United States v. Jefferson County Board of Education Opinion (Corrected Copy)

    CORRECTED COPY

IN THE

United States Court o f Appeals
FOR THE FIFTH CIRCUIT

N o . 2 3 3 4 5

UNITED STATES OF AMERICA and LINDA STOUT, 
by her father and next friend, BLEVIN STOUT,

Appellants,
versus

JEFFERSON COUNTY BOARD OF EDUCATION,
ET AL,

Appellees.

N o. 23331

UNITED STATES OF AMERICA,
Appellant,

versus

THE BOARD OF EDUCATION OF THE CITY OF 
FAIRFIELD, ET AL,

Appellees.



2 U. S., et al. v. Jeff. County Bd. of Educ., et al.

N o . 2 3 3 3 5

UNITED STATES OF AMERICA,
Appellant,

versus

THE BOARD OF EDUCATION OF THE CITY OF 
BESSEMER, ET AL,

Appellees.

Appeals from the United States District Court for the 
Northern District of Alabama.

N o .  2 3 2 7 4

UNITED STATES OF AMERICA.
Appellant,

versus

CADDO PARISH SCHOOL BOARD, ET AL,
Appellees.

N o . 2 3 3 6 5

UNITED STATES OF AMERICA,
Appellant,

versus

THE BOSSIER PARISH SCHOOL BOARD, ET AL,
Appellees.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 3

No .  2 3 1 7 3

MARGARET M. JOHNSON, ET AL,
Appellants,

versus

JACKSON PARISH SCHOOL BOARD, ET AL,
Appellees.

N o .  2 3 1 9 2

YVORNIA DECAROL BANKS, ET AL,
Appellants,

versus

CLAIBORNE PARISH SCHOOL BOARD, ET AL,
Appellees.

Appeals from the United States District Court for the 
Western District of Louisiana.

(December 29, 1966.)

Before WISDOM and THORNBERRY, Circuit Judges, 
and COX,* District Judge.

WISDOM, Circuit Judge: Once again the Court is 
called upon to review school desegregation plans to 
determine whether the plans meet constitutional 
standards. The distinctive feature of these cases, con­
solidated on appeal, is that they require us to reex­
amine school desegregation standards in the light of
* William Harold Cox, U. S. District Judge for the Southern Dis­

trict of Mississippi, sitting by designation.



4 U. S., et al. v. Jeff. County Bd. of Educ., et al.

the Civil Rights Act of 1964 and the Guidelines of the 
United States Office of Education, Department of 
Health, Education, and Welfare (HEW).

When the United States Supreme Court in 1954 
decided Brown v. Board of Education1 the mem­
bers of the High School Class of 1966 had not entered 
the first grade. Erown I held that separate schools 
for Negro children were “ inherently unequal” .2 Ne­
gro children, said the Court, have the “ personal and 
present”  right to equal educational opportunities 
with white children in a racially nondiscriminatory 
public school system. For all but a handful of Negro 
members of the High School Class of ’66 this right 
has been “ of such stuff as dreams are made on” ,3

“ The Brown case is misread and misapplied when 
it is construed simply to confer upon Negro pupils 
the right to be considered for admission to a white
1 Brown v. Board of Education, 1954, 347 U. S. 483, 74 S.Ct. 
686, 98 L. Ed. 873 (Brown I). See Brown v. Board of Education, 
1955, 349 U.S. 294, 75 S.Ct. 293, 99 L .E d .'1083 (Brown II).
2 347 U. S. at 495.
3 Shakespeare, The Temptest IV. The cases consolidated for ap­
peal involve Alabama and Louisiana public schools. In Alabama, 
as of December 1965, there were 1250 Negro pupils, out of a state­
wide total of 295,848, actually enrolled in schools with 559,123 
white students,, 0.43% of the eligible Negro enrollment. In Louisi­
ana there were 2187 Negro children, out of a total of 318,651, en­
rolled in school with 483,941 white children, 0.69% of the total 
eligible. Southern Education Reporting Service, Statistical Sum­
mary of Segregation-Desegregation in the Southern and Border 
Area from 1954 to the present, 15th Rev. p. 2, Dec. 1965. See Ap­
pendix B, Rate of Change and Status of Desegregation. In each of 
the seven cases before this Court, no start was made toward de­
segregation of the schools until 1965, eleven years after Brown. 
In all these cases, the start was a consequence of a court order 
obtained only after vigorous opposition by school officials.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 5

school” .4 The United States Constitution, as construed 
in Brown, requires public school systems to integrate 
students, faculties, facilities, and activities.5 If Brown

4 Braxton v. Board of Public Instruction of Duval County, 
S.D.Pla. 1962, 7 Race Rel. L. Rep. 675, aff’d, 5 Cir. 
1964, 326 F.2d 616, cert, den’d 377 U. S. 924 (1964).
Senator Humphrey cited this case in explaining Section 604 of 
The Civil Rights Act of 1964. See Section IV D of this opinion.

The mystique that has developed over the supposed difference 
between “desegregation” and “integration” originated in Briggs 
v. Elliott, E.D.S.C. 1955, 132 F.Supp. 776: “The Constitution . . . 
does not require integration. It merely forbids segregation” . 132 
F.Supp. at 777. This dictum is a product of the narrow view 
that Fourteenth Amendment rights are only individual rights; 
that therefore Negro school children individually must exhaust 
their administrative remedies and will not be allowed to bring class 
action suits to desegregate a school system. See Section IIIA of 
this opinion.

The Supreme Court did not use either “desegrega­
tion” or “integration” in Brown. But the Court did 
quote with approval a statement of the district court 
in which “integrated” was used as we use it here. For ten 
years after Brown the Court carefully refrained from using “ in­
tegration” or “ integrated” . Then in 1964 in Griffin v. County 
School Board of Prince Edward County, 375 U.S. 391, 84 S.Ct. 
400, 11 L.Ed.2d 409, the Court noted that “the Board of Super­
visors decided not to levy taxes or appropriate funds for integrated 
public schools” , i.e. schools under a desegregation order. There 
is not one Supreme Court decision which can be fairly construed 
to show that the Court distinguished “desegregation” from “in­
tegration” , in terms or by even the most gossamer implication.

Counsel for the Alabama defendants assert that “desegrega­
tion” and “integration” are terms of art. They struggle valiantly 
to define these words:

By “desegregation” we mean the duty imposed by Brown 
upon schools which previously compelled segregation to take 
affirmative steps to eliminate such compulsory segregation 
so as to allow the admission of students to schools on a non- 
racial admission basis. By “ integration” we mean the actual 
placing of or attendance by Negro students in schools with 
whites.

They can do so only by narrowing the definitions to the point of 
inadequacy. Manifestly, the duty to desegregate schools extends 
beyond the mere “admission” of Negro students on a non-racial 
basis. As for “ integration” , manifestly a desegregation plan must 
include some arrangement for the attendance of Negroes in 
formerly white schools.

In this opinion we use the words “ integration” and “desegre­
gation” interchangeably. That is the way they are used in the 
vernacular. That is the way they are defined in Webster’s Third 
New International Dictionary: “ ‘integrate’ to ‘desegregate’ ” .



6 17. S., et al. v. Jeff. County Bd. of Educ., et al.

I left any doubt as to the affirmative duty of states 
to furnish a fully integrated education to Negroes as
The Civil Rights Commission follows this usage: for example, 
“The Office of Education . . . standards . . . should . . . 
ensure that free choice plans are adequate to disestablish dual, 
racially segregated school systems . . .  to achieve substantial 
integration in such systems.” U. S. Comm. Survey of School 
Desegregation 1965-66, p. 54.

The Eighth Circuit used “integration” interchangeably with 
“desegregation” in Smith v. Board of Education of Morrilton, 8 
Cir. 1966, 365 F.2d 7,70. So did the Third Circuit in Evans v. 
Ennis, 3 Cir. 1960, 281 F.2d 385. See also Brown v. County 
School Board of Frederick County, Va., W.D.Va. 1965, 245 F. 
Supp. 549. The courts in Dowell v. School Board of Oklahoma City 
Public Schools, W.D.Okla. 1965, 244 F. Supp. 971 and Dove v. 
Parham, 8 Cir. 1960, 282 F.2d 256 (and the Civil Rights Commis­
sion), speak of a school board’s duty to “disestablish segrega­
tion” . This term accurately “ implies that existing racial imbalance 
is a consequence of past segregation policies, and, because of 
this, school boards have an affirmative duty to remedy racial 
imbalance” . Note, Discrimination in. the Hiring and Assignment of 
Teachers in Public School Systems, 64 Mich. L. Rev. 692, 698 n.44 
(1966). (Emphasis added.)

We use the terms “integration” and “desegregation” of 
formerly segregated public schools to mean the conversion of a 
de jure segregated dual system to a unitary, nonracial (nondis- 
criminatory) system— lock, stock, and barrel: students, faculty, 
staff, facilities, programs, and activities. The proper govern­
mental objective of the conversion is to offer educational op­
portunities on equal terms to all.

As we see it, the law imposes an absolute duty to desegre­
gate, that is, disestablish segregation. And an absolute duty to 
integrate, in the sense that a disproportionate concentration of 
Negroes in certain schools cannot be ignored; racial mixing of 
students is a high priority educational goal. The law does not 
require a maximum of racial mixing' or striking a racial balance 
accurately reflecting the racial composition of the community 
or the school population. It does not require that each and every 
child shall attend a racially balanced school. This, we take it, 
is the sense in which the Civil Rights Commission used the 
phrase “ substantial-integration’ ’.

As long as school boards understand the objective of de­
segregation and the necessity for complete disestablishment of 
segregation by converting the dual system to a nonracial unitary 
system, the nomenclature is unimportant. The criterion for deter­
mining the validity of a provision in a desegregation plan is 
whether it is reasonably related to the objective. We emphasize, 
therefore, the governmental objective and the specifics of the 
conversion process, rather than the imagery evoked by the 
pejorative "integration” . Decision-making in this important area 
of the law cannot be made to ,turn upon a quibble devised over



a class, Brown II resolved that doubt. A state with a 
dual attendance system, one for whites and one for 
Negroes, must “ effectuate a transition to a [single] 
racially nondiscriminatory system.” 6 The two Brown 
decisions established equalization of educational op­
portunities as a high priority goal for all of the states 
and compelled seventeen states, which by law had 
segregated public schools, to take affirmative action 
to reorganize their schools into a unitary, nonracial 
system.

The only school desegregation plan that meets con­
stitutional standards is one that works. By helping 
public schools to meet that test, by assisting the 
courts in their independent evaluation of school de­
segregation plans, and by accelerating the progress 
but simplifying the process of desegregation the. 
HEW Guidelines offer new hope to Negro school 
children long denied their constitutional rights. A 
national effort, bringing together Congres?, the 
executive, and the judiciary may be able to make 
meaningful the right of Negro children to equal 
educational opportunities. The courts acting alone 
have failed.

We hold, again, in determining whether school de­
segregation plans meet the standards of Brown and
ten years ago by a court that misread Brown, misapplied the class 
action doctrine in the school desegregation cases, and did not fore­
see the development of the law of equal opportunities.
0 Brown v. Board of Education, 1955, 349 U.S. 294, 301.

U. S., et al. v. Jeff. County Bd. of Educ., et al. 7



8 U. S., et al. v. Jeff. County Bd. of Educ., et al.

other decisions of the Supreme Court,7 that courts in 
this circuit should give “ great weight”  to HEW 
Guidelines.8 * Such deference is consistent with the 
exercise of traditional judicial powers and functions. 
HEW Guidelines are based on decisions of this and 
other courts, are formulated to stay within the scope 
of the Civil Rights Act of 1964, are prepared in detail 
by experts in education and school administration, 
and are intended by Congress and the executive to 
be part of a coordinated national program. The 
Guidelines present the best system available for uni­
form application, and the best aid to the courts in 
evaluating the validity of a school desegregation plan 
and the progress made under that plan.

HEW regulations provide that schools applying for 
financial assistance must comply with certain re­
quirements. However, the requirements for elemen­
tary or secondary schools “ shall be deemed to be 
satisfied if such school or school system is subject to 
a final order of a court of the United States for the 
desegregation of such school or school system . . , ” 8 
This regulation causes our decisions to have a two­
fold impact on school desegregation. Our decisions 
determine not only (1) the standards schools must 
comply with under Brown but also (2) the standards 
these schools must comply with to qualify for federal 
financial assistance. Schools automatically qual­
7 Especially Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1399, 
3 L.Ed.2d 3 ; Bradley v. School Board of the City of Richmond, 
1965, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; Rogers v. Paul, 
1965, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265.
8 Singleton v. Jackson Municipal Separate School District, 5 
Cir. 1965, 348 F.2d 729 (Singleton I).
“ 45 C.F.R. 580.4(c) (1964).



U. S., et al. v. Jeff. County Bd. oj Educ., et al. 9

ify for federal aid whenever a final court order 
desegregating the school has been entered in the liti­
gation and the school authorities agree to comply 
with the order. Because of the second consequence of 
our decisions and because of our duty to cooperate 
with Congress and with the executive in enforcing 
Congressional objectives, strong policy considerations 
support our holding that the standards of court- 
supervised desegregation should not be lower than 
the standards of HEW-supervised desegregation. The 
Guidelines, of course, cannot bind the courts; we are 
not abdicating any judicial responsibilities.10 But we 
hold that HEW’s standards are substantially the same 
as this Court’s standards. They are required by the 
Constitution and, as we cdnstrue them, are within 
the scope of the Civil Rights Act of 1964. In evaluating 
desegregation plans, district courts should make 
few exceptions to the Guidelines and should care­
fully tailor those so as not to defeat the policies of 
HEW or the holding of this Court.

Case by case over the last twelve years, courts 
have increased their understanding of the desegre­
gation process.11 * Less and less have courts accepted 
the question-begging distinction between “ desegrega­
tion”  and “ integration”  as a sanctuary for school 
boards fleeing from their constitutional duty to estab­
10 In Singleton I, to avoid any such inference, we said: “The
judiciary has of course functions and duties distinct from those 
of the executive department . . . Absent legal questions, the 
United States Office of Education is better qualified. . . . ” 348 
F. 2d at 731.
11 “The rule has become: the later the start, the shorter the
time allowed for transition.” Lockett v. Board of Education of 
Muscogee County, 5 Cir. 1965, 342 F.2d 225, 228.



10 17. S., et al. v. Jeff. County Bd. of Educ., et al.

lish an integrated, non-racial school system.12 With 
the benefit of this experience, the Court has re­
studied the School Segregation Cases. We have re­
examined the nature of the Negro’s right to equal 
educational opportunities and the extent of the cor­
relative affirmative duty of the state to furnish equal 
educational opportunities. We have taken a close look 
at the background and objectives of the Civil Rights 
Act of 1964.13

* * *
We approach decision-making here with humility. 

Many intelligent men of good will who have dedicated 
their lives to public education are deeply concerned 
for fear that a doctrinaire approach to desegregat­
ing schools may lower educational standards or even 
destroy public schools in some areas. These educa­
tors and school administrators, especially in commu­
nities where total segregation has been the way of 
life from cradle to coffin, may fail to understand all 
of the legal implications of Brown, but they un­
derstand the grim realities of the problems that com­
plicate their task.

The Court is aware of the gravity of their problems. 
(1) Some determined opponents of desegregation 
would scuttle public education rather than send their 
children to schools with Negro children. These men
13 See Section III A  and footnote 5.

Th,e Court asked counsel in these consolidated cases and in 
five other cases for briefs on the following questions:

(a) To what extent, consistent with judicial preroga­
tives and obligations,- statutory and constitutional, is it per­
missible and desirable for a federal court (trial or appellate) 
to give weight to or to rely on H.E.W. guidelines and policies 
in cases before the court?

(b) If permissible and desirable, what practical means 
and methods do you suggest that federal courts (trial and 
appellate) should follow in making H.E.W. guidelines and 
policies judicially effective?



17. S., et al. v. Jeff. County Bd. of Educ., et al. 11

flee to the suburbs, reinforcing urban neighborhood 
school patterns. (2) Private schools, aided by state 
grants, have mushroomed in some states in this cir­
cuit.14 The flight of white children to these new 
schools and to established private and parochial 
schools promotes resegregation. (3) Many white 
teachers prefer not to teach in Negro schools. They 
are tempted to seek employment at white schools or 
to retire. (4) Many Negro children, for various rea­
sons, prefer to finish school where they started. (5) 
The gap between white and Negro scholastic achieve­
ments causes all sorts of difficulties. There is no con­
solation in the fact that the gap depends on the socio­
economic status of Negroes at least as much as it de­
pends on inferior Negro schools.

No court can have a confident solution for a legal 
problem so closely interwoven with political, social, 
and moral threads as the problem of establishing 
fair, workable standards for undoing de jure school 
segregation in the South. The Civil Rights Act of 
1964 and the HEW Guidelines are belated but invalu­
able helps in arriving at a neutral, principled deci­
14 Alabama provides tuition grants of $185 a year and Louisiana 
$360 a year to students attending private schools. “Only Florida 
and- Texas report no obvious cases of private schools formed to 
avoid desegregation in public schools.” Up to the school year 
1965-66, Louisiana had “some 11,000 pupils already receiving 
state, tuition grants to attend private schools.” This number will 
be significantly increased as a result of new private schools in 
Plaquemines Parish. Leeson, Private Schools Continue to In­
crease in the South, Southern Education Report, November 1966, 
p. 23. In Louisiana, students attending parochial schools do not 
receive tuition grants.



12 U. S., et al. v. Jeff. County Bd. of Educ., et al.

sion consistent with the dimensions of the problem, 
traditional judicial functions, and the United States 
Constitution. We grasp the nettle.

I.

“ No army is stronger than an idea whose time 
has come.” 15 Ten years after Brown, came the Civil 
Rights Act of 1964.16 Congress decided that the time 
had come for a sweeping civil rights advance, in­
cluding national legislation to speed up desegrega­
tion of public schools and to put teeth into enforce­
ment of desegregation.17 Titles IV and VI together
15 In a press meeting May 19, 1964, to discuss the Civil Rights 
bill, Senator Everett Dirksen so paraphrased, “On resiste a 
l’invasion des armees; on ne resiste pas a l ’invasion des idees.” 
Victor Hugo, Histoire d’un crime: Conclusion: La Chute, Ch. 10 
(1877). Senator Dirksen then said, “Let editors rave at will and 
let states fulminate at will, but the time has come, and it can’t 
be stopped.” Cong. Quarterly Service, Revolution in Civil Rights 
63 (1965).
18 H. R. 7152, Pub. L. 88-352, 78 Stat. 243; approved July 2, 
1964.
17 “ [I]n the last decade it has become increasingly clear that
progress has been too slow and that national legislation is re­
quired to meet a national need which becomes ever more obvious. 
That need is evidenced, on the one hand, by a growing impatience 
by the victims of discrimination with its continuance and, on the 
other hand, by a growing recognition on the part of all of our 
people of the incompatibility of such discrimination with our 
ideals and the principles to which this country is dedicated. A  
number of provisions of the Constitution of the United States 
clearly supply the means ‘to secure these rights,’ and H. R. 7152, 
as amended, resting upon this authority, is designed as a step 
toward eradicating significant areas of discrimination on a na­
tionwide basis. It is general in application and national in scope.” 
House Judiciary Committee Report No. 914, to Accompany H. R. 
7152. 2 U.S. Code Congressional and Administrative News,
88th Cong. 2nd Sess. 1964, 2933. "The transition from all- 
Negro to integrated schools is at best a difficult problem of ad­
justment for teachers and students alike. . . . We have tried to 
point out that the progress in school desegregation so well com­
menced in the period 1954-57 has been grinding to a halt. The 
trend observed in 1957-59 toward desegregation by court order



U. S., et al. v. Jeff. County Bd. of Educ., et al. 13

constitute the congressional alternative to court-su­
pervised desegregation. These sections of the law 
mobilize in aid of desegregation the United States 
Office of Education and the Nation’s purse.

A. Title IV authorizes the Office of Education to 
give technical and financial assistance to local school 
systems in the process of desegregation.18 Title VI 
requires all federal agencies administering any grant- 
in-aid program to see to it that there is no racial dis­
crimination by any school or other recipient of fed­
eral financial aid.19 School boards cannot, however, 
by giving up federal aid, avoid the policy that pro­
duced this limitation on federal aid to schools: Title 
IV authorizes the Attorney General to sue, in the 
name of the United States, to desegregate a public
rather than by voluntary action has continued. It is not healthy 
nor right in this country to require the local residents of a com­
munity to carry the sole burden and face alone the hazards of 
commencing costly litigation to compel school desegregation. After 
all, it is the responsibility of the Federal Government to protect 
constitutional rights. . . . ” Additional Views on H. R. 7152 of 
Hon. William M. McCulloch, Hon. John'V. Lindsay, Hon. William 
T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon. 
Charles McC. Mathias, Hon. James E. Bromwell.” Ibid., 2487.
18 78 Stat. 246-99, 42 U.S.C. § 2000c (1964).
19 78 Stat. 252-53, 42 U.S.C. § 2000d (1964). Section 601 
states: "N o person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination under 
any program or activity receiving Federal financial assistance.” 
Section 602 states: “Each Federal department and agency which 
is empowered to extend Federal financial assistance to any program 
or activity . . .  is authorized and directed to effectuate the pro­
visions of Section 601 with respect to such program or activity 
by issuing rules, regulations, or orders of general applicability 
which shall be consistent with achievement of the objectives of 
the statute authorizing the financial assistance in connection 
with which the action is taken. . . . ”



14 U. S., et al. v. Jeff. County Bd. of Educ., et al.

school or school system.20 More clearly and effec­
tively than either of the other two coordinate branches 
of Government, Congress speaks as the Voice of the 
Nation. The national policy is plain: formerly de jure 
segregated public school systems based on dual at­
tendance zones must shift to unitary, nonracial sys­
tems—with or without federal funds.

The Chief Executive acted promptly to carry into 
effect the Chief Legislature’s mandate. President 
Lyndon B. Johnson signed the bill into law July 2, 
1964, only a few hours after Congress had finally 
approved it. In the signing ceremony broadcast to the 
Nation, the President said: "We believe all men are 
entitled to the blessings of liberty, yet millions are 
being deprived of those blessings—not because of 
their own failures, but because of the color of their 
skins. . . . [It] cannot continue.” 21 At the request 
of President Johnson, Vice President Hubert H. Hum­
phrey submitted .a report to the President ‘ ‘On the 
Coordination of Civil Rights Activities in the Federal 
Government”  recommending the creation of a Coun­
cil on Equal Opportunity. The report concludes that 

the very breadth of the Federal Government’s ef­
fort, involving a multiplicity of programs” necessary 
to carry out the 1964 Act had created a ‘ ‘problem 
of coordination.” The President approved the recom­
mendation that instead of creating a new agency
*  H  Stat 246-49, 42 U.S.C. § 2000c (1964). In addition Titte 
IX authorizes the Attorney General to intervene in private suits 
where persons have alleged denial of equal protection of the laws 
under the 14th Amendment where he certifies that the case is of

§S2000ahP2 a964)P° r 78 Stat 266’ TitIe K  § 902, 42 U S C
21 N.Y. Times, July 3, 1964, p. 1.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 15

there be a general coordination of effort.22 Later, 
the President noted that the federal departments and 
agencies had “ adopted uniform and consistent regula­
tions implementing Title VI . . . [in] a coordinated 
program of enforcement.” He directed the Attorney 
General to “ coordinate”  the various federal pro­
grams in the adoption of “ consistent and uniform 
policies, practices and procedures with respect to the 
enforcement of Title VI. . . , ” 23

In April 1965 Congress for the first time in its his­
tory adopted a law providing general federal aid 
—a billion dollars a year—for elementary and 
secondary schools.24 25 It is a fair assumption that 
Congress would not have taken this step had Title VI 
not established the principle that schools receiving 
federal assistance must meet uniform national 
standards for desegregation.23

To make Title VI effective, the Department of 
Health, Education, and Welfare (HEW) adopted the 
regulation, “ Non-discrimination in Federally assisted 
Programs.” 26 This regulation directs the Commis­
sioner of Education to approve applications for fi­
22 Executive Order 11197, Feb. 9, 1965, 30 F.R. 1721.
23 Executive Order No. 11247, Sept. 28, 1965, 30 F. R. 12327.
24 The Elementary and Secondary Education Act of 1965, 79 
Stat. 27.
25 “The Elementary and Secondary Education Act of 1965 
greatly increased the amount of federal money available for public 
schools, and did so in accordance with a formula that pumps the 
lion’s share of the money to low-income areas such as the Deep 
South. Consequently, Title VI of the Civil Rights Act of 1964 
has become the main instrument for accelerating and completing 
the desegregation of Southern public schools.” The New Republic, 
April 9, 1966 (Professor Alexander M. Bickel).
26 45 C.F.R. Part 80, Dec. 4, 1964, 64 F. R. 12539.



nancial assistance to public schools only if the school 
or school system agrees to comply with a court order, 
if any, outstanding against it, or submits a desegre­
gation plan satisfactory to the Commissioner.27

To make the regulation effective, by assisting the 
Office of Education in determining whether a ‘ school 
qualifies for federal financial aid and by informing 
school boards of HEW requirements, HEW formu­
lated certain standards or guidelines. In April 1965, 
nearly a year after the Act was signed, HEW pub­
lished its first Guidelines, “ General Statement of 
Policies under Title VI of the Civil Rights Act of 
1964 Respecting Desegregation of Elementary and 
Secondary Schools.” 28 29 These Guidelines fixed the 
fall of 1967 as the target date for total desegregation 
of all grades. In March 1966 HEW issued “ Revised 
Guidelines”  to correct most of the major flaws re­
vealed in the first year of operation under Title VI.39

B. The HEW Guidelines raise the question: To 
what extent should a court, in determining whether 
to approve a school desegregation plan, give weight 
to the HEW Guidelines? We adhere to the answer
27 “Every application for Federal financial assistance to carry 
out a program to which this part applies . . . shall, as a condi­
tion to its approval . . ., contain or be accompanied by an as­
surance that the program will be conducted or the facility operated 
in compliance with all requirements imposed by or pursuant to 
this part. . . . ” 45 C.F.R. § 80.4 (a) (1964).
28 U. S. Department of Health, Education and Welfare, Office 
of Education, General Statement of Policies under Title VI of the 
Civil Rights Act of 1964 Respecting Desegregation of Elementary 
and Secondary Schools, April, 1965. It is quoted in full in Price 
v. Denison Independent School District, 5 Cir. 1965 348 F 2d at 
1010.
29 Revised Statement of Policies for School Desegregation Plans 
Under Title VI of the Civil Rights Act of 1964. March, 1966.

16 U. S., et al. v. Jeff. County Bd. of Educ., et al.



17. S., et al. v. Jejf. County Bd. of Educ., et al. 17

this Court gave in four earlier cases. The HEW 
Guidelines are “ minimum standards” , representing 
for the most part standards the Supreme Court and 
this Court established before the Guidelines were 
promulgated.30 Again we hold, “we attach great 
weight”  to the Guidelines. Singleton v. Jackson Munic­
ipal Separate School District, 5 Cir. 1965, 348 F.2d 
729 (Singleton I). “ We put these standards to work. 
. . . [Plans] should be modeled after the Com­
missioner of Education’s requirements. . . . [Excep­
tions to the guidelines should be] confined to those 
rare cases presenting justiciable, not operational, 
questions. . . . The applicable standard is essentially 
the HEW formulae.”  Price v. Denison Independent 
School District, 5 Cir. 1965, 348 F.2d 1010. “ We consid­
er it to be in the best interest of all concerned that 
School Boards meet the minimum standards of the 
Office of Education . . . .  In certain school districts 
and in certain respects, HEW standards may be too 
low to meet the requirements established by the 
Supreme Court and by this Court . . . .  [But we also] 
consider it important to make clear that . . .  we do 
not abdicate our judicial responsibility for determin­
ing whether a school desegregation plan violates fed­
erally guaranteed rights.”  Singleton v. Jackson Mu­
nicipal Separate School District, 5 Cir. 1966, 355 F.2d 
815 (Singleton II). In Davis v. Board of School Com­
missioners of Mobile County, 5 Cir. 1966, 364 F.2d 896, 
the most recent school case before this Court, we ap-
3° in Davis v. Board of School Commissioners of Mobile County, 
5 Cir. 1966, 364 F.2d 896, Judge Tuttle, for the Court, noted that 
for more than a year, it has been apparent to all concerned 

that the requirements of Singleton and Denison were the minimum 
standards to apply.”



proved Singleton I and II and Price v. Denison and 
ordered certain changes in the school plan in con­
formity with the HEW Guidelines.

Courts in other circuits are in substantial agree­
ment with this Court. In Kemp v. Beasley, 8 Cir.
1965, 352 F. 2d 14, 18-19, the Court said: “ The Court 
agrees that these [HEW] standards must be 
'heavily relied upon . . . .  [T]he courts should en­
deavor to model their standards after those promul­
gated by the executive. They are not bound, however, 
and when circumstances dictate, the courts may re­
quire something more, less or different from the 
H.E.W. guidelines.”  (Emphasis added.) Concurring, 
Judge Larson observed: “ However, that ‘something 
different’ should rarely, if ever be less than what is 
contemplated by the H.E.W. standards.” 352 F.2d at 
23. Smith v. Board of Education of Morrilton, 8 Cir.
1966, 365 F.2d 770 reaffirms that the Guidelines “ are 
entitled to serious judicial deference” .

Although the Court of Appeals for the Fourth Cir­
cuit has not yet considered the effect of the HEW 
standards, district courts in that circuit have relied 
on the guidelines. See Kier v. County School Board 
of Augusta County, W.D.Va. 1966, 249 F. Supp. 239; 
Wright v. County School Board of Greenville County, 
E.D.Va. 1966, 252 F . Supp. 378; Miller v. Clarendon 
County School District No. 2, D.S.C., Civil Action No. 
8752, April 21, 1966. In Miller, one of the most recent 
of these cases, the court said:

The orderly progress of desegregation is
best served if school systems desegregating

18 U. S., et al. v. Jeff. County Bd. of Educ., et al.



U. S., et al. v. Jeff. County Bd. of Educ., eta l. 19

under court order are required to meet the 
minimum standards promulgated for systems 
that desegregate voluntarily. Without direct­
ing absolute adherence to the “ Revised Stand­
ards”  guidelines at this juncture, this court 
will welcome their inclusion in any new, 
amended, or substitute plan which may be 
adopted and submitted.

In this circuit, the school problem arises from 
state action. This Court has not had to deal with 
nonracially motivated de facto segregation, that is, 
racial imbalance resulting fortuitously in a school 
system based on a single neighborhood school serv­
ing all white and Negro children in a certain attend­
ance area or neighborhood. For this circuit, the 
HEW Guidelines offer, for the first time, the pros­
pect that the transition from a de jure segregated 
dual system to a unitary integrated system may be 
carried out effectively, promptly, and in an orderly 
manner. See Appendix B, Rate of Change and Status 
of Desegregation.

