Correspondence from Lani Guinier to United States Air Re: Passenger Refund

    UNITED STATES
COURT of APPEALS

F I F T H  C I R C U I T  

No. 21852

BILOXI MUNICIPAL SEPARATE SCHOOL 
DISTRICT, ETA L ,

VERSUS

Appellants

GILBERT R. MASON, JR., ET AL,
Appellees

Appeal from the United States District Court for 
the Southern District of Mississippi, 

Southern Division

MIMEOGRAPHED RECORD



I N D E X
Page
No.

Caption Page Complaint
Motion For Preliminary Injunction 
Defendants* Motion to Dismiss Complaint 
Affidavit of Dr. Gilbert R. Mason 

Exhibit A: Petition 
Exhibit B: Telegram 

Order Sustaining Motion to Dismiss 
Notice of Appeal 
Opinion of Court of Appeals 
Designation of Contents of Record on Appeal 
Judgment Court of Appeals 
Opinion of Court of Appeals 
Notice of Motion For Preliminary Injunction 
Motion of Defendants To Stay Proceedings Pending 

Action of Court of Appeals
Petition of Appellees for Recall of Mandate From The 

District Court, Exhibit A 
Brief in Support of Appellees * Petition For Recall 

Of Mandate From The District Court 
Order Allowing Extension of Time to Answer 
Order Granting Stay of Proceedings 
Motion For Extension of Time Within Which to Answer 
Order Granting Extension of Time In Which to Answer 
Preliminary Iniunction
Order of Court of Appeals Denying Recall of Mandate 
Answer
Interrogatories 
Objection To'Interrogatories
Plaintiffs' Response to Defendants' Objection To 

Interrogatories 
Answer to Interrogatories 
Opinion Of The Court 
Judgment
Desegregation Plan

Exhibit "A"- Resolution of School Board 
Plaintiffs' Objections to Desegregation Plans Filed 

By Defendant Boards and Motion For Revised Plans 
Transcript of Testimony

Testimony: R. D. Brown 
Notice of Appeal 
Appeal Bond 
Order Accenting Plan
Designation of Contents of Record on Appeal 
Motion for Original Exhibits to be Sent to the Appellate 

Court
Order for Original Exhibits to be Sent to The Appellate 

Court
Certificate of Service

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26 
32 
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MEMORANDUM FOR CLERK, UNITED STATES COURT OF APPEALS 
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION

BILOXI MUNICIPAL SEPARATE SCHOOL DISTRICT, ET AL,
APPELLANTS

VERSUS
GILBERT R. MASON, JR., ET AL,

APPELLEES

ATTORNEYS FOR APPELLANTS:
Honorable Victor B. Pringle

127 West Jackson, Biloxi, Mississippi 
Honorable Thomas H. Watkins

800 Plaza Building, Jackson, Mississippi 
Honorable Joe T. Patterson

Attorney General, Jackson, Mississippi

ATTORNEYS FOR APPELLEES:
Honorable Derrick A. Bell, Jr.

10 Columbus Circle, New York 19# N.Y. 
Honorable Jack Young,

115i North Farlsh St., Jackson, Mississippi



(R-l) 2
IN THE

UNITED STATES DISTRICT COURT 
FOR THE

SOUTHERN DISTRICT OF MISSISSIPPI 
SOUTHERN DIVISION

GILBERT R. MASON, JR., a minor, by ;
DR. GILBERT R, MASON, his father and :
next friend, :
GARY BLACK, JERRI BLACK and DIANE :
BLACK, minors, by LEWIS BLACK, their :
father and next friend, :
DARYL BOGLIN, a minor, by HAROLD BOGLIN, : 
his father and next friend, :
LINDA GAIL DAVIS, JESSICA DENISE DAVIS : 
and HENRY LEE DAVIS, minors, by :
THE REV. THOMAS DAVIS, their father and :
next friend, : CIVIL ACTION

: NO. 2696
GLORHEA DIANE EDUARDS, a minor, by :
SAMUIL EDUARDS, her father and next :
friend, :
JANICE ELZY and JOHN ELZY, JR., minors, : 
by JOHN ELZY, their father and next :
friend, :
REHOFUS ESTERS, JR., JOHN ROBERT :
ESTERS, MICHAEL ESTERS and La VALERIA :
ESTERS, minors, by REHOFUS ESTERS, :
their father and next friend, :
BARBARA JEAN HARRIS, a minor, by :
THE REV. OSCAR HARRIS, her father and :
next friend, :
JAMES McKINLEY, JR., and SYLVIA YVONNE :
MCKINLEY, minors, by JAMES E. MC KINLEY, : 
their father and next friend, :
ADRIENNE MARTIN, a minor, by JACK MARTIN, : 
her father ane next friend, :
PATSY R. MUNFORD and ROSA M. MUNFORD, :
minors, by MRS. JOHNIE M. BROUN, their :
mother and next friend, :



5
CLIFTON NUNLEY-* JR., and GRETCHEN 
NUNLEY-, minors, by CLIFTON NUNLEY-, 
their father and next friend,
(R-2)
BERNARD ROSADO and ERNEST ROSADO, 
minors, by CHRISTOPHER ROSADO, 
their father and next friend,

Plaintiffs,
vs.

THE BILOXI MUNICIPAL SEPARATE SCHOOL 
DISTRICT of BILOXI, MISSISSIPPI,
ROBERT D. BROWN, Superintendent of 
Biloxi City Schools; DR. J. A. GRAVES, 
President; PETER KULJIS, Vice 
President; C. T. SWITZER, Secretary; 
MRS. DUDLEY- ANDREWS and RICHARD CREEL, 
Members.

Defendants.

C O M P L A I N T  
(Filed"'"Jiin T,'" 155*0

1.
The jurisdiction of this Court is invoked pursuant to the 

provisions of Title 28, United States Code, Section 1343(3), 
this being a suit in equity, authorized by law, Title 42,United 
States Code, Section 1983, to be commenced by any citizen of 
the United States or other person within the jurisdiction 
thereof to redress the deprivation, under color of statute, 
ordinance, regulation, custom or usage of a state, of rights, 
privileges and immunities secured by the Constitution and laws 
of the United States. The rights, privileges and immunities 
sought to be secured by this action are rights, privileges and 
immunities secured by the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution of the 
United States, as hereinafter more fully appears.



This is a proceeding for a preliminary and permanent 
injunction enjoining the Biloxi Municipal Separate School Dis­
trict, its members and its Superintendent of Schools, from 
continuing their policy, practice, custom and usage of operat­
ing a dual school system in the City of Biloxi, Mississippi 
based wholly on the race and color of the children attending 
schools in said city.

3.

The plaintiffs in this case are Gilbert R. Mason, Jr., 
a minor, by Dr. Gilbert R. Mason, his father and next friend; 
Gary Black, Jerry Black and Diane Black, minors, by Lewis 
Black, their father and next friend; Daryl Boglin, a minor, by 
Harold Boglin, his father and next friend; Linda Gail Davis, 
Jessica Denise Davis and Henry Lee Davis, minors, by The Rev. 
Thomas Davis, their father and next friend; Glorhea Diane 
Edwards, a minor, by Samuel Edwards, her father and next friend 
Janice Elzy and John Elzy, Jr., minors, by John Elzy, their 
father and next friend; Rehofus Esters, Jr., John Robert Esters 
Michael Esters and LaValeria Esters, minors, by Rehofus Esters, 
their father and next friend; Barbara Jean Harris, a minor by 
The Rev. Oscar Harris, her father and next friend; James 
McKinley, Jr., and Sylvia Yvonne McKinley, minors, by James E. 
McKinley, their father and next friend; Adrienne Martin, a 
minor, by Jack Martin, her father and next friend; Patsy R. 
Munford and Rosa M. Munford, minors, by Mrs. Johnie M. Brown, 
their mother and next friend; Clifton Nunley, Jr., and Gretchen 
Nunley, minors, by Clifton Nunley, their father and next friend 
and Bernard Rosado and Ernest Rosado, minors, by Christopher



5
Rosado, their father and next friend. Plaintiffs are all 
members of the Negro race and bring this action on their own 
(R-4) behalf and on behalf of all other Negro children and their 
parents in Biloxi, Mississippi, who are similarly situated and 
affected by the policy, practice, custom and usage complained 
of herein. Plaintiffs are all citizens of the Uhited States 
and the State of Mississippi, Harrison County, Mississippi.
The minor plaintiffs and other minor Negro children similarly 
situated are eligible to attend the public schools of the City 
of Biloxi which are under the jurisdiction, management and 
control of the defendant Board, and in which the plaintiffs and 
all other Negro children similarly situated have been segre­
gated because of their race pursuant to the policy, practice, 
custom and usage of the defendant Board. The members of the 
class on behalf of whom plaintiffs sue are so numerous as to 
make it impracticable to bring them all individually before this 
Court, but there are common questions of law and fact in­
volved, common grievances arising out of common wrongs and 
common relief is sought for each plaintiff and for each member 
of the class. The plaintiffs fairly and adequately represent 
the interests of the class.

4.

The defendants in this case are the Biloxi Municipal 
Separate School District. The members of which District are 
Dr. J. A. Graves, President, Peter Kuljis, Vice President,
C. T. Switzer, Secretary, and Mrs. Dudley Andrews and Richard 
Creel, Members. Robert D. Brown is the Superintendent of the 
Biloxi City Schools. The defendant Board maintains and gen­
erally supervises the public schools in the City of Biloxi*



r*O
Mississippi, acting pursuant to the direction and authority 
contained in the State's constitutional provisions and stat­
utes, and as such are officers and agents of the State of 
Mississippi enforcing and exercising state laws and policies.
(R-5) 5.

Plaintiffs allege that the defendants, acting under 
color of the authority vested in them by the laws of the State 
of Mississippi, have pursued and are presently following pur­
suant to and under color of state law, a policy, custom, prac­
tice and usage of operating the public school system of the 
City of Biloxi, Mississippi, on a basis that discriminates 
against plaintiffs and other Negroes similarly situated be­
cause of race or color, to wit:

(a) The defendant Board maintains and operates the 
public schools in Biloxi, Mississippi, all of which schools are 
operated on a completely segregated basis. Eleven public schools 
serve white children in Biloxi, while all Negro children are 
required to attend either the Perkins Elementary School or the 
Nichols Junior and Senior High School. No Negro children 
residing within the City and eligible to attend the public 
schools have ever been assigned by the Board to attend white 
schools, and in accordance with this policy, practice and cus­
tom, the plaintiffs are assigned to Negro schools even if such 
schools are located further from their homes than schools limited 
to whites, and fail to offer or provide them with equal educa­
tional opportunities.

(b) Teachers, principals and other professional per­
sonnel are assigned by the defendant Board on the basis of 
race so that Negro teaching personnel are assigned to Negro



7
schools and white teaching personnel are assigned to white 
schools. Bus transportation, where available, is provided on 
a racially segregated basis, and all curricula and extra­
curricula activities and school programs are conducted on a 
racially segregated basis. All budgets and other funds appro­
priated and expended by defendants are appropriated and ex­
pended separately for Negro and white schools.
(R-6) (c ) Many courses in the sciences, higher mathematics,
languages, office skills and industrial trades, which are reg­
ularly offered in white schools are seldom if ever offered in 
the Negro schools, thus depriving all Negro children of the 
opportunity to obtain such courses,

(d) The schools provided by the defendants for Negro 
children have consistently failed to provide equal educational 
opportunities for Negro children with the result that the ach­
ievement level in Negro schools is far lower than in white 
schools, the student drop out rate is far higher in Negro 
schools than in white schools, and the number of graduates who 
enter college is far higher in white schools than in Negro 
schools. Because of such educational inequalities, plaintiffs 
and the class they represent, regardless of their inherent 
learning ability or other factors, receive a poorer education 
in Negro schools than white children receive in white schools.

6,
On March 18, 1963, the adult plaintiffs, along with 

other Negro citizens of Biloxi, who had waited in vain for the 
defendants to voluntarily initiate desegregation of the Biloxi 
public schools as required by the United States Supreme Court 
in Brown v. Board of Education, in 195^> and in accordance with



8
the several school desegregation decisions of the United States 
Court of Appeals for the Fifth Circuit, submitted in person a 
written petition to the defendant Superintendent and School 
Board requesting the Board to provide their children with 
"equal educational opportunities in accord with the Constitu­
tion and the decisions of our highest Court,..." The plaintiffs 
received no response to this petition.

(R-7) 7.

On May 20, 1963, on or about the date of a regular meet­
ing of the defendant Board, plaintiffs again petitioned the 
Board by telegram to desegregate the Biloxi public schools, ex­
pressing their belief that the filing of individual transfer 
applications to schools other than the Nichols Perkins School 
would be useless and futile. To date, plaintiffs have rec­
eived no response from defendants.

8.
The defendants1 policies, practices, customs and usages 

of racial segregation herein detailed show the determined policy 
of the State of Mississippi to maintain racial segregation in 
the public schools, which policy is amply reflected in the 
Constitution and Statutes of the State of Mississippi requiring 
segregation or aiding in the maintenance of segregation: Art. 8, 
p.207, Miss. Const., requires maintenance of separate schools 
for white and colored children1 p,3841.3 Miss. Code Annot., 
authorizes the attorney general to represent school officials 
in suits challenging validity of school operation] p.4065.3* 
Miss. Code Annot., entire executive branch to prohibit by all 
lawful means the racial Integration of public schools and other



9
public facilitiesi p.6220.5 Miss. Code Annot., forbids attend­
ance of whites with Negroes in any public school of high school 
level or lower on penalty of fine, jail or both! p.6334-11 ~  

forbids enrollment of child in any school except that to which 
assigned or transferred according to state statute.

9.
Plaintiffs allege that the policy, custom, practice and 

usage of the defendant Board in requiring the minor plaintiffs 
and other Negro children similarly situated to attend racially 
(R-8) segregated schools in the City of Biloxi violates rights 
secured to plaintiffs and others similarly situated by the 
equal protection and due process clauses of the Fourteenth 
Amendment to the Constitution of the United States and Title 
42, United States Code, Section 1983-

10.
Plaintiffs have made reasonable efforts, as set forth 

above, to communicate their dissatisfaction with segregated 
schools to the defendant Board but without effecting any change. 
Plaintiffs have not sought to utilize the provisions of the 
state Pupil Assignment Act as adopted in 1954, Miss. Code 
Annot., p.p.6334-01 to 6354-07, and submit that the exhaustion 
of remedies provided by this Act would prove futile and in­
adequate, in view of the state policy and the policy of the 
defendants, to provide the relief which plaintiffs seek here.

11.
Moreover, plaintiffs seek here, not only the transfer of 

themselves and other members of the class they represent to 
schools presently limited to white children, but also the com­
plete reorganization of the dual racial system into a unitary



10
nonracial system wherein the educational opportunities offered 
by the defendants are made available to students without re­
gard to race or color, wherein there are no racial designations 
in the assignment of teachers, principals, and other profess­
ional school personnel, and wherein school budgets, plans for 
school construction and all school activities, curricula and 
extra-curricula are free from racial designations and res­
trictions.

12.
Plaintiffs and each of them and those similarly situated 

have suffered and will continue to suffer irreparable injury 
(R-9) and harm caused by the acts of the defendant Board herein 
complained of. They have no plain, adequate or complete reme­
dy to redress these wrongs other than this suit for injunctive 
relief. Any other remedy would be attended by such uncertain­
ties and delays as to deny substantial relief, would involve 
a multiplicity of suits, cause further irreparable injury and 
occasion damage, vexation and inconvenience to the plaintiffs 
and those similarly situated.

WHEREFORE, plaintiffs respectfully pray that this Court 
grant the following relief:

1. Advance this cause on the docket and order a speedy 
hearing of plaintiffs’ motion for preliminary injunction which 
is filed simultaneously with the filing of this complaint and 
grant the relief prayed for therein.

2. Order a speedy trial of the merits of this case.
3. Upon the conclusion of the trial, issue a permanent 

injunction forever restraining and enjoining the defendants, 
the School Board of the Biloxi Municipal Separate School Dis-



11
trict, its members, employees and successors, and the Super­
intendent of Schools, his agents, employees and successors, 
and all persons in active concert and participation with the 
defendants;

(a) to permit the plaintiffs and other members of their 
class who apply, to transfer at the beginning of the next school 
semester to schools presently limited to white children;

(b) to prepare and submit for this Court’s approval 
within 60 days, a complete plan providing for the reorganization 
of the entire school system of the City of Biloxi over a period 
of no more than three years into a unitary non-racial system 
which shall include a plan for the reassignment of all children 
presently attending the public schools of the City of Biloxi 
(R-10) on a non-racial basis and which will provide for the 
future assignment of children to school on a non-racial basis, 
the assignment of teachers, principals, supervisors and other 
professional school personnel on a non-racial basis, the 
elimination of racial designations as to schools, the elimina­
tion of all racial designations in the budgets, appropriations 
for school expenditures, and all plans for the construction of 
schools, and the elimination of racial restrictions on certain 
curricula and extra-curricular school activities, and the elim­
ination of any other racial distinction in the operation of the 
school system in the City of Biloxi which is based wholly upon 
race and color.

4. Plaintiffs pray that this Court retain jurisdiction 
of this case pending the transition to a unitary non-racial 
system.

5. Plaintiffs pray that this Court will grant them their



12
costs herein and grant them such other, further, additional or 
alternative relief as may appear to a court of equity to be 
equitable and just.

/s/ Derrick A. Bell. Jr.________ _
R. Jess Brown 
125i N.Farish Street 
Jackson, Mississippi
Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr.
Suite 1790 
10 Columbus Circle 
New York, 19, New York

Attorneys for Plaintiffs 
* * * * * * * *

(R-ll) MOTION FOR PRELIMINARY INJUNCTION
(Title Omitted"Filed Jun 4,1964)

Plaintiffs, upon the annexed complaint, move this Court 
for a preliminary injunction, pending the final disposition of 
this cause, and as grounds therefor rely upon the allegations 
of the complaint and show the following:

1. Plaintiffs and the class they represent are being 
denied rights guaranteed by the Fourteenth Amendment to the 
United States Constitution by reason of the defendant Board's 
continued operation of a public school system segregated by race 
in the City of Biloxi, Mississippi.

2. By reason of the racially segregated public school 
system operated by the defendant Board, in the City of Biloxi, 
Mississippi, plaintiffs and the class they represent are being 
denied equal educational opportunities in violation (R-12) of 
their rights under the Fourteenth Amendment to the United States 
Constitution.



