid.

This opinion constitutes both our findings of fact and 
conclusions of law.

The complaint is dismissed and judgment will be entered 
accordingly.

A p p en d ix  A

/ s /  J as. P. Coleman
United States Circuit J udge

/ s /  W illiam C. K eady
U nited States D istrict J udge

/ s /  Orma R. Smith

U nited States D istrict J udge



23a

A ppen d ix  A

E ntered: April 18, 1972

In the United States D istrict Court for the 
Northern D istrict of Mississippi

Civil A ction No. WC70-53K

Delores Norwood, et al.,

—vs.
Plaintiffs,

D. L. H arrison, Sr., et al.,
Defendants.

J udgment

This cause having been submitted upon the pleadings 
and oral and documentary proof, and after arguments of 
counsel and submission of memorandum briefs, and the 
court having concluded for the reasons set forth in its 
opinion this date released that the complaint is without 
merit and should be dismissed; it is

Ordered

(1) All relief sought by plaintiffs be, and the same is 
hereby denied.

(2) The complaint is finally dismissed with prejudice. 

All costs are taxed to plaintiffs.

This 17th day of April, 1972.
/ s /  W illiam C. Keady

United States District Judge

F or the T hree Judge Court



2,4a

E ntered: May 16, 1972

I n the United States D istrict Court for the 
Northern D istrict of M ississippi

W estern D ivision

Civil A ction No. WC70-53K

A ppen d ix  A

Delores Norwood, et al.,

Plaintiffs,

D. L. H arrison, Sr ., et al.,

Defendants.

Notice of A ppeal

P lease T ake, Notice that plaintiffs Delores Norwood, 
Andrew Calloway and Van Siggers, pursuant to 28 U.S.C. 
§1253, enter an appeal to the Supreme Court, of the United 
States from the judgment and opinion of this three-judge 
district court dated April 17, 1972 and entered April 18, 
1972.



25a

A ppen d ix  A

Dated: May 15, 1972.

Melvyn B. L eventhal 
F red L. B anks, J e.
R euben V. A nderson

538% North Farish Street 
Jackson, Miss. 39202

J ack Greenberg 
Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Plaintiffs



26a

Appendix A 

Certificate of Service

I hereby certify that on this 15th day of May, 1972, 
I caused to be served by United. States mail, postage pre­
paid, a copy of the foregoing Notice of Appeal upon 
Honorable William A. Allain, Assistant Attorney General, 
P. 0. Box 220, Jackson, Mississippi 39205.

/ s /  R euben Y . A nderson 
Attorney for Plaintiffs



27a

ARTICLE 32

TEXTBOOKS
§ 6834. Mississippi state textbook purchasing’ board es­

tablished.—There is hereby established the Mississippi 
State Textbook Purchasing Board, which shall hereinafter 
be referred to in this act as the board. Said board shall 
consist of five members, the governor who shall be ex- 
officio chairman, the state superintendent of education, 
and three members to be appointed by the governor, one 
from each of the three supreme court districts, who shall 
serve for a period of four years. In case of a vacancy 
during the administration for which they are appointed, 
the governor shall appoint a member or members to fill 
only the unexpired term. Each appointed member of the 
board shall be an educator of known character and acknowl­
edged ability in his or her profession, with at least five 
years of successful teaching or supervisors experience 
in the public schools of Mississippi immediately previous 
to his or her appointment, and in addition thereto, shall 
be a qualified elector of his or her supreme court district. 
He or she shall be at least thirty years old.

The board, at its first meeting, shall elect an executive 
secretary who has proven business ability, whose duty 
it shall be to keep the minutes of the board, a complete 
record of all the proceedings of the board, and shall keep, 
file and preserve all documents, papers and records of 
the board, and shall perform such other duties as may 
be prescribed by the board. Said executive secretary shall 
enter into bond in the sum of $10,000.00 payable to the 
state of Mississippi, conditioned upon the faithful per­
formance of his duties, and the proper and accurate ac­

A p p e n d ix  B



28a

counting for ail funds of every nature that may come into 
his hands or under his control under the provisions of 
this act.

Three members shall constitute a quorum for the trans­
action of all business.

Sources : Laws, 1940, ch. 202; 1942, ch. 152; 1946, ch. 
444, § 1.

