Housing, General, undated - 47 of 55

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 9 1 6 5

REBECCA E. HENRY, ET AL.,
P la in tiffs -A p p e lla n ts -  

C ro ss-A p p ellees ,
versu s

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL.,

Defendants-Appellees-
Cross-Appellants.

A ppeals fro m  the United S ta tes  D istrict Court for the  
N orthern D istrict of M ississippi

(August 12, 1970)

Before WISDOM, COLEMAN and SIMPSON, 
C ircuit Judges.

SIMPSON, C ircuit Judge: Following the lim ited  re ­
m and  accom plished by our A pril 15, 1970 order in  th is 
school desegregation  case, H enry, et al. v. The C larks- 
dale M unicipal Separate School D istrict, et al., 5 Cir. 
1970, 425 F.2d 698, (C larksdale II) the d is tric t court



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

conducted a  hearing  upon the  Special M aste r’s R eport 
and  the  exceptions there to  on A pril 24 and  on M ay 
8, 1970, en tered  its findings of fa c t and conclusions 
of law  in a  m em orandum  opinion and  order. T hereafte r 
the  supp lem enta l reco rd  w as filed in  th is  Court and 
fu r th e r briefs have  been received  from  the  p a rtie s  un­
der a  court-im posed acce le ra ted  briefing  schedule, un­
d er the  p rocedures detailed  in P a r t  III of Singleton 
III (Singleton v. Jackson M unicipal Separate School 
D istrict, 5 Cir. 1969, 419 F.2d 1211). See Rule 2, F.R.App. 
Proc. U nder extensions g ran ted  by the Court a t the 
u rgen t requests  of the  p a rtie s  the la s t  b rief was filed 
w ith  the C lerk on Ju ly  22, 1970. The case is disposed 
of as an  ex trao rd in a ry  m a tte r  upon consideration of 
the  reco rd  and briefs. Singleton III,  supra, and Rule 
2, F.R.A.P.

The opening of the 1970-71 school te rm  is less th an  
a  short m onth  in  the fu ture. In  o rd er to m eet the  a l­
read y  overdue deadlines im posed by A lexander J
Singleton III,  supra , and C arter2 so th a t com plete con­
version  of th is d is tric t to a u n ita ry  school sy stem 3

iA lexander v _ Holmes County Board of Education, 396 U.S. 19, 
90 S.Ct. 29, 24 L.Ed.2d 19 (1966).

2-Carter v . W est Feliciana School Board, 396 U.S. 290, 90 S.Ct. 
.— -— , 24 L.Ed.2d 477 (1970).

301 the six recognized criteria  for elim inating the racial identifi­
cation of schools: composition of student bodies, faculty, staff, 
transportation , ex tra-cu rrcu lar activities and facilities, see 
Green v. County School Board of New K ent County, 1968, 
391 U.S. 430, 88 S.Ct. 1689, 20 L Ed.2nd 716 (391 U.S. 1435) 
and fu rth e r see Ellis v. Board of Public Instruction, Orange 
County, Florida, 5 Cir. 1970, 423 F.2d 203, 204, only com­
position of student bodies is involved in this appeal. The dis­
tr ic t is compact and furnishes no transportation  as such. Elim i-



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

m ay be accom plished by the  beginning of the new  
te rm , we m ust act w ith d ispatch. Tim e lim itations will 
req u ire  p rom pt action by the School B oard  under the  
stringen t req u irem en ts  of the  d is tric t court upon our 
rem and .

Our directions to the  d is tric t court upon rem an d  from  
the p rio r ap p ea l of th is m a tte r, H enry v. The C larks- 
dale M unicipal Separate School D istrict, 5 Cir. 1969, 
409 F.2d 682 (C larksdale  I) w ere as follows:

“* * * the B oard b ears  the burden  of tak ing  
co rrective  action. An effective p lan  should p ro ­
duce deseg regated  faculties, staff, facilities, 
transporta tion , and school activ ities (such  as 
a th le tics) along w ith in teg ra ted  studen t bodies.
If th e re  a re  still all-N egro schools, or only a 
sm all frac tion  of N egroes enrolled in white 
schools, or no sub stan tia l in teg ra tion  of facu l­
ties and  school activ ities then, as a  m a tte r  of 
law, the existing p lan  fails to m eet constitution­
al s tan d ard s  as estab lished  in G reen  and its 
com panion cases. The board  should reconsider 
red raw ing  its attendance-zone boundaries, in­
corporating  a m ajority -to -m inority  tra n s fe r  
provision in its plan, closing all-N egro schools, 
consolidating and pa iring  schools, ro ta ting  
principals, and tak ing  other m easu res  to over­
com e the defects of the p resen t system . As to 
its a ttendance zones,

nation  of duality  as to faculty, staff, ex tra-cu rricu lar activi­
ties and facilities was accomplished by th e  d istric t court’s  
order of Jan u ary  10, 1970.



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

zone boundaries, or feeder p a tte rn s  de­
signed or used to p e rp e tu a te  or prom ote 
seg rega tion  shall be discontinued, and such
zone lines shall be redraw n, w herever feas­
ible, to m axim ize desegregation  or elim ­
inate  segregation. No zone boundaries or 
feeder p a tte rn s  w hich m a in ta in  w hat is es­
sen tia lly  a seg reg a ted  school s tru c tu re  
shall be used. B rax ton  v. B oard of Public 
In struc tion  of D uval County, M.D.Fla. 
1967, ____  F .S u p p .____ ” 409 F.2d a t 689.

The d istric t cou rt’s d irections to its Special M aste r 
re fe rre d  to  him:

“the ta sk  of aiding the  court to develop a, new  
studen t desegregation  p lan  applicable to* all 12 
g rades of the  C larksdale  M unicipal S epara te  
School D istrict, effective for the school y e a r  be­
ginning Sep tem ber 1970 and th e reafte r. Said 
p lan  m ust produce a u n ita ry  school system  in 
which no child is effectively excluded from  a t­
tend ing  any school because of his ra c e  o r color; 
and, to1 be constitutional, the  p lan  m ust provide1 
fo r no schools a ttended  solely by N egro s tu ­
dents and  no fo rm erly  all-w hite schools a tten d ­
ed only by a  sm all num ber of N egro students; 
th a t is, th e re  m ust not be ‘w hite’ schools or 
‘Negro.’ schools, but ju s t schools”.

