Motion to Advance and Petition for Writ of Certiorari

    Ficep 

7/23(c5 
  
  

IN THE 

Supreme Cmut of the United States 
OctoBEr TerM, 1969 

  

BEATRICE ALEXANDER, ef al., 

Petitioners, 
V. 

HormEes County Boarp oF EpucarTion, et al., 

Respondents. 

  

  

MOTION TO ADVANCE AND PETITION FOR WRIT 

OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT 

  

  

JACK GREENBERG 
James M. Nasrrr, 111 
Normax C. AMAKER 
NorMmaN J. CHACHKIN 
MELVYN ZARR 

10 Columbus Circle 
New York, New York 10019 

MeLvy~N R. LEVENTHAL 
REUBEN ANDERSON 

Frep L. Banks, Jr. 
53814 North Farish Street 
Jackson, Mississippi 39202 

Attorneys for Petitioners 

  

   



o
e
 

M
I
 
E
O
 

A
 

=
 

t
n
 

A
 

—
—
 
5
 

EA 
en 

I 
WL 

S
N
 
T
B
s
 

SNS. 
3 

A
m
 

e
r
y
 

1
 
n
m
 

C
—
O
 

S
a
n
 

—
—
—
—
 

 
 

 
 

 
 

 
 

  
 



  

  

A
 

  

  

pr
: 
—
—
—
—
 

INDEX 

PAGE 

Moto CO ADVANCE eer ries seit nes insees 1 

Petition For WriT oF CERTIORARI: 

Opinions Below: iL. 00. hides nites 1 

Jurisiiclion |... cei niie) 2 

Sucstion Progented . ..........cc.coseincesoreseossseopssncsvesminciosin: 2 

Constitutional Provision Involved ............................ 2 

SLL OIIONY i cvccconcceers saomncinssechsasessunsnngevsssns Rast staerases sess 2 

Reasons for Granting the Writ 

Certiorari Should Be Granted to Review and 

Reverse the Court of Appeals’ Delay of 

Desegregation Because the Time for Delay 

BasBun Onl ...............iccccoeiero cer icerotBencnressnss 11 

Conclusion o...h i a 19 

APPENDIX A— 

Opinion of the District Court Approving Freedom 

Of Colon: PIONS i... oiceisoiteinreriisocinessnciensirincnsatsnsiinn la 

Order of the District Court dated May 16, 1969 .... 20a 

Order of the District Court dated May 16, 1969 .... 21a 

Order of the District Court dated May 29, 1969 .... 22a 

APPENDIX B— 

Letter Directive of the Court of Appeals of June 

28, X00 .........o cc oesiiscierioniuieisiiriustinise doncsote ears instvar tersr 24a 

Opinion of the Court of Appeals of July 3, 1969 .... 28a  



  

ii 

PAGE 

Modification of Order of the Court of Appeals of 

Jul 25, 0069 i iii genes 38a 

AprPENDIX C— 

Letter of August 11, 1969 Transmitting Desegre- 

gation Plans From United States Office of Edu- 

cation tothe Diglriet Court ............c.oeoenieenneie 40a 

Attachment A Annexed to Letter of August 

000 er creesssroviin co inisnennnanoncanssianpe nm 45a 

Attachment B Annexed to Letter of July 11, 

210 ENON SUS Re SBN 1 CSL 5la 

Letter of August 19, 1969 From the Secretary of 

the Department of Health, Education and Wel- 

fare to the Chief Judge of the Court of Appeals .... 53a 

Order of the Court of Appeals of August 20, 1969 .. 55a 

APPENDIX D— 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26,1969 .................. 56a 

ArPENDIX E— 

Order of the Court of Appeals of August 28, 1969 .. Tla 

AprpENDIX F— 

Opinion in Chambers of Mr. Justice Black of 

September 35, 19007. ... coerce reesei rsa 79a 

TABLE oF CASES 

Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968) ........ B13 

Brown v. Board of Education, 347 U.S. 483 (1954) ....3, 10, 11 0) 
J 

Brown v. Board of Education, 349 U.S. 294 (1955) ....3,11, 16 

   



  

i11 

PAGE 

Coffey v. State Kducational Finance Commission, 296 

FP. Supp. 1389 (S.D. Miss. A069)... 6 

Evers v. Jackson Municipal Separate School District, 

3928.10.24. 408: {5th Clr. 1964) ....ccoviiaiiniiocsiiconiosiins dimes 12 

Green v. County School Board of New Kent County, 

391 U8, 430 (1008) ...00.. 0 10. 200 ccssiencisechhitspiseess 3,4,7 

Griffin v. School Board, 377 U.S. 218 (1964) .................... 12 

Hall v. St. Helena Parish School Board, No. 26450 (5th 

OE, MAY 28 O00) ceteris eens /{ 

Henry v. Clarksdale Municipal Separate School Dis- 

trict, 400 1.24 68 (Ir Cir 1900) oceans, 13 

Jackson Municipal Separate School District v. Evers, 

357 1.24 853 (5th Qir, 1900) ........cccoienein itil inion Shs Db 

Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938) 18 

Price v. Denison Independent School District Board of 

Education, 348 ¥.24 1010 (5th Cir. 1963) ................... 11,16 

Singleton v. Jackson Municipal Separate School Dis- 

trict, 348 F.2d 729 (5th Cir. 1965) (injunction pend- 

ing appeal); 355 F.2d 865 (hth Cir. 1968) ................ 12,13 

United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) .... 11 

United States v. Greenwood Municipal Separate School 

District; 408 F.24 1036 (5th Cir. 1969) ...........sl...0...... 13 

United States v. Indianola Municipal Separate School 

District, 410 1.24 626 (5th Cir. 1969) ........................... 13  



  

iv 

PAGE 

United States v. Jefferson County Board of Education, 

372 F.2d 836 (5th Cir. 1966), affirmed en banc 380 

F.2d 385 (5th Cir. 1967), cert. denied 389 U.S. 840 

(LOB) ihe Aho iE CL a Sin BE a 13 

United States v. Jefferson County Board of Education, 

5th Civ., No. 27444, June 26, 1969 ..........cooccereeveurnersnnnns 18 

Watson v. Memphis, 373 U.S. 528 (1963) ..........cocennuiil. 11 

STATUTES 

D3 LSC rE (LY ciniiciaticis ono iciiismienssassosssuissumasgteniingss 2 

OS S.C SUDADUDY |... osssscseroseusprrmsrigsesssadssatmegrragivonasseswhaises 2 

SEL BOR le hie hr bl nhs rl i Asn: 2 

19 WSC SIG8T ovsiinon S308 00% fo NE 2 

Title Vi Civil Rights Aet'of 19608... 0. i... 12,13 

OTHER AUTHORITIES 

United States Commission on Civil Rights, Federal 

Enforcement of School Desegregation, (September 

1154080) cients aisiab be nestaid sss stir tedititg ese sored en des 13, 14 

   



IN THE 

Supreme Tout of the United States 
OctoBer Term, 1969 

  

BEATRICE ALEXANDER, el al., 

Petitioners, 

V. 

HormEes County Boarp or EpucaTion, et al., 

Respondents. 

  

MOTION TO ADVANCE 

Petitioners, by their undersigned counsel, move the Court 

to advance consideration and disposition of this case, and 

in support thereof would show that this case presents an 

issue of national importance requiring prompt resolution 

by this Court, for the reasons stated in the annexed petition 

for writ of certiorari. 

WHEREFORE, petitioners pray that the Court: 1) consider 

this motion in vacation; 2) shorten the time for filing re- 

spondents’ response to 15 days; 3) consider the petition 

during the conference week of October 6, 1969, or as soon 

thereafter as possible; and 4) grant certiorari and sum- 

marily reverse the judgment below or set an expedited brief-  



  

2 

ing schedule and advance the case on the calendar for 

argument. 

Respectfully submitted, 

JACK GREENBERG 

James M. Nasri, 111 

NorMAN C. AMAKER 

NorMmAN J. CHACHKIN 

MEeLvyN ZARR 

10 Columbus Circle 

New York, New York 10019 

MeLvy~N R. LEVENTHAL 

REUBEN ANDERSON 

Frep L. Banks, JR. 

53814 North Farish Street 

Jackson, Mississippi 39202 

Attorneys for Petitioners 

   



IN THE 

Supreme ouet of the United States 
OcroBer TEerM, 1969 

  

BEATRICE ALEXANDER, et al., 

Petitioners, 

V. 

HorLmEs County Boarp or Epucartion, et al., 

Respondents. 

  

PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

Petitioners pray that a writ of certiorari issue to review 

the judgment of the United States Court of Appeals for the 

Fifth Circuit entered August 28, 1969, amending its order 

of July 3, 1969, as modified July 25, 1969. 

Opinions Below 

The order of the United States Court of Appeals for the 

Fifth Circuit of which review is sought is unreported and is 

set forth in Appendix KE. Earlier opinions of the Court of 

Appeals and of the United States District Court for the 

Southern District of Mississippi are unreported and are set 

forth in Appendices A through D.  



  

Jurisdiction 

The judgment of the United States Court of Appeals for 

the Fifth Circuit was entered August 28, 1969 (Appendix 

E, p. 71a, infra). 

Jurisdiction of this Court is invoked pursuant to 28 

U.S.C. §1254(1) to review the Court of Appeals’ order de- 

laying the implementation of school desegregation plans in 

14 school districts in Mississippi. 

Question Presented 

Did the Court of Appeals err in granting 14 Mississippi 

school districts an indefinite delay in implementing school 

desegregation plans based upon generalized representations 

by the United States Department of Health, Education and 

Welfare that delay was necessary for preparation of the 

communities? 

Constitutional Provision Involved 

This case involves the Equal Protection Clause of Seec- 

tion 1 of the Fourteenth Amendment to the Constitution 

of the United States. 

Statement 

These cases! test how much longer Negro schoolchildren 

in 14 substantially segregated school districts in Mississippi 

1 These cases were filed in the United States District Court for 
the Southern District of Mississippi between the years 1963 and 
1967. Jurisdiction was predicated upon 28 U.S.C. §1343(3) and 
42 U.S.C. §§1981, 1983 and the Due Process and Equal Protection 
Clauses of the Fourteenth Amendment. Plaintiffs in school deseg- 
regation cases in Mississippi often sue several school boards located 
within the same geographical area under one civil action number; 

   



3 

will have to wait to exercise their right to a desegregated 

education decreed by this Court more than 15 years ago in 

Brown v. Board of Education.’ 

For 10 years after Brown v. Board of Education, the 

public schools of Mississippi remained totally segregated. 

Thereafter, the school boards involved in this litigation 

adopted freedom of choice plans indistinguishable from that 

condemned last year by this Court in Green v. County 

School Board of New Kent County, 391 U.S. 430 (1968). 

These freedom of choice plans did not work to disestablish 

the dual school system. Indeed, the token results achieved 

  

the nine cases brought here by this petition involve fourteen sepa- 
rate school districts. 

First, there are three cases wherein suit was brought by Negro 
schoolchildren against six separate school districts: Harris v. Yazoo 
County Board of Education, Yazoo City Board of Education and 
Holly Bluff Line Consolidated School District; Alexander v. Holmes 
County Board of Education; Killingsworth v. The Enterprise Con- 
solidated School District and Quitman Consolidated School District. 

Second, there are four cases wherein suit was brought by Negro 
schoolchildren against six school districts and the United States 
subsequently intervened: Hudson and United States v. Leake 
County School Board; Blackwell and United States v. Issequena 
County Board of Education and Anguilla Line Consolidated School 
District; Anderson and United States v. Canton Municipal Sepa- 
rate School District and Madison County School District; Barn- 
hardt and United States v. Meridian Separate School District. 

Third, there are two cases which were filed by the United States 
wherein Negro schoolchildren subsequently intervened: United 
States and George Williams v. Wilkinson County Board of Educa- 
tion; United States and George Magee, Jr. v. North Pike County 
Consolidated School Daistrict. 

This petition formally embraces only school desegregation suits 
involving private plaintiffs. But the disposition of this petition 
will govern an additional 16 suits involving 19 school districts 
against whom the United States is the sole plaintiff in companion 
cases below. 

2347 U.S. 483 (1954) (Brown I); 349 U.S. 294 (1955) (Brown 
II).  



  

4 

by these plans were even less than the results held insuf- 

ficient in Green.? 

In July, 1968, petitioners moved the district court to re- 

quire each respondent school board to adopt a new desegre- 

gation plan which “promises realistically to work, and 

promises realistically to work now” (Green, supra, 391 U.S. 

at 439 (1968) (emphasis Court’s)). The district court re- 

fused to schedule an early hearing on petitioners’ motions, 

thus allowing the defective freedom of choice plans to be 

employed during the 1968-69 school year. Accordingly, peti- 

tioners moved the Court of Appeals for summary reversal 

of the district court’s refusal to grant relief for the 1968-69 

school year. The Court of Appeals denied summary re- 

2 The extent of student desegregation in the school districts at bar is shown 
in the following table: 

District Percentage of Negroes Percentage of Negroes 
wn All-Negro Schools im Predominantly 

White Schools 

1968-69* 1969-70** 1968-69* 1969-70** 
(Projected) (Projected) 

Anguilla 94.4% 96.1% 5.6% 3.9% 
Canton 99.5% 99.9% 0.5% 0.1% 
Enterprise 84% 16% 
Holly Bluff 98.9% 1.1% 
Holmes County 95.5% 4.5% 
Leake County 97.1% 95.7% 2.9% 4.3% 
Madison County 99.1% 99.1% 0.9% 0.9% 
Meridian 91.4% 84.8% 8.6% 15.2% 
North Pike County 99.2% 99.75 0.8% 0.3% 
Quitman 96.1% 3.9% 
Sharkey-Issaquena 94.6% 93.6% 5.4% 6.4% 
Wilkinson County 98.1% 97.3% 1.9% 2.71% 
Yazoo 91.2% 8.8% 
Yazoo County 93.3% 6.7% 

  

* These figures are based upon the school districts’ reports to the district 
court. 

¥* The projections are based for the most part upon the freedom of choice 
forms completed during the Spring of 1969, as compiled by the United 
States and submitted to the Court of Appeals. 

 



versal, but ordered the district court to conduct hearings 

no later than November 4, 1969. Adams v. Mathews, 403 

F.2d 181 (5th Cir. 1968). Upon remand, the district court 

consolidated these school desegregation cases brought by 

the Negro plaintiffs with those brought by the United States 

and conducted hearings en banc during October and De- 

cember, 1968. 

At the October hearings, the respondent school boards 

presented lengthy testimony to the effect that achieve- 

ment test results justified the continued use of free choice 

assignments and the concomitant token integration of white 

schools and perpetuation of all-Negro schools.” Indeed, the 

cases were consolidated principally to permit the school 

boards to join in this “expert” testimony. The respondent 

school boards also resisted any alteration of the free choice 

plans on the ground that more than token integration would 

be followed by withdrawal of white children from the public 

schools and the proliferation of private schools.® 

* The consolidated cases proceeded under the caption Umited 
States v. Hinds County Board of Education and Alexander v. 
Holmes County Board of Education. They embraced 19 districts 
against whom the United States was the sole plaintiff, plus the 14 
districts at bar. See note 1, supra. 

5 This position was urged by Mississippi school districts and 
white parent intervenors in 1964 to retain totally segregated 
schools. Voluminous expert testimony was presented and the dis- 
trict court entered findings of fact supporting the proposition that 
Negroes were innately inferior; but the district court felt bound 
by Court of Appeals’ rulings to deny defendants’ request that 
Brown v. Board of Education be overruled. The defendants ap- 
pealed and the Court of Appeals ordered an end to such efforts 
to justify segregation. Jackson Municipal Separate School Dis- 
tricts v. Evers; Biloxy Municipal Separate School District v. Mason; 
and Leake County School Board v. Hudson, 357 F.2d 653 (5th Cir. 
1966). The last case cited, Hudson, is the same case before the 
Court in this petition. 

6 Mississippi's first effort to retain segregated schools through 
tuition grant legislation was held unconstitutional on the ground 
that the legislation’s purpose and effect was to perpetuate segrega-  



  

6 

Nine months after the Court of Appeals’ admonition to 

the district court to treat the cases “as entitled to the high- 

est priority” (403 F.2d at 188), the district court, on May 13, 

1969, approved freedom of choice plans for all the respon- 

dent school districts.” 

On June 7, 1969, the United States filed alternative mo- 

tions for summary reversal or expedited consideration of 

the cases. On June 25, 1969, the Court of Appeals entered 

a letter directive expediting consideration of the cases. 

See Appendix B, p. 24a, infra. 

On July 3, 1969, the Court of Appeals reversed the dis- 

trict court and directed it to require from the school boards 

plans of desegregation other than freedom of choice. See 

Appendix B, pp. 28a-37a, tnfra. The Court found: 

(a) that not a single white child attended a Negro 

school in any of the districts; 

(b) that the percentage of Negro children attending 

white schools ranged from zero to 16 per cent; 

  

tion. Coffey v. State Educational Finance Commission, 296 TF. 
Supp. 1389 (S.D. Miss., 1969) (3-judge court). 

The Mississippi legislature recently enacted a new tuition grant 
program, in the nature of student loans, to enable white students 
to attend private schools (House Bill No. 67). Also passed by the 
House of Representatives (under consideration by the Senate) is 
a bill which would grant up to $500. in credits toward Mississippi 
income taxes for all payments or donations to schools, “public or 
private.” 

"The opinion and orders of the district court are set forth in 
Appendix A. The order in Alexander v. Holmes County Board of 
Education is set forth at p. 20a, infra and is representative of the 
orders entered in eight of these nine cases. The ninth order, en- 
tered in Killingsworth v. Enterprise Consolidated School District 
is set forth at p. 21a, infra. It differed from the others in that it 
dismissed the petitioners’ motion on the ground, later held er- 
roneous by the Court of Appeals, that the petitioners had not ex- 
plicitly authorized their attorney to file the motion. 

   



7 

(¢) that token faculty integration continued in force; 

and, 

(d) that school activities continued substantially seg- 

regated. 

Quoting Adams v. Mathews, supra, the Court held that “as 

a matter of law, the existing plan fails to meet consti- 

tutional standards as established in Green” (Appendix B, 

p. 32a, mnfra). The Court of Appeals directed that the re- 

spondent school boards be required to collaborate with 

the United States Office of Education in formulating new 

desegregation plans effective for the 1969-70 school year? 

(Appendix B, pp. 35a-36a, infra). A precise timetable for 

the submission and implementation of the plans was estab- 

lished to protect petitioners’ right to relief effective for the 

1969-70 school year (Appendix B, pp. 36a-37a, infra). The 

Court directed that the mandate be issued forthwith (Ap- 

pendix B, p. 37a, mnfra).? 