II.
We read Title VI as a congressional mandate for 

change—change in pace and method of enforcing de­
segregation. The 1964 Act does not disavow court- 
supervised desegregation. On the contrary, Congress 
recognized that to the courts belongs the last word 
in any case or controversy.31 But Congress was dis­
31 Title IV, § 407, 42 U.S.C. § 2000 (c) authorizing the Attorney 
General to bring suit, on receipt of a written complaint, would 
seem to imply this conclusion. Section 409 preserves the right of 
individual citizens “to sue for or obtain relief” against discrimina­
tion in public education. H EW  Regulations provide: “In any
case in which a final order of a court of the United States for



20 U. S., et al. v. Jeff. County Bd. of Educ., et al.

satisfied with the slow progress inherent in the judi­
cial adversary process.32 Congress therefore fash­
ioned a new method of enforcement to be admin­
istered not on a case by case basis as in the courts 
but, generally, by federal agencies operating on a 
national scale and having a special competence in 
their respective fields. Congress looked to these agen­
cies to shoulder the additional enforcement burdens 
resulting from the shift to high gear in school deseg­
regation.

A. Congress was well aware that it was time for 
a change. In the decade following Brown, court-super­
vised desegregation made qualitative progress: 
Responsible Southern leaders accepted desegregation 
as a settled constitutional principle.33 Quantitively,
the desegregation of such school or school system is entered 
after submission of such a plan, such a plan shall be revised to 
conform to such final order, including any future modification of 
such order.” 45 C.P.R. § 80.4(c) (1964).
32 See footnote 17.
33 “The Federal courts have been responsible for great qualita­
tive advances in civil rights; the lack has been in quantitative im­
plementation— in enabling the individual to avail himself of these 
great decisions.” Bernhard and Natalie, Between Rights and 
Remedies, 53 Georgetown L. Jour. 915, 916 (1965). “ [I]t is the 
consensus of the judges on the firing line, so to speak, that one 
phase in the administration of the law— the establishment phase 
characterized by permissive tokenism, by a sort of minimal 
judicial holding of the line while the political process did, as it 
must, the main job of establishing— this phase has been closed 
out.” Bickel, The Decade of School Desegregation, 64 Colum 
L. Rev. 193, 209 (1964). The changes of the past decade have dis­
appointed the most optimistic hopes, but they have been dramat­
ically sweeping nonetheless. Gellhorn, A  Decade of Desegregation__
Retrospect and Prospect, 9 Utah L. Rev. 3 (1964). “What makes 
one uneasy, of course is the truly awesome magnitude of what 
has yet to be done.” Marshall, The Courts, in Center for the Study 
of Democratic Institutions, The Maze of Modem Government 36 
(1964), quoted in Poliak, Ten Years After the Decision, 24 Fed 
Bar Jour. 123 (1964). On the first decade of desegregation see 
generally, Sarratt, The Ordeal of Desegregation (1966); Legal 
Aspects of the Civil Rights Movement. (D. B. King ed 1965)



U. S., et al. v. Jeff. County Bd. of Educ., et al. 21

the results were meagre. The statistics speak elo­
quently. See Appendix B, Rate of Change and Status 
of Desegregation. In 1965 the public school districts 
in the consolidated cases now before this Court had 
a school population of 155,782 school children, 59,361 
of whom were Negro. Yet under the existing court- 
approved desegregation plans, only 110 Negro chil­
dren in these districts, .019 per cent of the school 
population, attend former “ white”  schools.34 35 36 * In 1965 
there was no faculty desegregation in any of these 
school districts; indeed, none of the 30,500 Negro 
teachers in Alabama, Louisiana, and Mississippi 
served with any of the 65,400 white teachers in those 
states.33 In the 1963-64 school year, the eleven states 
of the Confederacy had 1.17 per cent of their Negro 
students in schools with white students.38 In 1964-65, 
undoubtedly because of the effect of the 1964 Act,
34 Negroes Admitted

Total To Formerly
Enrollment White Schools

W N
Bessemer, Ala. 2,920 5,284 13
Fairfield, Ala. 1,779 2,159 31
Jefferson County, Ala. 45,000 18,000 24
Caddo Parish, La. 30,680 24,467 1
Bossier Parish, La. 11,100 4,400 31
Jackson Parish, La. 2,548 1,609 5
Claiborne Parish, La. 2,394 3,442 5

(Affidavit of St. John Barrett, Attorney, Department of Justice, 
attached to Motion to Consolidate and Expedite Appeals.)
35 U. S. Dept, of Health, Education and Welfare, Office of 
Education Release, Table 3, September 27, 1965. In the 11 states 
of the Confederacy there are 1800 Negro teachers, 1.8 per cent 
of all the Negro teachers in Southern schools, assigned to schools 
with biracial faculties. By contrast, in the border states (Dela­
ware, Kentucky, Maryland, Missouri, Oklahoma, and West Vir­
ginia) 51 per cent of the Negro teachers now teach white students. 
Ibid.
36 Southern Education Reporting Service, Statistical Summary,
Dec. 1965, cited in U.S. Comm, on Civil Rights, Survey of School
Desegregation in the Southern and Border States 1965-66, p. 1.



22 U. S., et al v. Jeff. County Bd. of Educ., et al.

the percentage doubled, reaching 2.25. For the 1965-66 
school year, this time because of HEW Guidelines, 
the percentage reached 6.01 per cent. In 1965-66 the 
entire region encompassing the Southern and border 
states had 10.9 per cent of their Negro children in 
school with white children; 1,555 biracial school dis­
tricts out of 3,031 in the Southern and border states 
were still fully segregated; 3,101,043 Negro children 
in the region attended all-Negro schools. Despite the 
impetus of the 1964 Act, the states of Alabama, Loui­
siana, and Mississippi, still had less than one per cent 
of their Negro enrollment attending schools with 
white students.37

The dead hand of the old past and the closed fist of 
the recent past account for some of the slow prog­
ress. There are other reasons—as obvious to Con­
gress as to courts. (1) Local loyalties compelled 
school officials and elected officials to make a public 
record of their unwillingness to act. But even school 
authorities willing to act have moved slowly be­
cause of uncertainty as to the scope of their duty to 
act affirmatively. This is attributable to (a) a mis­
placed reliance on the Briggs dictum that the Consti­
tution “does not require integration”,38 (b) a misun­
derstanding of the Brown II mandate, desegregate 
with “due deliberate speed”,39 and (c) a mistaken no­
37 Ibid.; see footnote 3; Appendix B, Rate of Change and Status 
of Desegregation.
38 See Section III A  of this opinion.
39 In Davis v. Board of School Commissioners of Mobile County, 
5 Cir. 1966, 364 F.2d 896, 898, Judge Tuttle, for the Court, said: 
“This is the fourth appearance of this case before this court. This 
present appeal, coming as it does from an order of the trial 
court entered nearly eighteen months ago, on March 31, 1965, 
points up, among other things, the utter impracticability of a



U. S., et al. v. Jejf. County Bd. of Educ., et al. 23

tion that transfers under the Pupil Placement Laws 
satisfy desegregation requirements.* 40 (2) Case by
case development of the law is a poor sort of medium 
for reasonably prompt and uniform desegregation. 
There are natural limits to effective legal action. 
Courts cannot give advisory opinions, and the disci­
plined exercise of the judicial function properly makes 
courts reluctant to move forward in an area of the
continued exercise by the courts of the responsibility for super­
vising the manner in which segregated school systems break out 
of the policy of complete segregation into gradual steps of com­
pliance and towards complete compliance with the constitutional 
requirements of Brown v. Board of Education, 347 U.S. 483. One 
of the reasons for the impracticability of this method of oversee­
ing the transitional stages of operations of the school boards 
involved is that, under the Supreme Court’s ‘deliberate speed’ 
provisions, it has been the duty of the appellate courts to interpret 
and reinterpret this language as time has grown apace, it now 
being the twelfth school year since the Supreme Court’s decision.”
40 “The pupil assignment acts have been the principal obstacle 
to desegregation in the South.” U. S. Comm, on Civil Rights, 
Civil Rights U.S.A.— Public Schools, Southern States 15, 1962. 
See Note, The Federal Courts and Integration of Southern 
Schools: Troubled Status of the Pupil Placement Acts, 62 Colum. 
L. Rev. 1448, 1471-73 (1962); Bush v. Orleans Parish School 
Board, 5 Cir. 1962, 308 F.2d 491. Such laws allow care­
fully screened Negro children, on their application, to transfer 
to white schools from the segregated schools to which the Negroes 
were initially unconstitutionally assigned. Often, even after six 
to eight years of no desegregation, these transfers were limited 
to a grade a year. When this law first came before us we held 
it to be unconstitutional. Bush v. Orleans Parish School Board,
E . D.La. 1956, 138 F. Supp. 337, aff’d 242 F.2d 156, cert, den’d 354 
U.S. 921 (1957). Later, in a narrowly focused opinion, we held 
that the Alabama version was constitutional on its face. Shut- 
tlesworth v. Birmingham Board of Education, N.D.Ala. 1958, 162
F. Supp. 372, aff’d per curiam, 358 U.S. 101 (1958). As
long ago as 1959 and 1960 this Court disapproved of such acts as a 
reasonable start toward full compliance. Gibson v. Board of 
Public Instruction of Dade County, 272 F.2d 763; Mannings v. 
Board of Public Instruction of Hillsborough County, 277 F.2d 370. 
See also Bush v. Orleans Parish School Board, 5 Cir. 1961, 308 
F.2d 491; Evers v. Jackson Municipal Separate School District, 5 
Cir. 1964, 328 F.2d 408. “ [T]he entire public knows that in fact 
[the Louisiana law] . . .  is being used to maintain segregation.
. . . It is not a plan for desegregation at all.” Bush v. Orleans 
Parish School Board, 308 F. 2d at 499-500.



24 17. S., et al. v. Jeff. County Bd. of Educ., et al.

law bordering the periphery of the judicial domain. 
(3) The contempt power is ill-suited to serve as the 
chief means of enforcing desegregation. Judges nat­
urally shrink from using it against citizens willing 
to accept the thankless, painful responsibility of serv­
ing on a school board.41 (4) School desegregation 
plans are often woefully inadequate; they rarely pro­
vide necessary detailed instructions and specific an­
swers to administrative problems.42 And most judges 
do not have sufficient competence—they are not 
educators or school administrators—to know the right 
questions, much less the right answers. (5) But one 
reason more than any other has held back desegre­
gation of public schools on a large scale. This has 
been the lack, until 1964, of effective congressional
41 Bush v. Orleans Parish School Board is an example. 
The board was plagued by bundles of Louisiana statutes 
aimed at defeating desegregation. There were five extra 
sessions of the Louisiana legislature in 1960. After the School 
Board had for three years failed to comply with an order to sub­
mit a plan, the district judge wrote one himself. The trial judge 
simply said: “All children [entering New Orleans public schools 
. . . may attend either the formerly all white public schools 
nearest their homes, or the formerly all Negro public schools 
nearest their homes, at their option. B. Children may be trans­
ferred from one school to another, provided such transfers are 
not based on race” . 204 P.Supp. 568; 571-72.
42 For example, the order of the able district judge in Bush. 
See footnote 41. Judge Bohanon underscored this point in 
Dowell v. School Board of Oklahoma City Public Schools, W .D Okla 
1965, 244 F. Supp. 971, 976: “The plan submitted to this Court 
. . .  is not a plan, but a statement of policy. School desegrega­
tion is a difficult and complicated matter, and, a s . the record 
shows, cannot be accomplished by a statement of policy, De­
segregation of public schools in a system as large as Oklahoma 
City requires a definite and positive plan providing definable 
and ascertainable goals to be achieved within a definite time 
according to a prepared procedure and with responsibilities clearly 
designated.”



U. S., et al. v. Jeff. County Bd. of Educ., et al. 25

statutory recognition of school desegregation as the 
law of the land.48

“ Considerable progress has been made . . . Never­
theless, in the last decade it has become increasingly 
clear that progress has been too slow and that nation­
al legislation is required to meet a national need 
which becomes ever more obvious.”43 44 Title VI of the 
Civil Rights Act of 1964, therefore, was not only ap­
propriate and proper legislation under the Thirteenth 
and Fourteenth Amendments; it was necessary to
43 The Civil Rights Act of 1964 had its direct genesis in Presi­
dent Kennedy’s message to Congress of June 19, 1963, urging 
passage of an omnibus civil rights law. He noted: “In the con­
tinued absence of congressional action, too many state and local 
officials as well as businessmen will remain unwilling to accord 
these rights to all citizens. Some local courts and local mer­
chants may well claim to be uncertain of the law, while those 
merchants who do recognize the justice of the Negro’s request 
(and I believe these constitute the great majority of merchants, 
North and South)' will be fearful of being the first to move, in 
the face of official customer, employee, or competitive pressures. 
Negroes, consequently, can be expected to continue increasingly 
to seek the vindication of these rights, through organized direct 
action, with all its potentially explosive consequences, such as we 
have seen in Birmingham, in Philadelphia, in Jackson, in Boston, 
in Cambridge, Md., and in many other parts of the country. If In 
short, the result of continued Federal legislative inaction will be 
continued, if not increased, racial strife— causing the leadership 
on both sides to pass from the hands of reasonable and responsible 
men to the purveyors of hate and violence, endangering domestic 
tranquillity, retarding our nation’s economic and social progress 
and weakening the respect with which the rest of the world re­
gards us. No American, I feel sure, would prefer this course of 
tension, disorder, and division— and the great majority of our 
citizens simply cannot accept it.” H.Doc. 124, 88th Cong. 1st 
Sess. June 20, 1963, Rep. Emanuel Celler, Chairman of the House 
Judiciary Committee, introduced H.R. 7152 embodying the Presi­
dent’s proposals. The same day Senator Mike Mansfield intro­
duced a similar bill, S. 1731. H.R. 7152-S.1731, as amended, be­
came the Civil Rights Act of 1964.
44 H. Rep. No. 914, 88th Cong., 1st Sess.



26 U. S., et al. v. Jeff. County Bd. of Educ., et al.

rescue school desegregation from the bog in which 
it had been trapped for ten years.45

The Civil Rights Commission, doubtless better able 
than any other authority to understand the signifi­
cance of the Civil Rights Act of 1964, had this to say 
about Title VI:

“ This statute heralded a new era in school 
desegregation . . . Most significantly . . . 
Federal power was to be brought to bear in 
a manner which promised speedier and more 
substantial desegregation than had been 
achieved through the voluntary efforts of 
school boards and district-by-district litiga­
tion. . . . During fiscal year 1964, $176,546,992 
was distributed to State and local school 
agencies in the 17 Southern and border States. 
The passage of the Elementary and Second­
ary Education Act of 1965 added an addition­
al appropriation of $589,946,135 for allocation 
to the 17 Southern and border States for fiscal 
year 1966. With funds of such magnitude at 
stake, most school systems would be placed 
at a serious disadvantage by termination of 
Federal assistance.”46

45 “It was the Congressional purpose, in Title VI of the Civil 
Rights Act of 1964, to remove school desegregation efforts from 
the courts, where they had been bogged down for more than a 
decade. Unless the power of the Federal purse is more effectively 
utilized, resistance to national policy will continue and in fact 
will be reinforced.” Report of the White House Conference “To 
Fulfill These Rights” , June 1-2, 1966, p. 63.
46 Rep. U. S. Comm, on Civil Rights, Survey of School De­
segregation in the Southern and Border States— 1965-66, p. 2.



17. S., et al. v. Jeff. County Bd. of Educ., et al. 27

B. The congressional mandate, as embodied in
the Act and as carried out in the HEW Guidelines, 
does not conflict with the proper exercise of the judi­
cial function or with the doctrine of separation of 
powers. It does however profoundly affect construc­
tive use of the judicial function within the lawful 
scope of sound judicial discretion. When Congress 
declares national policy, the duty the .two other coor­
dinate branches owe to the Nation requires that, 
within the law, the judiciary and the executive re­
spect and carry out that policy. Here the Chief Ex­
ecutive acted promptly to bring about uniform stand­
ards for desegregation. The judicial branch too 
should cooperate with Congress and the executive 
in making administrative agencies effective instru­
ments for supervising and enforcing desegregation 
of public schools. Justice Harlan F. Stone expressed 
this well:

“ Legislatures create administrative agencies 
with the desire and expectation that they will 
perform efficiently the tasks committed to 
them. That, at least, is one of the contem­
plated social advantages to be weighed in 
resolving doubtful construction. Its aim is so 
obvious as to make unavoidable the conclu­
sion that the function which courts are called 
upon to perform, in carrying into operation 
such administrative schemes, is constructive, 
not destructive, to make administrative agen­
cies, whenever reasonably possible, effective



28 17. S-, et al. v. Jeff. County Bd. of Educ., et al.

instruments for law enforcement, and not to 
destroy them.”47

In an analogous situation involving enforcement of 
the Fair Labor Standards Act, the Supreme Court 
has said, “ Good administration of the Act and good 
judicial administration alike require that the stand­
ards of public enforcement and those for determin­
ing private rights shall be at variance only where 
justified by very good reasons.”  Skidmore v. Swift 
& Co., 1944, 323 U. S. 134, 65 S.Ct. 161, 89 L.Ed. 124. 
In an appeal from, the district court’s denial of an 
injunction to enforce labor standards under the Act 
this Court has pointed out:

“ ■ • • this proceeding is only superficially re­
lated to a suit in equity for an injunction to 
protect interests jeopardized in a private con­
troversy. The public interest is jeopardized 
here. The injunctive processes are a means 
of effecting general compliance with national

47 Stone, The Common Law in the United States, 50 Harv. L. 
Rev. 1, 18 (1936). In a similar vein, writing for the Court, 
Justice Stone has said: “ . . . i n  construing a statute setting 
up an administrative agency and providing for judicial review of 
its action, court and agency are not to be regarded as wholly in­
dependent and unrelated instrumentalities of justice, each acting 
in the performance of its prescribed statutory duty without re­
gard to the appropriate function of the other in securing the 
plainly indicated objects of the statute. Court and agency are 
the means adopted to attain the prescribed end, and so far as 
their duties are defined by the words of the statute, those words 
should be construed so as to attain that end through co-ordinated 
action. Neither body should repeat in this day the mistake made 
by the courts of law when equity was struggling for recognition 
as an ameliorating system of justice; neither can rightly be re­
garded by the other as an alien intruder, to be tolerated if must 
be, but never to be encouraged or aided by the other in the at­
tainment of the common aim.” United States v. Morean 1939 
307 U. S. 183, 191, 59 S. Ct. 795, 799, 83 L.Ed. 1211. ’



U. S., et al. v. Jeff. County Bd. of Educ., et al. 29

policy as expressed by Congress, a public 
policy judges too must carry out—actuated by 
the spirit of the law and not begrudgingly as 
if it were a newly imposed fiat of a presidi­
um. . . . Implicit in the defendants’ non-com­
pliance, as we read the briefs and the record, 
is a certain underlying, not unnatural, Acton- 
ian distaste for national legislation affecting 
local activities. But the Fair Labor Standards 
Law has been on the books for twenty-three 
years. The Act establishes a policy for all of 
the country, and for the courts as well as for 
the agency required to administer the law. 
Mitchell v. Pidcock, 5 Cir. 1962, 299 F.2d 281,
287, 288.

C. We must therefore cooperate with Congress 
and the Executive in enforcing Title VI. The problem 
is: Are the HEW Guidelines within the scope of 
the congressional and executive policies embodied 
in the Civil Rights Act of 1964. We hold that they are.

The Guidelines do not purport to be a rule or regu­
lation or order. They constitute a statement of policy 
under section 80.4(c) of the HEW Regulations is­
sued after the President approved the regulations 
December 3, 1964. HEW is under no statutory com­
pulsion to issue such statements. It is, however, of 
manifest advantage to school boards throughout the 
country and to the general public to know the criteria 
the Commissioner uses in determining whether a



30 U. S., et al. v. Jeff. County Bd. oj Educ., et al.

school meets the requirements for eligibility to re­
ceive financial assistance.

The Guidelines have the vices of all administra­
tive policies established unilaterally without a hear­
ing. Because of these vices the courts, as the school 
boards point out, have set limits on administrative 
regulations, rulings, policies, and practices: an
agency construction of a statute cannot make the 
law; it must conform to the law and be reasonable. 
To some extent the administrative weight of the dec­
larations depends on the place of such declarations 
in the hierarchy of agency pronouncements extending 
from regulations down to general counsel memoran­
da and inter-office decisions. See Manhattan General 
Electric Company v. Commissioner, 1936, 297 U. S. 
129, 56 S.Ct. 397, 80 L.Ed. 528; United States v. Ben­
nett, 5 Cir. 1951, 186 F.2d 407; United States v. Mis­
sissippi Chemical Corporation, 5 Cir. 1964, 326 F. 
2d 569; Chattanooga Auto Club v. Commissioner, 6 
Cir. 1950, 182 F.2d 551.

These and similar decisions are not inconsistent 
with the courts’ giving great weight to the HEW’s 
policy statements on enforcement of Title VI. In 
Skidmore v. Swift & Co., 323 U.S. 134, an action was 
commenced in a federal district court by employees 
of Swift & Co. to recover wages at the overtime rates 
prescribed by the Fair Labor Standards Act (52 Stat. 
1060, et seq.) for certain services which they had 
performed. At issue was whether these services con­
stituted “ employment”  within the meaning of sec­



17. S., et al. v. Jeff. County Bd. of Educ., et al. 31

tion 7 (a) of that act. The district court and this 
Court, on appeal, decided this issue against the 
plaintiffs. The Supreme Court reversed. After ac­
knowledging (323 U.S. at 137) that the statute had 
granted no rule-making power to the Wage and Hour 
Administrator with respect to the issue at hand 
( “ [i]nstead, it put this responsibility on the 
courts” ), the Court referred to an “Interpretative 
Bulletin”  issued by the Administrator containing his 
interpretation of the statutory phrase in question. The 
Supreme Court said:

“ We consider that the rulings, interpretations 
and opinions of the Administrator under this 
Act, while not controlling upon the courts by 
reason of their authority, do constitute a body 
of experience and informed judgment to 
which courts and litigants may properly re­
sort for guidance. The weight of such a judg­
ment in a particular case will depend upon 
the thoroughness evident in its consideration, 
the validity of its reasoning, its consistency 
with earlier and later pronouncements, and 
all those factors which give it power to per­
suade, if lacking power to control.”4 * * 48

4S The Supreme Court also stated in Skidmore, 323 U. S. at 139-
40: “The rulings of this Administrator are not reached as a re­
sult of hearing adversary proceedings in which he finds facts 
from evidence and reaches conclusions of law from findings of 
fact. They are not, of course, conclusive, even in the cases with 
which they directly deal, much less in those to which they apply 
only by analogy. They do not constitute an interpretation of the 
Act or a standard for judging factual situations which binds a 
district court’s processes, as an authoritative pronouncement of 
a higher court might do. But the Administrator’s policies are
made in pursuance of official duty, based upon more specialized



32 17. S., et al. v. Jeff. County Bd. of Educ., et al.

The Supreme Court found that the lower courts had 
misunderstood their function vis-a-vis the Interpreta­
tive Bulletin and remanded the case. See also,
United States v. American Trucking Association, 
1940, 310 U. S. 543, 549; Goldberg v. Servas, 1 Cir. 
1961, 294 F.2d 841, 847.

The national importance of the HEW Guidelines, 
the evident thoroughness with which these standards 
were prepared and formulated by educational author­
ities, the similarity of the HEW standards to the 
standards this Court and the Supreme Court have 
established, and the manifest effort of the Office of 
Education to be faithful to the congressional objec­
tives of the 1964 Civil Rights Act entitle the HEW 
Guidelines to greater weight by the courts than run- 
of-the-mine policy statements low in the hierarchy 
of administrative declarations.

Courts therefore should cooperate with the congres­
sional-executive policy in favor of desegregation and 
against aiding segregated schools.

D. Because our approval of a plan establishes 
eligibility for federal aid, our standards should not 
be lower than those of HEW. Unless judicial stand-
experience and broader investigations and information than is 
likely to come to a judge in a particular case. They do deter­
mine the policy which will guide applications for enforcement by 
injunction on behalf of the Government. Good administration of 
the Act and good judicial administration alike require that the 
standards of public enforcement and those for determining private 
rights shall be at variance only where justified bv very aood 
reasons.”  (Emphasis added.)



U. S., et al. v. Jeff. County Bd. of Educ., et al. 33

ards are substantially in accord with the Guidelines, 
school boards previously resistant to desegregation 
will resort to the courts to avoid complying with the 
minimum standards HEW promulgates for schools 
that desegregate voluntarily. As we said in Singleton 
I:

“ If in some district courts judicial guides for 
approval of a school desegregation plan are 
more acceptable to the community or sub­
stantially less burdensome than H.E.W. 
guides, school boards may turn to the federal 
courts as a means of circumventing the 
H.E.W. requirements for financial aid. In­
stead of a uniform policy relatively easy to 
administer, both the courts and the Office of 
Education would have to struggle with indi­
vidual school systems on ad hoc basis. If 
judicial standards are lower, recalcitrant 
school boards in effect will receive a pre­
mium for recalcitrance; the more the intran­
sigence, the bigger the bonus.”  348 F.2d at 
731.

In Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, the 
Court concluded:

“ [HEW] standards must be heavily relied 
upon. . . . Therefore, to the end of promot­
ing a degree of uniformity and discouraging 
reluctant school boards from reaping a bene­
fit from their reluctance the courts should 
endeavor to model their standards after those



34 17. S., et al. v. Jejj. County Bd. of Educ., et al.

promulgated by the executive.”  352 F.2d at 18,
19.

Concurring, Judge Larson, speaking from his expe­
rience as a district judge, pointed out that school 
boards which do not act voluntarily retard the deseg­
regation process to the disadvantage of the individ­
ual’s constitutional rights: “ Judicial criteria” ,
therefore, “ shouid "probably be more stringent”  than 
HEW Guidelines:

“ A school board which fails to act voluntarily 
forces Negro students to solicit aid from the 
courts. This not only shifts the burden of ini­
tiating desegregation, but inevitably means 
delay in taking the first step. As Judge Gib­
son observes, we are not here concerned with 
regulating the flow of Federal funds. Our task 
is to safeguard basic constitutional rights. 
Thus, our standards should be directed to­
ward full, complete, and final realization of 
those rights.”  352 F.2d at 23.

The announcement in HEW regulations that the 
Commissioner would accept a final school desegrega­
tion order as proof of the school’s eligibility for 
federal aid prompted a number of schools to seek 
refuge in the federal courts. Many of these had not 
moved an inch toward desegregation.49 In Louisiana
«  The following statement appeared in the Shreveport 'Journal 
for July 1, 1965: “The local school boards prefer a court order
over the voluntary plan because HEW  regulations governing the 
voluntary plans or compliance agreements demand complete 
desegregation of the entire system, including students faculty 
staff, lunch workers, bus drivers, and administrators, whereas 
the court-ordered plans can be more or less negotiated with the 
judge.” This was not news to the Court.



17. S., et al. v. Jeff. County Bd. of Educ., et al. 35

alone twenty school boards obtained quick decrees 
providing for desegregation according to plans great­
ly at variance with the Guidelines.50

We shall not permit the courts to be used to destroy 
or dilute the effectiveness of the congressional policy 
expressed in Title VI. There is no bonus for foot- 
dragging.

E. The experience this Court has had in the last 
ten years argues strongly for uniform standards in 
court-supervised desegregation.

The first school case to reach this Court after 
Brown v. Board of Education was Brown v. Rippey, 
5 Cir. 1956, 237 F.2d 796. Since then we have reviewed 
41 other school cases, many more than once.51 The
00 We may also expect a number of school desegregation suits 
to be filed in Alabama. The legislature has enacted a statute de­
claring the Guidelines null and void in Alabama and prohibiting 
school officials signing any agreement to comply. The bill pro­
vides that any agreement or assurance of compliance with the 
guidelines already in effect “is null and void and shall have no 
binding effect.” H.B. 446, approved September 2, 1966.
51 The brief of the United States gives the following figures-

“1. Case Load
District Court of Supreme
Court Appeals Court

Number of 128 42 5
Cases
Number of 513 76 10
Orders Entered

2. Frequency of Appeals
to this Court

Number of Cases With One or More Appeals 42
Number of Cases With Two or More Appeals 21
Number of Cases With Three or More Appeals 8
Number of Cases With Four or More Appeals 4
Number of Cases With Five or More Appeals 2
In Bush v. Orleans Parish School Board the complaint was 

filed September 5, 1952. Bush’s peregrinations through the 
courts are reported as follows: 138 F.Supp. 336 (3-
judge 1956) motion for leave to file petition for man­
damus denied, 351 U. S. 948 (1956); 138 F. Supp. 337



36 U. S., et al. v. Jeff. County Bd. of Educ., et al.

district courts in this circuit have considered 128 
school cases in the same period. Reviewing these 
cases imposes a taxing, time-consuming burden on 
the courts not reflected in statistics. An analysis of 
the cases shows a wide lack of uniformity in areas 
where there is no good reason for variations in the 
schedule and manner of desegregation.62 In sonje 
cases there has been a substantial time-lag between 
this Court’s opinions and their application by the dis­
trict courts.63 In certain cases—which we consider un­
necessary to cite—there has even been a manifest 
variance between this Court’s decision and a later 
district court decision. A number of district courts 
still mistakenly assume that transfers under Pupil 
Placement Laws—superimposed on unconstitutional 
initial assignment—satisfy the requirements of a de­
segregation plan. The lack of clear and uniform 
standards to govern school boards has tended to put 
a premium on delaying actions. In sum, the lack of 
uniform standards has retarded the development of
(1956) , aff’d 242 F.2d 156 (1957), cert, den’d, 354 U.S. 921
(1957) ; 252 F.2d 253, cert, den’d 356 U.S. 960 (1958) • 163 F 
Supp. 701 (1958), aff’d, 268 F.2d 78 (1959); 187 F. Supp 42 (3- 
judge 1960), motion to stay den’d, 364 U.S. 803 (1960) a ff’d 
365 U.S 569 (1961); 188 F. Supp. 916 (3-judge 1960)" motion 
for stay denied, 364 U.S. 500 (1960), aff’d, 365 U.S. 569 (1961)- 
190 F. Supp. 861 (3-judge 1960), aff’d 366 U.S. 212 (1961)- 191 
F. Supp. 871 (3-judge 1961), aff’d 367 U.S. 908 (1961) • 194 F 
Supp. 182 (3-judge 1961), aff’d, 367 U.S. 907 (1961), 368 U S 11 
(1961); 204 F. Supp. 568 (1962); 205 F. Supp. 893 (1962) ’ a ff’d 
in Part and rev’d in part, 308 F.2d 491 (1962); 230 F. Supp. 509 
( lybo).
52 Of the 99 court-approved freedom of choice plans .in this 
circuit, 44 do not desegregate all grades by 1967; 78 fail to pro­
vide specific, non-racial criteria for denying choices; 79 fail to 
provide any start toward faculty desegregation; only 22 provide 
for transfers to take courses not otherwise available- only 4 in­
clude the Singleton transfer rule.
83 See footnote 39.



V. S., et al. v. Jeff. County Bd. of Edtic., et al. 37

local responsibility for the administration 6f Schools 
without regard to race or color. What was true of an 
earlier Athens and an earlier Rome is true today: In 
Georgia, for example, there should not be one law 
for Athens and another law for Rome.

