Per Curiam Opinion

     [||e0e95809-dd0f-492f-8d3b-fd803dea49a3||] IN THE 

United States Court of Appeals 
FOR THE FIFTH CIRCUIT 

REBECCA E. HENRY, ET AL., 

Plaintiffs-Appellants- 

Cross-Appellees, 

versus 

THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET AL., 

Defendants-Appellees- 

Cross-Appellants. 

Appeals from the United States District Court for 

Northern District of Mississippi 

ON PETITION FOR REHEARING AND PETITION 
FOR REHEARING EN BANC 

(Opinion August 12, 1970, 5 Cir., 1970, Bad), 

(October 5, 1970) 

Before WISDOM, COLEMAN and SIMPSON, 

Circuit Judges. 

PER CURIAM: The Petition for Rehearing is DE- 

NIED and the Court having been polled at the request 



2 HENRY, ET AL. v. CLARKSDALE SCH. DIST. 

of one of the members of the Court and a majority 

of the Circuit Judges who are in regular active service 

not having voted in favor of it, (Rule 35 Federal Rules 

of Appellate Procedure; Local Fifth Circuit Rule 12) 

the Petition for Rehearing En Banc is also DENIED. 

For the reasons already stated in his original dissent, 

Judge Coleman dissents from the denial of a rehearing 

en banc. 

CLARK, Circuit Judge, DISSENTING: 

I respectfully dissent from the Court’s action in refus- 

ing to grant in banc reconsideration of this case. 

Rule 35 of the Federal Rules of Appellate Procedure 

governing in banc hearings provides that such rehear- 

ings ordinarily will not be ordered “... except (1) when 

consideration by the full court is necessary to secure 

or maintain uniformity of its decisions, or (2) when 

the proceeding involves a question of exceptional im- 

portance.” My dissent is based upon the premise that 

this case falls within both of the stated exceptions in 

Rule 35. 

First, there is no rational legal basis upon which this 

opinion can consistently stand in uniformity with other 

decisions of this Circuit. As Judge Coleman’s dissent 

points out, Clarksdale is legally indistinguishable from 

Ellis v. Bd. of Public Inst. of Orange County, Florida, 



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 3 

423 F. 2d 203 (5th Cir. 1970). This case also violates 

every ordinary precedent of this Court, of the Supreme 

Court of the United States and Rule 52 of the Federal 

Rules of Civil Procedure defining the limited power 

of appellate courts to re-resolve fact issues decided by 

a district court. 

Second, the decision we refuse to review is the result 

of processes, briefing, consideration and decision 

in this court premised on a basis that it is, in the words 

of the majority opinion, “... an extraordinary mat- 

ter.” I agree — it is an extraordinary matter, and one 

of exceptional importance. It is more, much more, than 

one lawsuit. We are deciding on the separate educa- 

tional future of more than 5,300 students. Our de- 

cisions affect the rights of the parents and relatives of 

each of them as well as the rights of several hun- 

dred teachers, staff and administrative personnel 

employed by the school system. It is hard to conceive 

of any case that could involve more important dimen- 

sions. Yet, under the manner in which it was decided, 

we haven’t permitted the parties normal briefing time, 

and counsel have been denied oral argument. The three 

judges in ‘this court who participated in the making 

1In addition to what Judge Coleman states I cannot agree with the 

majority’s view that Ellis decided that the neighborhood sys- 

tem permitted in Orange County represented “. .. the maximum 

that could be accomplished” by way of numerical racial inte- 

gration for that system. Obviously the Court could have re- 

quired total racial balance and there were available options 

no more drastic than required in Clarksdale to eliminate 

Orange County’s all black schools. 



4 HENRY, ET AL. v. CLARKSDALE SCH. DIST. 

of this decision probably never conferred in person.® 

I seriously doubt any of them, particularly the majori- 

ty, would claim any personal intimacy with the phy- 

sical structures in or the actual geographic makeup 

of the Clarksdale School District. Notwithstanding 

these circumstances, two judges of an appellate court 

override the deliberate judgment of a district judge 

and conclude: 

... Concededly [the HEW Plan ordered into 

effect immediately] is not perfect, but its one 

paramount advantage outstrips and overcomes 

each of the criticisms leveled at it by the dis- 

trict judge: it accomplishes desegregation of 

the Clarksdale Municipal Separate School Dis- 

trict. As the only plan now extant even ap- 

proaching this goal, its adoption for the present 

at least is a must. 

