Johnson, Jr. v. Railway Express Agency, Inc Brief for Respondents

    + +

IN THE

S upreme Court of the U nited States
OCTOBER TERM, 1972

No.

W. S. POTTS, et al., Petitioners

vs.

ARLENE FLAX, et al., Respondents

Petition for W rit of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

CECIL A. MORGAN and 
DAVID B. OWEN

2108 Continental Life Bldg. 
Fort Worth, Texas 76102 

Counsel for Petitioners

+■



INDEX
Page

OPINIONS BELOW ..................................................................  2

JURISDICTION ......................................................................... 3

QUESTIONS PRESENTED ....................................................  4

CONSTITUTIONAL AND STATUTORY PROVISIONS.... 6

STATEMENT OF THE CASE ................................................  6
Background ........................................................................... 6
No Party Plaintiffs ............................................................  8
From Brotvn through Jefferson to Sivann .................... 9
The Schools Involved .........................................................12
Effects of Judgment of the Court of Appeals................. 13

THE QUESTIONS ARE SUBSTANTIAL ............................ 14

ARGUMENT ............................................................................... 16
Terrell High .........................................................................17
Three Black Schools ...........................................................17
Como and Dunbar...............................................................19
McCoy ................................................................................... 19
First Grade........................................................................... 19
Section 803 Education Amendments of 1972 ..................20
Undue Burden .....................................................................20

COOPERATION REJECTED.................................................. 21

CONCLUSION ............................................................................. 22

CERTIFICATE OF SERVICE ................................................ 23

APPENDIX A ......................................................................... A -l

APPENDIX B .........................................................................A -l4



INDEX OF AUTHORITIES
Page

Brown v. Board of Education of Topeka, 1954,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 ............................ 9

Dixon v. Alabama State Bd. of Educ.,
294 F.2d 150 (5th Cir. 1961) ..............................................17

Flast v. Cohen, 392 U.S. 83, 20 L.Ed.2d 947. 961,
88 S.Ct. 1942 (1968) ............................................................  9

Flax v. Potts,.... F.2d .... (5th Cir. 1972)
[No. 71-2715, July 14, 1972] ................................................  2

Flax v. Potts, No. 4205, July 30, 1971 (unpublished) ....... 2,18
Flax v. Potts, 333 F.Supp. 711 (N.D.Tex. 1970) .............. 2, 8
Flax v. Potts, 450 F.2d 1118 (5th Cir. 1971) .......................... 2
Flax v. Potts, 204 F.Supp. 458 (N.D.Tex. 1962) ...................  2
Keyes v. School District No. 1, Denver, Colorado,

445 F.2d 990, 999 (10th Cir. 1971) cert, granted
404 U.S. 1036, 30 L.Ed.2d 728, .... S.Ct.....
(Jan. 17, 1972) ......................................................................  3

Monroe v. Board of Commissioners of City of Jackson,
1968, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 .............  8

Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ........................2, 6
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 91 S.Ct. 1267,
28 L.Ed.2d 554 (1971) ............... 3, 4, 6, 9,10,16,17,18, 21

U.S. v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966) ................................................  9

ii



INDEX OF AUTHORITIES (Continued)
I ll

Page
Statutes:

Title 28, Section 1254 (1), U.S.C. (62 Stat. 928
(1948), 28 U.S.C. $1254(1)) ................................................  3

Title 28, Section 1331, U.S.C. .... ...........................................  3
Title 28, Section 1343(3), U.S.C.............................................  3
Title 28, Sections 2201 and 2202, U.S.C...............................  3
Title 42, Sections 1981 and 1983, U.S.C...............................  3

Section 803, Education Amendments of 1972 (Public Law
92-318, 92nd Congress, S. 659, June 23, 1972) ............. 6, 20

Section 1, Fourteenth Amendment to the
United States Constitution....................................................  6

Rule 52, F.R.C.P........................................................................... 16



IN THE

S upheme Court of the U nited States
OCTOBER TERM, 1972

No. ____________

W. S. POTTS, et al., Petitioners 
vs.

ARLENE FLAX, et al., Respondents

Petition for Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

The Petitioners pray that a writ of certiorari be 
issued to review the judgment and opinion of the 
United States Court of Appeals for the Fifth Circuit 
entered in this proceeding on July 14, 1972, and the 
order deferring the effective date of implementation 
entered July 27, 1972, and from the order of the Court 
entered July 28, 1972, which denied Petitioners’ Mo­
tion for Rehearing. By such judgments, the United 
States Court of Appeals remanded to the District 
Court with directions that the desegregation plan of 
the Fort Worth Independent School District be modi­
fied and extended to eliminate 88% or more black at­
tendance in schools which were previously white and 
became predominantly black not as the result o f any 
official action, but rather as the result o f unexpected 
dramatic demographic changes in the residential com­
position of the attendance areas o f said schools. The



2

Court of Appeals further directed the elimination of 
the predominantly black attendance in a vocational 
high school open to all students in the school district, 
and in 3 other schools where such attendance is not 
the result of public or private discrimination, but 
rather the result of the residential pattern of the at­
tendance areas and the desire of Negroes to live in 
their own neighborhoods rather than white neighbor­
hoods.

OPINIONS BELOW

The Opinion of the United States Court of Appeals 
for the Fifth Circuit, filed July 14, 1972, is not yet
reported. Flax v. Potts,......F .2 d ........ (5th Cir. 1972)
[No. 71-2715, July 14, 1972] The Opinion, the order 
to defer the effective date and the order overruling 
the Motion for Rehearing are attached hereto as Ap­
pendix A.

The Opinion of the District Court was entered on 
July 30, 1971. Flax v. Potts, No. 4205, July 30, 1971 
(unpublished). A  copy of same is attached hereto as 
Appendix B.

Reference is also made to the reported opinions in 
prior proceedings of this case in the District Court, 
Flax v. Potts, 333 F.Supp. 711 (N.D.Tex. 1970), and 
in the Court of Appeals, memorandum decision, Flax 
v. Potts, 450 F.2d 1118 (5th Cir. 1971).

The original proceedings were reported in Flax v. 
Potts, 204 F.Supp. 458 (N.D.Tex.1962) and Potts v. 
Flax, 313 F.2d 284 (5th Cir. 1963).



3

JURISDICTION

This is a desegregation case. The suit was brought 
under Title 28, Section 1331, Title 42, Sections 1981 
and 1983, Title 28, Section 1343(3) of the United 
States Code and for an injunction under Title 28, 
Section 2202, United States Code and for a declaratory 
judgment under Title 28, Sections 2201 and 2202, 
United States Code.

Your Petitioners seek review of the judgment of 
the United States Court of Appeals for the Fifth Cir­
cuit entered on July 14, 1972, of the order deferring 
the effective date of implementation entered July 27, 
1972, and of the order overruling Petitioners’ Motion 
for Rehearing entered July 28, 1972. No order grant­
ing an extension of time within which to petition for 
certiorari has been granted or requested.

The jurisdiction of this Court is invoked under 
Section 1254 (1) o f Title 28, United States Code (62 
Stat. 928 (1948), 28 U.S.C. §1254(1)).

The decision of the Court of Appeals is in conflict 
with the decision of this Court in Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1,91 S.Ct. 
1267, 28 L.Ed.2d 554 (1971). The decision of the Court 
of Appeals is also in conflict with the 10th Circuit in 
the case of Keyes v. School District No. 1, Denver, Colo­
rado, 445 F.2d 990, 999 (10th Cir. 1971) cert, granted
404 U.S. 1036, 30 L.Ed.2d 728, ...... S.Ct......... (Jan.
17, 1972).

This case involves important questions of Federal 
law which have not been, but should be settled by this 
Court, to-wit:



4

1. The Court below ordered the Trial Court to re­
quire the Board to assign and transport black stu­
dents from a vocational high school to non-vocational 
high schools for “ a full and equal integrated educa­
tion.”  Such assignment would deprive the black stu­
dents of a vocational education designed to train them 
to earn a livelihood upon graduation. Is there a con­
stitutional duty on the part of the Board to deprive 
these black students of such training?

2. Because of the voluntary acceleration of the de­
segregation plan, 8 elementary schools changed from 
white to black without any action by the Board or any 
other state agency. Is there a constitutional duty on 
the part of the Board to re-mix these 8 schools?

QUESTIONS PRESENTED

1. Whether the Court of Appeals properly inter­
preted Swann when it ordered the Board to go back 
and re-mix 8 schools which had changed from white to 
black after the dual system had been voluntarily elim­
inated by the Board. These schools changed because 
o f demographic changes in a mobile, growing com­
munity. Such result was not brought about by any 
action on the part of the Board or any other state 
agency.

2. Does the Board have a constitutional duty to de­
prive the black students who voluntarily attend Ter­
rell High School of a vocational education which will 
equip the students with the training to earn liveli­
hoods upon graduation in order that the students may 
be bused and balanced?



5

3. Is the Board constitutionally required to revise 
its cluster program and bus the 1st grade students, 
that are presently attending integrated schools, when 
the only testimony in the record and the findings of the 
Trial Court establish that the present program is in 
the best educational interest of the students involved?

4. Three schools out of a total of 117 in the district 
are predominantly one race as a result o f the desire 
of Negro parents to live in neighborhoods that are 
predominantly Negro. Neither such residential pattern 
nor the racial composition of such student bodies is the 
result of any public or private discrimination or o ffi­
cial action. Does the Board have a constitutional duty 
to adjust the racial composition of these 3 schools, 
where any child desiring to attend any other school in 
the system may transfer and receive free transporta­
tion?

5. What is the effect of Section 803 of the Educa­
tion Amendments of 1972 (Public Law 92-318, 92nd 
Congress, S. 659, June 23, 1972) where the inevitable 
result of the judgment of the Court of Appeals would 
require the District Court to enter an order requiring 
transfer or transportation of students from school at­
tendance areas prescribed by competent authority for 
the purposes of achieving a balance among students 
with respect to race?

6. What standing or justiciable interest does the 
NAACP of New York have, and what right of any 
kind to prosecute this case where there is not a single 
school child, parent or taxpayer of Fort Worth who is 
a party plaintiff to this suit?



6

CONSTITUTIONAL AND STATUTORY  
PROVISIONS

Section 1 of the Fourteenth Amendment to the Con­
stitution of the United States provides in relevant 
part:

“ No State shall *** deny to any person within 
its jurisdiction the equal protection of the laws.”

The Education Amendments of 1972 were signed 
into law by the President on June 23, 1972, and Sec­
tion 803 thereof reads as follow s:

“ Notwithstanding any other law or provision of 
law, in the case of any order on the part of any 
United States district court which requires the 
transfer or transportation of any student or stu­
dents from any school attendance area prescribed 
by competent State or local authority for the pur­
poses of achieving a balance among students with 
respect to race, sex, religion, or socioeconomic 
status, the effectiveness of such order shall be 
postponed until all appeals in connection with 
such order have been exhausted or, in the event 
no appeals are taken, until the time for such ap­
peals has expired. This section shall expire at 
midnight on January 1, 1974.”

STATEMENT OF THE CASE 

Background

The Board does not have a long history of delays 
and resistance as in Swann and many other integra­
tion cases. See Potts v. Flax, 313 F.2d 284 - 287-288. 
See also the opinion of the Court of Appeals dated 
July 14, 1972, Appendix A, p. A-1,2. The Trial Court



7

and the Court of Appeals have in every instance made 
comment on the speed and good faith efforts of the 
Board to dismantle the dual system and comply fully 
with every requirement made by the Courts in the 
various steps of integration.

