Bell v. New Jersey Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae in Support of Petitioners

    IN  TH E

Supreme Court of tlje Umteb States

O c t o b e r  T e r m , 1970

n o ....". ....

St a t e  o f  A la b a m a , e t  a l .,
Appellant,

v.

U n it e d  St a t e s  o f  A m e r ic a , e t  a l .,
Appellees.

JURISDICTIO N AL STATEM ENT

J o se p h  D . Ph e l p s  
Special Assistant Attorney General 
3 6 South Perry Street 
Montgomery, Alabama 36104 
Attorney for the State of Alabama, 
et al.

H il l , R o biso n , B e l s e r  a n d  Ph e l p s  
3 6 South Perry Street 
Montgomery, Alabama 36104 
of Council



IN  TH E

Supreme Court of ttje Mmteb States:

O c t o b e r  T e r m , 1970

NO.

St a t e  o f  A la b a m a , e t  a l .,
Appellant,

v .

U n it e d  Sta tes  o f  A m e r ic a , e t  a l .,
Appellees.

JURISDICTIO N AL STATEM ENT

J o se p h  D. Ph e l p s  
Special Assistant Attorney General 
36 South Perry Street 
Montgomery, Alabama 36104 
Attorney for the State of Alabama, 
et al.

H il l , R o biso n , B e l s e r  an d  Ph e l p s  
3 6 South Perry Street 
Montgomery, Alabama 36104 
of Council



IN D EX

Statement as to Jurisdiction ...........................................................  1

Opinions Below ................................................................................  2

The Act in Question ...................................................................... 3

Jurisdiction .......................................................................................  4

Questions Presented ........................................................................  5

Statement of the Case ...................................................................... 6

The Questions Presented are Substantial ...................................... 7

Conclusion .......................................................................................  12

Appendix:

A. Order and Opinion of Court Below ...............................  14

B. March 16, 1970 Order and Opinion of District
Court in Davis v. Board of School Commis­
sioners of Mobile County ................................................  22

C. List of Court Orders Pursuant to Which Ala­
bama Schools are Operating ..............................................  24

1



TABLE OF CASES

Aetna Life Insurance Co. v. Haworth, 300 U. S. 227,
57 S. Ct. 461, 81 L. Ed. 617 .....................................................

Alexander v. Holmes County Board of Education,
396 U. S. 19, 90 S. Ct. 29, 24 L. Ed. 2d 19 8,

Carr v. Montgomery County Board of Education,
Civil Action No. 2072-N, U. S. D. C. Middle 
District of Alabama, February 25, 1970 .................................

Davis v. Board of School Commissioners of Mobile
County, ............  F. Supp................, Civil Action
No. 3003-63 U. S. D. C., Southern District of 
Alabama, March 16, 1970 ..........................................  2, 4, 6,

Deal v. Cincinnati Board of Education, 419 F. 2d 1387,
(6th Cir. 1969) ..........................................................................

Green v. County School Board of New Kent County,
391 U. S. 430, 88 S. Ct. 1689, 20 L. Ed 2d 716 8,

Northcross v. Board of Education of the City of 
Memphis, 397 U. S. 232, 90 S. Ct. 891, 25 L. Ed 
2d 246 ...........................................................................................

Public Service Commission of Utah v. Wycoff Co.,
344 U. S. 237, 73 S. Ct. 236, 97 L. Ed. 291

Public Utilities Com. v. United States, 3 55 U. S. 534,
78 S. Ct. 446, 2 L. Ed 2d. 470 ..................................................

Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 312 F. Supp. 503 (D. C. N. C. 1970) ...........................

12

10

11

11

10

, 10

7

12

12

10

11



IN TH E

Su prem e Court of tfjc Unite!) S ta te s!

O c to be r  T e r m , 1970

St a te  o f  A la b a m a , M a cD o n a ld  G a l l io n  
As Attorney General, State of Alabama,

Appellant,
v.

U n it e d  St a t e s  o f  A m er ic a , C h a r le s  
S. W h it e -Sp u n n e r , as United States 
District Attorney, O l l ie  M ae  D avis 
as Mother and next friend of B e t t y  
A n n  D avis, and J a m es  A l l e n  D avis,
J erris L eo n a rd , as Chief of Civil 
Rights Division, Department of Justice, 
and R o be r t  H . F in c h , as Secretary of 
Health, Education and Welfare, and 
B irdie M ae D avis,

Appellees.

JU RISD ICTIO N AL STATEM ENT

STATEM ENT AS TO JU RISD ICTIO N

 ̂ The appellants, pursuant to United States Supreme 
Court Rules 13(2) and 15, file this their statement 
of the basis upon which it is contended that the Su­
preme Court of the United States has jurisdiction on a 
direct appeal to review the final decree and order in 
question, and upon which it is contended that the Su­
preme Court should exercise such jurisdiction in this 
case.



2

OPINIONS BELOW

On June 26, 1970, the United States District Court 
for the Southern District of Alabama issued an opinion 
declaring the provisions of Section 2, Act No. 1, Special 
Session of the 1970 Alabama Legislature, to be uncon­
stitutional. The district court also entered an order dis­
missing the complaint of the State of Alabama, which 
sought to determine the application and constitutional 
validity of the Act. The order and opinion of the 
district court appear as "Appendix A ” , Appendices to 
the Jurisdictional Statement. The Act in question, the 
text of which is set forth in full on pages 3 and 4 of 
the Jurisdictional Statement, deals with the operation 
and desegregation of the public schools throughout the 
State of Alabama. Section 2 of the Act is specifically 
directed to racial balance in public schools.