§ 6635. Oath of office.—Each appointive member of the 
board and its executive secretary, before entering upon 
the discharge of his or her duties shall take, subscribe, 
and file with the secretary of state the following oath to 
be administered by an officer authorized to administer 
oaths:

“I ........................................................, do solemnly swear,
(or affirm) that I will faithfully discharge my duties as 
required by law, uninfluenced by any factor except a sincere 
desire to promote the best educational interest of Mis­
sissippi, So help me God.”

Sources: Laws, 1940, ch. 202.

§ 6636. Members of board not to be personally or pecu­
niarily interested.—No person who has acted as an agent 
for any author or textbook publishing house, or an attor­
ney for any author or textbook publishing house, or who 
has been an author or associate author of any textbook 
published by any textbook publishing house, or who owns 
stock in any textbook depository or any publishing house, 
or who has been directly or indirectly concerned in the 
authorship of any textbook, or directly or indirectly con­
nected in any way with any textbook publishing house, 
shall be eligible to appointment on the Mississippi state

A ppen d ix  B



29a

textbook rating and purchasing board. Any contract en­
tered into in violation of this section shall be void.

Sottbces: Laws, 1940, ch. 202.

§ 6837. Publishers not to approach or make offers to 
members of board.—It shall be unlawful for any publisher, 
author, person, firm, company or corporation who deals 
in books, or any of their representatives, to offer, either 
directly or indirectly, any kind of employment of any 
pecuniary connection to any member or members of said 
board during their tenure of appointment,

S o t t b c e s : Laws, 1940, ch. 202.

§ 6838. When members of board shall be disqualified to 
vote.—If any person related within the third degree by 
blood or marriage, as computed by civil law, to any mem­
ber of the board, or if any person that is associated in any 
business or partnership with any member of said board, 
shall be employed in good faith by any school book com­
pany, firm, corporation or agent in connection with the 
adoption of textbooks within this state, the said member of 
said board so related by blood or marriage, or so associ­
ated in business or partnership with such person, shall not 
vote in the rating and adoption of any school book or books 
offered by such school book company, firm, corporation or 
agent for adoption.

Sources : Laws, 1940, ch. 202.

§ 8639. Compensation of the appointive members of the 
board and secretary to the board.—The governor and state 
superintendent of education shall serve without extra com­
pensation. Each appointive member of the board shall re­
ceive ten dollars per day for each day in active service of

A ppen d ix  B



30a

the board, not to exceed sixty days per year, and, in addi­
tion thereto, ten cents (10c) per mile one way for each mile 
actually traveled, by the shortest traveled route, from home 
to the place of meeting.

The salary of the executive secretary shall be set by the 
board and all necessary traveling expense shall be approved 
by the board. The annual salary and travel expense, how­
ever, shall not exceed that allowed by the legislature for 
the director of a division in the state department of edu­
cation, and shall be subject to all other provisions govern­
ing the same. The salary, per diem, and travel expense shall 
be paid out of the state textbook fund provided herein. 
The board shall have authority to provide necessary help, 
clerical assistance and supplies for the executive secretary, 
to be paid out of the state textbook fund, within the limits 
prescribed in this act.

Sources : Laws, 1940, ch. 202; 1948, ch. 304, § 1; 1950, ch. 
373, eff July 1, 1950.

§ 8640. Meeting—time and place.—The board shall meet 
at such time and place as shall be designated by the chair­
man or by a majority of said board.

Sources : Laws, 1940, ch. 202.

§ 6641. Powers and duties of board.
1. The board shall have the power and is hereby author­

ized :
(a) To promulgate rules and regulations for the jjur- 

chase, care, use, disposal, distribution, and accounting for 
all books to be furnished under the terms of this Act and 
to promulgate such other rules as may be necessary for 
the proper administration of this Act.

A p p en d ix  B



31a

(b) To adopt, contract for, and purchase, cash or credit, 
basal textbooks through twelve grades as provided in the 
school curriculum, or any other course or courses that they 
may add thereto.

(c) To determine the period of contract for rated and 
adopted textbooks shall not be for less than four years and 
not exceeding five years, with the right of the board in its 
discretion to renew or extend such contract from year to 
year for a period not exceeding two additional years, the 
conditions of the approval or forfeiture of a contract and 
other terms and conditions as may be necessary and not 
contrary to law. No contract shall be valid and binding 
until and unless approved by the Governor.

