Davis v. Mobile County Board of School Commissioners Brief for Petitioners
Public Court Documents
January 1, 1970
Cite this item
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Brief Collection, LDF Court Filings. Davis v. Mobile County Board of School Commissioners Brief for Petitioners, 1970. 93020522-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e19cf62f-5b13-40c3-aef0-deca954148de/davis-v-mobile-county-board-of-school-commissioners-brief-for-petitioners. Accessed May 17, 2025.
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In the
Bnpxmxx ©curt nf thx Hnita* States
O ctober T erm 1970
No. 436
B irdie M ae D avis, et al.,
v.
Petitioners,
B oard of S chool Commissioners op
M obile C o u nty , et al.
on w r it op certiorari to th e united states
COURT OP APPEALS POR THE PIPTH CIRCUIT
BRIEF FOR PETITIONERS
J ack Greenberg
J ames M. N abrit, III
M ichael D avidson
N orman J. Ch a c h k in
10 Columbus Circle
New York, New York 10019
V ernon Z. Crawford
A lgernon J. C ooper
1407 Davis Avenue
Mobile, Alabama 36603
A n t h o n y G. A msterdam
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
I N D E X
PAGE
Opinions Below ........................... ................................—- 1
Jurisdiction ............. 5
Constitutional Provision Involved .............................. 5
Questions Presented................. ...................................... 6
Statement .............. 7
1. A Brief Overview of the School System.... . 7
2. Summary of Proceedings in the Courts Below 9
3. The Techniques of Segregation....................... 27
Summary of Argument .............................................- 40
A rgument :—
I. Introduction ................................................... 44
II. The Fifth Circuit’s Approach to Final
School Desegregation Plans Since Alexan
der and Carter ................................................ 49
A. Ellis v. Board of Public Instruction of
Orange County: Announcement of the
“Neighborhood School” Concept........ 49
B. Analysis of the “ Neighborhood School”
Concept, Fifth Circuit Style ................. 52
C. Application of the Fifth Circuit Ap
proach in Mobile—the Opinion Below 58
III. The Parallel Doctrine- Applied by the
Fourth Circuit .............................................. 62
11
IV. The Legal Principles This Court Should
Declare ........ ................................................... 63
V. Pinal School Desegregation Plans Should
Not Be Approved Without Evidentiary
Hearings. Petitioners Were Denied Due
Process by the District Court’s Ex Parte
PAGE
Procedures in Deciding the Case ............ . 80
Conclusion ................................................................................. 85
A ppendix ................................................................ ............... la
Table of Cases:
Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968) .... 50, 78
Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969) ...........................8,44,45,49,76,78,79
Allen v. Board of Public Instruction of Broward
County, No. 30032 (5th Cir., Aug. 18, 1970) ....53, 55, 57,
71, 74
Andrews v. City of Monroe, 425 F.2d 1017 (5th Cir.
1970) ..................................... ....................................52,53,71
Bradley v. Board of Public Instruction of Pinellas
County, No. 28639 (5th Cir., July 1, 1970), new
opinion substituted on rehearing (July 28, 1970) 52, 55
Brown v. Board of Education, 347 U.S. 483 (1954) 40, 43,
44, 45, 46, 48, 58, 61, 64, 66, 71,
72, 73, 75, 76, 78, 79
Brown v. Board of Education, 349 U.S. 294 (1955) 44,46
Brown v. Board of Education of City of Bessemer,
No. 29209 (5th Cir., Aug. 28, 1970) ...................53,71,79
Brunson v. Board of Trustees of School District
No. 1 of Clarendon County, South Carolina, No.
14,571 (4th Cir., June 5, 1970) 64
I l l
Carr v. Montgomery County Board of Education,
No. 29521 (5th Cir., June 29, 1970) ....................... 52
Carter v. West Feliciana Parish School Board, 396
U.S. 290 (1970) .............................. 8,18,42,44,49,62,64,
78, 79, 82, 2a
Conley v. Lake Charles School Board, No. 30100
PAGE
(5th Cir., Aug. 25, 1970) .......................................... 53
Cooper v. Aaron, 358 U.S. 1 (1958) .......................... 73
Davis v. Board of School Commissioners of Mobile
County, 318 F.2d 63 (5th Cir. 1963) ....................... 10
Davis v. Board of School Commissioners of Mobile
County, 322 F.2d 356 (5th Cir. 1963), amended
in part on rehearing, 322 F.2d 359 (5th Cir. 1963),
stay denied, 11 L.Ed.2d 26, cert, denied, 375 U.S.