On March 10, 1970, in a sequel to the instant case, 
the plaintiffs in the case of Birdie Mae Davis, et al. v. 
Board of School Commissioners of Mobile County, 
Civil Action No. 3003-63, United States District 
Court, Southern District of Alabama, attacked the 
constitutional validity of the same legislative act as 
here in question.1 The United States District Court 
for the Southern District of Alabama, on March 16, 
1970, dismissed the petition whereby the Act was 
questioned and held that the case of Birdie Mae Davis 
v. Board of School Commissioners of Mobile County, 
supra, was "not the proper vehicle in which to test the 
constitutionality of said act.”  This March 16, 1970, 
opinion and order of the District Court appears as

1. A supplemental complaint was filed in Civil Action No. 
3003-63, United States District Court, Southern District of Ala­
bama, whereby the plantiffs there allege the act to be "patently 
unconstitutional”  and sought declaratory and injunctive relief.



3

"Appendix B,”  Appendices to the Jurisdictional State 
ment.

TH E A CT IN  QUESTION

Act No. 1, Special Session of the Alabama Legisla 
ture 1970, approved March 4, 1970, provides as fol 
lows:

"Enrolled, AN ACT, TO PREVENT DISCRIMINA­
TION ON ACCOUNT OF RACE, COLOR, CREED 
OR NATIONAL ORIGIN IN CONNECTION WITH 
THE EDUCATION OF THE CHILDREN OF THE 
STATE OF ALABAMA. BE IT ENACTED BY THE 
LEGISLATURE OF ALABAMA: Section 1. No person 
shall be refused admission into or be excluded from any 
public school in the State of Alabama on account of race, 
creed, color or national origin. Section 2. No student 
shall be assigned or compelled to attend any school on 
account of race, creed, color or national origin, or for 
the purpose of achieving equality in attendance or in­
creased attendance or reduced attendance, at any school, 
of persons of one or more particular races, creeds, 
colors or national origins; and no school district, school 
zone or attendance unit, by whatever name known, shall 
be established, re-organized or maintained for any such 
purpose, provided that nothing contained in this section 
shall prevent the assignment of a pupil in the manner 
requested or authorized by his parents or guardian, and 
further provided that nothing in this section shall be 
deemed to affect, in any way, the right of a religious 
or denominational educational institution to select its 
pupils exclusively or primarily from members of such 
religion or denomination or from giving preference to 
such selection to such members or to make such selection 
to its pupils as is calculated to promote the religious 
principle for which it is established. Section 3. The pro­
visions of this Act are severable. If any part of the Act 
is declared invalid or unconstitutional, such declaration 
shall not affect the part which remains. Section 4. All 
laws and parts of laws in conflict herewith are hereby 
repealed. Section 5. This Act shall become effective 
upon its passage and approval by the Governor, or upon 
its otherwise becoming a law.”



4

JURISDICTIO N

This action was initiated by the filing of a complaint 
for a declaratory judgment as provided in 28 U. S. C. 
A. Sections 2201 and 2202, seeking declaratory and 
injunctive relief. The defendants below are either 
plaintiffs in the suit of Birdie Mae Davis, et al. v. 
Board of School Commissioners of Mobile County, 
Alabama, which suit was pending in the District Court 
below as Case No. 3003-63, or are officers or attor­
neys of the United States of America who were parti­
cipating in that litigation. The action below sought to 
establish the constitutionality of Alabama Act No. 1, 
supra, and to enjoin the defendants from taking official 
action contrary thereto.

The jurisdiction of the District Court to entertain 
the cause was predicated on 28 U. S. C. A. Sections 
1361 and 1442.

A district court of three judges was convened by 
order of the Chief Judge of the United States Court 
of Appeals for the Fifth Circuit at the request of the 
District Judge before whom the action was originally 
filed.

On June 26, 1970, the three judge court held Sec­
tion 2 of Alabama Act No. 1, supra, to be unconstitu­
tional and that a three judge court was not required 
under 28 U. S. C. A. Section 2281. The case was then 
remanded for action by a single district judge with the 
express provision that the judgment of the district 
judge ^uo^dd become final when joined through con­
currence or dissent by the other members of the panel.

On the same day, June 26, 1970, the single district 
judge did dismiss the complaint and the other mem­
bers of the panel did concur at that time.



5

The finality of the decree below therefore directly 
stems from the order and concurrence of the three 
judge court.

Appellants filed their notice of appeal to the Su­
preme Court of the United States on July 23, 1970, 
with the United States District Court for the Southern 
District of Alabama.2

Appellants believe that 28 U. S. C. A. Section 1253, 
confers jurisdiction of this appeal to this Court. The 
District Court’s order of June 26, 1970, was made 
final by the concurrence of the three judge court and 
had the effect of declaring the State statute involved 
to be unconstitutional.

QUESTIONS PRESENTED
1. Whether the district court erred in holding that 

Section 2 of Act No. 1, Special Session of the Alabama 
Legislature 1970, is unconstitutional as being in con­
flict with an order of a federal court, acting under the 
Fourteenth Amendment?

2. Whether a state legislative act, operative in a 
state wherein unitary school systems have been 
achieved, may constitutionally provide that no student 
shall be assigned or compelled to attend any school on 
account of race or color for the purpose of achieving a 
racial balance?

