Bivins v. Board of Public Education and Orphanage for Bibb County Brief for Appellees

    IN T H E

UNITED STATES COURT OF APPEALS
FOR T H E  F I F T H CIRCUIT.

No, 21,690.

S H I R L E Y  BIVINS et ai.,
Appellants,

vs.
BOARD O F  PUBLI C E D UC AT IO N AND O R P HA NA GE  FOR 

BIBB C O U N T Y  et a!.,
Appellees.

BRIEF FOR APPELLEES.

Of Counsel:

C. B A X T E R  J O N E S ,
1007 Persons Building, 

Macon, Georgia,
Attorney for Appellees,

J O N E S ,  SPARKS,  B E N T O N  & CORK,  
Macon, Georgia,

S i .  L o u is  L a w  P b in t in g  Co., In c ., 415 N . E ig h th  S tr e e t  C E n tra l 1-4477.



IN D EX . PageStatement of case ............................................................................  1Preliminary statement ............................................................ 1Background facts ........................................................................ 2The proceedings in this case including the Board’splan ....................................................................................................  7Post judgment implementation ....................................  13Argument .............................................................................................  16Injunction ...........................................................................................  21Integration of professional school personnel .................  21Adult vocational education program ...............................  22Cases Cited.Armstrong v. Board of Education of Birmingham (20595) .............................................................................................  18Brown v. Board of Education, 347 U. S. 483, 74 S. Ot.686 (1954) ......................................................................................  16Brown v. Board of Education, 349 U. S. 294, 75 S. Ct.753 (1955) ........................................................................................  20Calhoun v. Latimer, 377 U. S. 218, 84 S. Ct. 1255 (1964)  16,19Davis v. Board of School Commissioners of Mobile County (20657) ............................................................................  18Gaines v. Dougherty County Board of Education(20984) ............................................................................................. 19Griffin v. County School Board of Prince Edward County, 377 U. S. 218, 84 S. Ct. 1226 (1964).................  19Stell v. Savannah-Chatham County Board of Educa­tion (20557) ............................................................................  18,19



IN T H E

UNITED STATES COURT OF APPEALS
FOR T H E  F I F TH  CIRCUIT,

No, 21,690,

S H I R L E Y  BIVINS et a!,,
Appellants,

vs,

BOARD OF PUBLI C E D UC AT IO N AND OR PH A NA GE  FOR 
BIBB C O U N T Y  et al.,

Appellees,

BRIEF FOR APPELLEES.
STATEM EN T OF CA SE.

Preliminary Statement.We do not question the “ factual”  accuracy of appel­lants’ statement of the case, assuming that the record ref­erences will be allowed to speak for themselves, but we do question the posture of the case as presented by the statement as it is tailored to the point of view sought to be impressed upon the court. The case is herein re­stated from appellees’ point of view, and substantially as the case was viewed by the District Judge in his opin­ion and order (R. 278).



2
Background Facts.Until the session of the Georgia Legislature in 1961 the concept of separate but equal facilities in the pub­lic schools, and in many other areas, was required by numerous constitutional and statutory provisions unnec­essary to be set forth herein. In 1958 a desegregation suit had been filed in Atlanta, the Capitol of and most concentrated urban community in the State, and a de­segregation decree was entered in 1959, but for reasons deemed proper and impelling the implementation of the plan of the Atlanta Board was made contingent upon the enactment of enabling legislation in 1960, and when no such legislation was enacted implementation was with­held until September, 1961, at which time desegregation was commenced in Atlanta following comprehensive en­abling legislation in that year.On December 9, 1954, in the interim, between the first and second Brown decisions, the Bibb County Board received a letter calling for “ immediate steps to reor­ganize the public schools . . .  in accordance with the constitutional principles enunciated by the Supreme Court on May 17”  of that year (R. 322). This was a form let­ter prepared for wide use in the State, with spaces for the insertion of local identifications (R. 91), and the Board felt that it would be premature to act at that time. On August 25, 1955, a second letter was received (R. 324). On October 3 following (R. 94 for date) a special committee of the Board made a report to the Board from which we quote:“ Of course, for some months (and prior to the filing of any petition) the members of this Board have concerned themselves over the situation re­ferred to, and at the present time this committee is charged with the specific task of investigation and report; but in our considered judgment any com­mitment by this Board at this time, or at any time