(d) For the purpose of assisting the board during an 
adoption, there shall be rating committees in each of the 
fields in which textbooks are considered for adoption, and 
each committee shall be composed of seven members; the 
State Superintendent of Education shall appoint three (3) 
members of each of the committees, each of whom shall be 
a competent, experienced teacher or supervisor of instruc­
tion professionally trained in each of the fields in which 
textbooks are considered for adoption; the Governor of the 
State of Mississippi thereupon shall appoint four (4) mem­
bers of each of said committees who shall be persons he 
deems competent to participate in the appraisal of books 
offered for adoption, in each field, for use in the public 
schools of this state. It shall be the duty of said rating 
committees to appraise the books offered for adoption in 
each field in which textbooks are offered for adoption and 
recommend three books for each adoption to be made by 
the board and giving the reasons for or basis of such rec­
ommendations. No book shall be recommended which does

A ppen d ix  B



32a

not receive a majority vote of the members of each com­
mittee ; any member or members dissenting from any ma­
jority vote of the committee shall make his or their ap­
praisal of any book recommended or rejected by the 
majority of the committee and specify the reasons there­
for and make such recommendations as he or they think 
proper. All appraisals, recommendations, and dissents if 
any, shall be in writing and filed with the board for its 
consideration upon the adoption. The expenses of such 
committees shall be paid out of the State textbook fund 
provided herein. Such rating committees shall be subject 
to the regulations set forth in Sections 2, 3, 4, 5 and 6. 
The board shall have the power to reject any and all rec­
ommendations of the rating committees and to call for 
further recommendations; but in no case shall the board 
adopt any book not recommended by the rating committees.

(e) The board shall have complete power and authority 
over additions and amendments to textbooks, advertising 
and their contents, bids and proposals, prices of textbooks, 
specimen copies, cash deposits, selection and adoption, dis­
tribution, fumigation, emergencies, selling to others, return 
of deposits, forfeiture of deposits, regulations governing 
the deposit, forfeiture of contract, approval of contract, 
renovation and repair of books requisition, transportation 
or shipment of books, and any other Acts or regulations, 
not contrary to law, that may be deemed necessary for 
furnishing and loaning free textbooks to the school children, 
as provided in this Act. The board shall have full power 
to advertise for bids, to purchase, buy, and contract for all 
such basal textbooks through twrelve grades as provided in 
this Act, and all contracts shall be approved by the Gov­

A p p en d ix  B

ernor.



33a

(f) It shall be the duty of the board to advertise for 
sealed bids, said bids to be opened at a meeting of the 
board at a date named in the advertisement. Bidders shall 
quote their lowest net wholesale prices, and net exchange 
prices, f.o.b. central depository, Jackson, Mississippi, or 
the board may, in its discretion, establish a state depository 
or depositories, or inaugurate any other plan for the dis­
tribution of books, and such prices must not be higher 
than the lowest price at which books are sold anywhere 
in the United States, after all discounts are allowed; and 
at any time that the board may find that any book or books, 
in either regular or special editions, are being furnished in 
any other state at a lower price under contract than it is 
being furnished in Mississippi, the contract shall be for­
feited to the State, and any contractor who violates the 
provisions of this Section shall return all money paid out 
for such book or books and also forfeit said boob or books 
to the State, and suit may be brought on the bond of the 
contractor for all losses sustained.

Successful bidders or contractors shall be required to 
maintain a depository at a place within the State of Mis­
sissippi, to be named by the board, where a stock of books 
sufficient to meet all reasonable and immediate demands 
shall be kept. Upon requisition of the board, the depository 
shall ship books, transportation charges paid, to the vari­
ous shipping points in Mississippi to be specified by the 
board, and for such service the depository shall make no 
charge to the board except the actual cost of transporta­
tion from the depository to the shipping point designated; 
provided that the cost of distribution shall not exceed eight 
percent of the total appropriation for any fiscal year.

2. Any and all textbooks that may be furnished by the 
publisher thereof to any member of the above mentioned

A ppen d ix  B



34a

rating committee without cost shall within one year after 
receipt of same by said member be turned in to the State 
School Book Depository without any cost to the State of 
Mississippi, and the same shall thereafter be used without 
any cost to the State of Mississippi in supplying free text­
books to the educable children of the State of Mississippi 
as now provided by law.

Sources: Laws, 1960, ch. 310.