2. In accord with the suggestion of the three judge court, ap­
pellants on July 23, 1970, filed a simultaneous appeal to the 
United States Court of Appeals for the Fifth Circuit, the per­
fecting of which has been stayed, on motion of the appellants, 
pending a determination and disposition of the appeal in this 
Court.



6

STATEM EN T OF TH E CASE

The statute which forms the basis of these proceed­
ings was enacted during March of 1970 by the Legis­
lature of the State of Alabama and became effective 
on March 4, 1970. This act is directly concerned with 
the desegregation of Alabama public schools and speci­
fically states that the purpose of the legislation is to 
"prevent discrimination on account of race, color, 
creed or national origin in connection with the educa­
tion of the children of the State of Alabama.”

Shortly after passage, the constitutionality of the 
act was challenged in United States District Court for 
the Southern District of Alabama in the case of Davis 
v. School Commissioners of Mobile County, Alabama. 
The district court at that time held that Davis, supra, 
was not the proper vehicle to test the constitutionality 
of the Act. (See "Appendix B,”  Appendices to the 
Jurisdictional Statement).

The complaint in the instant case which was filed 
on March 26, 1970, by the Attorney General of the 
State of Alabama, alleged that Act No. 1, supra, is 
constitutional. The complaint further alleged that the 
defendants below claim the Act to be unconstitutional 
and that the defendant, United States Officials, were 
in fact acting in direct conflict with this provision by 
submitting plans for the desegregation of the public 
schools in Alabama which go far beyond the require­
ments of the United States Constitution.

It is important to note that at the time of the passage 
of the above legislation by the Legislature of the State 
of Alabama, every school in the State of Alabama was 
under a court order expressly and specifically directing 
the establishment of unitary school systems. These



7

cases, which involve each of the State’s 119 school 
districts, are listed in "Appendix C ” Appendices to 
the Jurisdictional Statement.

The Court below recognized that Section 2 of the 
Act presented the only constitutional question. The 
District Court held this Section to be unconstitutional 
as "purporting to make school administrators neutral 
on the question of desegregation”  and limiting "their 
tools for the accomplishment of this constitutional 
obligation to 'freedom of choice’ plans.”

TH E QUESTIONS PRESENTED ARE 
SUBSTANTIAL

The Supreme Court of the United States on March 
9, 1970, in the case of Northcross v. Board of Educa­
tion of the City of Memphis, 397 U. S. 232, 90 S. Ct. 
891, 25 L.Ed. 2d 246, (concurring opinion by the 
Chief Justice) held the following to be basic practical 
problems which should be resolved as soon as possible:

. . whether, as a constitutional matter, any particular 
racial balance must be achieved in the schools; to what 
extent school districts and zones may or must be altered 
as a constitutional matter; to what extent transporta­
tion may or must be provided to achieve the ends sought 
by prior holdings of the court.”

The Alabama Act now before this Court squarely 
presents the questions as to whether racial balance may 
or must be constitutionally required in public educa­
tion as well as the constitutionality and permissibility 
of creating or altering attendance zones for such pur­
poses. The provisions of Act No. 1, supra, which were 
held unconstitutional by the District Court, reflect 
the understanding of the State of Alabama as to what 
the Constitution of the United States and the prior 
orders of this Court properly require. This under­



standing is not without studied analysis and sound 
foundation. Alexander v. Holmes County Board of 
Education, 396 U. S. 19, 90 S. Ct. 29, 24 L.Ed. 2d 19; 
Green v. County School Board of New Kent County, 
391 U. S. 430, 20 L.Ed. 2d 716, 88 S. Ct. 1689.

Section 2 of the Alabama Act provides first that no 
student shall be assigned or compelled to attend any 
school on account of race or color for the purpose of 
achieving a racial balance. We earnestly submit that 
this provision is but the logical, inescapable and con­
stitutional converse of holding that a child shall not 
be excluded from any school because of race or color. 
Alexander v. Holmes County Board of Education, 
supra.

The Supreme Court of the United States has writ­
ten that unitary school systems must be achieved 
throughout the nation. Each and every school district 
in the State of Alabama, as previously noted, is under 
an express and direct judicial mandate to accomplish 
unitary systems. When public school desegregation 
reaches this point, this Court has never held that racial 
balance or racial ratios in student attendance must be 
maintained through the compulsory assignment of 
students.

The concept of de jure segregation is not now appli­
cable to this State. No possible constitutional justifica­
tion can now be offered for requiring racial balance in 
Alabama as distinguished from states such as Illinois, 
Pennsylvania, Missouri or Michigan, wherein over 
45%  of the Negro school students attend virtually "all 
Negro schools, (95%  to 100% N egro).”  3

3. Report of the Department of Health, Education and Wel­
fare, January 4, 1970, Table 1-A thereof.



9

No possible constitutional justification can now be 
offered for treating school systems in Alabama dif­
ferently or for treating them more stringently than 
systems in such cities as Chicago, Illinois, where 85.4 
of the Negro students attend virtually all Negro 
schools; or in Buffalo, New York, where 61.1 of the 
Negro students attend virtually all Negro schools; or 
in St. Louis, Missouri, where 86.2 of the Negro students 
are attending virtually all Negro schools. These are 
but examples of the prevailing conditions which exist 
throughout the ''nonsouthern states.”  4

Racial balance through the compulsory assignment 
of students has not been constitutionally required in 
the above states, nor has such been required in many 
similar school districts throughout the United States 
as reflected in the Health, Education and Welfare re­
port noted above.