The objections as to children being required 

to walk as much as two miles as opposed to an 

average of 0.5 miles heretofore, and of having 

to traverse natural or man-made barriers 

[rivers, railroads and highways] and the 

claim that a 2-2-2 grade division is somehow 

less desirable than a 1-6 division [long in use 

by the district] all fail. (Emphasis added by 

the Court.) 

2] intend not the slightest intimation of judicial impropriety by 

making these observations. The panel strictly followed the, 

now ordinary, extraordinary pattern adopted by this Court to 

expedite all “school cases.” 



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 5 

Here again our court misconceives the true end sought 

— it is not statistical integration of racial groups in 

school buildings but rather the protection of the equal 

right of all citizens to receive a viable public education. 

The problem is not to get the numbers “right”. That 

kind of a problem could be solved by any mathema- 

tician. Preserving an environment for education of all 

citizens is the hard part, and the part in which we are 

now meeting with such small success.® 

Perhaps the most convincing way to demonstrate the 

merit of granting in banc rehearing in this case is to 

simply, briefly set out the fact context involved in the 

8As I write these words (August 31, 1970), news comes that the 

highly-regarded progressive superintendent of the State’s 

largest school system has found it physically necessary to 

resign less than two weeks before school was to start. He left 

with these words: 

With deep regret I have found it necessary to request 

the Board of Trustees to accept my resignation as 

Superintendent of the Jackson Public Schools. 

As everyone is well aware the Jackson schools have 

been in a continuous series of litigation involving 

numerous court orders requiring the Superintendent 

to administer drastic changes. Professionally and 

personally I cannot continue as superintendent under 

the existing situation. 

I regret that I cannot be involved in developing the 

outstanding school program that I am confident could 

exist in Jackson. I assumed the position of superintend- 

ent here to develop such a program. Unremitting dis- 

ruption has prevented the accomplishment of that ob- 

jective. 

If we fail to get the poignant message of this last sentence, it 

just might become a part of the epitaph when courts are laid 

to rest with other institutions that have lost their relevance 

to society’s changing demands. 



6 HENRY, ET AL. v. CLARKSDALE SCH. DIST. 

six matters in which we have already granted pending 

in banc rehearings: 

(1) 

(2) 

(3) 

(4) 

(5) 

Whether an individual was properly award- 

ed a money judgment against a corpora- 

tion. 

Household Goods Carrier Bureau vs. Ter- 

rell vs. Aero Mayflower Transit Co. Inc. No. 

25,989. 

Whether an oil well driller may sue a Ger- 

man ship and its owner in Florida. 

Zapata Off-Shore Co. vs. M/S Bremen and 

Unterweser Ruderi GMBH, No. 27,497. 

Whether a person who has pled guilty to 

bank robbery and been sentenced to twenty 

years in the federal penitentiary must now 

be retried because he will not let his pri- 

vately hired lawyer say that he told him 

the length of the maximum prison term 

that could be imposed if he pled guilty. 

U.S. v. Woodall, Nos. 28,352 and 28,353. 

Whether a white man can challenge his 

conviction on the basis of the exclusion of 

Negroes from the juries which considered 

his case. 

Salisbury v. Grimes, No. 27,179. 

Whether a person who has confessed to 

making moonshine whiskey should have 

his conviction reversed because the officer 



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 7 

who stopped him as he was headed toward 

the illicit still took paper sacks from him 

that contained corks for the empty bottles 

at the still. 

U.S. v. Brookings, No. 27,067. 

(6) Whether the racial and ethnic composition 

of local draft boards is subject to challenge. 

No. 28,295, Cortez v. Local Board 

No. 28,356, Lopez v. Local Board 

No. 28,113, Sumrall v. Kidd 

No. 28,181, Evers v. Williams 

No. 27,659, Smith v. Leach 

This is not to assert that in banc consideration was 

improvidently granted in the cases listed above. I only 

state that if those cases are inbancworthy, a fortiori 

this cause merits the same treatment. It is past time 

for this largest of all the circuits to give face to face 

deliberation as a court to the multi-party, multi-faceted 

litigations we lump together in what we conveniently 

call school cases. I regret that we keep heaping “extra- 

ordinary” school case decisions on the district in this 

circuit without pausing to reflect upon the real efficacy 

of the ways used to meet the challenge these cases 

present. 

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La. [||e0e95809-dd0f-492f-8d3b-fd803dea49a3||]