§ 6642. Copies of bids, contracts, specimen books retained
as public records.—Specimen copies of all textbooks, which 
have been made the basis of contracts under the provisions 
of this act, clearly marked and identified as such, shall be 
deposited by the publisher of said books with the state 
superintendent of education, said specimen copies shall be 
preserved and kept open for inspection by the public. All 
contracts and bonds executed under the provisions of this 
act shall be executed in triplicate, one copy for the con­
tractor, one copy to be filed in the office of the secretary 
of state, and one copy to be filed in the office of the state 
superintendent of education. All contracts shall be ap­
proved by the governor. An original of each bid, whether 
accepted or rejected, shall be filed and preserved in the 
office of the state superintendent of education for at least 
five years. All books furnished the state of Mississippi by 
contractors under this act shall continue to measure up to 
the same standards as are required in the contract, said 
standards to include printing, binding, cover boards, me­
chanical makeup, and any other relevant points as set out 
in the plans and specifications as fixed by the board. Any 
contractor of any book or books, who fails to keep said 
books up to said standards, shall forfeit, not only his con­

A ppen d ix  B



35a

tract to the state, but shall return all money paid out for 
such book or books and also forfeit said books to the state.

S ources: Laws, 1940, ch. 202.
§ 8643. Others may buy books.—Any parent, person or 

school board in any community of the state may purchase 
books from the county superintendent of education or de­
pository, who is given authority to sell books under the 
provisions of this act; provided, that the price of the books 
so ordered or bought shall be paid in advance, said price 
to be the same as the contract price, plus whatever postage 
or delivery charges might accrue.

The county superintendent of education or depository 
shall keep a detailed record of all such sales and shall for­
ward in quarterly payments all such funds received for 
books to the executive secretary to be placed to the credit 
of the state textbook fund. Said executive secretary shall 
furnish the county superintendent or depository with a 
receipt for the money received, and said county superin­
tendent or depository shall keep such receipt as part of 
his public record.

S ources : Laws, 1940, ch. 202.
§6644. Anti-trust provision.—No book or books shall be 

purchased from any person, firm or corporation who is a 
member of, or connected with, any trust. In the event that 
it is established that this provision has been violated, the 
contract shall be forfeited and monies paid out under this 
contract shall be returned to the state, and all books here­
tofore purchased under said contract shall be kept by the 
state.

Sources : Laws, 1940, ch. 202.

A ppen d ix  B



36a

§ 6646. Uniform textbooks—selection by 
local school authorities.

1. The State Textbook Board shall adopt and furnish 
textbooks only for use in those courses set up in the State 
course of study adopted by the State Board of Education, 
or courses established by special acts of the Legislature. 
In all subjects the board, in its discretion, may adopt five 
(5) textbooks from those recommended by professional 
committees, according to the State Textbook Law. The 
prices of books adopted shall not be higher than the lowest 
prices at which the same books are being sold anywhere 
in the United States. The State Textbook Board may 
adopt a plan which permits the local districts to choose 
the book or books to be requisitioned from those adopted, 
provided:

(a) That in selecting readers, the local district may be 
allowed to adopt two (2) from which each pupil enrolled 
may be furnished the equivalent of two (2) in such propor­
tions as desired;

(b) That in selecting books for all other subjects, the 
local school districts may be allowed to select any adopted 
State textbook without being restricted to a single declared 
adoption when the governing authority of the district de­
clares a policy of multiple adoptions and specifies the sub­
ject areas therefor, and further provided, that not more 
than one (1) of the books from the multiple adoption list 
shall be furnished to each pupil enrolled in a course;

(c) That when a book is furnished by the State, it shall 
remain in use during the period of its adoption;

(d) That school officials of separate school districts and 
of each system of county schools shall select the same book 
or books for all of its schools;

A ppend ix  B



37a

(e) That the average per pupil cost of textbooks so fur­
nished any unit shall not exceed that allowed for all other 
units in the State; and

(f) That nothing herein provided shall be construed as 
giving any school the authority to discard or replace usable 
copies of textbooks now being furnished by the State.

2. Whenever any book under contract is displaced by a 
new adoption, the board may continue to require the schools 
to use such books until the stock owned by the State is 
exhausted, provided the period of use shall not exceed four
(4) years.

Sources: Laws, 1966, ch. 421, § 1, eff from and after 
passage (approved May 31, 1966).

§ 6647. Agents designated.— Any person, firm or corpo­
ration with whom a contract has been entered into, under 
the provisions of this act, shall designate the secretary of 
state of Mississippi as its or their agent, upon whom cita­
tion and all other writs and processes may be served, in 
case any suit shall be brought against such person, firm 
or corporation.

Sources: Laws, 1940, ch. 202.

