Davis v. Cook Supplemental Reply Brief in Opposition to Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 
NO. ______

ARLAM CARR, JR., et al.,
Plaintiffs-Appellants,

PENELOPE ANNE JENKINS, et al.,
Plaintiff-Intervenors- 
Appe Hants,

v s .

MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Middle District Of Alabama, Northern Division

MOTION FOR SUMMARY REVERSAL

SOLOMON S. SEAY, JR.
FRED T. GRAY 
Gray, Seay & Langford 

352 Dexter Avenue 
Montgomery, Alabama 36104

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO.

ARLAM CARR, JR., et al.,
Plaintiffs-Appellants,

PENELOPE ANNE JENKINS, et al.,
Plaintiff-Intervenors- 
Appe Hants,

vs.
MONTGOMERY COUNTY BOARD OF EDUCATION, 
e L al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Middle District Of Alabama, Northern Division

MOTION FOR SUMMARY REVERSAL

Plaintiffs-appellants, by their undersigned counsel, 
respectfully pray that the judgment entered below* on 
May 22, 1974 be summarily reversed and the case remanded

*/ The judgment and opinion of the District Court are attached 
hereto as Appendix A. Pages of the Opinion will hereinafter 
be cited as, ê .g_., A-l, A-22, etc.



to the District Court with instructions to require the 
implementation, effective for the 1974-75 school year, 
of the desegregation plan proposed below by the plaintiffs

yor any other equally efficacious plan, and to award
plaintiffs their costs and reasonable attorneys' fees
pursuant to § 718 of the Education Amendments of 1972, 20

2/
U.S.C. § 1617. In support of their Motion, plaintiffs- 
appellants would respectfully show the Court as follows:

1. As this Court is aware, this is a school desegrega­
tion case with a long history. It was before the Supreme

VCourt in 1969 on the issue of faculty desegregation, and
i/

it was last considered by this Court in 1970. The issues 
tried below and presented by this appeal concern the 
implications of the post-1970 decisions of the Supreme

V  6/
Court of the United States and of this Court for the

1/ See, «2.c£., Pate v. Dade County School Bd., 434 F.2d 
1151 (5th Cir. 1970).
2/ See Bradley v. School Board of Richmond, 42 U.S.L.W.
4703 (May 15, 1974).
3/ United States v. Montgomery County Board of Education,
395 U.S. 225 (1969).
4/ Carr v. Montgomery County Board of Education, 429 F.2d 
382 (5th Cir. 1970).
5/ Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971); Davis v. Board of School Comm'rs, 402 U.S. 33 
(1971) .

6/ E.q., Bovkins v. Fairfield Bd. of Educ. 457 F.2d 1091 (5th 
Cir. 1972); United States v. Texas Educ. Agency, 467 F.2d 848 
(5th Cir. 1972); Cisneros v. Corpus Christi Indep. School Dist., 
467 F.2d 142 (5th Cir. 1972); Flax v. Potts, 464 F.2d 865 (5th

2



continued constitutional vitality of the 1970 decree,
and for the legal sufficiency of the school board proposal
accepted by the District Court to replace its earlier decree.

In other words, this case presents this Court with 
the now familiar question— whether less than system-wide 
school desegregation is constitutionally tolerable under 
Swann and Davis. The plan approved below assigns almost 
60% of the black elementary students in Montgomery to 
black schools. Yet the District Court's opinion contains 
not the slightest hint of legally acceptable justification 
for approval of this plan? instead, the District Court relies 
principally upon pre-Swann rulings of this Court which 
formed the basis for the ruling reversed by the Supreme 
Court in Davis, and upon emotionally charged quasi—educational 
platitudes—^ long ago rejected in this Circuit as excuses for 
less than complete desegregation. The inadequacies of the 
District Court's legal standard and approach to this case 
are evident from its Opinion and this Court need not await 
preparation of the full transcript of testimony to rule 

herein.