Before HEW published its Guidelines, this Court 
had already established guidelines for school deseg­
regation: to encourage uniformity at the district 
court level and to conserve judicial effort at both 
the district court and appellate levels. We did so by 
making detailed suggestions to the district courts. 
Lockett v. Board of Education of Muscogee County, 
5 Cir. 1964, 342 F.2d 225; Bivens v. Board of Educa­
tion for Bibb County, 5 Cir. 1965, 242 F.2d 229; Arm­
strong v. Board of Education of Birmingham, 5 Cir. 
1964, 333 F.2d 47; Davis v. Board of School Commis­
sioners of Mobile County, 5 Cir. 1964, 333 F.2d 53; 
Stell v. Savannah-Chatham County Board of Educa­
tion, 5 Cir. 1964, 333 F.2d 55; Gaines v. Dougherty 
County Board of Education, 5 Cir. 1964, 334 F.2d 983. 
In other areas of the law involving recurrent prob­
lems of regional or national interest, this Court 
has also found guidelines advantageous. In United 
States v. Ward, 5 Cir. 1965, 347 F.2d 795, and United 
States v. Palmer, 5 Cir. 1966, 356 F.2d 951, suits to 
enjoin registrars of voters from discriminating 
against Negroes, we attached identical proposed 
decrees for the guidance of district courts.34 See also

In Ward the Court said: “ [G]ood administration suggests
that the proposed decree be indicated by an Appendix, not be­
cause of any apprehension that the conscientious District Judge 
would not faithfully impose every condition so obviously im­
plied, but rather because of factors bearing upon administration



38 17. S., et al. v. Jeff. County Bd. of Educ., et al.

Scott v. Walker, 5 Cir. 1966, 358 F.2d 561, one of a 
series of cases on the exclusion of Negroes from 
juries.

F. We summarize the Court’s policy as one of 
encouraging the maximum legally permissible cor­
relation between judicial standards for school deseg­
regation and HEW Guidelines. This policy may be ap­
plied without federal courts’ abdicating their proper 
judicial function. The policy complies with the Su­
preme Court’s increasing emphasis on more speed 
and less deliberation in school desegregation.* 55 It is 
consistent with the judiciary’s duty to the Nation to 
cooperate with the two other coordinate branches of 
government in carrying out the national policy ex­
pressed in the Civil Rights Act of 1964

III.

The defendants contend that the Guidelines require 
integration, not just desegregation; that school boards 
have no affirmative duty to integrate. They say that
itself. It is not possible, or even desirable, of course to achieve 
absolute uniformity. But in this ever growing class of cases which 
have their genesis in unconstitutional lack of uniformity as be­
tween races, courts within this single circuit should achieve a rela­
tive uniformity without further delay.” 349 F.2d at 805.
55 “There has been entirely too much deliberation and not enough 
speed in enforcing the constitutional rights which we held in 
Brown v. Board of Education had been denied Prince Edward 
County Negro children.” Griffin v. County School Board of 
Prince Edward County, 1964, 377 U.S. 218, 229, 84 S.Ct. 1226, 
12 L.Ed.2d 256, 264. See also Rogers v. Paul and Bradley v. 
School Board of the City of Richmond, 1965, 382 U.S. 103, 86 
S.Ct. 224, 15 L.Ed.2d 187. “Brown never contemplated that the 
concept of ‘deliberate speed’ would countenance indefinite delay 
in elimination of racial barriers in schools. . . . ” (Goldberg, J.) 
Watson v. City of Memphis, 1963, 373 U.S. 526, 530, 83 S Ct 
1314, 1317, 10 L.Ed.2d 529, 534.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 39

in this respect the Guidelines are contrary to the pro­
visions of the Civil Rights Act of 1964 and to constitu­
tional intent expressed in the Act. This argument 
rests on nothing that the United States Supreme 
Court held or said in Brown or in any other case. 
It rests on two glosses on Brown: the opinions in 
Briggs v. Elliott, E.D.S.C. 1955, 132 F. Supp. 776 and 
Bell v. School City of Gary, N.D. Ind. 1963, 213 F. 
Supp. 819, aff’d, 7 Cir. 1963, 324 F.2d 209. Briggs, 
decided only six weeks after Brown II, is one of the 
earliest cases in this field of law. The portion of the 
opinion most quoted is pure dictum. Briggs did not 
paraphrase the law as the Supreme Court stated it 
in Brown or as the law must be stated today in the 
light of Aaron v. Cooper, Rogers v. Paul and Bradley 
v. School Board. These and other- decisions compel 
states in this circuit to take affirmative action to re­
organize their school systems by integrating the stu­
dents, faculties, facilities, and activities. As for Bell, 
it is inapplicable to cases in this circuit, all of which 
involve formerly de jure segregated schools. Al­
though the legislative history of the statute shows 
that the floor managers for the Act and other mem­
bers of the Senate and House cited and quoted these 
two opinions they did so within the context of the 
problem of de facto segregation. A study of the 
Guidelines shows that the HEW standards are within 
the rationale of Brown and the congressional objec­
tives of the Act.

A. Briggs, an action to desegregate the public 
schools in Clarendon County, South Carolina, was one



40 17. S., et al. v. Jeff. County Bd. of Educ., et al.

of the school cases consolidated with Brown v. 
Board of Education of Topeka, Kansas. On remand, 
a distinguished court (Parker and Dobie, Circuit 
Judges, and Timmerman, District Judge) felt that it 
was important to “ point out exactly what the Su­
preme Court has decided and what it has not de­
cided.”  The Court said:

“ It has not decided that the federal courts 
are to take over or regulate the public 
schools of the states. It has not decided that 
the states must mix persons of different 
races in the schools or must require them to 
attend schools or must deprive them of the 
right of choosing the schools they attend. 
What it has decided, and all that it has de­
cided, is that a state may not deny to any 
person on account of race the right to attend 
any school that it maintains. . . . The Con­
stitution, in other words, does not require 
integration. It merely forbids segregation.”
132 F. Supp. at 777.

Ten years later Clarendon County schools were still 
totally segregated.66

This Court and other courts, gratuitously for the 
most part, have often paraphrased or quoted with 
approval the Briggs dictum.67 It is not surprising,

Z  £’®®Brunson v- Board of Trustees of School District No. 1 4 
Cir. 1962, 311 F.2d 107; Southern Education Reporting Service 
Statistical Summary, Nov. 1964, p. 46.
57 The Fifth Circuit cases are: Borders v. Rinov 1957 247
F.2d 268, 27i ; Boson v Rippy, I960, 285 F.2d 43,P48 ’; Lockett v 
Board of Education of Muscogee County, 5 Cir. 1965, 342 F 2d 225 • 

£  Wichita Falls Independent School District, 1956, 241 F.2d 
2|3; Stell v Savannah-Chatham County Board of Education, 

1964, 333 F.2d 55, 59; Evers v. Jackson, 1964, 328 F.2d 408; cf.



17. S., et al. v. Jeff. County Bd. of Educ., et al. 41

therefore, that Briggs prompted Pupil Placement 
Laws, the most effective technique for perpetuating 
school segregation. And it is not surprising that 
school officials—the Briggs dictum dinned into their 
ears for a decade—have not now faced up to faculty 
integration. However, as this Court’s experience in 
handling school cases increased, the Court became 
aware of the frustrating effects of Briggs. In Single- 
ton I we referred to the dictum as “ inconsistent with 
Brown [II] and the later development of decisional 
and statutory law in the area of civil rights.”  348 F. 
2d at 730 n.5. In Singleton II we called it an “ over­
simplified”  construction of Brown I. We added: “ The 
Constitution forbids unconstitutional state action in 
the form of segregated .facilities, including segre­
gated public schools. School authorities, therefore, 
are under the constitutional compulsion of furnishing 
a single, integrated school system.”  355 F.2d at 369.
Cohen v. Public Housing Administration, 1958, 257 F.2d 73 (public 
housing); City of Montgomery v. Gilmore, 1960, 277 F.2d 364 
(public parks). For a list of cases in other circuits see foot­
notes 10 and 11 in Blocker v. Board of Education of 
Manhasset, E.D.N.Y. 1964, 226 F. Supp. 208, 220. In Blocker Judge 
Zavitt notes that “the construction draws continuing sustenance 
through a process in which each case relies upon a preceding one; 
it would appear that the ultimate and solitary source is this 
dictum in Briggs v. Elliott.” 226 F. Supp. at 220.

In Borders v. Rippy, 5 Cir. 1957, 247 F.2d 268, the Court 
reversed the judgment of the district court dismissing the com­
plaint and directed the entry of a judgment enjoining the defend­
ants “from requiring segregation of the races in any school under 
their supervision” . On remand, the district court entered an order 
enjoining the defendants “from requiring or permitting segrega­
tion of the races in any school under their supervision” . On the 
second appeal, in Rippy v. Borders, 5 Cir. 1957, 250 F.2d 690, 692, 
the Court again reversed the district court, stating: “We have
emphasized the words ‘or permitting segregation of the races’ 
in the district court’s order because that expression might in­
dicate a serious misconception of the applicable law and of the 
mandate of this Court. Our mandate (footnote 1, supra) had 
been carefully limited so as to direct the entry of a judgment 
restraining and enjoining the defendants ‘from requiring segrega-



42 17. S., et al. v. Jeff. County Bd. of Educ., et al.

Other federal courts have disapproved of the Briggs 
dictum.58
tion of the races in any school under their supervision’ (emphasis 
supplied). Likewise in our opinion, we had pointed out that is 
only racially discriminatory segregation in the public schools which 
is forbidden by the Constitution.”
58 In Kemp v. Beasley the Eighth Circuit remarked, “The dictum 
in Briggs has not been followed or adopted by this Circuit and is 
logically inconsistent with Brown.” Blocker v. Board of Education 
of Manhasset, E.D.N.Y. 1964, 226 F.Supp. 208, makes a frontal 
attack on Briggs. In that case, which concerned segregation 
characterized as ds jure, Judge Zavitt observed that even where 
the Briggs dictum has seemingly been adopted, “it appears to be 
in a state of diminishing force, if not outright erosion” , citing 
Dillard v. School Board of the City of Charlottesville, 
4 Cir. 1962, 308 F.2d 920, cert, denied, 374 U.S. 827 
(1963), and McCoy v. Greensboro City Board of Education, 4 
Cir. 1960, 283 F.2d 667. The Third Circuit, reversing a 
district court’s approval of a year-by-year plan, ignored Briggs: 
“if the plan as approved by the court below be not drastically 
modified, a large number of the Negro children of Delaware will 
be deprived of education in integrated schools, despite the fact 
that the Supreme Court has unqualifiedly declared integration to 
he their constitutional right.”  (Emphasis added.) Evans v. 
Ennis, 3 Cir. 1960, 281 F.2d 385, 389, cert, den’d 364 U.S. 933. In 
Evans v. Ennis, only three school districts were involved. Never­
theless, the court required the district judge to order the State 
Board of Education and the State Superintendent of Delaware to 
prepare “a plan which will provide for the integration of all grades 
of the public school. system of Delaware.” “Eventually” , Judge 
Biggs said, “a wholly integrated school system will be effected for 
Delaware: ‘wholly integrated’ in the sense that all school children, 
whether white or Negro, . . . will attend schools without regard 
to race or color.” Sometimes a court’s action in regard to the 
school board’s affirmative duty has spoken louder than Briggs’s 
words. In Evans v. Buchanan, D.C. Del. 1962, 207 F. Supp. 820, 
although the court cited Briggs and stated that the Fourteenth 
Amendment “does not contemplate compelling action; rather it is a 
prohibition preventing the States from applying their laws un­
equally” , the court did compel the school boards to act. The 
Court found that the Negro school children who wished to attend 
integrated schools were attending an all-Negro school, with an 
all-Negro faculty, surrounded by white attendance area. On those 
bare facts, the Court found: “The . . . Board as promulgator of the 
plan and the State Board of Education as the party having the 
ultimate responsibility for administering a nondiscriminatory sys­
tem of public education should have the initial burden of coming 
forward since a presumption of unconstitutionality arises under 
this set of facts.” 207 F. Supp. at 825. (Emphasis 
added.) The facts were “highly probative” of intentional



U. S., et al. v. Jeff. County BcL. of Educ., et al. 43

The Briggs dictum may be explained as a facet of 
the Fourth Circuit’s now abandoned view that Four­
teenth Amendment rights are exclusively individual 
rights and in school cases are to be asserted individu­
ally after each plaintiff has exhausted state adminis­
trative remedies.59 The Court disallowed class suits 
because Negro students who had not asked for trans­
fers to white schools had not individually exhausted 
their remedies and were therefore not similarly sit­
uated with the plaintiffs. Thus in Carson v. Warlick, 
4 Cir. 1956, 238 F.2d 724, Judge John Parker, for 
the Court, stated:

“ There is no question as to the right of these 
[Negro] school children. . . . They are to 
be admitted, however, as individuals, not as 
a class or group; and it is as individuals that 
their rights under the Constitution are as­
serted. . . . [The] school board must pass 
upon individual applications made individu­
ally to the board. . . . ”  238 F.2d at 729.

In Covington v. Edwards, 4 Cir. 1959, 264 F.2d 780, 
783, the court commented that “ the County board has 
taken no steps to put an end to the planned segre-
racial discrimination and the evidence of intent rested 
largely with the Board. The Board came forward and showed that 
its plan was based on such neutral factors as the safety of the 
children, facilities, location, and access roads. The court, however, 
held that the Board did not rebut the presumption by showing 
that the plan could be justified as rational and nondiscriminatory. 
The obviously sophisticated trial judge observed, “In effect, 
counsel is asking the States to intentionally gerrymander dis­
tricts which may be rational when viewed by acceptable, non­
discriminatory criteria” . Id. at 824.
59 See U. S. Comm, on Civil Rights, Civil Rights U.S.A.— Public 
Schools, Southern States (1962), p. 7.



44 17. S., et al. i>. Jeff. County Bd. of Educ., et al.

gatioh” , but still held for the board for failure of 
the plaintiffs to exhaust their remedies and for filing 
the suit as a class action. In a later opinion in this 
case, sub.nom. Jeffers v. Whitley, 309 F.2d 621, the 
Court found that the plaintiffs had failed to establish 
that they were “ denied any constitutional right be­
cause of their race or color” . The court observed,

“ It can fairly be said that what the children 
and their parents are still seeking is only a 
desegregation of the Conwell County School 
System rather than a protection of their own 
rights. . . . ”

The Fourth Circuit abandoned this view in Green 
v. School Board of the City of Roanoke, 4 Cir. 1962, 
304 F.2d 118, holding that since administrative reme­
dies need not be exhausted, a class suit is proper. 
“ [It] would be almost a cruel joke to say that 
administrative remedies must be exhausted when it 
is known that such exhaustion of remedies will not 
terminate the pattern of a racial assignment.”  Jack- 
son v. School Board of City of Lynchburg, W.D. 
Va. 1962, 201 F. Supp. 620. McNeese v. Board of Edu­
cation for School District 187, 1963, 373 U. S. 668, 83 
S.Ct. 1433, 10 L.Ed.2d 622, put beyond debate the need 
to exhaust remedies and the right of Negro students 
to file a class action. See also Armstrong v. Board of 
Education of the City of Birmingham, 5 Cir. 1963, 323
F.2d 333, cert, denied sub.nom. Gibson v. Harris, 376 
U.S. 905 (19641.



17. S., et al. v. Jejj. County Bd. of Educ., et al. 45

In the sense that an individual pupil’s right under 
the equal protection clause is a “ personal and pres­
ent”  right not to be discriminated against by being 
segregated,60 the dictum is a cliche. The Fourteenth 
Amendment provides, “ nor shall any state . . . deny 
to any person within its jurisdiction the equal pro­
tection of the laws” . The dictum may also be defen­
sible, if the Briggs court used the term “ integration” 
to mean an absolute command at all costs that each 
and every Negro child attend a racially balanced 
school.61 But what is wrong about the dictum is more 
important than what is right about it. What is wrong 
about Briggs is that it drains out of Brown that deci­
80 For example: “ . . . the essence of the constitutional right is 
that it is a personal one. . . .  It is the individual who is 
entitled to the equal protection of the laws, and if he is denied 
by a common carrier, acting in the matter under the authority of 
a state law, a facility or convenience in the course of his journey 
which under substantially the same circumstances is furnished to 
another traveler, he may properly complain that his constitu­
tional privilege has been invaded” . McCabe v. Atchison, T. & S.F. 
Ry., 1914, 235 U. S. 151, 161-62, 35 S.Ct. 69, 59 L.Ed. 169.' The 
legislative history of the 14th Amendment provides no informa­
tion on this point. See Frank and Munro,. The Original Under­
standing of Equal Protection of the Laws, 50 Colum. L. Rev. 131 
(1950); Bickel, The Original Understanding and the Segregation 
Decision, 69 Harv. L. Rev. 1 (1955). But “the personal nature of 
the right to be free from discrimination was declared in order to 
make the existence of such right independent of the number of 
other members of the same racial group who were victimized by 
the discrimination. . . . ” Hartman, The Right to Equal Educa­
tional Opportunities as a Personal and Present Right, 9 Wayne 
L. Rev. 424, 427 (1963).
61 What is meant by the statement of “no duty to integrate” is 
that a school board “does not have to completely alter bound­
aries and to insure that every school district is mixed, even 
though some students will have a great distance to travel . . . 
[E]ven though the state is not required to integrate fully every 
school and child, this does not mean that the state may not have 
certain responsibilities to children of a minority race while educat­
ing them, the failure to perform which may be unconstitutional” . 
Sedler, School Segregation in the North and W est: Legal Aspects, 
7 St. Louis U.L.J. 228, 251 (1963). See also the discussion of 
Barksdale v. Springfield School Comm., at 65-67, infra.



46 U. S., et al. v. Jeff. County Bd. of Educ., et al.

sion’s significance as a class action to secure equal 
educational opportunities for Negroes by compelling 
the states to reorganize their public school systems.* 52 * * * * * * * * * 62 
All four of the original School Segregation cases 
were class actions and described as such in the 
opinions. 347 U. S. at 455.

We do not minimize the importance of the Four­
teenth Amendment rights of an individual, but there
82 Rule 23a, Fed. R. Civ. P., before the recent amendments, was 
unclear as to whether a favorable decree applies to members of 
the class who do not join in the suit. Compare 3 Moore, Federal 
Practice 3434 (2d Ed.) with Chafee, Some Problems in Equity 
199-295 (1950). “In dealing with [segregation] cases, courts have 
largely disregarded Moore’s classifications, and have indicated 
that an injunction would run to the benefit of absentees.” De­
velopments in the Law— Multiparty Litigation in the Federal 
Courts, 71 Harv. L. Rev. 874, 935 (1958). Citing Brown II, 349 
U. S. at 300-301 dictum; Brown I, 347 U. S. at 495 (dictum); 
Orleans Parish School Board v. Bush, 5 Cir. 1957, 242 F.2d 156, 
165-66 (dictum); Browder v. Gayle, M.D. Ala. 1956, 142 F. Supp’. 
707, 711, 714, aff’d per curiam, 352 U. S. 903 (1956); Frasier 
v. Board of Trustees of University of North Carolina, M.D.N.C. 
1955, 134 F. Supp. 589, aff’d per curiam, 350 U. S. 979 (1956).

“Violations of the Fourteenth Amendment are of course vio­
lations of individual or personal rights, but where they are com­
mitted . . . generally because of race, they are no less entitled to 
be made the subject of class actions and class adjudica­
tions under Rule 23. . . . than are other several rights.” 
Kansas City v. Williams, 8 Cir. 1953, 205 F.2d 47,
52, cert, denied 346 U. S. 826 (1953). See also Holmes
v. City of Atlanta, N. D. Ga. 1954, 124 F. Supp. 290,
aff’d 223 F.2d 93, judgment vacated and remanded for a broader
decree in conformity with Mayor and City of Baltimore v. Daw­
son, 350 U. S. 977 (1955); Jeffers v. Whitley, 4 Cir. 1962, 309
F.2d 621; Brunson v. Board of Trustees of School District No 1
4 Cir. 1962, 311 F.2d 107, cert, denied 373 U. S. 933 (1963).

See Comment, The Class Action Device in Antisegregation
Cases, 20 U. Chi. L. Rev. 577 (1953). See also Comment,
Multiparty Litigation in the Federal Courts, 71 Harv.
L. Rev. 874, 935; McKay, “With All Deliberate Speed”— A  Study 
of School Desegregation, 31 N.Y.U.L. Rev. 991, 1084-86 (1956); 
Class Actions— A Study of Group Interest Litigation, 1 Race Rel. 
Rep. 991 (1956); Meador, The Constitution and the Assignment of 
Pupils to Public Schools, 45 Va. L. Rev. 517, 523 (1959).



U. S., et al. v. Jeff. County Bd. of Educ., et al. 47

was more at issue in Brown than the controversy be­
tween certain schools and certain children. Briggs  
overlooks the fact that Negroes collectively are 
harmed when the state, by law or custom, operates 
segregated schools or a school system with uncor­
rected effects of segregation.

Denial of access to the dominant culture, lack of 
opportunity in any meaningful way to participate in 
political and other public activities, the stigma of 
apartheid condemned in the Thirteenth Amendment 
are concomitants of the dual educational system. The 
unmalleable fact transcending in importance the 
harm to individual Negro children is that the sepa­
rate school system was an integral element in the 
Southern State’s general program to restrict Negroes 
as a class from participation in the life of the com­
munity, the affairs of the State, and the mainstream 
of American life: Negroes must keep their place.63

“ [Segregation is a group phenomenon. Although 
the effects of discrimination are felt by each mem­
ber of the group, any discriminatory practice is 
directed against the group as a unit and against in­
dividuals only as their connection with the group in­
63 In United States v. Louisiana, E.D. La. 1963, 225 F. Supp. 
353, aff’d 380 U.S. 145, the court traced the history of voting 
in Louisiana to show that the black codes, the grandfather 
clause, the white primary, literacy .tests, and other devices were 
all members of a seemingly endless series designed to bar access 
of Negroes to the dominant culture and to political power. The 
same situation exists with regard to denial of equal educational 
opportunities. So-called freedom of choice plans, as thus far 
utilized, follow pupil placement laws, which followed the 

separate-hut-equal' dodge in the educational series of devices 
to limit access of Negroes to the polity.



48 U. S., et al. v. Jeff. County Bd. of Educ., et al.

volves the antigroup sanction. . . . [As] a group- 
wrong . . . the mode of redress must be group-wide 
to be adequate.”64 Adequate redress therefore calls 
for much more than allowing a few Negro children 
to attend formerly white schools; it calls for liquida­
tion of the state’s system, of de jure school segrega­
tion and the organized undoing of the effects of past 
segregation. “ Beyond [a child’s] personal right 
[under the Fourteenth Amendment] however, or 
perhaps as an aspect of it, the lower federal courts 
seem to be recognizing a right in Negro school chil­
dren, enforceable at least by a class action, to have 
the school system administered free of an enforced 
policy of segregation irrespective of whether any 
colored pupil has been denied admission to any 
particular school on the ground of his race.”65

It is undoubtedly true that the intangible inade­
quacies of a segregated education harm the individ­
ual, but the Supreme Court treated these inade­
quacies as inherent attributes which prevail univer­
sally.66 For example, the Court said:
64 Note, 20 U. Chi. L. Rev. 577 (1953).
65 Meador, The Constitution and the Assignment of Pupils to 
Public Schools, 45 Va. L. Rev. 517, 523 (1959).
06 In Brown the unanimous court, through Chief Justice Warren, 
cited the Slaughter House Cases, 1872, 83 U.S. (16 Wall.) 36, 71 
in which the Court stated: “ . . . one pervading purpose found
in [all of these amendments], lying at the foundation of each, 
and without which none of them would have been even suggested; 
we mean the freedom of the slave race, the security and firm 
establishment of that freedom, and the protection of the newly- 
made freeman and citizen from the oppressions of those who had 
formerly exercised unlimited dominion over him. It is true that 
only the Fifteenth Amendment, in terms, mentions the negro by 
speaking of his color and his slavery. But it is just as true that 
each of the other articles was addressed to the grievances of that 
race, and designed to remedy them as the fifteenth.” The Court 

also quoted the following passage from Strauder v. West Vir-



17. S., et al. v. Jeff. County Bd. of Educ., et al. 49

[Education] is the very foundation of good 
citizenship. Today it is a principal instrument 
in awakening the child to cultural values,, in 
preparing him for later professional training, 
and in helping him to adjust normally to his 
environment. In these days, it is doubtful 
that any child may reasonably be expected 
to succeed if he is denied the opportunity of 
an education. Such an opportunity where the 
state has undertaken to provide it, is a right 
which must be made available to all on equal 
terms 347 U.S. at 493. (Emphasis added.)

Again, in-a critical passage:

To separate [children] from others of sim­
ilar age and qualifications solely because of 
their race generates a feeling, of inferiority 
as to their status in the community that may 
affect their hearts and mind in a way un­
likely ever to be undone. 347 U.S. at 494.

With this predicate it is not surprising that Brown 
II, a year after Brown I was decided, going beyond 
recognition of the “ personal”  right in the individual 
plaintiffs, fashioned a remedy appropriate for the 
class. The Court imposed on the states the duty of 
furnishing an integrated school system, that is, the
ginia, 1879, 100 U.S. 303, 307: “The words of the amendment
. . . contain a necessary implication of a positive immunity, or 
right, most valuable to the colored race— the right to exemption 
from unfriendly legislation against them distinctively as colored; 
exemption from legal discriminations, implying inferiority in civil 
society, lessening the security of their enjoyment of the rights 
which others enjoy, and discriminations which are steps toward 
reducing them to the condition of a subject race.”



50 U. S., et al. v. Jeff. County Bd. of Educ., et al.

duty of “ effectuating] a transition to a facially 
nondiscriminatory school system.”67 (Emphasis
added.) In addition, Brown II subordinated the 
“ present”  right in the individual plaintiffs to the 
right of Negroes as a class to a unitary, nonracial 
system—some time in the future.68

The central \ice in a formerly de jure segregated 
public school system is apartheid by dual zoning: in 
the past by law, the use of one set of attendance 
zones for white children and another for Negro chil­
dren, and the compulsory initial assignment of a Ne­
gro to the Negro school in his zone. Dual zoning per­
67 “ [T]he courts will require that the defendants make a prompt 
and reasonable start toward full compliance with our May 17, 
1954, ruling. Once such a start has been made, the courts may 
find that additional time is necessary to carry out the ruling in 
an effective manner. . . .T o  that end the courts may consider 
problems related to administration, arising from the physical 
condition of the school plant, the school transportation system, 
personnel, revision of school districts and attendance areas into 
compact units to achieve a system of determining admission to the 
public schools on a nonracial basis, and revision of local laws 
and regulations which may be necessary in solving the foregoing 
problems.” Brown v. Board of Education, 349 U.S. 294, 300-01. 
(Emphasis added.)
68 “If it is the Negro population as a minority group which 
is entitled to attend public facilities, then the objective of any 
corrective plan would be to bring about complete integration 
of all Negro children in public education.” Hartman, The Right 
to Equal Educational Opportunities as a Personal and Present 
Right, 9 Wayne L. Rev. 424, 441 (1963). Cf. Greenberg, Race 
Relations and Group Interests in the Law, 13 Rutgers L. Rev. 
503, 506 (1959). There would be no necessary conflict between 
the individual’s “personal and present” right and the class right 
if the Brown, Cooper v. Aaron, Bradley, and Rogers v. Paul 
decisions were read as recognizing the immediate right of any 
Negro plaintiff to transfer to a white school, over and above 
the state’s duty to reorganize its school system. Thus in Watson 
v. City of Memphis, 1963, 373 U.S. 526, 533, 83 S.Ct. 1314, 
10 L.Ed.2d 529, the Supreme Court stated that the rights asserted 
in that case “are, like all such rights, present rights . . . war­
rants for the here and now and, unless there is an overwhelming­
ly compelling reason they are to be promptly fulfilled.”



U. S., et al. v. Jeff. County Bd. of Educ., et al. 51

sists in the continuing operation Of Negro Schools 
identified as Negro, historically and because the fac­
ulty and students are Negroes. Acceptance of an in­
dividual’s application for transfer, therefore, may sat­
isfy that particular individual; it will not satisfy the 
class. The class is all Negro children in a school dis­
trict attending, by definition, inherently unequal 
schools and wearing the badge of slavery separation 
displays. Relief to the class requires school boards 
to desegregate the school from which a transferee 
comes as well as the school to which he goes. It 
requires conversion of the dual zones into a single 
system. Faculties, facilities, and activities as well 
as student bodies must be integrated. No mat­
ter what view is taken of the rationale in Brown 
I, Brown II envisaged the remedy following 
the wrong, the state’s correcting its discrimina­
tion against Negroes as a class, through sepa­
rate schools, by initiating and operating a uni­
tary integrated school system. The gradual transi­
tion the Supreme Court authorized was to allow the 
states time to solve the administrative problems in­
herent in that change-over; No delay would have been 
necessary if the right at issue in Brown had been 
only the right of individual Negro plaintiffs to ad­
mission to a white school. Moreover, the delay of 
one year in deciding Brown II and the gradual 
remedy Brown II fashioned can be justified only on 
the ground that the “ personal and present”  right of 
the individual plaintiffs must yield to the overrid­
ing right of Negroes as a class to a completely in­
tegrated public education.



52 U. S., et al. v. Jeff. County Bd. of Educ., et al.

Although psychological harm and lack of education­
al opportunities to Negroes may exist whether 
caused by de facto or de jure segregation, a state 
policy of apartheid aggravates the harm. Thus, 
Chief Justice Warren quoted with approval the finding 
of the district court in the Kansas case: “ The impact 
[of the detrimental effect of segregation upon Ne­
gro children] is greater when it has the sanction of 
the law; for the policy of separating the race is usual­
ly interpreted as denoting the inferiority of the Negro 
group. A sense of inferiority affects the motivation 
of a child to learn. Segregation with the sanction of 
law, therefore, has a tendency to [retard] the edu­
cational and mental development of Negro children 
and to deprive them of some of the benefits they 
would receive in a racial[ly] integrated school sys­
tem .”  (Emphasis added.) Brown I, 347 U S. at 494. 
The State, therefore, should be under a duty to take 
whatever corrective action is necessary to undo the 
harm it created and fostered.69 “State authorities
69 “Indeed, the requirement of affirmative action lies at the 
very heart of Brown; seventeen states had to abandon racial 
criteria and affirmatively reorganize school attendance plans.” 
Fiss, Racial Imbalance in the Public Schools: The Constitutional 
Concepts, 78 Harv. L.Rev. 564, 612 (1965). See also Gillmor and 
Gosule, Duty to Integrate Public Schools ?. Some Judicial Responses 
and a Statute 46 Boat. U. L. Rev. 45, 62-3 (1966). “State support 
of segregated schools through any arrangement, management, 
funds, or property cannot be squared with the equal protection
q tÛ  o^CK° 0P<1r V- AaJon- 1958’ 358 U -S- b  19. 78 S.Ct. 1401, 
a Li.tua.za 5 . . Most of the major decisions of the Warren
Court under the equal protection clause impose affirmative obli­
gations upon the states. Earlier cases sustaining a constitutional 
claim were typically mandates directing the government to refrain 
from a particular form of regulation. Now the emphasis is ‘ upon 
measures the states must adopt in carrying on their activities 
and steps they must take [even] to offset disabilities not of their 
creation . Cox, Foreword: Constitutional Adjudication and the
Promotion of Human Rights, 80 Harv. L. Rev. 91, 93 (1966).