The first sentence of Section 2 of the Alabama Act 
to the effect that forced assignment of students is not 
to be utilized to achieve racial balance is consistent, 
therefore, with the manner in which the Constitution 
of the United States is being applied to other states.

The provisions contained in Section 2 of the Ala­
bama Act which hold that school districts, school 
zones, or attendance areas shall not be "established, re­
organized or maintained” for the purpose of maintain-

4. Report of the Department of Health, Education and Wel­
fare, January 4, 1970— Table 1-A thereof. This report addition­
ally shows that many school systems located outside the Southern 
States are maintaining "all Negro schools,”—for example, Chicago, 
Illinois has 208 schools with 99% to 100% Negro enrollment; 
New York City has 114 such schools; Detroit, Michigan has 67 
such schools and Baltimore, Maryland, has 89 such "all Negro 
schools.”



10

ing a racial balance similarly reflect the understanding 
of the Alabama Legislature as to the constitutional re­
quirements as set forth by prior holdings of this Court. 
This understanding is also supported by a studied 
analysis of the constitutional principles involved. 
Alexander v. Holmes County Board of Education, 
supra; Deal v. Cincinnati Board of Education, 419 F. 
2d 1387 (6 Cir. 1969); Green v. County School 
Board of New Kent County, supra.

The district court was incorrect in its opinion that 
Section 2 of the Alabama Act "purports to make 
school administrators neutral on the question of dese­
gregation and limits their tools for the accomplishment 
of this constitutional obligation to 'freedom of choice’ 
plans.”

The provisions of Section 2 of the Alabama Act to 
the effect that nothing in the Act shall prevent the 
assignment of pupils in the manner requested by 
parents of the students does not require the assign­
ments but only insures that such may be made. School 
Boards in Alabama, under this Act, are free, therefore, 
to comply with their constitutional duty of school 
desegregation by any effective means, including, 
where appropriate, the granting of requests by parents 
or guardians. (See Swann v. Charlotte-Mecklenburg 
Board of Education, 312 F. Supp. 503 (D. C. N. C. 
1970).

The intent of the Alabama Act was and is to remove 
racial consciousness in the assignment of public school 
children throughout the State of Alabama, upon the 
achievement of unitary school systems. The Act fol­
lows the only logical, legal and fair interpretation of 
the Constitution of the United States. The Act follows 
the spirit of Brown I, Brown II, and Green, in prevent-



11

ing racial discrimination in public schools. Act No. 1, 
supra, simply states that upon the concept of de jure 
segregation becoming inapplicable to the State of Ala­
bama, the school children of this state, Negro and 
white alike, and their parents, should be given the same 
treatment and should be afforded the same rights as 
are children and parents throughout the nation.

The definite, real, substantial and concrete contro­
versy existing between the parties stems from the fol­
lowing factors:

1. The continuing insistence by the Department of 
Health, Education and Welfare through the defend­
ants, Jerris Leonard and Charles White-Spunner, act­
ing in consort, that racial balance and/or student 
ratios are constitutionally required to desegregate the 
public schools throughout this state (See opinion of 
District Court in Carr v. Montgomery County Board 
of Education, February 25, 1970, Civil Action No. 
2072-N ), wherein the Court stated "Plaintiffs’ objec­
tions and the few proposals made by the Office of 
Education, Department of Health, Education and Wel­
fare, that differs from the plan as proposed by the 
Montgomery County Board of Education appear to 
be based upon a theory that racial balance and/or 
student ratios as opposed to the complete disestablish­
ment of a dual school system is required by the law.”

2. The position taken by the plantiffs in Davis v. 
School Commissioners of Mobile County, supra, that 
Act No. 1, which they designate as the "freedom of 
choice act,”  is patently unconstitutional as applied to 
them. (Supplemental complaint filed by such plain­
tiffs on March 10, 1970, in Civil Action No. 3003-63, 
P - 4 ) .



12

3. The position of the State of Alabama that the 
provisions of Act No. 1, supra, are entirely constitu­
tional and in strict accord with the provisions of the 
United States Constitution and the applicable decisions 
of the United States Supreme Court.

4. The solemn responsibility of the State of Ala­
bama through Governor Albert P. Brewer and through 
the Attorney General of the State of Alabama to in­
sure that all constitutional legislative provisions of the 
State be followed and enforced throughout the State of 
Alabama.

A complaint which presents a definite and concrete 
controversy, touching the legal relations of parties 
having adverse legal interests properly presents a case 
for declaratory relief. Public Service Commission of 
Utah v. Wycoff Co., 344 U. S. 237, 73 S. Ct. 236, 
97 L. Ed. 291; Aetna Life Insurance Co. v. HaTvorth, 
300 U. S. 227, 57 S. Ct. 461, 81 L. Ed. 617; Public 
Utilities Com. v. U. S., 355 U. S. 534, 2 L. Ed. 2d 470, 
78 S. Ct. 446.