These directions w ere clear.



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

But the Special M aster by his rep o rt failed  com plete­
ly to follow th em  with resp ec t to the  e lem en tary  schools ■ 
of the d istrict. See colum n 3 of the tab les  collected 
in footnote 11, infra.

The d is tric t judge held a hearing  on the  Special M as­
te r ’s report, exceptions there to  and a rg u m en t thereon. 
His decision of M ay 8, 1970, from  w hich th is appeal
is taken , confirm ed the Special M aste r’s rep o rt and 
adopted the school p lan  proposed by it. This w as e rro r 
under our instructions on rem an d  in C larksdale  I.

The Special M aste r w as an educator, not a law yer,
but his testim ony ind icates th a t he read  and in te rp re ted  
E llis11 to p e rm it com plete d isreg ard  of our ea rlie r ex­
p ress  requ irem en ts  w ith resp ec t to the1 * * * 5 e lem en ta ry  
schools of the C larksdale M unicipal School D istrict. 
The d istric t judge also gave undue w eight to Ellis, 
(p erhaps because he m isapprehended  the significance 
of the M aste r’s findings, see footnote 6, infra,), with 
the  resu lt th a t he failed  to follow our c lear directions 
to him  in C larksdale I as well as the  constitutional 
req u irem en t a lread y  c learly  p resen t in the case as 
exp licated  by the  Suprem e Court in Green  and fu rth e r 
c larified  in  the1 in te rim  by severa l decisions by this 
Court and by the  Suprem e C ourt.8

&Ellis v. Board o f Public Instruction o f Orange County, Florida,
5 Cir. 1970, 423 F.2d 203.

sAmong others are  the following: A dam s v. M atthews, 5 Cir.
1968, 403 F.2d 181; V. S. v. Indianola Separate School D istrict,
5 Cir. 1969, 410 F.2d 626; A ndrew s v. C ity of Monroe, 5 Cir.
1970, — — . F.2d -------- [No. 29,538, decided A pril 23, 1970];
A lexander v. Holmes County, supra, footnote 1; Carter v . 
W est Feliciana, supra, footnote 2; U. S. v. H inds County Board 
of Education, 5 Cir. 1969, 417 F.2d 852.



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

The p lan  recom m ended  by the Special Master® did 
im plem ent desegregation  of the senior and junior high 
schools by proposing to m ake the  fo rm er C larksdale 
jun ior and senior high schools (fo rm erly  all white) 
in to  a single senior high school fo r the  en tire  d istrict, 
and  by proposing to m ake Higgins junior and' senior 
h igh schools (fo rm erly  all b lack) into a single junior 
h igh  school for the whole district. It proposed to leave 
unchanged  the to ta lly  (or n early  so) seg rega ted  ele­
m en ta ry  school p ro g ram  under the  zoning system  al­
read y  disapproved by C larksdale I and indeed by the 
d is tric t cou rt’s o rder of Ja n u a ry  10, but now sought 
to  be re s to red  to accep tab ility  and brought fo rw ard  
under the E llis  neighborhood school or geographical 
p rox im ity  or “equal d istance zoning” label. No change 
w ith  respec t to the e lem en tary  schools of C larksdale 
would occur except the nom enclatu re  em ployed. The 6

6The district court’s opinion of May 8 notes th a t the Special M aster 
w as appointed under R ule 53 of the F ederal Rules of Civil 
Procedure, and th a t “the  findings of the Special M aster as 
contained in  his report, are binding upon the court as to a ll 
questions of fac t unless such findings are clearly  erroneous” . 
O n the o ther hand, the d istrict court gave no such w eight to 
the HEW plan, p repared  by a team  of th ree experts w orking 
m ore or less continuously for 7 days. The w eight given the 
so-called Special M aster’s R eport is erroneous, since it  did 
no t rep resen t findings of fact on sw orn testim ony and evi­

dence considered by the M aster. The rep o rt of such a m aster 
is not governed by Rule 53. He was a school expert who 
gathered inform ation and spoke to school authorities, p er­
sonnel and patrons of the district. His function did not differ 
from  th a t perform ed by the HEW team. Faced as the court 
was w ith  an in transigent Board, the appointm ent of an  inde­
pendent expert to study the system and m ake recom m enda­
tions was perhaps a practical necessity. We sim ply point out 

. th a t h is rep o rt was en titled  to no g reater w eight because 
he was called a m aster. His repo rt was of sim ilar w eight to 
the HEW report.



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

ra c ia l m akeup of pupils attend ing  the severa l e lem en­
ta ry  schools would continue exactly  as before. The 
studen t bodies of H eidelberg, K irkpa trick  and Oak- 
h u rs t e lem en ta ry  schools would continue all white, 
serv ing  g rades from  1 to 6, in the sam e neighborhoods 
as under the fo rm er school board  plan. Sim ilarly , 
Oliver, M yrtle Hall, R iverton, and Booker T. W ashing­
ton  e lem en ta ry  schools would continue all b lack  in 
studen t body, each  serving N egro students from  its 
im m edia te  environs.7

The sole change of any note as to the e lem en tary  
schools is adoption of a m ajo rity -m inority  tra n s fe r  poli­
cy. We approve th is provision w ithout reserv a tio n  and 
d irec t th a t it be continued. However, m uch, m uch  m ore 
m u st be accom plished by the Septem ber, 1970 school 
opening date  in order to convert this d is tric t into a 
u n ita ry  system .