— 3 —before completion of such study of the overall sit­uation as this Board may find necessary, would be inappropriate, unwise and entirely out of harmony with the intent of the Supreme Court decision.“ This being the first meeting of the Board since the appointment of this committee, we wish to report at this time that it is the opinion of the committee that to properly fulfill the assignment given it by the Board and to cover all of the complexities and ramifications involved will require an amount of time, effort and study, the extent of which we cannot presently appraise”  (R. 326, 327).1Appellants refer to “ a lengthy history of vain efforts”  to induce voluntary implementation, and to the special committee report of October 3, 1955, as indicating that the problem would require an “ inestimable” 2 amount of “ time, effort and study”  (Br. 3). The language of the report from which this descriptive term is drawn is, “ the extent of which we cannot presently appraise.”The obvious truth is that there was nothing the Bibb County Board could do at that time except to await some sort of resolution of local statutory obstacles. The eyes of the local boards in the State were focused upon the State Capitol, and upon the Atlanta suit which was commenced in 1958 and which resulted in a plan which was finally implemented and commenced in 1961.We labor this point because wre think it is important for this court to know and fully appreciate that the Bibb County Board has at no time fought, resisted or defied the constitutional principles which were enunciated by the Supreme Court. Mallory C. Atkinson, Chairman of the special committee of the Board which served from 1955 until 1961, testified as follows:1 P ages 301 to 382 of Record are printed in Supplem ental Record.2 Suggesting interm inable, beyond tim e, or som ething sim ilar.



— 4 —“ The decisions emanating from the Circuit Courts of Appeal and the United States Supreme Court were making it clear that this program would need be effectuated. In the State of Georgia we were con­fronted with problems arising, No. 1, out of the Constitution of the State of Georgia; and, No. 2, out of a variety of State statutes, all of these provisions requiring segregation in our public school systems by race, and tying that down or attempting so to do in various ways.“ One statute, that I  will not try to presently iden­tify, was there to the effect that the integration of any school would instanter cut off the flow of funds from the State to the school system which was op­erating that integrated school.“ Another statute, as I  recall it, defined it as a felony under State law for any member of any board to apply any funds—I anticipate it is worded that way; I  don’t recall the details now—for any inte­grated school in the system’ ’ (R. 93, 94).In the light of appellants’ reference to “ a lengthy history of vain efforts by plaintiffs and others”  we think it is important for this court to know and fully appreciate that no petition, request or activity of any sort or char­acter by or on behalf of the Negro school children of Bibb County is disclosed between the 1955 letter (R. 322) and a letter of March 8, 1963 (R. 332), when seven in­dividuals, including William P. Randall, who will be referred to again requested the privilege of appearing at the next duly constituted meeting of the Board “ for the purpose of airing certain grievances pertaining to public education in Macon and Bibb County.” 3 The in-3 W e do not overlook the letter of Febru ary 23, 1961, from  the M acon Council on H um an R elation s (R . 328) enclosing a statem ent (R . 329) w hich was directed not specifically to the Bibb County Board of E d u ca­tion but to other local governm ents and authorities relating to various aspects of racial relations in the com m unity. T h is statem ent is sig­nificant for its recognition o f com plex problem s rather than as demand for action in any particular area of racial relations.



5ference to be drawn from this fact is that the repre­sentatives of the Negro people of Bibb County were fully aware of the problem which existed and were generally satisfied to leave matters as they were at least for the time being.After the Legislature had acted in 1961 to repeal all compulsory “ general”  segregation laws, and upon the implementation of the decree in the Atlanta case, the Bibb County Board was in this unhappy situation. As a corporation chartered by the State in 1872 it was em­powered by the State to act only within the limits of its charter to establish and maintain distinct and sep­arate schools for white and colored children and not in any event to place children of different colors in the same schools. See R. 338, letter from the Board’s General Counsel, R. 343, report of the Board’s Rules and Regu­lations Committee and Special Committee, and R. 345, the Board’s petition to the Superior Court of Bibb County for a declaratory judgment to establish whether or not the Board had legal authority (under its charter from the State) to act for and instead of the State to establish or operate public schools in Bibb County other than distinct and separate schools for white and colored chil­dren.The Board’s problem was not whether the requirement that separate schools be operated was valid, it being recognized by every one that this requirement would yield to the constitutional principles enunciated in the Brown cases, but whether if the Board under its charter from the State could not operate separate schools did it have any authority from the State to operate any other kind, that is, whether being unable to operate segregated schools it had any delegated authority at all. A t stake was the question whether the Board’s charter would survive or perish.



