Dukes v. Wal-Mart Stores, Inc. Brief of Amici Curiae

    Tlnited States Gouet of Appeals 
FIFTH CIRCUIT 

EDWARD W. WADSWORTH OFFICE OF THE CLERK ROOM 408 - 400 ROYAL ST, 
CLERK NEW ORLEANS, LA. 70130 

August 11, 1970 

Clerk 

U. S. District Court 

P. O. Box 769 

Jackson, Miss, 39205 

Nos. 28030 & 28042 - U.S.A. vs. Hinds 

County, et al 

Dear Sir: 

Enclosed is a certified copy of an order this day 

entered by the Court in the Noxubee County School 

District, et al. 

Very truly yours, 

EDWARD W, WADSWORTH, Clerk 

ii tn Be al ye 

Deputy Clerk [/ 
  

[few 

Enc. 

cc and enc. to: 

Hon. Dan Mr. Russell, Jr. 

Mr. Jack Greenberg 

Hon. David L. Norman 
Mr. Ernest L. Brown  



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IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT =f 

  

NOS. 28030 & 28042 AUG 11 1570 

  

EDWARD W, WADSWORTH 

UNITED STATES OF AMERICA, 

Plaintiff 

| Ve. 

HINDS COUNTY SCHOOL BOARD, ET AL, 

Defendants 
> 

UNITED STATES OF AMERICA, 

: Plaintiff 

Ve 

NOXUBEE COUNTY SCHOOL DISTRICT, ET AL, 

Defendants 

  

Appeal from the United States District Court 

for the Southern District of Mississippi 

(August [(/, 1970) 
  

Before BELL, THORNBERRY, AND MORGAN, Circuit Judges. 

PER CURIAM: 

The findings of fact and recommendations of Honor- 

able Sai M. Russell, Jr., United States District Judge, 

dated July 31, 1970, and appended hereto, amending the 

student assignment plan for the Noxubee County School 

District, are adopted and made the order of this court. 

 



  
    

  

[sou DISTRICT OF MiSolooriir 
FILED 

AUG3 1970 
\ 

o DgERT C. THOMAS, CLERK 

UNITED STATES COURT OF APPEALS or pruvy   

FOR THE FI¥T] CIRCUIT ....--. — 

Je “COURT OF Ar o> 2) 

© RECEIVED 

AUG 4 1970 porn 

Yew onLeans, \ 

    
     
        

UNITED STATES OF AMERICA, 

VERSUS NOS. 28030 and 28042 

HINDS COUNTY SCHOOL BOARD, ET AL, | DEFENDANTS 

UNITED STATES OF AMERICA, | PLAINTIFF 

VERSUS NO. 1372(E) 

NOXUBEE COUNTY SCHOOL DISTRICT, ET AL, DEFENDANTS 

h] 

" FINDINGS OF FACT AND RECOMMENDATIONS 
  

In the above styled woasolidated cases, Nos, 28030 and 

28042, tiie Fifth Cireuls Court of Appeals, by order dated November 

7, 1969, directed the Noxubee County School District, Noxubee 

County, ississippl, in Cause No. 1372 on the docket of this Court, 

to adopt the school integration plan offered by the Office of . 

Education of the Department of Health, Education and Welfare. On 

November 25, 1969, the N.A.A.C.P. Legal Defense and Educational 

Fund, Inc., was allowed to participate as amicus curiae. By order | 

of December 30, 1969, the Appellate Court amended the HEW student 

assignment plan for the balance of the school year 1969-1970, and 

directed that the iotvin of future student assignments be present- 

ed to this Court according to the procedure provided for in the 

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Appellants Court" 8 order of November 7, 1969. 

On June 5, 1970, William Bradley and others, having been 

so authorized by order of the Appellate Court dated March 20, 1970, 

{ntervened and filed on behalf of themselves a plan designated 

"Alternative School Desegregation Plan," On July 13, 1970, the 

school board filed its plan endorsed by a bi-racial committee, 

  

  

 



        
          

    

adopting in all respects the plan as modified by the Appellate 

Court, and providing that it continue for the coming school year. 

On July 20, 1970, the aforesald intervenors filed numerous objec~ 

tions to the modified plan as adopted by the school board. On 

July 22, 1970, the United States.of America, plaintiff, responded 

to the board's plan, objecting thereto on the grounds that, as 

implemented during the gecond semester of 1969-70, it had falled 

to disestablish the dual, racially discriminatory school system. 

and that under it each school would retain its racial identity. 

The response further stated that the school district had requested 

technical assistance and recommendations from the Educational 

Resource Center at Migsigsippl State University and that a program 

officer from this center would be available at the hearing to 

offer suggestions for the establishment of a unitary system. 

In order to afford time for this study to be made, this 

Court re-set its hearing to July 27, 1970, on which date the 

defendant board offered and £1led an amended student assignment 

plan, incorporating fhoveln the suggestions and recommendations 

offered by a three-member team from the Education Resource Center 

of Mississippi State University. Upon the filing of this plan, the 

earlier plan of the school board became moot , and neither 

plaintiff nor intervenors pressed thelr objections thereto. 