The resu lt achieved and approved in Ellis v. Board  
of Public Instruction, Orange County, Florida, supra, 
rep resen ted  th is C ourt’s ap p ra isa l of the  m ax im um  
th a t could be accom plished in  converting to a u n ita ry  
system  under the  fac ts  in th a t case. O range County, 
F lorida, is a countywide d istric t including a  heavily  
populated  m etropolitan  core and num erous outlying 
sm a lle r population centers. It involved 2913 teach ers  
and a student population of 38,498 in junior and senior

b linder the  original school board p lan  7 w hites w ere attending 
M yrtle H all w hereas Dr. M urphy’s p lan  indicates 5 w ill a t­
tend. The school board p lan  had  2 w hites and 463 blacks 
attending O liver, w hereas Dr. M urphy’s p lan  indicates no 
w hites and 415 blacks w ill a ttend  Oliver.



8 HENRY, ET AL. v. CLARKSDALE SCH. BIST.

high schools, 43,822 in e lem en tary  schools and  2548 
in vocational and special educational classes, for a 
to ta l school population of 82,868. The m ax im um  deseg­
regation  possible of accom plishm ent in such a school 
system  as O range County b ears  little  re la tio n  to the 
fac tu a l s ituation  in  th is case.

H ere we deal w ith a  com pact d is tric t of four square  
m iles whose boundaries a re  coterm inous w ith the city 
lim its  of C larksdale, containing a  school population 
of about 5300, roughly 3169 blacks and 2106 w hites, 
fo rm erly  housed in seven e lem en tary  schools, th ree  
jun ior high, schools and tw o senior h igh  schools. At 
its w idest points, the d is tric t (and  the city) m easu res  
about 2 m iles n o rth  to south and about 4 m iles eas t 
to west. E llis has its p lace w hen its is p roperly  applied,8 
bu t re liance1 upon it by the  d istric t judge in the  s itua­
tion here  to ta lly  ignores the  re a l key to Ellis, the strong 
cav ea t of footnote 7, 423 F.2d at page  408:

“7. U nder the  fac ts  of th is  case, it  happens 
th a t the school b o ard ’s choice of a ne ighbor­
hood assignm ent system  is adequate  to convert 
the  O range County school system  from  a dual 
to1 a  u n ita ry  system . This decision does not p re ­
clude the em ploym ent of differing assignm ent 
m ethods in o ther school d is tric ts  to bring about 
u n ita ry  system s. T here a re  m any  v ariab les  in

eThis panel on Ju ly  14 relied  strongly on Ellis in  No. 29,933,
H ightow er, etc., et al. v. W est, etc., e t al., 5 Cir. 1970, ----- —
F.2d — *— , involving the  Fulton County, Georgia, school 
system  outside the  corporate lim its of A tlanta, b u t a  p a rt 
of m etropolitan A tlanta.



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 9

the  s tuden t assignm ent app roach  n ecessa ry  to
bring  about un ita ry  school system s. The an­
sw er in each case turns, in the final analysis, 
as here, on all of the  fac ts  including those w hich  
are peculiar to the particu lar sys tem .” (E m ­
phasis supplied)

The size and  physica l m akeup of the d is tric t h e re  
under consideration m arked ly  resem ble  th a t of the City 
of Monroe, Louisiana, whose school p lan  w as recen tly  
rev iew ed by this Court in Andrew s, et al. v. City of
Monroe, et al., 5 Cir. 1970, ____  F .2 d ____ [No. 29,358,
decided A pril 23, 1970]. M onroe is a la rg e r city w ith 
a  school population of about 11,000, m ade  up of approxi­
m ate ly  5750 w hite pupils and 5250 b lack  pupils, w ith 
tw elve e lem en tary  schools, th ree  junior high schools 
and th ree  senior high schools. But its p a tte rn  of all 
b lack  and all w hite neighborhoods and physical b a r­
r ie rs  in the  form  of railw ays, highw ays and  rivers  
is sim ilar. In  Andrew s, a fte r noting th a t Ellis  “con­
vinced the d istric t court th a t the school b o ard ’s p lan  
w as constitutionally  perm issib le”, we quoted from  E l­
lis and continued:

“However, we do no t re jec t the School 
B oard ’s p lan  solely on the ground th a t it does 
not fit the Orange County definition of a  ‘neigh­
borhood’ system . E ven if, as p resen tly  consti­
tuted, the  p lan  w ere a  tru e  neighborhood plan, 
we would re je c t it because it fails to estab lish  
a  u n ita ry  system . Orange County does not say  
th a t a ‘neighborhood’ system  of studen t assign-



10' HENRY, ET AL. v. CLARKSDALE SCH. DIST.

m e a t p e r se is a  u n ita ry  system . To the  con­
tra ry , Orange County carefu lly  pointed out:”

H ere  footnote 7 of E llis , supra , w as quoted in its en­
tire ty . The A ndrew s court continued:

“The School B oard  contends ad am an tly  th a t 
a  dual system  is e lim inated  by its  p lan  be­
cause the zone lines w ere draw n geograph ica l­
ly w ithout reg a rd  to the race  of the  students 
w ith in  those lines. W hile such a system  of stu ­
dent assignm ent m ay  be less offensive th an  one 
w hich intentionally  seg rega tes students, it does 
not n ecessa rily  follow th a t it c rea te s  a u n ita ry  
system . The Suprem e Court has m ade it c lea r  
th a t school boards cannot avoid th e ir responsi­
bility  to c re a te  a u n ita ry  system  sim ply by re ­
sorting to non-discrim inatory , geograph ical 
zoning w here such  zoning would be ineffective:

‘In  view  of the situation  found in New 
K ent County, w here th e re  is no residen tia l 
segregation , the e lim ination of the dual 
school system  and th e  estab lishm ent of a 
“un itary , non-rac ia l sy stem ” could be 
read ily  achieved w ith a m inim um  of ad ­
m in is tra tiv e  difficulty by m eans of geo­
g raph ica l zoning . . .  [However] a geograph­
ical fo rm ula  is not un iversally  app rop ri­
a te  . .  .’

G reen v. County School Board of N ew  K ent 
County, 1968, 391 U.S. 430, 442 n. 6, _ _  S.Ct.