On August 11, 1969, the deadline established for submis- 

sion of the new desegregation plans, the Office of Education 

submitted terminal plans of desegregation for the 33 school 

districts to the district court. Thirty of the 33 plans pro- 

vided for implemenation of pairing and/or zoning plans of 

desegregation to be effective with the commencement of the 

1969-70 school year.!® In his transmittal letter of August 

11 (See Appendix C, pp. 40a-52a), Dr. Gregory Anrig, 

Director of the Equal Educational Opportunities Division 

8 This had been consistent practice following Hall v. St. Helena 
Parish School Board, No. 26450 (5th Cir., May 28, 1969). 

9 On July 25, 1969, the Court of Appeals modified its order in 
respects not important here (Appendix B, p. 38a, infra). 

10 The exceptions were for Hinds County, Holmes County and 
Meridian, in which it was asserted that problems peculiar to those 
districts required postponing full implementation until the be- 
ginning of the 1970-71 school year.  



  

8 

of the Office of Education—the educational expert responsi- 

ble for the final review of the plans—stated to the district 

court (Appendix C, p. 44a, mfra) : 

I believe that each of the enclosed plans is educationally 

and administratively sound, both in terms of substance 

and in terms of timing. In the cases of Hinds County, 

Holmes County and Meridian, the plans that we recom- 

mend provide for full implementation with the begin- 

ning of the 1970-71 school year. The principal reasons 

for this delay are construction, and the numbers of 

pupils and schools involved. In all other cases, the 

plans that we have prepared and that we recommend 

to the Court provide for complete disestablishment of 

the dual school system at the beginning of the 1969-70 

school year. 

On August 19, 1969, the Secretary of the Department of 

Health, Education and Welfare sent a letter to the Chief 

Judge of the Court of Appeals and the judges of the district 

court requesting that the plans submitted by the Office of 

Education be withdrawn and that the 1969-70 deadline for 

implemenation of plans be rescinded (Appendix C, pp. 53a- 

54a, infra). The Secretary did not dispute Dr. Anrig’s view 

that the plans were “educationally and administratively 

sound.” Instead, the Secretary noted that he had reviewed 

these plans “as the Cabinet officer of our Government 

charged with the ultimate responsibility for the education 

of the people of our Nation” (Appendix C, p. 52a, infra). 

He continued (Appendix C, p. 54a, infra) : 

In this same capacity, and bearing in mind the great 

trust reposed in me, together with the ultimate re- 

sponsibility for the education of the people of our 

Nation, I am gravely concerned that the time allowed 

   



  

9 

for the development of these terminal plans has been 

much too short for the educators of the Office of 

Education to develop terminal plans which can be im- 

plemented this year. The administrative and logistical 

difficulties which must be encountered and met in the 

terribly short space of time remaining must surely in 

my judgment produce chaos, confusion, and a catas- 

trophic educational setback to the 135,700 children, 

black and white alike, who must look to the 222 schools 

of these 33 Mississippi districts for their only available 

educational opportunity. 

The Secretary requested that the Office of Education and 

the respondent school boards be given until December 1, 

1969 to formulate new plans for desegregation, with imple- 

mentation of those plans to be left to an unspecified future 

time (Appendix C, p. 52a, infra). 

The next day, August 20, 1969, the Court of Appeals en- 

tered an order acknowledging receipt of the Secretary’s 

letter (Appendix C, p. 55a, infra). The next day, the De- 

partment of Justice filed a motion in the Court of Appeals 

requesting modification of the Court’s order of July 3, 1969, 

based upon the Secretary’s letter, and petitioners filed their 

opposition thereto. The next day, the Court of Appeals 

orally granted leave to the district court “to receive, con- 

sider and hear the Government’s motion for extension of 

time until December 1, 1969” (see order of the Court of 

Appeals of August 28, 1969, Appendix E, p. 75a, wnfra). 

On August 25, 1969, the district court held a hearing on the 

Government’s request. 

At the hearing, the Government presented two witnesses 

employed by the Office of Education, who testified that the 

desegregation plans were educationally sound, but that im- 

plementation of them should be delayed due to adminis-  



  

10 

trative difficulties, generally stated, in implementing the 

plans’ provisions—difficulties which the school boards had 

made no attempt to solve in the fifteen years since Brown. 

In opposition, petitioners presented the testimony of an 

expert witness who testified that there were no sound edu- 

cational reasons for delay and that the reasons given by the 

Government’s witnesses were generalities unrelated to a 

single specific situation in any of the school districts in- 

volved. 

The next day, the district court entered its findings of 

fact and conclusions of law (see Appendix D, pp. 56a-70a, 

wfra), which, together with the transcript of the hearing, 

were transmitted to the Court of Appeals. Two days later, 

on August 28, 1969, the Court of Appeals entered an order 

granting the government’s request for delay (see Appendix 

KE, pp. "1a-78a, infra). 

On August 30, 1969, petitioners applied to Mr. Justice 

Black for an order vacating the Court of Appeals’ suspen- 

sion of its July 3rd order. On September 5, 1969, Mr. Jus- 

tice Black denied the application, but stated that his 

disposition did not “comport with my ideas of what ought 

to be done in this case when it comes before the entire Court. 

I hope these applicants will present the issue to the full 

Court at the earliest possible opportunity” (Appendix F, 

p- 83a, wnfra). 

   



11 

REASONS FOR GRANTING THE WRIT 

Certiorari Should Be Granted to Review and Reverse 

the Court of Appeals’ Delay of Desegregation Because 

the Time for Delay Has Run Out. 

These cases test whether Negro schoolchildren in 14 sub- 

stantially segregated school districts in Mississippi are— 

15 years after Brown v. Board of Education—at last “en- 

titled to have their constitutional rights vindicated now 

without postponement for any reason” (Opinion in Cham- 

bers of Mr. Justice Black, Appendix F, p. 8la, infra). 

When, 14 years ago, this Court declared that segregated 

schools would be disestablished not immediately but only 

“with all deliberate speed,” it made a unique departure from 

the principle that “[t]he basic guarantees of our Consti- 

tution are warrants for the here and now” (Watson v. 

Memphis, 373 U.S. 526, 533 (1963)).* But it did so upon 

the explicit condition that school boards establish “that such 

time is necessary in the public interest and is consistent 

with good faith compliance at the earliest practicable date” 

(Brown II, 349 U.S. at 300). This Court could hardly have 

envisioned the extent to which that narrowly circumscribed 

period of grace would be exploited by local school boards 

and state officials. In Mississippi, a school generation of 

youngsters passed through the segregated system while 

school boards showed not the slightest interest in “good 

faith compliance at the earliest practicable date.” 

Although Mississippi state officials initially experimented 

with open defiance, see United States v. Barnett, 330 F.2d 

11 “Plrobably for the one and only time in American constitu- 
tional history, a citizen—indeed a large group of citizens—was 
compelled to postpone the day of effective enjoyment of a consti- 
tutional right” (Price v. Denison Independent School District 
Board of Education, 348 F.2d 1010, 1013 (5th Cir. 1965).  



  

12 

369 (5th Cir. 1963), they soon learned to rely upon less 

obvious—and sometimes ingenious—devices for delay. 

A pupil placement law was passed, which established a 

labyrinth of administrative procedures to ensnare those 

Negro students hardy enough to attempt to desegregate 

white schools. For a season that worked. The first public 

school desegregation suits brought in federal court in Mis- 

sissippl were dismissed for failure to exhaust administra- 

tive remedies under the Pupil Placement Law. So it was 

that while this Court, in 1964, was holding that “the time 

for mere ‘deliberate speed’ has run out” (Griffin v. School 

Board, 377 U.S. 218, 234 (1964), not a single child in Missis- 

sippl attended an integrated school. 

That year, the Court of Appeals reversed the district 

court’s dismissal of the first school desegregation suits. 

Evers v. Jackson Municipal Separate School District, 328 

F.2d 408 (5th Cir. 1964). Upon remand, the school boards 

and white intervenors delayed the trials with voluminous 

testimony as to the innate inferiority of Negroes as a ra- 

tional basis for continued segregation. The district court, 

after further delay, entered findings of fact supporting the 

defendants’ theories of racial superiority, but held that it 

was compelled by the Court of Appeals to require a grade- 

a-year plan—thus seeking to insure that the time for “de- 

liberate speed” would run until 1976. That decision was 

overturned in Singleton v. Jackson Municipal Separate 

School District, 348 F.2d 729 (5th Cir. 1965) (injunction 

pending appeal); 355 F.2d 865 (5th Cir. 1966). 

The Civil Rights Act of 1964 promised a new era in 

school desegregation, through a “national effort, bringing 

together Congress, the executive, and the judiciary [which] 

   



13 

may be able to make meaningful the right of Negro chil- 

dren to equal educational opportunities.” 2 

Under Title VI of the Act, the Department of Health, 

Education and Welfare fixed minimum standards to be 

used in determining the qualifications for schools applying 

for federal financial aid. This administrative enforcement 

by H.E.W. produced a dramatic increase in the level of 

desegregation in the South. See United States Commission 

on Civil Rights, Federal Enforcement of School Desegrega- 

tion, p. 31 (September 11, 1969). The courts accorded 

Yoreat weight” to those minimum standards and estab- 

lished “a close correlation . . . between the judiciary’s 

standards in enforcing the national policy requiring de- 

segregation of public schools and the executive depart- 

ment’s standards in administering this policy” (Singleton, 

supra, 348 F.2d at 731). 

By 1969, the united action of the courts and the executive 

in advancing toward their common objective of school 

desegregation nourished hopes that the end of the deseg- 

regation process was in sight. To be sure, progress under 

Mississippi’s freedom of choice plans continued to be 

minimal. See note 3, supra. But following this Court’s 

decision in Green, numerous decisions of the Court of 

Appeals set the constitutional deadline for compliance at 

the 1969-70 school year. See Adams v. Mathews, supra; 

United States v. Greenwood Municipal Separate School 

District, 406 F.2d 1086 (5th Cir. 1969) ; Henry v. Clarksdale 

Municipal Separate School District, 409 F.2d 682 (5th Cir. 

1969); United States v. Indianola Municipal Separate 

School District, 410 F.2d 626 (5th Cir. 1969). And the 

executive also directed its efforts toward full compliance 

12 Umited States v. Jefferson County Board of Education, 372 
F.2d 836, 847 (5th Cir. 1966), affirmed en banc 380 F.2d 385 (5th 
Cir. 1967), cert. denied 389 U.S. 840 (1967) (Emphasis Court’s).  



  

14 

during the 1969-70 school year. As late as July 3, 1969, 

in a joint statement by the Attorney General and the 

Secretary of the Department of Health, Education and 

Welfare, the executive announced that “the ‘terminal date’ 

must be the 1969-70 school year.” Only a narrowly circum- 

scribed exception was to be permitted: 

Additional time will be allowed only where those 

requesting it sustain the heavy factual burden of prov- 

ing that compliance with the 1969-70 time schedule 

cannot be achieved; where additional time is allowed, 

it will be the minimum shown to be necessary. 

In this context of a united judicial and executive front 

against the crumbling barriers of school desegregation, 

the Court of Appeals entered its orders of July 3rd and 

25th enforcing the 1969-70 “terminal date.” See Appendix 

B, infra. 

Then, on August 19, 1969, there occurred “a major re- 

treat in the struggle to achieve meaningful school deseg- 

regation” (Statement of the United States Commission 

on Civil Rights, p. 2, September 11, 1969). H.E..W. essayed 

an initiative for delay, based upon nothing more than a 

generalized reference to “administrative and logistical 

difficulties” and speculation that enforcement of the 1969-70 

“terminal date” would result in “chaos [and] confusion” 

(Letter of August 19, 1969 from the Secretary of the 

Department of Health, Education and Welfare to the 

Chief Judge of the Court of Appeals, Appendix C, p. 54a, 

wmfra). The delay requested called for a new deadline of 

December 1, 1969 for the school districts to formulate 

plans, with implementation to be accomplished at some 

unspecified future time. 

13 The statement is set forth in Federal Enforcement of School 
Desegregation, supra, Appendix C. 

   



15 

In support of this initiative for delay, no attempt was 

made to meet the “heavy factual burden” which had earlier 

been demanded of school boards seeking delay. Without 

particularized reference to the conditions in individual 

school districts, a blanket assessment was made that more 

time was needed in the 33 school districts. No effort was 

made to show that the delay sought was “the minimum 

shown to be necessary” for each of the districts. 

The Court of Appeals’ order of August 28, 1969 accepted 

H.E.W.s new open-ended timetable. It did so without 

explanation or elaboration, indicating it felt it had no 

choice but to acquiesce. (see Appendix E, wmnfra). 

The Solicitor General recognized that HEW’s action 

and the Court of Appeals’ acquiescence meant that yet 

another segregated school year would probably pass into 

history. He characterized this as “a tragedy and a default” 

(Memorandum for the United States, p. 5). But nothing, 

he said, could be done. 

Petitioners disagree. This initiative for delay, based 

upon nothing more than undifferentiated apprehension that 

further “preparation of the community” ** is required, can 

and should be corrected, for it raises a threat to school 

desegregation of profound national importance, for two 

reasons. 

First, if the ingenuity of the federal government is to 

be applied to the task of fashioning excuses for delay, it 

can hardly fail to inspire local school boards to do the 

same. Administrative enforcement under Title VI will be 

crippled as recalcitrant school boards press for further 

relaxation of enforcement and those boards that reluctantly 

did comply begin to feel they acted in haste. Dissident 

segregationist groups will feel good reason to redouble 

14 Memorandum for the United States, p. 4. 

T
H
I
 

I
I
I
c
 

a
 
T
T
T
 
m
=
 

 



  

16 

their pressures on school officials who kept their pledge 

to the Constitution in the face of opposition. 

Second, judicial enforcement will be undermined if the 

federal courts are deprived of the kind of effective assist- 

ance upon which they had rightly come to rely. As Chief 

Judge Brown observed in Price, supra, executive coopera- 

tion had taken the federal judge out of the role of school 

administrator—a role “for which he was not equipped” 

(348 F.2d at 1013). In this context, then, it is perhaps not 

surprising that the court below acquiesced in H.E.W.s 

request for delay, without comment or explanation. It was 

in no position to analyze whether the delay requested for 

each of the 33 school districts was “the minimum shown 

to be necessary.” Only if it had held that there was no 

longer “a ‘transition period’ during which federal courts 

would continue to supervise the passage of the Southern 

schools from dual to unitary systems” (Opinion in Cham- 

bers of Mr. Justice Black, Appendix F, p. 81a, infra), could 

it have freed itself from the difficult, if not impossible, posi- 

tion into which it was thrust. But the court below may 

have felt as did Mr. Justice Black, that this decision must 

come from this Court. 

In Brown II, this Court held that school boards which 

made a “prompt and reasonable start toward full com- 

pliance” might be granted “additional time” to solve 

administrative problems (349 U.S. at 300). The problems 

this Court foresaw concerned (349 U.S. at 300-01): 

(1) “Physical condition of the school plant”; 

(2) “School transportation system”; 

(3) “Personnel”; and, 

(4) “Revision of school districts and attendance 

areas into compact units to achieve a system 

of determining admission to the public schools 

on a nonracial basis.” 

   



17 

After 15 years, plans calling for the revision of school 

districts and attendance areas into compact units to achieve 

a unitary system were finally submitted. But the other 

problems had not yet been solved by the school districts 

at bar, found the district court. It found a present need 

for (Appendix D, p. 65a, infra): 

(1) “Building renovations, including the adjusting 

of laboratories and like facilities”; 

(2) “Bus routes [to] be redrawn”; and, 

(3) “Faculty and student preparation, including 

various meetings and discussions of the prob- 

lems to be presented and the solutions therefor.” 

Petitioners do not doubt that in some districts there re- 

main obstacles to the “workable, smooth desegregation 

which is desired” (Ibid). But why? “There can be little 

doubt where the basic fault lies in this matter. The reason 

why the plans are so difficult to formulate and to implement 

is largely because the local school boards involved in this 

case have generally done nothing but resist; they have 

continuously failed and refused to develop plans for the 

effective desegregation of their schools, so as to eliminate 

the long-established dual school system.” (Memorandum 

for the United States, p. 4). 

More delay might make for smoother desegregation. But 

experience does not favor that prediction. Delays in the 

past have served to embolden the recalcitrant, discourage 

voluntary compliance and nourish new schemes for evasion. 

Fifteen years of history teach us that every possibility for 

delay, however circumscribed, will be treated as an invita- 

tion for ready ingenuity to exploit. Moreover, as any school 

administrator will testify, there will always be adminis- 

trative problems in the operation of a school district. The  



  

18 

constitutional goal is not the smoothest possible desegrega- 

tion; it is the realization of personal and present rights'® 

against which, at this late date, administrative convenience 

amounts to nothing.® 

But petitioners see no need to indulge in speculation when 

a sharper answer is called for: these school districts have 

had 15 years to eliminate barriers to desegregation and that 

is enough. If the desegregation process is ever to be suec- 

cessfully concluded, this Court must act. The question is one 

of constitutional rights and that is a question which under 

our system can only be finally resolved by this Court. This 

Court should grant review and hold, with Mr. Justice Black, 

“that there is no longer the slightest excuse, reason, or 

justification for further postponement of the time when 

every public school system in the United States will be a 

unitary one” (Opinion in Chambers of Mr. Justice Black, 

Appendix F, p. 81a, infra). 

15 Missours ex rel. Gaines v. Canada, 305 U.S. 337, 351-2 (1938). 

16 The Court of Appeals has held in this and other cases that 
interruption of the school year will be no bar to implementation of 
desegregation plans. See Appendix B, p. 37a, infra; United States 
v. Jefferson County Board of Education, 5th Cir.,, No. 27444, 
June 26, 1969. 

   



  

19 

CONCLUSION 

For the foregoing reasons, the petition for writ of 

certiorari should be granted and the judgment below 

reversed. 

Respectfully submitted, 

JACK (GREENBERG 
James M. Nasrir, 111 
Norman C. AMAKER 
NorMAN J. CHACHKIN 
MELVYN ZARR 

10 Columbus Circle 
New York, New York 10019 

MeLvy~x R. LEVENTHAL 
REUBEN ANDERSON 
Frep L. Banks, Jr. 

53814 North Farish Street 
Jackson, Mississippi 39202 

Attorneys for Petitioners 

 





APPENDICES 

 





APPENDIX A 

Opinion of the District Court Approving 

Freedom of Choice Plans 

[Caption omitted] 

These twenty-five school cases involving thirty-three 

school systems are before the Court on motions of the 

plaintiffs to update the Jefferson decree in all of these 

cases to comport with the requirements of Green.! The 

Jefferson decree is sometimes referred to as the model 

decree for the establishment of a unitary school system 

as such plan was designed and approved by the United 

States Court of Appeals for the Fifth Circuit en banc.’ 