A  12-year “ stair-step” desegregation plan was ap­
proved by the Trial Court in 1963. Immediately after 
the Court of Appeals rendered its opinion in 1963 
[313 F.2d 284], the Board advised the Court that it 
desired to waive further appeal and requested that the 
mandate issue in order that the Board could immedi­
ately effectuate and accelerate its own plan of integra­
tion. The Board voluntarily accelerated the “ stair­
step” plan approved by the Court in the following 
manner. In 1964-65 the kindergarten, the 1st and 2nd 
grades and Trimble Technical High School were de­
segregated. In 1965-66 grades 3 through 6 were de­
segregated. In 1966-67 grades 7 through 9 were de­
segregated. In 1967-68 all remaining grades, viz. 10- 
12, were desegregated. From and after said dates no 
student has been denied the right to attend any ele­
mentary, middle school or high school because of race, 
color or location of his home.

This case was not called to the attention of the 
Trial Court from 1963 to 1970, during which period 
the voluntary acceleration of the integration plan was 
effected as pointed out above. Following the 1970 hear­
ing [333 F.Supp. 711] the Trial Judge referred to the 
1961 hearing noting that:

“ At the time of the trial [1961], the school board 
had to resist integration to avoid losing [accredi­
tation] state school funds for the system and fines



8

against the board members under Article 2900a. 
It put up a good faith fight; but since the matter 
was decided by the courts, it has sincerely, earn­
estly and effectively tried to effectuate as soon as 
possible a unitary school system devoid of racial 
discrimination. There has been no dragging of 
feet or delay in making a genuine effort as there 
was in Monroe v. Board of Commissioners of City 
of Jackson, 1968, 391 U.S. 450, 88 S.Gt. 1700, 20 
L.Ed.2d 733.” [333 F.Supp. 711, p. 713 (N.D. 
Tex. 1970)]

The desegregation plan begun in 1963, and volun­
tarily accelerated to completion in 1967, included all 
grades and all programs as the Trial Judge in his 1970 
opinion observed:

“ * * * Since that time [1967], the school district 
has been operated as a bona fide unitary system, 
devoid of racial discrimination as to students, 
faculty, administrative staff and personnel, em­
ployees, athletics and other extracurricular ac­
tivities and programs, and facilities. All that has 
been done smoothly and without fanfare through 
the earnest co-operation of members of all races, 
without hatred and the kind of trouble and tur­
moil that has been much too common in the past 
few years.”  [333 F.Supp. 711, p. 714 (N.D. Tex. 
1970)]

No Party Plaintiffs

An unusual feature of this case is that we do not 
have a single student, black, white or brown nor a tax­
payer or parent that is a party to this suit.

The original petition filed in 1959 recited that there 
were two black families, Flax and Teal, as parties-



9

plaintiff. Teal testified he was prosecuting this case 
on behalf of his own children and not for any other. 
Flax was silent on this point. The two black families 
have long since moved out of the picture, and no other 
children have been made parties. In the Trial Court 
and in the Court of Appeals we have repeatedly urged 
that there is not a single student, white, black or 
Mexican-American, nor is there a single parent or 
taxpayer in Fort Worth that is a plaintiff to this 
suit. The Trial Judge was correct when he found “ that 
the NAACP (of New York) has been the real plain­
tiff all along.” [Appendix B, p. A-15, Footnote 3]

We have no Negro plaintiffs as found in all of the 
other desegregation cases. In fact, we have no plain­
tiffs. Only the NAACP of New York is prosecuting 
this case. This organization is not a party to this suit, 
has no justiciable interest, and is without authority to 
prosecute a class action. It has no standing. Flast v. 
Cohen, 392 U.S. 83, 20 L.Ed.2d 947, 961, 88 S.Ct. 
1942 (1968)

From Brown through J efferson to Swann

On page 1 of the opinion of the Court of Appeals 
under date of July 14, 1972, we find the following 
language:

“ At the outset, we commend the Superintendent 
and the members of the Board for their dedica­
tion to their heavy responsibilities and their good 
faith voluntary efforts to desegregate and elimin-

1Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 
686, 98 L.Ed. 873.

2U.S. v. Jefferson County Board of Education, 5 Cir., 1966, 372 F.2d 
836.



10

ate inequality in the school system. Moreover, 
they have cooperated in every way with the dis­
trict court, including the formulation of a plan 
and the appointment of a bi-racial committee. On 
the other hand, the Appellants’ objections have 
been numerous but their contributions have been 
negligible. [Appendix A, p. A -l, 2]

*  * *

“ Since that original court-ordered desegregation, 
[1963] the Board has traveled alone in the in­
tegration process. The Board has undertaken its 
obligations largely by the voluntary implementa­
tion of self-designed integration plans developed 
to keep the school district abreast of judicial pro­
gress toward equality in educational opportunity, 
from Brown I through Jefferson County, and fin­
ally to Swann”  [Appendix A, p. A-3]

This lone journey traveled by the Board included the 
desegregation of the following: facilities, transporta­
tion, athletics, extracurricular activities, school con­
structions, transfer policy, bi-racial committee, closing 
of both white and black schools, recruitment of black 
teachers and administrators, merit system of promo­
tion with objective standard test, maximum use of 
both state and Federal programs together with all 
other criteria suggested by the decisions of this Court 
and other Appellate courts, a teacher assignment ratio 
of 22% black, 78% white, being the exact ratio of 
the white-black teachers employed by the district. All 
of this has found approval of the Department of 
Health, Education and Welfare, as well as in every 
hearing before the Trial Court and the appeal before 
the Fifth Circuit. Concerning the integration of stu­
dents, the following tools have been employed:



11

1. Busing. The district presently operates approxi­
mately 160 buses.

2. Clusters. Attendance assignments have been 
made deliberately to accomplish the transfer of Negro 
students out of formerly segregated Negro schools and 
transfer white students to formerly all Negro schools.

3. Gerrymandering. To accomplish greater inte­
gration.

4. Equal Distant Zoning. Designed to bring about 
more integration of both black and white.

5. Closing of Schools. 8 white and 6 black.

6. Transfer Policy. Majority-to-Minority with free 
transportation as suggested in Swann.

The opinion of the Court of Appeals makes it abun­
dantly clear that the Court is satisfied with the accom­
plishments of the Board except as they relate to 16 
schools which the Court has designated as “ 16 unjusti­
fied all-black, one-race schools.”

The effective date of the Court’s order was fixed as 
of the beginning of the school term 1972-73. On July 
27, 1972, in response to a Motion to Stay, the Court 
entered an order extending the effective date as fol­
lows:

“ The last sentence of the opinion dated July 14, 
1972, is amended to read, T his shall be accom­
plished so that it may be put into effect for the 
second semester o f the 1972-73 school term.’ ” 
[Appendix A, p. A-12]



12

The Schools Involved

It is important to analyze these 16 schools, for it is 
not enough merely to observe that they are predom­
inantly one race. They fall into the following cate­
gories :

1. One elementary school, McCoy, was closed at the 
end of the 1971-72 school year and its pupils assigned 
to predominantly white schools beginning 1972-73.

2. Two middle schools, Como and Dunbar, are ex­
pected to have a substantial racial mix as a result of 
the operation of the cluster plan adopted in 1971-72. 
The exact determination of this fact can only be made 
after the beginning of the fall term August 24, 1972.

3. One high school, Terrell, a vocational school is 
open to all students in the district. It has no attend­
ance area other than the area of the entire district. 
No students are assigned to this school. This is not a 
neighborhood school. The students attend this school 
because they are desirous of obtaining a vocational 
education. A t Terrell the students receive vocational 
training designed to teach them how to earn a living 
after graduation. The training there is not offered at 
any other school in the district. Trimble Tech is a 
technical school and by reason of its crowded condi­
tion, it is not prepared to receive additional students. 
In the next place, the two schools offer different types 
of courses. Trimble is a technical school while Terrell 
is a vocational school. The remaining 11 high schools 
in the system offer academic courses. Terrell is now 
filled to capacity. Additional students could not be 
moved in without transferring students that are pre­



13

sently in attendance. To transfer students from Ter­
rell is to deprive them of an opportunity for a voca­
tional education.

4. Eight elementary schools, Dillow, Mitchell Blvd., 
Eastland, A. M. Pate, Momingside, R. Vickery, E. 
Van Zandt and Carroll Peak, and one middle school, 
Morningside, which gradually changed from predom­
inantly white to predominantly black or were in a pe­
riod of transition since this case has been pending, as 
a result of changes in the racial composition of the at­
tendance areas serving such schools, said changes not 
having been brought about by any public or private 
discrimination, but rather by the very fact of elimina­
tion of racial discrimination in both housing and 
schools.

5. Two elementary schools, Dunbar and Carver, 
and one high school, Dunbar, that are predominantly 
black because of residential patterns of the commun­
ity which were not caused or continued by any public 
or private discrimination but by the desire of Negroes 
to live in their own neighborhoods rather than pre­
dominantly white neighborhoods.

Effects of Judgment of the Court of Appeals

On the 17th day of July, 1972, three days after the 
Court rendered its decision under date o f July 14, 
1972, the Board estimated that from 70 to 80 buses 
would be required to implement the Court’s order. 
Since that time more detailed study has been given to 
the subject and it is now estimated:

1. That 233 additional buses will be required.



14

2. That the acquisition cost of the buses would be 
$2,376,600.

3. That the operating cost for the first year will 
amount to approximately $1,461,600.

The district does not have the money and there is 
no way that it can get it. The order of the Court would 
impose an undue hardship on the Board.

4. That 233 additional drivers will have to be 
found, employed and trained.

5. That 4,800 miles will be traveled by the buses 
each day which will involve a minimum of travel time 
on the streets of the City of Fort Worth of 287 hours 
daily.

6. The longest distance that will be traveled by any 
student is 35 miles each way per day. The round trip 
will be 70 miles. This will involve students in the 9th 
grade. The longest time required for a student to re­
main on a bus will amount to 1 hour 10 minutes each 
way, or a total of 2 hours and 20 minutes each day. 
This will involve children in the 2nd grade.

THE QUESTIONS ARE SUBSTANTIAL

1. The Court of Appeals in its July 14, 1972, op­
inion has read into the Equal Protection Clause a com­
plete paradox. Following the voluntary acceleration of 
the desegregation plan, 4 schools, Dillow, Mitchell 
Blvd., Eastland, and Pate, changed from all white to 
predominantly black between 1963 and 1970. Four 
other elementary schools; namely, Morningside, Vick­
ery, East Van Zandt, Carroll Peak and Morningside



15

Middle School, have been in the process of changing 
from all white to predominantly black over a period 
of some 12 years. In neither instance have such 
changes been brought about by any action on the part 
of the Board or any other state agency, other than 
the affirmative action on the part of the Board to 
dismantle the old dual system. The Trial Judge said:

“ They have become predominately black as a re­
sult of desegregation instead of segregation.” 
[Appendix B, p. A-39]

Now the Court of Appeals is directing the Trial Court 
to require the Board to desegregate these schools a 
second time. This is integration in reverse. This par­
ticular fact situation is, so far as our research dis­
closes, one of first impression in this Court and we 
think that it is a question which should be settled by 
this Court.