CO NCLUSION

The issues presented by this appeal are of vital con­
cern to every citizen of the State of Alabama. The 
public school system of education has become one of 
the cornerstones of our democratic society and a 
vehicle whereby every child is afforded an opportunity 
to learn and to advance intellectually, all of which 
inures to the benefit of our entire country. The 
district court’s ruling has the effect of substituting its 
judgment for that of the legislature of the State of 
Alabama in a matter which affects all school age chil­
dren in the State. A unitary school system is in opera­
tion throughout the State pursuant to federal court



13

order. The Act in question does no more than guar­
antee that no child shall be excluded from any public 
school on account of race, creed, color or national 
origin. The Act does nothing to perpetuate a dual 
system of schools, or a policy of segregation whether 
de jure or de facto.

The district court’s ruling that Act No. 1, Special 
Session of the Alabama Legislature 1970, assumes the 
Fourteenth Amendment requires that racial balance or 
racial ratios in student attendance must be maintained 
through the compulsory assignment of students.

Appellants submit that this appeal presents sub­
stantial federal questions which require briefs on the 
merits and oral argument for their resolution.

Respectfully submitted,

J o se p h  D. Ph e l p s

Special Assistant Attorney General



APPENDICES



14

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF ALABAMA, 

SOUTHERN DIVISION

STATE OF ALABAMA,
MacDONALD GALLION as Attorney 
General, State of Alabama,

Plantiffs,

versus

UNITED STATES OF AMERICA,
CHARLES S. WHITE-SPUNNER, as 
United States District Attorney,
OLLIE MAE DAVIS, as Mother and 
next friend of BETTY A N N  DAVIS, 
and JAMES ALLEN DAVIS, JERRIS 
LEONARD, as Chief of Civil Rights 
Division, Department of Justice and 
ROBERT H. FINCH, as Secretary of 
Health, Education and Welfare, and 
BIRDIE MAE DAVIS,

Defendants.

Before GEWIN, Circuit Judge, and THOMAS and PITTMAN, 
District Judges.

PER CURIAM:

A 1970 Special Session of the Alabama Legislature enacted a 
statute entitled, "An Act, To Prevent Discrimination on Account 
of Race, Creed or National Origin in Connection with the Educa­
tion of the Children of the State of Alabama.”  1 This Act was 
approved by the Governor of Alabama on March 4, 1970. In the 
present action the State of Alabama seeks a declaration that this 
enactment is constitutional. It also seeks to have this court modify 
prior judgments to conform to the strictures of this legislation, and 
to enjoin certain federal officers to conform their actions to its 
provisions.

The defendants in the present action are the parties plantiff 
in Davis v. Board of School Commissioners of Mobile County,

CIVIL ACTION 

NO. 5935-70-P.

1. The Text of the statute is quoted infra.



15

Alabama, S. D. Ala., Civil No. 3003-63, and certain officers of 
the United States. On 31 January 1970, this court entered an 
order in the Davis case requiring forthwith implementation of a 
desegregation plan for the Mobile schools. Following the adoption 
of the Act in question, the Board of School Commissioners by 
resolution instructed the school superintendent and staff to abide 
by the Act and to take no further steps in implementing the court- 
approved plan. The plantiffs in the Davis case then sought leave to 
add the Governor and Attorney General of Alabama as parties 
defendant and to amend their complaint to seek a declaration that 
the subject Act is unconstitutional and an injunction against com­
pliance with it.

Following a hearing, this court denied the plantiff’s motion. 
In his order Judge Thomas, discussing the subject Act, stated:

In 1809, Chief Justice Marshall said: " I f  the legislators 
of the several states may, at will, annul the judgments 
of the Courts of the United States, and destroy the rights 
acquired under those judgments, the Constitution itself 
becomes a solemn mockery; and the nation is deprived of 
the means of enforcing its laws by the instrumentality 
of its own tribunals.”

The School Board is required to follow the order of this 
Court of January 31, 1970, as amended, and if the same 
is not followed within three days from this date, a fine 
of $1,000 per day is hereby assessed for each such day, 
against each member of the Board of School Commis­
sioners.

The plaintiffs in this case, on the 10th day of May 1970, 
filed a petition requesting this Court to declare the 
Freedom of Choice Act of the Legislature of the State of 
Alabama unconstitutional. This case is not the proper 
vehicle in which to test the constitutionality of said Act.
The said petition is therefore dismissed.

The State of Alabama through its Attorney General then 
instituted the present action joining as defendants the plaintiffs in 
the Davis case, the Chief of the Civil Rights Division of the Justice 
Department, Charles S. White-Spunner, as United States District 
Attorney, and the Secretary of Health, Education and Wel­
fare. The present three-judge court was constituted by the 
Chief Judge of this circuit pursuant to the request of Judge Pitt-



16

man, before whom this action was originally filed. In his order 
designating the panel, the Chief Judge states:

This designation and composition of the three- 
judge court is not a prejudgment, express or implied, as 
to whether this is properly a case for a three-judge rather 
than a one-judge court. This is a matter best determined 
by the Three-Judge Court as this enables a simultaneous 
appeal to the Court of Appeals and to the Supreme Court 
without delay, awkwardness, and administrative insuffi­
ciency of a proceeding by way of mandamus from either 
the Court of Appeals, the Supreme Court, or both, di­
rected against the Chief Judge of the Circuit, the presid­
ing District Judge, or both.