Prior to the HEW plan, the Noxubee County school district 

operated six schools, one vhite and one nearby negro school’ being 

located in each of three geographical areas, the negro schools 

housing a total of 3573 students and the white schools housing 

872 studentn. Of these schools two in the center of the county, 

Noxubeo County High and B. TF. Liddell, cach accommodated grades 

1-12, the remaining schools serving grades 1-8. The HEW plan   
proposed to assign all students in the district in grades 9-12 to 

the Noxubee High School, centrally located, close the Shuqualal 

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and Brooksville Schools, formerly white, and assign grades 1-8 to 

B. F. Liddell, centrally located, grades 1-8 to Wilson in the 

northern part of the county, which would absorb the Brooksville 

students, and grades 1-8 to Reed in the southern part, which would 

absorb the Suyualak students. This plan wns obviously unworkable 

as it assigned a total of 1171 geudents in grades 9-12 to Noxubee 

High School which has facilities for only 280 students at the high 

school level. 

The Avnaliaye Count, in its modifications, undertook to 

establish four school attendance centers by combining each former- 

ly negro school with its white counterpart, the assigament of each 

student being determined by the courses he took, plus an arbitrary 

assignment of a fixed number of negro students to formerly white 

schools. 

Although not a part of the evidence at this hearing, the 

Court takes judicial notice of the fact that the negro students 

of this school district, in toto, refused to accept thelr g38Luria 

ments under the modified plan and boycotted the schools for the 

remainder of the 1969 term. | 

Intervencys' plan recommended that Noxubee County High and 

Elementary Schools be established as a central high school serving 

all district students in grades 10-12; that the B.F. Lidell 

Elementary ond High school serves grades 1-9 in the Macon area; 

that Brooksville, grades 1-4, be paired with Wilson, grades 5-8, 

serving all students in that area; and that Shuqualak, grades 1-4, 

be paired with Reed, grades 5-8, serving all students in that 

area. In view of the subsequently offered amended plan by the 

school board, intervenors merely presented their plan, making 

no serious contention that it was preferable to the board plan. 

The defendant school board presented its amended plan 

through the testimony of Mr. Thomas Leroy Richie, a staff   
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of the school board, he first visited Noxubee County in the latter 

‘students in that areca. With regard to the central zone, his 

speciclist in the Educatlon Resource Center of the Department of 

Education of Mississippi State University, who testified on 

behalf of the governmont as well as the board. At the invitation 

part of June 1970. He and two other members of his staff return- 

ed on dy 25 and inspected gach, fooslits, wottng the number of 

classroons, size of playgrounds, and state of repair. He declared 

familiarity with the amended plan of the school board and stated 

that it incorporates basically his recommendations. He noted that 

the county is geographically divided into three zones. In the 

northern zone, of the two schools, Brooksville and Wilson, he 

stated that Wilson, the formerly negro school, is the better 

facility, end for grades 1-8, is adequate, and in the gouthern 

zone, it is acadomically and practically inadvicable to keep 

Shuqualak 1a operation with an enrollment of only 118 students, 

inasmuch as Reed has adequate facilities for all 1-8 grade 

recomendations as to grade assignments were premised on academic 

considerations. As the Noxubee County High School has insufficient 

science, laboratory and other space for specialized courses for 

more than 280 otudents, he approved the board's proposed assign- 

ment of all 12th grade students, county-wlde, to this school, and 

the ascigrment of county-wide grades 9-11 to the B. F. Liddell 

High school, a much larger and better equipped facility. He 

particularly agreed with the school board's expressed intention 

of renovating the Noxubee County High School facility to eventual- 

ly become a centralized high school for grades 9-12. 

Also incorporated in the school board's amended plan, 

1s itp intention to construct at or near the Noxubee County lligh   School a vocational complex which will serve the entire district. | 

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The amended student assignment plan, as reccomended by 

the team of consultants and as adopted by the board proposes as 

  

  

  

  

follows: 
ANTICIPATED ENROLL- 

SCICCY, GRADES MENT 

W N T 

I. NORTHERN ZONE: 
Brooksville = (closed) 

Wilson CS 1-8 110 824 934 

II. CENTRAL ZONE: | 
Noxubee Co. High 12 76 198 274 

Macon Elem. (Noxubee Elem.) 6-8 124 423 547 

B.F. Liddell High 9-11 188 652 840 

B.F. Liddell Elem. 1-5 227 643 870 

IIX. SOUTHERN ZONE: 
Reed 1-8 100 454 554 

shuqualak (closed) 

Also, any student residing within the noxthern zone or 

the southern zone will have the privilege of transferring to the 

central zone as space may permit. 

Upon examination of the board's amended plan, counsel 

for intervenors, announced his clients had no objection thereto but 

would withhold a formal endorsement {n view of lack of time to 

present the plan before a full meeting of their supporters. The 

government, as plantiff, registered a technical objection to the 

right reserved to students in the southern and northern zones to 

transfer to the central zone, but conceded that the amended plan is 

by far the most practicable before this Court. In addition to being 

the most practical in the sense of best utilizing the available 

facilities and capacitles of the schools in this system, there is 

“0 constitutional deficiency in the plan #s each school, as shown 

by the projccted attendances, will have a uniform racial mixture, 

comparable to the county-wide ratio. 

This Court recognizes and appreclates the cooperation 

of all parties hereto, , with particular reference to the school 

    
board, in the fruition of a unitary school plan, and recomnends   
that the amended plan presented by this school board be approved.   

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As to the school board's request for permission to 

close certain schools in the event of the failure of 85 pordnt 

of either the black or white students to attend, this Court 

finds such request premature, and recommends that it be rejected. 

Recommended and signed in duplicate, the Clerk of this 

Court being directed to file one signed duplicate in his office 

and forward the other signed duplicate to the Clerk of the U.S. 

Court of Appeals for the Fifth Clrcult, and mall one copy to each 

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party of record. h 

bee 2/0. 

  
  

  

BERT STATES yi AE: 

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