6_/ (Continued)
Cir.), cert. denied, 409 U.S. 1001 (1972) .
7/ Arvizu v. Waco Independent School Dist., No. 73-3080 
75th Cir., May_ 17, 1974) (typewritten slip op. at p. 1).
8/ Acree v. County Board of Education, 458 F.2d 486, 487-88 
(5th Cir. 1972) .



2. This is an extremely appropriate instance for 
summary reversal, whether this Court's authority for such 
disposition is held to flow from Rule 2, F.R.A.P., its 
inherent power, or 28 U.S.C. § 1651. The trial proceedings 
below consumed five days, and preparation of the transcript, 
which has been ordered, will inevitably delay normal

5/appellate proceedings well beyond the expedited Singleton 
time schedule. Such a delay would make it very unlikely 
that, even should plaintiffs-appellants prevail on this 
appeal, effective relief could be granted prior to the 
second semester of the coming school year, at the earliest, 
thus resulting in continued irreparable injury due in part 
to litigation delays. Compare Alexander v. Holmes County 
Board of Education, 396 U.S. 19 (1969); United States v. Texas 
Education Agency, 431 F.2d 1313 (5th Cir. 1970); Kelley 
v. Metropolitan County Bd. of Educ., 436 F.2d 856 (6th Cir. 
1970). Only summary reversal by this Court can prevent the 
occurrence of this additional irreparable harm.

3. The District Court's opinion is more notable for 
what it does not say than for what it does. Although the 
Court concludes that effective desegregation plans developed 
by plaintiffs' and plaintiff-intervenors' experts should not 
be implemented in Montgomery, it makes no factual findings

9/ Singleton v. Jackson Municipal Separate School Dist., 
419 F. 2d 1211 (5th Cir. 1969).

4



which support the conclusion that the board's plan achieves 
"the greatest possible degree of actual desegregation,
Swann, supra, 402 U.S., at 26. Although the District Court 
rejects what it terms "cross-city busing," it nowhere makes 
findings about the actual times and distances which would 
be involved in the plans. Instead, the Court's dissatisfaction 
with the more effective plans in the record is expressed by 
sweeping generalizations: "fracturization of grade structure,"
"extensive cross-city busing," "disruptive to the educational

processes."
These vague characterizations hardly comply with the

District Court's obligation under Swann. Nowhere in its
opinion does the District Court make findings (a) that the
projected times and distances of pupil transportation are
likely to be injurious to the health or safety of any child,

10/of any age, 402 U.S., at 31; or (b) that the transportation
required to desegregate the Montgomery system effectively
would interfere with specific educational programs of the

11/
Montgomery system; or that the projected cost of a plan 
utilizing transportation was beyond the means of the Montgomery 
system. These are the findings which are necessary under

Swann and Davis.

i

10/
11/

cf. Flax v. Potts, supra. 
See Acree, supra.

5



The District Court makes no findings about —  indeed,
totally fails to confront —  the most important fact with
which it must deal in evaluating plans, under Swann and
Green v. County School Bd. of New Kent County, 391 U.s. 430
(1968): the extent of segregation remaining under the
school board's plan. It is more than mere understatement
to describe the board's plan as leaving only "a few schools
with a substantially predominantly black student population."
At the elementary grade level, the eleven (one-third of all
elementary schoolsI) facilities will account for 57% of all

12/
black elementary students. Yet nowhere in its Opinion
does the District Court seek to excuse, rationalize, or

13/
otherwise deal with, this statistic.

12/ See Table 2, attached to the District Court's opinion. 
Appendix A, infra.
13/ The failure of the school board's plan to comply with 
applicable legal standards is also demonstrated by another 
characteristic which receives but short shrift from the 
District Court. Not only will eleven elementary schools 
remain disproportionately black under the plan approved below, 
but five other black schools (and no white schools) are closed 
as part of the plan. Not a single black elementary school 
which was operated during the 1973-74 school year will have 
substantial numbers of white students assigned to it under 
the board's plan. Each such school is either closed or remains 
identifiably black.