13
WHEREFORE, plaintiffs respectfully pray that this Court 

grant the following relief:
1. Advance this cause on the docket and order a speedy 

hearing of plaintiffs' motion for preliminary injunction which 
is filed simultaneously with the filing of this complaint and 
grant the relief prayed for therein.

2. Order a speedy trial of the merits of this case.
3. Upon the conclusion of the trial, issue a permanent 

injunction forever restraining and enjoining the defendants, 
the School Board of the Biloxi Municipal Separate School Dis­
trict, its members, employees and successors, and the Superin­
tendent of Schools, his agents, employees and successors, and 
all persons in active concert and participation with the de­
fendants :

(a) to permit the plaintiffs and other members of 
their class who apply, to transfer at the beginning of the next 
school semester to schools presently limited to white children;

(b) to prepare and submit for this Court's approval 
within 60 days, a complete plan providing for the reorganization 
of the entire school system of the City of Biloxi over a period 
of no more than three years into a unitary non-racial system 
which shall include a plan for the reassignment of all children 
presently attending the public schools of the City of Biloxi
on a non-racial basis and which will provide for the future 
assignment of children to school on a non-racial basis, the 
assignment of teachers, principals, supervisors and other pro­
fessional school personnel on a non-racial basis, the elimina­
tion of racial designations as to schools, the elimination of 
all racial designations in the budgets, appropriations for school



14
expenditures, and all plans for the construction of schools, 
and the elimination of racial restrictions (R-13) on certain 
curricula and extra-curricular school activities, and the elim­
ination of any other racial distinction in the operation of the 
school system in the City of Biloxi which is based wholly upon 
race and color.

4. Plaintiffs pray that this Court retain jurisdiction 
of this case pending the transition to a unitary non-racial 
system.

5. Plaintiffs pray that this Court will grant them their 
costs herein and grant them such other, further, additional or 
alternative relief as may appear to a court of equity to be 
equitable and just.

/s/ Derrick A. Bell, Jr.___________
R. Jess Brown 
125t N. Parish Street 
Jackson, Mississippi
Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr.
Suite 1790 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs

(This Instrument carries proper Notice which is not copied here) 
(R-14 is a continuation of Notice which is not copied.)

(R-15) DEPENDANTS' MOTION TO DISMISS
COMPLAINT ______________

(Title Omitted Piled Jun 10 l9&>)

NON COME the defendants in the above styled and numbered 
action, by their attorneys, and respectfully move the Court to



15
dismiss this action and the complaint filed herein, and as 
grounds therefor assign the following:

(1) The complaint fails to state a claim upon which 
relief can be granted.

(2) None of the plaintiffs has exhausted any of the ad­
ministrative remedies available under Chapter 260 of the Missi­
ssippi Laws of 1954, Sections 6334-01 to 6334-07> inclusive.

(3) None of the plaintiffs has been denied any personal 
rights sought and cannot assert any claim on behalf of others. 
(R“l6) (4) The plaintiffs lack standing to maintain this action 
since they do not allege that they have legally sought and 
been denied any right to which they are entitled.

(5) The plaintiffs cannot represent a claim of which 
they are not a part,

(6) The plaintiffs lack standing to seek injunctive re­
lief for others.

(7) This Court is without jurisdiction over the parties
hereto or the subject matter hereof.

JOE T. PATTERSON, ATTORNEY GENERAL 
DUGAS SHARDS,ASSISTANT ATTORNEY' 

GENERAL
THOMAS H. WATKINS, SPECIAL COUNSEL 
VICTOR B. PRINGLE,SPECIAL COUNSEL
BY /s/ Thos, H. Watkins 
ATTORNEYS FORTETEI'JDANTS “

(This instrument carries proper notice which is not copied here)
(R-17 Certificate of Service which is not copied here.)

* * * * * * * *

(R-18) AFFIDAVIT OP DR. GILBERT R. MASON
(Title Omitted-Eiled Jun 19 1965)

STATE OF MISSISSIPPI)) S3;
COUNTY OF HARRISON )



l6
Affidavit of Dr. Gilbert R. Mason in support of plain­

tiffs' Motion for a Preliminary Injunction, who first being 
duly sworn, deposes and says:

1. I am an adult Negro plaintiff in the above-entitled 
action, and reside in the City of Biloxi, State of Mississippi.

2. I am the father of Gilbert R. Mason, Jr., one of the 
twenty-five minor Negro plaintiffs on whose behalf this action 
is brought.

3. The public schools of the City of Biloxi are operated 
by the defendant Biloxi Municipal Separate School District of 
Biloxi, Mississippi. The school system is opei’ated on a 
racially segregated basis.
(R-19) 4. Gilbert R. Mason, Jr., is 9 years of age and is 
assigned to the 4th grade in the Perkins Elementary School, one 
of two public schools in the City of Biloxi designated by the 
defendant Board for Negroes, and to which all Negro children of 
elementary age are assigned regardless of their place of resi­
dence. All Negro children of high school age are assigned to 
the Nichols High School, regardless of residence.

5. Gilbert R. Mason, Jr., is assigned to the Negro Perkins 
School which is located some ten blocks from his home notwith­
standing that the Gorenflo Elementary School is located only 
three blocks from his home. The Gorenflo School is limited to 
white children.

6. Plaintiff Linda Gail Davis, daughter of Rev. Thomas 
Davis, 4l4 ELmer Street, Biloxi, lives 12 blocks from the Perkins 
School where she is assigned and only 9 blocks from the Dukate 
Elementary School, which school is limited to white children. 
White children living one block away from the Davis home are



17
assigned to the Dukate School.

7, To the best of my knowledge and belief, the two Negro 
schools In Biloxi are not only racially segregated schools, but 
are also Inferior to the schools operated for white children. 
There is no physics or trigonometry class in the Negro school 
and only basic chemistry and biology classes. Spanish is the 
only foreign language offered in the Negro high school and 
there are no foreign language classes for Negro elementary 
school children. Physics and trigonometry classes are offered 
white children, and they have a selection of foreign language 
classes in high school, and some instruction in foreign lang­
uages at the elementary school level. Other courses, including 
secretarial training and various trades are not offered in the 
Negro schools, or are provided on a basis inferior to the offer 
ing in white schools.
(R-20) 8. My purpose in bringing this suit is to require
the defendant School Board to desegregate the public schools of 
Biloxi, Mississippi, in order that ray child, and all other 
Negro children similarly situated, may obtain the desegregated 
education to which they are entitled under the Constitution of 
the United States.

9. On March 18, 1963, along with other plaintiffs and 
Negro citizens, I signed a petition to the defendant Board re­
questing the Board to desegregate the schools and provide our 
children with ’’equal educational opportunities in accord with 
the Constitution and the decisions of our highest Court,..." 
This petition was presented at a meeting of the defendant Board 
and was taken under consideration by them. However, no res­
ponse was received from the Board. A copy of this petition



18
is attached to this affidavit as EXHIBIT A.

10. On May 20, 1963, along with other plaintiffs, I a- 
gain petitioned the Board by telegram to desegregate the Biloxi 
public schools. A copy of the telegram is attached to this 
affidavit as EXHIBIT B. Again, plaintiffs have received no 
response, and all minor plaintiffs have again been assigned.

11. It is my belief that my children are being denied 
their constitutional rights and are suffering irreparable in­
jury and harm because of the Board's failure to desegregate 
the Biloxi public schools.

/s/ Gilbert R. Mason______ _
Er. "Gilbert R . Mason

Subscribed and sworn before me
this 19th day of June, 1963. (SEAL)
/a/ Ellen J. Quave___________

Notary Public
ELLEN J. QUAVE, NOTARY PUBLIC 
in and for Harrison County,
Mississippi.My Commission 
EXPIRES ON AUGUST 1,1965.
(R-21 Certificate of Service which is not copied here.)

(R-22) EXHIBIT "A"
TO:
THE SUPERINTENDENT AND 
THE SCHOOL BOARD OP THE 
BILOXI MUNICIPAL SEPARATE 
SCHOOL DISTRICT

A PETITION
WHEREAS, the Superintendent and the School Board are 

held out to be responsible for the functioning, welfare, main­
tenance and structure, both real and theoretical, of the Public 
Schools of Biloxi and

WHEREAS, apparently a pattern of discrimination and seg-



19
negation of students on account of race and color has been and 
is being maintained and

WHEREAS, some eight years have passed since the Supreme 
Court of the United States of America has ruled that segregation 
on account of race is unconstitutional and has further directed 
that all public schools be desegregated with "all deliberate 
speed" and

WHEREAS, the Superintendent and School Board of the 
Biloxi Municipal Separate School District have not in no wise 
implemented this edict, nor has it been indicated that it is 
their intent and

WHEREAS, we, the undersigned are parents of children in 
public schools and are parents of children eligible for public 
scools in Biloxi who desire our children to secure equal edu­
cational opportunities in accord with the Constitution and the 
decisions of our highest Court, then therefore be it

RESOLVED, that the Superintendent and School Board pre­
pare, and put into effect without delay and no later than 
September 1963 plans for the full desegregation of the public 
schools and faculties in Biloxi under their supervision and 
control

RESOLVED FURTHER, that the undersigned be notified with­
out delay what desegration plans have been adopted and will be 
put into effect for the 1963-64 school year.

NAMES OF PARENTS
/s/ Rehofus Esters 
/s/ Barbara Esters 
/s/ Gilbert R. Mason,Sr. 
/s/ Mrs.Gilbert R.Mason 
/a/ Harold Boglin 
/s/ Clifton Nunley, Sr. 
/s/ Mrs. Dorthea Nunley

/s/ Thomas E. Davis 
/s/ Willye Mary Davis 
/s/ Pheola B. Harris 
/s/ Oscar Harris 
/s/ Mrs. Harold Boglin 
/s/ Mrs. Samuel Edwards



20
/s/Mrs. Johnnie M. Brown 
(R-23)/s/John Elzy 
/s/ Samuel Edwards 
/s/ James ¥. McKinley 
/s/ C. Rosado

/s/ Blanche Elzy 
/s/ Charles E. Polk 
/s/ P. Irving Green

* * * * * *

(R-24) EXHIBIT !iB"
154, PD - Biloxi Miss 20 May 1963 427P CST
MR. R D BROWN SUPERINTENDENT AND THE SCHOOL BOARD OF THE BILOXI 
SEPARATE SCHOOL DISTRICT 216 ST PETER AVE BILOXI MISS

TO THE BOARD:
ON MARCH 18 1963, THE UNDERSIGNED NEGRO PARENTS PETITIONED THIS 
SCHOOL BOARD TO DESEGREGATE THE BILOXI, MISS, PUBLIC SCHOOLS.
NO RESPONSE HAS BEEN RECEIVED TO THIS PETITION.
PETITIONERS ARE ADVISED AND BELIEVE THAT THE BILOXI PUBLIC 
SCHOOL SYSTEM IS OPERATED ON A DUAL RACIAL BASIS AND THAT INDI­
VIDUAL APPLICATIONS BY US ON BEHALF OF OUR CHILDREN FOR ASSIGN­
MENT OR REASSIGNMENT TO SCHOOLS OTHER THAN THE NICHOLS PERKINS 
SCHOOL WOULD BE USELESS AND FUTILE.
THEREFORE, THE UNDERSIGNED AGAIN PETITION THE BOARD TO DESE_ 
GREATE THE BILOXI PUBLIC SCHOOLS AND REQUEST A REPLY WITHIN 
TEN DAYS.

DR AND MRS GILBERT R. MASON 
REV AND MRS OSCAR HARRIS 
MR AND MRS RIBOFUS ESTERS 
REV AND MRS 'THOMAS E DAVIS 
MR AND MRS SAMUEL EDWARDS 
MR JAMES W  MCKINLEY 
MR AND MRS JOHN E ELZY
MR AND MRS HAROLD BOGLIN C O P Y
MR AND MRS CLIFTON NUNLEY 
MRS JOHN M BROWN 
MR CHRISTOPHER ROSADO
MR AND MRS CHARLES E POLK MR. P I GREEN

* * * * * *

(R-25 Summons which is not copied here.)
* * * * * *

(R-26) ORDER SUSTAINING MOTION TO DISMISS 
(Title Omitted-Filed Jul 5 1903)

THIS ACTION came on for hearing on the motion to dismiss
filed herein by the defendants, and the Court having considered
same, together with arguments of counsel and briefs submitted,
is of the opinion that said motion should be and the same is



21
hereby sustained.

It is, therefore, ordered and adjudged that this action 
be and the same is hereby dismissed.

ORDERED AM) ADJUDGED this 5th day of July, 1963.

/s/ S. C. Mize
m m rm m  tmist 'judge---

O.B. - 1963, Page 464
* * * * * * * *

(R-27) , NOTICE OF APPEAL
(Title Omitted-Filed Jul 15 1963)

Notice is hereby given that Gilbert R. Mason, Jr., a 
minor, by IS?. Gilbert R. Mason, his father and next friend; Gary 
Black, Jerry Black and Diane Black, minors, by Lewis Black, 
their father and next friend; Daryl Boglin, a minor, by Harold 
Boglin, his father and next friend; Linda Gail Davis, Jessica 
Denise Davis and Henry Lee Davis, minors, by The Rev. Thomas 
Davis, their father and next friend; Glorhea Diane Edwards, a 
minor, by Samuel Edwards, her father and next friend; Janice 
Elzy and John Elzy, Jr., minors, by John Elzy, their father and 
next friend; Rehofus Esters, Jr., John Robert Esters, Michael 
Esters and LaValeria Esters, minors, by Rehofus Esters, their 
father and next friend; (R-28) Barbara Jean Harris,a minor,by The 
Rev. Oscar Harris, her father and next friend; James McKinley, 
Jr., and Sylvia Yvonne McKinley, Minors, by James E. McKinley, 
their father and next friend; Adrienne Martin, a minor, by Jack 
Martin, her father and next friend; Patsy R. Munford and Rosa 
M. Munford, minors, by Mrs. Johnie M. Brown, their mother and 
next friend; Clifton Nunley, Jr., and Gretchen Nunley, minors, 
by Clifton Nunley, their father and next friend and Bernard



22
Rosado and Ernest Rosado, minors, by Christopher Rosado, tlielr
father and next friend, appeal to the Court of Appeals for the
Fifth Circuit from this Court’s Order of July 5> 19^3 granting
defendants' Motion to Dismiss.

/s/ Derrick A. Bell, Jr.
R. Jess Brown ”
125i N. Farish Street 
Jackson, Mississippi
Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr.
Suite 1790 
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs
(This instrument carries proper Certificate of Service which 
is not copied here.)

* * * * * * * *

(R-29) OPINION OF COURT OF APPEALS---- (Filed' Jul 23" 1"9'53')----
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT1 F I L E  D r
______________________ ’ Jul 22 1963 ’

’Edward W. Wadsworth’ 
NO. ' Clerk »

DARRELL KENYATTA EVERS ET AL,
Appellants

VS.
JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT ET AL 

________ _______Appellees
DIAN HUDSON, ET AL.

Appellants
VS.

LEAKE COUNTY SCHOOL BOARD ET AL, 
_______________ Appellees



23
Gilbert R. Mason, Jr. et al,

Appellants
VS.

BILOXI MUNICIPAL SEPARATE SCHOOL 
DISTRICT OP BILOXI, MISSISSIPPI

Appellees

On Appellants1 motions for injunction pending 
appeal, or, alternatively for expedited hearings

( July 22 1963)
Before HUTCHESON, CAMERON and BROVIN, Circuit Judges.
By the Court:

It is ORDERED that the motions of the appellants for 
injunction pending appeal or, alternatively for expedited hear­
ings be, and they are hereby DENIED.

A true copy
Test: EDWARD ¥. WADSWORTH 

Clerk,U.S.Court of Appeals,Fifth Circuit 
By /s/ G. F. Ganucheau

' Deputy 1 ■—
New Orleans, Louisiana Jul 22 1963

O.B. - 1963, Page 500
• & # * * # * * #

(R-30) DESIGNATION OF CONTENTS OF RECORD ON APPEAL
(Title Omitted-Filed Jul 26 1963)

Appellants, pursuant to Rule 75 of the Federal Rules of 
Civil Procedure, designate the following pleadings, orders, 
etc. in the subject case to be contained in the record on appeal, 
which record appellants are preparing in accordance with Rule 
23 (10) of the Fifth Circuit Rules, to include:

1. Complaint
2. Motion for Preliminary Injunction
3. Defendants' Motion to Dismiss Complaint



24
4. Affidavit of Gilbert R. Mason with exhibits
5. Order of July 5, 1963

6. Notice of Appeal
7. This Designation

(R-31) STATEMENT OP POINT TO BE RELIED UPON ON APPEAL
Whether the district court erred in dismissing an action 

seeking to enjoin a policy of racial segregation in public 
schools where administrative remedies under a state pupil assi­
gnment law were not exhausted by plaintiffs, but the school 
board was placed on notice by petition that plaintiffs desire 
desegregated educations for themselves and for the class they 
represent.

(This instrument carries proper Certificate of Service which is not copied here.)
* * * * * * * *

R. Jess Brown 
125§ N. Parish Street 
Jackson, Mississippi

Derrick A. Bell, Jr.

Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr. 
Suite 2030 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs

(R-32)

J U D G M E N T
UNITED STATES COURT OP APPEALS

For The Fifth Circuit

October Term, 19 63

No. 20826



25
D. C. Docket No. 2696 Civil 

GILBERT R. MASON, JR., ET AL,
Appellants,

versus
THE BILOXI MUNICIPAL SEPARATE SCHOOL DISTRICT 

OF BILOXI, MISSISSIPPI, ET AL,
Appellees.

Appeal from the United States District Court for the 
Southern District of Mississippi.

Before HUTCHESON and BELL, Circuit Judges and BREWSTER, 
District Judge.

J U D G M E N T
This cause came on to be heard on the transcript of the 

record from the United States District Court for the Southern 
District of Mississippi, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered and 
adjudged by this Court that the judgment of the said District 
Court in this cause be, and the same is hereby, reversed; and 
that this cause be, and it is hereby remanded to the said Dis­
trict Court for further proceedings not inconsistent with the 
opinion of this Court.

It is further ordered and adjudged that the Appellees, 
The Biloxi Municipal Separate School District of Biloxi, Missi­
ssippi, and others, be condemned, in solido, to pay the costs 
of this cause in this Court for which execution may be issued 
out of the said District Court.