____ , . L .E d .2d____ (quoting from  B ow m an
v. County School Board, 4 Cir. 1967, 382 F.2d 
326, concurring  opinion.

“In  th is case, w hether the School B oard ’s 
p lan  is called a  ‘neighborhood’ p lan or a  geo­
g raph ica l zoning plan, it does not d isestab lish  
the  dual system . The Orange County sys­
tem  encom passed both ru ra l  and u rb an  a reas , 
com prised  a  la rg e  land  a rea , had  a  to ta l of 98 
schools, and had  a ra c ia l ra tio  of students of 
approx im ate ly  82 per cent w hite — 18 per cent 
black. The M onroe City system , on the other 
hand, encom passes an u rb an  a re a  only, com ­
prises a re la tive ly  sm all land a rea , has a  to ta l 
of only 18 schools, and has a  ra c ia l ratio' of s tu ­
dents of approx im ately  51 per cent w hite ■— 49 
per cent black. In view  of these  c ircum stances, 
we re jec t as facially  invalid  the School B oard’s 
plan, under which close to 85 p e r  cent of the 
b lack e lem en ta ry  students would continue to 
a ttend  four trad itiona lly  b lack schools, two of 
w hich rem ain  all-black (Lincoln and  C lark) 
and two of which rem a in  n early  all-black (C ar­
ver and B erg Jones). The two e lem en tary  
schools which would rem ain  all-black would a- 
lone house about 66 per cent of the approxi­
m ate ly  3000 black e lem en tary  students. F u r­
therm ore , the  p lan provides for C arroll J r . and 
C arroll Sr. H igh Schools (trad itionally  black) 
to house approx im ately  77 p e r cent of the b lack  
secondary  students in the system , while a  stu ­
dent ra tio  of about 10 black to 1 white is m ain ­
ta ined  in those schools.”

HENRY, ET AL. v. CLARKSDALE SCH. DIST. 11



T he disposition in A ndrew s  w as a  lim ited  rem an d  for 
fu r th e r study and findings by the d istric t court as to  
the  HEW  p lan  and th e  board  p lan  orig inally  adopted 
by the d is tric t court (and  la te r  erroneously  d iscarded
by the low er court on the basis  of the in terven ing  de­
cisions in E llis v. Orange County, supra, and B ivins  
v. Bibb County Board of Education, 5 Cir. 1970, 424 
F.2d 97).

H ere  as in  o ther recen t c ases9 following the tenor 
of A lexander v. H olm es County, supra , footnote 1, and 
C arter v. W est Feliciana  (supra , footnote 2) it  is neces­
sa ry  to shift the burden  from  the standpoin t of tim e 
for converting to a u n ita ry  system  from  a s ta tu s  of 
litigation  to a s ta tu s  of unitary operation pending liti­
gation.

The findings by the court below as to the  unsoundness 
of the p lan  proposed by HEW  would be  of doubtful 
va lid ity  s tand ing  in isolation. In  the context h e re  p re s ­
e n t th ey  a re  c learly  erroneous. The d istric t cou rt w as 
fa c ed  w ith a. constitu tional im pera tive , the  requ irem en t 
th a t  th is school system  be converted  to a  u n ita ry  sys­
tem . The p lan  proposed by HEW, as the  only p lan  
in existence prom ising  to “work now”, m ust be put 
into effect as of the beginning in S eptem ber of the 
1970-71 school year. W ith this p lan  in operation, the

12 HENRY, ET AL. v. CLARKSDALE SCH. BIST.

sF o r exam ple, in  addition to Singleton III, supra, see Charles v. 
Ascension Parish School Board, 5 Cir. 1969, 421 F.2d 656; 
W illiam s v. Iberville  Parish, 5 Cir. 1969, 421 F.2d 161; Jones 
v . Caddo Parish School Board, 5 Cir. 1970, 421 F.2d 313; 
B oykins v . Fairfield Board of Education, 5 Cir. 1970, 421 F.2d 
1330; U.S. v. Board of Education of Baldw in County, 5 Cir. 
1970, 423 F.2d 1013.



HENRY, ET AL. v. CLARKSDALE SCH. BIST. 13

d is tric t cou rt m ay  proceed  to  consider a lte rations and
am endm ents to it, to the ex tent th a t they  rep resen t 
forw ard , not backw ard  steps.50

U nder the HEW  p lan  in teg ra tion  of six of the  seven 
e lem en ta ry  schools is achieved  by superim posing p a ir­
ing of g rades upon existing zone boundaries. The HEW 
plan  rev erses  the uses to which C larksdale junior-sen­
ior and  Higgins would be put: fo rm erly  w hite C larks­
dale junior and sen io r high schools would be com bined 
to form  a citywide junior high school, g rades 7 and 
8; and the  H iggins school (now junior and senior) would 
be com bined w ith Oliver E lem en ta ry  (across the  
s tree t)  to form  a citywide senior h igh school com posed 
of g rades 9 through 12. Oliver E lem en ta ry  would handle 
the n in th  g rade  and the o ther th ree  would be housed 
a t the two ad jacen t buildings of the Higgins com plex.

i°F o r instance, w hether the C larksdale Junior-Senior High com­
plex  is u ltim ately  the single high school and the form er 
H iggins Junior-Senior High com plex is u ltim ately  the single 
Jun io r H igh School or the ir functions a re  reversed, m ay w ell 
be left to the  School Board to determ ine. Also, rearrangem ents 
betw een schools zoned or clustered, as to w hich buildings 
serve w hich grades m ay be undertaken. The point is th a t 
changes w hich tend to perm it lessened desegregation w ill 
no t be perm itted.