The right of these movants under existing circumstances 

to institute and maintain this proceeding is challenged in 

limine. The challenge questions the right of these plain- 

tiffs to institute this proceeding for supplemental relief 

in these cases where no child or parent admittedly has 

complained of any discriminatory treatment by the school. 

In some of these cases, a final judgment was entered and 

it is contended that such judgments cannot be reopened 

for the purpose of enlarging and expanding the relief 

granted in the original judgment. Under Civil Rule 65(d), 

an injunction must be specific to be enforced. But no addi- 

tional relief is sought. These plaintiffs seek not to expand 

or enlarge upon the relief previously granted, but simply 

seek to require these schools to adopt and apply a plan 

1 Charles C. Green, et al. v. County School Board of New Kent 
County, Virginia, et al., 391 U.S. 430, 88 St.Ct. 16809. 

2 Umted States v. Jefferson County Board of Education, (5 
C.A.) (1966) 372 F.2d 836, affirmed on rehearing en banc 380 
F.2d 385, certiorari denied. 

la  



  

2a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

which will accomplish the purpose enjoined by the model 

decree. There is no merit in either of these motions for 

the reason indicated; and for the further reason that the 

Supreme Court of the United States has enjoined upon the 

United States District Courts the duty to keep these school 

cases open, and to supervise them to the end that ulti- 

mately the principles in Brown (and allied school cases)? 

are made to effectively operate so that no child in any 

public school is in any manner denied any equal protection 

right by any school. Those motions of the defendants to 

dismiss these motions for that reason will be denied. 

The Enterprise and Quitman schools in Civil Action No. 

1302(E), supra, move the Court to dismiss the motion in 

that case because of the lack of authority of the attorney 

to have filed it. The Court heard testimony on this question 

and finds as a fact that the attorney who filed such motion 

never represented the plaintiffs in that case and that he 

had no express or implied power or authority to have filed 

such motion here. The facts and circumstances thereasto 

will be set forth in detail in the accompanying footnote. 

3 Charles C. Green, et al. v. County School Board of New Kent 
County, Virginia, et al., 391 U.S. 430, 88 S.Ct. 1689; Arthur Lee 
Raney, et al. v. Board of Education of Gould School District, 391 
U.S. 443, 88 S.Ct. 1697; Brenda K. Monroe, et al. v. Board of 
Commissioners of City of Jackson, Tennessee, 391 U.S. 450, 88 
8.Ct. 1700, 

* This matter is before the Court on motion of the defendants 
to dismiss the motion of the attorney for supplemental relief. The 
facts show and the Court finds: That the attorney who filed the 
motion for supplemental relief was not one of the attorneys who 
initially instituted the suit; that original local counsel resigned 
as attorney and withdrew from the case with approval of the 
Court; that present counsel seeking such relief graduated from 
law school two or three years ago and that he does not know any 
of the plaintiffs and was never requested by any plaintiff (parent 
or child of this school) to seek any supplemental relief; that no 

   



3a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

That motion of the defendants in said Civil Action No. 

1302(E), supra, will be sustained. 

Most of the schools in these cases when judged by their 

statistics alone do not present any impressive accomplish- 

ment or measure up to the minimum requirements of Green 

in the disestablishment of every vestige of desegregation 

under the old system. Most of the schools in these cases 

still can be recognized and operate as schools clearly iden- 

tifiable by race. The facts and underlying circumstances 

in these cases unmistakably show that very little progress 

has been made in desegregating these schools, except in a 

very few instances. It is incumbent upon the plaintiffs in 

these cases to show a lack of substantial progress toward 

the disestablishment of a dual school system and the estab- 

lishment of a unitary school system of both races. It there- 

  

parent, or child communicated with counsel and advised him of 
any discrimination, or unsatisfactory compliance by either school 
in its progress toward complying with the requirements of the 
model decree and the Court thus finds from such undisputed testi- 
mony and reasonable inferences deducible from it that counsel 
who signed the motion in this case for supplemental relief had no 
express or implied authority from any plaintiff, or parent, or 
child from either school to do so; that no parent or child from 
either school appeared at the hearing, and no representative of 
any parent, or any child from either school appeared at the trial 
during the two weeks while these school cases were being heard 
to testify that anybody connected with either of said schools had 
authorized present counsel to seek such supplemental relief, and 
the Court finds that present counsel (Anderson) had no such 
power or authority (express or implied), and that defendants’ 
motion to dismiss his application for such relief as being unau- 
thorized will be granted. This suit was initially instituted by 
non-resident counsel who never appeared in the case, and local 
counsel who withdrew from the case prior to the hearing, so that 
only Reuben V. Anderson, a young Jackson lawyer, appeared as 
attorney for this motion and sought by his own testimony to 
establish his right to do so, but entirely without factual support 
or justification therefor.  



  

4a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

upon devolves upon the defendants to explain or overcome 

such showing by the plaintiffs. The rule is that the burden 

of proof always rests upon the plaintiff (or movant) who 

must establish proof of his claim. When the plaintiff makes 

out a prima facie case, then the burden of evidence devolves 

upon the defendant to explain, or justify the facts and 

circumstances surrounding his position, but the burden of 

proof never shifts from the plaintiff. 

There are many variable conditions which exist in these 

twenty-five defendants cases that require some special and 

separate consideration and treatment. In some of these 

schools such as the Noxubee County School District, Civil 

Action No. 1372(E), there are from three to four colored 

students to each white student in these schools. A forced 

mixing of those schools by a mathematical formula of in- 

discriminate mixing would result in the creation of all 

Negro schools. All of these schools complain of the pro- 

vision in the model decree which denies the school authori- 

ties the right to persuade parents and children to transfer 

to schools of the opposite race.® The facts in this case show 

that all of these schools have very faithfully obeyed that 

injunction of the Court. No school board member or teacher 

or representative of any school has tried to influence any 

child or any parent to send any child to any school pre- 

dominantly of the opposite race. But it is the oft repeated 

law in this Circuit that the school board (and nobody else) 

has the nondelegable duty to adopt a plan which will con- 

5 That provision appears in paragraph II(o) of the Jefferson 
decree and provides: “At no time shall any official, teacher or 
employee of the school system influence any parent, or other 
adult person serving as a parent, or any student, in the exercise 
of a choice or favor; or penalize any person because of the choice 
made. 

   



da 

Opinion of the District Court Approving 

Freedom of Choice Plans 

form to all of the requirements of the model decree and 

to see that such plan works. Every school official who tes- 

tified in every one of these cases before the Court testified 

convincingly before this Court that this provision of this 

model decree had interfered with a fair and just and proper 

operation of the freedom of choice plan in these schools. 

Yet, like Prometheus (chained to a rock) these schools are 

ordered by the Court to shoulder this very positive and im- 

portant duty of desegregating these schools while the Court 

denies them the right to counsel with and persuade parents 

to let their children enter a school predominantly of the 

opposite race. This Circuit has steadfastly refused to mod- 

ify that provision in the model decree in any manner, or 

to any extent and considers such provision as an impor- 

tant matter of policy to be changed only by the United 

States Court of Appeals for this Circuit sitting en banc. 

This Court is unable to assay the degree to which such 

provision in the injunction of this Court has contributed 

to the failure of these schools to accomplish more impres- 

sive results than are revealed by the bare figure statistics 

as to mixing of the races in these schools. Certainly, these 

statistics cannot be ignored or disregarded and are well 

calculated to have an impressive effect upon any trier of 

facts in search of some means for determining whether 

or not the freedom of choice plan has worked. But there is 

nothing in Green, or its two companion cases, to indicate 

that statistics alone are to determine whether or not a plan 

works. Otherwise, a mathematical formula would have been 

prescribed by the Court and sound judicial discretion of 

this Court would have been discarded. But, instead, Green 

said: “We do not hold that ‘freedom of choice’ can have 

no place in such a plan.” * * * “Although the general ex-  



  

6a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

perience under ‘freedom of choice’ to date has been such 

as to indicate its ineffectiveness as a tool of desegregation, 

there may well be instances in which it can serve as an 

effective device. Where it offers real promise of aiding a 

desegregation program to effectuate conversion of a state- 

imposed dual system to a unitary, non-racial system there 

might be no objection to allowing such a device to prove 

itself in operation.” The facts and circumstances in prac- 

tically all of these cases (with a very few exceptions) show 

this Court to its entire satisfaction that these schools, oper- 

ating under the freedom of choice plan, have operated in 

the very best of good faith with the Court in an honest 

effort to comply with and conform to all of the requirements 

of the model decree. In these cases so much progress has 

been made in the attitude and cooperation of the parents, 

children and teachers that they are entitled to much credit 

and commendation of the Court as good citizens who wish 

to comply with all of the requirements of the law, and to 

lay aside any inbred and ingrained former adverse opin- 

ions about the operation of a unitary school system. 

This Court has long entertained and often expressed the 

view that the freedom of choice plan would not work effec- 

tively, so long as mere lip service was paid the plan by 

the school authorities, when the facts and circumstances 

would disclose that actually the parent and the child in 

some of these schools would not in truth and in fact be a 

free agent as to the school to be attended by the colored 

child. But a very careful examination of the witnesses 

and analysis of their testimony in these cases revealed to 

the Court not one instance where any colored parent, or 

colored child did not do exactly what they wanted to do 

in deciding as to the school which the colored child would 

   



Ta 

Opinion of the District Court Approving 

Freedom of Choice Plans 

attend. There are many reasons (and very important rea- 

sons) why colored children have not sought to attend 

formerly all-white schools. The primary reason is that the 

vast majority of all schools attended by colored children 

qualify for the government subsidiary as “target schools.” 

They are provided by the government with free lunches, 

and even improved facilities and working tools in their 

shops, because the majority of the parents in such schools 

are in low income brackets. A disruption of those benefits 

would be disastrous to those children who would be obliged 

to leave school and lose all educational advantages now 

available to them there. It is such facts and circumstances 

which have caused the courts to wisely observe, time and 

again, that there is no easy and quick and ready-made cure 

for the past ills of state enforced segregation. The problem 

and its cure must yield to the facts and circumstances in 

each particular school case. The cure must not result in a 

destruction of the wholesome objective of the plan. It is a 

sorry and very strange principle of constitutional law 

which would foster by its application a catastrophic de- 

struction of the right sought to be protected and enjoyed. 

Well trained colored teachers in active service in for- 

merly colored schools and in formerly white schools in this 

district have appeared before this Court and convincingly 

testified under oath as a matter of fact that freedom of 

choice was actually working in their schools; that perfect 

harmony and understanding existed in the school and that 

no danger to the school system lurked in the implementa- 

tion of the freedom of choice plan, but that any kind of 

forced mixing of the races against the wishes of the in- 

volved parents and children (colored and white) would re- 

sult in an absolute and complete destruction of the school  



  

8a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

and its system. That is likewise a fair analysis and char- 

acterization of the uncontradicted testimony of experienced 

expert witnesses who have spent their lives in school ser- 

vice in many other states. This testimony does not show 

that desegregation is unpopular with some parents and 

some children, but does positively show that any rushed 

and random forced mixing applied for the sake of imme- 

diate mathematical statistics would literally destroy the 

school system for both races. In many instances where the 

ratio of colored people to white people is very high, the 

result would be not to create just schools, but to create 

predominantly colored schools, readily identifiable as such 

in every instance. The same corresponding result would 

follow in areas where the white population is very dense 

and few Negroes live. 

Surely, the policy and practice burden of these schools 

is not on the parents and children to provide a unitary 

school system, but is squarely upon the shoulder of these 

school boards. But what can a school board member do 

who is enjoined under penalty of contempt by the Jefferson 

decree not to try to persuade, or dissuade any child, or 

any parent as to the school which the child will attend? 

That Jefferson decree has not been amended and sugges- 

tion as to amendment of the particular section has been 

rejected. These board members have thus been deprived 

of the valuable right and opportunity to properly discharge 

and perform this duty so heavily resting upon them alone. 

Outsiders may converse with parents and children as to 

the school to be attended, where such others have no duty 

or responsibility in the connection, but school board mem- 

bers cannot do so. The paid agitators and transients and 

meddlers simply have not produced impressive results 

   



9a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

which are statistically favorable to the school board, which 

has been mandated by the Court to perform its duty, but 

not allowed by the Court to discharge its responsibility in 

that connection. The Court finds from such circumstances 

and conditions that the mathematical statistics as to the 

working progress of the freedom of choice plan for this 

reason alone is unfair, unjust, unrealistic and misleading. 

The plan has not failed. The Court just has not allowed it 

to work. 

There is nothing in Green which condemns the freedom 

of choice plan as it is working in the designated schools 

in this district. The Court has simply not afforded these 

schools a fair and just opportunity to try to improve the 

figure statistics of the plan at work. That opportunity 

should not be denied or withheld.® 

The Natchez schools, appearing as Civil Action No. 1120 

(W), have demonstrated outstanding progress with the 

freedom of choice plan. These schools accommodate approx- 

imately 10,400 children, 55% of whom are Negro and 45% 

of whom are white. There are 40 Negro teachers in the 

predominantly white schools and 53 white teachers in the 

predominantly Negro schools. There are 456 Negro chil- 

dren in the predominantly white schools. There are 40 

white and 70 Negro children in the vocational schools. A 

6 One of the authors of the majority opinion in the Jefferson 
school case (Judge Thornberry) speaking for a panel composed 
of Judge Brown and District Judge Taylor, in United States v. 
Greenwood Municipal Separate School District, (5 C.A.) 406 F.2d 
1086 held: “If it develops that no children in the school district 
are being denied equal protection of the laws, then no relief will 
be granted. This was the position taken by the Court below and 
by another district court which considered the same question. 
See United States v. Junction City School District, W.D., Arkansas, 
1966, 253 F.Supp. 766. We agree.”  



  

10a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

Negro is on the school board. All decisions of the school 

board have been unanimous. It is the view of the Court 

in this case that these schools have shown satisfactory and 

acceptable progress under all of the facts and circumstances 

in complying with all of the requirements of the model 

decree. In this case, as in all of these cases, the bare figure 

statistics are misleading and tell only part of the story. 

There would appear to be no occasion or necessity for any 

updating of the model decree to meet the requirements of 

Green. The movants in this case have simply not shown 

that any child in this school district has been denied equal 

protection of the law in any instance. The defendants in 

this case have satisfied the Court that the freedom of 

choice plan has worked in that system and the plaintiffs 

have not shown the contrary by the greater weight of the 

credible evidence (including statistics). That ends our in- 

quiry here, as set forth in footnote 6. The plaintiff’s mo- 

tion to update the decree in this particular case for the 

additional reason stated in this case will be denied. 

As to the other cases, the plaintiffs have not shown by 

the greater weight of the more convincing evidence that the 

freedom of choice plan as to the other schools has not 

worked and that there is no probable prospect of such plan 

working. The plan has not been afforded an opportunity 

and chance to work, and it simply cannot be honestly said 

that the plan has not worked. It cannot be said from the 

evidence in this case that the plan will not work if given 

a chance to do so. The Court, therefore, finds as a fact 

and holds as a matter of law that the movants in these 

cases have failed to prove that such freedom of choice plan 

should be discarded as not workable, and that the schools 

should be required to adopt another plan which would work 

   



11a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

more effectively under the model decree. That conclusion 

represents the best exercise by this Court of its sound judi- 

cial discretion in making that determination, and is surely 

not clearly erroneous on this record. Insofar as such ques- 

tion is committed to the sound judicial discretion of this 

Court even though disagreed with by an appellate court, 

no appellate court can pass judgment anew on that ques- 

tion which is addressed to the trial court and not an appel- 

late court, as was said in Platt v. Minnesota Mining & Man- 

ufacturing Co., 376 US 240, 84 S.Ct. 769. There it was held: 

“The District Court’s use of an inappropriate factor did 

not empower the Court of Appeals to order the transfers. 

The function of the Court of Appeals in this case was to 

determine the appropriate criteria and then leave their 

application to the trial judge on remand.” The motions of 

these plaintiffs to update the remaining twenty-three cases 

to conform with Green as to the working of the freedom of 

choice plan to desegregate the student body of these schools 

will be denied. The status of the faculties in these schools 

is another matter later to be discussed. 

The underlying fundamental principle which is decreed 

in Brown and its satellite decisions is that a denial of his 

equal protection rights accrues to a Negro not afforded an 

education in public unitary school system. State enforced 

segregation in public schools is condemned as an obstacle 

and barrier to the enjoyment of such vested right. It is 

universally decreed by the courts at this time that every 

vestige and influence of such state enforced segregation 

must be completely eradicated from the state supported 

public schools; that a unitary school system shall replace 

the dual system of schools, so that henceforth the sys- 

tem shall operate schools without regard to race or color.  



  

12a 

Opwnion of the District Court Approving 

Freedom of Choice Plans 

Most of the schools involved in these cases before the Court 

have accepted and adopted such principles in good faith 

and have made impressive strides in that field in compli- 

ance with the requirements of the model decree. But the 

statistics which this Circuit says speaks so loudly, that they 

listen thereto, do not by themselves make a very attractive 

bare figure picture of any rewarding or impressive ac- 

complishment. But these statistics alone are misleading, 

and do not truly and convincingly reflect the facts and cir- 

cumstances as they actually exist. Surely, a school board 

is not responsible and is not accountable for a completely 

voluntary choice of a Negro child who wishes to attend the 

school which is attended predominantly by Negroes; yet, 

such a choice would be reflected in these statistics as a fail- 

ure of the school board to discharge its duty, when the 

school board is enjoined not to persuade or dissuade the 

child or the parent in such decision. It simply may not be 

honestly said under such circumstances that the freedom of 

choice plan has not worked in such a case! The vast major- 

ity of colored children simply do not wish to attend a school 

which is predominantly white, and white children simply 

do not wish to attend a school which is predominantly Ne- 

gro, and that ingrained and inbred influence and character- 

istic of the races will not be changed by any pseudo teachers, 

or sociologists in judicial robes. If forced mixing is the 

ultimate goal in these cases, then extreme care must be ex- 

ercised by more knowledgeable and more experienced men 

than mere judges of trial and appellate courts to avoid a 

complete disruption of our entire educational system in this 

district. It is easy for a judge in an ivory tower, aloof and 

afar from the actual working circumstances and conditions 

in these schools, to rationalize and unilaterally decree the 

   



  

13a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

answer to problems with which he is not familiar and with- 

out regard to and consideration for the completely insur- 

mountable barriers to the suggested course of solution. 