17. S., et al. v. Jeff. County Bd. of Educ., et al. 53

were thus duty bound to devote every effort toward 
initiating desegregation and bringing about the elimi­
nation of racial discrimination in the public school 
system.”  (Emphasis added.) Cooper v. Aaron, 358 
U.S. at 7. Some may doubt whether tolerance of de 
facto segregation is an unsubtle form of state action. 
There can be no doubt as to the nature and effect 
of segregation that came into being and persists be­
cause of state action as part of the longstanding pat­
tern to narrow the access of Negroes to political 
power and to the life of the community.

In a school system the persons capable of giving 
class relief are of course its administrators. It is 
they who are under the affirmative duty to take cor­
rective action toward the goal of one integrated sys­
tem. As Judges Sobeloff and Bell said in Bradley v. 
School Board of the City of Richmond, 4 Cir. 1965, 
345 F.2d 310, 322:

“ . . . the initiative in achieving desegrega­
tion of the public schools must come from the 
school authorities. . . . Affirmative action 
means more than telling those who have long 
been deprived of freedom of educational op­
portunity. ‘You now have a choice.’ . . .  It 
is now 1965 and high time for the court to in­
sist that good faith compliance requires ad­
ministrators of schools to proceed actively 
with their nontransferable duty to undo the 
segregation which both by action and inac­
tion has been persistently perpetuated. (Em­
phasis added.)



54 U. S e t  al. v. Jeff. Cgunty Bd. of Educ., et al.

In Northcross v. Board of pldugatign of the City of 
Memphis, 6 Cir. 1062, 302 F.2d 818, the defend­
ants asserted, as the defendants assert here, 
that continued segregation is “ voluntary on the 
part of Negro pupils and parents because they 
do not avail themselves of the transfer provisions.” 
The Court held: “ The Pupil Assignment Law . . . 
will not serve as a plan to convert a biraeial system 
into a nonracial system . . . Negro children cannot 
be required to apply for that to which they are en­
titled as a matter of right. . . . The burden rests 
with the school authorities to initiate desegregation 
. . . [The Board] should submit some realistic 
plan for the organization of their schools on a non­
racial basis” . (Emphasis added.) In Dowell v. School 
Board of Oklahoma City Public Schools, W. D. Okla. 
1965, 244 F. Supp. 971, 975, ^78-79, the School 
Board in Oklahoma City had “ superimposed” 
a geographic zone plan on “ already existing 
residential segregation initiated by law.”  The 
court held: A school board must “ adopt policies 
that would increase the percentage of pupils who are 
obtaining a desegregated education. . . .[The] fail­
ure to adopt an affirmative policy is itself a policy, 
adherence to which, at least in this case, has slowed 
up . . . the desegregation process. . . . [W]here the 
cessation of assignment and transfer policies based 
solely on race is insufficient to bring about more 
than token change in the segregated system, the 
Board must devise affirmative action reasonably 
purposed to effectuate the desegregation goal. This 
conclusion makes no new law.”



U. S., et al. v. Jejf. County Bd. of Educ., et al. 55

The position we take in these consolidated cases is 
that the only adequate redress for a previously overt 
system-wide policy of segregation directed against 
Negroes as a collective entity is a system-wide pol­
icy of integration. In Singletpn I the Court touched 
on the state’s duty to integrate:

“ In retrospect, the second Brown opinion 
clearly imposes on public school authorities 
the duty to provide an integrated school sys­
tem. Judge Parker’s well-known dictum 
should be laid to rest. It is inconsistent with 
Brown and the later development of deci­
sional and statutory law in the area of civil 
rights.”  348 F.2d at 730 n.5.

Three years before Singleton I this Court analyzed 
the problem in Potts v. Flax, 5 Cir. 1963, 313 F.2d 
284. In that case the Court rejected a school board’s 
contention that a suit brought by two Negro parents 
was not a class action even though the record con­
tained testimony that one parent was bringing the 
action only for his own children and not for other Ne­
gro children. The Board contended that a court order 
was not needed because it was willing to admit any 
Negro child to a white school on demand of any Ne­
gro child. Judge Brown, speaking for the Court, said:

“ Properly construed the purpose of the suit 
was not to achieve specific assignment of spe­
cific children to any specific grade or school.
The peculiar rights of specific individuals 
were not in controversy. It was directed at 
the system-wide policy of racial segrega­



56 U. S., et cl. v. Jeff. County Bd. of Educ., et al.

tion. It sought obliteration of that policy of 
system-wide racial discrimination. . . ,”70

Even before Potts v. Flax, in Bush v. Orleans Parish
School Board, 5 Cir. 1962, 308 F.2d 492, 499, the Court
said:

“ In this aspect of [initial] pupil assignment 
[to segregated schools] the facts present 
a clear case where there is not only depriva­
tion of the rights of the individuals directly 
concerned but deprivation of the rights of 
Negro school children as a class. As a class, 
and irrespective of any individual’s right to 
be admitted on a non-racial basis to a par­
ticular school, Negro children in the public 
schools have a constitutional right to have 
the public school system administered free 
from an administrative policy of segrega­
tion.”71

I? . Thr C °urt also said: “There is at least considerable doubt
that relief confined to individual specified Negro children either 
U?vUedeffP cfanRed^ r’ if grated , could be so limited in its opera- 

thf  natu.re o f . the controversy, the attack is on 
the unconstitutional practice of racial discrimination. Once that 

f ° und, t0 exlst> the Court must order that it be discontinued. 
+1l h„ \ deCref ’i 0fuC0^ se’ . mlght name the successful plaintiff as 
the party not to be discriminated against. But that decree may 

lt* er expressiy or impliedly— affirmatively authorize con- 
tinned discrimination by reason of race against others. Cf Shel- 
ley V. Kramer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed 1161 
Moreover to require a school system to admit the specific suc­
cessful plaintiff Negro child while others, having no such pro­
tection, were required to attend schools in a. racially segregated 
system, would be for the court to contribute actively to the
R n f r A SCP/ T T okT * USh V' ° rleanS Parish School Board, 5 Cir. 1962, 308 F.2d 491, 499, on rehearing 308 F.2d 503-

313 aFS2da0tS 28V9 yer’ 1962’ 312 F'2d 19L” Potts Flax’,
71 The Court also said: “Geographical districts based on race
are a parish-wide system of unconstitutional classification. Of 
course, it is undoubtedy true that Brown v. Board of Education



U. S., et al. v. Jeff. County Bd. of Educ., et al. 57

See also Ross v. Dyer, 5 Cir. 1963, 312 F.2d 191, 194-95; 
Augustus v. Board of Public Instruction of Escambia 
County, 5 Cir. 1963, 306 F.2d 862, 869; Holland v. 
Board of Public Instruction of Palm Beach County, 
5 Cir. 1958, 258 F.2d 730; Orleans Parish School Board 
v. Bush, 5 Cir. 1957, 242 F.2d 156.

Brown was an inevitable, predictable extension of 
Sweat v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 
L.Ed. 1114, and McLaurin v. Oklahoma State Regents, 
1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149.* 72 Those 
cases involved separate but equal or identical grad­
uate facilities. Factors “ incapable of objective meas­
urement”  but crucial to a good graduate education 
were not available to segregated Negroes. These were 
the intangible factors that prevented the Negro grad­
uate students from having normal contacts and as­
sociation wtith white students. Apartheid made the 
two groups unequal. In Brown I these same intangi­
dealt with only an individual child’s right to be admitted to a 
particular school on a non-racial basis. And it is also true, as 
the second Brown opinion pointed out, that courts must bear in 
mind the 'personal interest’ of the plaintiffs. In this sense, the 
Brown cases held that the law requires non-discrimination as to 
the individual, not integration. But when a statute has a state­
wide discriminatory effect or when a School Board maintains a 
parish-wide discriminatory policy or system, the discrimination is 
against Negroes as a class. Here, for example, it is the Orleans 
Parish dual system of segregated school districts, affecting all 
school children in the Parish by race, that, first, was a dis­
criminatory classification and, second, established the predicate 
making it possible for the Pupil Placement Act to fulfill its be- 
hind-the-face function of preserving segregation.” Bush v. Or­
leans Parish School Board, 308 F.2d at 499.
72 See, for example, Ransmier, The Fourteenth Amendment and 
the “Separate but Equal” Doctrine, 50 Mich. L. Rev. 203, 238-40 
(1951); Roche, Education, Segregation and the Supreme Court—  
A  Political Analysis, 99 U. Pa. L. Rev. 949 (1951); Taylor, The 
Demise of Race Restrictions in Graduate Education, 1 Duke B. 
Jour. 135 (1951); Note, 26 St. John’s L. Rev. 123 (1951).



58 U. S., et al. v. Jeff. County Bd. of Educ., et al.

bles were found “ to apply with added force to chil­
dren in grade and high schools” ; educational oppor­
tunity in public schools must be made available to all 
on equal terms.

The Brown I finding that segregated schooling 
causes psychological harm and denies equal educa­
tional opportunities should not be construed as the 
sole basis for the decision.73 So construed, the way 
would be open for proponents of the status quo to at­
tempt to show, on the facts, that integration may be 
harmful or the lesser of two evils. Indeed that nar­
row view of Brown 1 has led several district courts
73 Professor Edmund Cahn characterized as a “myth” the notion 
that the Brown decision was “sociological” rather than “ legal” . 
Cahn, Jurisprudence, 31 N.Y.U. L. Rev. 182 (1956); Cahn, Juris­
prudence, 30 N.Y.U. L. Rev. 150 (1955). “I would not have the 
constitutional rights of Negroes— or of other Americans— rest on 
any such flimsy foundation as some of the scientific demonstra­
tions in these records. . . . Heretofore, no government official 
has contended that he could deny equal protection with impunity 
unless the complaining parties offered competent proof that they 
would sustain or had sustained some permanent (psychological or 
other kind of) damage. The right to equal protection has not 
been subjected to any such proviso.” Cahn, Jurisprudence, 30 
N.Y.U. L. Rev. 150, 157, 158, 168 (1955). Professor Black has 
said: “The charge that it is ‘sociological’ is either a truism
or a canard— a truism if it means that the Court, precisely like 
the Plessy court, and like innumerable other courts facing in­
numerable other issues of law, had to resolve and did resolve 
a question about social fact; a canard if it means that anything 
like principal reliance was placed on the formally ‘scientific’ 
authorities, which are relegated to a footnote and treated as 
merely corroboratory of common sense.” Black, The Lawfulness 
of the Segregation Decision, 69 Yale L.J. 421, 430 n.25 (1960).

Acceptance of these views is not inconsistent with the con­
tinued vitality of the psychological findings in Brown I. Indeed, 
several studies have reinforced those findings. The most recent is 
the United States Office of Education’s “Equality of Educational 
Opportunity” , the two-year study authorized by section 402 of 
the Civil Rights Act of 1964 to investigate “the lack of availability 
of equal educational opportunities for individuals by reason of 
race, color, religion, or national origin in public educational 
institutions . . . . ” 42 U.S.C. § 2000c— 1.



17. S., et al. v. Jeff. County Bd. of Educ., et al. 59

into error.74 We think that the judgment “must have 
rested on the view that racial segregation is, in prin­
ciple, a denial of equality to the minority against 
whom it is directed.”75 The relief Brown II requires 
rests on recognition of the principle that state-im­
posed separation by race is an invidious classifica­
tion and for that reason alone is unconstitutional.76 
Classifications based upon race are especially sus­
pect, since they are “odius to a free people”.77 In short, 
compulsory separation, apartheid, is per se discrim­
inatory against Negroes.

A number of post-Brown per curiam decisions not 
involving education make it clear that the broad 
dimensions of the rationale are not circumscribed 
by the necessity of showing harmful inequality to the
74 See Stell v. Savannah-Chatham County Board of Education, 
S.D.Ga. 1963, 220 F. Supp. 667, rev’d 333 F.2d 55; 255 F.Supp. 84
(1965) , appeal pending; 225 F.Supp. 88 (1966), appeal pending. 
See also Jackson Municipal Separate School District v. Evers, 5 
Cir. 1966, 357 F.2d 653.
75 Wechsler, Toward Neutral Principles of Constitutional Law, 
73 Harv. L. Rev. 1, 33 (1959). Professor Wechsler concluded: 
“For me, assuming equal facilities, the question posed by state- 
enforced segregation is not one of discrimination at all. Its 
human and constitutional dimensions lie entirely elsewhere, in 
the denial by the state of freedom to associate . . . ” The article 
started a vigorous debate. See authorities collected in Emmerson 
and Huber, Political and Civil Rights 1625-1629 (1967). See also 
Kaplan, Equality in an Unequal World, 61 N W  U.L. Rev. 363
(1966) .

For discussion of the inherently— arbitrary— classification 
principle against the principle of equality of educational op­
portunity, see Fiss, Racial Imbalance in the Public Schools: The
Constitutional Concept, 78 Harv. L. Rev. 564, 590-98 (1965).
76 See Poliak, Racial Discrimination and Judicial Integrity: A  
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959); Kaplan, 
Segregation Litigation and the Schools— Part I, The New Rochelle 
Experience 58 N W  U. L. Rev. 1, 21 (1964).
77 Korematsu v. United States, 1944, 323 U. S. 214, 216, 65 S. Ct. 
193, 89 L. Ed. 194.



60 U. S., et al. v. Jeff. County Bd. of Educ., et al.

individual. In these cases Negroes were separated 
from whites but were afforded equal or identical fa­
cilities. Relying on Brown, the Court ordered integra­
tion of the facility or activity.78 See also Anderson v. 
Martin, 1964, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed.2d 
430, 433, holding that compulsory designation of a can­
didate’s race on the ballot is unlawful. The designation 
placed “ the power of the State behind a racial classi­
fication that induces racial prejudice at the polls.”

Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 
L. Ed. 884, provides further evidence of the breadth 
of the right recognized in Brown. There, because the 
case concerned the District of Columbia, the Court 
had to rely on the due process clause of the Fifth 
Amendment instead of the equal protection clause 
of the Fourteenth Amendment. Going beyond any 
question of psychological harm or of the denial of 
equal educational opportunities to the individual, the 
Court concluded that racial classifications in public 
education are so unreasonable and arbitrary as to 
violate due process:79
78 E.g., Schiro v. Bynum, 375 U.S. 395 (1964) (municipal audi­
toriums) ; Johnson v. Virginia, 373 U.S. 61 (1963) (court-rooms); 
State Athletic Comm’n v. Dorsey, 395 U.S. 533 (1959) (athletic 
contests); New Orleans City Park Improvement Ass’n v. De- 
tiege, 358 U.S. 54 (1958) (public parks and golf courses); Gayle 
v. Browder, 352 U.S. 903 (intrastate busses); Holmes v. City 
of Atlanta, 350 U.S. 879 (1955) (municipal golf courses); 
Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public 
beaches and bathhouses). Muir v. Louisville Park Theatrical 
Ass’n, 347 U.S. 971 (1954) (municipal amphitheater).
For lower court decisions to the same effect, see cases collected 
in Emmerson and Huber, Political and Civil Rights in the United 
States 1678 (1967).
79 See Cahn, Jurisprudence, 30 N.Y.U.L. Rev. 150, 155 (1955). 
Cf. Antieau, Equal Protection Outside the Clause, 40 Cal. L. Rev. 
362, 364 (1954); Poliak, Racial Discrimination and Judicial In­
tegrity, 108 U. Pa. L. Rev. 1, 27-28 (1959).



U. S., et al. v. Jeff. County Bd. of Educ., et al. 61

“ Liberty under law extends to the full range 
of conduct which the individual is free to pur­
sue, and it cannot be restricted except for a 
proper governmental objective. Segregation 
in public education is not reasonably related 
to any proper governmental objective, and 
thus it imposes on Negro children . . .  a bur­
den that constitutes an arbitrary deprivation 
of their liberty.”  347 U. S. at 498. (Emphasis 
added.)

As in the jury exclusion cases, when the classifica­
tion is not “ reasonably related to any proper govern­
mental objective”  equal protection and due process 
merge.

If Brown has only the narrow meaning Briggs 
gives it, the system of state-sanctioned segregated 
schools will continue indefinitely with only-a little 
token desegregation. White school boards, almost 
universal in this circuit, will be able to continue 
to say that their constitutional duty -ends when they 
provide relief to the particular Negro children who, 
as individuals, claim their personal right to be ad­
mitted to white schools. If the Briggs thinking should 
prevail, the dual system will, for all practical pur­
poses', be maintained: white school officials in most 
key positions at the state and county levels; Negro 
faculties in Negro schools, white faculties in white 
schools; no white children or only a few white chil­
dren of way-out parents in Negro schools; a few Ne­
groes in some white schools; at best, tokenism in cer­
tain school districts.



62 U. S., et al. v. Jeff. County Bd. of Eduo., et al.

Brown’s broad meaning, its important meaning, 
is its revitalization of the national constitutional fight 
the Thirteenth, Fourteenth, and Fifteenth Amend­
ments created in favor of Negroes. This is the right 
of Negroes to national citizenship, their right as a 
class to share the privileges and immunities only 
white citizens had enjoyed as a class. Brown erased 
Dred Scott, used the Fourteenth Amendment to 
breathe life into the Thirteenth, and wrote the Decla­
ration of Independence into the Constitution. Freed- 
men are free men. They are created as equal as 
are all other American citizens and with the same 
unalienable rights to life, liberty, and the pursuit of 
happiness. No longer “ beings of an inferior race” — 
the Dred Scott article of faith—Negroes too are part 
of “ the people of the United States” .

A primary responsibility of federal courts is to pro­
tect nationally created constitutional rights. A duty 
of the States is to give effect to such rights—here, by 
providing equal educational opportunities free of any 
compulsion that Negroes wear a badge of slavery. 
The States owe this duty to Negroes, not just because 
every citizen is entitled to be free from arbitrary 
discrimination as a heritage of the common law or be­
cause every citizen may look to his state for equal 
protection of the rights a state grants its citizens. As 
Justice Harlan clearly saw in the Civil Rights Cases 
(1883), 109 U. S. 3, 3 S.Ct. 18, 27 L.Ed. 835, the War­
time Amendments created an affirmative duty that 
the States eradicate all relics, “ badges and indicia of 
slavery’ ’ lest Negroes as a race sink back into “ sec­
ond-class”  citizenship.



17. S., et al. v. Jeff. County Bd. of Educ., et al. 63

B. The factual situation dealt with in Bell v. School 
City of Gary, N. D. Ind. 1963, 213 F. Supp. 819, aff’d 
7 Cir. 1963, 324 F.2d 209, cert, den’d 377 U. S. 924 (1964) 
is not the situation the Supreme Court had before it 
in Brown or that we deal with in this circuit. Brown 
dealt with state-imposed segregation based on dual 
attendance zones. Bell involved nonracially motivated 
de facto segregation in a school system based on the 
neighborhood single zone system. In Bell the plain­
tiffs alleged that the Gary School Board had delib­
erately gerrymandered school attendance zones to 
achieve a segregated school system in violation of 
its “ duty to provide and maintain a racially inte­
grated system” . On the showing that the students 
were assigned and boundary lines drawn based upon 
reasonable nonracial criteria, the court held that the 
school board did not deliberately segregate the 
races; the racial balance was attributable to geo­
graphic and housjng patterns. The court analyzed 
the problem in terms of state action rather than in 
terms of the Negroes’ right to equal educational op­
portunities. Finding no state action the court con­
cluded that Brown did not apply. In effect, the court 
held that de facto segregated neighborhood schools 
must be accepted. At any rate, the court said, 
“ states do not have an affirmative duty to provide 
an integrated education” . The Seventh Circuit af­
firmed.

We must assume that Congress was well aware 
of the fact that Bell was concerned with de facto seg­
regated neighborhood schools—only. Notwithstand­
ing the broad language of the opinion relating to the



64 17. S., et al. v. Jeff. County Bd. of Educ., et al.

lack of a duty to integrate, language later frequently 
quoted by Senator Humphrey and others in the de­
bates on the Civil Rights Act of 1964, Congress went 
only so far as to prohibit cross-district bussing and 
cross-district assignment of students.

The facts, as found by the Court in Bell, favored 
the Gary School Board. Other courts, on very simi­
lar facts, have decided that there are alternatives 
to acceptance of the status quo.80 A commentator on 
the subject has fairly summed up the cases: “ Using 
Brown as a governing principle, racial imbalance 
caused by racially motivated conduct is clearly in­
valid. When racial imbalance results fortuitously, 
there is a split of authority.”81

“The central constitutional fact is the inadequacy of segre­
gated education. . . . The educational system that is thus com­
pulsory and public afforded must deal with the inadequacy arising 
from adventitious segregation; it cannot accept and indurate seg­
regation on the ground that it is not coerced or planned but 
accepted.” Branche v. Board of Education, 204 F.Supp. at 153. 
See Wright, Public School Desegregation: Legal Remedies for De 
Facto Segregation, 40 N.Y.U.L. Rev. 285, 301 (1965); Fiss, 78 
Harv. L. Rev. 564, 609 (1965) (a relative approach); Sedler, 
School Segregation in the North and W est: Legal Aspects 7 St 
Louis L. Rev. 228, 233-239, 275 (1963); Maslow, De Facto Public 
School Segregation, 6 Vill. L. Rev. 353 (1961).
81 King, Racial Imbalance in the Public Schools, 18 Vand. L. 
Rev. 1290, 1337 (1965). Webb v. Board of Education of Chi­
cago, N.D.I11. 1963, 223 F.Supp. 466; Deal v. Cincinnati Board of 
Education, S.D.Ohio 1965, 244 F.Supp. 572; Lynch v Kenston 
School District, N.D.Ohio 1964, 229 F.Supp. 740; Downs v Board 
of Education, 10 Cir. 1965, 336 F.2d 988, cert, denied
380 U.S. 914, 85 S.Ct. 898, 13 L.Ed. 2d 800; and
Sealy v. Department of Public Instruction of Pennsylvania, 
3 Cir. 1958, 252 F.2d 898, are more or less in agree­
ment  ̂ with Bell. These cases usually rely on the school 
board s good faith, lack of racial motivation, and the propriety of 
considering transportation, geography, safety, access roads, and 
other neutral criteria as rational bases for school districting. 
Taking the contrary position are: Booker v. Board of Education 
of Plainfield, 1965, 45 N.J. 161, 212 A.2d 1; Branche v. Hempstead, 
E.D.N.Y. 1962, 204 F.Supp. 150; Blocker v. Board of Education 
of Manhasset, E.D.N.Y. 1964, 226 F. Supp. 208, 229 F Supp 709- 
Barksdale v. Springfield School Committee, D.Mass. 1965, 237



U. S.} et al. v. Jeff. County Bd. of Educ., et al. 65

Barksdale v. Springfield School Committee, D. 
Mass. 1965, 237 F. Supp. 543, similar on the facts to 
Bell, holds squarely contrary to Bell:

“ The defendants argue, nevertheless, that 
there is no constitutional mandate to remedy' 
racial imbalance. Bell v. School City of Gary,
324 F.2d 209 (7th Cir. 1963). But that 
is not the question. The question is whether 
there is a constitutional duty to provide 
equal educational opportunities for all chil­
dren within the system. While Brown an­
swered that question affirmatively in the con­
text of coerced segregation, the constitutional 
fact—the inadequacy of segregated educa­
tion—is the same in this case, and I so find.
. . . This is not to imply that the neighbor­
hood school policy per se is unconstitution­
al, but that it must be abandoned or modi­
fied when it results in segregation in fact.

F.Supp. 543, vacated for other reasons 1 Cir. 1965, 348 F.2d 261; 
Jackson v. Pasadena City School District, 1962, 59 Cal. 2d 876, 31 
Cal. Rept. 606, 382 P.2d 878. School authorities may act to 
offset racial imbalance; See Addabbo v. Donovan, 256 N.Y.S. 2d 
178, aff’d 261 N.Y.S.2d 68, 209 N.E.2d 112 (1965), cert, den’d 382 
U.S. 905 (1965). See also Balaban v. Rubin, 248 N.Y.S.2d 574, aff’d 
250 N.Y.2d 281, 199 N.E.2d 375 (1964), cert, den’d 379 U.S. 881
(1964) (Board may “take into consideration the ethnic composi­
tion of the children” before drawing the attendance lines for a 
new school); Olson v. Board of Education, E.D.N.Y. 1966, 250 F. 
Supp. 1000 (the Princeton plan— see note 124, infra); 
Offerman v. Nitkowski, W.D. N .Y. 1965, 248 F.Supp. 
129; Guida v. Board of Education of New Haven, 26 
Conn. Supp. 121, 213 A.2d 843 (1965); Strippoli v.
Bichal, 250 N.Y.S.2d 969, aff’d N.Y.S.2d 84, 209 N.E.2d 123
(1965) (bussing); Morean v. Board of Education, 42 N.J. 237, 200 
A.2d 97 (1965); Vetere v. Allen, 258 N.Y. 77, 206 N.E. 2d 174 
(1965) (redistricting of attendance zone approved because “racial 
balance is essential to a sound education” ) ; Van Blerkom v. Dono­
van, 1965, 15 N.Y.2d 399, 259 N.Y.S.2d 825, 207 N.E.2d 503.



66 U. S., et al. v. Jeff. County Bd. of Educ., et al.

. . .  I cannot accept the view in Bell that 
only forced segregation is incompatible with 
the requirements of the Fourteenth Amend­
ment, nor do I find meaningful the state­
ment that ‘ [t]he Constitution . . . does not 
require integration. It merely forbids dis­
crimination.’ 324 F.2d at 213. . . . If This court 
recognizes and reiterates that the problem 
of racial concentration is an educational, as 
well as constitutional, problem and, there­
fore, orders the defendants to present a plan 
no later than April 30, 1965, to eliminate to 
the fullest extent possible racial concentra­
tion in its elementary and junior high schools 
within the framework of effective education­
al procedures, as guaranteed by the equal 
protection clause of the Fourteenth Amend­
ment to the Constitution of the United 
States.”  (Emphasis added.)

“ In short, Barksdale [does not analyze Brown] in 
terms of propriety of school board action, but pro­
ceeds in terms of a right on the part of Negro students 
to an equal educational opportunity, which in light 
of the ruling in Brown that separate schools are in­
herently unequal, must perforce be a right to an in­
tegrated educational setting.”82 On appeal, the First 
Circuit accepted the district court’s findings of fact 
but vacated the order with directions to dismiss With­
out prejudice because the school board, on its own
82 Gillmor and Gosule, Duty to Integrate Public Schools? Some 
Judicial Responses and a Statute, 46 Bost. U. L. Rev. 45, 57
(1966).



U. S., et al. v. Jeff. County Bd. of Educ., et al. 67

initiative, had taken action identical with the court- 
ordered action. 348 F.2d 261. The Court noted a dif­
ference between “ the seeming absolutism” of the 
opinion and the less sweeping order “ to eliminate 
[segregation] to the fullest extent possible . . . with­
in the framework of effective educational proce­
dures”.83 Taking both opinions together, they recog­
nize that “ the state would not be permitted to ignore; 
the problem of de facto segregation. The holding in 
Brown, unexplained by its underlying reasoning, re­
quires no more than the decision in Bell, but when 
illuminated by the reasoning, it permits the result 
in Barksdale and may require that result.”84 At the 
very least, as the Barksdale court saw it, there is a 
duty to integrate in the sense that integration is an 
educational goal to be given a high, high priority 
among the various considerations involved in the 
proper administration of a system beset with de 
facto segregated schools.
83 The First Circuit construed the court’s order, as not calling 
for “an absolute right in the plaintiffs to have what the court 
found to be ‘tantamount to segregation’ removed at all costs.’’ 
At the same time, the Court said: “Rather we take it to deter­
mine that . . . racial imbalance disadvantages Negro students 
and impairs their educational opportunities as compared with 
other races to such a degree that they have a right to insist that 
the defendants consider their special problems along with all other 
relevant factors when making relevant decisions.” Springfield 
School Committee v. Barksdale, 1965, 348 F.2d 261, 264.
84 Gillmor and Gosule supra note 82, at 64. Compare the state­
ment of policy in the Massachusetts statute, An Act Providing for 
the Elimination of Racial Imbalance in the Public Schools (Mass. 
Acts. 1965, ch. 651):

It is hereby declared to be the policy of the commonwealth 
to encourage all school committees to adopt as educational 
objectives the promotion of racial balance and the correction 
of existing racial imbalance in the public schools. The pre­
vention or elimination of racial imbalance shall be an ob­
jective in all decisions involving the drawing or altering 
of school attendance lines and the selection of new school sites. 

The statute was enacted a month after Barksdale was decided.



68 U. S., et al. v. Jeff. County Bd. of Educ., et al.

Although Brown points toward the existence of a 
duty to integrate de facto segregated schools,85 the hold­
ing in Brown, unlike the holding in Bell but like the 
holdings in this circuit, occurred within the context 
of state-coerced segregation. The similarity of pseudo 
de facto segregation in the South to actual de facto
segregation in the North is more apparent than real. 
Here school boards, utilizing the dual zoning system, 
assigned Negro teachers to Negro schools and se­
lected Negro neighborhoods as suitable areas in which
to locate Negro schools. Of course the concentration
of Negroes increased in the neighborhood of the 
school. Cause and effect came together. In this cir­
cuit, therefore, the location of Negro schools with 
Negro faculties in Negro neighborhoods and white 
schools in white neighborhoods cannot be described
as an unfortunate fortuity: It came into existence as 
state action and continues to exist as racial gerry­
mandering, made possible by the dual system.86 Segre­
gation resulting from racially motivated gerryman-

Some of the Supreme Court’s language in Brown can apply 
to this type of segregation as well as to that before the Court 
since this type of imbalance may also ‘generate a feeline of 
inferiority as to [the Negro children’s] status in the community 
that may affect their hearts and minds in a way unlikely ever 
to be undone.’ Thus, if one believes that the basis of the 
Brown decision was the Court’s finding that separate schools 
were unconstitutional simply because they bred a feeling of in­
feriority in the Negro, one must also believe that the neighbor­
hood school must also be unconstitutional if it breeds the same 
feeling of inferiority.’’ Kaplan, Segregation Litigation and the
? Co w i l ^ rt<.ATThe Ne,W Rochelle Experience 58 NW  U. L. Rev. 
1, 21 (1964). Necessarily implied in [Brown’s] . . . proscription 
of segregated education was the positive duty of eliminating it ” 
Taylor v. Board of Education of the City of New Rochelle

l6 ?  UYS .199640. W1 F ‘ SUPP' 181' 193' aff'd 294 F 2d 36 cert deSed
86 See Clemons v. Board of Education of Hillsboro 6 Cir 
1956, 228 F.2d 853, cert, den’d 350 U.S. 1000 (1956 Cf Gomillion 
v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L .E d M  110



U. S., et al. V.  Jeff. County BcL. of Educ., et al. 69

dering is properly characterized as “ de jure”  segre­
gation. See Taylor v. Board of Education of the City 
of New Rochelle, S.D.N.Y. 1961, 191 F. Supp. 181.87 
The courts have had the power to deal with this situ­
ation since Brown I. In Holland v. Board of Public In­
struction of Palm Beach County, 5 Cir. 1958, 258 F.2d 730, 
although there was. no evidence of gerrymandering as 
such, the court found that the board “ maintained and 
enforced”  a completely segregated system by using 
the neighborhood plan to take advantage of racial 
residential patterns. See also Evans v. Buchanan, 
D.Del. 1962, 207 F. Supp. 820, where, in spite of a gen­
uflexion in the direction of Briggs, the Court found 
that there was gerrymandering of school districts 
superimposed on a pre-Brown policy of segregation.