2. A  second serious Federal question is presented 
by the Order of the Court below which directs the 
Trial Court to require the Board to deprive black stu­
dents of their right to attend Terrell High School and 
obtain a vocational education from which they may 
earn a livelihood. The order of the Court below would 
require that a sizeable number of the students in Ter­
rell would be bused to non-vocational high schools 
which would deprive these students of an opportunity 
to obtain a vocational education. This is a question 
which should be settled by this Court.

3. I f 88% of student integration is not a sufficient 
mixture, what percentage in terms of numbers will 
be exacted by the Courts?



16

4. Out of 117 schools in the system, four will re­
main predominantly black. Is this number unconsti­
tutional?

ARGUMENT

The uncontroverted testimony of the Superinten­
dent [Tr. 1971, p. 16, 17] and the findings of the Trial 
Judge [Appendix B, p. A-14] definitely establish that 
the schools in Fort Worth are genuinely nondiscrimina- 
tory. This conclusion has not been challenged. It has 
been ignored by the Court below contrary to Rule 52, 
F.R.C.P. The facts are that the Board voluntarily 
dismantled the dual system and that 8 elementary 
schools and one middle school changed from white to 
black through no effort on the part of the Board.

The unsound assumption of the Court below that 
the Board made no attempt to show that the schools 
were genuinely nondiscriminatory finds no support in 
the Record.

The Trial Court found as a fact:
“ The question of conversion to a racially unitary 
system is no longer in issue, as the school authori­
ties voluntarily ordered complete desegregation of 
the system beginning with the 1967 fall term.”  
[Appendix B, p. A-14]

Swann said:
“ The constitutional command to desegregate 
schools does not mean that every school in every 
community must always reflect the racial com­
position of the school system as a whole.”  [28 L. 
Ed.2d at p. 571]



17

The testimony of the Superintendent supports the 
findings o f the Trial Court that the changes were the 
result of demographic alterations in this highly mobile 
community rather than the result of any official ac­
tion.

Terrell High

No student is assigned to Terrell High School. It 
is system wide. It is equipped with expensive tools 
and machinery for vocational training. It is manned 
by teachers with specialized teaching skills. It is avail­
able to every high school student in Fort Worth. The 
student body is composed of boys and girls who have 
an ambition to learn a vocational trade which will en­
able them to find a job after graduation. Must this 
group of boys and girls sacrifice their civil rights or 
be deprived of a vested right to attend the free public 
schools financed by taxes simply because they are 
black in order to obtain a racial balance?

“ . . . the State cannot condition the granting of 
even a privilege upon the renunciation o f the 
constiutional right to procedural due process.” 
Dixon v. Alabama State Bd. of Educ., 294 F.2d 
150

Three Black Schools

The present plan of the Board leaves Carver Ele­
mentary, Dunbar Elem entary and Dunbar High 
School predominantly black.

On page 572, Swann said:

“ In some circumstances certain schools may re­
main all or largely of one race until new schools



18

can be provided or neighborhood patterns change. 
. . .  In light of the above, it should be clear that 
the existence of some small number of one-race, 
or virtually one-race, schools within a district is 
not in and of itself the mark of a system which 
still practices segregation by law.”

The evidence is, and the Trial Court found:
“ There are several areas in widely scattered parts 
of Fort Worth which have heavy concentrations 
of Negroes; but that residential population pat­
tern is something that lies beyond the jurisdic­
tion of the school authorities.” [Flax v. Potts, No. 
4205, July 30, 1971 (unpublished) Appendix B, 
p. A-38]

*  * *

“ The school authorities have the burden ‘to satis­
fy  the court that this [all or predominantly one- 
race schools] racial composition is not the result 
of present or past discriminatory action on their 
part.’ Swann, 28 L.Ed.2d, at 572. The Court has 
carefully scrutinized the situation in regard to 
the schools in question, and is of the opinion that 
the school authorities have discharged that bur­
den. The evidence shows beyond question that the 
racial imbalance in these few schools is due to 
neighborhood residential patterns, and not to 
state-enforced segregation.”  [Appendix B, p. 
A-39]

This Court held in Swann:
“ Remedial judicial authority does not put judges 
automatically in the shoes of school authorities 
whose powers are plenary. Judicial authority en­
ters only when local authority defaults.”  [p. 566]
“ It does not follow that the communities served 
by such systems will remain demographically



19

stable, for in a growing, mobile society, few will 
do so. Neither school authorities nor district 
courts are constitutionally required to make year- 
by-year adjustments of the racial composition of 
student bodies once the affirmative duty to de­
segregate has been accomplished and racial dis­
crimination through official action is eliminated 
from the system.”  [p. 575]

Como and Dunbar

The cluster plan adopted in 1971 is designed to 
bring about a proper mix o f these two schools.

McCoy

This elementary school was closed at the end of 
1971-72 term and the students have been assigned to 
a fully integrated school.

First Grade
l

In its eagerness to require total integration of 
every black school in Fort Worth, the Court below ig­
nored the testimony of the Superintendent and the 
findings of the Trial Judge. They were dealing with 
and concerned with small children of a tender age 
while the Court below was dealing with and concerned 
only with abstractions. The Superintendent testified 
concerning the feeling of security for the little boys 
and girls entering school for the first time. Not all 
children attend kindergarten. He further expressed 
concern of the anxieties of the mothers for their chil­
dren who are leaving home for the first time and in 
the event of illness or any other problems, the mother 
would be close at hand. The school authorities and the



20

Trial Judge thought this approach to be educationally 
sound. The order of the Court below would require 
that the children be bused. The facts are that many of 
these children will be bused from 10 to 20 miles from 
their homes. The first grade students are dismissed 
from school at noon or shortly thereafter while the 
other chidren who will ride the same bus are not dis­
missed from school until three or four o’clock. This 
presents only one of the many practical and serious 
problems. The position of the Court below is unreal­
istic and legally untenable.

Section 803 Education Amendments of 1972

The inevitable result o f the holding of the Court of 
Appeals, if  not reversed by this Court, would require 
the District Court to enter an order requiring trans­
fer and transportation of students from school attend­
ance areas prescribed by competent authority for the 
purpose o f achieving a balance among students with 
respect to race. Under Section 803 of the Education 
Amendments of 1972, the implementation of such an 
order must be put off until final appellate review had 
occurred. This the Court of Appeals has failed to 
recognize in ordering it to occur at mid-term 1972-73.

Undue Burden

1. The order of the Court below would cast an un­
due burden on the students, the parents, the teachers, 
the administrative staff, the Board and the taxpayers.

2. The disruption to the educational program would 
be disastrous.



21

3. The financial burden would be insurmountable.

4. The public interest would not be served.

5. The Trial Court said:
“ This opinion ought to show on its face that the 
Court has given careful and detailed study to the 
school problem here involved in an effort to meet 
its responsibility under Swann to mould a ‘reason­
able, feasible and workable’ plan ‘to the neces­
sities of the particular case.’ The Court feels that 
the proposed plan, with the modifications herein 
mentioned, meets the test of operating under a 
racially unitary system with all vestigial effects 
of state-enforced discrimination eliminated. There 
is nothing in any of the cases that indicates that a 
school district has to be left in shambles to meet 
this test.”  [Appendix B, p. A-41]

COOPERATION REJECTED

In its brief (p. 33) filed in the Court below, the 
Board suggested:

“ The Courts and the Board are not adversaries. 
How best to achieve quality integrated education 
should be the question. The integrity of the Board 
and the Courts must be maintained.”

This proffer o f cooperation by the Board was com­
pletely rejected by the Court below. It was unwilling 
to work with the Board in its effort to continue an 
orderly program “ to the necessities of the particular 
case.”  [Swann, p. 566]

Since there are no parties-plaintiff, the Court as­
sumed the role of adversary. It repudiated the Board 
and the experienced Trial Judge (whose experience,



22

competence and integrity compares favorably with any 
member of the Federal judiciary). The Court below 
was composed of a panel of three judges. It was not 
an en banc decision. This panel followed the conten­
tions urged by the activists, the NAACP of New York. 
It will be remembered that we pointed out above that 
this organization is not a party to this suit. It does not 
represent a client and it has no standing. Yet, the 
panel allied itself with this group, and blindly followed 
its contentions. It completely repudiated the Board, 
the school officials, the Trial Judge and the people 
who live in Fort Worth. Children are involved, black, 
white and brown. Fathers and mothers are anxious. 
A  sincere Board is genuinely concerned. The only 
relief is for this Court to grant a writ.

CONCLUSION

W HEREFORE, the Board prays the Court to grant 
a writ of certiorari and that the judgment of the Court 
of Appeals be reversed and that the judgment of the 
Trial Court be affirmed.

Respectfully submitted,

CECIL A. MORGAN and
DAVID B. OWEN

2108 Continental Life Building 
Fort Worth, Texas 76102

By
Cecil A. Morgan 

Counsel for Board of Education



23

CERTIFICATE OF SERVICE

I hereby certify that on th e/I  day o f August, 1972, 
I served two copies of the foregoing Petition for W rit 
o f Certiorari upon William L. Robinson, Esq., Coun­
sel for Respondents, 10 Columbus Circle, Suite 2030, 
New York, New York 10019, by air mail, postage pre­
paid, and one copy upon Clifford Davis, Esq., Counsel 
for Respondents, 914 East Rosedale, Fort Worth, 
Texas 76104, by regular U. S. Mail, postage prepaid. 
I further certify that I have also served one copy of 
the foregoing Petition for W rit o f Certiorari upon 
David L. Norman, Esq., Assistant Attorney General, 
Civil Rights Division, United States Department of 
Justice, Washington, D. C. 20530, and Frank D. Mc- 
Cown, Esq., United States Attorney, United States 
Courthouse, Fort Worth, Texas 76102, Counsel for 
Amicus.

Cecil A. Morgan



A-l

IN THE
United States Court of Appeals 
FOR THE FIFTH CIRCUIT

N o .  7 1 - 2 7 1 5

ARLEN E FLAX, ET AL, Plaintiffs-Appellants,
versus

W. S. POTTS, ET AL, Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District of Texas

(July 14, 1972)

Before GEWIN, GOLDBERG and DYER, 
Circuit Judges.

DYER, Circuit Judge: Following Swann v. Char- 
lotte-Mecklenburg Board of Education,1 we remanded 
this case with directions that the District Court re­
quire the school board to forthwith constitute and 
implement a student and faculty assignment plan that 
would comply with the principles established by that 
decision. Flax v. Potts, No. 30495, June 15, 1971 (un­
published) [Flax I]. Subsequently the desegregation 
plan submitted by the Board was approved by the 
district court on July 30, 1971 and was implemented 
during the current school term. Appellants object to 
the plan as failing to achieve compliance with Swann.

At the outset, we commend the Superintendent and
U971, 402 U.S. 1.



A-2

the members of the Board for their dedication to their 
heavy responsibilities and their good faith voluntary 
efforts to desegregate and eliminate inequality in the 
school system.* Moreover, they have cooperated in 
every way with the district court, including the for­
mulation of a plan and the appointment of a bi-racial 
committee. On the other hand, the appellants’ objec­
tions have been numerous but their contributions have 
been negligible. We must, nevertheless, once again re­
mand the case because the record affirmatively shows 
that the plan has not yet fully established a unitary 
school system.