But the District Court is no more troubled by the 
unfairness of the plan than by its ineffectiveness. The Court's 
Opinion does not even pause to reflect upon the number of black 
schools closed, or to present the reasons therefor, cf. Carr v. 
Montgomery County Bd. of Educ., 429 F.2d 382 (5th Cir. 1970).

(continued)
6



4. The District Court's reasons for its rejection
14/

of the alternative plans presented by the expert 
witnesses for plaintiffs and plaintiff-intervenors, 
as explained in its Opinion, reveal misapprehension of 
the plans and misunderstanding of the relevant legal 
principles.

/•
First, the District Court dismisses the alternative 

plans with statements that each was drawn "for the sole 
purpose of attaining a strict racial balance in each 
elementary school involved" (A-7, A-10). Clearly, the 
District Court confuses the rough tolerances towards which |1both Dr. Foster and Dr. Winecoff worked (in order to retain 
a reasonable relationship to the system-wide ratio) with a 
mechanical effort to achieve exact balance. The projected

13/ (Continued)
It rejects contentions of disproportionate burden by comparing 
the total number of black and white students —  at all grade 
levels —  reassigned (A-13) even though the "neighborhood 
school" concept is ostensibly more important at the elementary 
level (see A-21, citing Hightower v. West, 430 F.2d 552, 555 
(5th Cir. 1970)).

We do not suggest that this issue is appropriate for 
summary disposition by this Court, but on remand, approval 
of any new plan which puts a substantial burden upon black 
students should be accompanied by specific findings. See 
Arvizu v. Waco Independent School Dist., supra, and cases 
cited.
14/ Attached hereto as Appendices B & C respectively.

7



results under the plans proposed by Dr. Foster and Dr.
15/

Winecoff, reveal no such mathematical precision. Indeed,
the District Court's opinion itself recognizes that these 

16/
experts were guided by the common sense principles 
enunciated in United States v. Texas Educ. Agency, 467 
F.2d 848 (5th Cir. 1972): pairing and clustering, and
additional pupil transportation, are employed only after 
the maximum amelioration of existing segregation has been 
achieved through the use of rezoning, or reassignment of 
children already bused. Furthermore, the plans reflect 
feasibility determinations. For example, both project

15/ The projected racial compositions of the various 
elementary schools under plaintiffs' (Dr. Foster's) plan 
ranged from 24% black to 87%, 92% and 100% black. See 
Appendix B. A tabulation of the results under the plans 
proposed by plaintiff-intervenors (Dr. Winecoff) appears 
at pages 93-102 of Appendix C. Elementary schools would 
range from 24% black to 87% black.
16/ Both of these expert witnesses have a long and 
distinguished history of service in school desegregation 
cases. Each is the Director of an HEW Title IV Center.
Dr. Foster was the government's expert in, for example,
Spangler v. Pasadena City Bd. of Educ., 311 F. Supp. 501 
(C.D. Cal. 1970) and Beckett v. School Bd. of Norfolk, 308 
F. Supp. 1274 (E.D. Va. 1969), rev'd 434 F.2d 408 (4th Cir.), 
cert, denied, 399 U.S. 929 (1970). He served in that capacity 
many times on behalf of plaintiffs, including Anthony v.
Marshall County Bd. of Educ., 409 F.2d 1287, 419 F.2d 1211 
(5th Cir. 1969). Dr. Winecoff has similar experience, and, 
significantly, was the expert who assisted this Court to 
bring school desegregation to Jackson, Mississippi in 1969 
and 1970. See, e.c[., Singleton v. Jackson Municipal Separate 
School Dist., 430 F.2d 368 (5th Cir. 1970). The District
Court's suggestion that witnesses with such experience and 
familiarity with judicial principles would submit plans designed 
"to achieve exact racial balance" strains credulity.

8



substantial segregation in Dunbar Elementary School and 
Montgomery County High School, due to the isolated location 
of these facilities in relationship to other Montgomery 
County schools (A-21 at n. 37). It is evident, then, that 
the alternative plans are not objectionable on the ground 
that they sacrifice educational and practical considerations 
to achieve exact balance.