This Court certainly does not possess any of the training, 

or skill, or experience or facilities necessary to operate any 

kind of schools; and unhesitatingly admits to its utter in- 

competence to exercise, or exert any helpful power or au- 

thority in that area. These school boards are thus 

confronted with many very serious and perplexing school 

problems which will command the very highest skill of their 

expertise in discharging and performing in accordance with 

the requirements of law. The responsibility is strictly theirs 

to carry out the mandate of this Court under penalty of 

sanctions. If the HEW has any competent and experienced 

administrative people who could completely divest them- 

selves of all political ambitions and influence, it is possible 

that they could be of some help to these boards in devising 

and administering plans for the complete desegregation of 

these schools without injury to the educational objective. 

But plans heretofore have not been meaningful or helpful 

in criticisms thereof before this Court, and have resulted in 

nothing but a waste of time. Nobody needs any more guide- 

lines or plans any longer to be completely informed of the 

duty of these school boards. It is unmistakably clear now 

that this duty does not rest on the parent or on the child 

to make these plans work, but such duty rests squarely and 

alone upon the shoulders of these school board members. 

It is their duty under the injunction heretofore issued by 

this Court to see that the existing freedom of choice plan 

for the desegregation of these public schools works now, 

or will work in the immediate future. If and when it be- 

comes apparent to the Court that a plan is working to the  



  

14a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

degree that no parent or child of either race can convince 

the Court that some child is being denied the equal protec- 

tion of the laws under the Fourteenth Amendment to the 

Federal Constitution by the policy and operating practices 

of a publicly supported school, then the plan in operation 

must be said to be working and any additional relief re- 

quested should be denied. Those are exactly the facts and 

circumstances established before this Court without any 

dispute, or contradiction in the evidence in this record on 

that question. The rule in this Circuit under such facts and 

circumstances is that further relief should be denied. That 

is the rule of this Circuit as declared in United States v. 

Greenwood Municipal Separate School District, supra, 

where it 1s said: “If it develops that no children in the 

school district are being denied equal protection of the 

laws, then no relief will be granted. This was the position 

taken by the Court below and by another district court 

which considered the same question. See United States v. 

Junction City School District, W.D., Arkansas, 1966, 253 

F.Supp. 766. We agree.” 

Now as to the faculty. Very little progress has been made 

by any of these other schools in desegregating the faculties. 

That is a monumental job as the evidence in this record 

shows for several reasons. Teachers are not well paid in 

this district, and the schools are simply not in a position to 

crack any whip over their heads. Actually, the facts show 

that there is such a scarcity of available teachers in this 

district that many of the Schools have been unable to com- 

plete their present faculty requirements. The evidence in 

this record does not show one single instance where there 

has been any discrimination on the part of any school au- 

thority in hiring teachers. In many of these schools, the 

   



15a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

teachers are married and simply teach schools as sort of 

an avocation without regard to the adequacy of the salary, 

because they live in the town where the school is situated 

and they are not dependent for their livelihood on such 

salary. Several of these schools are obliged to compete 

with the United States Government where their schools 

are operated on Indian reservations financed by the Govern- 

ment. Such teachers are paid much more attractive salaries 

than the neighboring adjoining state schools can afford to 

pay from their limited budgets. These teachers who thus 

contract with these school boards insist upon designating in 

the contract the school at which they will teach at such re- 

duced salary. Now, it is very unrealistically suggested that 

the school board should disregard such provision in their 

contract, and should stand upon the suggestion or legal 

advice (as dicta in this Circuit) that such teachers be as- 

signed without regard to terms of the contract, and use 

such court advice as a defense, if sued upon such contract, 

or breach thereof. Surely, a teacher has a vested right to 

teach where he or she pleases, and the teacher owes no duty 

to the contrary to anybody. It is certainly not difficult to 

foresee the calamitous result which would follow the pur- 

suit of such a suggestion in the state court trial, and the 

result which would accrue to the school. That simply is not 

the answer to the problem, and no panacea is offered here, 

but these schools surely do have a very positive duty to 

uproot and remove every vestige of the former segregated 

policies which were for so long state enforced in this area. 

This Circuit has frequently expressed its impatience, and 

at times with some petulance, at the schools’ lack of prog- 

ress in complying with the literal requirements of the 

Jefferson decree. United States v. Board of Education of  



  

16a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

the City of Bessemer, (5 C.A.) 396 F.2d 44 imposes upon 

school boards the positive duty to desegregate faculties, 

with the sanction of discharge, if a teacher refuses an as- 

signment in furtherance of an order of the board. Target 

dates must be set for the ultimate accomplishment of such 

result of complete integration of the faculty by the school 

year 1970-1971 says this Circuit. Cf: United States v. 

Greenwood Municipal Separate School District, 406 F.2d 

1086, 1093-4. 

Montgomery County Board of Education v. Arlam Carr, 

Jr., (5 C.A.) 400 F.2d 1 holds: That good faith in a court of 

equity in this sensitive area of desegregation is an import- 

ant element; that there must be target dates for the ac- 

complishment of faculty desegregation; that there can be 

no mixing by any numerical or racial percentage ratio of 

faculty which would enlarge upon the requirements of the 

model decree; that there shall be no hard and fast rule as 

to exact percentages, but only approximations of such ratios 

that must remain flexible. [Certiorari granted and set for 

argument on April 21 and April 28 calendars in United 
States Supreme Court.] 

In sum, and by way of recap of the finding of facts by the 

Court as to all remaining schools before the Court in this 

record, the Court expressly finds from the uncontradicted, 

undisputed credible evidence offered before it in this case 

that: 

(1) The freedom of choice plan in all of these cases is 

universally acclaimed by both races in all schools as being 

most desirable, most workable and acceptable by everybody. 

Nobody testified to anything to the contrary or to anything 

better. Every witness who testified on both sides testified 

substantially to the same effect. There is no substantial dis- 

   



17a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

pute or contradiction of such fact to be found anywhere in 

this record as to any school. The movants had no witnesses 

of their own, but used only teachers or officials of these 

schools as their witnesses. 

(2) The target schools are accomplishing a very effective 

and wholesome purpose and these schools should not be 

disturbed or disrupted in their service under federal law 

to these underprivileged children who could not otherwise 

afford to attend any school. 

(3) Extracurricula activities are being engaged in on a 

gradual and cautious basis in this particular delicate area, 

which can easily result in a destruction of the entire pro- 

gram for both races by any precipitous action of a court in 

the exercise of its equity jurisdiction even in the very best 

of good faith. 

(4) No parent and no child in any school has complained 

to anybody of any diseriminatory treatment accorded any 

child, or of any alleged failure of the freedom of choice plan 

to operate effectively as to anybody in any one of these 

schools before the Court; and no parent and no child in any 

school before the Court appeared here to testify in support 

of any one of the plaintiffs’ motions to show any necessity 

or propriety for updating the model decree. 

(5) No school in the district has attained the figure de- 

gree of mixing of the races among the students to equal that 

condemned in Green as being unsatisfactory, but it cannot 

be said as a matter of fact that the freedom of choice plan 

has failed in these school sprimarily because the board (and 

all teachers and officials) have been enjoined and are still 

enjoined not to try to persuade any child or any parent to 

mix with the opposite race so as to make such freedom of  



  

18a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

choice plan work. No school can be criticized or penalized 

for not making such plan work when they were enjoined by 

the Court not to try to make it work. 

(6) There is no proof anywhere to be found in this record 

that any school board or other school authority has done 

anything (or not done something that should have been 

done) which has denied any child (black or white) of the 

equal protection of the laws under the Federal Constitu- 

tion. That should end the inquiry here under footnote 6, 

supra. 

(7) No school has violated, or neglected any duty under 

the Jefferson decree entered by this Court in any one of 

these cases. 

(8) Each school board has done everything possible, 

which it was authorized by the model decree to do, to estab- 

lish and operate a unitary school system in each of the dis- 

tricts before the Court and have made satisfactory and ac- 

ceptable progress to that end. 

(9) Faculties should and must be desegregated as re- 

quired by the model decree. A target date must be set by 

a plan and must be met, as the orders of the United States 

Court of Appeals for this Circuit demand. United States v. 

Bessemer, 396 F.2d 44; United States v. Greenwood Munici- 

pal Separate School District, 406 F.2d 1086, 1093-4; Mont- 

gomery County Board of Education v. Arlam Carr, Jr., 400 

F.2d 1. 

(10) The detailed facts as to progress figures as to mix- 

ing of the races in the various schools are as shown in the 

reports of the schools filed with the Court, and are not im- 

pressive as figure statistics in such limited and distorted 

view of the workings of the freedom of choice plan. 

   



19a 

Opinion of the District Court Approving 

Freedom of Choice Plans 

(11) Any additional findings or conclusions, under Civil 

Rule 52, desired by any party may be submitted to the 

Court for its proper action within ten days after date of 

this opinion. 

Finally, it is the duty of each of these remaining twenty- 

three schools to adopt a plan for the desegregation of the 

faculties of such schools, and for the fixation of a target 

date therefor, and to meet such target date in accordance 

with the cited decisions of this Circuit on that question. 

Time is too short between now and the commencement of 

the fall sessions of school to contemplate filing plans and 

having hearings on such plans in the interim. As previously 

stated, these hearings accomplish absolutely nothing, and 

result in extensive arguments and delays with no corre- 

sponding benefit or accomplishment. But each school in 

this group will be enjoined more specifically than heretofore 

to commence and make some substantial progress in the de- 

segregation of the faculty at each school at the 1969 fall 

session with the target date as fixed by the cited decisions 

from this Circuit. The motions of the plaintiffs in the 

twenty-three remaining cases before the Court will be sus- 

tained to the extent stated. 

The plaintiffs (or movants) in each of the twenty-five 

school cases before the Court are directed to furnish the 

Court with all separate orders in these cases in conformity 

with the provisions of this opinion, and within the time re- 

quired by the rules of this Court. 

May 13, 1969 

/s/ HarorLp Cox 

United States District Judge 

/s/ Dan M. RusserL, Jr. 

United States District Judge 

/8/ Wavter L. Nixon, Jz. 

United States District Judge  



  

20a, 

Order of the District Court dated May 16, 1969 

[Caption omitted] 

Pursuant to the opinion of Court dated May 13, 1969, 

it is hereby ordered: 

1. That plaintiffs’ Motion for a New Plan of Desegre- 

gation is denied; 

2. That defendants will continue to operate schools lo- 

cated within the Holmes County School District under a 

freedom of choice plan of desegregation; 

3. That defendants shall take positive and affirmative 

steps to achieve complete desegregation of school facilities 

so that by the 1970-71 school year the pattern of teacher 

assignments to each school is not identifiable as tailored 

for a heavy concentration of either Negro or white pupils. 

In order to insure full compliance by the commencement 

of the 1970-71 school year, defendants shall achieve sub- 

stantial faculty and staff desegregation by the 1969-70 

school year. 

OrperEeD, this 16th day of May, 1969. 

/s/ Harorp Cox 

United States District Judge 

   



21a 

Order of the District Court dated May 16, 1969 

[Caption omitted] 

Pursuant to the opinion of this Court, dated May 13, 

1969, it is hereby ordered that defendants’ Motion to Dis- 

miss plaintiffs’ Motion for a New Plan of Desegregation 

is sustained. 

OrbEereD, this 16th day of May, 1969. 

/s/ Harorp Cox 

United States District Judge 

 



  

22a 

Order of the District Court dated May 29, 1969 

[Caption omitted] 

This cause came on to be heard on the Motion of defen- 

dants for an order making additional findings herein, 

said Motion having been filed in this cause by defendants 
on May 21, 1969, and requesting that the Court amend the 

Opinion of this Court in this cause dated May 13, 1969 by 

adding thereto additional findings, and it appearing that 

the Motion should be granted, it is ordered that the fol- 

lowing additional findings be added to the findings here- 

tofore made in this action in the Opinion of this Court 

dated May 13, 1969: 

From the uncontradicted, undisputed, credible evidence 

offered in this case, that: 

1. The disparity between the achievement of the 

vast majority of the white pupils of the district and 

the achievement of the vast majority of the Negro 
pupils of the district is such that an indiscriminate 

forced attendance of any substantial preconceived per- 

centage or ratio of both races to any particular school 

would result in pupils of such widely varying achieve- 

ment abilities being placed in the same class or grade 

that irreparable damage would be done to the educa- 

tion of all of the pupils in such class or grade and the 

education of all such pupils would be seriously and ad- 

versely affected. 

2. The educational desirability of permitting pupils 

to be in classes or grades where they can identify with 

the other pupils and where they, within reason, can 

achieve along with the other pupils in such class or 

grade is highly important and, under the facts in this 

case, more than offsets any advantages that might be 

   



23a 

Order of the District Court dated May 29, 1969 

obtained by attempting to compel or force pupils to 

attend a particular school because of his race in order 

to achieve a larger percentage of an ethnic group at 

such school. 

3. The freedom of choice plan in effect in this school 

district will result in more statistical mixing of the 

ethnic groups in the schools of this school district 

than will any other plan available to the defendants. 

4. There is no basis for assuming that the per- 

centage or ratio of ethnic groups at any particular 

school in a school district would be of more signif- 

icance in a school district that has a history of de jure 

segregation than in a school district that has a history 

of de facto segregation. 

It is further ordered that the making of these additional 

findings does not require any change in or amendment to 

the order of this Court dated May 16, 1969, which was 

entered pursuant to the foregoing opinion. 

OrpERED, this the 29th day of May, 1969. 

/s/ HarorLp Cox 

United States District Judge 

/s/ Dax M. RusseLL 

United States District Judge 

/s/ WaLter M. Nixon 

United States District Judge 

 



    

24a 

APPENDIX B 

Letter Directive of the Court of Appeals 

of June 25, 1969 

UNITED STATES COURT OF APPEALS 

Firre Circuit 

Orrice or THE CLERK 

Epwarp W. WabpsworTH Room 408-400 Rovan Sr. 

CLERK New Orreans, La. 70130 

June 25, 1969 

To Counsel LisTep BELOW 

Nos. 28030 and 28042 

United States v. Hinds County School Board, et al. 

(Gentlemen: 

I am directed by the Court to forward the following in- 

structions regarding the 25 consolidated Mississippi school 

cases (U.S. v. Hinds County School Board, et al.): 

1. The Court will hear oral argument on all of these 

cases on the motion for summary reversal and the merits 

in all of the cases both private plaintiffs and those of the 

United States. The argument will be held in New Orleans 
beginning 9:30 A.M., Wednesday, July 2. Counsel should 

hold themselves in availability for Thursday, July 3, as 

well. The parties will work out amongst themselves a 

suitable proposed schedule of orders and probable times. 

The Court does not put any specific limitation on time but 

of course desires no unnecessary repetition. 

 



  

25a 

Letter Directive of the Court of Appeals of June 25, 1969 

2. The United States is to arrange for a court reporter, 

the cost to be charged as costs in the case. 

3. The parties are free to file in typewritten form, with 

xerox copies or similar reproduction, any additional memo- 

moranda or briefs and it would be helpful if copies are 

simultaneously sent both to the Clerk and to the Judges 

at their home stations. Special effort should be made to 

have any memoranda, responses, ete. in the Clerk’s office 

by Noon, Tuesday, July 1. Responses and rejoinders will 

be permitted as desired. 

4. The District Clerk is to furnish, and the U .S. Depart- 

ment of Justice is to procure and have available in the 

courtroom for use by the Judges on the bench, with re- 

spect to each school district involved, copies of the latest 

statistical report required to be filed with the District 

Court under the Jefferson type decree theretofore entered. 

Counsel are also directed to supply hopefully in a mutually 

agreeable way a consolidated recap which sets out the 

statistical data substantially in the format of the Exhibit 

“J” attached to the motion of the private plaintiffs-appel- 

lants covering each of the Boards of Education. If de- 

sired, these tables may be adapted to show relative per- 

centages of all pertinent items including those set forth 

in Exhibits A through D attached to the response to motion 

for summary reversal filed June 20 by Messrs. Bridforth 

and Satterfield. 

5. The Court takes notice of Judge Cox’s order with 

respect to the record but since the appeal is being ex- 

pedited on the original record without reproduction: re- 

quired or permitted, the U. S. Attorney shall make ar-  



  

26a 

Letter Directive of the Court of Appeals of June 25, 1969 

rangements with the District Clerk to transmit to the 

Clerk of the Court of Appeals the entire record of the 

District Court including the transcript of the evidence in 

all of the cases so that it will be available to the Court 

as needed during argument and submission. The Court 

contemplates, however, that the record may be returned 

in a very short time. If the District Clerk prefers, it would 

be quite in order for him, one of his deputies, or the U.S. 

Attorney to transport and deliver the record to the Clerk 

of the Court of Appeals. 

6. The Court’s general approach will be to accept the 

fact findings of the District Court and to determine what, 

if any, legal relief is now required best thereon. To the 

extent that appellants, private or government, assert that 

any one or more specific fact findings (as distinguished 

from mixed questions of law and fact) are clearly er- 

roneous, the appellants’ concerned shall xerox copies of 

pertinent excerpts of the transcript of the evidence for 

use by the Judges (4 copies) which may be made available 

during argument. 

7. To enable the Court to announce a decision as quickly 

as possible after submission, the appellants are requested 

to file in 15 copies a proposed opinion-order with definitive 

time table and provisions on the hypothesis that the appeal 

will be sustained. These should be modeled somewhat on 
the form used by the Court in its recent opinions in Hall, 

et al. v. St. Helena Parish School Board, et al., No. 26450, 

May 28, 1969, and Davis, et al. v. Board of School Commus- 

stoners of Mobile County, et al., No. 26886, June 3, 1969. 

When and as additional opinion-orders of this type are 

issued in other school desegregation cases, copies will be 

   



  

27a 

Letter Directive of the Court of Appeals of June 25, 1969 

immediately transmitted to all counsel so that the parties 

can make appropriate comments during argument with 

respect to suggested modifications or changes in their pro- 

posed opinion-orders. 

The Court hopes that the appellants, private and govern- 

ment, can collaborate and submit a mutually agreeable pro- 

posed opinion-order and it desires from the appellees 

contrary proposed orders covering separately (a) on the 

hypothesis that the decrees of the District Court will be 

affirmed, and (b) on the hypothesis that the appellants’ 

motion and appeals will be sustained for reversal. 

8. The Court recognizes that this is a huge record in- 

volving a large number of parties and matters of great 

public interest and importance. Everyone will be heard 

but the Court also expects the distinguished counsel who 

appear in this case to collaborate in the best traditions 

of the bar to the end that waste of time and effort is elim- 

inated and repetition avoided as much as possible. The 

Clerk will stand ready to be of whatever assistance he 

can in meeting this very compressed time schedule. 