—  6 —Upon receipt of the petition of March 14, 1963 (B. 336), the Board requested and obtained from its counsel his opinion letter of April 13, 1963 (B. 338), and authorized the filing of a court action in the Superior Court of Bibb County, Georgia, to obtain an adjudication whether the Board could under its charter operate schools other than separate schools (B. 343). The authorized suit was promptly filed (B. 345). The proceeding was expedited and resulted in a declaratory decree in Ju ly  (B. 354), the total elapsed time from the letter of March 14 to the final decree in Ju ly  being almost exactly four months. To clearly show the Board’s motive we quote from its brief to the trial judge in that case:“ ‘We wish to make it clear that the Bibb County Board of Education has no desire to shirk or evade or to surrender either its corporate responsibilities or its corporate powers. It is the objective of this petition to obtain a decision by this court under which plaintiff can lawfully under its charter provide a system of public schools for both white and colored children in Bibb County notwithstanding a part thereof may be invalid which requires that separate and distinct schools shall be provided for the different races’ ” (B. 289).In the meantime it had been publicly declared that a federal court complaint was in preparation and would be filed. On Ju ly  30, 1963, the Board adopted a resolution from which we quote:“The Federal District Courts have, by the Supreme Court of the United States, been made determinators of what type operation of a public school system meets the requirements of the Supreme Court decision under the peculiar circumstances of any particular case, when presented to the court.



—  7 —“I f  this Board were to make a determination with­out the sanction and approval of the courts, its valid­ity and lasting effect would be as uncertain as the weather.“Without court sanction and approval, by its order, any such action taken by this Board, and administra­tive procedures set up to put into effect, today, this week, or this month, would have no assurance of being effective tomorrow, next week or next month” (R. 25).It  is factually correct, as stated by appellants, that the Board decided that any decision to change the segregated operation must be left to the federal courts, but the im­plication of recalcitrance on the Board’s part is not justi­fied. It was the Board’s considered judgment that for the protection and in the best interest of every one concerned the Board should proceed from that point under court supervision and direction rather than by agreement with a limited number of individuals or under a voluntary plan of its own making without court approval which might meet with opposition and dissatisfaction from diverse directions. The instant complaint was filed as previously declared and as fully expected within a few days thereafter.THE PROCEED INGS IN T H IS CASE IN CLU D IN G THE BO ARD ’S PLAN.Defendants’ answer (It. 16) was filed within the statu­tory 20' days period after service upon all of the defend­ants, and prior to an ensuing pre-trial hearing set by the court, counsel for both sides conferred and prepared a consent pre-trial order which was approved by the court (R. 26), from which the following is quoted:“ The answer of the defendants admits the essential allegations of jurisdiction, plaintiffs’ capacity to sue



in behalf of themselves and as representatives of the class of minor Negro children similarly situated (par. 3, First Defense), and that the Board has in the past and presently operates separate schools for white and colored children in Bibb County (pars. 3 and 7, Sec­ond Defense).“ Defendants have admitted that plaintiffs as rep­resentatives of the class of minor Negro children in whose behalf they sue are entitled in this proceeding to such order of this Court as will adequately protect the rights, privileges and immunities of said class, taking into account the administrative and other prob­lems of the defendant Board incident to the granting of such protection, and plaintiffs recognize that the defendant Board should be allowed a reasonable pe­riod of time in bringing about the elimination of dis­crimination within the equal protection mandates of the Constitution”  (R. 28).Thereafter the Board’s plan (R. 30) was submitted within the prescribed time, and the case was assigned for hearing and the hearing commenced on the day assigned and concluded the following day. We quote the following from the record at the conclusion of the hearing:“ Mr. Jones: I  fully agree with the Court that this is a matter calling for speed according to the calen­dar. Our school system usually closes for summer around the first of June. I  don’t know really that 30 days is required for registration for a transfer, but we have offered to allow 30 days; and I  would like, the System would like for that period to start as early as May 1, so as to allow 30 days in the month of May before the schools stop for the summer. That calls for speed in connection with securing the record and in connection with arguing the case, and also on Your Honor’s part to some extent in acting upon the argument”  (R. 257).