February 15, 1964
Issued as Mandate: Feb 13 1964 

Court Costs:
Docketing cause, etc___ $25.00



26
A true copy

Test: EDWARD W. WADSWORTH 
Clerk, U.S.Court of Appeals,Fifth Circuit

by: /s/ 0. F. Ganucheau___________ (SEAL)
Deputy

New Orleans, Louisiana
* * * * * * * *

(R-33) OPINION OF COURT OF APPEALS 
(Filed Feb 14 1954)

SOUTHERN DIVISION CIVIL ACTION NO. 2696 

IN THE
UNITED STATES COURT OF APPEALS 

For The Fifth Circuit

NO. 20824

DARRELL KENYATTA EVERS, ET AL,
Appellant,

versus
JACKSON MUNICIPAL SEPARATE SCHOOL 

DISTRICT, ET AL,
Appellee.

No. 20825

DIAN HUDSON, ET AL,
Appellant,

versus
LEAKE COUNTY SCHOOL BOARD, ET AL,

Appellee.

No. 20826

GILBERT R. MASON, JR., ET AL,
Appellant,

versus
THE BILOXI MUNICIPAL SEPARATE SCHOOL

DISTRICT OF BILOXI,MISSISSIPPI, ET AL
Appellee,

(2696-Civ.)



Appeals from the United States District Court for the 
Southern District of Mississippi.

[February 13, 1954.)

Before HUTCHESON and BELL, Circuit Judges and BREWSTER, District Judge.

BELL, Circuit Judge: These separate appeals are from 
orders dismissing complaints seeking desegregation of the public 
school systems of Jackson, Biloxi, and Leake County,Mississippi. 
The theory of the School Boards in each case in the District 
Court, and here, is that appellants had failed to utilize or 
exhaust available administrative remedies relating to the 
assignment of pupils to schools, and because it appeared that 
no appellant had sought and been denied entrance to any parti­
cular school, it followed that none had been denied a constitu­
tional right.

The premise for this theory is that any segregation in 
these school systems is purely voluntary in light of the Missi­
ssippi Pupil Assignment Statute, Mississippi Code of 1942,
Annot., p.p. 6334-01 et seq., Mississippi Laws, 1954, Chapter 
260; and that appellants cannot be heard to say to the con­
trary without at least applying for assignment to schools being 
attended by members of the white race. This is particularly 
so, the argument goes, in view of the absence of compulsory 
school attendance laws in Mississippi and the resulting nec­
essity to apply for admission and assignment annually. This 
premise is buttressed by a line of authorities that require ex­
haustion of administrative remedies, and denial of constitu­
tional rights to appellants individually before relief may be 
granted. See Footnote (2), infra.



28
The difficulty in sustaining this position lies in the 

fact of other Mississippi laws. For example, and without (R-34) 
cataloguing all of the laws that may militate against this 
position, it suffices to point to two. The Mississippi Consti­
tution requires the maintenance of separate schools for white 
and colored children. Art. 8, p. 207, Miss. Const., Miss. Code, 
Annot,, p. 207. Moreover, p. 6220.5, Miss, Code Annot., forbids 
the attendance of any member of the white race with Negro child­
ren in any public school of high school level or below on pain 
of fine, imprisonment, or both. And it is precisely because of 
this state enforced segregation of schools under Mississippi 
law that the District Court erred in dismissing the complaints.1

It is undisputed in each case that appellants sought 
relief from the respective school boards prior to suit in the 
form of petitioning for the activation of a practice of per­
mitting the assignment of the minor appellants and their class 
to public schools without regard to race. This was an ample 
basis for the grant of the relief sought in the suits in view 
of the prior decisions of this court, where, as is the case in 
these school districts in Mississippi, the Negro appellants are

1 A careful search of the briefs filed on behalf of appellees, 
and of the records fails to disclose any representation 
that appellants could or would be assigned to a school 
now being attended by members of the white race under 
any circumstances short of a court order. This is not 
surprising in view of Rule 11, Fed. R. Civ. Procedure. 
Counsel must, perforce, walk a judicial tightrope to 
assert this defense. However, it cannot be maintained 
because the judiciary cannot blind itself to the 
Mississippi law.



29
not afforded a reasonable and conscious opportunity to attend 
any school, for which they are otherwise eligible, without 
regard to their race and color, and to have their requests for 
admission thereto fairly considered by the enrolling authorities. 
See Gibson v. Board of Public Instruction of Dade County.
Florida, 5 Cir., 1959, 272 F.2d 763. This holding in Gibson 
was an elaboration of the holding on its prior appeal that the 
petitioning of the school board for abolition of racial seg­
regation in the public schools obviated the necessity, where 
segregated schools were required, of exhaustion of administra­
tive remedies under the Florida Pupil Assignment law. 246 F.2d 
913. See also Holland v. Board of Public Instruction of Palm 
Beach.County, Florida, 5 Cir., 1958, 258 F. 2d 730, 732; Man­
nings v. Board of Public Instruction of Hillsborough County. 
Florida, 5 Cir., i960, 277 F.2d 370; Augustus v. Board of Public 
Instruction of Escambia County, Florida, 5 Cir., 1962, 306 F.2d 
862; Potts, v. Flax, 5 Cir., 1963, 313 F.2d 284; and Armstrong 
v. Board of Education of Birmingham. 5 Cir., 1963, 323 F.2d 
333.

In reversing the District Court in Armstrong.this court 
made the law of this circuit plain in this regard beyond per- 
adventure. The District Court in that case had relied on sub­
stantially the same authorities as the District Court here.2

2 The District Court here did not have the benefit of the Arm­
strong decision before entering the orders which are tEe 
subject matter of these appeals. The authorities relied on 
such as Cook v. Davis.5 Cir.,1950,178 F.2d 595; and Brown 
-T,V. °£ Tinstees of LaQrange Ind. School Plat..5 Cir..
1951, 187 F72ct 20, were decided prior to Brown v. Board of 
location, 1954, 347 U.S.483, 74 S.Ct. 6 8 5 7 ' W ^ M .  873, 
striking down the separate but equal doctrine in nubile 
education, and the subsequent Brown ease,1955,349‘,U.S.294, 
75 S.Ot. 753, 99 L.B1. 1083, and Cooper v. Aaron. 1958,35§



50

U. S.l, 78 S.Ct. 1401, 5 L.Ed.2d 5, putting an affirmative 
duty on school boards to bring about the elimination of 
racial discrimination in the public schools. This duty 
feature as laid down by the Supreme Court, where the elimi­
nation (R-35)of discrimination in a school system has been 
requested, as here, also distinguishes, if they can be 
said to be applicable. McCabe v. Atchison & S.F.Ry.Co., 
1914, 255 U.S. 1511 35 S.Ct. 69,' 59 L.S. 169, Bailey v. 
Patterson,1962, 369 U.S. 31, 82 S.Ct. 5^9, 7 L.Ed.2d 512; 
and Clark v. Thompson, S.D.Miss,, 1962, 206 F.Supp. 539, 
aff.”'on appeal, 5 Sir;, 1963, 313 F.2d 637.

(R-3^) We would add this observation (R~35) to what the court
there said. The decisions cited from North Carolina, Maryland,
and Arkansas holding that administrative remedies must be ex­
hausted turn on the rationale of the law and custom and practice 
in those states being such that applications for assignment by 
Negro children to white schools would be given good faith con­
sideration, and were possible of achievement. This was true on
the face of the Alabama law. See Shuttlesworth v. Birmingham 
Board of Education, N. D. Ala., 1958, 162 F.Supp. 372, affirmed, 
358 U. S. 101, 79,S.Ct., 221, 3 L.Ed.2d 145. It is impossible 
to apply that rationale to Mississippi. And notwithstanding 
the state of the Alabama law, an injunction was granted in 
Armstrong to enforce the desegregation measures to be affected 
by the school board. These were regulations governing the 
assignment and transfer of pupils in the Birmingham school 
system promulgated to implement the Alabama pupil placement 
law. On this rationale generally, see Jeffers v. Whitley,
4 Cir., 1962, 309 F.2d 621.

This is not to say that the Fourteenth Amendment com­
mands integration of the races in the schools, or that volun­
tary segregation is not legally permissible. See Avery v. 
Wichita Falls Ind. School Dist..5 Cir., 1957, 24l F.2d 230; 
Rippy v. Borders, 5 Cir., 1957, 250 F.2d 69O; Cohen v. Public



31
Housing Administration, 5 Cir., 1958, 257 F.2d 75, cert, den., 
558 U. S. 928, 79 S.Ct. 315, 5 L.Ed.2d 502; Holland v. Board 
of Public Instruction, supra; and Shuttlesworth v. Birmingham 
Board of Education, supra. The Supreme Court did not hold other­
wise in Brown v. Board of Education, 195lh 5^7 U. S. ^83, 74 
S.Ct. 686, 98 L.Ed. 873. Its holding was that enforced racial 
segregation in the public schools is a denial of the equal pro­
tection of the laws enjoined by the Fourteenth Amendment.
Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5.

But,there cannot be voluntary segregation in these 
schools where desegregation has been requested until inhibitions, 
legal and otherwise, serving to enforce segregation have been 
removed to the extent, as we said in Gibson, 272 F.2d 763,
767, supra, that appellants and the class they represent are 
"afforded a reasonable and conscious opportunity to apply for 
admission to any schools for which they are eligible without 
regard to their race or color, and to have that choice fairly 
considered by the enrolling authorities."

As matters now stand in Mississippi, racial segregation 
in the public schools is enforced, and the rights of the 
appellants here under the Fourteenth Amendment to equal pro­
tection of the laws are proscribed. Having said that it was 
error for the District Court to dismiss their complaints seek­
ing relief from such proscription, it follows that each of the 
cases must thus be reversed. Upon remand, pending disposition 
of each on the merits, it will be the duty of the District 
Court to give prompt consideration to the pending (R-36) motions 
of appellants for preliminary injunctions, cf. Davis v. Board
of School Commissioners of Mobile County, Ala., 5 Cir., 1963,



32
518 F.2d 63, and to be guided by the scope of temporary relief 
accorded by this court in Stell v. Savannah-Chatham County 
Board of Education, 5 Cir., 1963, 318 F,2d 425; Davis v. School 
Commissioners of Mobile County, 5 Cir., 1963, 322 F.2d 356; and 
Armstrong v. Board of Education of Birmingham, supra.Of Course, 

the grant oftemporary relief pending a hearing on the merits will 
in no wise deprive appellees of the other usual procedures 
applicable and obtaining in civil actions, including the right 
to answer the complaints, and to raise and litigate issues of 
fact, if any there be, regarding the merits of each of these 
suits.

REVERSED and REMANDED for further proceedings not in­
consistent herewith, with direction to the Clerk to issue the 
mandate forthwith in accordance with the rules of this court.

A true copy
Test: EDWARD W. WADSWORTH 

Clerk, U.S,Court of Appeals,Fifth Circuit
By /s/ G. F, Ganucheau_________  (SEAL)

Deputy
New Orleans, Louisiana

FEB 13 1964
Adm.Office, U.S.Courts-E.S.Upton Printing Co.,N.O.,La.

* * * * * * *
(R-37)

NOTICE OF MOTION FOR PRELIMINARY INJUNCTION 
' '('Title Omltted-Filed"FibHF 1964)

Plaintiffs, having filed a motion for preliminary in­
junction In this action, now move this Court to set a hearing 
on said motion on the earliest available date, and in support 
of said motion state the following:

1. This action was filed in June, 1963, together with a 
motion for preliminary injunction, but was dismissed prior to a



53

hearing on said motion.
2. On appeal, the United States Court of Appeals for the 

Fifth Circuit on February 13, 1964, reversed this Court's order 
of dismissal and in an opinion issued as and for the mandate 
stated:

. . .Upon remand, pending disposition of each on the 
merits, it will be the duty of the District Court to 
give prompt consideration to the pending motions of 
appellants for preliminary injunctions, cf. Davis v. 
Board of School Commissioners of Mobile County. Ala.
5 Cir.,1963, 318 F.2d 6 3 3nd to be guided by the scope 
of temporary relief accorded by this court in Stell 
y. Savannah-Chatham (R-38) County Board of Education,
5 Cir., 1963, 3ld F.2d 425; Davis v. School Commiss- 
ioners of Mobile County.5 Cir. T9o37322' F.2d 356; 
and Armstrong v. Board of Education of Birmingham, 
supra. Of course, the grant of temporary relief 
pending a hearing on the merits will in no wise 
deprive appellees of the other usual procedures app­
licable and obtaining in civil actions, including 
the right to answer the complaints, and to raise and 
litigate issues of fact, if any there be,regarding the 
merits of each of these suits.

REVERSED and REMANDED for further proceedings not 
inconsistent herewith, with direction to the Clerk 
to issue the mandate forthwith in accordance with 
the rules of this court.
WHEREFORE, for the foregoing reasons, plaintiffs res­

pectfully request that this Court set a hearing on plaintiffs' 
motion for preliminary injunction at the earliest available 
date.

Respectfully submitted,
/s/ Derrick A. Bell, Jr.
jScKTIreINb e r g
CONSTANCE BAKER MOTLEY 
DERRICK A. BELL

10 Columbus Circle 
New York 19, New York

JACK H. YOUNG
1152 North Farish Street 
Jackson, Mississippi
Attorneys for Plaintiffs

(This instrument carries proper certificate of service which is not copied here.) * * * * * * * *



34
(R-39) MOTION OP DEFENDANTS TO STAY

PROCEEDINGS PENDING ACTION 
OP COURT OP APPEALS 

(TitI^“ 05i't'te'r-PiTed' feb 1 9 T 9 6 4 )

NOW COME the defendants in the &ove styled and numbered 
action, by their attorneys, and respectfully move the Court to 
stay proceedings in this Court pending action by the United 
States Court of Appeals for the Fifth Circuit on defendants* 
motion to recall mandate to that Court, and in support thereof 
would show unto the Court the following:

1. On February 13, 1964, the United States Court of 
Appeals for the Fifth Circuit rendered its opinion in this 
case reversing the order of this Court dismissing said action. 
On the same day the Clerk of said Court issued the mandate
to this Court. The Appellees in the Court of Appeals, the 
defendants here, have filed a motion in the Court of Appeals 
to recall the mandate in order that they may exercise their 
right to file a petition for (R-40) rehearing under Rule 29 
of the Court of Appeals, and a copy of said petition and brief 
is attached hereto marked Exhibit "A".

2. Jurisdiction of this action was prematurely and 
improperly placed in this Court by the immediate issuance of 
this mandate on the day the case was decided by the Court of 
Appeals^ that defendants allege and believe that their motion 
to recall the mandate to the Court of Appeals is well taken and 
should be granted and that it would be prejudicial to the rights 
of the defendants for this Court to proceed until the Court of 
Appeals has had a reasonable opportunity to act on defendants’ 
petition to recall the mandate.

WHEREFORE, defendants respectfully move the Court to



55
stay proceedings herein in this Court pending action by the
Court of Appeals on their petition to recall the mandate.

Respectfully submitted,
JOE T. PATTERSON, Attorney General 
Jackson, Mississippi
DUGAS SHANDS,Assistant Attorney General 
Jackson, Mississippi
VICTOR B. PRINGLE 
P. 0. Box 292 
Biloxi, Mississippi
THOMAS H. NATIONS 
800 Plaza Building 
Jackson, Mississippi
By /s/ Thos. H. Watkins 

A T T O R N S  FOR DOLOTDANTS

(R-4l - - Notice of Hearing and Certificate of Service which 
are not copied here.)

* * * * * * « • #

(R-42)
"EXHIBIT "A"

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT

No.20,826,

GILBERT R. MASON, Jr., et al, Appellants
VS.
THE BILOXI MUNICIPAL SEPARATE SCHOOL
DISTRICT OF BILOXI, MISSISSIPPI, ET AL, Appellees.

Appeal from the United States District Court,
Southern District of Mississippi, Southern Division

PETITION OF APPELLEES FOR RID ALL 
OF MANDATE FROM THE DISTRICT COURT

JOE T. PATTERSON 
Attorney General 
Jackson, Mississippi



36
DUGAS SHANDS
Assistant Attorney General 
Jackson, Mississippi
VICTOR B. PRINGLE 
P. 0. Box 292 
Biloxi, Mississippi
THOMAS H. WATKINS 
800 Plaza Building 
Jackson, Mississippi

ATTORNEY'S FOR APPELLEES,
(R-43)

PETITION OF APPELLEES FOR RECALL 
OF MANDATE FROM THE DISTRICT COURT

NOW COLE the Appellees in the above styled and numbered 
action, by their attorneys, and respectfully petition the Court 
to recall its mandate herein to the District Court in order 
that Appellees may file a petition for rehearing and brief in 
support thereof pursuant to Rule 29 of this Court, and in 
support thereof would show unto the Court the following:

(1) This Court of February 15, 1964, rendered its opin­
ion reversing this case and remanding same to the District 
Court. Said opinion instructed the Clerk of this Court to 
issue the mandate "forthwith". The Clerk of this Court did, on 
February 13, 1964, issue the mandate to the District Court, and 
said mandate is now in the possession of the District Court.

(2) Appellees desire to file a petition for rehearing 
and brief in support thereof in connection with this Court's 
opinion of February 13, 1964, but are deprived of the right 
so to do by the fact that the issuance of the mandate on the 
day said opinion was rendered thereby deprived this Court of 
further jurisdiction, including the right to receive and pass 
on Appellees' petition for rehearing,

(3) The mandate was issued to the District Court before



37
the Appellees or their attorneys had any knowledge of this 
Court's opinion of February 13, 1964, and the issuance of the 
mandate on the day the opinion was rendered thereby deprived 
Appellees of their right under Rule 29 to file a petition for 
rehearing herein.

(4) That if Section 2071 of Title 28,United States Code. 
authorizing the formulation of Rules by this Court,is construed 
to permit the denial to Appellees of a right to file a petition
for rehearing, as is granted (R-44) to other litigants under 
Rule 29 of this Court, said statute and the rules promulgated 
thereunder would be in violation of the Fifth Amendment to the 
Constitution of the United States as depriving Appellees of 
their liberty or property without due process of law.

(5) The right of the appellees to file a petition for 
certiorari in the Supreme Court of the United States and to 
have same granted may be affected by the failure of Appellees 
to file and present to this Court a motion for rehearing.

WHEREFORE, Appellees respectfully petition this Court 
to recall its mandate herein in order that Appellees may file 
a petition for rehearing and brief in support thereof pursuant 
to Rule 29 of this Court.