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

The re s tru c tu rin g  of g rades a t the e lem en tary  level 
is as follows:

G rades served  under S tuden ts’ previous
School H E W  proposal assignm ents

M yrtle H all 1-2 Oliver, M yrtle  H all 
and O akhurst

O akhurst 4-6 M yrtle H all and O ak­
hu rs t

O liver (p a rt of Higgins- 
O liver Complex; 
closed as ele­
m e n ta ry  school)

R iverton  Jun io r 
H igh (converted  
to e lem en tary  
school)

3-6 O akhurst and M yrtle 
H all (g rade  3 only); 
O liver g rades 3-6

H eidelberg 3-4 H eidelberg, K irk p a t­
rick  and R iverton  ele­
m en ta ry

K irk p a trick 5-6 H eidelberg, K irk p a t­
rick  and R iverton ele­
m en ta ry

R iverton
e lem en tary

1-2 H eidelberg, K irk p a t­
rick  and R iverton  ele­
m en ta ry

The tab le  set out in th e  m arg in  gives a com parison 
of the ra c ia l com position of student bodies for the elev­
en schools in the  C larksdale system  under the School 
B oard ’s orig inal plan, under the  HEW  plan  and under



"R A C IA L COMPOSITION OF STUDENT BODIES AND GRADE STRUCTURES UNDER PLANS OF 
DESEGREGATION BEFORE THE DISTRICT COURT

CLARK SD ALE M UNICIPAL SEPARATE SCHOOL DISTRICT

Name of School

Heidelberg
K irkpatrick
O akhurst
O liver
M yrtle Hall 
R iverton Elem. 
W ashington 
R iverton Jr.

High School 
Higgins Jr. - Sr.

High School 
C larksdale Jr.

High School 
C larksdale Sr.

High School

T O T A L S : -

School Board’s 
Plan

Grades W. B.

1-6 346 0
1-6 379 0
1-6 302 0
1-6 2 463
1-6 7 468
1-6 0 424
1-6 0 517

7-9 0 433

7-12 2 834

7-9 585 0

10-12 483 30

2,106 3,169

HEW  PLAN
Grades W. B.

3-4 224 138
5-6 223 115
4-6 160 234

combined w ith Higgins
1-2 100 290
1-2 266 155
1-6 0 517

3-6 56 384

9-12 673 599

7-8 387 642
combined w ith 
Clarksdale J r . H,

2,089 3,074

Dr. M urphy’s 
Plan

Grades W. B.

1-6 295 0
1-6 326 0
1-6 283 0
1-6 0 415
1-6 5 469
1-6 0 404
1-6 0 458

7 154 258

8-9 387 642

10-12 535 537
combined w ith 
Clarksdale Jr. H.

1,985 3,183

u

g
0
>~S

T5

73i—50a

Hidw
K bK*

Cro,0
i- i
CDm
0
rt>
todn>0
KbKjO
3

K
H
S)

H
K
>d
<

>
d
wm
d
>
d
H
cn
o

O
co



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

Appendix to  the  plam tiffs-appellaxits’ brief, and  a re  
ap p aren tly  derived  from  re liab le  sourceis. Their ac­
cu racy  is not questioned in  the  d is tric t’s brief. V ariance 
in  to ta ls  is caused  by tim e differences in  collecting 
figures.

As the  tab les  in footnote 11 dem onstrate , the HEW  
p lan  accom plishes su b stan tia l desegregation  a t all of 
the  schools of the system  w ith th e  exception of Booker 
T. W ashington E lem en ta ry  and the  roughly 500 N egro 
children  who p resen tly  a ttend  W ashington. These chil­
d ren  rep resen t about 16% — 17% of all the N egro pupils 
in the  system , about 27% — 28% of the b lacks in ele­
m en ta ry  grades. E xam ination  of the m aps in evidence 
suggests the1 reaso n  for W ashington being a m ore dif­
ficult location to  desegregate  pupilwise. The W ashing­
ton  a ttendance  a re a  is c ircum scribed  by ra th e r  fo rm id­
able boundaries: the  city lim its to the south, the north- 
south ra ilro ad  line to th e  east, H ighw ay 61 to the  north  
and the Sunflower R iver to  the west. Additionally, be­
tw een the school and the  highw ay the a re a  is heavily  
industrialized  along the north-south  ra ilw ay  track s. All 
of these  fac to rs  m ake it m ore difficult for ch ildren  
to  en ter the W ashington a re a  from  the east or go out 
of it to the east. Study of the m aps ind icates th a t access 
into and out of the a re a  to  the  n o rth  and w est m ay  
be had  by using Sunflow er Avenue which para lle ls  the 
r iv e r to the eas t of it. W ith pupils using th is route 
the  W ashington school m ay  possibly be com bined into 
the  R iverton-O akhurst-M yrtle  H all cluster. Some o ther 
a rran g em en t m ay  be better. We leave  th is for d e te r­
m ination  by the d istric t court u n d er the leadersh ip  
of the  school board  and HEW, w ith the  help of the



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 17

b i-rac ia l com m ittee requ ired  hereunder, infra. D uring 
the  f irs t sem este r of the 1970-71 school y e a r studies 
as to  the u ltim ate  use of W ashington and the Negro 
children p resen tly  assigned  th e re  should be u n dertaken  
as a h igh  p rio rity  p ro jec t so th a t these  ch ild ren  m ay  
s ta r t  receiving the  benefits of a com pletely in teg ra ted  
education beginning w ith the second sem este r of the 
com ing school year.

We have given carefu l a tten tion  to the  c ritic ism s 
of the d is tric t court in its M ay 8 o rder d irec ted  tow ard  
the  HEW  plan. Concededly the p lan  is not perfect, 
but its one p aram oun t advan tage  ou tstrips and over­
com es each  of the critic ism s leveled a t it by the d istric t 
judge: it accom plishes desegregation of the C larksdale  
M unicipal Separate School D istrict. As the  only p lan  
now ex tan t even, approaching  th is goal, its adoption 
for the p resen t a t leas t is a m ust.