§ 6648. Textbook fund.—The state textbook fund of Mis­
sissippi shall consist of the amount or amounts appro­
priated by the legislature for same, together with all 
monies accruing from the sale of disused books, all monies 
derived from the purchase of books by both public and 
private school trustees, by private individuals, all monies 
collected in damage suits under the terms of this act, or 
any other monies collected in any way whatsoever under 
the terms of this act.

A ppen d ix  B

Sources: L aw s, 1940, ch. 202.



38a

§ 6849. Warrants.—Bills for textbooks purchased by the 
state on requisitions as provided herein, and bills for all 
other expenses incurred under the terms of this act, shall 
be paid by warrants on the state treasury made by the 
auditor on receipt of bills from the executive secretary, 
and approved by the board.

Sources: Laws, 1940, ch. 202.

§ 6650. Printed labels-—book covers.—All books shall 
have printed labels on both inside covers. Each school 
shall number all books, placing the number on said labels. 
All teachers shall keep an accurate record of the number 
and names of all books issued to each pupil. All books 
must be covered by the pupils, under direction of the 
teacher, said covers to be furnished by the board.

Sources: Laws, 1940, ch. 202.

§ 6651. Penalty for school officers dealing in textbooks.— 
No teacher in any of the schools of the State, nor county 
or city superintendent of schools, nor any person officially 
connected with the government of or direction of any 
school shall, during the term of Ms office as said superin­
tendent, or during the time of his or her employment as 
teacher, act as agent or attorney for any textbook pub­
lishing company selling textbooks in this state. If, after 
election as county or city superintendent, or employment 
as teacher, any person filling such position accepts the 
agency or attorneyship of any textbook publishing com­
pany, the acceptance of such agency or attorneyship shall 
work a forfeiture of the office or position as teacher held 
at the time of the acceptance of such agency or attorney- 
ship.

A ppen d ix  B

Sources: L aw s, 1940, ch. 202.



39a

§ 8652. Executive secretary to deposit funds.—The exec­
utive secretary shall deposit all funds sent to him for 
lost or damaged books or any other funds accruing under 
this act to the state treasury to the credit of the state 
textbook fund.

Sources: Laws, 1940, ch. 202.

§ 6653. Suits.—Any loss occasioned by the neglect, care­
lessness, or failure of duty by the county superintendent 
or any principal or teacher in charge of any school, shall 
entitle the state to bring suit for the recovery of the 
amount of the loss or losses occasioned thereby.

Any writ or suit of any nature instituted under the 
provisions of this act shall be brought in the name of 
the state of Mississippi by the attorney general, and any 
money or moneys recovered by such suit shall be placed 
to the credit of the state textbook fund.

Sources: Laws, 1940, ch. 202.

§ 6654. Penalty for the violation of the provisions of 
this act.—Any person wilfully violating any of the provi­
sions of this act shall be guilty of a misdemeanor, and 
upon conviction shall be punished by fine of not more 
than five hundred dollars ($500.00), or not to exceed six 
months in the county jail, or both, in the discretion of 
the court.

Sources: Laws, 1940, ch. 202.

§ 6655. Constitutionality.—Should the courts declare any 
section or sections, sentence, clause, or any part of this 
act unconstitutional, such decision shall apply only to the 
section or sections, sentence, clause or part so declared

A ppen d ix  B



40a

to be unconstitutional, and shall not apply to any other 
section or sections or any other part of this act.

Sources: Laws, 1940, eh. 202.

§ 6656. Plan..—This act is intended to furnish a plan for 
the adoption, purchase, distribution, care and use of free 
textbooks to be loaned to the pupils in all elementary and 
high schools of Mississippi.

The books herein provided by the board shall be dis­
tributed and loaned free of cost to the children of the 
free public schools of the state, and all other schools lo­
cated in the state, which maintain educational standards 
equivalent to the standards established by the state de­
partment of education for the state schools.

Teachers shall permit all pupils in all grades of any 
public school to carry to their homes, for home study, the 
free text books loaned to them, and to carry to their 
homse, for home study, all other regular text books used 
in the public schools of the state whether they be free 
text books or not.

Sources : Laws, 1940, ch. 202; 1942, ch. 152; 1944, ch. 
149, § 1.

§ 6657. Repeal.—All laws and parts of laws in conflict 
herewith shall be and are hereby repealed.

Sources: Laws, 1940, ch. 202.