Respectfully submitted,
JOE T. PATTERSON 
Attorney General 
Jackson, Mississippi
DUGAS SHANDS
Assistant Attorney General 
Jackson, Mississippi
VICTOR B. PRINGLE 
P. 0. Box 292 
Biloxi, Mississippi



38
THOMAS H. WATKINS 
800 Plaza Building 
Jackson, Mississippi
BY

SWORIffiYS' FOR APPELLEES
(R-45) BRIEF IN SUPPORT OP APPELLEES' 

PETITION FOR RECALL OP MANDATE 
PROM THE DISTRICT COURT

Rule 29 of this Court provides:
!,A petition for rehearing may be presented only 

within twenty-one days after entry of judgment, 
unless by special leave granted by the court, or 
one of the judges. Twenty copies must be filed, 
accompanied by proof of service. It must be printed 
and must briefly and distinctly state its grounds 
without argument, be supported by certificate of 
counsel to the effect that it is presented in good 
faith and not for delay, and if petitioner desires, 
he may file a written brief in support. The peti­
tion will not be granted or permitted to be argued 
unless a majority of the court so determines. As 
amended January 19, 1956."
We realize that Rule 32 provides that the mandate of 

the Court shall issue after twenty-one (21) days from the date 
of decision "unless the time is shortened or enlarged by order." 
We submit that this necessarily means that in any event a 
reasonable time will be allowed within which a petition for 
rehearing may be filed. We do not believe that Rule 32 was 
Intended as a means of nullifying the right to file a petition 
for rehearing as permitted by Rule 29. For instance, the last 
sentence of Rule 32 provides that if the petition for rehearing 
is denied, the mandate shall issue after seven (7) days from 
entry of the order denying the petition. In other words, there 
is a mandatory seven-day delay in issuance of the mandate after 
denial of a petition for rehearing. We submit that it would be 
wholly unreasonable for the Court to order the mandate issued 
simultaneously with the redition of the Court's decision so



39
as to cut off absolutely the right to file a petition for re­
hearing.

The monent that the mandate is issued by the Clerk this 
Court is deprived of further jurisdiction, including the right 
to receive and consider a petition for rehearing. In Meredith 
v-._Fa_lr,U.3.0.A 5th,306 F.2d 374, this Court said: (R-46)

"All of the members of this Court agree that 
when a mandate has been issued, it is logically and 
legally too late to stay it. Un3.ess the Court should 
recall the mandate, the Court's control over the 
judgment below comes to an end after the mandate 
has been issued. That is the'plain' meaning of Rule 32.
The authorities fully support the rule. Omaha 
Electric Light & Power Co. v. City of Omaha, 8 Cir.,
216 P. 848, setting aside on rehearing decree in 
179 ^55, which aff'd 172 P. 494, appeal dismissed
230 U. S. 123, 33 S.Ct. 974, 57 L.Ed. 1419; in re 
Nevada-Utah Mines & Smelters Corp., 204 P. 982, 
denying rehearing 2 Cir., 202 P. 126."
Rule 29 allows Appellees 21 days within which to file a

petition for rehearing. Rule 23(b)(ii)of the Supreme Court
of the United States requires Appellees to show in their

petition for writ of certiorari the date of any order respecting
a rehearing in the Court of Appeals. The rulemaking power of
this Court is derived from the statute, and it cannot modify
or add to the provisions of any rule except by following the
procedure therein provided. Indiviglio v. U.3.. U.S.C.A. 5th,
249 P. 2d 549, reversed 357 U.S.572!-, 2 L.Ed.2d 1547; U, s. v.
Isthmian S, S. Co.. 359 U. S. 314, 3 L.Ed,. 2d 845.

We respectfully submit that Court rules bind judges of
the Courts as much as litigants. Clawans v. Whiteford. 55 F.2d
1037, cert. den. 287 U.S. 605, 77 L.Ed. 562.

We respectfully submit that to permit other litigants
the right to file petitions for rehearing under Rule 29 and
to deny said right to Appellees does not comply with the due



40
process requirements of the Fifth Amendment to the Constitution 
of the United States. In 5 C.J.S.. Appeal & Error, Section 
1444, page 568, the rule is stated:

"A rule of court that a petition to rehear a 
case decided by it may be filed within a specified 
time after date of decision fixes the period within 
which such court's judgment or decree shall be in­
operative in the sense that it cannot be enforced or 
the losing litigant deprived of any right involved, 
(R-47) and the judgment or decree is not final and 
operative during the period of time within which 
petitions for rehearing may be filed."
We submit that justice requires that Appellees be

afforded the right to file and have considered a petition for
rehearing in this case, and this can only be accomplished by a
recall of the mandate in order to give this Court jurisdiction
to receive and consider Appellees' petition for rehearing.

Respectfully submitted,
JOE T. PATTERSON 
Attorney General 
Jackson, Mississippi

(R-48)

DUGAS SHANDS
Assistant Attorney General 
Jackson, Mississippi
VICTOR B. PRINGLE 
P. 0. Box 292 
Biloxi, Mississippi
THOMAS H. WATKINS 
800 Plaza Building 
Jackson, Mississippi
BY

'ATTORNEYS FCPTAPP: SET
CERTIFICATE

The undersigned counsel of record for Appellees hereby 
certifies that a true copy of the foregoing petition and brief 
in support thereof has been this day forwarded by United States 
Mail, postage prepaid, to the following attorneys of record for



41
the Appellants, to-wit:

Jack H. Young 
115-1/2 N. Parish Street 
Jackson, Mississippi
R. Jess Brown
125-1/2 N. Parish Street
Jackson, Mississippi
Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr.
10 Columbus Circle 
New York 19, New York
This day of February, 1964.

"’Of Counsel for Appellees'. 
* * * * * * *

(R-49) ORDER ALLOWING EXTENSION OF TIME TO ANSWER 
(title Omitted - Filed Feb 24, 1964)

Each Party-Defendant herein having requested a fifteen 
day extension of time within which to file and serve its or 
his answer to the Complaint, and it appearing to the Court that 
the period of time within which such answer or answers are 
authorized to be filed and served under the provisions of 
Rule 12, Federal Rules of Civil Procedure, has not expired, 
and for good cause shown,

IT IS HEREBY ORDERED BY THE COURT that each Defendant 
herein be and it or he is hereby granted an extension of time 
to and including March 10, 1964, within which to file and 
serve its or his answer to the Complaint in this cause.

ORDERED AND ADJUDGED this, the 21st day of February, 1964.
/s/ S. C. Mize
U .3 .DISTRirTliJDG’E' IN AND* FOR THE""
SOUTHERN DISTRICT OF MISSISSIPPI

O.B. 1964, Page 240 * * * * * * * *



(R-50)
42

ORDER GRANTING STAY OP PROCEEDINGS 
THtle Omitted-'" Filed. Feb 24TT9~64)

TIDES ACTION came on for hearing on the defendants' 
motion to stay proceedings in this Court pending action by the 
United States Court of Appeals for the Fifth Circuit on defend­
ants’ petition as Appellees in that Court for a recall of the 
mandate to said Appellate Court, and this Court, having con­
sidered same and being advised In the premises, is of the 
opinion that said motion to stay should be granted for one 
week only, pending action by the Court of Appeals.

It is, therefore, ordered and adjudged that proceedings 
in this action in this Court are hereby stayed until 9:00 a.m. 
Wednesday, March 4, 1964, at which time this Court will hear 
plaintiffs' motion for a preliminary injunction at Jackson, 
Mississippi, unless the United States Court of Appeals for the 
Fifth Circuit has, prior to that time, granted defendants' pet­
ition to recall the mandate in this action to that Court.

ORDERED AND ADJUDGED this 26th day of February, 1964.
/s/ S. C. Mize_______
UNITED' STATES" DISTRICT" JUDGE~

O.B., 1964, Page 274
*  * * * * * * *

(R-51) MOTION FOR EXTENSION OF TIME
, WITHIN WHICH TO ANSWER 
(Title Omitted - Piled'Far~47~ 1964)

Now comes each of the defendants in this cause and 
moves the Court for an extension of time, to and including 
March 30, 1964, within which to file their answer or answers 
herein and for grounds thereof, say:

1. On February 21, 1964, this Court granted the defend-



43
ants an extension of time to and including March 10, 1964, 
within which to file their respective answer and this motion 
is made within said period of time.

2. The order of this Court entered today, March 4,1964, 
has cast additional burdens upon these defendants and their 
counsel in connection with the preparation and filing of their 
respective answers; and will require conferences, time, effort 
and research in addition to that originally anticipated prior 
to the entry of said order on this date.

This motion is not made for delay but so that justice 
may be done and the defendants given a fair and reasonable 
time within which to prepare, serve and file their respective 
answer; the extension herein requested cannot prejudice the 
plaintiffs herein.
(R-52) Counsel for said defendants have exercised diligence, 
and will continue so to do, in and about the preparation, service 
and filing of said answers.

WHEREFORE, defendants respectfully request the Court to
extend the time within which each may serve and file its or
his answer to and including March 30, 1964.

ALL DEFENDANTS BY:
VICTOR B. PRINGLE, Attorney,
Biloxi, Mississippi
THOMAS H. WATKINS, Attorney,
Plaza Building 
Jackson, Mississippi
JOE T. PATTERSON, Attorney General 
of the State of Mississippi
DUGAS SHANDS, Assistant Attorney

New Capitol Building General of the State of Mississippi
Jackson, Mississippi Attorneys for Defendants

BY /s/ Dugas Shands
DUG3S“ SHANE3 —

(This instrument carries proper certificate of service which is not copied here.) * * * * * * * *



(R-53)
44

ORDER GRANTING EXTENSION OF TIME
IN WHICH TO ANSWER

(Title'Omitted - HledTIarT; 5354)

All Parties-Defendant herein having filed and presented 
to the Court their motion for an extension of time of twenty- 
days after March 10* 1964, within which to file and serve its 
or his answer to the complaint, and it appearing to the Court 
that the period of time within which such answer or answers is 
authorized to be filed and served under the provisions of 
Rule 12, Federal Rules of Civil Procedure, has not expired, and 
for good cause shown,

IT IS HEREBY- ORDERED BY- THE COURT THAT each defendant 
herein be and it or he is hereby granted an extension of time, 
to and including March 30, 1964, within which to file and 
serve its or his answer to the complaint in this cause.

ORDERED AND ADJUDGED this, the 4th day of March, 1964.

THIS ACTION came on for hearing on the plaintiffs' 
motion for a preliminary injunction, and the Court having con­
sidered same is of the opinion that said motion should be sus­
tained.

It is, therefore, ordered, adjudged and decreed that, 
until further ordered by this Court, the defendant, Biloxi 
Municipal Separate School District, and the other individual

. s. disthTci'-j o d g e " i n a n d  f o r
THE SOUTHERN DISTRICT OF 
MISSISSIPPI

S. C. Mize

O.B., 1964, Page 289

(R-54)
PRELIMINARY INJUNCTION OROTi?}-? --------

(Title OmittedTFiled Mar 4,1964)



defendants and their agents, servants, employees, successors in 
office and those in concert with them who shall receive notice 
of this order, be and they are hereby temporarily restrained 
and enjoined from requiring segregation of the races in any 
school under their supervision, from and after such time as 
may be necessary to make arrangements for admission of children 
to such schools on a racially non-discriminatory basis with 
all deliberate speed, as required by the Supreme Court in Brown 
v. Board of Education of Topeka, (R-55) 349 U. S. 294, 75 S.Ct. 
753, 99 L. Ed. 1083.

It is further ordered, adjudged and decreed that said 
persons be and they are hereby required to submit to this 
Court not later than July 15, 1964, a plan under which the 
said defendants propose to make an immediate start in the de­
segregation of the schools of said school district, which plan 
shall include a statement that the maintenance of separate 
schools for the Negro and white children of said school dis­
trict shall be completely ended with respect to at least one 
grade during the school year commencing September, 1964, and 
with respect to at least one additional grade each school year 
thereafter.

ORDERED, ADJUDGED AND DECREED at Jackson, Mississippi, 
this 4th day of March, 1964.

(SEAL)
O.B. 1964, pages 291 & 292

* # * * * * *  *



46
(r-56) order op court op appeals denying

RECALL OP MANDATE
(PileO!ar~67~T96Tr) ~

IN THE UNITED STATES COURT OP APPEALS FOR THE FIFTH CIRCUIT

No. 20824

DARRELL KENYATTA EVERS, 
versus

ET AL.,
Appellants,

JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT, ET AL,
Appellees.

No. 20825

DIAN HUDSON, ET AL, 
versus

Appellants,

LEAKE COUNTY SCHOOL BOARD, ET AL,
Appellees.

No. 20826

GILBERT R. MASON, JR., ET AL.,
Appellants,

versus
THE BILOXI MUNICIPAL SEPARATE SCHOOL DISTRICT OP 

BILOXI, MISSISSIPPI, ET AL,
Appellees.

Appeals from the United States District Court for the 
Southern District of Mississippi.

Before HUTCHESON and BELL, Circuit Judges, and BREWSTER, 
District Judge

BY THE COURT:-
IT IS ORDERED that the Petitions of appellees in the



47
above entitled and numbered causes for a recall of the mandate 
be, and the same are hereby DENIED.

(ORIGINAL FILED MARCH 5, 1964)
A true copy

Test: EDWARD WADSWORTH 
Clerk, TJ.S.Court of Appeals, Fifth Circuit 

By /s/ Clara R. James 
Deputy

New Orleans, Louisiana MAR 5 1964 
O.B. 1964, Page 344

* * * * # # * #

((R-57 - Subpoena which is not copied here.)
* * * * * * * *

(R-58)
ANSWER

(Title Omitted-Filed Mar 30,1964)

COME NOV/ the defendants in the above styled and num­
bered action, by their attorneys, and for answer to the com­
plaint exhibited against them in the above styled and numbered 
action, would show unto the Court the following:

1. The allegations of paragraph 1 of the complaint are 
denied.

2. The defendants admit that this is a proceeding for 
a preliminary and permanent injunction against the defendants; 
however, the defendants deny the conclusions set forth in 
said paragraph to the effect that the defendants are operating 
a compulsory biracial school system in Biloxi, Mississippi, 
pursuant to their policy, practice, custom, and usage.

3. It is admitted that the plaintiffs are all members 
of the Negro race, but defendants deny that plaintiffs (R-59) 
have the right to bring said action on behalf of all other 
Negro children and their parents in Biloxi, Mississippi, and



48
deny that there are other Negro children or parents in Biloxi, 
Mississippi, for whom or on whose behalf plaintiffs are entitled 
to bring said suit. Defendants admit, on information and be­
lief, that plaintiffs are all citizens of the United States 
and the State of Mississippi, residing in Harrison County, 
Mississippi. Defendants admit, on information and belief, that 
all of the minor plaintiffs are presently attending public 
schools in Biloxi, Mississippi, and it is admitted, on infor­
mation and belief, that all of said minor plaintiffs are eligible 
to apply for enrollment in the public schools of the Biloxi 
Municipal Separate School District. Defendants deny that said 
minor plaintiffs are limited by defendants to schools attended 
by Negro children only pursuant to any policy, practice, cus­
tom and usage of defendants of operating a compulsory biracial 
school system, and deny specifically that defendants are oper­
ating a compulsory biracial school system. Except as herein 
specifically admitted, the allegations and averments of para­
graph 3 of the complaint are denied,

4. The defendants admit that at the time this action 
was filed Dr. J. A. Graves, Peter Kuljis, C. T. Switzer,
Richard Creel and Mrs. Dudley Andrews constituted the Trustees 
of the Biloxi Municipal Separate School District, and that 
Robert D. Brown is Superintendent of Schools, Biloxi Municipal 
Separate School District, but would show that Peter Kuljis'(R-60) 
term as such trustee has expired, and he has been replaced by 
■Cr. Peter Tovlov; that the Trustees of the Biloxi Municipal 
Separate School District are charged with the duty of operating 
public schools in said School District, and are presently 
operating the public schools in said District] that the defend-



49
ant, Robert D. Brown, as Superintendent of the Biloxi Municipal 
Separate School District is the chief administrative officer 
of the said Board of Trustees. Except as herein specifically 
admitted, all allegations and averments of paragraph 4 of the 
complaint are denied.

5. Defendants admit that, with respect to all schools 
under their supervision and control, there are no schools 
attended by members of both the "white" race and "Negro" race, 
but deny that this came into existence pursuant to the require­
ments of state law and is presently continued, perpetuated and 
maintained by defendants as a matter of state law, policy, 
custom and usage. The defendants admit that, at the present 
time, there are 11 schools for which the defendants are res­
ponsible which are attended by students other than those of 
the "Negro" race and are staffed by teachers, principals and 
other professional personnel of other than the "Negro" race. 
Defendants admit that there are two schools within the bounds 
of the Biloxi Municipal Separate School District for which the 
defendants are responsible which are attended only by members 
of the "Negro" race, and that such schools are staffed by 
teachers, principals, and other professional personnel that are 
also of the "Negro" race.

(R-6l) 6. Defendants admit that during the month of 
March, 1963, there was received through the United States Mail 
what purported to be a petition addressed to the Board of 
Trustees and to the Superintendent of the Biloxi Municipal 
Separate School District, but defendants deny that said pur­
ported petition was submitted in accordance with the estab­
lished procedure applicable to all students in the District,



50
and allege that said purported petition has no legal status 
whatsoever, and that the action of defendants in not replying 
thereto was proper in all respects. Except as herein specifi­
cally admitted, each and every allegation and averment of 
paragraph 6 of the complaint is denied.

7. Defendants admit that during the month of May, 1963, 
there was received a telegram addressed to the Board of Trust­
ees, but deny that said telegram constituted a legal petition, 
and deny that same was submitted in accordance with the est­
ablished procedure applicable to all students in the District, 
and allege that said telegram has no legal status whatsoever, 
and that the action of defendants in not replying thereto was 
proper in all respects. Except as herein specifically admitted, 
each and every allegation and averment of paragraph 7 of the 
complaint is denied.

8. Defendants admit the existence of the constitutional 
provisions and statutes referred to in paragraph 8 of the com­
plaint, but deny that any of them are relevant or germane to 
the subject matter herein. Except as herein specifically ad­
mitted, each and every allegation and averment of paragraph 8 

of the complaint is denied.
(R-62) 9. Defendants deny all allegations and averments set
forth in paragraph 9 of the complaint.

10. Defendants admit that plaintiffs have not sought 
to utilize the provisions of the State Pupil Assignment Act as 
adopted in 195^* Sections 633^-01 to 633^-07 of the Mississippi 
Code of 1942, Recompiled. Defendants deny all other allegations 
and averments of paragraph 10 of the complaint.