The objections as to children being requ ired  to walk 
as m uch as tw o m iles as opposed to an av erag e  of 
0.5 m iles heretofore, and of having to tra v e rse  n a tu ra l 
or m an-m ade b a rrie rs  and the  c laim  th a t a  2-2-2 g rade 
division is som ehow less desirab le  th an  a 1-6 division, 
all fail. The objections as to d istance and crossing 
highw ays a re  covered by w hat we have said  in Clarks- 
dale I, Indianola, supra, V. S. v. Greenwood M unicipal 
Separate School D istrict, 5 Cir. 1969, 406 F,2d 1086; 
A nthony, e t al. v. M arshall County Board, of Education, 
5 Cir. 1969, 409 F.2d 1287; Board of Public Instruction, 
D uval County v. Braxton, 5 Cir. 1968, 402 F.2d 900, 
and num erous o ther cases. B a rrie rs  w hich did not p re ­



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

v en t enforced  segregation  in the p ast will not be held 
to p reven t conversion to a full u n ita ry  system .

W ith resp ec t to the objection of lack  of “articu la tio n ’ 
caused  by the b reakup  of grade com position betw een 
two or m ore schools u n d er zoning or clustering, it is 
su fficien t to  cite the breakdow n req u ired  in a  few  of 
the  sou thern  M ississippi school d is tric ts  covered by 
our consolidated cases repo rted  as United S ta tes v. 
H inds County School Board, e t al., 5 Cir. 1969, 417 
F.2d 852: Canton M unicipal S epara te  D istrict, 3-3-1-5; 
Colum bia M unicipal S epara te  School D istrict, 2~3~2~5; 
L aw rence  County, 4-4-4, 4-5-3; M eridian M unicipal Sep­
a ra te  D istrict, 6-1-2-3; N atchez Special M unicipal Sep­
a ra te  D is tric t’ 1-1-2-2-3-4; N orth  P ike Consolidated D is­
tric t, 4-4-4; Q uitm an Consolidated D istrict, 3-3-S-3, and 
Yazoo M unicipal S epara te  D istrict, 2-1-2-1-3-3.12 C larks- 
dale will fa re  no w orse th an  the d istric ts  indicated.

Upon rem an d  the d is tric t court is d irec ted  forthw ith  
to see th a t a b i-rac ia l com m ittee of the type described 
in E llis v. Orange County, supra , is established. The 
court is fu rth e r d irected  to  requ ire  th a t the b i-rac ia l 
com m ittee serve in an advisory cap ac ity  to the school 
board  and  to  the court in the a re a  of the p rom ulgation  
and m ain tenance  of zone lines in pa iring  or c lustering  
problem s and in school site location p roblem s as they 
m ay  arise, as well as in  such a reas  as m ay  ap p ear

laThese figures are  taken  from  reports to the Court filed A pril 
15, 1970 as requ ired  by th is Court’s o rder of M arch 30, 1970. 
U. S. v. H inds County, supra.



HENRY, ET AL. v. CLARKSDALE SCH. BIST. 19

app ro p ria te  from  tim e to tim e. The aid of the b i-rac ia l 
com m ittee shall be sought in consideration  of the  u lti­
m ate  utilization of Booker T. W ashington E lem en ta ry  
School and the allocation of the pupils presen tly  a s ­
signed there , discussed supra.

The school d is tric t c ross-appealed  from  the Ja n u a ry  
10, 1970 o rd e r’s d isapproval of the p lan  subm itted  by 
it, u rg ing  th a t since its desegregation  p lan  and geo­
graphic  zoning w as s tru c tu red  on a n o n -rac ia l basis, 
it is constitutional reg ard less  of the fac t th a t  only all­
b lack and all-v/hite schools resu lted  therefrom  because 
of residen tia l p a tte rn s  in the com m unity. Of course 
our p rio r m andate  of M arch 1969 in  C larksdale I dis­
posed of th is on the basis of Green v. New K ent County, 
supra. The subsequent ju risp rudence  in th is C ircuit 
including the cases collected in footnote 5 to th is opinion 
as well as w hat we have sa id  above provides sufficient 
answ er to th is and s im ila r contentions of the  school 
d istrict. As to all issues ra ised  by the cross-appeal, 
w e affirm  the d istric t court.

The tim e  is short but the need is com pelling. The 
orders of the d is tric t court of Ja n u a ry  10, 1970 and 
M ay 8, 1970, as they  apply to e lem en tary  schools a re  
rev ersed  and  th is cause is rem anded  to  the! d is tric t 
court w ith directions to take  im m edia te  action consis­
ten t w ith th is opinion. Upon the cross-appeal of the 
school d is tric t the o rders of the  d is tric t court a re  af­
firm ed.

The m andate  shall issue  forthw ith. No s tay  will be 
g ran ted  pending petition for reh earin g  or application 
for certio ra ri.



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

R EV ER SED  and REM ANDED as to- p rinc ipa l ap ­
peal; A FFIR M E D  as to cross-appeal.

COLEMAN, C ircuit Judge, dissenting.

I respectfu lly  dissent.

I feel th a t the  decision of the m ajo rity  is in d irec t 
conflict w ith the principles enunciated  by Ellis v. Board  
of Public Instruction  of Orange County, Florida, 5 Cir., 
1970, 423 F.2d 203 [Judges Bell, A insworth, and God- 
bold] .

As to the e lem en tary  g rades a t C larksdale, the D is­
tr ic t Court en te red  an o rder w hich to the very  last 
le tte r m et the specifications of Orange. It w as o rdered  
th a t the e lem en tary  pupil should a ttend  the school n e a r­
est his residence, reg ard less  of zones and reg ard less  
of the p resen t or previous ra c ia l enro llm ent of the 
school. It w as fu rth e r o rdered  th a t in case the capacity  
of the  school should deny the  a ttendance of any student, 
he should then  a ttend  the  school nex t n e a re s t his re s i­
dence, reg ard less  of any zone line, o r p resen t or p re ­
vious ra c ia l enro llm ent of the school. The Court addi­
tionally  o rdered  im position of a m a jo rity  to- m inority  
tra n s fe r  policy, in which the tra n sfe rrin g  studen t w as 
to be g ran ted  p rio rity  of space in the  school to which 
he desired  to tran sfe r. This w as a  sim on-pure Orange 
order.