— 9 —The court invited counsel to withdraw to their respec­tive offices and immediately dictate their arguments, in lieu of oral arguments, to be submitted by the following Monday (R. 258). Because of the pressure of other en­gagements counsel for appellants preferred and was al­lowed to present his argument orally (R. 251). Counsel for appellees acted on the court’s invitation and dictated his argument in his office and presented it to the court within the few days prescribed (E. 304).1 The court’s opinion and order followed shortly on April 27, 1964 (R. 278). This permitted the processing of the plan commenc­ing May 1, 1964, in ample time for the commencement of the 1964-65 school year.As originally submitted the Board’s plan (R. 30) pro­posed that it would be applied without distinction based4 “ M r. Jo n e s : I w ill exercise the option, i f  Y our Honor please, of pro­ceeding as we previously suggested and presenting a b rief by nextI would lik e a t this tim e m erely to correct one elem ent of confusion w hich I think, exists and th at I m ight be helpful in. I t ’s d ifficult to use language w hich m eans the same thing to everybody. A s to how counsel interprets certain  portions of our plan, I ’m unable to say, but the facts are that th is question of registerin g a t a school m eans th at in Septem ­ber ot 1964, when the school opens, the student w ill go  to th e sam e schoo w hich he previously attended to then register and com m ence his school year, unless he has previously filed a tran sfer request and w hich has been acted upon.“ T h ere’s some confusion, of course, by using the term  ‘registration ’ but certainly , i t  was never a t any tim e contem plated that, before a per­son could go to the Superintendent’s office, he had to register fo r the follow ing year at his old school and then come back to the Superintend­ent, but it would be sim ply a single process.“ The Court: And how about a new com er who m oves into tow n?“ M r. Jo n e s : A  new com er, the plan was intended to state, and I  think does state, though I m ay be m istaken, but i t  certainly  w as intended to state that any person entering the school, the system , in the 12th grade, for the first tim e, can choose his school, subject to the tests and the factors. H e does not have to register anyw here except at the school w hich he chooses to register at,“ T h e Court: AH right, how about if he comes in during the year 1965-66, would that apply to the 11th grade?“ M r. Jo n e s : T h at would apply to the 10th and 11th grades at that tim e and also to the 12th.“ T he Court: T h a t’s right.“ M r. Jo n e s : How ever broad it m ay be as applied to the 12th, it  con­tinues that broad a ll the tim e thereafter and picks up the other grades later on.“ I ju st didn’t w ant to leave the Court or counsel under any confusion as to w hat we were tryin g  to do.“ The Court: T h a t’s the w ay I construed it.“ M r. Jo n e s : And i f  we haven’t properly expressed, obviously, we would like to m ake it  a proper expression” (R , 275-277).



10 —on race in all 12th. grades in the system for the 1964-65 school year, and would thereafter be similarly applied to include all grades in the system within eight years over­all, seven additional years, and contemplated that imple­menting forms and rules of procedure would follow.The plan was objected to, among other reasons, on the ground that it lacked the details which were promised in the original plan. These were supplied at the hearing in the form of detailed procedures, forms and information sheets (E. 360-375) which were submitted as a part of the plan and in implementation thereof.The following quotation from defendant’s brief sub­mitted to the trial court (E. 309) is as fair and concise a description of the plan as can be made other than by reference to vast portions of the printed record, and we quote therefrom:“ We do not see how there can be any misinterpre­tation of the Board’s plan, or what it purports or is intended to accomplish. Mr. Hollowell professes con­fusion as to certain of its provisions. I f  the language is not clear and adequate we want to make it en­tirely clear. As a ‘ transition’ plan it is a transfer plan. In its ultimate goal it ceases to be a transition plan. We think this is well illustrated by a con­sideration of the precise questions which were dealt with in Bush (308 F . 2d 491), as we will later point out.“ I f  there is any doubt we want to make the fol­lowing things clear. In the initial year students now attending and registered in the 11th grade of any high school in the system will be afforded the right and ample opportunity immediately, while they are still registered in the 11th grade, to transfer for the 1964-65 school year to the 12th grade of another high school. Having so transferred they will then