11. Defendants deny all allegations and averments set



51
forth in paragraph 11 of the complaint.

12. Defendants deny all allegations and averments set 
forth in paragraph 12 of the complaint.

13. Defendants deny that plaintiffs are entitled to any 
relief sought in said complaint.

14. Defendants further allege that there are such diff­
erences and disparities between the ethnic group allegedly re­
presented by plaintiffs and the Caucasian children in the 
District as to form a rational basis for separating such ethnic 
groups in the schools of the Biloxi Municipal Separate School 
District.

15. Defendants allege that the establishment and the 
maintenance of separate specially adapted schools granting 
equal opportunity for development of the differing capacities 
and abilities of the children of the two groups is most advan­
tageous to all.

16. Defendants allege that racial differences are 
factual differences, that neither they nor those represented
by them in the Biloxi Municipal Separate (R-63) School District 
have ever been a party or parties to or represented by counsel 
in any cause wherein an integration decree was entered, and 
hence they are not bound by any decrees heretofore rendered 
between other parties.

17. If the relief prayed for by the plaintiffs in this 
case should be granted, the members of both the White and Negro 
races will be injured by the operation of a compulsory inte­
grated school system in the Biloxi Municipal Separate School 
District. The operation of a compulsory integrated school sys­
tem in such district will run counter to the desires of the



52
great majority of the people of the aforesaid District and will 
be contrary to the welfare and best interests of members of 
both races.

18. For this their further answer to the complaint ex­
hibited against them, defendants would show unto the Court that 
in their operation of the public schools within the bounds of 
the Biloxi Municipal Separate School District the defendants 
have, to the best of their abilities, conducted said schools 
for the best interest of all pupils of the District; that there 
are no attendance areas, as such, within the bounds of the Dis­
trict; and that each and every person desiring to attend a 
public school within the District makes application for a tem­
porary assignment to a school within the District; that said 
temporary assignments are made having in mind the best interest 
of each particular applicant and the overall welfare of (R-64) 
the operation of the public schools in the District; that full 
and complete opportunity is given to all applicants to protest 
such temporary assignments or to request a change in assignment, 
and any such protest or application received immediate and 
prompt attention; that none of the minor plaintiffs or their 
parents have ever objected to any temporary assignment or per­
manent assignment to any school in the District, and the defend­
ants allege that the assignments that have been made were and 
are to the best interest of the children and to the operation 
of the public schools of the District.

19. Defendants affirmatively allege that the manner 
and method and procedure followed in connection with the assi­
gnment of applicants to attend the public schools with the 
bounds of the Biloxi Municipal Separate School District is fair,



53
proper and reasonable and is within the power and authority 
of the defendants in their duty and responsibility for the 
operation of said schools; that necessarily, in the operation 
of said schools, the defendants are vested with the exercise 
of judgment and discretion, and that the procedures followed 
and the assignments made are within and are a legitimate exer­
cise of such judgment and discretion.

WHEREFORE, said defendants respectfully move the Court 
to dissolve the preliminary injunction heretofore issued herein 
and to dismiss this action and the complaint filed herein.

JOE T; PATTERSON,ATTORNEY GENERAL 
Jackson, Mississippi 
VICTOR B. PRINGLE 
Biloxi, Mississippi 
DUGAS SHANDS,ASSISTANT ATTORNEY 

GENERAL
Jackson, Mississippi 
THOMAS H. NATIONS 
Jackson, Mississippi
BY  _/s/ Thos. H. Watkins 

ATTORNEYS FOR DEFEMIANTS
(R-65 Certificate of Service which is not copied here.)

* * * * * * * *

(R-66) INTERROGATORIES
(Title Omitted-Filed Apr 14,1964)

TO: Honorable Joe T. Patterson 
Attorney General of the 

State of Mississippi 
Jackson, Mississippi
Dugas Shands, Esq.
Assistant Attorney General 

of the State of Mississippi 
Jackson, Mississippi
Thomas H. Watkins, Esq. 
oOO Plaza Building 
Jackson, Mississippi

EdiibiT T ^g............ ......... ........r-
Witness

May"2I“ T95¥------
United States District Court 

Southern District of Mississ­
ippi, DENTON B. JORDAN,
R e p o r t e r _____________



54
Victor B. Pringle, Esq.
Biloxi, Mississippi

Attorneys for Defendants
Plaintiffs request that the defendants Dr. J. A. Graves,

Dr. Peter Tovlov, C. T. Switzer, Richard Creel, Mrs. Dudley 
Andrews, and Robert D. Brown, Superintendent, answer under 
oath in accordance with Rule 33 of the Federal Rules of Civil 
Procedure, the following interrogatories:

1. List for each public school in the Biloxi Municipal 
Separate School District:
(R-66a) a. Grades served by each school;

b. Number of Negro pupils in attendance as of the 
beginning of the 1963-64 school year, and as of the 
latest date for which figures are available, at each 
school;

c. Number of white pupils in attendance as of the 
beginning of the 1963-64 school year, and as of the 
latest date for which figures are available, at each 
school;

d. Number of Negro teachers and other administrative 
or professional personnel employed as of the beginning 
of the 1963-64 school year at each school;

e. Number of white teachers and other administrative 
or professional personnel employed as of the beginning 
of the 1963-64 school year at each school;

f. The planned pupil capacity of each school;
g. The number of regular classrooms available at each 

school;
h. The number of teaching stations in use at each 

school, i.e.,lunchrooms, libraries, auditoriums, corridors,



55
©tc, presently being utilized, as classrooms although 
intended for other purposes.
2. Give the standards employed to determine the assign­

ment of children to a particular public school, explaining 
what opportunity, if any, students have for selecting the 
school to which they are assigned:

a. When a child enters the school system at the first 
grade level;

b. When a child enters the school system at an upper 
grade level;

(R-66b) c. When & child is promoted from elementary school 
to junior high school;

d- When a child is promoted from junior high school 
to high school;

e. When a child is promoted from elementary school 
to high school;

f. When a child changes residence from one place with­
in the school district served by defendants to another 
place within the district served by defendants.
3. What objective factors are used in making assign­

ments in "the best interest of each particular applicant and 
the overall welfare of the operation of the public schools in 
the District," (see Answer, par. 18).

4. To what extent are assignments affected by:
a. The discipline problem in the schools as well as 

to and from the schools;
b. The relative abilities of pupils;
c. The compatibility of teachers and other members of 

the professional staff to their respective assignments;



5$
d. The availability of teachers and other members of 

the professional staff;
e. Hie welfare of the community as well as the wel­

fare of the pupils;
f. The safety of the pupils;
g. All other matters and facts of similar nature that 

should be considered.
5. List the differences and disparities between Negro 

and white children in the District which provide the basis for 
separating Negro and white groups into separate schools (Answer, 
par. lA).
(R-66c) S. State how the separate schools for Negro and 
white children are specially adapted for the development of the 
differing capacities and abilities of the children. (Answer, 
par. 15).

7» State to what extent the present operation of the 
defendants' school system is based on the Board's belief that 
the "operation of a compulsory integrated school system in 
such district will run counter to the desires of the great maj­
ority of the people of the aforesaid district and will be con­
trary to the welfare and best interest of members of both races’.1 
(Answer, par. 17).

8. If no attendance areas are now used to assign stu­
dents (Answer, par. 18), state whether school zones, attendance 
lines or some geographic definition of assignment to the public 
schools have ever been employed by defendants and, if so, state 
when use was discontinued, specifically referring to minutes 
of Board meetings or other public records where this can be 
verified.



57
9. How do present assignments differ, in result, from 

those previously made in accordance with attendance areas, 
school zones, or similar standards?

10. Attach or state any official announcements or res­
olutions made or adopted by defendants pertaining to desegre­
gation of the public schools since the 1954 Supreme Court 
decision.

11. State what, if anything, has been done by the de­
fendants and by each of them in the way of compliance with the 
order of the United States District Court of March 4, 1964, in­
cluding efforts to prepare students, teachers, parents and the 
community for the possible effectuation of such order in 
September 1964.
(R-66d)l2. What obstacles, if any, are there which will pre­
vent the complete desegregation of the school system under the 
jurisdiction of defendants at the beginning of the 1964-65 
school year.

15. What obstacles, if any, are there which will pre­
vent the complete desegregation of the school system under the 
jurisdiction of defendants at the beginning of the 1964-65 
school year.

14. State with respect to each of the minor plaintiffs 
named in this suit and presently enrolled in the defendants' 
schools, the following information:

a. School and grade to which now assigned;
b. Nearest all-Negro school to residence serving 

plaintiff's grade level;
c. Nearest all-white school to residence serving

plaintiff's grade level.



58
15- State the courses, programs and facilities which 

are available at schools attended by whites which are not 
available at schools attended by Negroes.

16. Using latest available figures, state the differ­
ential in the per capita expenditures for Negro and white stu­
dents above the state minimum program.

17. Using latest available figures, state the differ­
ential in scholastic achievement levels between Negro and white 
students in the defendants’ schools, indicating what tests 
were given to determine achievement, when were such tests ad­
ministered, and in which schools.

PLEASE TAKE NOTICE that a copy of such answers must be 
served upon the undersigned within fifteen (15) days after 
service.

Dated: April 11, 1964.
(R“°6e) /s/ Derrick A Bell, Jr.

R. Jess Brown"'
125t N. Parish Street 
Jackson, Mississippi
Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr.
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs
(This instrument carries proper Certificate of Service which is not copied here.

* * * * * *

(r -67) OBJECTION TO INTERROGATORIES
(Title Omitted-Filed Apr 22“ I§64)

NOW COME the defendants in the above styled and numbered 
action, by their attorneys, and object to certain interrogator­
ies heretofore filed and served on said defendants as follows,



59
to-wit:

(a) Said defendants object to being required to ans­
wer interrogatory No. 11 for the reason that this Court's order 
of March 4,1964, directed said defendants to submit a plan 
pursuant thereto not later than July 15, 1964, and that any­
thing that said defendants may or may not have done as of this 
date in compliance with said order is neither material nor re­
levant to any issue in this action and is not within the realm 
of legitimate concern of the plaintiffs as long as the defend­
ants comply with this Court's said order of March 4, 1964, with­
in the time and in the manner therein provided.

(b) Said defendants object to being required to answer 
interrogatories No. 12 and 15 for the reason that this (R-68) 
Court's preliminary injunction order of March 4, 1964, does 
not require the complete desegregation of the school system 
under the jurisdiction of the defendants at the beginning of 
the 1964-65 school year. Said defendants, therefore, submit 
that the numerous and insurmountable obstacles which would pre­
vent the complete desegregation of the school system at the 
beginning of the 1964-65 school year are at this time immaterial 
and irrelevant to any issue before the Court.

WHEREFORE, said defendants respectfully move that they 
be relieved of the obligation to answer any of the above men­
tioned interrogatories.

JOE T. PATTERSON,Attorney General
Jackson, Mississippi
VICTOR B. PRINGLE
Biloxi, Mississippi
DUGAS SHANDS, Assistant Attorney 

General
Jackson, Mississippi



60
THOMAS H. WATKINS 
Jackson, Mississippi
BY  /s/ Thos. H. Watkins ______
ATTORNEYS FO R^lj& D A N TS

(R-69 Notice of Hearing and Certificate of Service which are not copied here.)

* * * * * *

(R-70) PLAINTIFFS' RESPONSE TO DEFENDANTS'
, OBJECTIONS TO INTERROGATORIES 
(Title Omitted-Filed Apr 27, 1964)

1. Plaintiffs are in receipt of objections to interro­
gatories No. 10 and No. 11 filed in the Evers case, Civil Action 
No. 5379 on April 11, 1964, and with respect to said objections 
state to the Court that said interrogatories No. 10 and No. 11 
(R-71) are withdrawn by plaintiffs.

2. Plaintiffs are in receipt of objections to interroga­
tories Nos. 11, 12 and 15 filed on April 11, 1964 in the Mason 
case, Civil Action No. 2696, and with respect to said object­
ions state to the Court that said interrogatories, Nos. 11, 12 
and 15 are withdrawn by plaintiffs.

5. While plaintiffs' counsel have not received similar 
objections to the interrogatories filed in the Hudson case,
Civil Action No. 5382, plaintiffs' withdraw interrogatories 
Nos. 10, 11 and 12.

Respectfully submitted.
/s/ Derrick A. Bell, Jr._________
R. Jess Brown 
125t N. Parish Street 
Jackson, Mississippi
Jack Young
115! N. Parish Street 
Jackson, Mississippi



61

Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr.
Columbus Circle 
New York 19* New York

Attorneys for Plaintiffs
(This instrument carries Proper Certificate of Service which is not copied here.)

* * * * * *
(R-72 is continuation of Certificate of Service which is not copied.)

* * * * * *

(R-73) , a n s w e r t o i nt er r o g a t o r i e s
(Title Omitted-Filed Apr. 28, 1964)

NOW COME the defendants, C. T. Switzer, Dr. J. A. Graves, 
Richard Creel, Mrs. Dudley Andrews, and Dr. Peter Tovlov, as 
members of the Board of Trustees of the Biloxi Municipal Sep­
arate School District, and Robert D. Brown, as Superintendent 
of Schools of said District, and answer under oath in accordance 
with Rule 95 of the Federal Rules of Civil Procedure the inter­
rogatories heretofore propounded to them as follows: (R-74)
Interrogatory I. 1 1

a b1 b'
Beauvoir 1-6 'O' " 0
Dukate 1-6 0 0
Fernwood Elem.1-6 0 0
Gorenflo 1-6 0 0
Howard II 1-6 0 0
Jeff Davis 1-6 0 0
Lopez 1-6 0 0
Perkins 1-6 778 747Popp's Ferry 1-6 0 0
West End 1-6 0 0
Central 7-9 0 0
Fernwood 7-9 0 0
Michel 7-9 0 0
Biloxi High 10-12 0 0
Nichols 7-12 448 430

1 2c c d e f g
~ W 5  553 6 23 550 22
367 327 0 15 320 14
302 254 0 11 420 14
623 547 0 22 630 21
422 384 0 16 480 IS
631 575 0 21 600 20
484 466 0 19 540 18

0 0 26 0 840 28
566 557 0 21 600 20
442 398 0 15 420 14
484 431 0 27 630 27
475 446 0 23 540 18
547 499 0 29 630 22

1283 1154 0 67 1500 560 0 22 0 510 17
^Basement rooms converted to classrooms.

h
02*
0
02*
0
3*
0
01*
0
0
0
0
0

a. Grades served by each school.
V1 „b Number of negro pupils in attendance as of the beginning of



62

the 1963-64 school year at each school
2b Number of negro pupils in attendance for the 7th school 

month
c Number of white students in attendance first month at each 

school.
2c Number of white students in attendance seventh month at each 

school.
d Number of negro teachers and other administrative or pro­

fessional personnel.
q Number of white teachers and other administrative or pro­

fessional personnel employed as of the beginning of the 
1963-64 school year at each school, 

f The planned pupil capacity at each school, 
g The number of regular classrooms available at each school, 
h The number of teaching stations in use at each school, i.e., 

lunchrooms, libraries, auditoriums, corridors, etc., pre­
sently being used as classrooms although intended for other 
purposes.

(R-75) Interrogatory 2.
Students have no opportunity to select the school they 

wish to attend. Parents who question the tentative placement 
by the Superintendent may complete the proper forms for board 
consideration.

a. Pre-registration is held in the spring. Children 
usually pre-register in the general area where they live. In 
August, another registration is held at the same schools. The 
registration forms are carried to the office of the Superintend­
ent for assignment. Students arriving after registration dates 
must go to the office of the Superintendent for placement.



63
b. Students pre-register in the same manner as in (a) 

above. Placement is made by the Superintendent, confirmed by 
the board.

c. Students pre-register in spring, placed by the 
Superintendent, assigned by the board.

d. Same as (c) above.
e. Children are not promoted from elementary to high 

school level.
f. Student may make application for transfer. If tran­

sfer is approved, Superintendent assigns student, confirmed by 
board.
Interrogatory 3.

There are no objective factors involved in the assign­
ment of pupils even though the general area of residence has a 
part.
Interrogatory 4.

a. None
b . None
c. None
d. None
e. To the extent evaluated by the judgment of the 

Superintendent and Board.
f. None
g. None.

(R-76) Interrogatory 5.
To the extent evaluated by the judgment of the Superin­

tendent and Board.
Interrogatory 6.

(1) Educational leadership is furnished, primarily, by



64
the principal on the local level.

(2) In the judgment of the Superintendent and Board, 
leadership furnished by a member of an ethnic group is beneficial 
to the group served and to the community.
Interrogatory 7.

The present operation of the Biloxi Public Schools has 
been in existence for many years. Assignments to the various 
schools have not been questioned without a judicious hearing. 
Interrogatory 8.

(1) Attendance zones have been used in the past.
(2) Use was discontinued on October 16, 1961. Ref: 

Official minutes of the proceedings of the Board of Trustees, 
Biloxi Municipal Separate School District, page 2933, dated 
October 16.
Interrogatory 9.

Changes have been insignificant.
Interrogatory 10.

No official announcements have been made by the board 
other than those in connection with the suits against the school 
district.
(R-77) Interrogatory 11.

Not necessary. Objection to this interrogatory hereto­
fore filed.
Interrogatory 12.

Not necessary. Objection to this interrogatory hereto­
fore filed.
Interrogatory 13.

Not necessary. Objection to this interrogatory hereto­
fore filed.



65
OGATORY 14

a a b c d
Black, Jerry Nichols 10th Nichols Biloxi High
Black, Gary Perkins 6th Perkins Dukate
Black, Diane Nichols 7th Nichols Central Jr.High
Boglih, Daryl Perkins 2nd Perkins Gorenflo
Davis, Linda Perkins 5th Perkins Dulcate
Davis, Jessica Perkins 4th Perkins Dukate
Davis, Henry L. 
Edwards, Gloria

Nichols 9th Nichols Central Jr.High 
X

ELzy, Janice 
Elzy, John Jr.