C. The defendants err in their contention that the 
HEW and the courts cannot take race into considera­
tion in establishing standards for desegregation 
“The Constitution is not this color-blind.”88

The Constitution is both color blind arid color con­
scious. To avoid conflict with the equal protection
87 Modified plan approved, 195 F.Supp. 231, aff’d 2 Cir. 1961,
294 F.2d 36, cert, den’d 368 U.S.-940 (1961). See Kaplan, Segre­
gation Litigation and the Schools— Part 1; The New Rochelle 
Experience, 58 NW.U. L. Rev. 1 (1964). Jackson v.
School Board of the City of Lynchburg, W.D. Va. 1962, 
203 F.Supp. 701; Dowell v. School Board of Oklahoma City 
Public Schools, W.D. Okla. 1965, 244 F.Supp. 971; and Swann 
v. Charlotte-Mecklenburg Board of Education, W.D.N.C. 1965, 243 
F.Supp. 667, followed Taylor on the unconstitutionality of racial 
gerrymandering. See also Jackson v. Pasadena City School Dis­
trict, 1963, 59 Cal.2d 876, 382 P.2d 878; Clemons v. Board of Edu­
cation of Hillsboro, 6 Cir. 1956, 228 F.2d 853, cert, den’d 
350 U.S. 106 (1956); Fuller v. Volk, 3 Cir. 1965, 351 F.2d 323.
88 Taylor v. Board of Education of the City of New Rochelle, 
S.D.N.Y. 1961, 191 F.Supp. 181, 196, aff’d 294 F.2d 36 (Kauf­
man, J.).



70 17. S., et al. v. Jeff. County Bd. of Educ., &t al.

clause, a classification that denies a benefit, causes 
harm, or imposes a burden must not be based on race. 
In that sense, the Constitution is color blind. But the 
Constitution is color conscious to prevent discrim­
ination being perpetuated and to undo the effects of 
past discrimination. The criterion is the relevancy 
of color to a legitimate governmental purpose. For 
example, jury venires must represent a cross-section 
of the community. Strauder v. West Virginia, 1880, 
100 U.S. 303, 25 L.Ed. 664. The jury commissioners 
therefore must have a “ conscious awareness of race 
in extinguishing racial discrimination in jury serv­
ice” . Brooks v. Beto, 5 Cir. 1966,, 366 F.2d 1. Similar­
ly, in voter registration cases we have used the 
“ freezing principle” to justify enjoining the use of 
a constitutional statute where, in effect, the statute 
would perpetuate past racial discrimination against 
Negroes. United States v. Louisiana, E.D. La. 1963, 
225 F.Supp. 353, aff’d 1965, 380 U.S. 145, 85 S.Ct. 817, 
13 L.Ed.2d 817. “ [I]t is unrealistic to suppose that 
the evils of decades of flagrant race discrimination 
can be overcome by purging registration rolls of white 
voters. . . . [Ujnless there is some appropriate way 
to equalize the present with the past, the injunctive 
prohibitions even in the most stringent, emphatic, 
mandatory terms prohibiting discrimination in the 
future, continues for many years a structure com­
mitting effectual political power to the already regis­
tered whites while excluding Negroes from this vital 
activity of citizenship.”  United States v. Ward, 5 Cir. 
1965, 349 F.2d 795, 802. “ An appropriate remedy 
should undo the results of past discrimination as well



U. S., et al. v. Jeff. County Bd. of Educ., et al. 71

as prevent future inequality of treatment.”  United 
States v. Duke, 5 Cir. 1964, 332 F.2d 759, 768. If the 
Constitution were absolutely color-blind, considera­
tion of race in the census and in adoption proceedings 
would be unconstitutional.

Here race is relevant,89 because the governmental 
purpose is to offer Negroes equal educational oppor­
tunities. The means to that end, such as disestab­
lishing segregation among students, distributing 
the better teachers equitably, equalizing facilities, 
selecting appropriate locations for schools, and avoid­
ing resegregation must necessarily be based on race. 
School officials have to know the racial composition 
of their school populations and the racial distribu­
tion within the school district. The Courts and HEW 
cannot measure officials’ good faith or progress with­
out taking race into account. “ When racial imbalance 
infects a public school system, there is simply no way 
to alleviate it without consideration of race. . . . 
There is no constitutional right to have an inequality
89 “The justification for the school board’s incorporation of 
racial distinctions in its correctional scheme is that race is a 
relevant characteristic, given the school board’s purpose, which is 
to avoid psychological injury to the Negro child, break down 
social barriers, and mitigate the academic inadequacy of the im­
balanced schools. Of course, it might be argued that many of the 
evils the school board attempts to eliminate when it takes correc­
tional steps are not attributable to the race of the individuals 
within the imbalanced school, but instead are attributable to their 
social class. Yet, certain of these evils are uniquely related to the 
fact that the imbalance is a racial one; namely, those attributable 
to the personal impact of the imbalance on the Negro. Moreover, 
most Negroes in the ghetto, and hence attending an imbalanced 
school, are members of the lowest economic class, and thus the 
board’s remedial measures will tend to cure the social imbalance 
as well.” Fiss, Racial Imbalance in the Public Schools: The 
Constitutional Concepts, 78 Harv. L. Rev. 564, 577-78 (1965).



72 U. S., et al. v. Jeff. County Bd. of Educ., et al.

perpetuated.”90 Judge Sobeloff’s answer in Wanner v. 
County School Board of Arlington County} 4 Cir. 1966, 
357 F.2d 452, 454-55, is our answer in this case:

“ If a school board is constitutionally for­
bidden to institute a system of racial segre­
gation by the use of artificial boundary lines, 
it is likewise forbidden to perpetuate a system 
that has been so instituted. It would be stulti­
fying to hold that a board may not move to 
undo arrangements artificially contrived to 
effect or maintain segregation, on the ground 
that this interference with the status quo 
would involve ‘consideration of race.’ When 
school authorities, recognizing the historic 
fact that existing conditions are based on a 
design to segregate the races, act to undo 
these illegal conditions—especially condi­
tions that have been judicially condemned— 
their effort is not to be frustrated on the 
ground that race is not a permissible con­
sideration. This is not the ‘consideration of 
race’ which the Constitution discountenances.
. . . There is no legally protected vested in­
terest in segregation. If there were, then 
Brown v. Board of Education and the numer­
ous decisions based on that case would be 
pointless. Courts will not say in one breath 
that public school systems may not practice 
segregation, and in the next that they may 
do nothing to eliminate it.”
Wright, Public School Desegregation: Legal Remedies for De 

Facto Segregation, 16 West. Res. L. Rev. 478, 489 (1965).



U. S., et al. v. Jeff. County Bd. of Educ., et al. 73

D. Under Briggs’ s blessing, school boards through­
out this circuit first declined to take any affirmative 
action that might be considered a move toward in­
tegration. Later, they embraced the Pupil Placement 
Laws as likely to lead to no more than a little token 
desegregation. Now they turn to freedom of choice 
plans supervised by the district courts. As the de­
fendants construe and administer these plans, with­
out the aid of HEW standards there is little pros­
pect of the plans’ ever undoing past discrimination 
or of coming close to the goal of equal educational 
opportunities. Moreover, freedom of choice, as now 
adminstered, necessarily promotes resegregation. 
The only relief approaching adequacy is the conver­
sion of the still-functioning dual system to a unitary, 
non-racial system—lock, stock, and barrel.

If this process be “ integration” according* to the 
1955 Briggs court, so be it. In 1966 this remedy is the 
relief commanded by Brown, the Constitution, the 
Past, the Present, and the wavy fore-image of the 
Future.

IV.

We turn now to the specific provisions of the Civil 
Rights Act on which the defendants rely to show that 
HEW violates the Congressional intent. These pro­
visions are the amendments to Title IV and VI added 
in the Senate. The legislative history of these amend­



74 17. S., et al. v. Jeff. County Bd. of Educ., et al.

ments is sparse and less authoritative than usual be­
cause of the lack of committee reports on the 
amended version of the bill.

A. Section 401(b) defines desegregation:

‘Desegregation’ means the assignment 
of students to public schools and within such 
schools without regard to their race, color, 
religion, or national origin, but ‘desegrega­
tion’ shall not mean the assignment of stu­
dents to public schools in order to overcome 
racial imbalance.”

The affirmative portion of this definition, down to 
the “ but”  clause, describes the assignment provi­
sion necessary in a plan for conversion of a de jure 
dual system to a unitary, integrated system. The 
negative portion, starting with “ but” , excludes as­
signment to overcome racial imbalance, that is, acts 
to overcome de facto segregation. As used in the 
Act, therefore, “ desegregation”  refers only to the 
disestablishment of segregation in de jure segre­
gated schools. Even if a broader meaning should be 
given to “ assignment . . .  to overcome racial im­
balance” , Section 401 would not mean that such as­
signments are unlawful:

“ The intent of the statute is that no funds and 
no technical assistance will be given by the 
United States Commissioner of Education 
with respect to plans for the assignment of 
students to public schools in order to over­



17. S., et al. v. Jeff. County Bd. of Educ., et al. 75

come racial imbalance. The statute may not 
be interpreted to mean that such assignment 
is illegal or that reasonable integration ef­
forts are arbitrary or unlawful.”91

The prohibition against assignment of students to 
overcome racial imbalance was added as an amend­
ment during the debates in the House to achieve the 
same result as the anti-bussing provision in section 
407. Some of the difficulty in understanding the Act 
and its legislative history arises from the statute’s 
use of the undefined term “ racial imbalance” . It is 
clear however from the hearings and debates that 
Congress equated the term, as do the commentators, 
with “ de facto segregation”  that is, non-racially 
motivated segregation in a school system based on 
a single neighborhood school for all children in a de­
finable area.92 Thus, Congressman William Cramer
91 Addabbo v. Donovan, 22 App. Div.2d 383, 256 N.Y.S.2d 178, 
184, (2d Dept. 1965), aff’d, 16 N.Y.2d 619, 261 N.Y.S.2d 68, 209 
N.E.2d 112 (1965), cert, denied, 382 U.S. 905 (1965).
92 For example, “Racial imbalance” and “de facto segregation” 
are “used synonymously . . . [to] refer to a situation where a 
school is predominantly composed of Negro students not as a 
result of state action but rather as the end product of segregated 
housing and adherence to the neighborhood school plan.” Gillmor 
and Gosule, 46 Boston U. L. Rev. 45, 46 (1966). The term “de 
facto segregation” has become accepted as denoting non-racially 
motivated separation of the races as opposed to “de jure segre­
gation” denoting deliberate separation of the races by law. Since 
segregation is unconstitutional, each is a contradiction in terms. 
One student of the problem has pointed out, “The term de facto 
segregation makes the racially imbalanced school appear . . . 
[to be] the Northern counterpart of segregated education under 
Jim Crow laws . . . .  As such the term distorts reality and 
paralyzes thought. [Racial] imbalance is frequently labeled ‘de 
facto’ segregation to suggest that the requisite governmental 
involvement cannot be found.” Fiss, Racial Imbalance in the Public 
Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564, 566, 584 
(1965). Another has said, “As a more accurate term, racial im­



76 U. S., et al. v. Jeff. County Bd. of Educ., et al.

who offered the amendment, was concerned that the 
bill as originally proposed might authorize the gov­
ernment to require bussing to overcome de facto seg­
regation. In explaining the amendment, he said:

“ In the hearings before the committee I 
raised questions on ‘racial imbalance’ and 
in the sub-committee we had lengthy discus­
sions in reference to having these words 
stricken in the title, as it then consisted, and 
to strike out the words ‘racial imbalance’ pro­
posed by the administration, fl The purpose is to 
prevent any semblance of congressional ac­
ceptance or approval of the concept of ‘de 
facto’ segregation or to include in the defini­
tion of ‘desegregation’ any balancing of school 
attendance by moving students across school 
district lines to level off percentages where 
one race outweighs another.”

The neighborhood school system is rooted deeply 
in American culture.93 Whether its continued use is
balance will be used to denote fortuitous racial separation in the 
public schools” . King, Racial Imbalance in the Public Schools: 
Constitutional Dimensions and Judicial Response, 18 Vand L  
Rev. 1290, 1291 (1965).

“De facto segregation has become the short way of describing 
the existing situation in northern cities. . . .  a school system 
which is marked by a very high proportion of Negroes in some 
of its schools, and few or none in others, but in which this 
separation has taken place without the compulsion of a state law 
or officially announced policy requiring that Negro and white 
children be placed in separate schools.” Hyman and Newhouse 
Desegregation of the Schools: The Present Legal Situation 14 
Buff. L. Rev. 208, 221 (1964). See also Carter, De Facto Segre­
gation, 16 West. Res. L. Rev. 502, 503 (1965).
93 The rationale of the neighborhood school system is that the 
school serves as the educational, recreational, and cultural center 
of the community. See Hansen, The Role of Educators, 34 Notre 
Dame L. Rev. 652, 654 (1959). Proponents of the view that 
neighborhood schools may become so racially imbalanced as to



U. S., et al. v. Jeff. County Bd. of Educ., et al. 77

constitutional when it leads to grossly imbalanced 
schools is a question some day to be answered by the 
Supreme Court, but that question is not present in any 
of the cases before this Court. As noted in the previous 
section of this opinion, we have many instances of a 
heavy concentration of Negroes or whites in certain 
areas, but always that type of imbalance has been 
superimposed on total school separation. And always 
the separation originally was racially motivated and 
sanctioned by law in a system based on two schools 
within a neighborhood or overlapping neighborhoods, 
each school serving a different race. The situations 
have some similarity but they have different origins, 
create different problems, and require different cor­
rective action.94

In the 1964 Act (and again in 1966 during consider­
ation of amendments to the Elementary and Secon­
dary Education Act of 1965) Congress, within the con­
require affirmative corrective action point out: “The modern-day 
neighborhood school cannot be equated with the common school 
of yesteryear— the latter constitutes America’s ideal of a demo­
cratic institution— a single structure serving a heterogeneous 
community in which children of varied racial, cultural, religious, 
and socio-economic backgrounds were taught together— the pro­
verbial melting pot. Because of rigid racial and socio-economic 
stratification, ethnic and class similarity has become the most 
salient present-day neighborhood characteristic, particularly in ur­
ban areas. The neighborhood school, which encompasses a homo­
geneous racial and socio-economic grouping, as is true today, is the 
very antithesis of the common school heritage.” Carter, De Facto 
School Segregation: An Examination of the Legal and Constitu­
tional Questions Presented, 16 West. Res. L. Rev. 502, 507 (1965). 
See also Sedler, School Segregation in the North and W est: Legal 
Aspects, 7 St. Louis U. L. J. 228, 252-56 (1963).
94 For some idea of the number and complexity of the adminis­
trative problems school officials face in dealing with de facto 
segregation, see Kaplan, Segregation Litigation and the Schools—  
Part II: The General Northern Problem, 58 NW. U. L. Rev. 157, 
182-186 (1963). Professor Kaplan quotes at length excerpts from 
the testimony in Bell.



78 U. S., et al. v. Jeff. County Bd. of Educ., et al.

text of debates on aid to de facto segregated schools 
declined to decide just what should be done about 
imbalanced neighborhood schools.34a The legislative 
solution, if there is one to this problem, will require 
a carefully conceived and thoroughly debated com­
prehensive statute. In the 1964 Act Congress simply 
directed that the federal assistance provided in Title 
IV, §403-5 was not to be used for developing plans to 
assign pupils to overcome racial imbalance.95 Simi­
larly, Congress withheld authorizing the Attorney 
General, in school desegregation actions, to ask for 
a court order calling for bussing pupils’ from one 
school to another to “achieve a racial balance”.96
94a The question of providing special, ear-marked federal funds 
for school districts that were trying to correct imbalanced neigh­
borhood schools came up again in connection with the 1966 
amendments to the Elementary and Secondary Education Act of 
1965. The House committee recommended special priority for ap­
plications under Title III of the Act from local school districts 
which sought help with problems of overcrowding, obsolescence, 
or racial imbalance. The House withdrew priority for dealing 
with problems of racial imbalance and added an amendment to 
Section 604 of the Act to the effect that nothing in the Act 
be construed to “require the assignment or transportation 
of students or teachers in order to overcome racial imbalance.” 
The Senate went along with both actions. The debate makes 
clear that Congress was once again talking about racial imbalance 
in the context of de facto, not de jure, school segregation. See 
particularly Congressional Record, October 6, 1966, pp. 24538-9; 
24541-3. See also 1966 U.S. Code Congressional and Administra­
tive News, No. 11, pp. 5089-90, for language in House committee 
report recommending the priority position of applications to deal 
with racial imbalance.
95 Congressman Cramer’s amendment.
96 This restriction appears in §407 of the Act. In its context 
it seems clearly to restrict the Attorney General to requesting 
only such relief as is constitutionally compelled. In other words, 
the Act is not to be construed as authorizing a statutory duty 
to reduce imbalance by bussing. Certainly the language of §407 
does not call for a construction that prohibits a court order direct­
ing that school boards abandon racially discriminatory practices 
which violate the Constitution. Nor does it suggest that the 
Attorney General is precluded from requesting court orders to 
end racial imbalance resulting from unconstitutional practices.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 79

B. Section 407(a)(2) of Title IV authorizing the 
Attorney General to file suit to desegregate, contains 
the “ anti-bussing”  proviso:

. nothing herein shall empower any of­
ficial or court of the United States to issue any 
order seeking to achieve a racial balance 
in any school by requiring the transportation 
of pupils or students from one school to an­
other or one school district to another in or­
der to achieve such racial compliance with 
constitutional standards.”

First, it should be noted that the prohibition ap­
plies only to transportation; and only to transporta­
tion across school lines to achieve racial balance. 
The furnishing of transportation as part of a free­
dom of choice plan is not prohibited. Second, the 
equitable powers of the courts exist independently of 
the Civil Rights Adt of 1964. It is not contended in the 
instant cases that the Act conferred new authority 
on the courts. And this Court has not looked to the 
Act as a grant of new judicial authority.

Section 407(a)(2) might be read as applying only 
to orders issued in suits filed by the Attorney General 
under Title IV. However, Senator, now Vice President 
Humphrey, Floor Manager in the Senate, said it was 
his understanding that the provision applied to the 
entire bill. In particular, he said that it applies to 
any refusal or termination of federal assistance un­
der Title VI since the procedure for doing so requires 
an order approved by the President. Senator Hum­
phrey explained:



80 U. S., et al. v. Jeff. County Bd. of Educ., et al.

“ This addition seeks simply to preclude an 
inference that the title confers new authority 
to deal with ‘racial imbalance’ in schools, 
and should serve to soothe fears that Title IV 
might be read to empower the Federal Gov­
ernment to order the bussing of children 
around a city in order to achieve a certain ra­
cial balance or mix in schools, ff Furthermore, 
a new section 410 would explicitly declare that 
‘nothing in this title shall prohibit classifica­
tion and assignment for reasons other than 
race, color, religion, or national origin.’ 
If Thus, classification along bona fide neighbor­
hood school lines, or for any other legitimate 
reason which local school boards might see 
fit to adopt, would not be affected by Title 
IV, so long as such classification was bona 
fide. Furthermore, this amendment makes 
clear that the only Federal intervention in 
local schools will be for the purpose of pre­
venting denial of equal protection of the 
laws.”  (Emphasis added.)

Senator Humphrey spoke several times in the lan­
guage of Briggs but his references to Bell indicate 
that the restrictions in the Act were pointed at the 
Gary, Indiana de facto type of segregation. Senator 
Byrd (West Virginia) asked Senator Humphrey would 
he give assurance “ that under Title VI school children 
may not be bussed from one end of the community to 
another end of the community at taxpayers’ expense 
to relieve so-called racial imbalance in the schools” . 
Senator Humphrey replied:



17. S., et al. v. Jeff. County Bd. of Educ., et al. 81

“ I do . . . That language is to be found in 
Title IV. The provision [§407(a)(2)] mere­
ly quotes the substance of a recent court de­
cision which I have with me, and which I 
desire to include in the Record today, the 
so-called Gary case.”

Senator Humphrey explained:

“ Judge Beamer’s opinion in the Gary case is 
significant in this connection. In discussing 
this case, as we did many times, it was de­
cided to write the thrust of the court’ s opin­
ion into the proposed substitute.”  (Empha­
sis added.)

The thrust of the Gary case (Bell) was that if school 
districts were drawn without regard to race, but 
rather on the basis of such factors as density of pop­
ulation, travel distances, safety of the children, costs 
of operating the school system, and convenience to 
parents and children, those districts are valid even 
if there is a racial imbalance caused by discrimina­
tory practices in housing. Thus, continuing his ex­
planation, Senator Humphrey said:

“ The bill does not attempt to integrate the 
schools, but it does attempt to eliminate seg­
regation in the schools. The natural factors, 
such as density of population, and the dis­
tance that students would have to travel are 
considered legitimate means to determine the 
validity of a school district, if the school dis­
tricts are not gerrymandered, and in effect



82 U. S., et al. v. Jeff. County Bd. of Educ., et al.

deliberately segregated. The fact that there is 
a racial imbalance per se is not something 
which is unconstitutional. That is why we 
have attempted to clarify it with the lan­
guage of Section 4.”  (Emphasis added.)

C. Section 601 states the general purpose of Titlr 
VI of the Act:

“ No person in the United States shall, on the 
ground of race, color, or national origin, be 
excluded from participation in, be denied the 
benefits of, or be subjected to discrimination 
under any program or activity receiving 
Federal financial assistance.”  (Emphasis 
added.)

This is a clear congressional statement that racial 
discrimination against the beneficiaries of federal as­
sistance is unlawful. Children attending schools which 
receive federal assistance are of course among the 
beneficiaries. In the House, Congressman Celler ex­
plained :

“ The legality is based on the general power 
of Congress to apply reasonable conditions. . .
IHn general, it seems rather anomalous that 
the Federal Government should aid and abet 
discrimination on the basis of race, color or 
national origin by granting money and other 
kinds of financial aid. It seems rather shock­
ing, moreover, that while we have on the one 
hand the 14th amendment, which is supposed 
to do away with discrimination since it pro­



17. S., et al. v. Jeff. County Bd. of Educ., et al. 83

vides for equal protection of the laws, on the 
other hand, we have the Federal Government 
aiding and abetting those who persist in 
practicing racial discrimination.”

In the Senate, Senator Javits, an assistant floor- 
manager, expressed concern as to the clarity of the 
statement of policy:

“ I ask, the Senator whether we now have a 
clear understanding that if title VI shall be 
enacted as it is now proposed, the express 
and clear policy of Congress against aiding 
discrimination will prevail . . . ”

Senator Humphrey answered:
‘ ‘Some Federal agencies appear to have been 
reluctant to act in this area. Title VI will re­
quire them to act. Its enactment will thus 
serve to insure uniformity and permanence 
to the nondiscrimination policy.”

D. Section 604 of the Act, 42 U.S.C. § 2000d—3 is 
the section the defendants principally rely upon and 
the section most misunderstood.97 It provides:

‘ ‘Nothing contained in this title shall be con­
strued to authorize action under this title by 
any department or agency with respect to 
any employment practice of any employer 
employment agency, or labor organization ex-

87 See Hearings Before the Committee on Rules, House of Repre­
sentatives, 89 Cong. 2nd Sess., on H. Rep., 826, Sept. 29-30, 1966, 
24-26, 37-40.



84 17. S., et al. v. Jeff. County Bd. of Educ., et al.

cept where a primary objective of the Fed­
eral financial assistance is to provide em­
ployment.”  (Emphasis added.)

The defendants contend that this section bars any ac­
tion requiring desegregation of faculties and school 
personnel.

Section 604 was not a part of the original House 
bill. Senator Humphrey, while introducing the Act 
explained: “ [The] Commissioner might also be 
justified in requiring elimination of racial discrimina­
tion in employment or assignment of teachers, at 
least where such discrimination affected the educa­
tional opportunities of students. See Braxton v. Board 
of Public Instruction of Duval County, 5 Cir. 1964, 326 
F.2d 616.”  110 Cong.Rec. p. 6345. That was in March 
1964. In June 1964, in explaining the amendments, 
Senator Humphrey said, “ This provision is in line 
with the provisions of section 60298 and serves to spell 
out more precisely the declared scope of coverage 
of the title.”  In the same speech he stated (110 C.R. 
12714): “ We have made no changes of substance in 
Title VI.”  This explanation plainly indicates that the 
amendment was not intended as a statutory bar to 
faculty integration in schools receiving federal aid.

However, in the interval between these two expla­
nations the Attorney General, in response to a letter 
from Senator Cooper, stated that Section 602 would 
not apply to federally aided employers who discrim­
inated in employment practices: “ Title VI is limited 
. . . to discrimination against the beneficiaries of
98 See footnote 19.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 85

federal assistance programs. . . . Where, however, 
employees are the intended beneficiaries of a pro­
gram, Title VI would apply”.99 He gave as an ex­
ample accelerated public works programs. It was 
after the receipt of the Attorney General’s letter 
that the amended Senate bill was passed. The school 
boards argue therefore that Section 604 was enacted, 
because of the Attorney General’s interpretation, to 
exclude interference with employment practices of 
schools.

In its broadest application this argument would al­
low racial discrimination in the hiring, discharge, and 
assignment of teachers. In its narrowest application 
this argument would allow discrimination in hiring 
and discharging but not. in assigning teachers, an in­
explicable anomaly.100 There is no merit to this ar­
gument. Section 604 and the Attorney General’s let­
ter are not inconsistent, since under Section 601 it is 
the school children, not the teachers (employees), 
who are the primary beneficiaries of federal assist­
ance to public schools. Faculty integration is essen­
tial to student desegregation. To the extent that 
teacher discrimination jeopardizes the success of de­
segregation, it is unlawful wholly aside from its ef­
fect upon individual teachers.

After Section 601 was proposed, additional clarify­
ing language was suggested to make it clear that 
discrimination in certain employer-employee relation­
ships, not affecting the intended beneficiaries of the 
program, would be excluded from the reach of the
99 BNA Operations Manual, The Civil Rights Act of 1964, p. 359.
100 See Note, Desegregation of Public School Activities, 51 Iowa 
L. Rev. 681, 690-96 (1966).



86 U. S., et al. v. Jeff. County Bd. of Educ., et al.

statute. See Hearings, H.R. Comm, on Rules, H. R. 
7152, 88th Cong., 2d Sess. (1964), pp. 94, 226; 110 
C.R. 6544-46 (Senator Humphrey). For example, there 
was a serious question as to whether the bill would 
forbid a farmer who was receiving benefits under 
the Agricultural Adjustment Act from discriminat­
ing upon the basis of race in the seleption of his em­
ployees. Hearings, H.R. Comm, on Rules, H. R. 
7152, 88 Cong., 2d Sess., 1964, p. 94, 110 C.R. 6545 
(Senator Humphrey). The addition of Section 604 to 
the bill as originally proposed clearly excluded the 
application of the Act to this type of situation. Con­
gress did not, of course, intend to provide a forum 
for the relief of individual teachers who might be 
discriminatorily discharged; Congress was interested 
in a general requirement essential to success of the 
program as a whole.101

Collaterally to their argument on Section 604, the 
defendants cite Section 701(b) of Title "VII, covering 
Equal Employment Opportunities, which specifically 
excepts a “ state or political subdivision thereof” . This 
section has no application to schools. Section 701(b), 
defines “ employer”  as “ a person engaged in an in­
dustry affecting commerce who has twenty-five or 
more employees. . . . ”

101 Senator Humphrey explained: The “elimination of racial dis-
cnmmation in employment or assignment of teachers . . . does 
not mean that Title VI would authorize a federal official to pre­
scribe [particular] pupil assignments, or to select a [particular] 
faculty as opponents of the bill have suggested. The only au- 
thonty conferred would be authority to adopt, with the approval 
of the President, a general requirement that the local school au- 
thority refrain from racial discrimination in treatment of pupils 
and teachers . . . ” 110 Cong. Rec. 6545.



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 87

Section 604 was never intended as a limitation on 
desegregation of schools. If the defendants’ view of 
Section 604 were correct the purposes of the statute 
would be frustrated, for one of the keys to desegre­
gation is integration of faculty. As long as a school 
has a Negro faculty it will always have a Negro 
student body. As the District Court for the Western 
District of Virginia put it in Brown v. County School 
Board of Frederick County, 1965, 245 F. Supp. 549, 
560:

“ [T]he presence of all Negro teachers in a 
school attended solely by Negro pupils in the 
past denotes that school a ‘colored school’ just 
as certainly as if the words were printed 
across its entrance in six-inch letters.”

As far as possible federal courts must carry out 
congressional policy. But we must not overlook the 
fact that “ we deal here with constitutional rights and 
not with those established by statute”.102 The right of 
Negro students to be free from racial discrimination 
in the form of a segregated faculty is part of their 
broader right to equal educational opportunities. The 
‘ ‘mandate of Brown . . . forbids the [discrimina­
tory] consideration of race in faculty selection just 
as it forbids it in pupil placement.”  Chambers v. 
Hendersonville City Board of Education. 4 Cir. 1966, 
364 F.2d 189.

In Brown II the Supreme Court specifically referred 
to the reallocation of staff as one of the reasons per­
mitting desegregation ‘ ‘with all deliberate speed” .
102 Smith v. Board of Education of Morrilton, 8 Cir. 1966, 365 
F.2d 770, 784.



88 U. S., et al. v. Jeff. County Bd. of Educ., et al.

“ In determining the additional time necessary . . . 
courts may consider problems related to administra­
tion, arising from . . . personnel. . . .”  (Emphasis 
added.) 349 U.S. at 301. For ten years, however, this 
Court and other circuit courts103 had approved district 
courts’ postponing hearings on faculty desegregation. 
Bradley v. School Board of the City of Richmond, 
1965, 382 U. S. 103, £6 S.Ct. 224, 15 L.Ed.2d 187 put an 
end to this practice. In Bradley the Supreme 
Court held that faculty segregation had a direct 
impact on desegregation plans. The court summari­
ly remanded the case to the district court holding that 
it was improper for that court to approve a desegre­
gation plan without considering, at a full evidentiary 
hearing, the impact of faculty allocation on a racial 
basis. The Court said, “ [There is] no merit to 
the suggestion that relation between faculty alloca­
tion on an alleged racial basis and the adequacy 
of the desegregation plans are entirely speculative.”  
Moreover, “ Delays in desegregation of school 
systems are no longer tolerable.”  382 U.S. at 
105. In Rogers v. Paul, 1965, 382 U.S. 198, 200, 86 S.Ct. 
358, 15 L.Ed.2d 265, the Supreme Court held that Ne­
gro students in grades not yet desegregated were en­
titled to an immediate transfer to a white high school. 
They “ plainly had standing”  to sue on two theories:
(1) “ that racial allocation of faculty denies them 
equality of educational opportunity without regard to 
segregation of pupils, and (2) that it renders 'inade­
quate an otherwise constitutional pupil desegregation
108 For example, Lockett v. Board of Education of Muscogee 
County, 5 Cir. 1965, 345 F.2d 225, 229; Calhoun v. Latimer, 5 Cir. 
1963, 321 F.2d 302, 307; Bradley v. School Board of the City of 
Richmond, 4 Cir. 1965, 345 F.2d ‘310, 320.