While the plan is effective in achieving a substantial 
amount of integration in the Fort Worth Independent 
School District, it falls short of meeting the mandate 
of Swann that all vestiges of state-imposed segrega­
tion be eliminated from the public schools. Swann, 402 
U.S. at 15. This is because of the existence in the 
school system, during both the 1970-71 and 1971-72 
school years, of 16 unjustified virtually all-black, one- 
race schools, relegating almost 12,000 of the approxi­
mately 21,000 black public school students in Fort 
Worth to a constitutionally proscribed segregated ed­
ucation.

The eleven year journey of the Fort Worth In­
dependent School District along the path of school de­
segregation was begun in 1961 when the first action 
in this protracted litigation sought an end to com­
pulsory segregation in the school system. In 1962 the
'This court held a prehearing conference with the attorneys for the 

parties and invited the litigants to appear pursuant to FRAP Rule 
33. Counsel for appellants and appellees and members of the Board 
of Education were present at the prehearing conference.



A-3

District’s dual school system was held to be uncon­
stitutional and the Board was ordered to file a plan 
for desegregation. Flax v. Potts, N.D. Texas 1962, 
204 F.Supp. 458, affd  Potts v. Flax, 5 Cir. 1963, 313 
F.2d 284. In 1963 the Board complied and the court 
approved a stair-step desegregation plan calling for 
the gradual, grade by grade integration of the Fort 
Worth schools. Since that original court-ordered de­
segregation, the Board has traveled alone in the in­
tegration process. The Board has undertaken its ob­
ligations largely by the voluntary implementation of 
self-designed integration plans developed to keep the 
school district abreast of judicial progress toward 
equality in educational opportunity, from Brown I 2 
through Jefferson County,3 and finally to Swann. Fol­
lowing that decision, we found it necessary here, as 
in many of the school desegregation cases then pend­
ing before us, to direct the school board to revise its 
student assignment plan to meet its clearly defined 
constitutional obligations. They are the focus of this 
appeal.

We deal only with appellants’ objections to the 
court-approved student assignment plan. While an 
objection was made on appeal to the Board’s alleged 
failure to comply with our directive in Flax I that the 
decisions in Singleton4 and Carter5 be followed with
-Brown v. Board of Education, 1954, 347 U.S. 483.
3United States v. Jefferson County Board of Education, 5 Cir. 1966, 372 

F.2d 836, affd  on rehearing en banc, 1967, 380 F.2d 385, cert, 
denied sub nom. Caddo Parish School Board v. United States, 389 
U.S. 840.

4Singleton v. Jackson Municipal Separate School District, 5 Cir. 1970 
419 F.2d 1211.

5Carter v. West Feliciana Parish School Board, 5 Cir. 1970, 432 F 2d 
875.



A-4

reference to faculty assignment, appellants have not 
replied to the submission of the Board that our direc­
tive has been followed for the 1971-72 school term. We 
therefore pretermit discussion of that contention.

The School System

During the school years 1970-71 and 1971-72, there 
were 117 public schools in operation in the Fort Worth 
Independent School District, 78 as elementary schools, 
20 as middle or junior high schools, and 15 as high 
schools. In 1970-71, there were 88,313 scholastics in 
the system, as compared with 84,311 during the 1971- 
72 term. While the population of Spanish-surnamed 
students in the system has remained fairly constant 
over this period (9 .5 % ), the ratio of black to white 
children in the schools has varied from 27% - 64% in 
1970-71, to 29% - 61% in 1971-72.

Since before 1954 school attendance zones and stu­
dent assignments in the district were based upon a 
neighborhood school policy at each educational level, 
with the following exception. Prior to 1967, the school 
district was divided, although on a neighborhood basis, 
into “ White”  and “ Black”  districts. Generally, the sys­
tem was composed of overlapping dual attendance 
zones in which each neighborhood was simultaneously 
in a white zone and a black zone. Where, however, 
blacks resided in a zone in which there was no black 
school, the black children were required to attend 
school out o f their neighborhood zone at the nearest 
all-black school. The same was true of white children 
who lived in a predominantly black neighborhood in 
which there was no white zone or white school.



A-5

In 1967, this dual zoning was eliminated and a true 
neighborhood school plan implemented. Because, how­
ever, of marked residential separation of races in Fort 
Worth, little integration was accomplished by this revi­
sion in student assignment.

The Court-approved Plan

The first step in the Board’s Comprehensive Plan 
was to adopt new elementary school attendance zones 
based on equidistant boundaries wherever predomi­
nantly black and predominantly white schools were 
contiguous. The minor adjustment in boundary lines 
occasioned by this change resulted in approximately 
300 black children being moved into predominantly 
white schools.

The most significant provision of the new student 
assignment plan was the creation of elementary school 
“ clusters”  to include 27 of the District’s 78 elementary 
schools. Each cluster consists of from three to seven 
schools operated as a unit, bringing together all black 
and white schools within its boundary and distributing 
their enrollment among the various facilities to 
achieve a ratio of black to white students that approxi­
mates the district-wide ratio. The 27 schools involved 
in the cluster plan included 11,000 students, 8,203 
white and 2,797 blacks. There are 9,259 black elemen­
tary students presently enrolled in the Fort Worth 
Independent School District.

Finally, the Board’s plan ordered the closing o f pre­
viously all black Kirkpatrick and Terrell middle 
schools, the closing of previously all black Como and



A-6

Kirkpatrick high schools, the reassignment of all those 
students thereby affected to integrated facilities, and 
the adoption of a majority-to-minority transfer pro­
gram.

The appellants’ objection to the plan is its failure 
to eliminate the one-race schools that exist in the Fort 
Worth Independent School District. During the 1971- 
72 term, the Board operated 11 all-black (88%  or 
more black) elementary schools,6 two all-black high 
schools,7 and three all-black middle schools.8 There 
are 40 all-white schools in the system.9

All Black Schools

The existence of 11 all-black, one-race elementary 
schools in the 1971-72 term supported a segregated 
education for 6,415 of the district’s 9,259 elementary 
age black children. These schools are not a part o f the 
cluster program. Appellants seek their inclusion, con­
tending that their continued operation as all-black vio­
lates the clear constitutional mandate that racial dis­
crimination in public schools be eliminated “ root and 
branch.”  Green v. County Board of Education, 1968, 
391 U.S. 430, 438.

Swann teaches that the continued existence o f one- 
race schools in a school system with a history of state-
fiMomingside (99% black enrollment), R. Vickery (99% black), Dillor 

(90%), Mitchell Blvd. (85%), Eastland (88%), McCoy (100%), 
Dunbar (99%) Carver (99%), A. M. Pate (99%), E. VanZandt, 
(99%), and Carroll Peak (99%).

7I. M. Terrell High (100% black), and Dunbar (100% black).
8Dunbar Middle School (99.5% all black), Como Middle (100% black), 

and Momingside Middle (99.9% black).
931 all-white elementary schools, 7 all-white middle schools, and 2 all- 

white high schools.



A-7

supported segregation is presumptively discrimina­
tory, and places upon school authorities the obligation 
of showing that such schools are “ genuinely nondis- 
criminatory.”  Swann, supra, at 26. There is no at­
tempt here by the Board to make such a showing. 
Rather, the Board contends that it has no constitu­
tional obligation to dismantle these all black schools 
because their racial composition occurred as a result 
o f shifting residential patterns since the district’s 
establishment in 1967 of what it maintains was a 
unitary school system. The Board seeks refuge in lan­
guage from Swann, in which the Court said that:

. . . Neither school authorities nor district courts 
are constitutionally required to make year-by­
year adjustments of the racial composition of stu­
dent bodies once the affirmative duty to desegre­
gate has been accomplished and racial discrimina­
tion through official action is eliminated from 
the system.

Id. at 26.

But this language does not fit this case. There has 
never been a constitutionally adequate compliance by 
the district with its affirmative duty to create a truly 
unitary school system. Before and after 1967, nine of 
the eleven elementary schools were and are now vir­
tually all-black schools. The vestiges of state-imposed 
segregation had in no significant manner been elim­
inated from the assignment of elementary school stu­
dents. Likewise, the all black middle and high schools 
further reflected, and continue to reflect, adversely 
on the existence of a unitary school system. Thus, 
there was in 1967 no “ elimination of racial discrim­



A-8

ination through official action,” which is basic to the 
Court’s suggestion in Swann that at some point in 
time the obligation to desegregate ends.

In speaking of the all black school, this Court has 
said that “ where all-black or virtually all-black schools 
remain under a zoning plan, but it is practicable to 
desegregate some or all of the black schools by using 
the tool of pairing, the tool must be used.”  Allen v. 
Bd. of Education of Broward County, 5 Cir. 1970, 432 
F.2d 362, 367. We have closely examined the location 
o f the elementary schools in Fort Worth and find that 
it is both simple and practicable to include these all­
black, one-race elementary schools in the cluster pro­
gram. Indeed, they must be included, or an equally 
effective alternative remedy devised for the district 
to meet its constitutional obligation. See Boykins v.
Fairfield Bd. of Education, 5 Cir. 1972,........F.2d.........
[No. 71-3028, February 23, 1972],

We have considered the Board’s arguments to justi­
fy  the existence o f the virtually all black middle 
schools and high schools. Over 50% of the district’s 
black middle school students, 2780 of 5547 attend 
three all-black middle schools (Dunbar, Como, or 
Morningside). Over 40% of the district’s black stu­
dents of high school age, 2522 of 6090, attend two all­
black high schools. The Board’s plea that the location 
o f Dunbar High School in an “ exclusive black neigh­
borhood” , and the technical school nature of Terrell, 
gives justification for their imbalance, is not per­
suasive. We leave to the district court’s determination 
whether, as has been represented to us, two o f the 
three all-black middle schools will become integrated



A-9

following their inclusion in cluster feeder plans in the 
1972-73 school term. Otherwise, the student assign­
ment plan must be revised to eliminate racial identifi- 
ability in these junior and senior high schools.10

Grades K -l

Another prong of appellants’ objection to the Com­
prehensive Plan approved by the trial court is the non­
inclusion of kindergarten and first grade students in 
the cluster program. We find no justification for the 
non-inclusion of first grade students. They are part 
o f the normal curriculum of the district and entitled 
to a full and equal integrated education. We believe, 
however, that because of the peculiarities of the kin­
dergarten program, the limited nature of its opera­
tion, and the tender age and special needs of its stu­
dents, its elimination from the over-all student assign­
ment plan is neither unreasonable nor constitutionally 
impermissible. See Lockett v. Bd. of Educ. of Mus­
cogee County, 5 Cir. 1971, ........  F.2d ........  [No. 71-
2490, August 30, 1971]. The kindergarten pupils will 
therefore continue to attend the elementary school 
nearest their home conducting a pre-school program. 
However, for the parents of those children who so 
elect, the majority-to-minority transfer provision of 
the Comprehensive Plan must be extended to the pre­

10Based upon enrollment statistics submitted to us by the school board, 
our determination that only 21,000 blacks are enrolled in the school 
system is somewhat at variance with the staistics which indicate 
that in the year considered, 1971-72, there were some 24,000 black 
students in the system. We have simply added the total enrollment 
of blacks in each school in the district listed on Board’s Exhibit 3. 
W e note these disparities but we find them not to be significant 
to this discussion.



A-10

school level to make the pre-school program in any ele­
mentary school in the district available, provided the 
parent can arrange for the transportation of his child 
to that facility.