Nichols 11th Nichols Biloxi High
X

Esters, Rehofus Nichols 12th Nichols Biloxi High
Esters, John Nichols 
Esters, Michael 
Esters, La Valerie 
Harris, Barbara

10th Nichols Biloxi High
X
XV*

McKinley, James Perkins 6th Perkins Dulcate
McKinley, Sylvia Nichols 8th Nichols Central Jr.High
Ma rlen, Adrienne Nichols 10th Nichols Biloxi High
Mason, Gilbert Perkins 5th Perkins Gorenflo
Munford, Patsy Nichols 12th Nichols Biloxi High
Mumford.Rosa Nichols 10th Nichols Biloxi High
Nunley, Clifton Nichols 11th Nichols Biloxi High
Nunley,Gretchen Perkins 2nd Perkins Dukate
Rosado,Bernard Nichols 11th Nichols Biloxi High
RosadoErnest Nichols 11th Nichols Biloxi High
a School to which now assigned.
pa Grade to which now assigned.
b Nearest Negro School serving plaintiff’s graae.
c. Nearest white school serving plaintiff's grade,
d Not enrolled in the Biloxi Municipal Separate School
, District. 
(R-79)Interrogatory 15-

Elementary:
Special Education

Secondary:
LatinAdvanced Mathematics 
Earth and Space Science 
Electronics 
Auto Mechanics

Distributive Education 
Trades and Industry 
Secretarial Training 
Language Laboratory

Note: Courses are offered according to demand by 
students.



66Interrogatory 16.
As of April 1, 1964, the amount spent above minimum pro­

gram funds was $10.90 greater per student for negro than white.* 
*Fiscal year 1963-64.

Interrogatory 17.
Median Median Differential
Stanine Stanine of DateGrade Test White Negro Negro Given1 Stan Ach 6 4 -2 5-63Stan Ach 6 3 5-636 Stan Ach 6 2 -4 4-638 Stan Ach 5 2 -3 3-6310 ITED 5 5 -2 12-6311 ITED 5 3 -2 12-63

Note: Achievement scores are shown for composite 
scores only. These tests were administered in the grades indi­
cated at all schools.
(R-80)
UNITED STATES OP AMIGA STATE OP MISSISSIPPI COUNTY OP HARRISON

Personally appeared before me, the undersigned authority 
in and for the jurisdiction aforesaid C. T. Switzer, Dr. J.A. 
Graves, Richard Creel, Mrs. Dudley Andrews, and Dr. Peter 
Pavlov, as members of the Board of Trustees of the Biloxi 
Municipal Separate School District, and Robert D. Brown, as 
Superintendent of Schools of said District, who having been 
by me first duly sworn state on oath that the matters and facts 
set out in the foregoing answers to interrogatories are true 
and correct as therein stated.
Zs/ C. T. Switzer___________ /s/ Mrs. Dudley Andrews_____________
C. T. Switzer Mrs'. Dudley Andrews'"
h/  J. A, Graves 
&*« J. A. Graves ~

s/ Peter Pavlov •r. "Peter Pavlov



MRiel
Richard Creel 

ichard“Creel

67
/s/ Robert D. Brora 
Robert D. Brora

SWORN TO AND SUBSCRIBED BEFORE ME, this 28th day of 
April, 1964.
m  COMMISSION EXPIRES: /s/ Katherine Davis
My Commission Expires March NOTARY PUBLIC
1L J L 268___________________  (s e a l )
(R-81)

CERTIFICATE

The undersigned counsel of record for the defendants
in the above styled and numbered action hereby certifies that
true copies of the foregoing answer to interrogatories have
been this day forwarded by United States Mail, postage prepaid,
to Hon. R. Jess Brown, 125|- North Parish Street, Jackson,
Mississippi, and to Hon. Jack Greenberg, Hon. Constance Baker
Motley, and Hon. Derrick A. Bell, Jr., 10 Columbus Circle,
New York 19, New York, Attorneys of record for the plaintiffs.

This 28th day of April, 1964.
/s/ Victor B. Pringle 
Of Counsel for Defendants

* * * * * * * *
(R-82 Civil Subpoena which is not copied here.)

* * * * * * * *
(Testimony in the Case of Evers etal V. Jackson Municipal 
School District is adopted in this case but is not copied here.)

* * * * * * * *
(R-83 list of Exhibits which is not copied here.)

* * * * * * * *



68
(R-84) OPINION OF THE COURT

(Title Cmitted-Filed July 7, 1964)

This case is controlled by the opinion this day render­
ed by this Court in Evers, et al vs. Jackson Municipal Separate 
School District,et al, Civil Action No.3379 in the Jackson 
Division. The Court makes the same findings of fact and con­
clusions of law in this case that were made in the Evers vs. 
Jackson Municipal Separate School District case, and an order 
shall be entered herein accordingly.

RENDERED, this the 6th day of July, 1964.

/s/ S. C. Mize
U N I ®  ’STATES DISTRICT JUDGE'

* * * * * * * *
(R-85 to R-lll Opinion of the Court which is not copied here 
because of the full text of the Opinion appears in the appeal 
record in the case of Evers et al vs. Jackson Municipal Separ­
ate School District et al, which record is adopted here.)

* * * * * * * *

(R-112) J U D G M E N T
(Title Omitted- Filed July 7,1964)

1. The temporary injunction heretofore entered herein 
is hereby made permanent.

2. No costs are awarded to any party as against the
other.

3. The Court reserves jurisdiction in this cause for 
the purpose of approving, disapproving, altering, amending or 
changing any plan submitted to this Court pursuant to and in



69
accordance with the temporary injunction heretofore issued 
and hereby made permanent, such jurisdiction being reserved 
as long as this injunction remains in effect.

ORDERED, ADJUDGED AND DECREED, this the 6th day of 
July, 1964.

/s/ _ S. C. Mize UNITED states'
O.B. 1964, Page 789

* * * * * * * *

(R-113) , DESEGREGATION PLAN(Title 0mitted':MIeTEjul~“157 1964)

NOW COME the defendants in the above styled and num­
bered action, by their attorneys, and submit the following 
plan under which said defendants propose to make an immediate 
start in the desegregation of the schools of said School Dis­
trict in accordance with that certain preliminary injunction 
order entered by this Court under date of March 4, 1964, and 
subsequently made permanent by order of this Court, as follows, 
to-wit:

1. That the maintenance of separate schools for 
the Negro and white children of said School District 
shall be completely ended with respect to the first 
grade during the school year commencing September,1964, 
and with respect to at least one additional grade each 
school year thereafter.

2. That for the school year beginning in September, 
1964, all pupils entering the first grade shall be ad-r 
mitted to the various elementary schools without (R-114) 
regard to race, giving primary consideration to the



70
choice of the pupil or his parent or legal guardian.

3. That among those pupils in a desegregated grade 
applying for admission to a particular school, where 
adequate facilities are not available for all applying 
pupils, priority of admission shall be based on the 
promimity of the residence of the pupil to the school, 
except that for justifiable administrative reasons, 
other factors unrelated to race may be applied.

4. That where a pupil in a desegregated grade, or 
his parent, or legal guardian, has indicated his choice 
of schools, as herein provided, and has been notified 
of his admission to such school, transfer to another 
school will be permitted only in a hardship case or for 
valid reasons unrelated to race.

5. That not later than August 10th, 1964, the de­
fendant Board will publish this plan in a newspaper 
having general circulation throughout the School Dis­
trict so as to give all pupils and their parents or 
legal guardians notice of the rights that are to be 
accorded them.
Attached hereto marked Exhibit nAi: is a certified copy

of a Resolution of the Board of Trustees of said School District
authorizing the adoption of said plan.

JOE T. PATTERSON, ATTORNEY- GENERAL 
Jackson, Mississippi 
DUGAS SHANDS, ASSISTANT ATTORNEY- 

GENERAL
Jackson, Mississippi 
THOMAS H. RATIONS, SPECIAL COUNSEL 
Jackson, Mississippi 
VICTOR B. PRINGLE,SPECIAL COUNSEL 
Biloxi, Mississippi 
BY /a/ Thos. H. Watkins 

ATTORNEY'S FOR DEFENDANTS * * * * * * * *



71
(R-115 Certificate of Service is not copied here.)

(R-116) EXHIBIT 11 A"

RESOLUTION OP BOARD OP TRUSTEES OP 
BILOXI MUNICIPAL SEPARATE SCHOOL DISTRICT 

ADOPTED JUIX 10, 1964

WHEREAS, in the United States District Court for the 
Southern District of Mississippi, Southern Division, in the 
case of Gilbert R. Mason, Jr., et al v. Biloxi Municipal Separa­
te School District, et al, Civil Action No. 2696, the Court, 
under date of March 4, 1964, entered its preliminary injunction 
order requiring the Board of Trustees of the Biloxi Municipal 
Separate School District to submit to said Court, not later 
than July 15, 1964, a plan under which said Trustees would make 
an immediate start in the desegregation of the schools of said 
School District; and

WHEREAS, said preliminary injunction order of said 
District Court also required said plan to include a statement 
that the maintenance of separate schools for Negro and white 
children of said School District shall be completely ended with 
respect to at least one grade during the school year commencing 
in September, 1964, and with respect to at least one additional 
grade each year thereafter; and

WHEREAS, said preliminary injunction order has now been 
wade permanent by said U. S. District Court.

NOW THEREFORE, BE IT RESOLVED that the following plan 
be filed with the said U. S. District Court as compliance with 
its said injunction order:



72
(R-117) "1. That the maintenance of separate schools for the 
Negro and white children of said School District shall be com­
pletely ended with respect to the first grade during the school 
year commencing September, 1964, and with respect to at least 
one additional grade each school year thereafter.

"2. That for the school year beginning in September, 
1964, all pupils entering the first grade shall be admitted to 
the various elementary schools without regard to race, giving 
primary consideration to the choice of the pupil or his parent 
or legal guardian.

"3. That among those pupils in a desegregated grade 
applying for admission to a particular school, where adequate 
facilities are not available for all applying pupils, priority 
of admission shall be based on the proximity of the residence 
of the pupil to the school, except that for justifiable ad­
ministrative reasons, other factors unrelated to race may be 
applied.

"4. That where a pupil in a desegregated grade, or his 
parent, or legal guardian, has indicated his choice of schools, 
as herein provided, and has been notified of his admission to 
such school, transfer to another school will be permitted only 
in a hardship case or for valid reasons unrelated to race.

"5. That not later than August 10th, 1964, the de­
fendant Board will publish this plan in a newspaper having 
general circulation throughout the School District so as to 
give all pupils and their (R-118) parent or legal guardians 
notice of the rights that are to be accorded them,"

BE IT FURTHER RESOLVED that a certified copy of this 
Resolution be furnished to the attorneys for transmission to the



75
U. S. District Court for the Southern District of Mississippi 
in accordance with its direction,
(R-119)

This is to certify that the above and foregoing 
Resolution is a true and correct copy of a Resolution adopted 
by the Board of Trustees of the Biloxi Municipal Separate 
School District of Harrison County, Mississippi, at its re­
cessed meeting on July 10, 1964, being a second recessed 
meeting of the regular meeting of the Board on June 15, 1964, 
which was recessed until July 7» 1964, and then recessed until 
July 10, 1964, as same appears on the minutes of the Board of 
Trustees in Book VII, page 4550 thereof,

/s/ Mrs, Dudley Andrews___________
Mrs. Dudley Andrews 

Secretary of the Board
* * * * * * * *

(R-120)
PLAINTIFFS1 OBJECTIONS TO DESEGREGATION PLANS FILED BY 

EEBfflEffiMr' boards and MOTIOŵ IOEVTseD' PLANS 'Tm r6~ a.ttea - F iiea~ ju iy  T5th;— ig m r

Plaintiffs in the above cases having reviewed the de­
fendant Boards plans of desegregation filed on July 15, 1964, 
as required by the orders of this Court, have concluded that 
such plans fail to meet the minimum standards for initial de­
segregation plans as set by the United States Supreme Court 
and the United States Court of Appeals for the Fifth Circuit, 
and therefore move the Court to require defendant Boards to pre­
pare and file revised plans correcting the failures set forth 
below:
(R-121) l. The plans filed by defendant Boards have failed
to show why no more than one grade can be entirely desegregated 
In September, 1964, nor do the plans clearly indicate that more



74
than one grade will be desegregated in subsequent years.

2. The plans filed by defendant Boards fail to speci­
fically and clearly provide for the elimination of all dual 
school districts based on race through the assignment of all 
children within the grade(s) to be desegregated according to a 
single set of zone lines, which failure places the burden of 
seeking desegregated assignments on Negro parents and children.

3. The plans filed by defendant Boards are too vague 
in providing that desegregated assignments may be denied "where 
adequate facilities are not available for all applying pupils," 
and "for justifiable administrative reasons (and) other factors 
not related to race . . . "

4. The plans filed by defendant Boards fail to include 
provision for all students entering the systems for the first 
time to be assigned on a non-racial basis, and further fails to 
provide a procedure by which students presently attending the 
school systems, but not eligible for attendance at a grade 
being entirely desegregated, may apply for desegregated trans­
fers and have such transfers applications reviewed and deter­
mined according to standards not based on race and no different 
than are applied to children admitted to the schools where 
transfers are sought.

Plaintiffs* omission of other aspects of the relief 
requested in their complaints, including desegregation of fac­
ulties is not intended by plaintiffs * to constitute a waiver 
of such relief.

Plaintiffs pray that a hearing can be promptly had on 
their objections and motions so that defendants can prepare, 
file and place in operation a revised plan that accords with



the provisions set forth above.
75

R. JESS BROWN
125|- NorthFarish Street 

Jackson, Mississippi 39201
(R-122) JACK H. YOUNG

1152 North Parish Street 
Jackson, Mississippi 39201

JACK GREENBERG 
CONSTANCE BAKER MOTLEY 
DERRICK A. BELL, JR,

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs
By /s/ Derrick A. Bell, Jr.

(This instrument carries proper Notice of Motion and Certificate of Service which are not copied here,)
* * * * * * * *

(R-123)
/ t r a n s c r i p t o p t e s t i m o n y
(Title' Omitted - Piled Jul 27, 1964)

APPEARANCES:
Honorable Derrick A. Bell, Jr., Attorney,

10 Columbus Circle, New York 19, New York 
Honorable Jack Young, Attorney, 115i North Parish 

Street, Jackson, Mississippi;
For Plaintiffs.

Honorable Victor B. Pringle, Attorney, Biloxi,Mississippi 
Honorable Thomas H. Watkins, 800 Plaza Building,Jackson, Mississippi; *
Honorable Joe T. Patterson, Attorney General of the 

State of Mississippi, Jackson, Mississippi;
Honorable Dugas Shands, Assistant Attorney General of 

the State of Mississippi, Jackson, Mississippi;
For Defendants.

BE IT REMEMBERED that on Thursday afternoon, the 21st day of 
May, 196a , the above-entitled cause came on for hearing before 
Honorable S. C. Mize, United States Judge for the Southern Dis­
trict of Mississippi, at Jackson, Mississippi, and the following 
proceedings were had and entered of record.
(R-124) (GILBERT R. MASON, JR., ET AL, Vs. BILOXI MUNICIPAL
SEPARATE SCHOOL DISTRICT OP BILOXI, MISSISSIPPI, Civil Action
Number 2696, United States District Court for the Southern Dis-



7 6
trict of Mississippi, Southern Division)
MR. DERRICK BELL, for plaintiff;

Rather than have our plaintiff placed on the stand,
Dr. Gilbert Mason, we were going to stipulate as to the facts 
that he would testify to here.

In looking through the record in this case, I see that 
in support of the motion for preliminary injunction which was 
filed last June down in Biloxi,, Dr. Mason had prepared and 
signed an affidavit, which affidavit sets forth the facts 
which, had he been here today, he would have testified to.

I therefore move that the affidavit, together with 
two exhibits consisting of a petition and a telegram petition 
to the Biloxi Board, be admitted as Exhibit 1 for the Plaintiffs 
on the trial of this case, subject to objections by defendant 
Board.

THE COURT; As I understand it now, that, by agreement, 
is filed as a statement and agreement that if he were present 
he would testify to those facts, and those exhibits attached 
would be introduced?

MR. BELL: Yes, that is correct.
THE COURT: Very well. Let the affidavit be filed 

again and, I guess, marked --
(R-125) MR. BELL: It’s already a part of the record, the 
earlier record in the case.

THE COURT: All right.
MR. WATKINS: I think it would be better to mark it now.
MR. BELL: That would be Plaintiff*s Exhibit 1 in the 

Mason case.
(Same received and marked as Plaintiff*s Exhibit No. 1)



77
MR. BELL: As plaintiffs Exhibits 2 and 3, we should 

like to introduce the Interrogatories filed in this case and 
the answers to interrogatories filed in the Mason case.

THE COURT: Let them be received in evidence as 
Exhibits 2 and 3.
(Same received and marked as Plaintiff*s Exhibits No. 2 and No.
3)

3®. BELL: And finally, we had some questions for the 
school board superintendent. I understand Mr. Watkins will 
want to put him on for some questions of his own, and perhaps 
it would be a more orderly process to let us ask our questions 
after he has finished.

With that, I believe the plaintiffs would rest their 
case in Mason versus Biloxi, subject to the right to cross 
examine and also question the superintendent when he is called 
by the defendants.

THE COURT: Very well. Is that agreeable, Mr.Watkins? 
MR. WATKINS: Yes, sir.
THE COURT: Mr. Pringle?

(R-126) MR. VICTOR PRINGLE: Yes, sir, that is all right with us. 
We call Mr. R. D. Brown.

H. D. BROWN, called as a witness by the defendants and having 
been duly sworn, testified as follows:

DIRECT EXAMINATION
BY MR. PRINGLE:
Q. State for the court reporter your name and occupation and 

address.
A. Robert D. Brown, Superintendent of Biloxi City Schools,



78
Biloxi, Mississippi.
Shall I give ray residence? 1864 Pass Road, Handsboro, 
Mississippi.

Q. How long have you been with the Biloxi schools?
A, Since 1949.
Q. In what capacity have you held positions with the Biloxi 

school district?
A. I have held several positions, starting out as classroom 

teacher, supervisor of cafeterias, coordinator of reading 
program, elementary principal, assistant superintendent, 
and superintendent.

Q. How long have you been in school work generally?
A. Since 1935.
Q. What is your educational background and training? (R-127)
A. I finished my undergraduate work at Mississippi State

Teachers College in 1935. I did graduate work at the Uni­
versity of Chicago, finishing ray master's degree at the 
University of Southern Mississippi.

Q. Mr. Brown, will you explain how pupils in the Biloxi School 
District are assigned?

A. They are assigned by the superintendent. Would you like 
an explanation of how?

Q. If you will, please,
A. We have a pre-registration in the spring of the year. Here 

the students at the school they are attending carry home a 
form to be filled out by either the student or the parent, 
brought back to the principal, and the principal turns 
that in to the superintendent.