Very truly yours, 

Epwarp W. WADSWORTH, 

Clerk 

By /s/ GiLBerT F. GANUCHEAU 

Gilbert F. Ganucheau 

Chief Deputy Clerk 

GFG :adg 

cc: (See attached list)  



    

28a 

Opinion of the Court of Appeals of July 3, 1969 

[Caption omitted] 

Before 

Brown, Chief Judge, 

TaOrRNBERRY and MorcaN, Circuit Judges. 

Per Curiam: 

As questions of time present such urgency as we approach 

the beginning of the new school year September 1969-70, 

the court requested in advance of argument that the parties 

submit proposed opinion-orders modeled after some of our 

recent school desegregation cases. We have drawn freely 

upon these proposed opinion-orders. 

These are twenty-five school desegregation cases in a 

consolidated appeal from an en banc decision of the U. S. 

District Court for the Southern District of Mississippi. 

These cases present a common issue: whether the District 

Court erred in approving the continued use by these school 

districts of freedom of choice plans as a method for the 

disestablishment of the dual school systems. 

The plaintiffs’ position is that the District Court erred 

in failing to apply the principles announced in recent deeci- 

sions of the Supreme Court and of this Court. 

These same school districts, along with others, were be- 

fore this Court last year in Adams v. Mathews, 403 F.2d 

181 (5th Cir., 1968). The cases were there remanded with 

instructions that the district courts determine: 

(1) whether the school board’s existing plan of de- 

segregation is adequate “to convert [the dual system] 

to a unitary system in which racial discrimination 

 



  

29a 

Opinion of the Court of Appeals of July 3, 1969 

would be eliminated root and branch” and (2) whether 

the proposed changes will result in a desegregation 

plan that “promises realistically to work now.” 

403 F.2d at 188. In determining whether freedom of choice 

would be acceptable, the following standards were to be 

applied: 

If in a school district there are still all-Negro schools 

or only a small fraction of Negroes enrolled in white 

schools, or no substantial integration of faculties and 

school activities then, as a matter of law, the existing 

plan fails to meet constitutional standards as estab- 

lished in Green. 

Ibid. 

In all pertinent respects, the facts in these cases are simi- 

lar. No white student has ever attended any traditionally 

Negro school in any of the school districts. Every district 

thus continues to operate and maintain its all-Negro schools. 

The record compels the conclusion that to eliminate the dual 

character of these schools alternative methods of desegrega- 

tion must be employed which would include such methods 

as zoning and pairing. 

Not only has there been no cross-over of white students 

to Negro schools, but only a small fraction of Negro stu- 

dents have enrolled in the white schools. The highest per- 

1 Tllustrative are the following tables, corrected to the latest 
available data furnished and checked by counsel, in the cases in 
which the Government is a party showing the racial character of 
the schools in each district and the enrollment by race:  



    

30a 

Opwmion of the Court of Appeals of July 3, 1969 

centage is in the Enterprise Consolidated School District, 

which has 16 percent of its Negro students enrolled in white 

schools—a degree of desegregation held to be inadequate in 

Green v. County School Board, 391 U. S. 430 (1968). The 

statistics in the remaining districts range from a high of 

10.6 percent in Forrest County to a low of 0.0 percent in 

Neshoba and Lincoln Counties. For the most part school 

activities also continue to be segregated. Although Negroes 

attending predominantly white schools do participate on 

teams of such schools in athletic contests, in none of the 

districts do white and all-Negro schools compete in athletics. 

  

RACIAL CHARACTER 
Predom- 

Total Number All- All- mantly 
District of Schools Negro White White 

Amite 2 

Canton 
Columbia 

Covington 
Forrest 
Franklin 
Hinds 2 

Kemper 
Lauderdale 
Lawrence 

Leake 

Lincoln 
Madison 
Marion 

Meridian 

Natchez-Adams 
Neshoba 

North Pike 
Noxubee 
Philadelphia 
Sharkey-Issaquena 
Anguilla-Line 
South Pike 
Wilkinson 

Pt
 

= 
D
O
O
Y
O
O
 

1 ft
 

| 
D
O
]
 

C
O
C
O
C
O
D
O
 
I
=
 

| 
D
O
 

| 

} 
= 

t
o
e
o
t
s
 

1 

4 
2 
1 
8 
1 
1 
3 
1 
1 
1 
5 
2 

Continued on opposite page) 

a
y
 

HS
 

= 
CO
 
OT
CO
 
O
H
 

DO
 
U
T
 

U1
O0
 

OH 
=3

 
=3

 
UT

 
O
R
D
 

CO
 

© 
=I

 
Hx

 
Ut

 
On

 

} 
= 

SD
 

3 
1 
3 
1 
1 
0 
2 
1 
2 
3 
2 
4 
1 
8 
7 
1 
1 
3 
1 
4 
2 
2 
2 
( 

 



31a 

Opinion of the Court of Appeals of July 3, 1969 

These facts indicate that these cases fall squarely within 

the decisions of the Supreme Court in Green and its com- 

panion cases and the decisions of this Court. See Umited 

States v. Greenwood Municipal Separate School District, 

406 F.2d 1086 (5th Cir. 1969) ; Henry v. Clarksdale Munici- 

pal Separate School District, No. 23,255 (5th Cir., March 6, 

1969); United States v. Indianola Municipal Separate 

School District, No. 25,655 (5th Cir., April 11, 1969; An- 

  

ENROLLMENT BY RACE AND PERCENTAGE 
OF NEGROES IN WHITE SCHOOLS 

1968-1969 Enrollment Negroes in Whate Schools 
District Negro White Number Percentage 

Amite 2,649 1,484 63 24 % 
Canton 3,440 1.352 ; 4 11% 
Columbia, 912 1,553 60 6.6 % 
Covington 1,422 1,968 89 51 % 
Forrest 480 3,085 81 16.9 % 
Franklin 1,029 1,124 38 371 % 
Hinds 7,409 6,559 481 6.5 % 
Kemper 1,896 786 i 3 98% 
Lauderdale 1,872 3,060 26 14 % 
Lawrence 1,263 1,889 32 2.5 9% 
Leake 1,568 1,950 67 4.3 % 
Lincoln 941 1,149 5 2 % 
Madison 3,198 1,128 41 13. % 
Marion 1,082 1,741 34 31 % 
Meridian 3,974 5,805 606 15.2 % 
Natchez- Adams 5,509 4,496 541 9.8 9% 
Neshoba 591 1,875 1 16% 
North Pike 632 708 2 31% 
Noxubee 3,002 829 95 32 % 
Philadelphia 406 923 1] 2.7 % 
Sharkey-Issaquena 1,241 603 104 6.4 % 
Anguilla-Line 769 207 30 3.9 % 
South Pike 1,737 994 46* 2.6 % 
Wilkinson 2,032 689 55 2.1 % 

Note: There is a disagreement over proper accounting for some 
special classes which, for these purposes, we consider un- 
important.  



    

32a 

Opwion of the Court of Appeals of July 3, 1969 

thony v. Marshall County Board of Education, No. 26,432 

(5th Cir., April 15, 1969) ; Hall v. St. Helena Parish School 

Board, No. 26,450 (5th Cir., May 28, 1969) ; Davis v. Board 

of School Commissioners of Mobile County, No. 26,886 (5th 

Cir., June 3, 1969); United States v. Jefferson County 

Board of Education, No. 27,444 (5th Cir., June 26, 1969) ; 

United States v. Choctaw County Board of Education, 5 

Cir. 1969, F.2d (No. 27, 297, July 1, 1969) ; United 

States v. The Board of Education of Baldwin County, 5 Cir. 

1969, F.2d (No. 27,281, July 1, 1969); United 

States v. The Board of Education of the City of Bessemer, 

5 Cir. 1969, F.2d (Nos. 26,582; 26,583; 26,584; 

July 1, 1969). The proper conclusion to be drawn from 

these facts is clear from the mandate of Adams v. Mathews, 

supra: ‘“as a matter of law, the existing plan fails to meet 

constitutional standards as established in Green.” 

‘We hold that these school districts will no longer be able 

to rely on freedom of choice as the method for disestablish- 

ing their dual school systems. 

This may mean that the tasks for the courts will become 

more difficult. The District Court itself has stated that it 

“does not possess any of the training or skill or experience 

or facilities to operate any kind of schools; and unhesitat- 

ingly admits to its utter incompetence to exercise or exert 

any helpful power or authority in that area.” And this 

Court has observed that judges “are not educators or school 

administrators.” Umited States v. Jefferson County Board 

of Education, supra at 855. Accordingly, we deem it ap- 

propriate for the Court to require these school boards to 

enlist the assistance of experts in education as well as de- 

segregation; and to require the school boards to cooperate 

with them in the disestablishment of their dual school 

systems. 

 



  

33a 

Opwion of the Court of Appeals of July 3, 1969 

With respect to faculty desegregation, little progress has 

been made.? Although Natchez-Municipal Separate District 

has a level of 19.2% and Lawrence County a level of 10.6%, 

seven school districts have less than one full-time teacher 

per school assigned across racial lines. In the remaining 

systems, fewer than 10 percent of the full-time faculties 

teach in schools in which their race is in the minority. 

Faculties must be integrated. United States v. Montgomery 

2 The latest corrected figures (see Note 1 supra) are: 

Full & part Full time desegre- Part time desegre- 

time teachers gating teachers gating teachers 

District Negro Whate Negro White Negro White 

Amite 95 66 0 0 0 0 
Canton 120 81 3 11 1 9 
Columbia 43 7A 5 4 0 4 

Covington 64 103 3 3 1 5 
Forrest 43 122 4 3 1 2 

Franklin 44 45 3 4 i 1 
Hinds 295 281.9 22 0 

Kemper 68 45 0 1 0 3 
Lauderdale 82 131 8 3 0 0 
Lawrence 50 81 10 4 0 :) 

Leake 87 90 0 3 0 1 
Lincoln 38 74 0 0 0 0 
Madison 147 66 0 8 0 i 
Marion 48 96 4 6 0 0 

Meridian 180 317 8 7 4 10 
Natchez-Adams 484 0 0 40 53 
Neshoba 35 86 0 3 0 2 

| North Pike 26 30 1 2 1 2 
Noxubee 135 61 6 ) 0 0 
Philadelphia 25 46 0 0 0 2 

Sharkey-Issaquena 71 31 0 0 0 0 
Anguilla-Line 0 0 0 0 
South Pike 78 52.8 2 3.3 0 2 
Wilkinson 97 39 0 6 0 0  



    

34a 

Opwmion of the Court of Appeals of July 3, 1969 

County Board of Education, No. 798, at 8 (Sup.Ct., June 2, 

1969). Minimum standards should be established for mak- 

ing substantial progress toward this goal in 1969 and finish- 

ing the job by 1970. United States v. Board of Kducation 

of the City of Bessemer, 5 Cir., 1968, 396 F.2d 44; Choctaw 

County, supra, Baldwin County, supra. 

The Court on the motion to summarily reverse or alter- 

natively to expedite submission of the case filed by the 

Government and the private plaintiffs concluded that funda- 

mental constitutional rights of many persons would be 

jeopardized, if not lost, if this Court routinely calendared 

this case for briefing and argument in the regular course. 

Before we could ever hear it, the opening of the school year 

September 1969-1970 would have gone by. With this and 

the total absence of any new issue even resembling a con- 

stitutional issue in this much litigated field, we therefore 

concluded that the appeals should be expedited. Full argu- 

ments were had and representatives from every District 

were heard from. In the course of these arguments, several 

contentions were made as to which we make these additional 

specific comments. 

Based upon opinion surveys conducted by presumably 

competent sampling experts, testimony of school adminis- 

trators, board members, and educational experts, the School 

Districts urged, and the District Court found in effect, that 

the failure of a single white student to attend an all-Negro 

school was due to the provisions of our Jefferson decree 

which in effect prohibited school authorities from influenc- 

ing the exercise of choice by students or parents. We find 

this completely unsupported. This record affords no basis 

for any expectation of any substantial change were the 

provision modified. 

 



  

35a 

Opwmion of the Court of Appeals of July 3, 1969 

Based upon similar testimony, the School Districts urged 

a related contention that the uncontradicted statistics show- 

ing only slight integration are not a reliable indicator of the 

commands of Green. This argument rests on the assertion 

that quite apart from a prior dual race school system, there 

would be concentration of Negroes or white persons from 

what was described as “polarization.” To bolster this, they 

pointed to school statistics in non-southern communities. 

Statistics are not, of course, the whole answer, but nothing 

is as emphatic as zero, and in the face of slight numbers and 

low percentages of Negroes attending white schools, and no 

whites attending Negro schools, we find this argument 

unimpressive. 

In the same vein is the contention similarly based on sur- 

veys and opinion testimony of educators that on stated per- 

centages (e.g., 20%, 30%, 70%, etec.), integration of Negroes 

(either from influx of Negroes into white schools or whites 

into Negro schools), there will be an exodus of white stu- 

dents up to the point of almost 100% Negro schools. This, 

like community response or hostility or scholastic achieve- 

ment disparities, is but a repetition of contentions long since 

rejected in Cooper v. Aaron, 1958, 358 U.S. 1, S.Ct. 

, —— L.Ed. ; Stell v. Savannah-Chatham County 

Bd. of Ed., 5 Cir., 1964, 333 F.2d 55, 61; and United States 

v. Jefferson County Bd. of Ed., 5 Cir., 1969 —— F.2d 

[No. 27444, June 26, 1969]. 

The order of the District Court in each case is reversed 

and the cases are remanded to the District Court with the 

following direction: 

  

    

  

1. These cases shall receive the highest priority. 

2. The District Court shall forthwith request that edu- 

cators from the Office of Education of the United States  



  
  

36a 

Opwmion of the Court of Appeals of July 3, 1969 

Department of Health, Education and Welfare collaborate 

with the defendant school boards in the preparation of plans 

to disestablish the dual school systems in question. The dis- 

establishment plans shall be directed to student and faculty 

assignment, school bus routes if transportation is provided, 

all facilities, all athletic and other school activities, and 

all school location and construction activities. The District 

Court shall further require the school boards to make avail- 

able to the Office of Education or its designees all requested 

information relating to the operation of the school systems. 

05) 
3. The board, in conjunction with the Office of Kducation, 

shall develop and present to the District Court before Au- 

gust 11, 1969, an acceptable plan of desegregation. 

4. If the Office of Education and a school board agree 

upon a plan of desegregation, it shall be presented to the 

District Court on or before August 11, 1969. The court shall 

approve such plan for implementation commencing with 

the 1969 school year, unless within seven days after sub- 

mission to the court any party files any objection or pro- 

posed amendment thereto alleging that the plan, or any 

part thereof, does not conform to constitutional standards. 

5. If no agreement is reached, the Office of Education 

shall present its proposal to the District Court on or before 

August 11, 1969. The Court shall approve such plan for 

implementation commencing with the 1969 school year, un- 

less within seven days a party makes proper showing that 

the plan or any part thereof does not conform to constitu- 

tional standards. 

6. For plans to which objections are made or amend- 

ments suggested, or which in any event the District Court 

will not approve without a hearing, the District Court shall 

   



37a 

Opwmion of the Court of Appeals of July 3, 1969 

hold hearings within five days after the time for filing ob- 

jections and proposed amendments has expired. In no event 

later than August 21, 1969. 

7. The plans shall be completed, approved, and ordered 

for implementation by the District Court no later than 

August 25, 1969. Such a plan shall be implemented com- 

mencing with the beginning of the 1969-1970 school year. 

8. Because of the urgency of formulating and approving 

plans to be implemented for the 1969-70 school term it is 

ordered as follows: The mandate of this Court shall issue 

immediately and will not be stayed pending petitions for 

rehearing or certiorari. This Court will not extend the 

time for filing petitions for rehearing or briefs in support 

of or in opposition thereto. Any appeals from orders or 

decrees of the District Court on remand shall be expedited. 

The record on any appeal shall be lodged with this court and 

appellants’ brief filed, all within ten days of the date of the 

order or decree of the district court from which the appeal 

is taken. Appellee’s brief shall be due ten days thereafter. 

The court will determine the time and place for oral argu- 

ment if allowed. The court will determine the time for 

briefing and for oral argument if allowed. No consideration 

will be given to the fact of interrupting the school year in 

the event further relief is indicated. 

RevERsED AND REMANDED WiTH DIRECTIONS 

 



  

38a 

Modification of Order of the Court of Appeals 

of July 25, 1969 

[Caption omitted] 

Before 

Browx, Chief Judge, 

TaorNBERRY and Morcean, Circuit Judges. 

Per Curiam: 

The opinion published in the above styled cases on July 3, 

1969 is hereby modified by renumbering former paragraph 

8 to be number 7 and striking from such order, on pages 

17 and 18, paragraphs 5, 6 and 7 in their entirety, and in- 

serting in lieu thereof new paragraphs 5 and 6 which shall 

read as follows: 

5. If no agreement is reached, the Office of Education 

shall present its proposal for a plan for the school 

district to the district court on or before August 11, 

1969. The parties shall have ten (10) days from the 

date such a proposed plan is filed with the district 

court to file objections or suggested amendments 

thereto. The district court shall hold a hearing on 

the proposed plan and any objections and suggested 

amendments thereto, and shall enter a plan which 

conforms to constitutional standards no later than 

ten (10) days after the time for filing objections has 

expired. 

6. A plan for the school district shall be entered for 

implementation by the district court no later than 

September 1, 1969 and shall be effective for the begin- 

ning of the 1969-1970 school year. The district court 

shall enter Findings of Fact and Conclusions of Law 

   



39a 

Modification of Order of the Court of Appeals 

of July 25, 1969 

regarding the efficacy of any plan which is approved 

or ordered to immediately disestablish the dual school 

system in question. Jurisdiction shall be retained, 

however, under the teaching of Green v. Coumty 

School Board of New Kent County, 391 U. S. 430, 

439 (1968), and Raney v. Board of Education of 

Gould School District, 391 U.S. 443, 449 (1968), until 

it is clear that disestablishment has been achieved. 

 



  

40a 

APPENDIX C 

Letter of August 11, 1969 Transmitting Desegregation 

Plans From United States Office of Education 

to the District Court 

DEPARTMENT oF HEALTH, EDUCATION, AND WELFARE 

OrricE oF EDUCATION 

WasnineToN, D. C. 20202 

August 11, 1969 

Judge William H. Cox 

United States District Court 

Southern Distriet of Mississippi 

Post Office Drawer 2447 

Jackson, Mississippi 39205 

Dear Judge Cox: 

Re: United States of America v. 

Hinds County School Board et al 

and related cases subject to the 

Court’s Order of July 5, 1969 

The enclosed desegregation plans were developed as a re- 

sult of the Court’s Order of July 5, 1969, in the above- 

referenced cases. 