New Construction and Renovation

In our original remand of this case following 
Swann, we directed the district court to enjoin the 
school board from “ proceeding with the construction 
o f a school that would be predominantly black.”  Flax 
I, supra. The order was designed specifically to pre­
vent the construction of Morningside High School in 
a predominantly black area of Fort Worth. Relying 
upon assurances of the Board that it would comply 
with our directions, the district court has not issued 
such an injunction. We see no need for such an order 
in light of the good faith assurances by the Board to 
the court that such construction will not occur. Swann 
makes it clear that “ in devising remedies where legal­
ly imposed segregation has been established, it is the 
responsibility of local authorities and district courts 
to see to it that future school construction and aban­
donment are not used and do not serve to perpetuate 
or re-establish the dual system.”  Swann, supra at 21. 
The district court is charged with exercising continu­
ing supervisory jurisdiction over the system and re­
sponsibility rests with it and the Board to insure re­
spect for our decree against construction of segregated 
facilities.

The judgment of the district court is reversed and 
the case is remanded to the district court with direc­
tions that the plan be modified and extended to comply



A -ll

with the principles announced in Swann as amplified 
by this opinion. This shall be accomplished so that it 
may be put into effect for the 1972-73 school term.

REVERSED and REMANDED W ITH 
DIRECTIONS.



A-12

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 71-2715

ARLENE FLAX, ET AL, Plaintiffs-Appellants,
versus

W. S. POTTS, ET AL, Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District of Texas

Before GEWIN, GOLDBERG and DYER, 
Circuit Judges.

BY THE COURT:

The alternative motion o f the appellees to defer the 
effective date to accomplish the directions of this 
Court on remand to modify and extend the present 
plan is GRANTED.

The last sentence of the opinion dated July 14, 1972 
is amended to read,

“ This shall be accomplished so that it may be 
put into effect for the second semester o f the 
1972-73 school term.”



A-13

United States Court of Appeals
FIFTH

EDW ARD W. W ADSW ORTH
C L E R K

ROOM 408-400 ROYAL ST 
NEW ORLEANS. LA. 70130  

(504) 527-6514
OFFICE OF THE CLERK

July 28, 1972

TO ALL PARTIES LISTED BELOW

Re: No. 71-2715 —  Arlene Flax, et al, vs. W. S. 
Potts, et al

Gentleman:

You are hereby advised that the Court has today en­
tered an order denying the Petition ( ) for Rehear­
ing in the above case. No opinion was rendered in 
connection therewith. See Rule 41, Federal Rules of 
Appellate Procedure for issuance and stay of the man­
date.

Very truly yours,

Edward W. Wadsworth,
Clerk

By / s /  Alvis M. Winchester 
Deputy Clerk

/am w
cc: Mr. Cecil Morgan

Mr. L. Clifford Davis 
Messrs. Wm. L. Robinson 

Norman J. Chachkin



A-14

APPENDIX B

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION

CIVIL ACTION NO. 4205

ARLENE FLAX, ET AL 
VS.

W. S. POTTS, ET AL

MEMORANDUM OPINION

This class action was filed years ago to bring about 
desegregation o f the school system operated by the 
Fort Worth Independent School District. The ques­
tion of conversion to a racially unitary system is no 
longer in issue, as the school authorities voluntarily 
ordered complete desegregation of the system begin­
ning with the 1967 fall term.1 The only matter now 
before the Court is whether the mechanics of imple­
mentation in regard to faculty and student body 
satisfy the requirements of cases decided after the 
conversion to the unitary system.

This school system was being operated under a 
stair-step plan of desegregation put into effect under 
court order at the start o f the 1963 fall school term 
when the Fifth Circuit decided United States vs. 
Jefferson County Board of Education, 380 F. 2d 385
1Singleton v. Jackson Municipal Separate School Dist., 5 Cir., 419 F. 
2d 1211, 1217 (1970).



A-15

(1967).2 The school board, which had been accelerat­
ing the stair-step plan beyond court-order require­
ments each year, reacted promptly to the decision in 
the Jefferson County case by ordering complete con­
version to a racially unitary system beginning with 
the 1967 fall school term. Since that time, the school 
district has been operated as a bona fide unitary sys­
tem devoid of racial discrimination as to facilities, 
students, faculty, administrative staff and personnel, 
other employees, athletics and other extracurricular 
activities and programs.

The mechanics of the operation of the unitary sys­
tem met no serious opposition from the plaintiffs3

2Some of the language used in the summary of the background facts 
in this memorandum is taken from one or the other of two prior 
memorandum opinions in this case written by the author hereof. See 
opinion dated March 1, 1962, Flax v. Potts, 204 F. Supp. 458, and 
opinion dated August 28, 1970, 333 F. Supp. 711. That language is 
repeated herein without the use of quotation marks. The findings of 
fact in such of the language of the prior opinions as is brought forward 
here have not been questioned. Some of the background facts in the 
present opinion are based upon judicial notice of prior proceedings in 
this case. (Romero v. Frank’s Casing Crew & Rental Tools, Inc., D.C. 
La., 229 F. Supp. 41, affirmed, 342 F. 2d 999; Traders & Gen. Ins. Co. v. 
Rhodebarger, Tex.Civ.App., 109 SW 2d 1119, err. dis.), of census 
figures (600 California Corp. v. Harjean, D.C. Tex., 284 F. Supp. 843, 
854), and of matters of geography and common knowledge within the 
Court’s jurisdiction (A.T.&S.F. Ry. Co. v. United States, 284 U.S. 248, 
260, 52 S.Ct. 146, 76 L.Ed. 273; Dayton P. & L. Co. v. Public Utilities 
Commission, 292 U.S. 290, 311, 545 S.Ct. 642, 78 L. Ed. 1267, 1281; 
and 600 California Corp. v. Harjean, supra, at pp. 854-55).

3This suit has been on file more than ten years. The original named 
plaintiffs have long since faded out of the case, as have the individuals 
first named as defendants. Continuity has been maintained, however, 
through the fact that all hearings have been held by the judge who is 
the author of this opinion, that the NAACP has been the real plaintiff 
all along, and that Clifford Davis, attorney for the plaintiffs, and Cecil 
Morgan, attorney for the defendants, have served ably in those capaci­
ties continuously from the time of the first hearing in 1961.



A-16

until the school board yielded to the insistence of the 
black people in the Morningside area that it proceed 
to build a high school in their community. The bonds 
had been voted for it when the zone was predom­
inantly white, and the black people who took over oc­
cupancy there in a relatively short period following 
the bond election were insisting that there would be 
racial discrimination against them if the plans for the 
school were abandoned. When the construction of the 
school was ordered in the first part of 1970, the 
NAACP filed a pleading in this action opposing it. 
They also prayed in general terms for “ further re­
lief”  in relation to the implementation of the unitary 
system. This Court felt that the people of the Mom- 
ingside community were entitled to their school for 
which money had been allocated when the residents 
there were predominantly white, and that there was 
nothing wrong with the mechanics of the operation of 
the unitary system under the decisions in effect at 
that time. Judgment was entered accordingly on Au­
gust 28, 1970, and the plaintiffs appealed. That was 
the first appeal in this case since the one from the 
original judgment entered on March 1, 1962.

Swann v. Charlotte-Mecklenburg Board of Educa­
tion,........  U.S........... , 91 S. Ct............, 28 L. Ed. 2d
554 (1971), and the related cases4 were decided while 
the appeal from the 1970 judgment above mentioned 
was pending; and, on June 15, 1971, the Court of

4Davis v. Board of School Commissioner,-------U .S ._____ , 91 S .C t.____ ,
28 L. Ed. 2d 577 (1971); McDaniel v. Barresi,____ U.S. _____ , 91
S .C t.____ , 28 L. Ed. 2d 582 (1971); and North Carolina Board of
Education v. Swann,_____ U.S. ___—_ ,  91 S .C t._____ , 28 L. Ed. 2d
586 (1971).



A-17

Appeals vacated and remanded the 1970 judgment 
only insofar as it related to student and faculty as­
signments and to the construction of the new high 
school, with directions that:

1. The Court should require the school board “ to
constitute and implement a student assignment plan 
and a faculty assignment plan that complies with 
Swann v. Charlotte-Mecklenburg Bo^rd of Educa­
tion, 1971,........U.S............, ........ S.Ct............ , 28 L. Ed.
2d 554 [No. 281, April 20, 1971]; Carter v. West 
Feliciana Parish School Board, 5 Cir., 1970, 432 F. 
2d 875, and Singleton v. Jackson Municipal Separate 
School District, 5 Cir., 1970, 419 F. 2d 1211, insofar 
as they relate to the issues in this case.”  (There was 
no indication as to what, if anything, the Court of 
Appeals thought was wrong with the student body 
and faculty policy then in force, but the matter has 
now been considered anew in the light of the cases 
cited).5

2. The Court should require the school board “ to 
file a semi-annual report during the school year 
similiar to those required in United States v. Hinds 
County School Board, 5 Cir., 1970, 433 F. 2d 611, 
618-619.”

3. The Court should enjoin the school board “ from

5The Court of Appeals took similar action in regard to school cases 
pending on appeal at the time of the landmark decision in Alexander 
v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 
L. Ed. 2d 19 (1969) — “Because of Alexander v. Homes County, each 
of the cases here, as will be later discussed, must be considered anew 
either in whole or in part, by the district courts . . . ”  Singleton v. 
Jackson Municipal Separate School District, 5 Cir., 419 F. 2d 1211, 
1216 (1970).



A-18

proceeding with the construction of any school that 
would be predominantly black.”

A fter the receipt of the mandate, the Court held an 
informal conference with the attorneys for the re­
spective parties. The adjustments necessary to make 
the implementation of the unitary system as to faculty 
and students meet the requirements of the late cases 
cited by the Court of Appeals were discussed at length, 
and the school board was directed to prepare and sub­
mit a plan. The Court was of the opinion that the first 
plan the board thereafter submitted was not ade­
quate0; and entered an order to the effect that if  an 
acceptable, comprehensive plan were not submitted 
within one week thereafter, an outsider would be ap­
pointed to prepare one. The second plan was sub­
mitted within tim e; and, after an all day hearing, the 
Court reached the opinion that it should be adopted 
with the modifications hereinafter set out.

Before going into the merits o f the plan in the light 
of Swann, it is well to notice the difference in the 
backgrounds of the Fort Worth school system and 
those involved in Swann and the related cases. At the 
outset of his opinion in Swann, Chief Justice Burger 
said: “ This case and those argued with it arose in 
states having a long history of maintaining two sets 
of schools in a single system deliberately operated to 
carry out a governmental policy to separate pupils in 
schools solely on the basis of race . . . ”  28 L. Ed. 2d, 
at 560-61, Later in the opinion, he mentioned that 
conversion to unitary systems in the 15 years since 6
6Some members of the school board shied at busing. None of the present 
board members has offered any objection to desegregation.