Then in the fall of the year, perhaps the last week in



79
August or the week before school starts, we have another re­

gistration, and at this time all the students who re­
gistered previous or in the spring will again come in, and 
there’s no work to be done with them; we just take that 
particular form that has been filled out earlier, and those 
who are new in the district since the prior registration 
fill out the forms at that time. They are brought back to 
the superintendent’s office, and he will assign them to a 
sohool that he thinks will be most beneficial to the pupil.

Q. In that respect, are white students assigned to certain 
(R-128) schools and Negro students assigned to certain 
schools?

A. Yes.
Q. Do you have attendance zones in the Biloxi District?
A. No, we do not.
Q. The responsibility of assigning students is your respon­

sibility?
A. I assign students, and it is later approved by the school 

board.
Q. Then that is the final assignment, when it is approved by 

the school board?
A. Yes.
Q. Mr. Brown, have you, prior to this petition by Dr. Mason, 

et al, for the benefit of these 25 Negro children, have you 
had any assignments protested up until that time?

A. I have never had a Negro to protest this assignment to a 
Negro school.

Q. Have you ever had a Negro up until that time request a 
transfer?



80
A, That was ray answer. Up to that time.
Q. Mr. Brown, when you make these temporary assignments, do 

you take into consideration race?
A. Yes.
Q. Why do you do that?
A, I feel that students are happiest when they are with their 

ethnic group, and in order to perform as he should and 
(R-129) progress in his school work he has to be a happy 
individual.

Q. Is there any material difference between the courses of 
study at the Negro schools and the white schools in the 
Biloxi district?

A. Would you state that question again?
Q. Is there any material difference in the courses of study 

furnished by the white schools and those furnished by the 
Negro schools?

A. There is a difference.
Q. What is that difference?
A. We generally add courses to the curriculum of the various 

schools as we have requests for them. At the Negro school 
we have had requests, some year or so ago, for a course in 
building trades. That was added to the curriculum at that 
particular school. We have within the last few years had 
requests for courses at the high school, the white high 
school. We have added these courses to the curriculum 
at that school.

Q. In other words, courses may vary, other than the required 
specified work, from year to year depending upon the 
number of students requesting the additional studies?



81
A. That’s right.
Q. How many school buildings do you have in your district,

Mr. Brown?
A. We have 15.
Q. How many white? (R-IJO)
A. 15. of those are white.
Q. How many students in the student body of the Biloxi School 

District?
A. At the end of the first month of school in Biloxi, we had 

8,899 students enrolled.
Q. How many of these students were Negroes?
A. Approximately 1,250.
Q. What is the white enrollment?
A, Well, let me subtract. That would leave, in round figures, 

7,600. We have later figures on that, if you would like 
to have it.

Q. If you have it, I would like it.
A. At the end of the seventh month, we had 1,177 Negroes; we 

had, 6,550 whites.
Would you like for me to explain why there is a drop in the 
total enrollment?

Q. Yes, I would, please.
A. About fifty percent of our student body is made up of people 

connected with military establishments within our corporate 
limits. We have no control over the number of people who 
are there this month or who will be there the month follow­
ing. In the beginning of this —  Let me back up.

About July of last year, which would be in 1963, we 
had approximately 25,000 people Keesler - connected —  that



82
is, fathers on Keesler, At this time we have perhaps 
five (R-131) or six thousand less than that, so naturally 
as the number of people who are Keesler-connected are trans­
ferred to other bases, our student body will fluctuate with 
this transfer.

Q. What is the approximate valuation of your school plant in 
the Biloxi School District?

A. I would say in the neighborhood of $20,000,000.00.
Q. Mr. Brown, what is the average cost of teachers* salaries 

in the Biloxi School District?
A. Did you say the average teacher's salary in the school 

district?
Q. Yes.
A. This past year our average salary for white teachers in 

Biloxi was $4,240.00. The average salary for our Negro 
teachers was $4,407.00,

Q. How do you account for the fact that the salaries paid the 
Negro teachers are inexcess of the salaries paid the white 
teachers in the Biloxi district?

A. We have a one salary schedule —  that is, Negro and white 
teachers start at the same salaries if they have the two 
factors that salaries are based on - college training or 
certification here in the state department, and experience. 
The supply of Negro teachers has been a little bit better 
than white teachers, so we have been able to employ exper­
ienced Negro teachers with perhaps higher degrees, higher 
certification, than we have white teachers; so as a whole, 
our Negro salaries have been (R-1J2) higher than white 
salaries since about 1957 or *58.



83
Q. What is the ratio between the number of teachers in the 

Negro schools with masters degrees and doctors degrees as 
compared to the number of white teachers in the white 
schools?

A. I don’t know exactly, but it would be considerably higher.
Q. Would you say, Mr. Brown, that the pupils of the Negro 

schools are obtaining an education that is equivalent to 
that or better as furnished to the white schools in Biloxi?

A. I would answer that by saying that our testing results 
would be generally the same as the test results in the 
Jackson case, in that our Negro youngsters are achieving 
higher than their inate ability indicated that they should 
be achieving.

Q. Have you ever given any achievement tests in the Biloxi 
school system?

A. Yes, we have.
Q. Now, in answer to Interrogatory Number IT propounded by 

the plaintiffs —  I ’ll read the interrogatory:
"Using latest available figures, state the differen­
tial in scholastic achievement levels between Negro 
and white students in the defendants’ schools, indica­
ting what tests were given to determine achievement, 
when were such tests administered, and in which schools." 

And your answer to Number 17, which you will refer to —  
and I will ask you if that is a copy of the answers filed 
in this cause. (R-155)

A. It is.
Q. Would you explain that answer with reference to those tests?
A. As I said earlier, the indication is here that generally



84
our white students are from one to two grades in achie­
vement above our Negro students. This is based upon the 
results of tests that have been given. You will note 
there that in Grade 1 we gave Stanford Achievement Test 
there, the Median Stanine White was 6, while the Median 
Stanine for the Negro was 4. There is a differential of 
a minus 2.

In Grade 3> Stanford Achievement for that grade was 
given. Again we have Median Stanine for white as being 6, 
and Median Stanine for Negroes was 3. You had a differen­
tial of minus 3*

In Grade 6 the test was given. The white again was 
6, and the Negro was 2, and the differential was a minus 4.

However, in the 8th grade, the median for whites was 
5, and the median for the Negro was 2, a differential of 3.

Now, the ITED test was given in both the 10th and 11th 
grades, and we had the white was 5, the Negro 3, a minus 2. 
In the 11th grade, it was 5, the Negro 3, again a differ­
ential of 2.

Q. When were these tests given, Mr. Brown?
A. They were given within the school year of *63, I believe.

Yes, sir.
Q. Mr. Brown, you heard Dr. Barker's testimony here of — —
A. No, I did not. (R-134)
Q. Oh, that's right. You were not here.

Are you familiar with the figures of the Jackson 
School District?

A. Yes, I am.
Q. With reference to the tests that were given in that district?



85
A. Yes.
Q, How does the Biloxi School District test compare with the 

results of the Jackson School District?
A. They are generally the same.
Q. Mr. Brown, in Interrogatory Number 16, I will read that 

question to you:
"Using latest available figures, state the differential 
in the per capita expenditures for Negro and white 
students above the state minimum program.11 

Now, your answer to that interrogatory is:
"As of April 1, 1964, the amount spent above minimum 
program funds was $10.90 greater per student for Negro 
than white."

Would you explain that?
A. You have one of the causes there './hen you look at the 

salaries of the teachers1 pay. This past year our whites 
and Negroes both needed band uniforms. We bought band uni­
forms for the Negroes, in an amount of about $7,000.00. We 
did not buy band uniforms for the white. Then you might 
go further: our maintenance to the Negro school buildings 
(R-135) has been more expensive than maintenance to the 
white school buildings.

Q.» In what respect?
A. Prior to this year it has been broken windows, broken

doors, breaking into the school, general vandalism. And
one of the bigger items, I might say, has been that we
have a gymnasium three years old at the Negro school. The
floor has already been refinished once, and it will have
to be refinished this summer. That's an item of about
$1,500.00.



86
Q. Mr. Brown, the Negro schools in the Biloxi district, are 

they comparable to the white schools?
A. Taken as a whole, the Negro schools are the newest schools 

in the entire district. The oldest building that we have 
at Nichols was occupied in 19^9. The newest addition was 
occupied in January of this year; whereas you take the 
white schools, we have four schools there that were con­
structed in the nineteen-twenty’s. However, the newest 
addition to the white schools is not occupied as yet.

Q. Mr. Brown, with reference to the affidavit entered into 
evidence here by Dr. Mason, in Paragraph 7 he states:

"To the best of my knowledge and belief, the two Negro 
schools in Biloxi are not only racially segregated 
schools, but are also inferior to the schools operated 
for white children."

Is that true or false? (R-136)
A. It is not true. I don't know how he arrived at that con­

clusion. The schools, as has been brought out here, are 
operated identically. We spend the same amount for the 
Negro student's library supplies, the same amount for teach­
ing aids per child, we have a one-salary schedule, and 
we have the best trained personnel that we can possibly 
get. The curriculum is as enriched as we have had demands 
for. — Let me correct that. Not demands. As has been 
asked for.

Q. Do you use the same textbooks for the Negro and white 
schools?

A. Yes, we do.
Q, Mr. Brown, I will ask you if the Negro schools in the Biloxi



87
school system are accredited schools?

A. Yes, sir.
Q. By whom are they accredited?
A. They are accredited by the State Accrediting Division.

Last year for the first time in the history of the Biloxi 
city schools, all schools in Biloxi were double-A 
accredited.

Q. Double-A accredited.
A. This year they are all double-A accredited.
Q. Mr. Brown, in your opinion, what is best for the pupils, 

both white and colored, in the Biloxi school system with 
reference to attending separate schools?

A. I have definite feelings, and these feelings were arrived 
at by experience and by education; that students will per­
form best when they are with their ethnic groups. And in 
my (R-137) opinion as an educator, that is right, and that 
is what we have done, what I have done, since I have been 
in Biloxi, kept them with their ethnic groups.
MR. PRINGLE: That is all.
THE COURT: Cross examine, Mr. Bell.

CROSS EXAMINATION
BY MR. BELL:
Q. You indicated, Mr. Brown, that all children are assigned 

to schools where members of their race are assigned? Is 
that correct?

A. That is what I stated.
Q. And under your philosophy and your belief, as far as edu­

cation is concerned, that integrated assignments or trans­
fers that would result in integration would not be possible?



88
Is that correct?

A. State your question again.
Q. Under your philosophy of education which you feel provides 

the best education for the student, under this philosophy 
it would not be possible for students in your system to ob­
tain integrated assignments or transfers that would result 
in integration?

A. Up to this time they have not been transferred and have 
not been assigned to different schools.

Q. And under your philosophy that would not be possible?
A. If my philosophy is followed, they will not be.(R-138)
Q. And your philosophy is similar to the policy followed by 

the school board?
A. That’s right.
Q. Subsequent to the filing of this suit, it is correct that 

you had two Negroes apply who were at the Biloxi air base?
A. No,
Q. I didn't finish my question.
A. The answer is no.
Q. No what?
A. No, we did not have any to apply subject to the filing of 

this suit.
Q. No, I said subsequent to the filing. After the suit was 

filed.
A. After the suit was filed, yes.
Q. And these persons were seeking assignment for transfer from 

Negro schools to white schools?
A. You say "these persons." Do you mean the students?
Q. No, I mean the parents seeking transfer of assignments on



89
behalf of the students.

A. The parents, yes. The students, no.
Q. And what action was taken by the board in regard to these 

requests?
A. The petition was denied.
Q. Was one of these persons a technical sergeant named 

Harold J. Colb?
A. To the best of my knowledge, the last name is right. The 

(R-139) first I don’t recall.
Q. Was another of these persons Staff Sergeant James W.Tyree?
A. The last name is right. I ’m not sure about the first.
Q. I would like to show you two statements which were purpor­

ted to have been prepared by these two individuals record­
ing their efforts to obtain transfers and ask you to look 
at them and indicate whether or not they correctly reflect 
the facts as you recall them.

MR, WATKINS: If it please the Court, we object to 
this. He is asking the witness to look at purported 
written statements of some third parties and state whether 
it's correct or not. We submit that is not the proper way 
to produce evidence of this kind. Now, he can ask this 
witness what occurred in connection with the transfer, but 
he cannot present him with an alleged written statement of 
a party who is not here and call on the witness to state 
what is correct or incorrect.
MR. BELL: He probably has a point, Your Honor. I was 
trying to save a little time.
THE COURT: All right. Reframe the question.

Q. Let’s look and consider the case of Technical Sergeant Colb,



90
Mr. Brown. Do you recall that on or about August 20,1963, 
you enrolled the children of Sergeant Colb in the Negro 
Perkins Elementary School and the Nichols Junior (R-140) 
High School, notwithstanding the fact that Sergeant Colb 
had requested a desegregated assignment for his children?

A. When I talked to Sergeant Colb on this assignment, he ex­
pressed no desire for his youngsters to attend any school 
other than the one I assigned them to.

Q. Do you recall that you talked to him prior to August 20th?
A. I talked to him only once; whether it was prior or after,

I don't recall.
Q. You do recall taking his children personally and enrolling 

these children in the two Negro schools?
A. Would you state that again?
Q. Do you recall on or about August 20, 1963, enrolling the 

children of Sergeant Colb in the Negro schools?
A. I assigned them to the school; I did not enroll them.
Q, I see. Do you recall receiving an application for review 

and reconsideration of this assignment from Sergeant Colb 
on or about August 28, 1963?

A. I d o n ' t-----
Q. - - - which was submitted to - - -
A . -----You are asking-----The dates I don't remember.
Q. Do you recall receiving somewhat later an application for 

review of that assignment, an application for transfer?
A. To the best of my memory, the president of the board rec­

eived a communication from the sergeant, asking for a re­
view of the assignment, but I was thinking it was in 
September. I could be wrong. (R-l4l)



91
Q. Well, do you recall that in September the Sergeant Colb 

personally appeared before a meeting of the Biloxi Board, 
and at that time presented letters of his grievances and 
requested transfer from the school board?

A. Yes. Now, I'm not sure about the date.
Q. All right. Now, do you recall that at the September l6th 

meeting, or a meeting on or about that date, the school 
board read the letters of grievance of Sergeant Colb and 
indicated that he would be given a hearing on September 30, 
1963?

A. I recall that he was given a hearing.
Q. Do you recall that he appeared at a special hearing with 

the school board?
A. Yes, he and his children did.
Q. Do you recall whether the school board took any final 

action on his request for transfer?
A. Yes.
Q. What was that action?
A. After considering all the facts and our policy, this 

petition was denied. Could I say one other thing?
Q. Yes.
A. With the sergeant, we had asked that his children come.

And when they were asked what school they would like to go 
to they indicated they would be happiest if they were left 
at the school they were then attending. One was Nichols, if 
I recall correctly, and the other was Perkins, both Negro 
schools. (R-142)

Q. When you mention that, does that indicate that the board 
gave some weight to what the children said at that time?



92
A. They followed our policy; but If we had not had a policy, 

we most likely would have followed the desire of the 
students because they are the ones who are receiving an 
education.

Q. Do you generally follow the students* policies as opposed 
to the parents* desires in the situation?

A. With white students we do quite often.
Q,. I see. As to Staff Sergeant Tyree, do you recall that on 

or about September 16, 1963, Sergeant Tyree submitted or 
personally appeared before the school board protesting the 
assignment of his children, James W. Tyree, age 10, Patricia, 
age 9, and Denise Tyree, age 6, each of whom had been 
assigned to the Perkins Elementary School, which is a 
Negro school? Do you recall that?

A. I recall his appearing. I don't know about the date.
Q, And for the purpose of making his protest about the assign­

ment?
A. I don't know whether you would class it as a protest or 

not. He came and asked first that he wanted his youngsters 
transferred from one school to another.

Q. Was he also given a hearing on or about September 30th?
A, Yes.
Q. What action was taken by the school board?
A. The same as in the other case. (R-1̂ 3)
Q. That is the assignment request was denied in accordance 

with the policy as you have enumerated?
A. Yes.
Q. Now, you said that the courses in these schools were not 

exactly the same and that to a certain extent the courses



were based on the number of requests that you had from the 
students attending that school. Is that correct?
Our basic courses are identical —  That is, we expect 
four units of English, two and a half of history, two of 
science, two of mathematics, five and a half of electives, 
making a total of sixteen units.
What happened if an individual Negro in the Nichols High 
School wanted to take Physics?
We offer Physics every other year.
Every other year?
That's right. In that way every student who Is in our 
Negro school will have a chance to take Biology, Chemistry, 
those two courses. You said Physics?
That’s right.
Physics is not offered because, to my knowledge, we have 
never had enough students to set up a class.
I take it that Physics is offered every year in the white 
high school?
Perhaps three or four sections of Physics.
Would you say that the facilities for teaching this course 
every other year at Nichols are Identical to the facilities 
(R-144)
I believe that they are. I don’t recall the exact set-up, 
but I know we bought the furniture for our Biology and our 
Chemistry lab from the same company for both schools, both 
new.
How about the situation as to advanced mathematics, such 
as Trigonometry?
.. . , , courses inWe have never had requests, to my knowledge, for/advanced



94
mathematics at the Negro school.

q, I take it this course is taught in the white schools?
A. We perhaps have two or three sections of it.
q, How about languages other than Spanish in the Negro high 

school?
A. I don't know that we have ever had a request for a language 

other than the one that's being offered there. To my 
knowledge, we have never had requests for it.

q. What courses in foreign languages are being offered in the 
white high schools?

A, I believe French and Spanish.
q. Is there any foreign language class for whites at the 

elementary school level?
A. Yes.
q. Is there such an offering for the Negroes?
A. Yes.
q, when did the course for the Negro elementary school— ?
A. It was started this year.
q. When was the course for the white elementary school begun?
A. (R-145) I believe four years ago, maybe five years ago. We 

had our first request for it in the Negro school this year.
q. How about Distributive Education? Do you have a system of 

that set-up down in Biloxi?
A. Yes, we do have.
q. Is this available only in the white schools?
A. They are the only ones who have requested it?
q. How about R.O.T.C.? Is there an R.O.T.C. program?
A. We send them to Keesler.
q. I see.



95
A. Let them join the Air Force.
Q. What was that?
A. We let them join the Air Force.
Q. You do not have an R.O.T.C, program?
A. No.
Q. How about secretarial training, advanced secretarial 

training? Is there any such offering in the Negro high 
school?

A. We have none, to my knowledge, in the Negro high school.
Q. But I understand you have a fairly extensive course in the 

white schools?
A. Now, let's get this straight. What do you mean by 

"secretarial"?
I mean something other than just basic typing and maybe a 
semester a year.