§ 6658. When free textbooks to be furnished.—The free 
textbooks to be purchased and distributed for use in the 
high schools in the state as provided in this act shall be 
furnished to the pupils during each school session from 
and after July 1, 1942, but nothing contained in this act

A p p en d ix  B



41a

shall be construed as requiring the board to furnish free 
textbooks for use in the ninth to twelfth grades, inclu­
sive, during the 1941-42 school session.

Sources : Laws, 1940, ch. 202; 1942, ch. 152.

§ 6658-01. Storage of school books.— 1. It shall be the 
duty of the board of supervisors of each county in the 
state to provide adequate storage space in the county court­
house, or in some other building at the county site, for 
the storage of school books, distributed under the provi­
sions of chapter 202, laws of Mississippi, 1940, as amended 
by chapter 152, general laws of 1942 [§§ 6634—6658, Code 
of 1942]. In the event sufficient space for the storage of 
such books cannot be provided in the courthouse, the board 
of supervisors shall be authorized to rent a room or rooms 
in some other building at the county site for the storage 
of such books, and to pay such reasonable rental therefor 
as may be necessary out of the general fund of the county.

2. The county superintendent of education, with the 
approval of the county school board, may expend out of 
the county school fund an amount not to exceed one hun­
dred and fifty dollars ($150.00) in any school year for 
part-time janitor’s services or other help in the handling, 
storage, and distribution of school books.

Sources : Laws, 1946, ch. 464, §§ 1, 2.

§ 6658-02. Reports required from non-public schools re­
ceiving free textbooks.—1. The management of all private, 
parochial or denominational schools wherein the state text­
book board is furnishing to the students thereof free 
school textbooks and said free school textbooks are used 
by the students in said school, shall file annually with

A ppend ix  B



42a

the county superintendent of education wherein said school 
is located on or before July 1 of each year a report show­
ing the number of students receiving instruction, the num­
ber of students in regular attendance, the number of 
teachers employed and any other facts required by the 
state board of education as will show the grade, char­
acter and amount of educational work actually done in 
said school.

2. Any person required by this act to do so who shall 
refuse, neglect or fail to file the report herein required 
shall be guilty of a misdemeanor and upon conviction, 
shall be fined in a sum not to exceed twenty five dollars 
($25.00).

3. All laws or parts of laws in conflict herewith be and 
the same are hereby repealed.

Sources : Laws, 1946, ch. 464, §§ 1, 2.

§ 6659. Advertising.—The Mississippi State Textbook 
Purchasing Board is hereby authorized, empowered, and 
directed, in its discretion, to offer for advertising pur­
poses, the protective covers of the several free textbooks, 
to accept bids, to let contracts for said space; and the 
contracts for said advertising purposes shall be let for 
definite periods not to exceed two years.

It shall be the duty of the Mississippi State Textbook 
Purchasing Board, if it is desired that advertising shall 
be used, to approve all proposed advertising submitted for 
use on the covers of such free textbooks, to accept only 
that advertising which will be in keeping with the spirit 
of the schools in promoting the children physically, men­
tally, and morally; and the said Mississippi State Text­
book Purchasing Board is hereby authorized, empowered,

A ppen d ix  B



43a

and directed, in its discretion, to reject any and all bids 
submitted. Provided that no sectarian, un-American or 
immoral advertisements shall be accepted.

That all moneys derived from sale of such advertising 
be deposited in the state treasury for the benefit of the 
general fund.

Sources : Laws, 1940, ch. 194.

§ 6859.5. Mississippi Blue Book, purchase and distribu­
tion of.—1. The State Textbook Purchasing Board be and 
it is hereby authorized and empowered to purchase not 
to exceed seven thousand five hundred copies of the Mis­
sissippi Blue Book for supplementary use in the schools 
of Mississippi.

2. The Mississippi State Textbook Purchasing Board 
shall prescribe the number of copies to be furnished each 
school or make any other regulations governing its dis­
tribution and use.

3. The cost of the Blue Books purchased and distributed 
in excess of the number of copies now authorized by law 
shall be paid for out of the regular appropriation to the 
state textbook fund.

Sources : Laws, 1950, ch. 362, A  1-3.