The District Court also criticizes the alternative
plans because they would, in its view, involve "fracturization
of grade structure" and "extensive cross-city busing." Of
course, if the plans are effective and otherwise acceptable,
they are not objectionable because they would alter
traditional patterns of school organization in Montgomery
County. E.g_., Henry v. C-larksdale Municipal Separate School
Dist., 433 F.2d 387 (5th Cir. 1970). Nor is the requirement
of transportation to desegregate facilities intentionally

12/located in residentially segregated neighborhoods beyond 
the remedial scope of the Fourteenth Amendment. Swann, supra; 
Brown v. Board of Educ., 464 F.2d 382 (5th Cir.), cert, denied.

17/ The District Court's current notion that school attendance 
patterns result from residential change with no discriminatory 
component (A-5, A-17) should be contrasted with its previous 
recognition that the school board's practice of building schools 
in racially identifiable neighborhoods made their desegregation 
unlikely. 289 F. Supp. 647, 651 (M.D. Ala. 1968). C_f. Cisneros, 
supra; Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 201 
n. 12 and accompanying text. See also, Brief for Appellants in 
No. 29521 at pp. 20-21.

9



409 U.S. 981 (1972). Large numbers of Montgomery pupils
are already bused, and except for the District Court's
vague reference to "cross-city bussing," it does not address
itself to the question whether the times and distances
of pupil transportation would be significantly increased

18/
by the alternative plans.

5. Even if there were merit to the District Court's 
rejection of the plans submitted by the plaintiffs and 
plaintiff-intervenors, there can be no justification for 
its approval of the school board's submission. At the least, 
the Court should have requested further submissions or 
ax^pointed its own consultant to draft a plan meeting minimum 
constitutional standards. See Swann, supra.

We have earlier adverted to the fact that the school 
board's plan leaves nearly 60% of Montgomery's black 
elementary students in disproportionately black facilities.
The District Court's attempted justification for its approval 
of this plan rests upon three errors of law: (a) Misconstruc­
tion of the holding of this Court in United States v. Texas 
Educ. Agency, supra; (b) reliance upon inapposite, weakened,

18/ In 1969, HEW found that Montgomery County bus routes 
included trips averaging over 20 miles one way. See Brief 
for Appellants in No. 29521, at p. 28.

10



or overruled decisions of this Court, most of which were
rendered prior to Swann and Davis; and (c) improper and
excessive concern for white flight.

(a) The District Court turns the Austin case on its
head. There, in a separate opinion referred to at note 38
of the District Court's opinion (A-21), this Court rejected
the idea that unconstitutional segregation could only be
proved by demonstrating overt, separable, discriminatory
acts affecting each school within a system. Accord, Keyes
v. School District No. 1, Denver, 413 U.S. 189 (1973). The
opinion further rejected the argument that in formulating
a remedy for dismantling an admittedly dual system, only
the schools as to which past such acts could be shown, need
be affected by the plan. Rather, this Court said, the
guideline was the achievement of the greatest possible

19/
desegregation feasible throughout the system. The District
Court interprets Austin as indicating that Dr. Foster and

19/ clearly, the rejection by this Court of the school- 
by-school approach is closely related to proving unlawful 
segregation, and does not suggest a return to the days when 
desegregation plans were judged more by their rhetoric than 
by their actual results. See, e_.c[., Hall v. St. Helena Parish 
School Bd., 417 F.2d 801 (5th Cir.), cert, denied, 396 U.S. 904 
(1969); United States v. Hinds County School Bd., 417 F.2d 852 
(5th Cir. 1969).

11



# winecoff erred in seeking to eliminate the continuing
racial identifiability of individual schools because
Austin requires that the system be judged as a whole
(A-21). We submit that such an approach conflicts with Swann
amd certainly finds no support in the decisions of this

20/
Court. ✓

(b) The District Court also seeks to support its 
ruling by relying upon decisions of this Court which either 
have been overruled or weakened by subsequent decisions, or
which do not stand for the principles announced in the

21/ „ . .District court's opinion. The Court places heavy emphasis
- !