A. You mean on the job? In school a half day and off a half 
day? Now, that's what we have in the white school. They 
(R-l̂ -6) come to school a half day and are secretarial 
trainees on the job a half day. That's what we have for the 
whites, and we do not have that for the Negroes.
This business of band uniforms. You indicated that one of 
the factors in spending more money for Negro pupils last 
year than you did for whites is indicated in your answers 
to the interrogatories as due to the fact that you pur­
chased band uniforms for the Negro high school last year.

A. That's one of the contributing factors.
Now, what has been the situation in years prior to last, 
as far as the amount of money spent for Negro and white 
pupils?



96
A, Well, I ’ll put It this way: The white students are per­

forming in homemade uniforms at this time. They have 
had them, I believe, this is the third year. The Negroes 
used until last year the uniforms that had been purchased 
by the school some five or six years ago.

Q. Well, that wasn't my question. My question was that as of 
last year, your answer indicates that more money was spent 
for Negro pupils, a slight amount more for Negro pupils 
than for white pupils, and I wanted to know was this the 
situation in previous years. In previous years, was it 
not so that there was more money spent for white pupils 
than for Negro pupils? (R-1^7)

A. I couldn’t answer that other than that we set our budget 
up and we do not make distinction on students when our 
budget is set up. We set up the budget with teachers all 
on a single salary schedule; teaching aids in the elem­
entary school on ADA basis, $1.50 a child, on secondary 
level, $8.00 a child; libraries, we spend on ADA $2.50 per 
child, and that’s both white and colored. And then for 
magazines and things above that, we buy those as requested 
by the librarians in the various schools. Custodial 
supplies are bought in bulk and disbursed as needed by the 
various schools. Custodians are on a single salary 
schedule.

Q. That is very interesting, but according to state figures 
during 1961-62 school year in the Biloxi Municipal Separate 
School District it indicates that $128.92 was spent for 
each white student above the state minimum program, while 
$86.25 was spent for each Negro pupil above the iate minimum 
program.



97
A. I don’t think you have a complete picture unless you take 

the total amount of money spent on each child from all 
sources.

Q. Now, as I understand it, the state funds are given out and 
hopefully expended on the same basis, whether the child is 
Negro or white. Is that correct?

A. That is right. But by the same token, we might turn in 
all of our Negro teachers as minimum program teachers, and 
only (R-148) about 80 percent of our white teachers as 
minimum program.

Q. How would that alter the figures as the state has reported 
them?

A. That means that with our state money we are giving the 
Negroes more than their share of state money and perhaps 
less of their share of local money. Then we turn it around 
the other way and give the whites more of their share of 
the local money and less than there share of minimum pro­
gram money. Do you want to know why that might be?

Q. I ’m rather confused and I would like a little more 
explanation.

A. If we have, say we have got fifty Negro teachers. All of 
those have masters degrees and six years of experience. 
Naturally we would turn those teachers in as minimum pro­
gram teachers| whereas if we had a group of beginning white 
teachers with just B.S. degrees or A certification, we 
would not turn those in. We turn in our highest qualified 
teachers under the present method of disbursing state funds.

Q. I ’ll take your word for it.
Now, it is correct that there are only two Negro school



98
buildings in the Biloxi system?

A. That is correct.
Q. And thirteen for whites?
A. Right.
Q. You indicated as of last year all of these schools were 

accredited by the state accrediting agency? (R-149)
A. For the past two years they have all had double A accredi­

tation.
Q. Do any of the schools in your system have the accreditation 

granted by the regional accrediting association?
A. Which?
Q. There is generally a regional organization covering so

many states that accredits schools, and in Mississippi there 
are, according to the latest figures, some 27 percent of 
the schools in the state that are granted accreditation 
under this regional association.

A. Be specific. Give me a name and I ’ll tell you.
Q. Well, is there a regional accrediting association which 

has granted accreditation to any of your schools?
A. Perhaps there is.
Q. Perhaps?
A. Maybe I could tell you yes, and I wouldn't be talking about 

the same thing you're talking about.
Q. Well, all I want you to do, Mr. Brown, if there is, tell 

me yes and tell me which one.
A. If there is what?
Q. If there is an accrediting association, a regional group, 

that has granted accreditation to any of your schools, I 
would like to know about it,



99
A. Yes, we are a member of the Southern Association of Colleges 

and. Schools. We have five schools that are applying, and 
(R-150) one reapplying.

Q, Are any of those schools accredited by the association?
A. One.

' Q. Is that a white or Negro school?
A. It is a white school.
Q, Are there any other that have been admitted?
A. No others have been.
Q. Some others have applied for admissions?
A. We are in the process of applying.
Q. How many schools are you applying for?
A. Pour.
Q. Are any of those Negro schools?
A. One.
Q. Which school is that?
A. Nichols High School.

MR. BELL: I think we have no further questions.
THE COURT: Any redirect?
MR. PRINGLE: No, sir.
THE COURT: You may step aside, Mr. Brown.

(Witness excused)

MR. WATKINS: If it please the Court, the defendants in 
this case move the Court to be permitted to adopt all of the 
testimony and evidence and exhibits of the defendants and all 
of the testimony and evidence and (R-151) exhibits of the 
Intervenors in Evers, et al, versus Jackson Municipal Separate 
School District, Civil Action No. 3379* subject to the object­
ions made by the plaintiffs in that case to the admissibility



100
of that evidence, and we move to have all of that made a part 
of this case by adoption and reference.

THE COURT: Very well. Let that be done. That is in con­
formity with the arrangements we had when we started with the 
trials of these cases. So the motion will be sustained.

MR. WATKINS: The defendants rest.
THE COURT: Anything further, Mr. Bell?
MR. BELL: No further evidence, Your Honor. And in view 

of the number of days which we have been involved here and the 
lateness of the hour, I have decided to forego and spare the 
Court the lengthy closing argument I had prepared, and would 
substitute for the eloquence brevity in the way of a few short 
remarks.

THE COURT: You do rest?
MR. BELL: We do.
THE COURT: I don't think I will hear argument from either 

side. It has been a long, drawn-out case and it's late, and I 
have listened carefully and attentively to all the evidence, and 
it is my purpose to decide these three cases just as soon as I 
reasonably can. During the meantime, (R-152) of course, the 
preliminary injunction that has been heretofore issued will 
remain in force and effect, as well as any other orders that 
are in effect now, until the time when I make a final decision.

I would like to have a short brief of your authorities 
within a few days. Of course, I imagine I'm pretty well fami­
liar with most of the authorities that probably will be recited 
by either side, but the ones which you particularly rely on or 
as many as you desire to cite, you may do so.

You may make your briefs as long as you desire, but I don't



101
think that it will be necessary for you to write an extensive 
brief upon the facts, because I have certainly paid close 
attention to the testimony, and while it is fresh in my mind I 
want to decide it in the near future. I want to give the 
court reporter first the opportunity to transcribe the testi­
mony, and I want to give him all the time that is needed to 
transcribe it —  that is, I am not going to work him on any 
more trials unless it is one that has priority and of necess­
ity must be hurried.

So that is the way I feel about the case now, and if that 
is agreeable, then it will take that course. Otherwise, if 
you insist upon argument, I would have to let you have it, but 
I believe it would serve the purpose better if you would give 
me a brief of your authorities within a short time and argue 
the facts as much as you desire; but I want (R-153) the trans­
cript before I pass on the case, because I understand each 
side wants a transcript from the reporter. I told him I would 
give you priority in getting out the transcript.

Is that agreeable?
MR. BELL: Yes, Your Honor.
THE COURT: Very well. That is the course it will take.
And, as I say, I won't put a limitation on the length of 

time to get your authorities in, but I want them as soon as 
you can because I am going to start to work on them. I am 
going to do some independent work because I have briefs in 
some cases of this type that have been filed already in other 
matters. I can review all of them, but at the same time I 
would like to have a brief from each side.

Very well, I appreciate your courtesy that has been shown



102
in expediting the trial of these cases, and I think both sides 
have developed it quite fully, and the record is now full and 
complete. And we stand in status quo. The plan for desegre­
gation will go right forward on the date set forth for it to 
be filed, and all other orders which are now in existence will 
remain in existence until this is finally determined.

With that, the court stands in recess.

* * * * * * * *
(R-154)IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF MISSISSIPPI 
SOUTHERN DIVISION

GILBERT R. MASON, JR., ET AL, Plaintiffs,
Vs.
THE BILOXI MUNICIPAL SEPARATE SCHOOL 
DISTRICT OF BILOXI,MISSISSIPPI:
ROBERT D. BROWN, Superintendent of Biloxi 
City Schools; DR. J. A. GRAVES, President;
PETER KULJIS, Vice-President; C. T. SWITZER,
Secretary; MRS. DUDLEY ANDREIS and 
RICHARD CREEL, Members, Defendants.

COURT REPORTER»S CERTIFICATE
I, D. B. JORDAN, Official Court Reporter for the Southern 

District of Mississippi, do hereby certify that the foregoing 
pages constitute a true and correct transcript of the testimony 
and proceedings had upon the trial of the above-entitled cause 
before Honorable Sidney C. Mize, United States Judge for the 
Southern District, at Jackson, Mississippi, on the 21st day of 
May, 1964.

WITNESS my signature, this the 3rd day of July, 1964.
/s/ D. B. Jordan_______________ _* * * ~ * * s



105
(R-155 Civil Subpoena which is not copied here.)

R-1.56 , NOTICE OF APPEAL
(Title Omitted-Piled August 5,1964)

Notice is hereby given that Biloxi Municipal Separate 
School District, C. T. Switzer, Dr. J. A, Graves, Mrs. Dudley 
Andrews, Richard Creel, and Dr. Peter Pavlov, as Trustees and 
as comprising the Board of Trustees of the Biloxi Municipal 
Separate School District, and Robert D. Brown, Superintendent 
of schools, Biloxi Municipal Separate School District, the 
defendants in the above styled and numbered action, hereby 
appeal to the United States Court of Appeals for the Fifth 
Circuit from the final judgment entered in this action on the 
6th day of July, 1964, which made permanent the temporary 
injunction order entered in this action on the 4th day of 
March, 1964.

JOE T. PATTERSON 
Attorney General 
Jackson, Mississippi
DUGAS SHARDS
Assistant Attorney General 
Jackson, Mississippi
VICTOR B. PRINGLE 
P.0. Box 292 
Biloxi, Mississippi
THOMAS H. UATKINS, Special Counsel 
800 Plaza Building 
Jackson, Mississippi

* * * * * * * *



104
(R-157) APPEAL BOM)

(Title Omitted-Filed Aug 3, 1964)

KNOW ALL MEN BY THESE PRESENTS, that we, Biloxi 
Municipal Separate School District, C. T. Switzer, Dr. J. A. 
Graves, Mrs. Dudley Andrews, Richard Creel, and Dr. Peter 
Pavlov, as Trustees and as comprising the Board of Trustees of 
the Biloxi Municipal Separate School District, and Robert D. 
Brown, Superintendent of Schools, Biloxi Municipal Separate 
School District, as Principals, and United States Fidelity & 
Guaranty Company, as Surety, are held and firmly bound unto the 
plaintiffs in the above styled and numbered action in the penal 
sum of TWO HUNDRED AND FIFTY ($250.00) DOLLARS for the pay­
ment of which we well and truly bind ourselves, our successors, 
and assigns;

HOWEVER, THIS OBLIGATION IS UPON THE FOLLOWING CONDITION:
WHEREAS, on the 6th day of July, 1964, the District 

Court of the United States for the Southern District of Miss­
issippi, Southern Division, entered a Judgment making permanent 
a temporary injunction order theretofore entered in this action, 
and said defendants, feeling aggrieved at said judgment, have 
perfected an appeal to the United States Court of Appeals for 
the Fifth Circuit from said Judgment of July 6, 1964.

NOW,THEREFORE, if said Principals shall prosecute said 
appeal with effect and shall make payment of costs if said 
appeal is dismissed or the judgment affirmed, or make payment 
of such costs as the Appellate Court may award if the judgment 
is modified, then this obligation shall be null and void and 
of no force and effect; otherwise, to remain in full force and 
effect.



105
WITNESS OUR SIGNATURES, this 3rd day of August, 1964.

BILOXI MUNICIPAL SEPARATE SCHOOL
DISTRICT, C. T. SWITZER, DR. J.A.
GRAVES, MRS. DUDLEY ANDREWS,RICHARD
CREEL, DR. PETER PAVLOV, R.D. BROWN,
PRINCIPALS
BY: VICTOR T. PRINGLE 

THOMAS H. WATKINS
BY /s/ Thos. H. Watkinsmmms for'm w im s --------------- --

UNITED STATES FIDELITY & GUARANTY COMPANY, SURETY 
BY /s/ Dan Bottrell

MTfeNEY::IIJ::FA5Tr EanTBot'Erell---------------
(SEAL)

* * * * * * * *

(R-158)
ORDER ACCEPTING PLAN 

(Title Omitted-Filed August 5# 1964)

THIS ACTION came on for hearing on the plaintiffs' 
objections to the desegregation Plan filed by the defendant 
Board and on plaintiffs' motion for a revised Plan, and the 
Court having heard evidence, both oral and documentary, and 
having considered same, is of the opinion that said objections 
and motion should be tentatively overruled and denied and said 
Plan should be tentatively approved,with this hearing recessed 
for further hearing on a day during the month of February, 1965 

for such action as this Court may then deem appropriate.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that 

plaintiffs' objections to the desegregation Plan filed herein 
by the defendant Board and the plaintiffs' motion for a revised 
Plan be and the same are hereby tentatively overruled and 
denied, and that the desegregation Plan filed herein by the 
defendant Board be and the same is hereby tentatively approved



106

subject to the further orders of this Court.
IT IS FURTHER ORDERED, ADJUDGED, AMD DECREED that 

this Court retains jurisdiction over this action, and that this 
(R-159) hearing be and the same is hereby recessed to a day to 
be subsequently fixed by order of this Court during the month 
of February, 1965, for approval of said Plan or for consideration 
of any revisions of, or amendments or additions to, or dele­
tions from said Plan which this Court may then deem appropriate 
in the light of developments.

ORDERED, ADJUDGED, AND DECREED this 29th day of July,
1964.

/s/ S. C. Mize
u n i t e d St a t e s d i s t r i c t j u d g e

0.B.1964, pages 1062 & IO63
* * * * * * * *

(R-160) DESIGNATION OF CONTENTS OF
r e c o r d On  A ppeal 

(Title"' Omit'ted'-Filed ’Aug 8, 1964)

NOW COME Biloxi Municipal Separate School District,
C. T. Switzer, Dr. J. A. Graves, Mrs. Dudley Andrews, Richard 
Creel, and Dr. Peter Pavlov, as Trustees and as comprising the 
Board of Trustees of the Biloxi Municipal Separate School Dis­
trict, and Robert D. Brown, Superintendent of Schools, Biloxi 
Municipal Separate School District, Defendants and Appellants, 
by their attorneys, and hereby designate for inclusion in the 
record on appeal the complete record and all the proceedings 
and evidence in the action, pursuant to Rule 75(a) of the 
Federal Rules of Civil Procedure.

JOE T. PATTERSON, Attorney General 
Jackson, Mississippi



107
DUGAS SHANDS,Assistant Attorney 

General
Jackson, Mississippi
VICTOR B. PRINGLE 
P.0. Box 292 
Biloxi, Mississippi

THOMAS H. WATKINS, Special Counsel 
800 Plaza Building 
Jackson, Mississippi

BY^ TTGiHLY S° 3 Ul^Lji^'^^An‘l‘5 AND 
APPELLANTS

(R-l6l Certificate of Service which is not copied here.)

* * * * * * * *
(R-162) MOTION FOR ORIGINAL EXHIBITS TO

BE SENT TO THE APPELLATE COURT 
(Title Omitted-FIled Aug 1‘5, 1964)

NOW COME the defendants and Appellants in the above 
styled and numbered action, by their attorneys, and respect­
fully move the Court to enter an order requiring all of the 
original Exhibits in this action to be sent to the United States 
Court of Appeals for the Fifth Circuit, as part of the record 
on appeal in this case, and in support thereof would show unto 
the Court that said Exhibits should be inspected by the Appell- 
are Court and that it would be difficult, if not impossible, to 
obtain or prepare copies of said Exhibits.

Respectfully submitted,
JOE T. PATTERSON, Attorney General
Jackson, Mississippi
DUGAS SHANDS, Assistant Attorney 

General
Jackson, Mississippi
VICTOR B, PRINGLE
P. 0. Box 292
Biloxi, Mississippi



108
THOMAS II. WATKINS, Special Counsel 
800 Plaza Building 
Jackson, Mississippi
BY /s/ Thos. H. Watkins

EffiT-----------attdrws' wow d m
APPELLANTS T5mD

(R-I63 Certificate of Service which is not copied here.)
* * * * * * * *

(R-164) ORDER FOR ORIGINAL EXHIBITS
TO BE SENT TO THE APPELLATE 

COURT
(Title- (Siitted-Filed Aug 15, 1964)

THIS ACTION came on for hearing on the motion of the 
Defendants and Appellants that the original Exhibits in this 
action be sent to the bhited States Court of Appeals for the 
Fifth Circuit as part of the record on appeal in this case, 
and the Court having considered same is of the opinion that 
said motion should be and the same is hereby granted.

IT IS, THEREFORE, ORDERED that all of the original 
Exhibits in this action be sent to the Appellate Court as a 
part of the record on appeal of this action.

ORDERED, this 11th day of August, 1964.

O.B, 1964, P. 1327 No.2

/s/ S. C. Mize
m r m  s t a t e s D i st ri c t j ud ge

* * * * * * * *



109

CERTIFICATE OF SERVICE

I, Theresa Herbert, hereby certify that, having made up 
the appeal record In the case of BILOXI MUNICIPAL SCHOOL DISTRICT, 
ET AL, Appellants, versus GILBERT R. MASON, JR., ET AL, Appellees, 
No. 21852 on the docket of the United States Court of Appeals for 
the Fifth Circuit, I have, acting for Honorable Thomas H. Watkins, 
of counsel for Appellants, served upon Honorable Derrick A. Bell, 
Honorable R. Jess Brown and Honorable Jack Young, of counsel for 
Appellees, one copy each of the record, in accordance with the 
Rules of the United States Court of Appeals for the Fifth Circuit, 
by sending same to them via United States Mail, addressed to their 
respective addresses as shorn by the court file.

THERESA HERBERT