A-19

Brown II. had been made extremely difficult in many 
places by dilatory tactics and deliberate resistance of 
court mandates.7 There have been no such problems 
with the school authorities in this case. Fort Worth 
has always been more under the influence of the phi­
losophy of the West8 than of the Deep South. As “ The 
City where the West Begins” , it has not had the racial 
problems of its neighbors to the east and south. A 
friendly relationship has existed between the whites 
and the blacks, and there has been no general racial 
bitterness or strife here. A  bi-racial committee of 
white and Negro civic leaders was formed shortly 
after entry of the original judgment in this case in
1962. Under their leadership, all of the public fa ­
cilities in Fort Worth were integrated at the time the 
first school desergregation plan went into effect in
1963. It is true that when this case was first heard, 
the school district had always been operated under 
the dual system. At that time, there was in force in 
Texas a statute which provided that no school author­
ity in this State had the right to abolish the dual 
public school system in its district unless authorized 
by a prior vote of the electors of the district. The 
penalties provided for violation were loss of state 
funds for the school district, loss of accreditation for
7“ . . . Deliberate resistance to some of the Court’s mandates has im­
peded the good-faith efforts of others to bring school systems into 
compliance. The detail and nature of those dilatory tactics have been 
noted frequently by this Court and other courts.” 28 L. Ed. 2d, at 565.

desegregation was welcomed in many school districts in the area of 
Texas beginning a short distance west of Fort Worth. They did not 
have enough Negro pupils to justify a dual system, and the maintenance 
of such a system was an undue financial burden on them. They made 
a complete conversion to a unitary system as soon as the obstacle of 
Art. 2900a was removed.



A-20

the pupils o f the district, and fines ranging from 
$100.00 to $1000.00 for each of the offending school 
authorities.9 By virtue of an opinion of the Attorney 
General of Texas, however, the penalties were not 
being enforced against a school district which de­
segregated pursuant to a court order.10 It was general­
ly understood that the Attorney General had reference 
to an order entered after bona fide, not token, resist­
ance. The school authorities here put up enough resis­
tance in the first trial in 1961 to avoid the possibility 
of the statutory penalties; but as soon as the Court 
of Appeals handed down its decision on11 on February 
6, 1963, affirming the judgment12 of this Court order­
ing desegregation, they advised the appellate court 
that they desired to waive the right to proceed further 
with their appeal, and requested that the mandate be 
issued forthwhith. They have consistently done much 
more than they were ordered to do ever since. HEW  
has never found fault with their system. Prior to the 
decision to begin the construction of the high school 
in Morningside, the NAACP, in spite of its periodical 
checks, had come to this Court with only one question 
which reached a hearing; and the evidence showed 
that there was no merit in that complaint. The con­
version to the unitary system in 1967 came ahead of 
schedule and without any pressure from outside 
sources. All this was done smoothly and without fan­

HArt. 2900a, Vernon’s Ann. Tex. Civil Statutes. This statute is quoted in 
full in Flax v. Potts, D.C. Tex., 204 F. Supp. 458, 466 (1962). It was 
declared unconstitutional after the first trial of this case.

10See Brown v. Rippy, 5 Cir., 285 F. 2d 43 (1961), footnote 13.
“ Potts v. Flax, 5 Cir., 313 F. 2d 284 (1963).
12See Flax v. Potts, supra, footnote 9.



A-21

fare through the earnest co-operation o f members of 
all races, without hatred and the kind of trouble and 
turmoil that has been much too common in the past 
few years.

The population of Fort Worth proper is about 393,- 
455, and of its metropolitan area, about 762,090. The 
Fort Worth Independent School District encompasses 
all of the City of Fort Worth and some of the neighbor­
ing urban communities; but it takes in no rural area. 
The district is irregularly shaped geographically, with 
the longest distance across it in an easterly-westerly 
direction being about 22 miles, and in a northerly- 
southerly direction, about 13 miles. It has an area 
o f approximately 176 square miles. There are 117 
schools in the system. 78 of them are elementary 
schools (kindergarten and grades 1 through 5). 20 
of them are middle schools (grades 6 through 8). 15 
of them are high schools (grades 9 through 12). The 
others are either vocational training or specialty class 
schools. The latter type offers help for handicapped 
children and both basic education and evening high 
school classes for adults. The total number of pupils 
in the school system is 86,109, of which 63,407 (about 
74%)  are white and 22,702 (about 26%)  are black.

Under the dual system that existed prior to the 
time the plan for integration was adopted and or­
dered in May, 1963, the school district operated one 
group of schools designated specifically for white 
pupils and another for Negroes. The keystone of that 
system was a set of attendance-zones for the Negro 
schools separate from the one for the white schools. 
The attendance-zone plan called for a pupil to attend



A-22

the school provided for his race in the zone of his 
residence. The zones for the white pupils were de­
termined by the factors generally accepted by educa­
tors as being for the best interests of school children. 
If there had never been any de jure racial discrimina­
tion, those zones would have to be considered fair to 
all the pupils living therein. It was different as to 
the separate set of zones for children of the Negro 
race. The white pupils outnumbered them about 3 to 
1, so the Negroes had fewer schools and larger zones. 
Although each set of zones, as a whole, covered the 
same total area, the boundaries of the individual 
zones for the Negro schools did not coincide with those 
for the white schools. The larger zones for the Negro 
schools overlapped the smaller zones for the white 
schools, and sometimes one zone for Negroes covered 
at least part o f several zones for whites. One of the 
results was, to use the langauge o f the plaintiffs’ 
original complaint in this case, that Negro children 
were denied the right to attend the school “ nearest 
their home on a non-segregated basis while non- 
Negro pupils are permitted to attend the school near­
est their homes.”

The school authorities implemented the conversion 
to the unitary system in 1967 by use of a combination 
of court-approved methods. The separate sets of 
schools for Negroes and whites and the attendance 
zones for Negro pupils were abolished. That left the 
attendance zones which had been theretofore set up 
for the white pupils, and which were for the best in­
terests of all the school children, regardless o f race, 
residing in the various zones. Where possible, ad­



A-23

justments were made in zone boundary lines. No ra­
cially motivated zones were left. Fair and equitable 
feeder patterns for middle schools and high schools 
having no relation to race, were established. Liberal 
option and majority-to-minority transfer policies were 
adopted. Some all white schools and some all black 
schools were phased out where the action was con­
sistent with sound educational policy. The administra­
tive staff and supporting personnel, the faculty and 
other school employees, all services and facilities, and 
the entire athletic and extracurricular programs have 
all been desegregated. Since the beginning of the 1967 
fall school term, no person— pupil or adult— has been 
denied any opportunity or service of the school sys­
tem on account of race or color.

During most of the period since 1967, the school 
authorities were acting without the aid of any case 
giving a comprehensive set of guidelines for imple­
menting conversion from a dual to a unitary system. 
Swann, decided about three months ago, provides that 
set. The particular guidelines applicable to faculty 
assignment plans and to student assignment plans, 
respectively, will be considered in that portion of this 
opinion dealing with the proposed plan of the school 
board. The fundamentals mentioned in the following 
quotations from Swann are pertinent to the considera­
tion of any school desegregation plan in whole or in 
part:

“ The objective today remains to eliminate from 
the public schools all vestiges o f state-imposed 
segregation . . . ”  28 L. Ed. 2d, at 566.

. . [S]chool authorities are ‘clearly charged



A-24

with the affirmative duty to take whatever steps 
might be necessary to convert to a unitary system 
in which racial discrimination would be eliminated 
root and branch.’ ”  28 L. Ed. 2d, at 566.

“ If school authorities fail in their affirmative 
obligations under these holdings, judicial au­
thority may be invoked . . .”  28 L. Ed. 2d, at 
566.

“  ‘The essence of equity jurisdiction has been 
the power of the Chancellor to do equity and to 
mould each decree to the necessities of the par­
ticular case . . . ’ ”  28 L. Ed. 2d, at 566.

“ . . . Conditions in different localities will vary 
so widely that no rigid rules can be laid down to 
govern all situations.”  28 L. Ed. 2d, at 574.

“ School authorities are traditionally charged 
with broad power to formulate and implement 
educational policy . . .  To do this [prescribe ratio 
of Negro to white people in each school reflecting 
the proportion of the district as a whole] as an 
educational policy is within the broad discretion­
ary powers of school authorities; absent a find­
ing of a constiutional violation, however, that 
would not be within the authority of a federal 
cour t . . . ”  28 L. Ed. 2d, at 566-67.

“ We are concerned in these cases with the 
elimination of the discrimination inherent in the 
dual system, not with myriad factors of human 
existence which can cause discrimination in a 
multitude of ways on social, religious, or ethnic 
grounds . . . The elimination of racial discrimina­
tion in public schools is a large task and one that 
should not be retarded by effort to achieve broad­
er purposes lying beyond the jurisdiction of school 
authorities . . .  It would not serve the important



A-25

objective of Brown I. to seek to use school de­
segregation cases for purposes beyond their scope, 
although desegregation of schools ultimately will 
have impact on other forms of discrimina­
tion . . . ”  28 L. Ed. 2d, at 570.

“ Our objective in dealing with the issues pre­
sented in these cases is to see that school authori­
ties exclude no pupil of a racial minority from 
any school, directly or indirectly, on account of 
race; it does not and cannot embrace all the prob­
lems of racial prejudice, even when those prob­
lems contribute to disproportionate racial con­
centrations in some schools.”  28 L. Ed. 2d, at 
570. (This was in connection with the discussion 
of racial balances and quotas).

“ At some point, these school authorities and 
others like them should have achieved full com­
pliance with this Court’s decision in Brown I. 
The systems will then be ‘unitary’ in the sense 
required by our decisions in Green and Alexan­
der.”  28 L. Ed. 2d, at 575.

“ It does not follow that the communities served 
by such systems will remain demographically sta­
ble, for in a growing, mobile society, few will do 
so. Neither school authorities nor district courts 
are constitutionally required to make year-by­
year adjustments of the racial composition of stu­
dent bodies once the affirmative duty to de­
segregate has been accomplished and racial dis­
crimination through official action is eliminated 
from the system. This does not mean that federal 
courts are without power to deal with future 
problems; but in the absence of a showing that 
either the school authorities or some other agency 
of the State has deliberately attempted to fix  or 
alter demographic patterns to affect the racial



A-26

composition of the schools, further intervention 
by a district court should not be necessary.”  28 
L. Ed. 2d, at 575-76.

The School Plan in General

The plan submitted by the school board covers all 
the matters set out in the judgment of the Court of 
Appeals remanding the case. The only objection to 
the plan as a whole is that it proposes that the ef­
fective date be January 31, 1972. That was because 
it was contemplated that the 23 additional buses 
needed to implement the student assignment plan 
could not be obtained before that time. There is such 
an understandable demand for school buses now that 
delivery on them cannot be had until six to eight 
months after they are ordered. The superintendent of 
schools testified that the local transit company had 
agreed to lease 10 of its older buses to the school dis­
trict pending delivery of the new buses. While they 
are not in good repair, it is believed that they can be 
put in usable condition in the period of more than 
one month before the next term of school starts. It is 
not unreasonable to believe that the remaining 13 
buses can be leased from other sources for the interim 
period. The school authorities must use the utmost 
diligence to get them. The proposed plan will be modi- 

‘ fied so as to become effective at the beginning of the 
1971 fall school term. That modification will cure the 
objection above mentioned.

The only other objections are directed at the por­
tions of the plan dealing with faculty and staff assign­



A-27

ments and student assignments. They will be discussed 
in connection with those matters.

The only witnesses who testified on this hearing were 
Superintendent Truelson and Dr. Crowley. Truelson 
was offered by the defendants as an expert witness on 
school administration and education, and Crowley was 
offered in the same capacity for the plaintiffs. When 
all the recognized standards of credibility were ap­
plied, Crowley’s testimony did not impress the Court.