—  11 —register in September of 1964 in the school to which they have been transferred. I f  prior to September, 1964, they have not transferred to another school they will register in the school wThich they previously attended. Even then, under the Board’s rules at page 104 of its Annual Report, but within the lim­itations of those rules, a student may request trans­fer during the 1964-65 year. Any student who en­ters the school system for the first time in or for the 12th grade may choose the school which he wishes to attend and will register initially at that school. All of this is entirely without distinction based on race. As is true of any student in the system this is subject to questions of eligibility, availability of the facility, and the capacity of the school at which the student registers. In succeed­ing years as the plan becomes applicable to addi­tional grades what we have said will continue to apply to the grade or grades already brought within the plan as well as to the additional grade or grades to be brought within the plan that year. No student entering the system for the first time in any grade to which the plan has become or is then to become ef­fective will be required to register at any school designated on the basis of race.“ Furthermore, when the plan becomes effective in the first grade, applicable to students entering the system in that grade, there is complete freedom of choice on the part of the student to select the school which he wishes to attend. This also will be sub­ject to non-discriminatory factors based on eligi­bility, availability and capacity. Thereafter the plan will continue to be a transfer plan as to students who have previously entered the system and who have previously enrolled in grades higher than the first grade. However, it will no longer be a trans­fer plan as to the first grade, or as to the students



—  12who enter the first grade under the plan, and as the first grade progresses through the system it will cease to he a transfer plan as to all students subsequently enrolling in the system”  (R. 309-311).The plan (as implemented by the procedures, forms and information sheets identified and submitted at the hearing), provides that any student in the system enter­ing the 12th grade in the 1964-65 school year would be transferred to a different school of his choice upon ap­plication, on the basis of the transcript of his record from the school last attended by him with no condition attached thereto except the accessibility to the student of the school which he wishes to attend and the avail­ability of adequate physical facilities at that school to receive him.It contains no semblance of a loophole for evasion by the superintendent such as has characterized some of the earlier plans in the area. It calls for no test or examina­tion. No oath or verification is required. Substantially it contemplates nothing more than a request in writing and routine administrative processing.Exactly the same procedures will apply in successive years as additional grades come within the plan, not at the rate of one additional grade per year but within the over all period of eight years elapsed time from its com­mencement to its effectiveness in all grades. Attendance areas will eventually be redefined throughout the system without racial distinction, and in the interim attendance areas have no significant application as to students en­tering the system in grades with respect to which the plan has become effective. After the eighth year the plan will no longer be a transition plan as to any student entering the system. From the beginning every student in the sys­tem, now or later, will have the opportunity at some time within the transition period to transfer to the school of



— 13 —his choice without discrimination based on race or on at­tendance area, and those entering the system in a grade to which the plan applies are free to choose the school they will attend.Post Judgment Implementation.As this brief is being dictated the 1964-65 school year has commenced. Every qualified student in the 12th grade who sought transfer under the plan was approved for transfer, and all of those are now attending the school of their choice.5The Macon Weekly is a newspaper published by William P. Randall, referred to above, who was one of the signers of the letter of March 8, 1963 (R. 333) and who has other­wise been prominent as the spokesman for his race. In the issue of that paper of May 23, 1964, he authored and published the following editorial:‘ ‘ T h e  B o a e d  A n d  T h e  T k a n s e e e s .“Judge W. A . Bootle when ordering the desegrega­tion plan as submitted by the Bibb County Board of Education into effect refused to grant an injunction to compel the Board’s compliance with the plan.“The Judge stated that the plaintiffs had some­thing much better than an injunction: The emphatic promise of the Board of Education composed of stable men and its superintendent of schools to faith­fully follow the plan as submitted in effecting trans­fers to the white schools. This the Board has done.
5 Som e of those approved decided to return to their form er schools. Seven of the applicants during the 30 day period last M ay were ap­proved by the superintendent for transfer to a previously all w hite school other than th e one they requested. T hey did not then and did not thereafter object to the assignm ent until A u gu st 13, 1964, when the righ t to protest had long since expired. T hey then expressed d issatis­factio n  with their assignm ent, and w ith extrem e reluctance, for fe a r of establishing a precedent o f w aiving prescribed procedural requirem ents, the superintendent granted their delayed request for reassignm ent to the school o f their original choice.