The technical assistance teams who carried out this work 

were made up of 27 educators and were under the direction 

of Mr. Jesse J. Jordan, Senior Program Officer of the Divi- 

sion of Equal Educational Opportunities, U. S. Office of 

Education, Department of Health, Education, and Welfare, 

headquartered in Atlanta, Georgia. (Attachment A con- 

tains identifying information for each of the 27 educators 

involved.) 

   



41a 

Letter of August 11, 1969 Transmitting Desegregation 

Plans From United States Office of Education 

to the District Court 

On July 11, 1969, I wrote to the superintendent of each 

school district named in the Order, advising him of the 

availability of services in the development of a desegrega- 

tion plan. The letter provided the name, address, and tele- 

phone number of Mr. Jordan, and described the various 

types of information which would be needed from the school 

district for us to use in preparing a desegregation plan. 

(Attachment B is an example of this letter.) 

Shortly after I sent my letter of July 11 to the Superinten- 

dents, we contacted each by telephone and an appointment 

was made for a technical assistance team to visit the school 

district to gather all the materials necessary for developing 

a desegregation plan. As a result of cooperation between 

the local school officials and the technical assistance person- 

nel, the following data were acquired: 

1) Building information—by school, the number of 

permanent teaching stations, capacity of each build- 

ing, current student enrollment by race and grade, 

number of full-time and part-time teachers by race, 

number of students transported, age of building, type 

of construction, size of school site, and list of faecili- 

ties such as cafeteria, gymnasium, library, ete. 

2) Proposed building information—future construction 

plans. 

3) Pupil Locator Maps (where available)—to show resi- 

dence of Negro and white students. 

4) School and School Site Map—to show location of 

each school in the district, coded as to grade levels of 

students. | 

5) Demographic Information (where available)—giving 

population distribution of the community by race.  



  

42a 

Letter of August 11, 1969 Transmitting Desegregation 

Plans From United States Office of Education 

to the District Court 

A technical assistance team, composed of at least two (2) 

trained educators, visited or offered to visit each of the 

school districts at least three (3) times during this period. 

On the first visit, they viewed existing school facilities, 

gathered data, and discussed with local school officials their 

ideas for school desegregation and the administrative prob- 

lems involved. On the second visit, they discussed with local 

school officials the team’s tentative thoughts concerning a 

desegregation plan for the district, and attempted to elicit 

the ideas of the school officials as to alternative sound and 

feasible desegregation plans. Where the offer of a third 

visit was accepted, the team presented to the school officials 

the plan which the Office of Education intended to recom- 

mend to the Court, subject to amendments resulting from 

this meeting. At all times the Office of Education staff at- 

tempted to collaborate with the school officials in develop- 

ing an effective and mutually acceptable plan. 

The information we have used in formulating our plans was 

obtained, unless otherwise stated, from school district of- 

ficials. For example we have described in each plan the 

information on which it is based. At the end of the pro- 

posed plans, we have inserted photocopies of reports and 

building information forms. While these are not signed, 

the information in them was furnished by officials of the 

school district. We were unable to duplicate maps which 

we used. We have attempted to indicate those instances 

where information is the result of observation of our staff. 

In some cases school officials were not able to furnish pre- 

cise information about student residences by race (pupil 

locator), or other demographic information. Also, in most 

instances, school officials did not furnish us with an estimate 

of enrollment for the 1969-70 school year, other than projec- 

   



43a 

Letter of August 11, 1969 Transmitting Desegregation 

Plans From Umited States Office of Education 

to the District Court 

tions of the 1968-69 enrollment. The enrollment of each 

school district is stable enough to make use of such projec- 

tions, a generally acceptable practice, in planning for the 

use of schools for the 1969-70 school year. In some cases, 

however, it is possible that these projections do not ac- 

curately reflect the numbers of children who reside in the 

area of a given school. This possibility stems from the fact 

that traditionally in these school districts there has been 

extensive bussing of children to schools outside the areas 

of their residence. 

Where our information was not precise enough, we avoided 

drawing exact geographic boundaries for school attendance 

areas. Rather, we provided guides from which these lines 

can be drawn to achieve at least the measure of desegrega- 

tion indicated in the projection tables of our proposals. 

Because each proposal was not prepared by the same indi- 

vidual, this concept is worded in several different ways. In 

each case, however, we intend the same meaning. For exam- 

ple, when we recommend that children attending a certain 

school shall be assigned as specified or that children from a 

particular school be assigned to a specified place, we mean 

that all children living in the area of the school that is 

named should be so assigned through adoption of attend- 

ance lines so drawn as to utilize properly the school facili- 

ties and achieve at least the measure of desegregation 

indicated in the proposal. It should be clear that in such 

a case, we do not intend to recommend that a child who has 

been bussed into the area from another area under freedom 

of choice is to continue to attend that school, except possibly 

pursuant to a proper transfer policy, including one for 

majority-to-minority transfer as described in Section VI 
of our proposals.  



  

44a 

Letter of August 11, 1969 Transmitting Desegregation 

Plans From Umited States Office of Education 

to the District Court 

I believe that each of the enclosed plans is educationally and 

administratively sound, both in terms of substance and in 

terms of timing. In the cases of Hinds County, Holmes 

County, and Meridian, the plans that we recommend pro- 

vide for full implementation with the beginning of the 

1970-71 school year. The principal reasons for this delay 

are construction, and the numbers of pupils and schools in- 

volved. In all other cases, the plans that we have prepared 

and that we recommend to the Court provide for complete 

disestablishment of the dual school system at the beginning 

of the 1969-70 school year. Should the Court decide, how- 

ever, to defer complete desegregation in any of these school 

districts beyond the opening of the coming school term, we 

have prepared and set ouf in the plans, steps which could, 

in our judgment, be taken this fall to accomplish partial 

desegregation of the school system at the opening of the 

1969-70 school term. 

The entire staff who participated wish to express apprecia- 

tion for the cooperation we received from the school dis- 

tricts and for the opportunity the Court has given us to 

assist in the development of these desegregation plans. 

Sincerely yours, 

/s/ GrEGcOrY R. ANRIG 

Gregory R. Anrig, Director 

Equal Educational Opportunities 

U. S. Office of Education 

Attachments: 

A 

B 

   



45a 

Attachment A Annexed to Letter of August 11, 1969 

Number 

Name Experience of Years 

Gregory R. Anrig Teacher 3 

Asst. Principal 1 

Principal 4 

Superintendent 3 

Division Director, 

U. S. Office of Education 2 

James E. Barnes Teacher 4 

Executive Director, 

Berkshire Co. Action Council 1 

Education Coordinator, 

Hartford County, Conn. 2 

Director, Education Pro- 

grams for Disadvantaged 2 

OE Fellowship, Title IV, 

U. S. Office of Education 1 

Edwin Blue Teacher-Principal 26 

Superintendent 4 

Field Representative, 

Auburn University 1% 

Walter D. Branch Teacher 1 

Teaching Principal 2% 

Principal 9 

Asst. Superintendent 2 

Research Assoc. & Pro- 

gram Coord., Southeastern 

Education Laboratory i 

Program Officer, Title IV, 

U. S. Office of Education 115  



    

46a 

Attachment A Awnexed to Letter of August 11, 1969 

Name 

Frank Carter 

E. H. Cooper 

Edna Ellicott 

Thomas W. Fagin 

Alfred P. Fain 

Number 

Experience of Years 

Assistant Dir. of Student 

Teaching, Virginia State 

College 2 

Dir. Student Personnel, 

Virginia State College 7 

Program Officer, Title 1V, 

U. S. Office of Education 114 

Teacher-Coach 11 

Principal 4 

Superintendent 5 

Program Officer, Title IV, 

U. S. Office of Education 115 

Education Program Spe- 

cialist, U. S. Office of 

Education 2 

Curriculum Asst. & Consult 2 

Teacher 4 

Program Officer, Title IV, 

U. S. Office of Education 1 

Teacher 

Teaching Principal 

Principal 

Asst. Superintendent 

Superintendent 

Asst. to Commissioner on 

Education—Guam 2 

Director, Vocational & Sec- 

ondary Education, Virgin 

Islands 2 

=
 

O
n
 

 



47a 

Attachment A Annexed to Letter of August 11, 1969 

Number 

Name Experience of Years 

Alfred P. Fain Director, Peace Corps 

(cont’d) Training 41% 

Program Officer, Title 1V, 

U. S. Office of Education 1 

Richard L. Fairley Teacher 9) 

Education Specialist 3 

Education Specialist, 

U. S. Office of Education 3 

Branch Chief, 

U. S. Office of Ed. 2 

Joseph J. Franchina Teacher 5 

Assistant Principal 4 

Principal 19 

Superintendent 5 

Program Officer, Title III, 

ESEA 1Y5 

Program Officer, Title IV, 

U. S. Office of Education 114 

Marilyn C. Galvin Education Program Spe- 

cialist U. S. Office of 

Education 4 

Illard J. Hunter Teacher 2 

Principal 2 

Superintendent 6 

Program Officer, Title IV, 

U. S. Office of Education 114 

J.C. James Teacher 8 

Dean of Admissions 6 

Education Specialist, 

U. S. Office of Education 3  



    

48a 

Attachment A Annexed to Letter of August 11, 1969 

Name 

J.J. Jordan 

Wilmer Kerns 

John R. Lovegrove 

Hilda Maness 

Number 

Experience of Years 

Teacher 3 

Principal 3 

Director, Transp., Maint. 

& Operations, & Federal 

Prog., Asst. Superintendent 12 

Program Officer, Title 1V, 

U. S. Office of Education 114 

Teacher 114 

Guidance Counselor 5 

Visiting Teacher 2% 

Education Program Spe- 

cialist, U. S. Office of 

Education 124 

Teacher 8 

Principal 8 

College Instructor 8 

N.Y. State Central School 

Study Research 2 

Supv. Instr., State Dept. 

of Ed. 2 

Dir., Guidance & Testing, 

State Dept. of Education 2 

Program Officer, Title IV, 

U. S. Office of Education 115 

Teacher 1 

Educational Research, 

Library of Congress 7 

Teacher—Peace Corps 15 

Textbook Writer, Ethiopia, 

Ministry of Education b% 

 



49a, 

Attachment A Annexed to Letter of August 11, 1969 

Number 

Name Experience of Years 

Hilda Maness Education Program Spe- 

(cont’d) cialist, U. S. Office of 

Education 2 

Clyde W. Matthews Teacher 2 

College Instructor 3 

Director, Neighborhood 

Youth Corps, 

Greenville, N.C. 2 

Program Officer, Title IV, 

U. S. Office of Education 1 

Robert T. Morris Teacher 1 

College Instructor 5 

Program Officer, Title IV, 

U. S. Office of Education 115 

William T. Nallia Teacher-Coach 3 

Principal 2 

Asst. Superintendent 2 

Asst. Coord. Title I, 

State Dept. of Education l 

Coord. Field Services, 

Title IV, University of 

S. Alabama 2 

Robert A. Skaife Teacher 10 

Supervisor :§ 

Principal 0 

NEA Field Secretary 8 

Teacher Organ— 

Executive Secretary 9 

College Teacher 1%  



  

50a 

Attachment A Annexed to Letter of August 11, 1969 

Name 

Robert A. Skaife 

(cont’d) 

Howard Sullins 

M. Edward Sullivan 

Albert G. Tippitt 

Charlie T. Trussell 

Bobby M. Bowen 

Number 

Experience of Years 

Education Program Spe- 

cialist, Title IV, U. S. Office 

of Education 

Teacher 4 

Principal 13 

Superintendent 3 

Program Officer, Title IV, 

U. S. Office of Education 1 

Teacher 4 

Principal 7 

Asst. Superintendent 1 

Education Program Spe- 

cialist, Title IV, U. S. Office 
of Educ. 9 

Principal 21 

Dean of College 1 

College Instructor 1 

Teacher 3 

Program Specialist, Title 

IV U. S. Office of Education 1 

Teacher 7 

Principal 12 

Program Director, Title III 1 

Program Officer, Title IV, 

U. S. Office of Education 115 

Teacher-Coach 8 

Program Officer, Title IV, 

U. S. Office of Education 114 

   



5la 

Attachment B Annexed to Letter of July 11, 1969 

DepArRTMENT OF HEALTH, EDUCATION, AND WELFARE 

Orrice oF EpucaTioN 

WasaINGTON, D. C. 20202 

Bureau of Elementary and 

Secondary Education 

July 11, 1969 

Dear Superintendent: 

In accordance with the July 5, 1969, order of the United 

States District Court for the Southern District of Missis- 

sippi, I wish to call to your attention the technical assistance 

available to you under Title IV of the Civil Rights Act of 

1964. For assistance in developing a desegregation plan for 

your district, contact the following person: 

Mr. Jesse J. Jordan 

Senior Program Officer 

Equal Education Opportunities 

Office of Kducation/BESE 

50 Seventh Street, NE. 

Atlanta, Georgia 30323 

Telephone: Area Code 404 526-3076 

Because of the number of districts to be served under this 

order and the limited time for plan development, we will be 

asking each district which requests Title IV assistance to 

make available pupil locator, transportation, and—where 

 



  

52a 

Attachment B Annexed to Letter of July 11, 1969 

appropriate—zone maps for the district as currently 

organized. Mr. Jordan can answer any questions regarding 

these maps. 

A brochure describing our services is enclosed for your 

information. 

Sincerely yours, 

/s/ GreEcory R. ANrIG 

Gregory R. Anrig, Director 

Division of Equal Educational 

Opportunities 

Enclosure 

   



53a 

Letter of August 19, 1969 From the Secretary of the 

Department of Health, Education and Welfare to 

the Chief Judge of the Court of Appeals 

THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE 

Washington, D.C. 20201 

August 19, 1969 

Dear Judge Brown: 

In accordance with an Order of the United States Court 

of Appeals for the Fifth Circuit, experts from the Office of 

Education in the Department of Health, Education, and 

Welfare have developed and filed terminal plans to dis- 

establish the dual school systems in 33 Mississippi school 

district cases. 

These terminal plans were developed, reviewed with the 

school districts, and filed with the United States District 

Court for the Southern District of Mississippi on August 

11, 1969, as required by the Order of the United States 

Court of Appeals for the Fifth Circuit. These terminal 

plans were developed under great stress in approximately 

three weeks; they are to be ordered for implementation 

on August 25, 1969, and ordered to be implemented com- 

mencing with the beginning of the 1969-1970 school year. 

The schools involved are to open for school during a period 

which begins two days before August 25, 1969, and all are 

to be open for school not later than September 11, 1969. 

On Thursday of last week, I received the terminal plans 

as developed and filed by the experts from the Office of 

Education. I have personally reviewed each of these plans. 

This review was conducted in my capacity as Secretary 

of the Department of Health, Education, and Welfare and 

as the Cabinet officer of our Government charged with the 

ultimate responsibility for the education of the people 

of our Nation.  



  

dda 

Letter of August 19, 1969 From the Secretary of the 

Department of Health, Education and Welfare to 

the Chief Judge of the Court of Appeals 

In this same capacity, and bearing in mind the great trust 

reposed in me, together with the ultimate responsibility 

for the education of the people of our Nation, I am gravely 

concerned that the time allowed for the development of 

these terminal plans has been much too short for the 

educators of the Office of Education to develop terminal 

plans which can be implemented this year. The administra- 

tive and logistical difficulties which must be encountered 

and met in the terribly short space of time remaining must 

surely in my judgment, produce chaos, confusion, and a 

catastrophic educational setback to the 135,700 children, 

black and white alike, who must look to the 222 schools of 

these 33 Mississippi districts for their only available 

educational opportunity. 

I request the Court to consider with me the shortness of 

time involved and the administrative difficulties which lie 

ahead and permit additional time during which experts 

of the Office of Education may go into each district and 

develop meaningful studies in depth and recommend 

terminal plans to be submitted to the Court not later than 

December 1, 1969. 

Sincerely, 

Secretary 

/s/ RoBeErT H. Finca 

cc: Hon. Dan M. Russell, Jr. 

Hon. Walter L. Nixon, Jr. 

   



99a 

Order of the Court of Appeals of August 20, 1969 

[Caption omitted] 

Before 

Brown, Chief Judge, 

TrORNBERRY and Morcean, Circuit Judges. 

Per Curiam: 

On August 19, 1969, Judge John R. Brown received by 

safehand courier the attached communication of August 9, 

1969 (marked Exhibit 1) from the Secretary of Health, 

Fducation and Welfare which in turn enclosed a copy of 

his communication of like date to Judges Cox, Russell and 

Nixon (marked Exhibit 2). Presumably this was delivered 

directly to the Judges concerned because the orders of this 

Court and the District Court pursuant thereto call upon 

the Department of Health, Kiducation and Welfare to take 

certain action. 

As the timetable heretofore fixed was substantially that 

recommended by the United States Attorney General in 

response to the request made by this Court to all parties 

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

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

earliest time the position of the parties as expressed in 

due order through their respective counsel, made inquiry 

of the Department of Justice. The Court was informed 

that motions were in the course of preparation for im- 

mediate filing in the District Court with appropriate similar 

motions in the Court of Appeals seeking the entry of orders 

granting the suggested extension to December 1, 1969. 

The Court has taken no action other than to record these 

facts. 

ExTeER: August 20, 1969.  



  

  
56a 

APPENDIX D 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

[Caption omitted] 

In an opinion-order of July 3, 1969, a panel of three 

Judges on the Fifth Circuit Court of Appeals, reversed 

the decision of three District Judges sitting as the District 

Court of the Southern District of Mississippi upholding 

freedom of choice plans for the desegregation of students 

and faculties in twenty-five cases including thirty school 

districts on the docket of this Court. 

The opinion-order, as amended, directed the District 

Court in each case to request educators from the Office 

of Education of the United States Department of Health, 

Education and Welfare, hereinafter called HEW, to collab- 

orate with the respective defendant school boards in the 

preparation of plans to disestablish “the dual school 

systems.” The opinion-order provided that each school 

board shall develop and present to the District Court be- 

fore August 11, 1969, an acceptable plan of desegregation. 

It provided that if the board and HEW agreed upon a 

plan, the plan should be presented to the District Court 

on or before August 11, 1969, and the Court should approve 

such plan unless within seven days after submission any 

party should file an objection or proposed amendment 

alleging that the plan, or any part thereof, did not conform 

to constitutional standards. The opinion-order further 

provided that if no agreement be reached HEW should 

present its proposed plan on or before August 11, 1969, 

and the parties should have 10 days from the date of filing 

to file objections or suggested amendments thereto. The 

opinion-order further directed the District Court to hold 

   



57a 

Fwndings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

a hearing on the proposed plan and objections and amend- 

ments thereto and to enter a plan no later than September 

1, 1969, to be effective for the beginning of the 1969-70 

school year, retaining jurisdiction until it was clear to the 

Court that disestablishment had been achieved. 