17. S., et al. v. Jeff. County Bd. of Educ., et al. 89

plan soon to be applied to their grades.”  In Singleton 
II this Court, relying on Bradley, held that it was “ es­
sential”  for the Jackson schools to make an “ ade­
quate start toward elimination of race as a basis for 
the employment and allocation of teachers, adminis­
trators and other personnel.”  355 F.2d at 870.

In a recent decision of the Eighth Circuit, Clark v. 
Board of Education of Little Rock School District, 
No. 18,368, December 15, 1966, the Court required a 
“ positive program aimed at ending in the near future 
the segregation of the teaching and operating staff” . 
The Court stated: “ We agree that faculty segrega­
tion encourages pupil segregation and is detrimental 
to achieving a constitutionally required non-racially 
operated school system. It is clear that the Board 
may not continue to operate a segregated teaching 
staff. . . .  It is also clear that the time for -delay is 
past. The desegregation of the teaching staff should 
have begun many years ago. At this point the Board 
is going to have to take accelerated and positive ac­
tion to end discriminatory practices in staff assign­
ment and recruitment.”

In Braxton v. Board of Public Instruction of Duval 
County, 1964, 326 F.2d 616, 620, cert, denied 377 U. S. 
924, the case cited by Senator Humphrey, this Court 
affirmed an order of the district court prohibiting as­
signment of “ teachers and other personnel . . .  on a 
racially segregated basis.”  In Smith v. Board of Edu­
cation of Morrilton, 8 Cir. 1966, 365 F.2d 770, 778, the 
Court said:



“ It is our firm conclusion that the reach of the 
Brown decisions, although they specifically 
concerned only pupil discrimination, clearly 
extends to the proscription of the employment 
and assignment of public school teachers on a 
racial basis. Cf. United Public Workers v. 
Mitchell, 330 U. S. 75, 100 (1947); Wieman v. 
Updegraff, 344 U. S. 183, 191-192 (1952). See 
Colorado Anti-Discrimination Comm’n v. 
Continental Air Lines, Inc., 372 U. S. 714, 721 
(1963). This is particularly evident from the 
Supreme Court’s positive indications that non- 
discriminatory allocation of faculty is indis­
pensable to the validity of a desegregation 
plan. Bradley v. School Board of the City of 
Richmond, supra; Rogers v. Paul, supra.
This court has already said, ‘Such discrimina­
tion [failure to integrate the teaching staff] 
is proscribed by Brown and also the Civil 
Rights Act of 1964 and the regulations promul­
gated thereunder’ . Kemp v. Beasley, supra, p.
22 of 352 F.2d.”

In Wheeler v. Durham City Board of Education, 4 
Cir. 1966, 363 F.2d 738, 740 the Court stated: “ We read 
[Bradley] as authority for the proposition that re­
moval of race considerations from faculty selection 
and allocation is, as a matter of law, an inseparable 
and indispensable command within the abolition of 
pupil segregation in public schools as pronounced in 
Brown v. Board of Education, 347 U.S. 483. Hence no 
proof of the relationship of faculty allocation and 
pupil assignment was required here. The only factual

90 U. S,, et al. v. Jeff. County Bd. of Educ., et al.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 91

issue is whether race was a factor entering into the 
employment and placement of teachers.”  In Wright 
v. County School Board of Greensville County, E.D. 
Va. 1966, 252 F. Supp. 378, 384, holding that a faculty 
desegregation provision approved by the Commis­
sioner of Education was not sufficient, the court said:

“ The primary responsibility for the selection 
of means to achieve employment and assign­
ment of staff on a nonracial basis rests with 
the school board. . . . Several principles must 
be observed by the board. Token assignments 
will not suffice. The elimination of a racial 
basis for the employment and assignment of 
staff must be achieved at the earliest practi­
cable date. The plan must contain well defined 
procedures which will be put into effect on 
definite dates. The board will be allowed 
ninety days to submit amendments to its plan 
dealing with staff employment and assign­
ment practices.”

In Kier v. County School Board of Augusta County, 
W.D. Va. 1966, 249 F. Supp. 239, 247, the court held 
that free choice plans require faculty integration:

“ Freedom of choice, in other words, does not 
mean a choice between a clearly delineated 
‘Negro school’ (having an all-Negro faculty 
and staff) and a ‘white school’ (with all-white 
faculty and staff). School authorities who 
have heretofore operated dual school systems 
for Negroes and whites must assume the duty 
of eliminating the effects of dualism before a



92 17. S., et al. v. Jeff. County Bd. of Educ., et al.

freedom of choice plan can be superimposed 
upon the pre-existing situation and approved 
as a final plan of desegregation. It is not 
enough to open the previously all-white 
schools to Negro students who desire to go 
there while all-Negro schools continue to be 
maintained as such. . . . The duty rests with 
the School Board to overcome the discrimina­
tion of the past, and the long-established image 
of the ‘Negro school’ can be overcome under 
freedom of choice only by the presence of an 
integrated faculty.”

See also Dowell v. School Board of Oklahoma City 
Public Schools, W.D. Okla. 1965, 244 F.Supp. 971, 977, 
and Franklin v. County School Board of Giles County, 
4 Cir. 1966, 360 F.2d 325.

We cannot impute to Congress an intention to re­
pudiate Senator Humphrey’s explanation of Section 
604 and to change the substance of Title VI, tearing 
the vitals from the statutory objective. Integration of 
faculty is indispensable to the success of deseg­
regation plan. Nor can we impute to Congress the 
intention to license, unconstitutionally, discrimination 
in the employment and assignment of teachers, a 
conspicuous badge of de jure segregated schools.104
104 Chambers v. Hendersonville City Board of Education 4 
Cir. 1966, 364 F.2d 189, 192, involved the problem of surplus Negro 
teachers who lost their jobs when an all Negro school was 
abolished. The School Board treated them as new applicants. 
The court held that this was discriminatory. Speaking for the 
majority, Judge Bell said: “First, the mandate of Brown v
Board of Education, 347 U.S. 483 (1954), forbids the considera­
tion of race in faculty selection just as it forbids it in pupil place­
ment. See Wheeler v. Durham City Board of Education, 346 F.2d 
768, 773 (4 Cir. 1965). Thus the reduction in the number of



U. S., et al. v. Jeff. County Bd. of Educ., et al. 93

E. As we construe the Act and its legislative his­
tory, especially the sponsors’ reliance on Bell, Con­
gress, because of its hands-off attitude on bona fide 
neighborhood school systems, qualified its broad pol­
icy of nondiscrimination by precluding HEW’s re­
quiring the bussing of children across district lines or 
requiring compulsory placement of children in schools 
to strike a balance when the imbalance results from 
de facto, that is, non-racially motivated segregation. 
As Congressman Cramer said, “ De facto segregation 
is racial imbalance’ ’ . But there is nothing in the lan­
guage of the Act or in the legislative history that 
equates corrective acts to desegregate or to integrate 
a dual school system initially based on de jure segre­
gation with acts to bring about a racial balance in a 
system based on bona fide neighborhood schools.

Congress recognized that HEW’s requirements for 
qualifying for financial assistance are one thing and 
the courts’ constitutional and judicial responsibili­
ties are something else again. The Act states, there­
fore, that it did not enlarge the courts’ existing pow­
ers to ensure compliance with constitutional stand­
ards. But neither did it reduce the courts’ power.

V.
The HEW Guidelines agree with decisions of this 

circuit and of the similarly situated Fourth and
Negro pupils did not justify a corresponding reduction in the 
number of Negro teachers. Franklin v. County Board of Giles 
County, 360 F.2d 325 (4 Cir. 1966). Second, the Negro school 
teachers were public employees who could not he discriminated 
against on account of their race with respect to their retention 
in the system. Johnson v. Branch, 364 F.2d 177, (4 Cir. 1966)



94 U. S., et al. v. Jeff. County Bd. of Educ., et al.

Eighth Circuits. And they stay within the Congres­
sional mandate. There is no cross-district or cross­
town bussing requirement. There is no provision re­
quiring school authorities to place white children in 
Negro schools or Negro children in white schools for 
the purpose of striking a racial balance in a school or 
school district proportionate to the racial population 
of the community or school district.105 The provision re­
ferring to percentages is a general rule of thumb or 
objective administrative guide for measuring prog­
ress in desegregation rather than a firm require­
ment that must be met.106 * 108 See footnotes 105 and 106.
105 The present Commissioner of Education, Harold Howe II, in 
a congressional hearing declared:

“The guidelines do not mention and do not require 
‘racial balance’ or the correction of racial ‘imbalance.’ Nor 
have we in the administration of our obligations under Title 
VI sought to establish ‘racial balance.’ They deal only with 
desegregation plans designed to eliminate the dual school 
systems for whites and Negroes, systems being operated 
in violation of the 1954 Supreme Court ruling. . . . Racial 
imbalance certainly means the notion of trying to establish 
some proportion of youngsters that must be in each and every 
school. We are not about such an enterprise. W e are try­
ing to give the effect of free choices to enter into, or to allow 
free choices in having pupils enter into whatever school they 
may wish to attend. I do not believe that free choice plans 
were ever intended by the courts or by us to be an arrange­
ment whereby the dual school system could continue with­
out support of law. But rather an arrangement by which 
over a period of time we would gradually have one school 
system rather than two separate school systems. I do not 
see that we are engaged in any way in establishing procedures 
for balance.” Hearings before the Committee on Rules, 
House of Representatives, 89th Cong. 2nd Sess., on H. Res. 
26, Sept. 29-30, 1966, p. 32-34.

See also footnote 106.
108 In a letter addressed to Members of Congress and Governors, 
dated April 9, 1966, and given wide publicity in the press, John 
W. Gardner, Secretary of Health, Education and Welfare ex­
plained the purpose of the percentages:

“The second area of conoern involves the percentages men­
tioned in the guidelines. Some have contended that this por­
tion of the guidelines imposes a formula of ‘racial balance.’



17. S., et al. v. Jeff. County Bd. of Educ., et al. 95

Good faith in compliance should be measured by per­
formance, not promises.

In reviewing the effectiveness of an approved plan 
it seems reasonable to use some sort of yardstick or 
objective percentage guide. The percentage require­
ments in the Guidelines are modest, suggesting only 
that systems using free choice plans for at least two 
years should expect 15 to 18 per cent of the pupil popu­
lation to have selected desegregated schools. This 
Court has frequently relied on percentages in jury ex-

This contention misconceives the purpose of the percentages. 
The prevailing method of desegregation is what is called 
the ‘free choice’ plan. Under such a plan, students select 
their schools instead of being assigned to them on a geo­
graphic basis. Courts have expressly conditioned their ap­
proval of such plans on affirmative action by school boards 
to insure that ‘free choice’ actually exists. It is our re­
sponsibility to review such plans to insure that the choice 
is, in fact, free and to indicate to school districts what pro­
cedures should be used to assure true freedom of choice.

In seeking appropriate criteria to guide us in review of 
free choice plans, we have adopted the objective criteria ap­
plied by the courts in similar situations. One such criterion Is 
the distribution of students by race in the various schools of a 
system after the students have made their choices. If sub­
stantial numbers of Negro children choose and go to pre­
viously all-white schools, the choice system is clearly operat­
ing freely. If few or none choose to do so in a community 
where there has been a pattern of segregation, then it is ap­
propriate that the free choice plan be reviewed and other 
factors considered to determine whether the system is 
operating freely.

With more than 2000 separate districts to consider, such 
percentages are thus an administrative guide which helps 
us to determine those districts requiring further review. 
Such review in turn will determine whether or not the free­
dom of choice plan is in fact working fairly.” New York 
Times, April 12, 1966, page 1.

Printed in Hearings before the Committee on Rules, House of 
Representatives, 89 Cong. 2nd Sess., on H. Res. 826, Sept. 29-30, 
1966, p. 31. Commissioner Howe reaffirmed Secretary Gardner’s 
policies as stated in the letter. See Hearings on H. Res. 826, 
p. 30-33.



96 17. S., et al. v. Jeff. County Bd. of Educ., et al.

elusion cases. Where the percentage of Negroes on the 
jury and jury venires is disproportionately low com­
pared with the Negro population of a county, a prima 
facie case is made for deliberate discrimination 
against Negroes.* 10 * 107 Percentages have been used in other 
civil rights cases.108 A similar inference may be drawn 
in school desegregation cases, when the number of 
Negroes attending school with white children is man­
ifestly out of line with the ratio of Negro school chil­
dren to white school children in public schools. Com­
mon sense suggests that a gross discrepancy between 
the ratio of Negroes to white children in a school and 
the HEW percentage guides raises an inference that 
the school plan is not working as it should in pro­
viding a unitary, integrated system. Thus Evans v. 
Buchanan, D.C. Del. 1962, 207 F. Supp. 820109 held that 
this natural inference coupled with the board’s pos­
sessing the probative facts that might rebut the in­
ference created a presumption that the proposed de­
segregation plan was unconstitutional.
iot “Very decided variations in proportions of Negroes and whites 
on jury lists from racial proportions in the population, which 
variations are not explained and are long continued, furnish evi­
dence of systematic exclusion of Negroes from jury service.” 
United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, 67.
10S In United States v. Ward, supra at 803, the Court compared
the number of Negroes registered with the number of Negroes
eligible to vote. A  similar practice is used in proving systematic 
exclusion of Negroes from juries. Cassell v. Texas, i950, 339 
U.S. 282: Avery v. Georgia. 1953. 345 U.S. 559; Smith v. Texas, 
1940, 311 U.S. 128. In each instance, percentage tests have been 
used not as an effort to effect racial balance, but as a means
of determining whether a challenged procedure is operating in a 
way that violates constitutional rights. See Finkelstein, The Ap­
plication of Statistical Decision Theory to the Jury Discrimination 
Cases, 80 Harv. L Rev. 338 (1966).
109 See footnote 58.



TJ. S., et al. V.  Jeff. County Bd. of Educ., et al. 97

The Guidelines were adopted for the entire country. 
However, they have been formulated in a context 
sympathetic with local problems. Sections 403-405 of 
the 1964 Civil Rights Act provide that, upon request, 
the Commissioner of Education may render technical 
assistance to public school systems engaged in de­
segregation. The Commissioner may also establish 
training institutes to counsel school personnel having 
educational problems occasioned by desegregation; 
and the Commissioner may make grants to school 
boards to defray the costs of providing in-service 
training on desegregation. In short, the Commissioner 
may assist those school boards who allege that they 
will have difficulty complying with the guidelines. 
When desegregation plans do. not meet minimum 
standards, the school authorities should ask HEW for 
assistance. And district courts should invite HEW to 
assist by giving advice on raising the levels of the 
plans and by helping to coordinate a school’s promises 
with the school’s performance. In view of the com­
petent assistance HEW may furnish schools, there is 
a heavy burden on proponents of the argument that 
their schools cannot meet HEW standards.

VI.

School authorities in this circuit, with few ex­
ceptions, have turned to the “ freedom of choice” 
method for desegregating public schools. The method 
has serious shortcomings. Indeed, the “ slow pace of 
integration in the Southern and border States is in 
large measure attributable to the manner in which



98 U. S., et al. v. Jeff. County Bd. of Educ., et al.

free choice plans . . . have operated.”110 When such 
plans leave school officials with a broad area of un­
controlled discretion, this method of desegregation is 
better suited than any other to preserve the essen­
tials of the dual school system while giving paper 
compliance with the duty to desegregate.

A free choice plan does not abandon geographical 
criteria, but requires rto rigid adherence to attendance 
zones. Theoretically every child may choose his 
school, but its effectiveness depends on the avail­
ability of open places in balanced schools. Moreover, 
unless there is some provision to prevent white chil­
dren transferring out of an imbalanced school this 
plan will promote resegregation.111
110 Rep. U. S. Comm, on Civil Rights, Survey of School Desegre­
gation in the Southern and Border States— 1965-66, p. 51. “Free­
dom of choice plans accepted by the Office of Education have 
not disestablished the dual and racially segregated school systems 
involved, for the following reasons: a. Negro and white schools
have tended to retain their racial identity; b. White students 
rarely elect to attend Negro schools; c. Some Negro students 
are reluctant to sever normal school ties, made stronger by the 
racial identification of their schools; d. Many Negro children 
and parents in Southern States, having lived for decades in posi­
tions of subservience, are reluctant to assert their rights; e. Negro 
children and parents in Southern States frequently will not choose 
a formerly all-white school because they fear retaliation and 
hostility from the white community; f. In some school districts 
in the South, school officials have failed to prevent or punish 
harassment by white children of Negro children who have elected 
to attend white schools; g. In some areas in the South where 
Negroes have elected to attend formerly all-white schools, the 
Negro community has been subjected to retaliatory violence, evic­
tions, loss of jobs, and other forms of intimidation.” Ibid.
111 See Goss v. Board of Education, 1963, 373 U.S. 683, 83 S.Ct. 
1405, 10 L.Ed.2d 632; Dillard v. School Board of the City of 
Charlottesville, 4 Cir. 1962, 308 F.2d 920, cert, den’d 374 U.S. 
827 (1963); Jackson v. School Board of the City of Lynchburg, 
4 Cir. 1963, 321 F.2d 230. For discussion of limitations to 
a free choice plan, see Fiss, Racial Imbalance in the Public 
Schools, 78 Harv. L. Rev. 563, 572 (1965).



U. S., et al. v. Jeff. County Bd. of Educ., et al. 99

“ Under freedom of choice plans, schools tend to re­
tain their racial identification.”112 Such plans require
affirmative action by parents and pupils to disestab­
lish the existing system of public schools. In this cir­
cuit white students rarely choose to attend schools 
identified as Negro schools. Negro students who 
choose white schools are, as we know from many 
cases,.only Negroes of exceptional initiative and forti­
tude. New construction and improvements to the Ne­
gro school plant attract no white students and dimin­
ish Negro motivation to ask for transfer. Neverthe­
less, the Eighth Circuit has approved freedom of 
choice plans “ as a permissible method at this stage” , 
although recognizing that such a plan “ is still only in 
the experimental stage and it has not yet been dem­
onstrated that such a method will fully implement the 
decision of Brown and subsequent cases and the legis­
lative declaration of §2000(d) of the Civil Rights Act 
of 1964.”113 We have said: “At this stage in the history 
of desegregation in the deep South a ‘freedom of 
choice plan’ is an acceptable method for a school 
board to use in fulfilling its duty to integrate the 
school system. In the long run, it is hardly possible 
that schools will be administered on any such hap­
hazard basis” . Singleton II, 355 F.2d at 71. HEW
112 Rep. U. S. Comm, on Civ. Rights, Survey of Desegregation in 
the Southern and Border States, 1965-66. p. 33. The Commission 
also notes that racial identification of schools as Negro schools is 
strengthened by: (1) normal school ties; (2) the interest Negro 
administrators and teachers have in maintaining the dual system 
(from May 1965 to September 1965, 668 Negro teachers became 
surplus because of desegregation); (3) some Negro educators are 
opposed to desegregation, because past economic and cultural 
deprivation makes Negroes ill prepared to compete with white 
children in schools.
113 Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 21.



100 17. S., et al. v. Jeff. County Bd. of E d u ce t dl.

recognizes freedom of choice as a permissible means 
of desegregation. See Revised Guidelines, Subpart B, 
181.11, and all of Subpart D.

Courts should closely scrutinize all such plans. 
Freedom of choice plans “ may . . .  be invalid be­
cause the ‘freedom of choice’ is illusory. The plan 
must be tested not only by its provisions, but by the 
manner in which it operates to provide opportunities 
for a desegregated education.”  Wright v. County 
School Board of Greenville County, E.D.Va. 1966, 252 
F.Supp. 378, 383. In that case the court was concerned 
that “ operation under the plan may show that the 
transportation policy or the capacity of the schools 
severely limits freedom of choice, although provisions 
concerning these phases are valid on their face” . In 
Lockett v. Board of Education of Muskogee County, 
Ga., 5 Cir. 1965, 342 F.2d 225, we were concerned that 
“ proper notice”  be given so that “ Negro students are 
afforded a reasonable and conscious opportunity to 
apply for admission to any school which they are 
otherwise eligible to attend without regard to race” . 
Also, as Judge Bell, for the Court, pointed out, “ a 
necessary part of the plan is a provision that the dual 
or biracial school attendance system . . .  be abol­
ished.”  See also Dowell v. School Board of Oklahoma 
City Public Schools, W.D.Okla. 1965, 244 F. Supp. 971; 
Bell v. School Board of City of Staunton, W.D.Va. 
1966, 249 F.Supp. 249; Kier v. County School Board of 
Augusta County, W.D. Va. 1966, 249 F.Supp. 239.

There is much that school authorities should do to 
meet their responsibilities:



U. S  ̂ et al. v. Jeff. County Bd. of Educ., et al. 101

“ [Brown] called for responsible public of­
ficials to reappraise their thinking and poli­
cies, and to make every effort to afford Ne­
groes the more meaningful equality guaran­
teed them by the Constitution. The Brown de­
cision, in short, was a lesson in democracy, 
directed to the public at large and more 
particularly to those responsible for the opera­
tion of the schools. It imposed a legal and 
moral obligation upon officials who had creat­
ed or maintained segregated schools to undo 
the damage which they had fostered.” Taylor 
v. Board of Education of the City of New Ro­
chelle, S.D.N.Y. 1961, 191 F. Supp. 181, 187, 
aff’d 294 F.2d 36, cert, den’d 368 U.S. 940 
(1961).

School officials should consult with Negro and white 
school authorities before plans are put in final, form. 
They should see that notices of plans and procedures 
are clear and timely. They should avoid the discrim­
inatory use of tests and the use of birth and health 
certificates to make transfers difficult. They should 
eliminate inconvenient or burdensome arrangements 
for transfer, such as requiring the personal appear­
ance of parents, notarized forms, signatures of both 
parents, or making forms available at inconvenient 
times to working people. They should employ 
forms which do not designate the name of a Negro 
school as the choice or contain a “ waiver”  of the 
“ right”  to attend white schools. Certainly school of­
ficials should not discourage Negro children from en­



102 U. S., et al. v. Jejf. County Bd. of Educ., et al.

rolling in white schools, directly or indirectly, as for 
example, by advising them that they would not be 
permitted to engage or would not want to engage in 
school activities, athletics, the band, clubs, school 
plays. If transportation is provided for white children, 
the schedules should be re-routed to provide for Ne­
gro children. Overcrowding should not be used as an 
excuse to avoid transfers of Negro children. In 
Bradley v. School Board of the City of Richmond, 4 
Cir. 1965, 345 F.2d 310, 323, Judges Sobeloff and Bell, 
concurring, said:

“ A plan of desegregation is more than a 
matter of words. The attitude and purpose of 
public officials, school administrators and fac­
ulties are an integral part of any plan and 
determine its effectiveness more than the 
words employed. If these public agents trans­
late their duty into affirmative and sympa­
thetic action the plan will work; if their spirit 
is obstructive, or at best negative, little prog­
ress will be made, no matter what form of 
words may be used.”

Freedom of choice means the maximum amount of 
freedom and clearly understood choice in a bona fide 
unitary system where schools are not white schools 
or Negro schools—just schools.

We turn now to a discussion of the specific ele­
ments of a freedom of choice plan that make it more 
than a mere word of promise to the ear.



U. S., et al. v. Jeff. County Bd. of Educ., et.al. 103

A. Speed of Desegregation. The announced speed 
of desegregation no longer seems to be a critical is­
sue. The school boards generally concede that by the 
school year 1967-68 all grades should be desegregated.

B. Mandatory Annual Free Choice. Underlying and 
tending to counteract the effectiveness of all the free­
dom of choice plans before the Court is the initial un­
constitutional assignment of all students by race. 
When the freedom of choice plan is “ permissive”  or 
“ voluntary” the effect is to superimpose the same old 
transfer plan on racial assignments and dual zones. 
We hold that any freedom of choice plan is inadequate 
if based upon a preliminary system of assignment by 
race or dual geographic zones. See Singleton II and 
Lockett v. Board of Education of Muscogee County, 
Ga., 5 Cir. 1965, 342 F.2d 225, restating the require­
ment of Stell v. Savannah-Chatham County Board of 
Education, 5 Cir. 1964, 333 F.2d 55 and Gaines v. 
Dougherty County Board of Education, 5 Cir. 1964, 
334 F.2d 983. It is essential that dual or biracial school 
attendance systems be abolished contemporaneously 
with the application of a plan to the respective grades 
reached by it.

In place of permissive freedom of choice there must 
be a mandatory annual free choice of schools by all 
students, both white and Negro. “ If a child or his 
parent is to be given a meaningful choice, this choice 
must be afforded annually.”  Kemp v. Beasley, 8 Cir. 
1965, 352 F.2d 14, 22. The initial choice of assignment, 
within space limitations, should be made by a parent 
or by a child over fifteen without regard to race. This



104 17. S., et al. v. Jeff. County Bd. of Educ., et al.

mandatory free choice system would govern even the 
initial assignment of students to the first grade and to 
kindergarten. At the minimum, a freedom of choice 
plan should provide that: (1) all students in desegre­
gated grades shall have an opportunity to exercise a 
choice of schools. Bradley v. School Board of the City 
of Richmond, 4 Cir. 1965, 345 F.2d 310, vacated and re­
manded, 1965, 382 U.S. 103; (2) where the number of 
applicants applying to a school exceeds available 
space, preferences will be determined by a uniform 
non-racial standard, Stell v. Savannah-Chatham Coun­
ty Board of Education, 5 Cir. 1964, 333 F.2d 55, 65; and 
(3) when a student fails to exercise his choice, he will 
be assigned to a school under a uniform non-racial 
standard, Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 
22.

C. Notice. The notice provisions of the HEW 
Guidelines are reasonable and should be followed. 
Where public notice by publication in a newspaper 
will assure adequate notice, individual notice will not 
be necessary. Individual notice should be required if 
notice by publication is likely to be inadequate.

D. Transfers for Students in Non-desegregated 
Grades and with Special Needs. In Singleton II we 
held that children in still-segregated grades in Negro 
schools “ have an absolute right, as individuals, to 
transfer to schools from which they were excluded 
because of their race.”11* 355 F.2d at 869. See also
114 This was not new. In 1957 a district court in Maryland held 
that stair step plans do not justify excluding a qualified indi­
vidual, notwithstanding a more gradual schedule applicable to the



U. S., et al. V. Jeff. County BcL. of Educ., et al. 105

Rogers v. Paul, 1965, 382 U. S. 198, 15 L.Ed.2d 265. A 
transfer provision should be included in the plan. The 
right to transfer under a state Pupil Placement Law 
should be regarded as an additional right that takes 
into consideration criteria irrelevant to the absolute 
right referred to in Rogers v. Paul.

E. Services, Facilities, Activities, and Programs. 
In Singleton II we held that there should be no segre­
gation or discrimination in services, facilities, ac­
tivities, and programs that may be conducted or 
sponsored by, or affiliated with, the school in which a 
student is enrolled. We have in mind school athletics 
and inter-scholastic associations of course, but also 
parents-teachers associations. In order to eliminate 
any uncertainty on this point, we hold that the plan 
should contain a statement that there will be no such 
segregation or discrimination.

F. School Equalization. In recent years, as we are 
all well aware, Southern states have exerted great ef­
fort to improve Negro school plants. There are how­
ever many old and inferior schools readily identifiable 
as Negro schools; there are also many superior white 
schools, in terms of the quality of instruction. A free­
dom of choice plan will be ineffective if the students 
cannot choose among schools that are substantially 
equal. A school plan therefore should provide for
school population generally. Moore v. Board of Education of 
Harford County, D.Md. 1957, 146 F. Supp. 91 and 152 F.Supp. 114, 
aff’d sub.nom. Slade v. Board of Education, 4 Cir. 1958, 252 F.2d 
191, cert, den’d 357 U.S. 906 (1958). This Court approved such 
an order in Augustus v. Board of Education, 5 Cir. 1962, 306 
F.2d 863.



106 U. S., et al. v. Jeff. County Bd. of Educ., et al.

closing inferior schools and should also include a pro­
vision for remedial programs to overcome past in­
adequacies of all-Negro schools. This will, of course, 
require the local school authorities and the trial courts 
to examine carefully local situations and perhaps 
seek advice from qualified, unbiased authorities in the 
field.

G. Scheduled Compliance Reports. Scheduled com­
pliance reports to the court on the progress of free­
dom of choice plans are a necessity and of benefit to 
all the parties. These should be required following the 
choice period and again after the opening of school. 
None of the school boards expressly objected to this 
provision, or one similar to it, and it does not appear 
onerous.

H. Desegregation of Faculty and Staff. The most 
difficult problem in the desegregation process is the 
integration of faculties. See Section IV D of this 
opinion. A recent survey shows that until the 1966-67 
session not a single Negro teacher in Alabama, 
Louisiana, or Mississippi has been assigned to a 
school where there are white teachers.115 As evidenced 
in numerous records, this long continued policy has 
resulted in inferior Negro teaching and in inferior 
education of Negroes as a class. Everyone agrees, on 
principle, that the selection and assignment of teach­
ers on merit should not be sacrificed just for the sake 
of integrating faculties; teaching is an art. Yet until
115 See footnote 35. However, the press has carried accounts 
that progress is being made toward “desegregation of teachers, 
administrators and other personnel” for 1967-68 in Jackson, Mis­
sissippi. See Jackson Clarion Ledger, July 30, 1966, page 1.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 107

school authorities recognize and carry out their af­
firmative duty to integrate faculties as well as facil­
ities, there is not the slightest possibility of their ever 
establishing an operative non-discriminatory school 
system.116 The transfer of a few Negro children to a 
white school does not do away with the dual system. 
A Negro faculty makes a Negro school; the Negro 
school continues to offer inferior educational oppor­
tunities; and the school system continues its psy­
chological harm to Negroes as a class by not putting 
them on an equal level with white children as a class.117 
To prevent such harm or to undo the harm, or to pre­
vent resegregation, the school authorities, even in the 
administration of an otherwise rational, nondiscrim- 
inatory policy, should take corrective action involving 
racial criteria. As we pointed out (see Section III C), 
in fashioning an appropriate remedy tending to undo 
past discrimination this Court has often taken race in­
to account.

In the past year, district courts have struggled with 
the problem of framing effective orders for the de­
segregation of faculty. (1) Some courts have focused 
upon the specific results to be reached by reassign­
116 “Faculty desegregation is a necessary precondition of an ac­
ceptable free choice plan. A  free choice plan cannot disestablish 
the dual school system where faculties remain segregated on the 
basis of the race of the teachers or the pupils. In such cir­
cumstances a school inevitably will remain identified as “white” 
and “Negro” depending on the color of the teachers.” Rep., U.S. 
Comm, on Civil Rights, Survey of Desegregation in the Southern 
and Border States— 1965-66, p. 57.
117 Faculties should be desegregated so that “both white and 
Negro students would feel that their color was represented upon 
an equal level and that their people were sharing the responsibility 
of high-level teaching”. Dowell v. School Board of Oklahoma City 
Public Schools, W.D. Okla. 1965, 219 P. Supp. 427.