A ppen d ix  B



44a

Appendix C

(See Opposite) USiT



APPENDIX c l /

STATEWIDE ENROLLMENTS
Private Non-Sectarian Public

1963-64

Total
Enroll­
ment Change

# of 
Schools

Number
of
Schools
Opened
For
First
Time

570,000

Change

2,362 17
1964-65 2,408 + 46 21 4 576,000 +6,000
1965-66 3,841 +1,433 41 20 583,000 +7,000
1966-67 5,452 +1,611 49 8 582,500 - 500
1967-68 6,546 +1,094 58 9 582,500 —

1968-69 9,064 +2,518 69 11 581,500 -1,000

1969-70 30,939 +21,875 124 55 550,500 -31,000

Sept. 1970 42,000^ +11,061 155 31 534,500 -16,000

1 / a n-This Appendix derives entirely/from exhibit offered and received into 
evidence by supplemental order of district court.

-^Estimate based on stipulations; the exact figure lies somewhere between 
41,000 and 43,000.



45a



Appendix D

(See Opposite)



APPENDIX D

PRIVATE NON-SECTARIAN ACADEMIES , /
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM^'

1 9 7 0 -7 1

NAME OF SCHOOL-  ̂ NUMBER OF BOOKS COST TO STATE NUMBER OF STUDENTS-^

1. Presbyterian Day School 264 $ 576.45 135
2. Chamberlain-Hunt Academy 829 3,398 .82 360
3. Clarksdale Baptist 2356 5,937 .45 427
4. F irst United Methodist 1305 3,029.25 169
5. Presbyterian Day School 1247 2,323 .11 141
6. St. George's Episcopal 1340 2 ,885 .54 169
7. Christ Episcopal Day School 2075 5,218 .28 265
8. Woodland H ills  Baptist Academy 2279 5 ,598 .42 428
9. Heidelberg Baptist Academy 1993 5 ,557 .50 295

10. Jesus Name Faith 85 170.70 44
11. St. John's Day School 1130 2,465.85 184
12. F irst Baptist Parochial 630 1,499 .64 78
13. Sylvarena Baptist Academy 1671 4,255 .77 236
14. Gospel Lighthouse Christian 119 472.95 22
15. Adams County Private 2513 8 ,327 .34 1006
16. Adams County Christian 3452 8,918.07 535
17. Amite School Corporation 3950 11,875.26 581
18. Pine H ills  Academy 1839 5 ,194 .44 328
19. Gray Academy 1320 3,932 .43 177
20. Shaw Educational Foundation 1480 4 ,443 .00 905

—̂ This Appendix derives entirely from compilation fi le d  by appellees in the d is tr ic t  court

—̂ All students (and a l l  faculty members) are white except for "15 Chinese, 16 oriental, 2 
Indians and 2 Latin American" students.

—̂ The d is tr ic t  court found that a l l  of the "church schools" recorded herein are essen tia lly  
non-sectarian and were formed in response to the desegregation of public schools.



APPENDIX D

PRIVATE NON-SECTARIAN ACADEMIES , ,
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM-1'

1 9 7 0 -7 1

NAME OF SCHOOL-^ NUMBER OF BOOKS COST TO STATE NUMBER OF STUDENTS-

21. Calhoun Academy 294 $ 655.14 127
22. Carroll Academy 358 1,084.83 305
23. Chickasaw Academy 1420 3,586.17 164
24. Clarke Academy 387 1 ,478 .04 340
25. Oak H ill Academy 2348 6,739.17 450
26. Pheba Academy 675 1,636 .14 133
27. Happy Day School 652 884.73 110
28. Copiah Academy

The Children's Academy
2472 7,312.20 483

29. 726 2,588 .70 148
30. Union Private 1578 4 ,526 .16 202
31. Sanford Academy 787 2 ,277 .54 136
32. Covington School Foundation 512 1,494 .36 75
33. J. A. Beeson Academy 1531 4 ,2 29 .0 4 265
34. Kirk Academy 842 3 ,061 .74 639
35. Grenada Lake Academy 2523 7,119.58 381
36. Westminister Academy 252 773.86 132
37. Bearss Academy 417 1,146.18 117
38. Jackson Academy 3071 6 ,652 .56 575
39. Southwest Academy 1167 2,649 .12 131
40. Terry Academy 1378 3 ,884 .61 157
41. Central Holmes 3861 12,787.11 501
42. Cruger-Tchula Academy 2299 7 ,712 .64 438
43. East Holmes Academy 2776 7,791 .60 619
44. Four County Academy 815 1,905.90 76
45. Humphreys Academy 3480 10,000.71 398
46. Live Oak Academy 218 822.21 412

2



APPENDIX D

PRIVATE NON-SECTARIAN ACADEMIES ,
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM̂ '