Faculty and Staff Assignment Plan

There has been no racial discrimination in regard 
to teachers and staff since the conversion to the uni­
tary system. The school authorities have made a sin­
cere attempt to hire as many qualified Negro teachers 
as possible. For the past several years, the adminis­
trators in the system have gone to at least 40 univer­
sities and colleges annually to interview prospective 
graduates for teaching jobs, with special effort di­
rected to those of the Negro race. Most of the schools 
in the system have had racially mixed faculties in 
spite of the fact that demand for qualified Negro teach­
ers has far exceeded the supply, due to the keen com­
petition for them from other schools and from indus­
try. However, Swann and Singleton hold that a 
vestigial effect of racial discrimination under a dual 
system is that the faculty and staff assignment plans 
which have generally been followed after dismantle­
ment of the dual system are still calculated to give 
the appearance that some of the schools are intended 
to be operated preferably for one particular race,



A-28

either white or black.13 Singleton states that the 
faculty and staff working directly with the pupils of 
a public school should be “ so assigned that in no case 
will the racial composition of a staff indicate that a 
school is intended for Negro students or white stu­
dents.”  419 F.2d, at 1218. See also Swann, 28 L.Ed. 
2d, at 568. These cases say that in order for school dis­
tricts once operated under the dual system to achieve 
this objective, they should adopt as an initial step 
a plan of faculty assignment in each school with a 
ratio of white to Negro faculty members substantially 
the same throughout the system.”  Swann, 28 L. Ed. 
2d, at 568.14 It is not contemplated that this ratio will 
be frozen. Singleton establishes this merely as one of 
the necessary steps15 in the desegregation of the fac­
ulty of a district converting from a dual to a unitary 
system. It is intended that when the desegregation is 
accomplished, the faculty and staff policy will operate 
under a racially non-discriminatory merit system 
based upon reasonable, objective standards.16
lsThis applies only to school districts which once operated under the 

dual system.
u Singleton expresses the same thought in the following language:

. . . For the remainder of the 1969-70 school year the district shall 
assign the staff described above so that the ratio of Negro to white 
teachers in each school, and the ratio of other staff in each, are sub­
stantially the same as each such ratio is to the teachers and other staff, 
respectively, in the entire school system.” 419 F. 2d, at 1218.

15Singleton was decided in December, 1969. As shown in footnote 14, 
it provided that the initial ratios should be maintained only for the 
balance of the 1969-70 school year.

16“ . . . The Singleton requirement . . . does not contemplate freezing 
the faculty ratio which is present when faculty desegregation takes 
place in the system. It contemplates rather that faculty desegregation 
will be accomplished by invoking the system-wide ratio as a rule for 
each particular school in the system and that thereafter the system 
will function from the standpoint of faculty and staff on the merit



A-29

The proposal of the school board now before the 
Court presents a faculty and staff assignment plan 
which substantially tracks the detailed policy set out 
in Singleton under the heading, “ DESEGREGATION 
OF FACULTY AND OTHER STAFF.”  See 419 F. 
2d, at 1217-18. The system-wide racial ratio of the 
faculty and staff in the school district is 78% white 
and 22% black. The board proposes to establish that 
ratio in each school in the entire system, with no more 
than 12% tolerance above and below. The plan then 
follows the comprehensive provisions of the policy set 
out in Singleton for the future operation of the faculty 
and staff under a merit system based on reasonable, 
objective standards. The Court is of the opinion that 
the school board’s proposed plan, with the modifica­
tion hereinafter mentioned, meets the requirements 
of Swann, Singleton and Carter.

The plaintiffs object to the proposed plan on three 
grounds: (1) There is no provisions for notice, hear­
ing and a copy of the charges for a teacher facing dis­
charge or release. (2) The plan does not give the ob­
jective criteria to be used in promotion, demotion and 
dismissal of members of the faculty and staff. (3) The 
12% tolerance above and below the 78% -22%  ratio 
should not be allowed.

The first objection would be well taken if it were 
not for the provisions of Subchapter G. of the Texas 
Education Code, Acts 1969, 61st Legislature, Chap-

system. This means that once a unitary system has been established 
the system-wide racial ratio may thereafter change from time to time 
as a result of objective merit standards in the selection and composi­
tion of faculty and staff.”  Carter v. West Feliciana Parish School 
Board, 5 Cir., 432 F. 2d 875, 878 (1970) (Emphasis added).



A-30

ter 889. Various statutes in that Subchapter contain 
detailed provisions for the grounds of discharge and 
release of teachers, for written complaint to be given 
to them, for hearing after due notice, and for the right 
to be represented by counsel. These statutes are more 
than adequate; and while they would be necessarily 
read into the plan, the order approving the plan will 
expressly provide that they are.

The second objection relating to the failure of the 
plan to include the non-racial objective criteria to be 
used in case of promotion, demotion or dismissal is 
moot in view of the Court’s order entered in connec­
tion herewith. The follow ing is quoted from  the 
board’s plan: “ Prior to such a reduction, the school 
board will develop or require the development of non- 
racial objective criteria to be used in selecting the 
staff member who is to be dismissed or demoted. These 
criteria will be available for public inspection and will 
be retained by the school district. The school district 
will also record and preserve the evaluation of staff 
members under such criteria. Such evaluation will be 
made available upon request to the dismissed or de­
moted employee.”  The plan will be modified by provid­
ing in the Court order that such objective criteria shall 
be developed and made a part of the public records of 
the school system, and a copy filed in this case, on or 
before the beginning of the 1971 fall school term.

The objection to the provision for a tolerance o f no 
more than 12% above and below the 78% -22%  ratio 
has no merit. Defendant’s Exhibit 1 shows that a num­
ber of elementary schools have less than 15 teachers



A-31

on their staffs. Some of them have as few as 6. It 
would be impossible to apply the 78-22 ratio to each 
staff and come out with all whole teachers of each 
race. For instance, a strict application of the ratio to 
a staff of 10 teachers would result in 7-8/10 white 
teachers and 2-2/10 black teachers. That the courts 
realize the impossibility of applying the exact system- 
wide racial ratio to the faculty of each school in a 
district is evidenced by the language in the last quota­
tion above from Swann, which shows that the Su- 
peme Court approved “ a plan of faculty assignment 
in each school with a ratio of white to Negro faculty 
members substantially the same throughout the sys­
tem.”  28 L. Ed. 2d, at 568 (Emphasis added). A  plan 
for school desegregation has to be “ reasonable, feasi­
ble and workable.” Swann, 28 L. Ed. 2d, at 575, and 
a faculty assignment plan based on racial ratios has to 
have a reasonable tolerance to meet those require­
ments. The 12% above and below the 78% -22%  ratio 
is not unreasonable. In the elementary schools with 
small staffs, a variance of one teacher in an effort to 
get away from fractions can run the percentage up 
or down substantially. Defendants’ Exhibit 1 shows 
the proposed teaching staff of each school by numbers 
under the board’s plan. The Court finds nothing un­
fair about it. If unfairness in the application of the 
proposed teacher and staff assignment plan should 
develop, the Court, with its continuing jurisdiction, 
can remedy it.

Student Assignment Plan

It has been mentioned earlier that since the begin­
ning of the 1967 fall school term no pupil has been ex­



A-32

eluded from any school in the district or been denied 
any opportunity or service of the school system on ac­
count of race or color. The school authorities have 
made a sincere effort to implement desegregation 
of the student body by use of court-approved tech­
niques. Eight formerly all white schools and four for­
merly all black schools have been phased out, and the 
students of those schools have been assigned to schools 
where the result would be better racial balance. The 
school system has followed the policy that, with two 
exceptions,18 a pupil in elementary school was required 
to attend the elementary school in the zone in which 
he resided.19 That was on account of the problems of 
getting children of such tender years to and from 
school safely. Liberal option and transfer policies 
available to pupils have been provided to relieve the 
problem of racial imbalance in residential areas where 
the residential situation resulted in a predominance of 
Negro pupils. The transfer policy applied to pupils of 
all ages, but the option policy was available only to 
pupils in middle and high schools. They were patterned 
after those set out in United States v. Jefferson County 
Board of Education, 5 Cir., 380 F. 2d 385, 390-93 
(1967). At appropriate times, the school authorities 
brought them to the attention of the students in per­
son and to the parents by letter. They were also pub­
18The two exceptions were: (1) where the school nearest the pupil’s 

home was in an adjoining zone; and (2) where a transfer was granted 
at the request of the parent based on the best interest of the child. 
Racial motivations could not be involved in the last exception. The 
transfers were usually requested in cases where a school in another 
zone was close to the place where the mother worked.

19A special effort has always been made to have each elementary school 
in the zones which now exist so located that it would not be over % 
to % of a mile distant from the home of any of its pupils.



A-33

licized in newspapers of general circulation in the dis­
trict. When a child completed his work in elementary 
school, he was given the option20 of attending any one 
of two or more middle schools. When he finished his 
courses in middle school, he had the option21 to attend 
any one of three or more high schools. If the election 
was not to exercise the option, the feeder system sent 
him to the middle school designated for graduates of 
his elementary school, or to the high school designated 
for graduates of his middle school, as the case might 
be. The middle schools and high schools embraced in 
the option available to children in any zone in the dis­
trict included schools where the child exercising the 
option could become a part of a student body com­
posed predominantly, or in some cases about equally, 
of members of the opposite race. The option policy was 
supplemented by a transfer policy under which a par­
ent might make a request for transfer of his or her 
child to a school to which the child was not otherwise 
eligible, provided race,22 color, whim or dislike of 
teacher was not the reason for the request. That policy 
has been liberally construed and applied. No request 
for transfer of a Negro pupil from a predominantly 
Negro school to a predominantly white school has been 
denied. At the time the plaintiffs filed their motion for 
further relief about a year ago, the school district had 
achieved substantial, not just token, integration of its 
student body by the use of the above described tech­

20This option was required to be exercised by the parent.
21This option was likewise required to be exercised by the parent.
22This provision kept a white parent from seeking to transfer his child 

from a school having a substantial number of black pupils.



A-34

niques. The situation continued to improve to the date 
of the last hearing.

One of the quotations from Swann in an earlier part 
of this opinion says that the objective of desegrega­
tion is to “ eliminate from the public schools all ves­
tiges of state-imposed, seg reg a tion 28 L. Ed. 2d, at 
566 (Emphasis added). Insofar as the student body of 
this school system is concerned, the last vestiges of 
state-imposed segregation are 6 predominantly Negro 
elementary schools where the racial imbalance is due 
to the continuing effect of the now dismantled dual 
system. The school board plan seeks to counteract that 
effect and eliminate such vestiges of segregation by 
employment of the following techniques recognized in 
Swann: (1) Creation of six clusters of elementary 
schools, each of which will contain one of the above 
mentioned 6 predominantly Negro schools. (2) Closing 
of 2 predominantly black middle schools and assign­
ment of the pupils from them to schools not suffering 
from the continuing effect of previous segregations. 
(3) Adoption of new elementary zones based on equi­
distant boundaries adjusted for building capacity and 
conformity to streets. (4) Adoption of majority-to- 
minority transfer rule with provisions to furnish 
transportation and to make space available in trans­
feree schools. (5) Adoption of a provision to prohibit 
transfers for students living in cluster zones except 
under majority-to-minority transfer rule. (6) Re­
assignment of black students from recently closed 
Como and Kirkpatrick High Schools and extension of 
south boundary of Eastern Hills High School.