— 14“In the opinion of the Macon Weekly, the adminis­trators of the plan has done everything humanly possible to treat fairly each application for transfer. Parents and students testify to this fact. We are happy to state that this attitude on the part of the Board of Education is just what we expected.“I f  Negro students did not transfer in greater numbers, it was not because the board did not faith­fully follow the guidelines of the plan for implement­ing the order to desegregate the Bibb County schools.“We trust that the Board, the students, parents and teachers will be just as diligent when the schools open in September and children of different races go to class together for the first time in the public schools of Bibb County.”It is true that appellants objected to the Board’s plan (R. 37), and it is true that they submitted their own plan (R. 40), but even in their own plan they did not suggest immediate general desegregated assignments ac­cording to uniracial zone lines or faculty desegregation or other measures to bring about an immediate completely desegrated system of schools in Bibb County, stating merely that their plan would not prevent the Board from initiating, or the plaintiffs from urging at appropriate times prior to the beginning of subsequent school years, the initiation of these broader proposals.In plaintiffs’ argument at the conclusion of the hearing (R. 261) it was urged that the Board’s plan was not an “adequate” transitionary substitute in keeping with the “gradualism” implicit in the “deliberate speed” concept. It  was not urged that there should be no transition period. On the contrary they recognized in the pre-trial order that a reasonable period of time would be required (R. 28). It  was not urged or even suggested that the court should



— 15 —rule at this time on the assignment of professional school personnel on a non-racial basis.The opinion and order of the District Court approving the Board’s plan (R. 278) reflects the District Judge’s view of the evidence in the case, and we refer to that document as an important part of our statement of the case.Defendants’ (appellees’) written brief in the District Court (R. 304) is also important as part of our statement, because the Board’s attitudes and positions throughout are important, as well as because of the additional light which it throws on the facts of the case.



16 —
ARGUM ENT.We do not see any substantial area for argument or exposition of the authorities or legal principles involved in this case. Both the Supreme Court and this court have spoken clearly and distinctly. This court has re- curringly and recently reviewed its own prior decisions as well as the limited number of Supreme Court decisions dealing with the subject beginning with Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686 (1954), and continuing through Calhoun v. Latimer, 377 U. S. 218, 84 S. Ct. 1255 (1964). We have no idea that we could shed any additional light on those decisions, and we will not attempt to do so.We admit to being provoked to find counsel for appel- lantsi continuing in the Argument section of their brief to charge the Bibb Board with bad faith evasion and delay, and by their description of the Bibb County plan as being deliberately slothful.Whether we or the members of the Board approve the rule of desegregation or the controlling decisions requir­ing desegregation is immaterial. It is easy to characterize expressed disapproval, or even the absence of expressed approval, as hostility. The District Judge was prompted to say that our law does not seek to control inen’ŝ think­ing absent intent on their part to do that which is un­lawful. It was implicit in the Supreme Court’s first an­nouncement in Brown that widespread disagreement was to be expected, and neither the Supreme Court nor this court has ever intimated that mere difference of opinion with their decisions calls for punishment of those of different opinions. It is abundantly clear from the record that any personal views of the witnesses in this casei elicited on cross-examination are completely subordinated