In California Water Service Co. v. Redding,2 the Supreme 
Court observed that the statutory requirement of a three-judge 
court is not applicable unless the constitutional claim regarding a 
state statute or administrative order is substantial. The Court then 
stated: "It is therefore the duty of a district judge, to whom an 
application is made for an injunction restraining the enforcement 
of a state statute or order is made, to scrutinize the bill of com­
plaint to ascertain whether a substantial federal question is pre­
sented. . . .” 3 While "[theoretically, this solo travail should be the 
indispensable first step,” 4 such a procedure has often led to the im­
penetrable judicial snarl described in Jackson v. Choate,5 Accord­
ingly, it is now the preferred practice in the Fifth Circuit, in all 
but exceptional cases, to initially constitute the three-judge court 
and allow it to determine the issue of substantuality and the other 
issues in the case.6 The procedure, envisioned in Jackson, tends 
to assure that the decision by the district court will be the final 
trial court action in the case. Regardless of the proper appellate 
course, the Court of Appeals or the Supreme Court will have the 
entire case for determination.7

2. 304 U. S. 252 (1938). See Bailey v. Patterson, 369 U. S. 7 (1962).

3. 304 U. S. at 254.

4. Jackson v. Choate, 404 F. 2d 910, 912 (5th Cir. 1968).

5. 404 F. 2d 910 (5th Cir. 1968).

6. Id.

7. See Hargrove v. McKinney, 302 F. Supp. 1381 (M. D. Fla. 1969); 
Rodriguez v. Brown, 299 F. Supp. 479 (W. D. Tex. 1969).



17

In light of this procedure, the duty, described in Redding, 
to determine the substantiality of the federal question devolves 
upon the present panel. It is an elementary principle of law that 
a federal court has jurisdiction of a case, initially, to determine 
whether it has jurisdiction to ultimately decide the merits of the 
case.8 As Chief Judge Brown observed in Jackson, "Frequently in 
resolving the threshold issue of substantiality—i.e., the need for 
a 3-Judge Court—the Court has to go to the very merits of the 
case.”  9 Such is the case here. After a careful study of the com­
plaint and following a hearing on the question, we are of the 
unanimous opinion that the State of Alabama’s claim does not 
present a substantial federal question inasmuch as it is foreclosed 
by prior decisions of the United States Supreme Court.10

The Act in question provides:

Enrolled, An Act, TO PREVENT DISCRIMINATION 
ON ACCOUNT OF RACE, COLOR, CREED OR 
NATIONAL ORIGIN IN CONNECTION WITH 
THE EDUCATION OF THE CHILDREN OF THE 
STATE OF ALABAMA. BE IT ENACTED BY THE 
LEGISLATURE OF ALABAMA: Section 1. No person 
shall be refused admission into or be excluded from any 
public school in the State of Alabama on account of race, 
creed, color or national origin. Section 2. No student 
shall be assigned or compelled to attend any school on 
account of race, creed, color or national origin, or for 
the purpose of achieving equality in attendance or in­
creased attendance or reduced attendance, at any school, 
of persons of one or more particular races, creeds, colors 
or national origins; and no school district, school zone or 
attendance unit, by whatever name known, shall be es­
tablished, re-organized or maintained for any such pur­
pose, provided that nothing contained in this section shall 
prevent the assignment of a pupil in the manner re­
quested or authorized by his parents or guardian, and 
further provided that nothing in this section shall be 
deemed to affect, in any way, the right of a religious or 
denominational educational institution to select its pupils

8. C. Wright, Federal Courts § 16 at 50-55 (2d ed. 1970).

9. 404 F. 2d at 913.

10. Bailey v. Patterson, 369 U. S. 7 (1962); California Water Service Co. 
v. Redding, 304 U. S. 252 (1938); Potts v. Flax, 313 F. 2d 284 (5th Cir. 
1963).



18

exclusively or primarily from members of such religion 
or denomination or from giving preference to such selec­
tion to such members or to make such selection to its 
pupils as is calculated to promote the religious principle 
for which it is established. Section 3. The provisions of 
this Act are severable. If any part of the Act is declared 
invalid or unconstitutional, such declaration shall not 
affect the part which remains. Section 4. All laws and 
parts of laws in conflict herewith are hereby repealed. 
Section 5. This Act shall become effective upon its pass­
age and approval by the Governor, or upon its otherwise 
becoming a law.

The constitutional question involves only Section 2 of the 
Act. This section purports to make school administrators neutral 
on the question of desegregation and limits their tools for the 
accomplishment of this constitutional obligation to "freedom-of- 
choice” plans. It is clear, indeed, it is insisted by the State of Ala­
bama, that such a limitation is in direct conflict wth numerous 
desegregation plans approved and ordered by federal courts 
throughout Alabama.11

An unwaivering line of Supreme Court decisions make it clear 
that more than administrative neutrality is constitutionally re­
quired. "Under explicit holdings of this Court the obligation of 
every school district is to terminate dual school systems at once 
and to operate now and hereafter only unitary schools. Griffin 
v. School Board, 377 U. S. 218, 234, 12 L. Ed. 2d 256, 267, 84 S. 
Ct. 1226 (1964); Green v. County School Board of Kent County,

11. Paragraph VI of the complaint provides:
It is further alleged by plantiffs that the said Act if constitutional 

is required to be followed and applied by all courts, state and federal; 
that where conflict exists between prior orders of any court and the 
Act the orders should be amended or modified to conform to the 
provisions of the state law.

The prayer for relief contains the following:
2. By way of supplemental relief, if the said Act is decreed to 

be constitutional, that this court modify or amend every prior order 
relating to the public schools issued by it so as to make the orders 
conform to and not conflict with the provisions of Act No. 1.