The cluster plan is the only one of these techniques



A-35

which needs much explanation. The following is quoted 
from the proposal by the school board:
*

“CLUSTERS

“ The school district proposes the creation of six 
‘clusters’ involving 27 elementary schools. Each clus­
ter consists of from three to seven elementary schools 
that will be operated as a unit to achieve additional 
desegregation. In essence the cluster plan takes the 
elementary school that has been attended by predom­
inantly black students and groups such school with the 
requisite number of elementary schools that have been 
attended by predominantly white students. The result 
will be that the ratio of black to white students in each 
school in the cluster will approximate the overall ratio 
of black to white students in the entire school district. 
The cluster plan will involve 27 schools and 11,000 
students, of whom 2,797 are black and 8,203 are white.

—  2 —

“ State-funded transportation will be made avail­
able on a racially nondiscriminatory basis for all 
students who are eligible (live more than two miles 
from assigned school). Most of the students affected 
by the cluster plan will be eligible. This will require 
the purchase of approximately 23 buses. The school 
district is required to place orders for the purchase of 
buses through the Texas Board of Control in Austin. 
A  minimum of six to eight months is required to re­
ceive delivery. Implementation of the cluster plan is, 
therefore, proposed to be made at the beginning of the



A-36

school term next after delivery of the necessary, and 
presently unavailable buses.

—  3 —

“ It should be noted that since middle school and high 
school attendance is fundamentally based upon prior 
elementary school attendance, the cluster plan above 
outlined for elementary schools will inevitably increase 
the racial balance of the middle and high schools.”

These clusters are shown on the map of the school 
district admitted in evidence as Defendants’ Exhibit 
3. The map is made a part of the proposed plan as an 
exhibit thereto. The particular clusters are explained 
in detail in Mr. Truelson’s testimony at pp. 40-50 of 
the trial transcript.

“ Clustering”  or “ grouping”  of schools is a tech­
nique for eliminating vestiges o f state-imposed seg­
regation in student bodies.23 I f only two schools were in­
volved in each group, it might be called, “ pairing” .

The number of schools involved in each cluster 
ranges from 3 to 7. The reason for the variance is the 
difference in the number of the students in the various 
schools. Each cluster includes an elementary school 
which has a predominantly black student body con­
sidered to have resulted from state-imposed segrega­
tion. It also embraces from 2 to 6 other elementary
23In connection with the discussion of “the principal tools employed by 

school planners and by courts to break up the dual system”, Swarm 
says: . . .  An additional step was pairing, ‘clustering’ or ‘grouping’
of schools with attendance assignments made deliberately to ac­
complish the transfer of Negro students out of formerly segregated 
Negro schools and transfer of white students to formerly all-Negro 
schools . . . ” 28 L. Ed. 2d, at 573.



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schools which are predominantly white. All kinder­
garten and first grade pupils attend the elementary 
school nearest their homes on account of the fact that 
they are usually only 5 to 6 years old.24 All second 
grade pupils in the cluster zone will attend class at the 
heretofore predominantly black school. The third, 
fourth and fifth graders will go to class at the here­
tofore predominantly white schools in the cluster. 
While free bus transportation will be available to 
those students who desire to use it; none of them will 
be required to ride the bus. They will be at liberty to 
continue to go to their respective schools in their clus­
ter by their present mode of travel, whether it be by 
car pool or something else.

The expected effect of the cluster plan on the racial 
distribution of the pupils in the schools involved is 
shown in great detail in Defendants’ Exhibit 5. The 
result will be that the ratio of black to white students 
in each school in the cluster will approximate the over­
all ratio of black to white students in the entire school 
district.

E fforts to avoid the cluster plan will be defeated by 
the proposed rule that “ students living in zones hav­
ing clusters will not be granted transfers except under 
the majority-to-minority rule.” 25

After the child completes his work in elementary 
school, his school assignment will be made under the 
provisions of the option, feeder and transfer plan 
heretofore explained.
24“ . . .  It hardly needs stating that the limits on time of travel will 

vary with many factors, but probably with none more than the age 
of the students . . . ”  Swann, 28 L. Ed. 2d, at 575.

25The majority-to-minority rule is explained later in this opinion.



A-38

The plaintiffs’ detailed objections to the student as­
signment plan actually boil down to these: (1) The 
plan does not achieve a ratio of white to Negro stu­
dents in each school that will correspond to the over­
all ratio of white to Negro students in the entire dis­
trict. (2) The plan will still leave some schools with 
racially disproportionate student bodies.

The first objection has no merit because there is no 
constitutional right to any particular degree of racial 
balance in public schools, and the Court would have 
no authority to engraft it upon the student assign­
ment plan.27 “ . . . The constitutional command to de­
segregate schools does not mean that every school in 
every community must always reflect the racial com­
position of the school system as a whole.”  Swann, 28 
L. Ed. 2d, at 571. Swann takes notice of “ the familiar 
phenomenon that in metropolitan areas m inority 
groups are often found concentrated in one part of 
the city.”  28 L. Ed. 2d, at 572. That is true of nation­
alities as well as races. There are several areas in wide­
ly scattered parts of Fort Worth which have heavy 
concentrations of Negroes; but that residential popu­
lation pattern is something that lies beyond the juris­
diction of the school authorities.

The plaintiffs also object to the plan for student 
assignment on the ground that it will leave some 
schools with racially disproportionate student bodies. 
Eleven of those will be predominantly black schools.

27“ . . .  If we were to read the holding of the District Court to require, 
as a matter of substantive constitutional right, any particular degree 
of racial balance or mixing, that approach would be disapproved and 
we would be obliged to reverse . . . ” 28 L. Ed. 2d, at 571.



A-39

Two things must appear for this objection to defeat 
the plan? (1) The plan must contemplate the con­
tinued existence of some schools which are all or pre­
dominantly of one race.28 (2) Such disproportionate 
racial composition must be due to state-enforced 
segregation.29 The school authorities have the burden 
“ to satisfy the court that this [all or predominantly 
one-race schools] racial composition is not the result 
of present or past discriminatory action on their 
part.” Swann, 28 L. Ed. 2d, at 572. The Court has 
carefully scrutinized the situation in regard to the 
schools in question, and is of the opinion that the 
school authorities have discharged that burden. The 
evidence shows beyond question that the racial imbal­
ance in these few schools is due to neighborhood resi­
dential patterns, and not to state-enforced segregation. 
I. M. Terrell School is a vocational high school. There 
are only two such schools in the whole system. They 
are fine schools. Each one of them is open to any stu­
dent of any race residing anywhere in the school dis­
trict. The other ten black schools involved were all 
white schools under the dual system. They have be­
come predominantly black as a result of desegregation 
instead of segregation. There are several large indus­
tries in the Fort Worth area. The fast growth of the 
City has caused its population to be mobile. Some

28This alone is not enough. “ . . . [I]t should be clear that the existence 
of some small number of one-race, or virtually one-race, schools within 
a district is not in and of itself the mark of a system which still 
practices segregation by law . . .”  Swann, 28 L. Ed 2d, at 572.

29“Schools all or predominantly of one race in a district of mixed popula­
tion will require close scrutiny to determine that school assignments 
are not part of state-enforced segregation.” Swann, 28 L. Ed. 2d, at 
572.



A-40

school zones which were almost all white a few years 
ago are now predominantly black. Some of them are 
more evenly mixed. Swann recognizes that it is 
possible for racial imbalance in schools to be due to 
many factors having no relation to state-enforced seg­
regation. One of the factors it mentions is the neigh­
borhood residential pattern. 28 L. Ed. 2d, at 572. 
When a school district has converted to the unitary 
system, as the one here has, neither “ school authori­
ties nor district courts are constitutionally required 
to make year-by-year adjustments of the racial com­
position of student bodies.”  Swann, 28 L. Ed. 2d, at 
575. The Swann case suggests that one of the best 
techniques for meeting this situation is the majority- 
to-minority transfer policy with free transportation 
to the transferring student and available space for 
him assured in the school to which he desires to move. 
28 L. Ed. 2d, at 572. The school system has had a 
liberal majority-to-minority transfer policy, but in 
the past no transportation was provided; and also, 
transfer was not granted if  space was unavailable. 
Those deficiencies are supplied in the presently pro­
posed plan.

The Court is of the opinion that the proposed stu­
dent assignment plan more than meets the require­
ment in Swann that “ all vestiges of state-imposed 
segregation” be eliminated.

Other Requirements of Court of Appeals Order

The proposed comprehensive plan covers many other 
uncontroverted matters. It remains necessary to men­
tion only that proper provisions are made to satisfy 
the order of the Court of Appeals in regard to con­



A-41

struction of new schools and to semi-annual reports.
*  *  *  *

This opinion ought to show on its face that the 
Court has given careful and detailed study to the 
school problem here involved in an effort to meet its 
responsibility under Swann to mould a “ reasonable, 
feasible and workable” plan “ to the necessities of the 
particular case.”  The Court feels that the proposed 
plan, with the modifications herein mentioned, meets 
the test of operating under a racially unitary system 
with all vestigial effects of state-enforced discrimi­
nation eliminated. There is nothing in any of the cases 
that indicates that a school district has to be left in 
shambles to meet this test. The plan is expected to be 
reasonable, and the one here ordered is.

It has been mentioned earlier that the Court did not 
have the problem here that is faced in many of the 
other school cases. The school authorities have co-op­
erated fully. They voluntarily converted to a unitary 
system four years ago. They did not have far to go to 
meet the requirements of the Court of Appeals’ order 
of remand. Without being ordered to do so, they have 
been working for some time with a bi-racial committee 
composed of seven Negroes and two Mexicans. The 
proposed plan was submitted to that committee before 
it was filed in court, and the members offered no ob­
jections to it.

The language of Swann makes it clear that the 
courts want to get out of the school business; and that, 
once a school district adopts and operates under a bona 
fide unitary system devoid o f racial discrimination, 
they have no desire to interfere with the school au­



A-42

thorities’ “ broad power to formulate and implement 
educational policy.”

The Fort Worth school system is fortunate to have 
an administrative staff now that wants to be and is 
abreast of the times. The leaders are comparatively 
young. They are sincere and dedicated to the operation 
of an excellent school system within the framework 
of the law. The school board is composed of public 
spirited men who have met their responsibilities in 
spite of the criticism o f many people who fail to real­
ize that some o f the objectionable techniques of im­
plementation of desegregation are only interim meas­
ures which will not be necessary when the few linger­
ing effects of racial segregation are gone. With the 
operation o f the school system under the present plan 
as modified, the Fort Worth Independent School Dis­
trict will have eliminated all vestigal effects of racial 
discrimination in its schools and will have made a 
complete conversion to the unitary system. With that, 
according to Swann, “ in the absence o f a showing that 
either the school authorities or some other agency of 
the State has deliberately attempted to fix or alter 
demographic patterns to affect the racial composition 
o f the schools, further intervention by a district court 
should not be necessary.”  28 L. Ed. 2d, at 576.

Judgment will be entered in accordance with this 
opinion which will serve as the Court’s findings of 
fact and conclusions o f law under Rule 52 (a ), F.R. 
Civ.P.
Signed, July 30, 1971.

/ s /  Leo Brewster 
JUDGE