In Orange County, supra, the F ifth  C ircuit approved 
the  C onstitutionality of a neighborhood assignm ent sys­
tem , w here the  studen t m u st a ttend  the n ea res t school,



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 21

without exception and w ithout variance , or, in the ab ­
sence of availab le  space, the  student m ust a ttend  the 
next n e a re s t school in w hich space is available.

The F ifth  C ircuit s ta ted  th a t the m ajo rity  to m inori­
ty  tra n s fe r  provision under the leadersh ip  of the bi- 
ra c ia l com m ittee would be a tool to a llev iate  the  all- 
N egro schools which resu lted  from  residen tia l p a t­
te rn s , 423 F.2d 208.

In  a  county in which the Negro pupils constituted 
only 18% of the to ta l pupil population, the Court ap ­
proved the  neighborhood p lan  and, in doing so, it left 
th ree  all-N egro schools in the O range County system .

In  rendering  its decision in  Orange, the Court did 
not say th a t the neighborhood school w as C onstitutional 
because O range County contained a  sm all N egro popu­
lation or because O range County w as a  big school dis­
tric t, with thousands of te ach e rs  and students. Obvious­
ly it could not have said  so, because Constitutional 
p rinc ip les applicable to one school d is tric t in the  F ifth  
C ircuit a re  bound to  be equally  applicable to any other 
school in th a t C ircuit. If every  child attends the school 
n e a re s t his hom e and has a p rio rity  righ t to tra n s fe r  
to any o ther then  he m ost certa in ly  is not being de­
n ied  the rig h t to  a ttend  any school on account of race  
o r color.

Now, the  m ajo rity  opinion in the case  sub judice 
seeks to excuse its fa ilu re  to follow Orange County 
by citing Footnote 7 to th a t decision. W hat Footnote 
7 rea lly  said  w as th a t the  decision does not “preclude



22 HENRY, ET AL. v. CLARKSDALE SCH. BIST.

the  em ploym ent of differing assignm ent m ethods in 
o ther school d is tric ts”. Of course not. T hat would have 
inescapab ly  been  tru e  even  if no footnote had  been 
added.

It would be am azing indeed if a fte r w riting a  full 
d ress  opinion Judges Bell, A insworth, and  Godbold 
would h ave  sim ultaneously  rev e rsed  them selves (and  
th e ir  decision) in a fifteen  line footnote. I re jec t such 
an  illogical notion.

If a  s tr ic t proxim ity  neighborhood school system  is 
Constitutional in O range County, F lorida, it is Consti­
tu tional in C larksdale, M ississippi.

The fac t of the  m a tte r  is th a t w ith different panels 
of th is Court handling different cases and w ith no en 
banc consideration of the  p roblem  p erm itted  since our 
session of la s t N ovem ber, som e school d is tric ts  a re  
being allowed to re ta in  as m any  as a  dozen all b lack  
schools, generally  because of residen tia l pa tte rn s. The 
cases a re  in  th e  books. I recognize th e  necessity  for 
th is and I approve of it. W hat I object to is giving 
som e d istric ts  the benefit of such consideration and 
denying it to o thers whose p rob lem s a re  even m ore 
acute.

The plaintiffs in the Court below, so the record  shows, 
a ttack ed  the O range County decision as “an  abbera- 
tio n ”. This Court en banc h a s  n ev er said  so, and the 
only way legally  to over-rule1 Orange would be by an 
en banc decision.



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 23

H ere, how ever, the  D is tric t Judge  followed Orange 
to  the la s t le tte r  and for th is he is to  be rev e rsed  
by  two judges out of the fourteen  on th is  Court, I  shall 
req u est the  Chief Judge to- poll the  Court on gran ting  
an  en banc h earin g  in  th is case'. I t is public know ledge 
th a t an  O range County plan, has been  o rdered  by the 
D is tric t Court for the Southern D istric t of Texas for 
the  City of Houston, Texas, and  th a t case is now on 
appeal to  th is Court. We m ay  as well find out if the 
decision in  O range County becam e no m ore  th a n  a 
sc rap  of p ap e r as soon as th a t county received  the 
benefit of it,

I m ake th a t s ta tem en t because  the m a jo rity  opinion 
holds th a t it  m akes no difference about children of 
e lem en tary  age (w hite and black) being requ ired  to 
w alk  tw o m iles to school w hen they  fo rm erly  w alked 
only a half a m ile, and neither a re  the hazards to 
be tak en  into account. I seriously doubt th a t such a 
h a rsh  ru le  h as  been im posed upon any other school 
d is tric t in the F ifth  Circuit,

H ere is w hat the D istric t Court found about the  haz­
a rd s  involved (and there  is not a  w hisper th a t his 
findings a re  c learly  erroneous):

“The record  abounds w ith evidence showing 
th e  p resence of such  b a rrie rs , obstacles, and 
handicaps as two m ain-line e levated  ra ilro ad  
track s, a. la rge  channel of the Sunflow er R iver 
w ith lim ited  bridge crossings, resu lting  under­
passes and  over-passes, through-highw ays, 
and other special traffic  conditions involved in



tra v e rs in g  C larksdale’s com m ercia l and busi­
ness center, w ith one contingent of younger 
children passing  ano ther contingent of younger 
children headed  in opposite directions for the 
purpose of m eeting  th e ir  assignm ents a t the 
p a ired  g rade  schools. This is a  fa r  cry  from  
conventional pa iring  of n earb y  schools of a  ru r ­
a l school d is tric t previously served  by a  regu­
la r  school tran sp o rta tio n  system  (citing case).
The overw helm ing w eight of the evidence in 
the  case convinces th is  court th a t the  in stan t 
pairing  p lan  would produce g rea t hardsh ips, if 
.not danger, to  m any  school ch ild ren  from  a 
pure ly  physical standpoint, not to m ention the 
undue burden  it would c a s t upon school p a ­
tro n s” (typew ritten  m em orandum  opinion of 
the  D istric t Judge, pages 12 and 13).