With respect to three school districts, those of Hinds 

County, Holmes County, and Meridian, the HEW recom- 

mended plans provided for full implementation beginning 

with the 1970-71 school year. As to all other districts, HEW 

has submitted two proposals—one for complete disestab- 

lishment beginning with the 1969-70 school year, and 

one for partial or interim desegregation at the opening 

of the 1969-70 term. 

On the date of August 20, 1969, one day prior to the 

deadline set by the United States Court of Appeals for the 

Fifth Circuit in its Opinion and Mandate for all parties 

to file their proposed plans, objections, suggested modifica- 

tions and affidavits, this Court was informed through tele- 

phone conversation with Chief Judge John R. Brown of 

the Fifth Circuit that he was in receipt of a letter dated 

August 19, 1969 from Honorable Robert H. Finch, 

Secretary of Health, Education and Welfare, the substance 

of which was that the Secretary had received the terminal 

plans as developed and filed by the experts in the Office of 

Education of the Department of HEW, and had reviewed 

each of the plans, he being charged with the ultimate re- 

sponsibility for the education of the people of the United 

States in this letter, which was subsequently hand-delivered 

to both of the undersigned on the same date, namely, 

August 20, 1969, and which is attached to the original 

Motion filed in the Court of Appeals on August 21, 1969, 

by the United States For Leave to File Motion Seeking  



  

  
58a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

Modification of Mandate, the Secretary stated that he was 

gravely concerned that the time allowed for the develop- 

ment of these terminal plans was much too short for the 

educators of the Office of Education to develop terminal 

plans which can be implemented in the school year 1969-70, 

which this Court finds was to open on August 20, in some 

of the school districts involved, with various other open- 

ing dates between that date and September 2, 1969. The 

Secretary further stated in his letter that the administra- 

tive and logical difficulties which must be encountered and 

met in the “terribly short space of time remaining” must 

surely in his judgment, “produce chaos, confusion, and a 

catastrophic educational setback to the 135,700 children, 

black and white alike, who must look to the 222 schools 

of these 33 (sic) school districts for their only available 

educational opportunity.” The Secretary, therefore, in the 

concluding paragraph of his letter requested the Court of 

Appeals and this Court to consider the shortness of time 

involved and the administrative difficulties which lie ahead 

and permit additional time during which experts of the 

Office of Education may go into each school district and 

develop meaningful, studies in depth and recommended 

terminal plans to be submitted to the Court not later than 

December 1, 1969. 

The above letter from the Secretary was attached to a 

motion filed on August 21, 1969 by the United States, en- 

titled Motion of the United States for Leave to File Motion 

Seeking Modification of Mandate, to which was attached 

a proposed order of the United States Court of Appeals 

for the Fifth Circuit. Due to the extreme emergency result- 

ing from the shortness of time, Chief Judge Brown of the 

Fifth Circuit, in a telephone conversation with the under- 

   



99a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

signed Judges suggested and requested that this Court 

conduct a hearing on the motion filed by the United States, 

and make a record thereon, and enter findings of fact and 

conclusions of law, all of which should be transmitted to 

the three judges composing the panel which reversed the 

decisions of this Court in an opinion of July 3, 1969, which 

was subsequently modified on July 25, 1969. Chief Judge 

Brown directed that the record, which would be transcribed 

immediately, and this Court’s written Findings of Fact 

and Conclusions of Law be filed forthwith with the Clerk 

of the United States Court of Appeals for the Fifth Circuit 

in New Orleans and that copies be transmitted to the three 

Judges composing the panel which reversed this case, at 

their home offices, namely, Chief Judge John R. Brown, 

Judge Homer Thornberry and Judge Lewis R. Morgan. 

The Chief Judge also instructed this Court to inform all 

counsel of record, which this Court has done, that anyone 

objecting to or wishing to offer any evidence on this motion, 

which was subsequently amended by the Government on 

August 25, 1969, must do so by presenting in person or in 

some other suitable manner, their objections and affidavits 

together with memoranda to the above three judges on the 

panel at their home offices no later than the morning of 

Wednesday, August 27, 1969. 

The Amended Motion filed by the United States in the 

Court of Appeals and in this Court moves the United 

States Court of Appeals for an order amending its order 

or mandate of July 3, 1969 and subsequent amendments 

thereto, in accordance with the new proposed “New Amend- 

ed Order” attached to said amended motion. The substance 

of the Amended Motion and the proposed “New Amended 

Order” filed by the United States in these cases, all of  



  

  

60a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

which were consolidated in the United States Court of Ap- 

peals and are being treated as consolidated cases here, is 

that Paragraphs 3-7 should be deleted and the paragraphs 

contained in the suggested New Order, 3—7, be substituted 

therefor. For the sake of brevity and because of the time 

limitation, this Court will not recite in detail the Amended 

Motion and proposed “New Amended Order”, but in effect 

it provides that the school boards, in conjunction with the 

Office of Education, shall develop and present to the United 

States District Court for the Southern District of Missis- 

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

desegregation, and if the Office of Education and the school 

boards agree upon the plan it shall be presented to the 

District Court on or before that date and shall be approved, 

unless within fifteen days after submission to the Court, 

any party files an objection or proposed amendment there- 

to in accordance with the terms of said order. If no agree- 

ment is reached, the Office of Education shall present its 

plan for desegregation of the school districts to this Court 

on or before December 1, 1969, and the parties shall have 

15 days within which to object or file suggested amend- 

ments thereto. The proposed New Amended Order further 

provides that this Court shall hold a hearing on the pro- 

posed plan and any objections and suggested amendments 

thereto and promptly approve a plan which shall conform 

to constitutional standards, while at the same time, enter- 

ing findings of fact and conclusions of law regarding the 

efficacy of any approved plan. 

Paragraph 6 of the proposed New Amended Order, as 

modified by the Government through dictation into the 

record in this case, provides that by October 1, 1969 the 

Board of Trustees, in conjunction with the Office of Edu- 

cation shall develop a program to prepare its faculty and 

  

  

 



  

  

6la 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

staff for the conversion from dual to unitary school system 

and that the Office of Education shall report to this Court 

on October 1, 1969 with respect to this program. In the 

event that the Board fails to develop a program, the Office 

of Education shall submit a program which the Court may 

approve unless meritorious objection shall be made thereto. 

Paragraph 7, as modified and revised by counsel for the 

Government through dictation into the record during the 

hearing on the motion before this Court, provides “The 

Boards shall not let any new contracts for the construction 

of any new facilities nor materially alter any existing facili- 

ties until a terminal plan has been approved by the court, 

except with the prior agreement of all parties or by order 

of the court upon motion and hearing. The Boards shall 

present its proposals to the parties and seek their consent 

at least fifteen days prior to moving for court approval.” 

Attorneys for private plaintiffs filed in the Court of 

Appeals an “Opposition to Motion for Permission to With- 

draw Plans Filed by the Department of Health, Education 

and Welfare”. : 

Attorneys for private plaintiffs filed a motion dated 

August 21, 1969 in the United States Court of Appeals for 

the Fifth Circuit, but did not file a copy thereof with this 

Court, and therefore this Court does not know its filing 

date. Private plaintiffs appear alone as plaintiffs in Civil 

Actions numbered 1209, 1302 and 3779, which encompass six 

separate school districts, and prior to being allowed to 

intervene and being aligned as plaintiffs in several addi- 

tional cases during this hearing of yesterday, appeared as 

plaintiffs together with the United States in Civil Actions 

numbered 1096, 1300, 3382 and 3700, involving six separate 

school districts, and now also appear as plaintiffs as of 

yesterday in Civil Actions numbered 1160.  



  

62a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

It was agreed by all counsel in the hearing conducted by 

this Court that private plaintiffs’ opposition to withdrawal 

of the HEW plan apply to only those cases in which they 

appear as parties, but that the Government’s amended mo- 

tion applied to all of these cases in which the HEW had 

filed proposed plans pursuant to the order and mandate of 

the United States Court of Appeals. Motion was also 

granted allowing all of the defendant school boards in all 

of these cases before the Court to join in the Motion and 

Amended Motion filed by the United States and the pro- 

posed New Amended Order with the exception of Paragraph 

7 thereof, which relates to new construction and alteration 

of present structures. 

This Court conducted a full-day hearing on August 25, 

1969, receiving testimony on the Amended Motion filed by 

the United States, during which three witnesses testified, 

two for the United States in support of its motion, and one 

for the private plaintiffs in opposition to the motion. 

The Court finds that the testimony by Dr. Myron Leiber- 

man, the only witness to testify for the private plaintiffs 

in opposition to the Government’s motion, is not entitled to 

much weight, if any, due to the fact that he had never visited 

any of the school districts in question and was not familiar 

with the facilities, school bus routes, qualifications of the 

faculty, physical composition of the various classrooms, 

including laboratories in the various buildings, or any other 

of the vital aspects necessary to form an opinion or make a 

judgment in connection with the relief sought in the motion 

filed herein. On cross examination, this witness, who ap- 

peared to be more an integration expert than an education 

expert, interested more in the constitutional aspect rather 

than educational aspect of the plans under consideration, 

   



  

63a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

admitted on cross examination that he had no experience as 

a principal or assistant principal of any elementary or high 

school and had no administrative experience nor operating 

experience in any school as a superintendent thereof; had 

never drawn a curriculum or student assignment plan nor 

any transportation plan for any high school or elementary 

school; had never participated in the opening of an ele- 

mentary or high school; and that his only familiarity with 

the plans of the HEW concerning which he testified, was a 

two-hour perusal of these plans the night before this hear- 

ing, from 9:30 to 11:30 PM, and a short discussion with the 

attorneys for the private plaintiffs. In any event, the Court 

finds that his testimony is clearly and convincingly out- 

weighed by that of the two witnesses who testified in sup- 

port of the motion. 

Mr. Jessie J. Jordan, of Smyrna, Georgia, who has been 

with the Department of Health, Education and Welfare for 

approximately two years, serving as Senior Program Offi- 

cer for Title IV of the Civil Rights Act of 1964, received 

a Bachelor of Science degree in Education and Mathematics, 

and a Masters degree in School Administration. This wit- 

ness has been a classroom teacher for three years, has 

served as high school principal for three years, and was 

an administrative officer, director of transportation, direc- 

tor of maintenance and operation and assistant superin- 

tendent over a twelve-year period in the Cobb County, 

Georgia school system. This school district has 55 schools 

with approximately 40,000 to 50,000 students and involves 

the utilization of about 150 buses. Mr. Jordan testified that he 

has done desegregation work in a six-state area for HEW,  



  64a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

including Mississippi, South Carolina, Georgia, Florida, | 

Alabama and Tennessee, and has worked with school boards | 

within these various states, usually in response to requests 

by these boards or the superintendents of school districts 

for assistance in formulating and implementing desegrega- 

tion plans. He first became involved in this case on July 

15, 1969 when he attended a meeting in Mobile, Alabama, 

at which ten field teams were formed and sent to the de- 

fendant school districts on July 16, where they worked 

until July 23, gathering statistics which they took to At- 

lanta, having spent approximately one and one-half days 

in each district. A second trip was made by these teams 

on July 29 through August 1, 1969, during which they met 

with various school boards and their superintendents, ask- 

ing for suggestions. These meetings involved approxi- 

mately one-half day in each school district. Information 

was taken back to Atlanta, where plans were formalized | 

and between the dates of August 7 and August 9, these | 
| 

| 

  
HEW plans were presented to the various school boards 

and superintendents and then filed with this Court. Al- 

though the witness made no trips to Mississippi in connec- 

tion with the formalization of these plans, he did work 

with the review teams, asking their members various ques- 

tions concerning these plans and acted in an advisory 

capacity. The witness was of the opinion that a unitary 

school system was far superior to a dual school system 

because all people living in an integrated society and at- 

tending school together familiarizes each with the culture 

of the other and also helps disadvantaged students. It was | 

his opinion that the HEW plans in question are basically | 

sound, but that sufficient time was not had for the in depth 

peripheral studies such as curriculum study and financial    



  

  

  

65a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

study required to implement these new plans. The Court 

finds in accordance with his testimony that these plans call 

for massive and substantial changes involving changes in 

curriculum, building renovations, including the adjusting of 

laboratories and like facilities, and faculty and student 

preparation, including various meetings and discussions of 

the problems to be presented and the solutions therefor. 

The Court further agrees with the witness and finds that 

inadequate time remains between this period and the open- 

ing of school in the 1969-70 school year to accomplish a 

workable, smooth desegregation which is desired. This wit- 

ness requested further time of Dr. Anrig, his superior in 

the Office of Education, but this was denied in view of the 

fact that the Court Order had set the time limitation. The 

witness was of the further opinion, and the Court so finds, 

that bus routes must be redrawn, teachers reassigned in 

accordance with their capabilities and certifications, which 

were not considered by HEW, classrooms will have to be 

converted and that there must be some meaningful educa- 

tional program involving teachers and students, to prepare 

for the implementation of the terminal plans. This Court 

finds further in accordance with the testimony of this wit- 

ness that the necessary delay requested would allow col- 

laboration between the Office of Education and the defen- 

dant school districts to prepare for implementation of the 

terminal plans, thus resulting in better education and bet- 

ter community relations and consequently, an effective, 

workable desegregation of the defendant school districts 

and the conversion from a dual to a unitary system. 

The second and last witness who testified in support of 

the Government’s motion was Mr. Howard O. Sullins, of 

Charlottesville, Virginia, who received a B.A. degree from  



  

  

66a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

Emory Henry College, and an M.A. degree in Education 

from Columbia University, and has completed all of his 

work for a doctorate in Education at the University of 

Virginia, with the exception of completion of his disserta- 

tion, on which he is now working. This witness has been 

a classroom teacher for two years, has served as principal 

of various high schools for a period of thirteen years, and 

was a superintendent of schools in Stafford County, Vir- 

ginia for three years. In addition, he has been working 

with the United States Office of Education as Program 

Officer, Equal Educational Opportunities Program, Region 

Three, HEW, in Charlottesville, Virginia since June 15, 

1968. As Program Officer, his area of responsibility is Vir- 

ginia and West Virginia and involves furnishing technical 

assistance to school districts in the process of desegrega- 

tion. This witness worked on desegregation plans in New 

Kent County, Virginia, Prince George County, Maryland, 

and various other counties in the State of Virginia. His 

total experience in education is approximately twenty years. 

Mr. Sullins was the team leader for the team that visited, 

and had the responsibility of recommending desegregation 

in three of the defendant school districts, Hinds County, 

Madison County and Canton. He visited these districts 

during the above stated dates as team leader, talking to 

school boards and superintendents, as well as attorneys 

for the three defendant school districts. It was his opinion 

that the unitary school system is far superior to a dual 

school system; and that although adequate time was had 

to develop the basic plans in question, however, he strongly 

feels that there is insufficient time to implement these plans 

in order to have an effective school year in 1969-70 for the 

children affected, because these plans call for a massive 

   



  

67a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26,1969 

reorganization of school systems which takes months of 

planning to accomplish with required outside consultation, 

expert assistance, particularly to set up junior high school 

systems and restructuring of grades; some districts have 

no fixed boundary lines because of the freedom of choice 

system under which they have been operating and this 

would have to be publicized and the students and parents 

acquainted therewith; it would be necessary to revamp 

transportation systems, which takes a great deal of time; 

there must be adequate planning in “real troubled spots”, 

which would involve proper training and instruction of 

teachers and the placing of teachers in jobs where they 

will be most effective; all pupils will be uprooted and en- 

tered into new schools and they must have the opportunity 

to learn and know what they will face, which must be 

done through project programs, including the meeting of 

student leaders of both races with each other and with 

teachers; the school administration will need time to re- 

think and redo things to properly plan the expenditures 

of Title I funds well in advance, which funds may be lost 

without proper and adequate planning, and which HEW 

did not have time to consider; school boards and superin- 

tendents need a program also to build communities’ support 

for the unitary sysem. The witness was of the opinion 

and the Court finds, that in order to formulate and imple- 

ment successful and effective desegregation plans, the addi- 

tional time requested will be required. This witness sug- 

gested additional programs which should be undertaken 

to effect a smooth, workable conversion to a completely 

unitary school system, such as a workshop for teachers 

and pupils to discuss potential problems of desegregation 

and their solution, as was done in other districts in which  



  

  

68a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

this witness worked, including some in South Carolina. 

These committees of students and teachers must meet with 

experts to obtain more knowledge on how to solve prob- 

lems that will arise. The witness stated that all defendant 

school districts with which he dealt cooperated fully with 

his team but that his team was not authorized to negotiate 

any differences with the school boards. The first time that 

the defendant school districts saw the HEW plan in written 

form was on August 7, 1969, at which time there could be 

no more collaboration from HEW’s standpoint, that is, 

there could be no further change in the HEW plan which 

was filed subsequently in this Court in all these school dis- 

trict cases. 

Even if the motion of the Government for additional time 

had not been filed in this case with all due deference, it is 

extremely doubtful if this Court could have physically com- 

plied with the mandate of the United States Court of Ap- 

peals for the Fifth Circuit, because of the devastating 

effect of super Hurricane Camille, which this Court does 

not have to take judicial notice of, because it has personal 

and actual knowledge thereof. This deadly, gigantic “hur- 

ricane-tornado” struck not only the Mississippi Gulf Coast 

where the undersigned Judges reside, but also caused great 

damages to many other parts of the State of Mississippi, 

including many of the areas in which the defendant school 

districts are located. The storm not only resulted in many 

deaths, but in addition, caused considerable loss of and 

damage to property, disruption of communications, the 

complete elimination of electrical power, water and tele- 

phones to homes and offices of the undersigned Judges 

and many others, causing utter lack of communication and 

inability to travel. Not only were the undersigned Judges 

   



69a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

deprived of electrical power and facilities with which and 

in which to work, but their staffs were scattered and with- 

out communication for many days and sustained consider- 

able personal damage which required their immediate at- 

tention and care. Much more could be said about the 

devastation and complete destruction caused by this killer 

hurricane, however, it is felt that the members of the United 

States Court of Appeals for the Fifth Circuit, and espe- 

cially the members of this panel, are completely aware of 

many of these factors and are sympathetic with and under- 

stand the inability of the undersigned Judges to consider 

and study the various plans in question, together with all 

other pleadings filed by the parties, to assemble a staff 

and equipment necessary to dictate their findings and or- 

ders, while at the same time being deeply concerned with 

the necessary safety and welfare of their families and the 

preservation of their property. In addition, many schools 

were destroyed or severely damaged in the coastal area, 

which will require the transportation or reassignment of 

students therefrom to other school districts, some of which 

are defendants herein, and various schools within the de- 

fendant school districts have sustained damage which will 

require transfer of students and rescheduling of classes, 

which will result in overcrowding and considerable con- 

fusion and chaos. 