108 17. S., et al. v. Jeff. County Bd. of Educ., et al.

ment of teachers previously assigned solely upon the 
basis of their race. Dowell v. School Board of Okla­
homa City Public Schools, W.D.Okla. 1965, 244 F. 
Supp. 971, Kier v. County School Board of Augusta 
County, W.D.Va. 1966, 249 F. Supp. 239.118 The orders 
entered in these cases require the defendant school 
boards to assign any newly employed teachers and re­
assign already-employed faculty so that the proportion 
of each race assigned to teach in each school will be 
the same as the proportion of teachers of that race in 
the total teaching staff in the system, or at least, 
of the particular school level in which they are em­
ployed. (2) Other courts have not been specific as to 
the number of teachers of each race that should be as­
signed to each school in order to remove the effects of 
past discriminatory assignments. These courts have 
focused upon the mechanics to be followed in remov­
ing the effect of past discrimination rather than upon 
the result as such. Thus, in Beckett v. School Board of 
the City of Norfolk, Civil Action No. 2214 (E.D.Va., 
1966); Gilliam v. School Board of the City of Hope- 
well, Civil Action No. 3554 (E.D.Va. 1966); and Brad­
ley v. School Board of the City of Richmond, Civil 
Action No. 3353 (E.D.Va. 1966), the courts approved 
consent decrees setting forth in detail the considera­
tions that would control the school administrators in 
filling faculty vacancies and in transferring already-
318 In Kier the Court said that duty to desegregrate faculty 
must be “immediately and squarely met” ; there can be no free­
dom of choice for faculties and administrative staffs by the 1966- 
67 school year. Insofar as possible, “ the percentage of Negro 
teachers in each school of the system should approximate the 
percentage of Negro teachers in the entire system for the 1965- 
66 season” . 249 F. Supp. at 22.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 109

employed faculty members in order to facilitate fac­
ulty integration. (3) In a third group of cases, the dis­
trict court, while emphasizing the necessity of affirm­
ative steps to undo the effects of past racial assign­
ments of faculty and while requiring some tangible 
results, has not been specific regarding the mechanics 
or the specific results to be achieved. See Harris v. 
Bullock County Board of Education, M.D Ala. 1966, 
253 F. Supp. 276; United States v. Lowndes Board of 
Education, Civil Action No. 2328-N (M.D.Ala. 1966); 
Carr v. Montgomery County Board of Education, 
M.D.Ala. 1966, 253 F. Supp. 306.

We agree with the Eighth Circuit’s statement: “ The 
lack of a definite program will only result in further 
delay of long overdue action. We are not content at 
this late date to approve a desegregation plan that 
contains only a statement of general good intention. 
We deem a positive commitment to a reasonable 
program aimed at ending segregation of the teaching 
staff to be necessary for the final approval of a con­
stitutionally adequate desegregation plan.”  Clark v. 
Board of Education of the Little Rock School Dis­
trict, No. 18,368, December 15, 1966 (unreported). 
In that case the Court did not impose “ a set time 
with fixed mathematical requirements” . However the 
Court was firm in its position: “ First, as the Board 
has already positively pledged, future employment, 
assignment, transfer, and discharge of teachers must 
be free from racial consideration. Two, should the 
desegregation process cause the closing of schools 
employing individuals predominately of one race, the



110 17. S., et al. v. Jeff. County Bd. of Educ:, et al.

displaced personnel should, at the very minimum, be 
absorbed into vacancies appearing in the system. 
Smith v. Board of Education of Morrilton, supra. 
Third, whenever possible, requests of individual staff 
members to transfer into minority situations should 
be honored by the Board. Finally, we believe the 
Board should make all additional positive commit­
ments necessary to bring about some measure of 
racial balance in the staffs of the individual schools in 
the very near future. The age old distinction of ‘white 
schools' and ‘Negro schools’ must be erased. The 
continuation of such distinctions only perpetrates in­
equality of educational opportunity and places in jeop­
ardy the effective future operation of the entire 
‘freedom of choice’ type plan.”

In Singleton I we agreed with the original HEW 
Guidelines in requiring that an ‘ ‘adequate start”  to­
ward faculty desegregation should be made in 1966-67. 
The requirement that all grades be desegregated in 
1967-68 increases the need for substantial progress be­
yond an “ adequate start” . It is essential that school 
officials (1) cease practicing racial discrimination in 
the hiring and assignment of new faculty members 
and (2) take affirmative programmatic steps to cor­
rect existing effects of past racial assignment. If 
these two requirements are prescribed, the district 
court should be able to add specifics to meet the par­
ticular situation the case presents. The goal should be 
an equitable distribution of the better teachers.119
1,9 Rev. Theodore M. Hesburgh, President of Notre Dame and a 
member of the Civil Rights Commission, makes these suggestions- 
“A realistic and quite possible approach to this is, I think, 
through the immediate improvement of all teachers of each race’



U. S., et al. v. Jejf. County Bd. of Educ., et al. I'll

We anticipate that when district courts and this Court 
have gained more experience with faculty integration, 
the Court will be able to set forth standards more 
specifically than they are set forth in the decrees in 
the instant cases.

VII.

We attach a decree to be entered by the district 
courts in these cases consolidated on appeal. See Ap­
pendix A.

We have carefully examined each of the records in 
these cases. In each instance the record supports the 
decree. However, the provisions of the decree are 
intended, as far as possible, to apply uniformly 
throughout this circuit in cases involving plans based 
on free choice of schools. School boards, private 
plaintiffs, and the, United States may, of course, 
cOme into court to prove that exceptional circum-
beginning with those who most need assistance in being better 
qualified as teachers. If At this precise time of transition, why not 
institute along with the whole process of desegregation in the 
South a positive program of upgrading all teachers in the present 
systems? In fact, the best teachers of either race, worthy of their 
profession, should be put in the schools needing the most help to 
improve. One might even think of rotating teachers within the 
schools of a given district. There is already the existing pattern 
of academic year and summer institutes for just this purpose 
of improving teachers. . . . IT If this positive action could be 
moved along quickly, with good will from all concerned, school 
administrators, parents, and students, then we could eliminate the 
present cat-and-mouse game which is going on between the Fed­
eral Office of Education and the local Southern school districts. 
In fact, I have a feeling that the South could solve its problem 
long before the North, which has an educational desegregation 
problem which may be less amenable to solution because of en­
trenched patterns of housing segregation.” Rep., U. S. Comm, on 
Civil Rights, Survey of Desegregation in the Southern and Border 
States— 1965-66, p. 64.



112 U. S., et al. v. Jeff. County Bd. of Educ., et al.

stances compel modification of the decree. For ex­
ample, school systems in areas which let school out 
during planting and harvesting seasons may find that 
the period for exercise of choice of schools, March 
1-31, should be changed to a different month.

As Brown dictates, the decree places responsibility 
on the school authorities to take affirmative action 
to bring about a unitary, non-racial system. As the 
Constitution dictates, the proof of the pudding is in 
the eating: the proof of a school board’s compliance 
with constitutional standards is the result—the per­
formance. Has the operation of the promised plan 
actually eliminated segregated and token-defsegre- 
gated schools and achieved substantial integration?

The substantive requirements of the decree derive 
from the Fourteenth Amendment as interpreted by 
decisions of the Supreme Court and of this Court, in 
many instances before the HEW Guidelines were 
published. For administrative details, we have looked 
to the Office of Education. For example, those famil­
iar with the HEW Guidelines will note that the decree 
follows the Guidelines exactly as to the form letters 
which go to parents announcing the need to exercise 
a choice of schools, and the forms for exercising 
that choice are the same. Indeed a close parallel will 
be noted between much in Parts II through V of the 
decree and the Guideline provisions.

The great bulk of the school districts in this circuit 
have applied for federal financial assistance and



U. S., et al. v. Jeff. County Bd. of Educ., et al. 113

therefore operate under voluntary desegregation 
plans.120 Approval of these plans by the Office of Ed­
ucation qualifies the schools for federal aid. In this 
opinion we have held that the HEW Guidelines now 
in effect are constitutional and are within the statu­
tory authority created in the Civil Rights Act of 1964. 
Schools therefore, in compliance with the Guidelines 
can in general be regarded as discharging constitu­
tional obligations.

Some schools have made no move to desegregate 
or have had plans rejected as unsatisfactory by dis­
trict courts or the HEW. We expect the provisions of 
the decree to be applied in proceedings involving such 
schools. Other schools have darlier court-approved 
plans which fall short of the terms of the decree. On 
motion by proper parties to re-open these cases, we 
expect these plans to be modified to conform with 
our decree. In some cases the parties may challenge 
various aspects of HEW-approved plans. Our approv­
al of the existing Guidelines and the deference owed 
to any future Guidelines is not intended to deny a day 
in court to any person asserting individual rights or
120 “Although only 164 (3.4 percent) of the 4,941 school dis­
tricts in the South have qualified by the court order route, these 
districts include most of the major cities of the South and, ac­
cordingly, a large share of the population. Court orders are a 
significant method of qualification particularly in Louisiana, 
where official resistance to compliance with Title VI has been 
most widespread. In Louisiana, 32 court orders have been ac­
cepted, affecting 86.5 percent of the school districts judged quali­
fied.” 1966— U. S. Comm, on Civ. Rights, Survey of School De­
segregation in the Southern and Border States 46. See also Table 
3 in Appendix B.



114 17. S., et al. v. Jeff. County Bd. of Educ., et al.

to any school board contesting HEW action.121 In any 
school desegregation case the issue concerns the con­
stitutional rights of Negroes, individually and as a 
class, and the constitutional rights of the State—not 
the issue whether federal financial assistance should 
be withheld under Title VI of the Civil Rights Act of 
1964.

When school systems are under court-ordered de­
segregation, the courts are responsible for determin­
ing the sufficiency of the system’s compliance with 
the decree. The courts’ task, therefore, is a continu­
ing process, especially in major areas readily suscep­
tible of observation and measurement, such as facul­
ty integration and student desegregation. (1) As to 
faculty, we have found that school authorities have 
an affirmative duty to break up the historical pattern 
of segregated faculties, the hall-mark of the dual 
system. To aid the courts in its task, the decree re­
quires the school authorities to report to the district 
courts the progress made toward faculty integration. 
The school authorities bear the burden of justifying 
an apparent lack of progress.122 (2) As to students, the
121 For an H EW  approved desegregation plan held insufficient to 
protect constitutional rights of Negro students see Brown v. Board 
of Education of DeWitt School District, E.D. Ark. 1966, F.Supp.

See also Thompson v. County School Board of Hanover 
County, E.D.Va. 1966, 252 F. Supp. 546; Turner v. County School 
Board of Goochland County, E.D.Va. 1966, 252 F. Supp. 578.
122 “Innumerable cases have clearly established the principle 
that under circumstances such as this where a history of racial 
discrimination exists, the burden of proof has been thrown upon 
the party having the power to produce the facts. . . . ” Chambers 
v. Hendersonville City Board of Education, 4 Cir. 1966, 364 
F.2d 189, 192. In Brown II, permitting desegregation with "de­
liberate speed” the Supreme Court put the “burden . . . upon 
the defendants to establish that [additional] time is necessary 
to carry out the ruling in an effective manner” . 349 U.S. at 302.



U. S., et al. v. Jeff, County Bd. oj Educ., et al. 115

decree requires school authorities to make reports to 
the court showing by race, by school, by grade, the 
choices made in each “ choice period” . A similar re­
port is required after schools open to show what actu­
ally happened when schools opened.

What the decree contemplates, then, is continuing 
judicial evaluation of compliance by measuring the 
performance—not merely the promised performance 
—of school boards in carrying out their constitutional 
obligation “ to disestablish dual, racially segregated 
school systems and to achieve substantial integration 
within such systems.”123 District courts may call upon 
HEW for assistance in determining whether a school 
board’s performance measures up to its obligation 
to desegregate. If school officials in any district 
should find that their district still has segregated 
faculties and schools or only token integration, their 
affirmative duty to take corrective actiop. requires 
them to try an alternative to a freedom of choice 
plan, such as a geographic attendance plan, a com­
bination of the two, the Princeton plan,124 or some other 
acceptable substitute, perhaps aided by an education­
al park. Freedom of choicg is not a key that opens 
all doors to equal educational opportunities.

Given the knowledge of the educators and adminis­
trators in the Office of Education and their day to
123 U. S. Comm, on Civil Rights, Survey of School Desegregation 
in the Southern and Border States 1965-66, p. 54.
124 The Princeton plan involves establishing attendance zones
including more than one school and assigning students by grade 
rather than by residence location. Thus all of the zone’s students 
in grades 1 through 3 would attend school A, while all students 
in grades 4 through 6 would attend school B. For a discussion of 
the plan see Fiss, Racial Imbalance in the Public Schools: The
Constitutional Concepts, 78 Harv. L. Rev. 564, 573 (1965).



116 U. S., et al. v. Jeff. County BcL. of Educ., et al.

day experience with thousands of school systems, 
judges and school officials can ill afford to turn their 
backs on the proffer of advice from HEW. Or from 
any responsible government agency or independent 
group competent to work toward solution of the com­
plex problem of de jure discrimination bequeathed 
this generation by ten preceding generations.

Now after twelve years of snail’s pace progress 
toward school desegregation, courts are entering a 
new era. The question to be resolved in each case is: 
How far have formerly de jure segregated schools 
progressed in performing their affirmative constitu­
tional duty to furnish equal educational opportunities 
to all public school children? The clock has ticked 
the last tick for tokenism and delay in the name of 
“ deliberate speed” .

s*s *  *  *  *

In the suit against the Caddo Parish School Board 
July 19, 1965, the United States moved to intervene 
under §902 of the Civil Rights Act of 1964 (42 U.S.C. 
§2000h-2). The motion was filed twelve days after 
the Board submitted its plan in compliance with the 
district court’s decree of June 14, 1965, but two days 
before the original plaintiffs filed their objections 
and before the court issued its order approving the 
plan. The district court denied the motion on the 
ground that it came too late. In these circumstances 
we consider that the motion was timely filed and 
should have been granted.



17. S., et al. v. Jeff. County Bd. of Educ., et al. 117

This Court denied the motion of certain appellants 
to consolidate their cases, but allowed consolidation 
of briefs and, in effect, treated the cases as consoli­
dated for purposes of appeal. The Court, however, in 
each case has separately considered the particular 
contentions of all the parties in the light of the 
record.

The Court REVERSES the judgments below and 
REMANDS each case to the district court for further 
proceedings in accordance with this opinion.

COX, District Judge: I reserve the right to dissent in 
whole or in part at a later date.



118 U. S., et al. v. Jejf. County Bd. of Educ., et al.

APPENDIX A:

PROPOSED DECREE

It is ORDERED, ADJUDGED and DECREED that 
the defendants, their agents, officers, employees and 
successors and all those in active concert and partic­
ipation with them, be and they are permanently en­
joined from discriminating on the basis of race or 
color in the operation of the school system.
As set out more particularly in the body of the 
decree, they shall take affirmative action to disestab­
lish all school segregation and to eliminate the ef­
fects of past racial discrimination in the operation of 
the school system:

I .

SPEED OF DESEGREGATION

Commencing with the 1967-68 school year, in ac­
cordance with this decree, all grades, including kin­
dergarten grades, shall be desegregated and pupils 
assigned to schools in these grades without regard to 
race or color.

II.

EXERCISE OF CHOICE

The following provisions shall apply to all grades:
(a) Who May Exercise Choice. A choice of schools 

may be exercised by a parent or other adult person



U. S., et al. v. Jeff. County Bd. of Educ., et al. 119

serving as the student’s parent. A student may exer­
cise his own choice if he (1) is exercising a choice 
for the ninth or a higher grade, or (2) has reached 
the age of fifteen at the time of the exercise of 
choice. Such a choice by a student is controlling un­
less a different choice is exercised for him by his 
parent or other adult person serving as his parent 
during the choice period or at such later time as the 
student exercises a choice. Each reference in this de­
cree to a student’s exercising a choice means the ex­
ercise of the choice, as appropriate, by a parent or 
such other adult, or by the student himself.

(b) Annual Exercise of Choice. All students, both 
white and Negro, shall be required to exercise a free 
choice of schools annually.

(c) Choice Period. The period for exercising 
choice shall commence May 1, 1967 and end June 1, 
1967, and in subsequent years shall commence March 
1 and end March 31 preceding the school year for 
which the choice is to be exercised. No student or 
prospective student who exercises his choice within 
the choice period shall be given any preference be­
cause of the time within the period when such choice 
was exercised.

(d) Mandatory Exercise of Choice. A  failure to 
exercise a choice within the choice period shall not 
preclude any student from exercising a choice at any 
time before he commences school for the year with 
respect to which the choice applies, but such choice 
may be subordinated to the choices of students who



120 U. S., et al. v. Jeff. County Bd. of Educ., et al.

exercised choice before the expiration of the choice 
period. Any student who has not exercised his choice 
of school within a week after school opens shall be 
assigned to the school nearest his home where space 
is available under standards for determining avail­
able space which shall be applied uniformly through­
out the system.

(e) Public Notice. *On or within a week before 
the date the choice period opens, the defendants shall 
arrange for the conspicuous publication of a notice 
describing the provisions of this decree in the news­
paper most generally circulated in the community. 
The text of the notice shall be substantially similar 
to the text of the explanatory letter sent home to 
parents. (See paragraph 11(e).) Publication as a legal 
notice will not be sufficient. Copies of this notice 
must also be given at that time to all radio and tele­
vision stations serving the community. Copies of this 
decree shall be posted in each school in the school 
system and at the office of the Superintendent of 
Education.

(e) Mailing of Explanatory Letters and Choice 
Forms. On the first day of the choice period there 
shall be distributed by first-class mail an explanatory 
letter and a choice form to the parent (or other adult 
person acting as parent, if known to the defendants) 
of each student, together with a return envelope ad­
dressed to the Superintendent. Should the defend­
ants satisfactorily demonstrate to the court that 
they are unable to comply with the requirement



17. S., et al. v. Jeff. County Bd. of Educ., et al. 121

of distributing the explanatory letter and choice form 
by first-class mail, they shall propose an alternative 
method which will maximize individual notice, i.e., 
personal notice to parents by delivery to the pupil 
with adequate procedures to insure the delivery of 
the notice. The text for the explanatory letter and 
choice form shall essentially conform to the sample 
letter and choice form appended to this decree.

(g) Extra Copies of the Explanatory Letter and 
Choice Form. Extra copies of the explanatory letter 
and choice form shall be freely available to parents, 
students, prospective students, and the general public 
at each school in the system and at the office of the 
Superintendent of Education during the times of the 
year when such schools are usually open.

(h) Content of Choice Form. Each choice form 
shall set forth the name and location of the grades 
offered at each school and may require of the person 
exercising the choice the name, address, age of stu­
dent, school and grade currently or most recently at­
tended by the student, the school chosen, the signa­
ture of one parent or other adult person serving as 
parent, or where appropriate the signature of the 
student, and the identity of the person signing. No 
statement of reasons for a particular choice, or any 
other information, or any witness or other authentica­
tion, may be required or requested, without approval 
of the court.

(i) Return of Choice Form. At the option of the 
person completing the choice form, the choice may



122 U. S., et al. v. Jeff. County Bd. of Educ., et al.

be returned by mail, in person, or by messenger to 
any school in the school system or to the office of 
the Superintendent.

(j) Choices not on Official Form. The exercise of 
choice may also be made by the submission in like 
manner of any other writing which contains informa­
tion sufficient to identify the student and indicates 
that he has made a choice of school.

(k) Choice Forms Binding. When a choice form 
has once been submitted and the choice period has 
expired, the choice is binding for the entire school 
year and may not be changed except in cases of 
parents making different choices from their children 
under the conditions set forth in paragraph II (a) of 
this decree and in exceptional cases where, absent 
the consideration of race, a change is educationally 
called for or where compelling hardship is shown by 
the student.

(l) Preference in Assignment. In assigning stu­
dents to schools, no preferences shall be given to 
any student for prior attendance at a school and, ex­
cept with the approval of court in extraordinary cir­
cumstances, no choice shall be denied for any reason 
other than overcrowding. In case of overcrowding at 
any school, preference shall be given on the basis of 
the proximity of the school to the homes of the stu­
dents choosing it, without regard to race or color. 
Standards for determining overcrowding shall be ap­
plied uniformly throughout the system.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 123

(m) Second Choice where First Choice is Denied. 
Any student whose choice is denied must be prompt­
ly notified in writing and given his choice of any 
school in the school system serving his grade level 
where space is available. The student shall have 
seven days from the receipt of notice of a denial of 
first choice in which to exercise a second choice.

(n) Transportation. Where transportation is gen­
erally provided, buses must be routed to the maxi­
mum extent feasible in light of the geographic dis­
tribution of students, so as to serve each student 
choosing any school in the system. Every student 
choosing either the formerly white or the formerly 
Negro school nearest his residence must be trans­
ported to the school to which he is assigned under 
these provisions, whether or not it is his first choice, 
if that school is sufficiently distant from his home 
to make him eligible for transportation under gen­
erally applicable transportation rules.

(o) Officials not to Influence Choice. At no time 
shall any official, teacher, or employee of the school 
system influence any parent, or other adult person 
serving as a parent, or any student, in the exercise 
of a choice or favor or penalize any person because 
of a choice made. If the defendant school board em­
ploys professional guidance counselors, such persons 
shall base their guidance and counselling on the in­
dividual student’s particular personal, academic, and 
vocational needs. Such guidance and counselling by 
teachers as well as professional guidance counsellors



124 17. S., et al. v. Jejf. County Bd. of Educ., et al.

shall be available to all students without regard to 
race or color.

(p) Protection of Persons Exercising Choice. 
Within their authority school officials are responsible 
for the protection of persons exercising rights under 
or otherwise affected by this decree. They shall, 
without delay, take appropriate action with regard 
to any student or staff member who interferes with 
the successful operation of the plan. Such interfer­
ence shall include harassment, intimidation, threats, 
hostile words or acts, and similar behavior. The 
school board shall not publish, allow, or cause to be 
published, the names or addresses of pupils exercis­
ing rights or otherwise affected by this decree. If 
officials of the school system are not able to provide 
sufficient protection, they shall seek whatever assist­
ance is necessary from other appropriate officials.

III.

PROSPECTIVE STUDENTS

Each prospective new student shall be required to 
exercise a choice of schools before or at the time of 
enrollment. All such students known to defendants 
shall be furnished a copy of the prescribed letter to 
parents, and choice form, by mail or in person, on 
the date the choice period opens or as soon thereafter 
as the school system learns that he plans to enroll. 
Where there is no pre-registration procedure for new­
ly entering students, copies of the choice forms shall 
be available at the Office of the Superintendent and 
at each school during the time the school is usually 
open.



U. S., et al. v. Jejf. County Bd. of Educ., et al. 125

IV.

TRANSFERS

(a) Transfers for Students. Any student shall 
have the right at the beginning of a new term., 
to transfer to any school from which he was 
excluded or would otherwise be excluded on account 
of his race or color.

(b) Transfers for Special Needs. Any student 
who requires a course of study not offered at the 
school to which he has been assigned may be permit­
ted, upon his written application, at the beginning of 
any school term or semester, to transfer to another 
school which offers courses for his special needs.

(c) Transfers to Special Classes or Schools. If 
the defendants operate and maintain special classes 
or schools for physically handicapped, mentally re­
tarded, or gifted children, the defendants may assign 
children to such schools or classes on a basis related 
to the function of the special class or school that is 
other than freedom of choice. In no event shall such 
assignments be made on the basis of race or color or 
in a manner which tends to perpetuate a dual school 
system based on race or color.



126 U. S., et al. v. Jeff. County Bd. of Educ., et al.

V.

SERVICES, FACILITIES, ACTIVITIES AND PRO
GRAMS

No student shall be segregated or discriminated 
against on account of race or color in any service, 
facility, activity, or program (including transporta­
tion, athletics, or other extracurricular activity) that 
may be conducted or sponsored by or affiliated with 
the school in which he is enrolled. A student attend­
ing school for the first time on a desegregated basis 
may not be subject to any disqualification or waiting 
period for participation in activities and programs, 
including athletics, which might otherwise apply be­
cause he is a transfer or newly assigned student ex­
cept that such transferees shall be subject to long­
standing, non-racially based rules of city, county, or 
state athletic associations dealing with the eligibility 
of transfer students for athletic contests. All school 
use or school-sponsored use of athletic fields, meet­
ing rooms, and all other school related services, 
facilities, activities, and programs such as Com­
mencement exercises and parent-teacher meetings 
which are open to persons other than enrolled stu­
dents, shall be open to all persons without regard to 
race or color. All special educational programs con­
ducted by the defendants shall be conducted without 
regard to race or color.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 127

VI.

SCHOOL EQUALIZATION

(a) Inferior Schools. In schools heretofore main­
tained for Negro students, the defendants shall take 
prompt steps necessary to provide physical facili­
ties, equipment, courses of instruction, and instruc­
tional materials of quality equal to that provided in 
schools previously maintained for white students. 
Conditions of overcrowding, as determined by pupil- 
teacher ratios and pupil-classroom ratios shall, to the 
extent feasible, be distributed evenly between schools 
formerly maintained for Negro students and those 
formerly maintained for white students. If for any 
reason it is not feasible to improve sufficiently any 
school formerly maintained for Negro students, where 
such improvement would otherwise be required by 
this subparagraph,- such school shall be closed as 
soon as possible, and students enrolled in the school 
shall be reassigned on the basis of freedom of choice. 
By October of each year, defendants shall report to 
the Clerk of the Court pupil-teacher ratios, pupil-class- 
room ratios, and per-pupil expenditures both as to 
operating and capital improvement costs, and shall 
outline the steps to be taken and the time within which 
they shall accomplish the equalization of such schools.

(b) Remedial Programs. The defendants shall pro­
vide remedial education prograins which permit stu­
dents attending or who have previously attended all- 
Negro schools to overcome past inadequacies in their 
education.



128 U. S., et at. v. Jeff. County Bd. of Educ., et al.

VII.

NEW CONSTRUCTION

The defendants, to the extent consistent with the 
proper operation of the school system as a whole, 
shall locate any new school and substantially expand 
any existing schools with the objective of eradicating 
the vestiges of the dual system and of eliminating the 
effects of segregation.

VIII.

FACULTY AND STAFF

(a) Faculty Employment. Race or color shall not 
be a factor in the hiring, assignment, reassignment, 
promotion, demotion, or dismissal of teachers and 
other professional staff members, including student 
teachers, except that race may be taken into ac­
count for the purpose of counteracting or correcting 
the effect of the segregated assignment of teachers 
in the dual system. Teachers, principals, and staff 
members shall be assigned to schools so that the 
faculty and staff is not composed exclusively of 
members of one race. Wherever possible, teachers 
shall be assigned so that more than one teacher of 
the minority race (white or Negro) shall be on a de­
segregated faculty. Defendants shall take positive 
and affirmative steps to accomplish the desegregation 
of their school faculties and to achieve substantial de­
segregation of faculties in as many of the schools as 
possible for the 1967-68 school year notwithstanding



U. S., et al. v. Jeff. County Bd. of Educ., et al. 129

that teacher contracts for the 1966-67 or 1967-68 school 
years may have already been signed and approved. 
The tenure of teachers in the system shall not be used 
as an excuse for failure to comply with this provision. 
The defendants shall establish as an objective that 
the pattern of teacher assignment to any particular 
school not be identifiable as tailored for a heavy con­
centration of either Negro or white pupils in the 
school.

(b) Dismissals. Teachers and other professional 
staff members'may not be discriminatorily assigned, 
dismissed, demoted, or passed over for retention, 
promotion, or rehiring, on the ground of race or color. 
In any instance where one or more teachers or other 
professional staff members are to be displaced as a 
result of desegregation, no staff vacancy in the school 
system shall be filled through recruitment from out­
side the system unless.no such displaced staff mem­
ber is qualified to fill the vacancy. If, as a result of de­
segregation, there is to be a reduction in the total 
professional staff of the school system, the qualifica­
tions of all staff members in the system shall be eval­
uated in selecting the staff member to be released 
without consideration of race or color. A report con­
taining any such proposed dismissals, and the rea­
sons therefor, shall be filed with the Clerk of the 
Court, serving copies upon opposing counsel, within 
five (5) days after such dismissal, demotion, etc., as 
proposed.

(c) Past Assignments. The defendants shall take 
steps to assign and reassign teachers and other pro­



130 U. S., et al. v. Jeff. County Bd. of Educ., et al.

fessional staff members to eliminate past discrimi­
natory patterns.

IX.

REPORTS TO THE COURT

(1) Report on Choice Period. The defendants 
shall serve upon the opposing parties and file with the 
Clerk of the Court on or before April 15, 1967, and on 
or before June 15, 1967, and in each subsequent year 
on or before June 1, a report tabulating by race the 
number of choice applications and transfer applica­
tions received for enrollment in each grade in each 
school in the system, and the number of choices and- 
transfers granted and the number of denials in each 
grade of ,aach school. The report shall also state any 
reasons relied upon in denying choice and shall tab­
ulate, by school and by race of student, the number 
of choices and transfers denied for each such reason.

In addition, the report shall show the percentage 
of pupils actually transferred or assigned from seg­
regated grades or to schools attended predominantly 
by pupils of a race other than the race of the appli­
cant, for attendance during the 1966-67 school year, 
with comparable data for the 1965-66 school year. 
Such additional information shall be included in the 
report served upon opposing counsel and filed with 
the Clerk of the Court.

(2) Report After School Opening. The defend­
ants shall, in addition to reports elsewhere described,



U. S., et al. v. Jeff. County Bd. of Educ., et al. 131

serve upon opposing counsel and file with the Clerk 
of the Court within 15 days after the opening of 
schools for the fall semester of each year, a report 
setting forth the following information:

(i) The name, address, grade, school of 
choice and school of present attendance of 
each student who has withdrawn or requested 
withdrawal of his choice of school or who has 
transferred after the start of the school year, 
together with a description of any action taken 
by the defendants on his request and the rea­
sons therefor.

(ii) The number of faculty vacancies, by 
school, that have occurred or been filled by the 
defendants since the order of this Court or the 
latest report submitted pursuant to this sub- 
paragraph. This report shall state the race of 
the teacher employed to fill each such vacan­
cy and indicate whether such teacher is newly 
employed or was transferred from within 
the system. The tabulation of the number of 
transfers within the system shall indicate the 
schools from which and to which the transfers 
were made. The report shall also set forth the 
number of faculty members of each race as­
signed to each school for the current year.

(iii) The number of students by race, in 
each grade of each school.



132 U. S., et dl. v: Jeff. County Bd. of Educ., et al.

EXPLANATORY LETTER

(School System Name and Office Address)

(Date Sent)
Dear Parent:

All grades in our school system will be desegre­
gated next year. Any student who will be entering 
one of these grades next year may choose to attend 
any school in our system, regardless of whether that 
school was formerly all-white or all-Negro. It does 
not matter which school your child is attending this 
year. You and your child may select any school you 
wish.