It m ust be rem em b ered  th a t th e  ch ild ren  about to 
be sub jec ted  to these hazards a re  both b lack  and white. 
I t m ust be fu rth e r rem em b ered  th a t any black child 
w ishing of his own volition to incur such h azard s  is 
given th a t righ t by th e  judgm ent of the D istric t Court, 
w ith  absolute p rio rity  on the needed space, w hich is 
m ore  th an  Orange County ordered, but which has c rep t 
into som e of our subsequen t decisions.

I m u st also point out th a t the conditions requ iring  
the  continuation of Booker T. W ashington School a re  
fa r  m ore stringen t th an  th a t existing in o ther p laces 
in the  C ircuit which w ere p e rm itted  to continue because 
th e re  sim ply w as no feasib le  m ethod of desegregation. 
V arious panels have left one school like th a t in  Mont-

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



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 25

go-mery, A labam a, sev e ra l in  Fulton  County, G eorgia, 
sev e ra l in D ade County, F lo rida, and a  num ber, un­
known to m e, have not ye t been  d istu rbed  in, the  City 
of A tlanta. Again, I am  not com plaining of w hat w as 
done in th ese  localities. I t should have been  done. I 
ob ject to- C larksdale being denied sim ila r tre a tm e n t 
under w hat I am  convinced a re  fa r  m o re  difficult c ir­
cum stances.

I m ust fu rth e r point out th a t the  judgm ent of the 
Court below to tally  in teg ra ted  43% of the N egro popula­
tion  of the  C larksdale system  in g rades 7 to- 12 and 
th a t the e lem en tary  pupils who would choose, if they 
could, to  go- to the schools n e a re s t th e ir hom es would 
nevertheless  inev itab ly  finish the  la st five y ea rs  of 
th e ir  public school c a ree rs  in a to ta lly  in teg ra ted  s itu a ­
tion — w hen they  a re  old enough to- reasonab ly  m eet 
the  hazard s  of w alking all over the City if th e ir  p a ren ts  
a re  unable to provide p riv a te  transpo rta tion . Again, 
it  is com m on knowledge th a t it is the  N egro pupil 
who m ost often cannot afford the p riv a te  tra n sp o rta ­
tion.

M oreover, it is no answ er to say  th a t the D istric t 
Court w as bound inelastieally  to follow the  te rm s  of 
the  fo rm er m an d ate  in th is case. The F ifth  C ircuit 
h as  uniform ly held th a t as to- cases  sub judice the 
Courts m ust tak e  into consideration  supervening  
changes in case or s ta tu to ry  law. The cases a re  legion, 
and p a rticu la rly  in cases seeking to achieve u n ita ry  
school system s.

I fully realize  th a t rac ia lly  dual school system s m ust 
be m ade unitary . The sooner th a t day arrives, if it



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

ever does in the  w elter of conflicting Court decisions 
even  in our own Circuit, the  b e tte r for all ch ild ren  
who' m u st depend on public schools for a  chance in 
life. I m igh t add th a t the sooner it occurs the  be tte r 
it will be for the dom estic tran q u ility  of th is Country.

My point is th a t the F ifth  C ircuit la id  down one fo rm ­
u la  in Orange, but its use is not being uniform ly p e r­
m itted . The D istric t Court, on the  ground and m ore 
fam ilia r w ith the  fac ts  th an  we shall ev er be, held 
th a t the Orange m ethod offered the  b est hope for 
C larksdale. He did th is  in  the  face  of objections from  
both the  C larksdale School B oard  and HEW. There 
p resen tly  exists no legal basis for a reversa l. M oreover, 
if Orange had  n ev er tak en  its- p lace  in  the jud ic ia l 
p recedents, th e re  would be no w a rra n t for requiring , 
as here , th a t the  h aza rd s  to- little  ch ildren  should be 
of no consequence.

In the orig inal Brown  cases, 349 U.S. 294, 75 S.Ct. 
753, 99 L.Ed. 1083, (1955) the Suprem e Court stated:

“School au thorities have the p rim ary  respon­
sibility for elucidating, assessing, and solving 
these problem s; courts w ill h av e  to consider 
w hether the action of school au thorities consti­
tu tes  good fa ith  im plem enta tion  of th e  govern­
ing constitu tional principles. B ecause of th e ir 
p roxim ity  to local conditions and the possible 
need  fo r fu r th e r hearings, th e  courts which 
originally  h eard  these  cases can best perfo rm  
th is jud icia l appra isa l. A ccordingly we believe 
it app ro p ria te  to rem an d  th e  cases to those 
courts.



HENRY, ET AL. v. CLARKSDALE SCH. DIST. 27

“In  fashioning and effectuating  the decrees, 
the  courts will be guided by equ itab le p rin c i­
ples. T raditionally , equity  has been c h a ra c te r­
ized by a p ra c tic a l flexibility  in shaping  its 
rem ed ies and  by a  fac ility  for ad justing  
and reconciling public and p riv a te  needs. 
These cases  call for the  exercise  of th e se  tra -

' d itional a ttrib u tes  of equity power.

“To th a t end, the  co u rts  m ay  consider p rob­
lem s re la ted  to adm in istra tion  aris ing  from  the 
physica l condition of the school p lant, the 
school tran sp o rta tio n  system , personnel, rev i­
sion of school d is tric ts  and a ttendance  a re a s  in­
to- com pact units to achieve a system, of de­
term in ing  adm ission to the public schools on. a 
non rac ia l basis, and revision of local law s and 
regulations w hich m ay  be n ecessa ry  in solving 
the  foregoing problem s.”

This app roach  w as en tire ly  sound and I have no 
knowledge th a t the Suprem e Court h as  ever m odified 
it.

The D istric t Judge has ac ted  in accordance w ith 
these  principles. He had  a righ t to- re ly  on our deci­
sion in the  O range County case. U nder his judgm ent, 
the  doors of every  e lem en ta ry  school in C larksdale 
a re  open to every  child, reg ard less  of race. C larksdale 
is en titled  to the  sam e tre a tm e n t accorded  other school 
d is tric ts  in th is C ircuit. The judgm ent of the D istric t 
Court ought not to be reversed .

Again, I respectfu lly  dissent.
Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.