20/ Interestingly, the District Court does engage in exactly 
the sort of school-by-school judgment eschewed by this Court 
in Austin. Having determined that a plan utilizing pupil 
transportation to desegregate Montgomery's remaining black 
elementary schools would not be feasible, the Court goes on 
to state that "in each instance the situation is a result of 
residential patterns and not of the school board's action 
either past or present" (A-13). Such a holding and approach 
was explicitly rejected in the Austin case and it must be 
rejected here. The Montgomery County school system was rigidly 
segregated by law until this suit was brought. In light of 
current legal standards, there can be no question about the 
fact that the system has never been effectively desegregated.
It was not to be desegregated by the plan approved in 1970. See 
Brief for Appellants in No. 29521, at pp. 14-16. The District 
Court recognized this fact in requiring new plans to comply with 
Swann and Davis. Under these circumstances, to excuse the 
assignment of 60% of black elementary students to identifiably 
black schools because residential patterns changed during the 
time that defendants delayed and resisted the implementation of 
full constitutional relief, is intolerable. Flax v. Potts, 
supra; Kelley v. Metropolitan County Board of Education, 463 
F.2d 732, 744 (5th Cir.), cert. denied, 409 U.S. 1001 (1972).

21/ Thus, the Court views a series of rulings requiring further 
desegregation in terms of numbers only, as if to demonstrate



upon Ellis v. Board of Public Instruction, 423 F.2d 203 
(5th Cir. 1970), without ever recognizing that subsequent 
proceedings in Ellis, after Swann, required abandonment of 
the geographic proximity plan and desegregation of the 
remaining all-black schools. 465 F.2d 878 (5th Cir. 1972), 
cert, denied, 410 U.S. 966 (1973); see also, Lee v. Macon 
county Bd. of Educ., 483 F.2d 244 (5th Cir. 1973)[noting 
further proceedings affecting plan approved in 1970 decision
cited by the District Court].

We submit that a fair consideration of this Court s 
rulings in school desegregation cases since Swann was decided 
reveals the constitutional unacceptability of the Montgomery 

plan.

21/ (Continued)
the impossibility of deducing a governing legal principle 
from the decisions (A-16). Each of these cases represented 
the considered judgment of this Court that greater desegrega­
tion was feasible —  not that particular numbers or percentages 
rendered plans per se unacceptable. Some in fact establish 
primciples which would vitiate the District Court s ruling 
if properly applied to the facts of this case. For example, 
Mannings v. Board of Public Instruction, 427 F.2d 874 (5th Cir. 
1970) established that geographic proximity plans were 
unacceptable if contiguous pairing would achieve better results. 
Boykins v. Fairfield Bd. of Educ., supra, rejected the argument 
(implicitly*adopted by the District Court here) that a school 
board's duty to desegregate ends even though a school remains 
black because the small number of white students assigned tQ it 
do not attend.

13



(c) Finally, it is evident that a primary factor in 
the District Court's approval of the school board's plan is 
its perception of white flight or resegregation. Despite 
the Supreme Court's decisions in Monroe v. Boar(3 of Comm'rs, 
391 U.S. 450 (1968) and companion cases, as well as many 
lower court rulings, the District Court continues to be 
obsessed with the fact "that desegregation of the public 
schools cuts across the social fabric of this community"(A-2). 
Thus, the Court begins its examination of Montgomery's 
compliance with the law by reiterating difficulties it 
perceives to originate from the fact that the dual school 
system is "closely tied to long-established social patterns" 
(A-5). These comments give meaning to the District Court's 
statement that the alternative plans presented on behalf of 
black children in this case would not "accomplish any 
effective and realistically stable desegregation" (A-12, A-13).

We respectfully suggest that the District Court allowed 
improper considerations of white resistance to elementary 
school desegregation to affect its judgment in this matter.