— 17to the good faith intent of the Board to fully comply with the law as directed by the District Court.The quote at page 14 of appellants’ brief from the Board’s resolution of January 24, 1964 (R. 25), is not fairly in context, and the footnote references commencing at the bottom of page 13 unjustifiably imply that the Bibb County plan (1) requires notarization of applica­tions for assignment and (2) special criteria, including discriminatory standards of scholastic achievement, per­sonality or conduct, and further imply that the members of the Bibb Board have failed and will fail in the dis­charge of their public duties because of hostility to de­segregation.We do not agree with appellants that the plan com­mencing at the 12th. grade level will take nine years to reach grade 1. Mathematically it will reach grade 1 exactly eight years after its inception at the opening of the 1964-65 school year. Neither do we agree with them that it then becomes a freedom of choice plan applicable to all students in the system only after twenty years. It is in fact a freedom of choice plan at its in­ception with respect to the grade to which it applies, and within eight years it will be a freedom of choice plan for all students in the system, to be effectuated by application for transfer by previously enrolled students and by initial choice and selection as to new students.We cannot refrain at this point from urging upon this court the weight and credit which should be given in this case to the decision of the District Court. On ques­tions of good faith and prior conduct the findings of the District Judge should not he set aside unless clearly erroneous, and on all issues involved due regard should he given to his superior first hand opportunity to judge local problems and conditions. Judge Bootle is well known to this court, and it is well known that he has



—  18 —promptly and fearlessly and judiciously accorded to Ne­gro litigants in his court the full measure of their civil rights whenever they were sought. There can be no one better qualified than he is to appraise the situation in his District, in fact in his home county, and there is no one whose judgment in the area presented by this par­ticular case can be more respected.Judge Bootle’s decision of April 27 was prior to the June 18 decisions of this court in Armstrong v. Board of Education, of Birmingham (20595), Davis, v. Board of School Commissioners of Mobile County (20657), and Shell v. Savannah-Chatham County Board of Education (20557), also involving the school system of Glynn County (20871). In Davis, supra, this court had previously said that the District Court discretion must be displaced by this court where local control is not desired or is abdicated by failure to promptly act (May 24, 1963), and had called attention to the fact that as late as Ju ly  9, 1963, the de­fendants had not even answered but instead had filed a motion to dismiss for failure to state a claim. The case was remanded to the District Court with instructions to require the Mobile Board to present a plan within the minimum standards set forth in Armstrong. In Arm­strong the school board had presented extensive evidence relating to alleged differences and disparities between the ethnic group represented by the Negro children and that group represented by white children, and were claiming that such evidence formed a rational basis for separating such ethnic groups in the school board. In Stell injunc­tion had been denied on the basis of evidence similar to that in Armstrong, and in the Glynn County case a volun­tary plan initiated by the local Board was enjoined at the instaiice of white parents and was objected to by Negro intervenors. The history of the Glynn County case bears out the resolution of the Bibb Board that the valid­ity and lasting effect of a voluntary determination of a



— 1 9 -plan by the Board without the sanction and approval of the courts would be as uncertain as the weather.While it had not been settled by this court prior to June 18 that a second look would have to be taken at plans proceeding at the rate of one grade per year over a twelve years period, nor by the Supreme Court prior to its decisions of May 25, 1964, in Calhoun v. Latimer, supra, and Griffin v. County School Board of Prince Ed­ward County, 377 U. S. 218, 84 S, Ct. 1226 (1964), it should be pointed out that the Bibb County plan does not proceed at the rate of one grade per year. It  includes a single grade in the first year,6 but it was consciously and de­liberately designed, or at least intended, to catch np with the Atlanta plan (1961) before it ran its full course.This court made it abundantly clear that its June 18 decisions were related to the particular cases dealt with. What was deemed acceptable in those cases might not be acceptable in future cases. Minimum standards ap­plied to those cases might not he applied to future cases. The Bibb County case was not then before this court and was not dealt with; nor can it properly be classified as a case arising in the future because it had already been tried and decided in the District Court.Then, and lastly, there followed the decision of this court in Gaines v. Dougherty County Board of Education(20984) on Ju ly  31, 1964. Again it was recognized that while the requirement for speeding up plans of desegrega­tion (faster than one grade per year) must be uniformly applied in all school systems in which litigation reaches the courts of this circuit, the degree of such speed-up must remain somewhat flexible. The Dougherty County (Albany) plan had started originally with the first grade, at the opposite end from the 12th grade, and had been6 In S te ll, supra, the court did not deem it  necessary to decide whether a future start in one grade would be perm issible, envisioning circum ­stances where a lim ited beginning m ay be indicated.