In view of all of the above, this Court finds and con- 

cludes that it has jurisdiction to consider this motion and 

make findings of fact thereon and suggestions and recom- 

mendations to the appropriate panel of the United States 

Court of Appeals for the Fifth Circuit in these cases. This 

Court is further of the opinion and finds, as a matter of 

fact and of law, that the motion filed by the Government,  



  

  

70a 

Findings of Fact and Conclusions of Law of the 

District Court Entered August 26, 1969 

joined in by the defendant school districts, is meritorious 

and should be granted for the foregoing reasons and for 

the further reasons that the granting of the requests made 

by the Government will, in truth and in fact, probably 

result in a smooth, workable conversion of the defendant 

school districts from a dual to a unitary system, with the 

elimination of the many problems of chaos and confusion 

referred to by the Secretary of HEW in his letter. 

It is therefore the recommendation of this Court that the 

appropriate panel of the Court of Appeals grant the 

amended motion filed by the Government in all of these 

cases, and then adopt and enter the proposed “New Amend- 

ed Order” as revised in this hearing, which was filed by 

the United States and attached to its Amended Motion filed 

here and in the Court of Appeals. 

RespeEcTFULLY SUBMITTED, this 26th day of August, 19609. 

Dax M. RusseLL, JR. 

United States District Judge 

Wavter L. Nixon, Jr. 

United States District Judge 

   



71a 

APPENDIX E 

Order of the Court of Appeals of August 28, 1969 

[Caption omitted] 

Before Brown, Chief Judge, THORNBERRY and MORGAN, 

Circust Judges. 

Per Curiam: 

The United States Attorney General by motion filed with 

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

in the District Court for the Southern District of Missis- 

sippi as of the same date, requests, in effect, that this Court 

modify the mandate and orders heretofore entered, and, on 

the permission of this Court being granted, that the Dis- 

trict Court do likewise, to extend the time for filing the 

terminal plans required in our order of July 3, 1969, to a 

date not later than December 1, 1969. 

Because of the relative shortness of time and in order to 

permit the appeals to be heard, decided and effective action 

to be taken by the opening of the school term September 

1969-70, this Court expedited the initial appeal from the 

decision of the District Court entered in May 1969. By 

letter-directive from the Clerk, dated June 25, 1969, we set 

the case for oral argument at 9:30 a.m. July 2 at New 

Orleans. 

Paragraph 7 of that letter-directive read as follows: 

7. To enable the Court to announce a decision as 

quickly as possible after submission, the appellants are 

requested to file in 15 copies a proposed opinion-order 

with definitive time table and provisions on the hypo- 

thesis that the appeal will be sustained. These should 

be modeled somewhat on the form used by the Court  



  

  

72a 

Order of the Court of Appeals of August 28, 1969 

in its recent opinions in Hall, et al. v. St. Helena Parish 

School Board, et al., No. 26450, May 28, 1969, and Daws, 

et al. v. Board of School Commissioners of Mobile 

County, et al., No. 26886, June 3, 1969. When and as 

additional opinion-orders of this type are issued in 

other school desegregation cases, copies will be imme- 

diately transmitted to all counsel so that the parties can 

make appropriate comments during argument with re- 

spect to suggested modifications or changes in their 

proposed opinion-orders. 

The Court hopes that the appellants, private and 

government, can collaborate and submit a mutually 

agreeable proposed opinion-order and it desires from 

the appellees contrary proposed orders covering sep- 

arately (a) on the hypothesis that the decrees of the 

District Court will be affirmed, and (b) on the hypo- 

thesis that the appellants’ motion and appeals will be 

sustained for reversal. 

In response to this request of the Court several proposed 

decrees were supplied by one or more of the parties, in- 

cluding a detailed proposed opinion-order submitted by the 

United States Attorney General on the eve of the hearing. 

As pointed out later, this proposed opinion-order prescribed 

a precise timetable. 

On the argument the Court heard from some 18 counsel 

over a period of the entire day. On the following day, July 

3, 1969, the Court handed down its opinion-order, which in 

its opening paragraph stated: 

“As questions of time present such urgency as we ap- 

proach the beginning of the new school year Septem- 

ber 1969-70, the Court requested in advance of argu- 

ment that the parties submit proposed opinion-orders 

modeled after some of our recent school desegregation 

   



  

73a 

Order of the Court of Appeals of August 28, 1969 

cases. We have drawn freely upon these proposed 

opinion-orders.” 

Both the “opinion” portion and, more specifically, the 

“order” portion of the opinion-order of July 3rd (see slip 

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

the United States Attorney General in response to the 

Court’s invitation (see paragraph 7 of letter-directive 

above). Except that the Court allowed aproximately 10 ad- 

ditional days, the timetable schedule fixed by the Court was 

substantially that recommended by the United States At- 

torney General: 

Paragraph 
of Order 

3 

Requirement 

Deadline for 

Boards to 

file plan 

Deadline for 

presenting 

agreed plans 

to Court 

Deadline for 

HEW filing 

plan 

Deadline for 

Court hear- 

ings 

Deadline for 

Court ap- 

proval of 

plans 

Government 
Proposed 

Date 

Aug. 

Aug. 

1 

. 13 

. 19 

Date 

Fixed 
By Court 

Aug. 11 

Aug. 11 

Aug.. 11 

Aug. 23 

Aug. 27  



  

  

74a 

Order of the Court of Appeals of August 28, 1969 

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

motion modified its July 3rd opinion-order by renumbering 

former paragraph 8 to be number 7 and striking from such 

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

paragraphs 5 and 6 with the following resulting timetable: 

Revised 
New Date fixed 

Paragraph Requirement By Court 

5 Deadline for Aug. 11 

HEW filing plan 

5 Deadline for Aug. 21 

filing objections 

to HEW plan 

5 Deadline for Sept. 1 

Court order 

approving plan 

Thus it is shown that the timetable adopted was substan- 

tially that recommended by the United States Attorney 

General to be feasible and appropriate. 

From the numerous other cases referred to in the letter- 

directive, the Court was conscious that precise timetables 

were in order. Consequently, in the course of the arguments 

heard on July 3, 1969, the Court addressed specific ques- 

tions to all counsel in the case concerning the proposed 

timetables. Questions were specifically directed to the 

Assistant Attorney General appearing on behalf of the 

Government. Without qualification in response to precise 

inquiries he affirmed the Government’s view that the time- 

table proposed by the Government was reasonable. And, 

with emphasis on the Attorney General’s proposed order 

that HEW should be called in to advise with the Boards 

and the District Court, he affirmed that sufficient resources 

   



  

75a 

Order of the Court of Appeals of August 28, 1969 

of the Executive Department would be made available to 

enable the Office of Education of the United States Depart- 

ment of Health, Education and Welfare to fulfill its role 

as specified in the order proposed by it and actually there- 

after entered by the Court. 
Except for the entry of the modification order on July 25 

which moved the deadline for the effective date of the 

plans from August 27 to September 1, 1969, no further 

action has been taken by this Court. Likewise, until the 

motion of August 21, 1969, there has been no suggestion by 

the United States Attorney General that the times fixed 

by the Court should be relaxed or extended or that such 

timetable was unattainable. 

The first information that the proposed and adopted 

timetable was not appropriate came on August 19, 1969 

when Judge John R. Brown, Chief Judge and presiding 

Judge of this panel, received by safehand courier the com- 

munication from the Secretary of Health, Education and 

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

copy of the Secretary’s communication of like date to 

Judges Cox, Russell and Nixon. These matters are set 

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

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

As time was so short, this Court by oral order communi- 

cated to the District Court granted full leave to the Dis- 

trict Court to receive, consider and hear the Government’s 

motion for extension of time to December 1, 1969. Upon 

the hearings to be held after notice to counsel represent- 

ing all parties not later than Monday, August 25, it fur- 

ther requested the District Court to make its recommenda- 

tions to the Court of Appeals. The District Court is to 

communicate its recommended decision and transmit a copy 

of the transcript of any evidence to each of the Judges at  



  

  

76a 

Order of the Court of Appeals of August 28, 1969 

his home station. This Court further prescribed that in 

view of the shortness of time, all counsel were required to 

forward directly to their home stations any memorandum 

briefs in support of or opposition to the motion and recom- 

mended decision of the District Court so that it would be 

in the Judge’s hands not later than 11:00 a.m. Wednesday, 

August 27. 

Following this the Court has received and considered the 

findings of fact, conclusions of law and recommendations 

of the District Court, the record of the hearings, and the 

briefs and arguments of counsel, pro and con. On the basis 

of the matter set forth herein, the Court amends its order 

further as follows: 

First: 

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

by order entered July 25, 1969 is hereby further amended 

by renumbering Paragraph 7 to be Paragraph 9 and by 

deleting Paragraphs 3, 4, 5, and 6, and the following para- 

graphs are substituted therefor: 

3. The Board, in conjunction with the Office of Kduca- 

tion, shall develop and present to the District Court on or 

before December 1, 1969, an acceptable plan of desegrega- 

tion. 

4. If the Office of Education and a school board agree 

upon a plan of desegregation, it shall be presented to the 

District Court on or before December 1, 1969. The Court 

shall approve such plan, unless within 15 days after sub- 

mission to the Court any parties file any objections or pro- 

posed amendments thereto alleging that the plan, or any 

part thereof, does not conform to constitutional standards. 

   



Ta 

Order of the Court of Appeals of August 28, 1969 

5. If no agreement is reached, the Office of Education 

shall present its proposal for a plan for the school district 

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

parties shall have 15 days from the date such a proposed 

plan is filed with the District Court to file objections or 

suggested amendments thereto. The District Court shall 

hold a hearing on the proposed plan and any objections 

and suggested amendments thereto, and within 15 days 

after the time for filing objections has expired shall by 

order approve a plan which shall conform to constitutional 

standards. 

6. The District Court shall enter Findings of Fact and 

Conclusions of Law regarding the efficacy of any plan which 

is approved or ordered to disestablish the dual school sys- 

tem in question. Jurisdiction shall be retained, however, 

under the teaching of Green v. County School Board of 

New Kent County, 1968, 391 U.S. 430, 439, 88 S.Ct. 1689, 

——, 20 L.Ed.2d 716, 724, and Raney v. Board of Educa- 

tion of Gould School District, 1968, 391 U.S. 443, 449, 88 

S.Ct. 1967, , 20 L.Ed.2d 727, 732, until it is clear that 

disestablishment has been achieved. 

  

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

tion with the Office of Education shall develop a program 

to prepare its faculty and staff for the conversion from the 

dual to the unitary system. The Office of Education shall 

report to the Court on October 1, 1969 with respect to this 

program. If the Board fails to develop a program, the 

Office of Education shall submit a program which the Court 

may approve unless meritorious objections supported by 

affidavit or other documentary evidence are made by any 

party.  



  

  

78a 

Order of the Court of Appeals of August 28, 1969 

8. The Board shall not let any new contracts for the con- 

struction of any new facilities nor materially alter any ex- 

isting facilities until a terminal plan has been approved by 

the Court, except with the prior agreement of all parties 

or by order of the Court upon motion and hearing. The 

Board shall present its proposals to the parties and seek 

their consent at least 15 days prior to moving for Court 

approval. 

SECOND: 

It is a condition of this extension of time that the plan 

as submitted and the plan as finally approved shall require 

significant action toward disestablishment of the dual school 

systems during the school year September 1969-June 1970. 

THIRD: 

In all other respects the order of this Court of July 3, 

1969, as amended July 25, 1969, remains in full force and 

effect. 

   



79a 

APPENDIX F 

Opinion in Chambers of Mr. Justice Black 

of September 5, 1969 

[Caption omitted] 

Mz. Justice Brack, Circuit Justice. 

For a great many years Mississippi has had in effect 

what is called a dual system of public schools, one system 

for white students only and one system for Negro stu- 

dents only. On July 3, 1969, the Fifth Circuit Court of 

Appeals entered an order requiring the submission of new 

plans to be put into effect this fall to accelerate desegre- 

gation in 33 Mississippi school districts. On August 28, 

upon the motion of the Department of Justice and the 

recommendation of the Secretary of Health, Education & 

Welfare, the Court of Appeals suspended the July 3 order 

and postponed the date for submission of the new plans 

until December 1, 1969. I have been asked by Negro plain- 

tiffs in 14 of these school districts to vacate the suspension 

of the July order. Largely for the reasons set forth below, 
I feel constrained to deny that relief. 

In Brown v. Board of Education, 347 U. S. 483 (1954), 

and Brown v. Board of Education, 349 U. S. 294 (1955), 

we held that state-imposed segregation of students accord- 

ing to race denied Negro students the equal protection of 

the law guaranteed by the Fourteenth Amendment. Brown 

I was decided 15 years ago, but in Mississippi as well as 

in some other States the decision has not been completely 

enforced, and there are many schools in those States which 

are still either “white” or “Negro” schools and many that 

are still all-white or all-Negro. This has resulted in large 

part from the fact that in Brown II the Court declared this  



  

  

  

80a 

Opwmion wm Chambers of Mr. Justice Black 

of September 5, 1969 

unconstitutional denial of equal protection should be rem- 

edied not immediately, but only “with all deliberate speed.” 

Federal courts have ever since struggled with the phrase 

“all deliberate speed.” Unfortunately this struggle has not 

eliminated dual school systems, and I am of the opinion 

that so long as that phrase is a relevant factor they will 

never be eliminated. “All deliberate speed” has turned out 

to be only a soft euphemism for delay. 

In 1964 we had before us the case of Griffin v. School 

Board, 377 U. S. 218, and we said the following: 

“The time for mere ‘deliberate speed’ has run out and 

that phrase can no longer justify denying these Prince 

Edward County School children their constitutional 

right to an education equal to that afforded by the 

public schools in the other parts of Virginia.” Id., at 

234. 

That sentence means to me that there is no longer any 

excuse for permitting the “all deliberate speed” phrase to 

delay the time when Negro children and white children will 

sit together and learn together in the same public schools. 

Four years later—14 years after Brown I—this Court de- 

cided the case of Green v. County School Board of New 

Kent County, 391 U. S. 430 (1968). In that case Mgr. Jus- 

TICE BRENNAN, speaking for a unanimous Court said: 

“ ‘The time for mere “deliberate speed” has run out. 

..> The burden on a school today is to come forward. 

with a plan that promises realistically to work, and 

promises realistically to work now.” Id., at 438-439. 

“The Board must be required to formulate a new plan 

.. which promise[s] realistically to convert promptly 

   



8la 

Opinion wn Chambers of Mr. Justice Black 

of September 5, 1969 

to a system without a ‘white’ school and a ‘Negro’ 

school, but just schools.” Id., at 442. 

These cases, along with others, are the foundation of my 

belief that there is no longer the slightest excuse, reason, 

or justification for further postponement of the time when 

every public school system in the United States will be a 

unitary one, receiving and teaching students without dis- 

crimination on the basis of their race or color. In my opin- 

ion the phrase “with all deliberate speed” should no longer 

have any relevancy whatsoever in enforcing the constitu- 

tional rights of Negro students. The Fifth Circuit found 

that the Negro students in these school districts are being 

denied equal protection of the law, and in my view they 

are entitled to have their constitutional rights vindicated 

now without postponement for any reason. 

Although the foregoing indicates my belief as to what 

should ultimately be done in this case, when an individual 

Justice is asked to grant relief, such as a stay, he must 

consider in light of past decisions and other factors what 

action the entire Court might possibly take. 1 recognize 

that, in certain respects, my views as stated above go be- 

yond anything this Court has expressly held to date. Al- 

though Green reiterated that the time for all deliberate 

speed had passed, there is language in that opinion which 

might be interpreted as approving a “transition period” 

during which federal courts would continue to supervise 

the passage of the Southern schools from dual to unitary 

systems.* Although I feel there is a strong possibility that 

* “The obligation of the district courts, as it always has been, is 
to assess the effectiveness of a proposed plan in achieving desegre- 
gation. There is no universal answer to complex problems of de-  



  

  

  

82a 

Opwmion nw Chambers of Mr. Justice Black 

of September 5, 1969 

the full Court would agree with my views, I cannot say 

definitely that they would, and therefore I am compelled 

to consider the factors relied upon in the courts below for 

postponing the effective date of the original desegregation 

order. 

On August 21 the Department of Justice requested the 

Court of Appeals to delay its original desegregation time- 

table, and the case was sent to the district court for hearings 

on the Government’s motion. At those hearings both the 

Department of Justice and the Department of Health, Edu- 

cation & Welfare took the position that time was too short 

and the administrative problems too difficult to accomplish 

a complete and orderly implementation of the desegrega- 

tion plans before the beginning of the 1969-1970 school 

year. The district court found as a matter of fact that 

the time was too short, and the Court of Appeals found 

that these findings were supported by the evidence. I am 

unable to say that these findings are not supported. There- 

fore, deplorable as it is to me, I must uphold the court’s 

order which both sides indicate could have the effect of 

  

segregation ; there is obviously no one plan that will do the job 
in every case. The matter must be assessed in light of the eircum- 
stances present and the options available in each instance. It is 
incumbent upon the school board to establish that its proposed 
plan promises meaningful and immediate progress toward dis- 
establishing state-imposed segregation. Green v. County School 
Board, supra, at 439. 

“Where [freedom-of-choice] offers real promise of aiding a de- 
segregation program to effectuate conversion of a state-imposed 
dual system to a unitary, non-racial system there might be no ob- 
jection to allowing such a device to prove itself in operation. . 

“The New Kent School Board's ‘freedom-of-choice’ plan cannot 
be accepted as a sufficient step to ‘effectuate the transition’ to a 
unitary system. . ..” Id., at 440-441. 

   



  

83a 

Opwmion wn Chambers of Mr. Justice Black 

of September 5, 1969 

delaying total desegregation of these schools for as long 

as a year. 

This conclusion does not comport with my ideas of what 

ought to be done in this case when it comes before the 

entire Court. I hope these applicants will present the issue 

to the full Court at the earliest possible opportunity. I 

would then hold that there are no longer any justiciable 

issues in the question of making effective not only promptly 

but at once—now—orders sufficient to vindicate the rights 

of any pupil in the United States who is effectively excluded 

from a public school on account of his race or color. 

It has been 15 years since we declared in the two Brown 

cases that a law which prevents a child from going to a 

public school because of his color violates the Equal Pro- 

tection Clause. As this record conclusively shows, there are 

many places still in this country where the schools are either 

“white” or “Negro” and not just schools for all children 

as the Constitution requires. In my opinion there is no 

reason why such a wholesale deprivation of constitutional 

rights should be tolerated another minute. I fear that this 

long denial of constitutional rights is due in large part 

to the phrase “with all deliberate speed.” I would do away 

with that phrase completely. 

Application to vacate suspension of order denied. 

 



MEILEN