5. That defendants Jerris Leonard, as Chief of the Civil Rights 
Division, be ordered by this court to follow the provisions of said 
Act No. 1 in all future cases involving the desegregation of the public 
schools in Alabama and to apply to all courts in Alabama in which 
he has appeared for modification of prior decrees which now conflict 
with the provisions of Act No. 1.



19

391 U. S. 430, 438-439, 442, 20 L. Ed. 2d 716, 723, 724, 726, 88 
S. Ct. 1689 (1968).” 12 Neither are "freedom-of-choice” plans 
the optimum tool for the accomplishment of this obligation. In 
Green v. County School Bd.13 the Court held such a plan insuffi­
cient, stating, " if  there are reasonably available other ways, such 
for illustration as zoning,14 promising speedier and more effective 
conversion to a unitary, non-racial school system, 'freedom-of- 
choice’ must be held unacceptable.”  16

The settled state of the law convinces us that there is no 
substantial federal question presented in this case. Where Section 
2 of the subject Act conflicts with an order of a federal court 
drawing its authority from the Fourteenth amendment, the Act 
is unconstitutional and must fail. The supremacy clause of our 
compact of government will admit to no other result. Indeed 
this has already been the result in cases where this and similar 
legislation has been asserted as a bar to constitutional obligations.16

12. Alexander v. Holmes Co. Bd. of Ed., 396 U. S. 19 (1969). See United 
States v. Jefferson County Board of Education, 372 F. 2d 836, 845-46 (5th 
Cir. 1966), aff’d reh. en banc, 380 F. 2d 385, cert, denied, 389 U. S. 840 
(1967).

13. 391 U. S. 430 (1968).

14. The subject Act expressly prohibits zoning.

15. Id. at 441.

16. A Three-Judge Court in the Middle District of Alabama in Lee, et al v. 
Macon Co. Bd. of Ed., Civ. No. 604-E, on three occasions following passage 
of the Act, refused to modify prior orders to allow the school boards involved 
to continue to operate under Freedom of Choice: Tuscumbia City Board, order 
dated March 12, 1970; Colbert County System, order dated March 16, 1970; 
Monroe County System, order dated March 23, 1970.

In Swain v. Charlotte-Mecklenburg Bd. of Ed., et al., (W. D. N. C,, No. 
1974, April 29, 1970), a three-judge court held provisions of an analagous 
North Carolina law unconstitutional insofar as it interfered with the school 
board’s duty to establish a unitary school system.

In Bivins v. Bibb Co. Bd. of Ed. (M. D. Ga. No. 1926, May 22, 1970) the 
district court enjoined an action in state court which sought an injunction 
requiring the local board to comply with a similar Georgia statute.



20

We are also of the unanimous opinion that a three-judge court 
is not required for the present action under 28 U. S. C. § 2281.17 
However, we are mindful that the question presented is important 
throughout the State of Alabama. Moreover, the ultimate disposi­
tion of this case on appeal should be free from unnecessary delay in 
order to minimize any disruptive effect on the upcoming school 
year.

Out of an abundance of caution, against the possibility that 
this case might fall upon the snares described in Jackson v. Choate, 
we remand the case for action by a single district judge. The judg­
ment of the district court will become final when joined, through 
concurrence or dissent, by the other members of the present panel. 
This assures that, in the event of an appeal, the appropriate appel­
late court, whether the Court of Appeals or the Supreme Court, 
will have the entire case for decision.18

Done at Mobile, Alabama this the 26 day of June 1970.

WALTER GEWIN,
UNITED STATES CIRCUIT JUDGE

DANIEL H. THOMAS,
UNITED STATES DISTRICT JUDGE

VIRGIL PITTMAN,
UNITED STATES DISTRICT JUDGE

17. 28 U. S. C. § 2281, provides for a three-judge court where the plaintiff 
seeks, "An interlocutory or permanent injunction restraining the enforce­
ment, operation or execution of any State statute by restraining the action 
of any officer of such State in the enforcement or execution of such statute 
. . . upon the ground of the unconstitutionality of such statute . . . .”  It is a 
technical statute to be strictly construed. Phillips v. United States, 312 U. S. 
246 (1948); C. Wright, Federal Courts § 50 at 189 (2d ed. 1970). For 2281 
to apply a state statute must be challenged on constitutional grounds in an 
action in which injunctive relief is sought against a state officer who is a party 
defendant. C. Wright, supra. The only state officer involved in the instant 
case is a party plantiff seeking to uphold the constitutionality of the state 
statute involved. The injunctive relief requested would operate against officers 
of the federal government. Inasmuch as the injunctive relief requested against 
the federal officers is not related to a constitutional attack on any federal 
statute, a three-judge court is not required by 28 U. S. C. § 2282.

18. Rodriguez v. Brown, 299 F. Supp. 479 (W. D. Tex. 1969). See Har­
grove v. McKinney, 302 F. Supp. 1381 (M. D. Fla. 1969); Jackson v. Choate 
404 F. 2d 910 (5th Cir. 1968).