6. Revealing insight into the District Court's misunder­
standing of the law applicable to these cases is provided by 
that portion of its judgment taxing the costs of the recent 
proceedings against the black children who brought this case 
to enforce compliance with the United States Constitution.

14



A week after the United States Supreme Court ruled in 
Bradley v. School Bd. of Richmond, 42 U.S.L.W, 4703, 
that plaintiffs were prevailing parties in a school desegrega­
tion action where upon their motion for further relief, a 
school board plan providing further desegregation was adopted, 
and were entitled to recover attorneys' fees, 42 U.S.L.W. 
at 4705, 4711, the District Court in this matter taxed the 
cost of these proceedings against the plaintiffs.

This action is virtually incomprehensible, for not only 
did the District Court require a new plan (finding that its 
1970 decree did not comport with present legal standards), 
but the plan approved by the District Court's judgment includes 
"adjustments and modifications" submitted by the school board 
after trial, "in consideration of the presentations and 
observations made during the hearings conducted in this case 

(see Appendix F).
We respectfully suggest that Bradley, as well as simple 

justice require reversal of the District Court's award of 
costs with instructions to allow reasonable counsel fees on 

remand.
7. We recognize that in this Circuit, plaintiffs in 

civil rights actions seeking to overturn rulings of the 
District Judge in this case bear a heavy burden of demonstrating 
palpable error. Cf. Carr v. Montgomery County Bd. of Educ.,

15



429 F.2d, at 386-87. In the earlier years of the past 
decade —  those of "tokenism and transition" —  the District 
Court's record of insisting upon compliance with the letter 
of the law, in school desegregation as well as other civil 
rights cases, remains exemplary. It is indeed ironic that, 
as the cases cited in the "Conclusion" portion of the 
District Court's Opinion (A-26 - A-28) demonstrate, the 
Court has continued vigorously to enforce compliance with 
the Fourteenth Amendment in all areas except one: the
subject matter of the case which started it all, Brown v.
Board of Education, 347 U.S. 483 (1954). Regrettably, in 
the school desegregation field, the views of the District 
Court have failed to remain abreast of controlling Supreme 

Court rulings.
The District Court may disagree with the Supreme Court 

of the United States, as a matter of policy, about whether 
the Fourteenth Amendment should have been held to require 
pupil transportation at the elementary level in order to 
remove the racial identities of segregated schools. It may 
disagree with the Supreme Court about whether black schools, 
as well as white schools, must be desegregated. But in our 
system the Court is not free to substitute its own views of 
the Fourteenth Amendment for those which have been adopted by

16



the Supreme Court. The District Court's opinion and its 
apology-conclusion do just that. We most respectfully 
suggest that the case must, therefore, be returned to the 
District Court for the purpose of desegregating the 
Montgomery County school system.

WHEREFORE, for the foregoing reasons, plaintiffs- 
appeHants respectfully pray that the judgment of the District 
Court be summarily reversed and the case remanded to the 
District Court with instructions to approve and implement a 
plan to desegregate the Montgomery County school system 
"root and branch," and to award reasonable counsel fees to 
plaintiffs and plaintiff-intervenors pursuant to 20 U.S.C.
§ 1617.

Respectfully submitted,

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

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



CERTIFICATE OF SERVICE

t

I hereby certify that on this 13th day of June,
1974, I served a copy of the Motion for Summary Reversal and
the Appendix to said Motion upon counsel for the parties herein
by depositing same in the United States mail, air mail postage
prepaid, addressed to each as follows:

Vaughan Hill Robison, Esq.
Hill, Robison, Belser & Phelps 
815—30 Bell Building 
P. O. Box 612 
Montgomery, Alabama 36102
Hon. Ira DeMent 
United States Attorney 
P. 0. Box 197 
Montgomery, Alabama 36101
Howard A. Mandell, Esq.
212 Washington Building 
P. 0. Box 1904 
Montgomery, Alabama 36103

Norman J. Chachkin 
Attorney for Plaintiffs-Appellants