NAME OF SCHOOL-  ̂ NUMBER OF BOOKS COST TO STATE NUMBER OF STUDENTS-

47. Claiborne Educational
Foundation 2032 $ 4 ,792 .38 253

48. Prentiss Christian School 779 1,975.95 180
49. Kemper Academy 3849 10,654.85 432
50. College H ill Academy 513 1,701.51 199
51. Lawrence County Academy 717 2,149.32 177
52. Leake Academy 2369 6,809.19 500
53. M & L Academy 844 2,013.18 42
54. Greenwood Private Junior High 1160 4,288 .95 330
55. Pillow Academy 2453 7,802.87 1189
56. Brookhaven Academy 2675 6 ,457 .74 307
57. Southwest Christian Academy 564 1,689.09 361
58. East Lowndes Academy 1745 5,056.02 247
59. Heritage Academy 1593 4 ,029 .81 350
60. Canton Academy 8437 25,506.60 1225
61. Madison-Ridgeland Academy 448 1,151.01 136
62. Tri-County Academy 1217 4,327 .71 438
63. Columbia Academy 1514 4,914 .35 379
64. West Marion Academy 2073 6,336.78 383
65. Mar shall Acad emy 1153 3,012 .36 600
66. Mt. Pleasant Christian Academy 1254 3,498 .30 149
67. North M ississippi Academy 442 1,230 .96 95
68. Montgomery-Carroll Academy 699 1,629.49 174
69. Pioneer Academy 438 922.65 45
70. Newton County Academy 887 2,046 .92 78
71. Central Academy 1858 5,329.29 751
72. Starkville Academy 3229 9 ,562 .77 553
73. North Delta Schools, Inc. 1021 3,373.19 268

3



APPENDIX D
PRIVATE NON-SECTARIAN ACADEMIES w

PARTICIPATING IN STATE'S TEXTBOOK PROGRAM—'
1 9 7 0 -7 1

NAME OF SCHOOL-̂ NUMBER OF BOOKS COST TO STATE

74. West Panola School 1143 $ 3 ,134.67
75. Parklane Academy 1539 3,887 .01
76. Quitman County Education

Foundation 727 3,008.91
77. Brandon Academy 3912 11,447.46
78. East Rankin Academy 1341 3,149 .16
79. Flowood Academy 443 1,251.93
80. Rankin Academy 1510 5,302 .47
81. Scott County Christian 2235 6,325.58
82. Sharkey-Issaquena Academy 1051 3,815.35
83. Simpson Academy 1266 3,427.89
84. Pines Academy 156 404.82
85. Central Delta Academy 1933 4 ,878 .66
86. Indianola Academy 7985 24,029.01
87. North Sunflower Academy 2243 7,841.28
88. Paynes Academy 1288 3 ,635 .73
89. West Tallahatchie Academy 666 1,856.85
90. H illcrest Academy 547 1,495 .26
91. Magnolia Heights 1930 5 ,674 .80
92. Northwest Academy 1613 4 ,347 .15
93. Tunica Institute 2189 6,851 .52
94. C itizen 's School 1776 4 ,589 .91
95. Walnut H ills  School 317 816.42
96. Deer Creek School 1821 5 ,126 .76
97. Wayne County School Foundation 814 2,064 .21
98. Centreville Academy 3750 10,295.55
99. Winston Academy 1781 5 ,036 .76

NUMBER OF STUDENTS—/

203
228

480
589
180
227 
284 
320 
664 
270

44
216

1209
626

96
178
165
228 
239
495 
255 
114
496 
103 
407 
288

4



APPENDIX D

PRIVATE NON-SECTARIAN ACADEMIES /
PARTICIPATING IN STATE'S TEXTBOOK PROGRAM^'

1 9 7 0 -7 1

NAME OF SCHOOL-^ NUMBER OF BOOKS COST TO STATE NUMBER OF STUDENTS-'

100. Benton Academy 3148 $ 8 ,432 .85 421
101. Bentonia Academy 874 1,951.35 82
102. Manchester Academy 1004 2,356 .92 550
103. Highway Baptist School 1304 2,839 .83 104
104. Jefferson Davis Academy 1054 3 ,701 .10 356
105. North Central Miss. Schools 723 1,602.87 67
106. Wilkinson County Christian 4002 11,359.74 404
107. Pearl River Academy 660 1,209 .06 104

TOTALS: 173,424 $490,239 34,532

5



47a



MEILEN PRESS INC. —  N. Y. C. 219