—  20previously speeded up by this court to include the first and second grades. By its decision of Ju ly  31 this court concluded that a minimum requirement “ for the Board of Education of Dougherty County”  is that it desegregate the first two grades as theretofore required by preliminary order and that it also commence desegregation with the 12th grade, “ in order that every Negro child in the Dougherty County school system have at least an oppor­tunity to enjoy a desegregated education during his school year.”  It is unnecessary to point out that in the Bibb plan, commencing at the 12th grade, that opportunity is provided.A t stake in this case, and indeed in all desegregation cases in this area, with degrees of risk and apprehension varying from locality to locality, is the question whether speed which does not adequately take into account “ equi­table principles . . . characterized by a practical flex­ibility in shaping its (the court’s) remedies and by a facility for adjusting and reconciling public and private needs,”  Brown v. Board of Education, 349 U. S. 294, 75 S. Ct. 753 (1955), will promote or will in the end imperil the rights guaranteed by the 14th Amendment. At stake is the question whether speed without accept­ance is better than acceptance without undue speed. Hostility to desegregation on the part of the state or of the officials charged with the administration of public education justifies neither denial of nor delay in accord­ing constitutional rights, but acceptance of conditions of radical change by school children (of both races) and by their parents and the community generally are fac­tors which of necessity should be carefully weighed and considered, in the first instance by the Board, then by the District Court, then subject to the rules of appellate procedure by the Appellate Court.We cannot say that the Bibb Board and the District Court have ascertained the exact point at which any fur-



21 —ther speed-up or material change from the procedures adopted by the Board and approved by the court will cross over from the equitable and permissible to the dangerous and impermissible, but we do submit that the Bibb Board and the District Court have done the best they could in weighing and considering these legitimate factors.So far in practical experience the result has been all that could be asked. We earnestly ask this court to allow a sufficient period of time for testing and proving the program already prepared and approved and now in effect. IN JUN CTIO N .It is so manifest that there is no need for an injunction in this case that we do not further argue that question.
IN TEGRATIO N  OF PR O FESSIO N A L SCHOOL PERSONNEL.There was every indication in the District Court that appellants were entirely satisfied to leave that issue for later consideration, and since the District Court has re­tained jurisdiction “ for such further proceedings and the entry of such further order or orders as in its judg­ment may become necessary or appropriate”  appellants have ample opportunity in the future to request a de­cision on that issue in the District Court at any appro­priate time.It  is apparent that the issue was neither argued nor otherwise dealt with nor decided by the District Court, nor did the District Court refuse to decide it, stating merely that questions raised as to that matter can be more appropriately considered by the Board and by the court if necessary at some future date. The question is



—  22  —a troublesome one and one which is entitled to full ar­gument and consideration, initially in the District Court. It  has been barely touched upon in prior decisions of this court.It may be that the definition of “ desegregation”  in Title IY  of the Civil Rights Act of 1964, meaning “ the assignment of students to public schools and within such schools without regard to their race, color, religion, or natural origin, . . and the definition of “ em­ployer”  in Title V II , excluding “ a state or political sub­division thereof,”  should be considered and given some application.In any event, and whatever may be the reason, we respectfully ask this court to leave that issue where it was left by the District Court.
AD ULT VOCATIONAL EDUCATION PROGRAM.We have purposely reserved for the last short section of our argument a reference to the Vocational Education Program in Bibb County. It was not at issue in the court below but was the subject of testimony both oral and docu­mentary.As a corporation chartered by the State the Bibb County Board was vested with the responsibility for public school education in Bibb County, subject to the injunction that distinct and separate schools must be established for white and colored children. Not so the vocational program in Bibb County. While this was administered by the Bibb County Board it was done under general state laws, and as an agency of the State Vocational Board. Accordingly, when the general statutes of the State requiring segrega­tion were repealed in 1961 the Bibb County Board promptly admitted Negroes to previously all white voca­tional programs. Mr. Kelley, an employee of the Board,



— 23and a witness for the Board, is the Director of the Voca­tional Education Program. His comprehensive testimony with reference to that Program appears in the record at page 233, and a memorandum prepared by him appears in the record as Defendants’ Exhibit 15, at page 376. We trust that the court will refer both to his testimony and to the memorandum prepared by him.Respectfully submitted,
C. B A XT E R  JO N E S,1007 Persons Building,Macon, Georgia,Attorney for Appellees.Of Counsel:JO N E S, SPA R K S, BENTON & CORK,Macon, Georgia.