McKennon v. Nashville Banner Publishing Co. Respondent's Brief in Opposition

    U. 8. count OF APPEALS 

FILED 

DEC 11 1969 

EDWARD W. WADSWORTH, 

CLERK 

IN THE UNITED STATES COURT OF APPEALS 

POR THE FIFTH CIRCUIT 

  

NOS. 28030 and 28042 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant 

V. 

AMITE COUNTY SCHOOL DISTRICT, 

ET AlL., 

Defendants-Appellees 

  

The Amite County School District, et al, is under an 

order of this court dated November 7, 1969 to convert to a 

unitary school system not late: tl an December 31, 1969. The 

conversion is to take place under a plan devised by the Office 

of Education {(HEW). 

The school district has moved to amend the plan only 

to the extent of pupil assignment. The proposed modification 

is to assign the students on the basis of sex to the four 

schools in the district. All male students would attend either 

Central School or Amite County Training School, whichever is 

nearest his residence, and all female students would attend 

 



  

Liberty Attendance Center or Gloster Attendance Center, which- 

ever is nearest her reisdence. 

It appears that the defendant school board has ap- 

pointed a bi-racial committee to advise with the school board 

regarding the proposed modification and other school matters. 

The committee was to be composed of five white and five Negro 

school patrons, two residing in each of the five Coralie lois 

districts of the county. One Negro citizen refused to serve 

and the committee proceeded with only nine members. An af- 

fidavit on file with this court demonstrates that the plan 

received the unanimous approval of the bi-racial committee. 

| Meanwhile, a citizen group, headed by the Negro bi- 

racial committee member who refused to sovire; has filed an 

objection to the plan and to the composition of the bi-racial 

committee. It is their position that five members of this 

group were selected by the Negro community to serve on the 

bi~-racial committee but only one of their members was so 

chosen. They also say they were not permitted to partici- 

pate in the meeting of the bi-racial committee. The school 

board counters that the bi-racial committee is representative 

of the Negro community and that those proposed by protestants 

ste not. It is clear that we cannot resolve this local dis- 

pute pending the beginning of school after December 31, 1969. 

The difficult question presented on a motion to 

approve a plan for the assignment of students by sex, once 

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the school district has been ordered to convert to a unitary 

system, comes in determining whether the plan stems from 

educational purposes as distinguished from racially discri- 

minatory purposes. Stated differently, is racial discrimina- 

tion the motivation for the plan or does it have its basis 

in educational purposes? 

The court is reluctant to permit the use of such 

a plan except upon a finding based on proof that the plan 

was devised and is to be promulgated for educational purposes 

only. Such a finding can best be made upon a hearing before 

Honorable Dan M. Russell, Jr. according to the procedure 

plovided in our order of November 7, 1969. The court will 

permit the use of the proposed plan for the balance of the 

current school term as an interim emergency measure to stab- 

lize the education process in this school district. The 

authority is not to be construed as a precedent except in the 

exigencies of the particular groun of Mississippi cases 

Woiaeves in our order of November 7), of which this case is 

one. Whether such a plan may be used in the 1970-71 school 

term, if desired, will depend upon the findings and recom- 

mendations of Judge Russell and upon the final Ordos of this 

court on the question. The question should be presented to 

Judge Russell by the defendant School Board. 

a 

 



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The motion to amend and modify, as aforesaid, is 

GRANTED on the terms and conditions herein stated. The order 

of the court of November 7, 1969 is otherwise to continue in 

full force and effect. 

This 2 gay of December, 1969, 

- ’ 2 ik | gt sb 1! Prin 1% ord tn 

  

Griffin B. Bell 

United States Circuit Judge 

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Homer Thornberry 

United States Circuit Judge 

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LJ 

  

  

Lewis R. Morgan 

United States Circuit Judge