Every student, white and Negro, must make a 
choice of schools. If a child is entering the ninth or 
higher grade, or if the child is fifteen years old or old­
er, he may make the choice himself. Otherwise a par­
ent or other adult serving as parent must sign the 
choice form. A child enrolling in the school system for 
the first time must make a choice of schools before or 
at the time of his enrollment.

The form on which the choice should be made is at­
tached to this letter. It should be completed and re­
turned by June 1, 1967. You may mail it in the en­
closed envelope, or deliver it by messenger or by 
hand to any school principal or to the Office of the 
Superintendent at any time between May 1 and June 
1. No one may require you to return your choice 
form before June 1 and no preference is given for 
returning the choice form early.



u. S., et al. v. Jeff. County Bd. of Educ., et al. 133

No principal, teacher or other school official is per­
mitted to influence anyone in making a choice or to 
require early return of the choice form. No one is per­
mitted to favor or penalize any student or other per­
son because of a choice made. A choice once made 
cannot be changed except for serious hardship.

No child will be denied his choice unless for reasons 
of overcrowding at the school chosen, in which case 
children living nearest the school will have prefer­
ence.

Transportation will be provided, if reasonably pos­
sible, no matter what school is chosen. [Delete if the 
school system does not provide transportation.]

Your School Board and the school staff will do 
everything we can to see to it that the rights of all 
students are protected and that desegregation of our 
schools is carried out successfully.

Sincerely yours,

Superintendent.

CHOICE FORM

This form is provided for you to choose a school for 
your child to attend next year. You have 30 days to 
make your choice. It does not matter which school 
your child attended last year, and does not matter 
whether the school you choose was formerly a white 
or Negro school. This form must be mailed or brought



134 17. S., et al. v. Jeff, County Bd. of Educ., et al.

to the principal of any school in the system or to the 
office of the Superintendent, [address], by June 
1, 1967. A choice is required for each child.
Name of child ............................................................

(Last) (First) (Middle)
Address ................................................................................
Name of Parent or other
adult serving as parent.....................................................
If child is entering first grade, date of birth:

(Month) (Day) (Year)
Grade child is entering ..............................................

School attended last year ............................................

Choose one of the following schools by marking an X 
beside the name.

Name of School Grade Location

Signature
Date

To be filled in by Superintendent:
School Assigned ..................................... 1

1 In subsequent years the' dates in both the explanatory letter 
and the choice form should be changed to conform to the choice 
period.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 135

APPENDIX B.

Rate of Change and Status of 
Desegregation

(Leeson, Faster Pace, Scarcer Records, 
Southern Education Report 28-32 (Jan.-Feb. 
1966), quoted in Emmerson and Huber, Politi­
cal and Civil Rights in the United States, 695- 
99 (1967))

. Both the 11-state Southern area and the border 
area, the latter consisting of six states and the Dis­
trict of Columbia, experienced a sharper increase in 
the percentage of Negroes in desegregated schools for 
1965-66 than in previous years. But only the Southern 
states showed a changed attitude toward reporting 
records by race; in only three Southern states could 
nearly complete statistics be obtained district by dis­
trict. As in other years, three of the border states plus 
the District of Columbia continued to keep records by 
race, and three states did not.

Correspondents for Southern Education Reporting 
Service . . . found that 15.89 per cent of the Negroes 
enrolled in the public schools of the region attended 
classes with whites, mostly in formerly all-white 
schools but sometimes also in formerly all-Negro 
schools. This numbered 567,789 Negro students out of 
the region’s Negro enrollment of 3,572,810.

In the first 10 years after the Supreme Court de­
cisions on segregated schools, in 1954 and 1955, the



136 17. S., et al. v. Jejf. County Bd. of Educ., et al.

Southern and border region increased the number of 
Negroes in schools with whites at an average of about 
one per cent a year. Although the impetus of the Su­
preme Court’s rulings and the possibility of direct in­
volvement in legal action were factors, most districts 
desegregating through last year acted “ voluntarily” 
and only about 10 per cent required a specific court 
order. By the end of the 1964-65 school year, the region 
had enrolled 10.9 per cent of its Negro students in 
biracial classrooms.

The 1964 Civil Rights Act brought pressure on every 
district in the nation but the compliance effort admit­
tedly was concentrated on the South. . . . Beginning 
in the spring of 1965 and continuing even through the 
first months of the 1965-66 school-year, HEW’s Office 
of Education negotiated with officials in each district 
to obtain compliance by the school officials either 
signing a statement, submitting a court-ordered de­
segregation plan or adopting a voluntary plan.

With the new school year, the region had increased 
the number of Negroes in desegregated schools by five 
percentage points to reach 15.9 per cent, while in the 
previous two school years the rate of increase in this 
figure had only been between one and two percent­
age points. For 1964-65, the region had 10.9 per cent of 
the Negro enrollment in desegregated schools, an in­
crease of 1.7 percentage points over 1963-64, and for 
that year the 9.2 per cent figure was an increase of 
1.2 percentage points over 1962-63. (See Table I.) . . .



17. S., et al. v. Jeff. County Bd. of Educ., et al. 137

TABLE I

The Rate of Change
Percentage of Negroes in Schools with Whites

School Year
1959-60*

South
.160

%
Change Border

45.4
%

Change Region
6.4

%
Change

1960-61 .162 .002 49.0 3.6 7.0 .6
1961-62 .241 .079 52.5 3.5 7.6 .6
1962-63 .453 .212 51.8 0.7 8.0 .4
1963-64 1.17 .717 54.8 3.0 9.2 1.2
1964-65 2.25 1.08 58.3 3.5 10.9 1.7
1965-66 6.01 3.76 68.9 10.6 15.9 5.0

* First school year in which SERS began recording number of 
Negroes in schools with whites.

Up through the 1962-63 school year, the 11 Southern 
states together had fewer than one per cent of their 
Negro students in schools with whites. In 1963-64, the 
figure passed the one per cent mark and it almost 
doubled for 1964-65 to become 2.25 per cent of the 
Negroes in biracial schools, an increase of more than 
one percentage point. For the 1965-66 school year, the 
percentage more than doubled and reached 6.01 per 
cent.1
1 Other estimates are summarized in Report of the United 
States Commission on Civil Rights, Survey of School Desegrega­
tion in the Southern and Border States 1965-1966, 27-28 (Feb. 
1966)

“ . . . The Office of Education based on a sampling of 590 
districts through a telephone survey conducted in cooperation with 
State departments of education, estimates that 216,000, or 7.5 
percent, of the Negro students in the 11 Deep South States are 
enrolled in school this year with white pupils. [Office of Educa­
tion, telephone survey, Table I, Sept. 27, 1965.] Civil rights 
organizations, relying upon figures obtained from a variety of 
sources, including field workers, advance a lower figure. The 
Southern Regional Council’s estimate is 151,416 Negro pupils, 
or 5.23 percent of the total. [Southern Regional Council, ‘School



138 U. iS., et al. v. Jeff. County Bd. of Educ., et al.

The six border states and the District of Columbia 
desegregated at a faster rate than did the South, and 
by the 1961-62 school year that area had more than 
half of its Negro enrollment attending desegregated 
schools. The annual change in the number of Negroes 
in desegregated border schools averaged about three 
per cent a year, and by 1964-65, the border area had 
desegregated 58.3 per cent of its Negro enrollment. 
In the current school year, the border area has 68.9 
per cent of its Negro students attending the same 
schools with whites, a jump of over 10 percentage 
points from the previous year’s figure.

This year, as in previous years, a disparity exists 
between what might be called “ technical”  desegrega­
tion and “ actual”  desegregation. Last year, for ex­
ample, 56 per cent of the region’s Negro students 
were enrolled in districts having desegregation pol­
icies, but about 11 per cent of the total Negro en­
rollment attended desegregated schools. This year, 
the region has 97 per cent of its districts in official 
compliance with federal desegregation regulations, 
and 93 per cent of the region’s combined Negro and 
white enrollment comes from these districts. How­
ever, the actual attendance of Negroes in desegregat­
ed schools amounts to almost 16 per cent. The differ­
ence in these figures was accentuated this year by the 
fact that almost 2,000 school districts having either all­
Desegregation: Old Problems Under a New Law’ 9, Sept. 1965.] 
The American Friends Service Committee and NAACP Legal De­
fense and Educational Fund agree that the actual figure is less 
than 6 percent [American Friends Service Committee and NAACP  
Legal Defense and Educational Fund, ‘Report on the Implementa­
tion of Title VI of the Civil Rights Act of 1964 in Regard to 
School Desegregation’ 4, Nov. 15, 1965].”



U. S., et al. v. Jeff. County Bd. of Educ., et al. 139

white or all-Negro enrollments are included in the “ in 
compliance” statistics. . . .

Among the Southern states, Texas leads in the num­
ber and percentage of Negroes in schools with whites 
—an estimated 60,000 Negroes or 17 per cent of the 
state’s Negro enrollment. Tennessee ranks second in 
the area with 16 per cent and Virginia third with' 11 
per cent. Three states—Alabama, Louisiana, and Mis­
sissippi—continue to have less than one per cent of 
their Negro enrollment attending schools with whites. 
The other Southern states—Arkansas, Florida, Geor­
gia, North Carolina-and South Carolina—vary between 
1 and 10 per cent of their Negro students in biracial 
classrooms.

All but one of the border states have more than 
half of their Negro enrollments in desegregated 
schools. Oklahoma has 38 per cent of its Negroes in 
biracial schools, Maryland has 56 per cent, and Dela­
ware, the District of Columbia, Kentucky, . . . 
Missouri and West Virginia have desegregated more 
than three-fourths of their Negro student popula­
tion. . . .

The desegregation statistic showing the sharpest in­
crease this year was the number of districts with de­
segregation policies. The region now has 4,804 public 
school districts that have received approval from the 
U. S. Office of Education for their desegregation pro­
posals. When the last school year ended, SERS re­
ported that 1,476 districts had desegregated in prac­
tice or in policy.



140 U. S., et al. v. Jefj. County Bd. of Educ., et al.

TABLE III

Status of Desegregation

(17 Southern and Border States and D.C.)
School Districts

Alabama
Total

118

With
Negroes

and
Whites

119

In
Compli­

ancet 
105

Not In 
Compli­
ancet

14
Enrollment 

White Negro 
559,123** 295,848**

Negroes 
in Schools 

with Whites 
No. %tt 

1,250* .43
Arkansas 410 217 400 10 337,652** 111,952** 4,900* 4.38
Florida 67 67 67 0 1,056,805* 256,063* 25,000* 9.76
Georgia 196 180 192 5 784,917* 355,950* 9,465* 2.66
Louisiana 67 67 33 34 483,941 318,651 2,187 .69
Mississippi 149 149 118 31 309,413 296,834 1,750* .59
North Carolina 170 170 165 4 828,638** 349,282** 18,000* 5.15
South Carolina 108 108 86 21 374,007 263,983 3,864 1.46
Tennessee 152 129 149 2 714,241* 176,541* 28,801 16.31
Texas 1,325 850 1,303 7 2,136,150* 349,192* 60,000* 17.18
Virginia 130 127 124 12 757,037** 239,729** 27,550* 11.49

SOUTH 2,892 2,183 2,742 140 8,341,924 3,014,025 182,767 6.01

Delaware 58 47 59 0 86,041 20,485 17,069 83.32
Dist. of Columbia 1 1 1 0 15,173 128,843 109,270 84.81
Kentucky 200 167 204 0 713,451** 59,835** 46,891 78.37
Maryland 24 23 24 0 583,796 178,851 99,442 55.60
Missouri 1,096 212* 675 0 843,167 105,171 79,000* 75.12
Oklahoma 1,046 323 1,044 4 564,250* 45,750* 17,500* 38.25
West Virginia 55 44 55 0 425,087* 19,850* 15,850* 79.85

BORDER 2,480 817 2,062 4 3,230,965 558,785 385,022 68.90

REGION 5,372 3,000 4,804 144 11,572,889 3,572,810 567,789 15.89
* E s t im a te d .

** 1964-65.
t T h e  s u m  o f  a d d in g  th e  d is t r ic t s  “ I n  C o m p lia n c e ”  a n d  “ N o t  in  C o m p lia n c e ”  w ill n o t  a lw a y s  e q u a l th e  

to ta l  n u m b e r  o f  d is t r ic t s  b e c a u s e  t h e  O f f i c e  o f  E d u c a t io n  r e p o r t s  a  d i f f e r e n t  n u m b e r  o f  d is t r ic t s  f r o m  th a t  
o f  s o m e  o f  th e  s ta te  d e p a r tm e n ts  o f  e d u ca t io n .
tt T h e  n u m b e r  o f  N e g r o e s  in  s c h o o ls  w ith  w h ite s , c o m p a r e d  t o  th e  to ta l  N e g r o  e n ro llm e n t.



U. S., et al. v. Jeff. County Bd., of Educ., et al. 141

COX, District Judge, dissenting:
The majority opinion herein impels my dissent, 

with deference, to its general theme, that precedent 
required the public schools to mix the races rather 
than desegregate such schools by removing all effects 
of state action which may have heretofore com­
pelled segregation, so as to permit these schools to 
be operated upon a proper free choice plan. This 
Couit has heretofore firmly and soundly (as decision 
and not gratuitously) committed itself to the views 
expressed by the distinguished jurists in Briggs v. 
Elliott, 132 F. Supp. 776. The majority now seeks 
to criticize the Briggs case and disparage it as 
dictum, although this Court in several reported de­
cisions has embraced and adopted Briggs with 
extensive quotations from it as the decisional law 
of this Circuit. Surely, only two of the judges of this 
Court may not now single-handedly reverse those de­
cisions and change such law of this Circuit.

These school cases all stem from the decision of 
the Supreme Court of the United States in the famil­
iar Brown cases.1 Nothing was said in those cases or 
has since been said by the Supreme Court to justify 
or support the extremely harsh plan of enforced in­
tegration devised by the majority decision. Signifi­

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

Brown II Brown v. Board of Education of Topeka, Kansas 
349 US 294, 75 S.Ct. 753, 99 L.Ed. 1083. '

On December 6, 1965 in Patricia Rogers, et al v. Edgar F. 
Paul, et al, 382 US 198, 86 S.Ct. 358, the Court decried delays 
in desegregation of public schools and called for an acceleration 
of the process, but neither said nor intimidated the existence of 
any power or the justification for any authority to forcefully mix 
or integrate these schools.



142 17. S., et al. v. Jejf. County Bd. of Educ., et al.

cantly, there is nothing in the Civil Rights Act of 1964 
to suggest the propriety of this Court adopting and 
following any guidelines of the Health, Education 
and Welfare Commissioner in these school desegre­
gation cases in such respect. The policy statement of 
Congress as contained in the act itself expressly dis­
claims any intention or purpose to do that which these 
guidelines, and the majority opinion approving them, 
do in complete disregard thereof.

No informed person at this late date would now ar­
gue with the soundness of the philosophy of the Brown 
decision. That case simply declared the constitution­
al right of negro children to attend public schools of 
their own free choice without any kind of restraint 
by state action. That Court has made it clear that the 
time for “ deliberate”  speed in desegregating these 
public schools has now expired, but the majority opin­
ion herein is the first to say that the Brown case, to­
gether with the Civil Rights Act of 1964, makes it nec­
essary that these public schools must now integrate 
and mix these schools and their facilities, “ lock, 
stock and barrel.”  That view comes as a strange con­
struction of the Fourteenth Amendment rights of col­
ored children. The passage of time since the rendi­
tion of the Brown case; and of natural disparities 
which are found in so many school plans before the 
Court; and the difficult problems posed before the 
Court by such plans certainly can provide no legal 
justification or basis for this extreme view and harsh 
and mailed fist decision at this time. These questions 
involving principles of common sense and law are



U. S., et al. v. Jeff. County Bd. of Educ., et at. 143

readily resolved by a court of equity without being 
properly accused of giving an advisory opinion. The 
decision in such case is not overtaxing on a court of 
equity and its articulated conclusions can be imple­
mented by an enforceable decree even at the expen­
diture of some well spent time, patience and energy 
of the Court. If a Court is to write a decree, it should 
be the decree of that Court and not the by-product of 
some administrative agency without knowledge or 
sworn obligation to resolve sacred constitutional 
rights and principles. Unilaterally prepared guide­
lines allegedly devised by the Commissioner may 
or not accord with his own views, but such an 
anomalously prepared document could not justify 
this Court in adopting it “ lock, stock and barrel”  un­
der any pretext and even with repeated disavowals 
of such intention or purpose.

The Constitution of the United States is not the dead 
hand of the past strangling the liberties of a free peo­
ple; it is a living document designed for all time to 
perpetuate liberty, freedom and justice for every per­
son, young or old, who is born under or who comes 
within its protecting shield. As was said many years 
ago, “ in moving water there is life, in still waters 
there is stagnation and death.”  The Constitution was 
framed not for one era, but for all time. But when the 
Courts transform viability into elasticity, constitu­
tional rights are illusory. The rope of liberty may be 
twisted and become a garrote which strangles those 
who seek its protection. If the majority opinion in 
these cases is permitted to stand, it will, in the name



144 U. S., et al. v. Jeff. County Bd. of Educ., et al.

of protecting civil rights of some, destroy civil rights 
and constitutional liberties of all our citizens, their 
children and their children’s children.

The Supreme Court, in Brown II, said that “ school 
authorities have the primary responsibility for elu­
cidating, assessing and solving these problems; 
courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles.”  It 
thereupon became the duty of the Court, acting as a 
Court of Equity, under such principles to see that pub­
lic schools, still operating under the dual system by 
state action, were desegregated (not integrated) in 
accordance with the vested constitutional right of col­
ored children. Judicial haste and impatience cannot 
justify this Court in equating integration with deseg­
regation. No Court up to this time has been heard to 
say that this Court now has the power and the authori­
ty to force integration of both races upon these public 
schools without regard to any equitable considera­
tions, or the will or wish of either race. The decisions 
of this Court deserve and must have stability and in­
tegrity. It was the 1965 guidelines of HEW that were 
approved by this Court in Derek Jerome Singleton v. 
Jackson Municipal Separate School District, 255 F.2d 
865. Judge Wisdom wrote for the Court and Judge 
Thornberry concurred in that case on January 26, 
1966; and there was not a word in that case to the ef­
fect that this Court then thought that any decision or 
statute or guidelines under any statute required or 
justified forced integration. Almost before that slip



U. S., et al. v. Jeff. County Bd. of Educ., et al. 145

opinion reached the bound volume, this Court has now 
written on December 29, 1966, a vastly different opin­
ion with no change intervening in the law.

The last reported school case from this Circuit, de­
cided August 16, 1966 by Judge Tuttle and Judge 
Thornberry in Birdie Mae Davis, et al v. Board of 
School Commissioners of Mobile County, et al, 364 
F.2d 896, this Court still wrote of accelerating a plan 
of desegregation. As if to foreshadow the point of 
Judge Wisdom’s “ nettle”  in the majority opinion in 
this case, Judge Tuttle wrote in his Note 1 an expla­
nation of his changing requirements in these school 
cases for the delayed enjoyment of constitutional 
rights by accelerating desegregation. Davis said that 
negro children, as individuals, had the right to trans­
fer to schools from which they were excluded be­
cause of their race, and said that this had been the 
law since the Brown decision; but that misunder­
standing of that'principle was perhaps due to the pop­
ularity “ of an oversimplified dictum that the Consti­
tution does not require integration- Briggs v. Elliott, 
132 F. Supp. 776, 777.”  That is the first and only ex­
pressed criticism of Briggs found among the decisions 
of this Circuit, but the Court did not comment upon 
the viability and soundness of the many decisions of 
this Circuit which wholeheartedly embraced and re­
peatedly reaffirmed the so-called dicta in Briggs. 
Datiis dealt with an urban area in Mobile, Alabama, 
while these cases deal with small communities or 
rural schools but that could have no possible bearing 
on desegregation versus or as distinguished from im­
mediate forced integration or mixing of these schools.



146 17. S., et al. v. Jeff. County Bd. of Educ., et al.

In Alfred Avery, Jr., a Minor by his Mother and 
Next Friend, Mrs. Alfred Avery, et al v. Wichita In­
dependent School District, et al, 241 F.2d 230 (1957), 
this Court said:

“ The Constitution as construed in the School Seg­
regation Cases, Brown v. Board of Education, 347 U.S. 
483, 74 S.Ct. 686, 98 L.Ed. 873; Id., 349 U.S. 294, 75 S,Ct. 
753, 99 L.Ed. 1083, and Bolling v. Sharpe, 347 U.S. 497, 
74 S.Ct. 693, 98 L.Ed. 884, forbids any state action re­
quiring segregation of children in public schools sole­
ly on account of race; it does not, however, require ac­
tual integration of the races. As was well said in 
Briggs v. Elliott, D.C.E.D.S.C., 132 F. Supp. 776, 777:

“ * * * if is important that we point out exactly what 
the Supreme Court has decided and what it has not 
decided in this case. It has not decided that the fed­
eral courts are to take over or regulate the public 
schools of the states. It has not decided that the states 
must mix persons of different races in the schools or 
must require them to attend schools or must deprive 
them of the right of choosing the schools they attend. 
What it has decided, and all that it has decided, is 
that a state may not deny to any person on account of 
race the right to attend any school that it maintains. 
This, under the decision of the Supreme Court, the 
state may not do directly or indirectly; but if the 
schools which it maintains are open to children of all 
races, no violation of the Constitution is involved even 
though the children of different races voluntarily at­
tend different schools, as they attend different



17. S., et al. v. Jeff. County Bd. of Educ., et al. 147

churches. Nothing in the Constitution or in the deci­
sion of the Supreme Court takes away from the peo­
ple freedom to choose the schools they attend. The 
Constitution, in other words, does not require inte­
gration. It merely forbids discrimination. It does not 
forbid such segregation as occurs as the result of vol­
untary action. It merely forbids the use of govern­
mental power to enforce segregation. The Fourteenth 
Amendment is a limitation upon the exercise of pow­
er by the state or state agencies, not a limitation upon 
the freedom of individuals.”

Again, this Court in Hilda Ruth Borders, a Minor, 
et al v. Dr. Edwin L. Rippy, et al, 247 F.2d 268 (1957) 
said: “ The equal protection and due process clauses 
of the Fourteenth Amendment do not affirmatively 
command integration, but they do forbid any state 
action requiring segregation on account of their race 
or color of children in the public schools. Avery v. 
Wichita Falls Independent School District, 5 Cir., 
1957, 241 F.2d 230, 233. Pupils may, of course, be sep­
arated according to their degree of advancement or 
retardation, their ability to learn, on account of their 
health, or for any other legitimate reason, but each 
child is entitled to be treated as an individual without 
regard to his race or color.”

In a public housing case, participated in by Judge 
Wisdom, Queen Cohen v. Public Housing Administra­
tion, 257 F.2d 73, it is said: “ Neither the Fifth nor the 
Fourteenth Amendment operates positively to com­
mand integration of the races, but only negatively 
to forbid governmentally enforced segregation.”



148 U. S., et al. v. Jeff. County Bd. of Educ., et al.

This Court in Sandra Craig Boson, et al v. Dr. Ed­
win L. Rippy, et al, 285 F.2d 43, said: “ Indeed, this 
Court has adopted the reasoning in Briggs v. Elliott, 
DC.E.D.S.C. 1955, 132 F. Supp. 776, relied on by the 
Sixth Circuit, and has further said: ‘The equal protec­
tion and due process clauses of the fourteenth amend­
ment do not affirmatively command integration, but 
they do forbid any state action requiring segregation 
on account of their race or color of children in the 
public schools. Avery v. Wichita Falls Independent 
School District, 5 Cir., 1957, 241 F.2d 230, 233. Pupils 
may, of course, be separated according to their de­
gree of advancement or retardation, their ability to 
learn, on account of their health, or for any other le­
gitimate reason, but each child is entitled to be 
treated as an individual without regard to his race 
or color.’ Borders v. Rippy, 5 Cir., 1957,-247 F.2d 268, 
271.

“ Nevertheless, with deference to the views of the 
Sixth Circuit, it seems to us that classification accord­
ing to race for purposes of transfer is hardly less un­
constitutional than such classification for purposes 
of original assignment to a public school.”  It is that 
decision in Briggs v. Elliott, supra, which the major­
ity here now seek to criticize and repudiate.

In Ralph St ell, et al v. Savannah-Chatham Coun­
ty Board of Education, et al, (5CA) 333 F.2d 55, 59, 
in footnote 2 it is said: “ No court has required a ‘com­
pulsory racially integrated school system’ to meet 
the constitutional mandate that there be no discrim­



U. S., et al. v. Jeff. County Bd. of Educ., et al. 149

ination on the basis of race in the operation of pub­
lic schools. See Evers v. Jackson Municipal Sepa­
rate School District, 5 Cir., 1964, 328 F.2d 408, 
and cases there cited. The interdiction is against en­
forced racial segregation. Incidental integration, of 
course, occurs through the process of desegregation. 
Cf. Stone v. Board of Education of Atlanta, 5 Cir., 
1962, 309 F.2d 638.”

This Court in Darrell Kenyatta Evers, et al v. Jack- 
son Municipal Separate School District, 328 F.2d 408 
(1964) said: ‘ ‘This is not to say that the Fourteenth 
Amendment commands integration of the races in 
the schools, or that voluntary segregation is not le­
gally permissible. See Avery v. Wichita Falls Ind. 
School Dist., 5 Cir., 1957, 241 F.2d 230; Rippy v. Bor­
ders, 5 Cir., 1957, 250 F.2d 690; Cohen v. Public Hous­
ing Administration, 5 Cir., 1958, 257 F.2d 73, cert, den., 
358 U.S. 928, 79 S.Ct. 315, 3 L.Ed. 2d 302; Holland v. 
Board of Public Instruction, supra; and Shuttlesworth 
v. Birmingham Board of Education, supra. The Su­
preme Court did not hold otherwise in Brown v. Board 
of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873.” The same teaching is expressed in a park case 
from this Court, styled City of Montgomery) Alabama 
v. Georgia Theresa Gilmore, 277 F.2d 364. In the many 
cases from this Court involving the race issue in pub­
lic schools (there being some forty-one of them ac­
cording to the majority opinion), not one of them 
speaks of any requirement or duty of the school to 
forcefully integrate the races, or to compel the races 
to mix with each other in public schools; but every



150 U. S., et al. v. Jeff. County Bd. of Educ., et al.

one of them speak of desegregating such schools. The 
word desegregate does not appear in Webster’s New 
International Dictionary, Second Edition, Edited in 
1950. But Webster’s New Collegiate Dictionary (a 
Merriam-Webster) defines desegregation as: “ To
free itself of any law, provision or practice requiring 
isolation of the members of a particular race in sep­
arate units, especially in military service or in edu­
cation.”

In sum, there is no law to require one of these pub­
lic schools to integrate or force mix these races in 
public schools. But these public schools, which have 
been heretofore segregated by state action, and op­
erate under a dual system, should be required to re­
move every vestige of state influence toward segre­
gation of the races in these schools; and these col­
ored children should be fully advised of their consti­
tutional right to attend public schools of their choice, 
completely without regard to race. Many problems 
exist and are created by the proper enforcement of 
desegregation plans that will assure a full sweep of 
real freedom of choice to these negro children, and 
this Court cannot by only two of its members become 
impatient as trail-blazers and rewrite the decisional 
law of this Circuit as my good friends have undertak­
en to do in this case.

Such a course would do violence to the ancient rule 
of Stare Decisis. In Donnelly Garment Co. v. Nation­
al Labor Relations Board, (8CCA) 123 F.2d 215: “ It is 
a long-established rule that judges of the same court



U. S., et al. v. Jeff. County Bd. of Educ., et al. 151

will not knowingly review, reverse or overrule each 
other’s decisions. Shreve v. Cheesman, 8 Cir., 69 F. 
785, 790, 791; Plattner Implement Co. v. International 
Harvester Co., 8 Cir., 133 F. 376, 378, 379. The neces­
sity of such a rule in the interest of an orderly ad­
ministration of justice is clear.”  In Sanford Napoleon 
Powell v. United States, (7CA) 338 F.2d 556 (1964), it 
is said: “ Our decision in Lauer has been criticized. 
However, this decision is the law of this Circuit un­
less and until this Court (presumably sitting en banc) 
would determine otherwise or unless higher author­
ity might so determine.”

Rule 25(a) of the Fifth Circuit provides for a re­
hearing in any case upon vote of a majority of the cir­
cuit judges in active service for any reason which ap­
pears to them to be sufficient in the particular case. 
Ordinarily, a hearing or rehearing en banc is not or­
dered except “ when necessary to secure or maintain 
uniformity or continuity in the decisions of the court, 
etc.” The majority opinion simply does not reflect the 
well considered and firmly stated composite decision 
of this Circuit; and in that view, is not an accurate 
or proper statement of the law in this case as it now 
exists in the Fifth Circuit.

The Civil Rights Act of 1964 (42 U.S.C., 1958 ed., 
§2000c-6) refers to “ desegregation in public educa­
tion”  and not to forced mixing or integration of the 
races. That same section states “ provided that noth­
ing herein shall empower any official or court of the 
United States to issue any order seeking to achieve



152 U. S., et al. v. Jeff. County Bd. of Educ., et al.

a racial balance in any school by requiring the trans­
portation of pupils or students from one school to an­
other or one school district to another in order to 
achieve such racial balance, or otherwise enlarge 
the existing power of the court to insure compliance 
with constitutional standards.”  The English language 
simply could not be summoned to state any more 
clearly than does that very positive enactment of Con­
gress, that these so-called “ guidelines”  of this ad­
ministrative agency are not sacrosanct expositions 
of school law (if so intended), but are actually pro­
mulgated and being used in opposition to and in viola­
tion of this positive statute. Contrary to the majority 
opinion, it was never the intention or purpose of the 
Congress to constitute the Commissioner of Health, 
Education and Welfare as the sidewalk superintend­
ent of this Court in these school cases. On the con­
trary, 42 U.S.C., 1958 ed., §2000c-2 provides that the 
Commissioner, only upon application of a school 
hoard, state, municipality, school district or other 
governmental unit, can render any technical assist­
ance to such an applicant. Nowhere in that act is it 
contemplated that this court should abdicate its pow­
er and authority to act upon and decide a case on ap­
peal to it as a court of equity, and simply decide it 
by rubber stamping one of the annual guideline bul­
letins of an administrative bureau of the United States 
in Washington. The attitude and position of this Court 
in doing exactly that in this case is not improved by 
disavowing any intention or purpose to do so.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 153

There were seven consolidated cases before the 
Court which are embraced in this decision. Most, if 
not all, of the plans in those cases were defective and 
needed updating for a more realistic and effective ap­
plication of the free choice principle under the former 
decisions of this Court; but they did not need or de­
serve the harsh and unprecedented treatment ac­
corded these schools by the majority decision in these 
cases. The colored children are not befriended and 
their lot is not improved by this unprecedented ma­
jority opinion and the entire school system will suffer 
under the impact of this improvident administrative 
directive as thus adopted by this Court.

My duty impels me to file this DISSENT to the ma­
jority view in these cases with great deference to both 
of my distinguished associates.

Adm. Office. U. S. Courts— E. S. Upton Printing Co., N. O., La.



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