21

IN TH E UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF ALABAMA, 

SOUTHERN DIVISION

STATE OF ALABAMA,
MacDONALD GALLION as Attorney 
General, State of Alabama,

Plantiffs,

versus

UNITED STATES OF AMERICA,
CHARI.ES S. WHITE-SPUNNER, as 
United States District Attorney,
OLLIE MAE DAVIS, as Mother and 
next friend of BETTY ANN DAVIS, 
and JAMES ALLEN DAVIS, JERRIS 
LEONARD, as Chief of Civil Rights 
Division, Department of Justice and 
ROBERT H. FINCH, as Secretary of 
Health, Education and Welfare, and 
BIRDIE MAE DAVIS,

Defendants.

ORDER OF DISMISSAL 

PITTMAN, District Judge:
For the reasons stated in the opinion of the three-judge panel 

remanding the present case to a single judge,1 the same is hereby 
dismissed.

GEWIN, Circuit Judge, and THOMAS, District Judge, con­
cur in this order.2

Done at Mobile, Alabama this 26 day of June, 1970.

WALTER GEWIN,
UNITED STATES CIRCUIT JUDGE

DANIEL H. THOMAS,
UNITED STATES DISTRICT JUDGE

VIRGIL PITTMAN,
UNITED STATES DISTRICT JUDGE

CIVIL ACTION 

NO. 5935-70-P.

1. Opinion of Judges Gewin, Thomas, and Pittman, dated June 26'th, 1970.

2. See note 18 and accompanying text of the three-judge opinion.



22

APPENDIX B
IN TH E UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 
SOUHERN DIVISION

BIRDIE MAE DAVIS, Et Al,

Plaintiffs,

UNITED STATES OF AMERICA, 
by RAMSEY CLARK, Attorney 
General of the United States,

Plaintiff -Intervenor,
CIVIL ACTION

vs.

BOARD OF SCHOOL COMMISSION- NO. 3003-63
ERS OF MOBILE COUNTY, Et Al,

Defendants
and

TWILA FRAZIER, Et Al,

Defendant-lntervenors.

On January 14, 1970, the Supreme Court of the United 
States reversed this case and the Fifth Circuit on January 21st, 
ordered this Court to enter its plan for implementation on Febru­
ary 1, 1970. This Court entered its decree on January 31, 1970, 
and ordered that it be implemented forthwith. The Board of 
School Commissioners announced that it would be implemented 
on March 16, 1970, today.

The Legislature of Alabama passed the Freedom of Choice 
Bill on the 4th day of March 1970. The School Board then passed 
a resolution to the effect that it would not follow this Court’s 
decree but would continue to operate as it has heretofore.

In 1809, Chief Justice Marshall said: " I f  the legislators of 
the several states may, at will, annul the judgments of the Courts 
of the United States, and destroy the rights acquired under those 
judgments, the Constitution itself becomes a solemn mockery; and 
the nation is deprived of the means of enforcing its laws by the 
instrumentality of its own tribunals.”

The School Board is required to follow the order of this Court 
of January 31, 1970, as amended, and if the same is not followed



23

within three days from this date, a fine of $1,000 per day is hereby 
assessed for each such day, against each member of the Board of 
School Commissioners.

The plantiffs in this case, on the 10th day of March 1970, 
filed a petition requesting this Court to declare the Freedom of 
Choice Act of the Legislature of the State of Alabama unconstitu­
tional. This case is not the proper vehicle in which to test the 
constitutionality of said Act. The said petition is therefore dis­
missed.

DONE at Mobile, Alabama, this the 16th day of March 1970.

DANIEL H. TLIOMAS

UNITED STATES DISTRICT JUDGE

U. S. DISTRICT COURT 
SOU. DIST. ALA.
FILED AND ENTERED THIS THE
............DAY OF MARCH 1970.
MINUTE ENTRY N O ......................
WILLIAM J. O’CONNOR, Clerk 
BY...............................................................

Deputy Clerk



24

APPENDIX C

COURT ORDERS PURSUANT TO WHICH 

ALABAMA SCHOOLS ARE OPERATING

NORTHERN DISTRICT OF ALABAMA

Brown v. Board of Education of City of Bessemer 
C. A. No. 65-366

Stout v. Jefferson County Board of Education
C. A. No. 65-396

Boykins v. Board of Education of City of Fairfield
C. A. No. 65-499

Armstrong v. Board of Education of City of Birmingham
C. A. No. 9678

Bennett v. Madison County Board of Education
C. A. No. 63-613

Hereford v. Board of Education of City of Huntsville
C. A. No. 63-109

Horton v. Lawrence County Board of Education
C. A. No..........................

Miller v. Board of Education of City of Gadsden
C. A. No. 63-547

MIDDLE DISTRICT OF ALABAMA

United States v. Lowndes County Board of Education
C. A. No. 2328-N

Harris v. Crenshaw County Board of Education 
C. A. No. 2455-N

Carr v. Montgomery County Board of Education
C. A. No. 2072-N

Harris v. Bullock County Board of Education
C. A. No. 2073-N

Franklin v. Barbour County, Ala., Board of Education
C. A. No. 2458-N



25

SOUTHERN DISTRICT OF ALABAMA

United States v. Wilcox County Board of Education
C. A. No. 3934-65

United States v. Hale County Board of Education
C. A. No. 3980-66

United States v. Perry County Board of Education
C. A. No. 4222-66

United States v. Choctaw County Board of Education
C. A. No. 4246-66

Davis v. Board of School Commissioners of Mobile County
C. A. No. 3003-63

STATEWIDE (MIDDLE DISTRICT)

Lee v. Macon County Board of Education
C. A. No. 604-E