894 (1963), rehearing denied, 376 U.S. 898 (1964) 10,38,
47
Davis v. Board of School Commissioners of Mobile
County, 333 F.2d 53 (5th Cir. 1964), cert, denied,
379 U.S. 844 (1964) .................................................. 10
Davis v. Board of School Commissioners of Mobile
County, 364 F.2d 896 (5th Cir. 1966) ...........9,11, 47, 59
Davis v. Board of School Commissioners of Mobile
County, 393 F.2d 690 (5th Cir. 1968) ...................7,11,12
Davis v. Board of School Commissioners of Mobile
County, 414 F.2d 609 (5th Cir. 1969) ................... 50, 81
Davis v. Board of School Commissioners of Mobile
County (Davis v. United States), 422 F.2d 1139
(5th Cir. 1970) .................................................9,12,76,83
Ellis v. Board of Public Instruction of Orange
County, Fla., 423 F.2d 203 (5th Cir. 1970) ....23, 41, 50, 51,
56, 57, 59, 72, 75
Goldberg v. Kelly, 397 U.S. 254 (1970) .... 43, 84
IV
Grannis v. Ordean, 234 U.S. 385 (1914) ....................... 84
Green v. County School Board of New Kent County,
391 U.S. 430 (1968) .............................. 44, 49, 70, 76, 78, 79
Hall v. St. Helena Parish School Board, 417 F.2d 801
(5th Cir. 1969), cert, denied, 396 U.S. 904 (1969) .... 50
Hall v. West, 335 F.2d 481 (5th Cir. 1964) ............... 84
Haney v. County Board of Education of Sevier
County, Ark., 410 F.2d 920 (8th Cir. 1969) .... ...... . 63
Harvest v. Board of Public Instruction of Manatee
County, No. 29425 (5th Cir., June 26, 1970) ........... 52
Henry v. Clarksdale Municipal Separate School Dist.,
409 F.2d 682 (5th Cir. 1969), cert, denied, 396 U.S.
940 (1969) ................................... ........... ........... 50,54,78
Henry v. Clarksdale Municipal Separate School Dist.,
No. 29165 (5th Cir., Aug. 12, 1970) .................... 53, 55, 57
Hightower v. West, No. 29993 (5th Cir., July 14,
1970) ................................................... ....... .............. 52,57,75
Interstate Commerce Commission v. Louisville &
N. R. Co., 227 U.S. 88 (1912)............................ ....... 84
Lee v. Macon County Board of Education, No. 29584
(5th Cir., July 15, 1970) .......................... ................... 52
Louisville ex rel. Gremillion v. NAACP, 366 U.S.
293 (1961) .... ...... ................. ........... ............................. 83
Mannings v. Board of Public Instruction of Hills
borough County, No. 28643 (5th Cir., May 11,
1970) ............................................................. 23, 52, 56, 60, 61
Monroe v. Board of Commissioners, 391 U.S. 450
(1968) .............................. ........... ........ ........................ 49
Morgan v. United States, 298 U.S. 468 (1936) ...... . 43, 84
Northcross v. Board of Education, 397 U.S. 232
(1970)
PAGE
44
V
Ohio Bell Telephone Co. v. Public Utilities Commis-
ison, 301 U.S. 292 (1937) ................. ........................ 43,84
Pate v. Dade County School Board, Nos. 29039 and
29179 (5th Cir., Aug. 12, 1970) .............................. 53
Raney v. Board of Education, 391 U.S. 443 (1968) .... 50
Robertson v. Natchitoches Parish School Board, No.
30031 (5th Cir., Aug. 31, 1970) ......................... .... 53
Ross v. Eckels, No. 30080 (5th Cir., Aug. 25, 1970) .... 53, 55,
57, 76, 77
Singleton v. Jackson Municipal Separate School, 426
F.2d 1364 (5th Cir. 1970) .......................................... 52, 53
Singleton v. Jackson Municipal Separate School
Dist., 419 F.2d 1211 (5th Cir. 1969) ...................... 18
Swann v. Charlotte-Mecklenburg Board of Educa
tion, ------ F .2d------- (4th Cir., May 26,1970) .......45, 60, 62,
64, 69, 71, 75
Swann v. Charlotte-Mecklenburg Board of Educa
tion, No. 281, O.T. 1970 ....... .............................53, 62, 63, 68
Tillman v. Board of Public Instruction of Volusia
County, No. 29180 (5th Cir., July 21, 1970) ........ . 52
United States v. Greenwood Municipal Separate
School District, 406 F.2d 1086 (5th Cir. 1969), cert,
denied, 395 U.S. 907 (1969) ...................................... 50, 54
United States v. Hinds County School Board, 417
F.2d 852 (5th Cir. 1969), reversed sub nom. Alex
ander v. Holmes County Board of Education, 396
U.S. 19 (1969) ................................... .......................... 50
United States v. Indianola Municipal Separate
School District, 410 F.2d 626 (5th Cir. 1969), cert,
denied, 396 U.S. 1011 (1970) ............................ ....50, 72, 78
PAGE
VI
Valley v. Rapides Parish School Board, No. 30099
PAGE
(5th Cir., Aug. 25, 1970) ............................... .......... 53
Wright v. Board of Public Instruction of Alachua
County, No. 29999 (5th Cir., Aug. 4,1970) ............... 53
Wright v. County School Board of Greensville
County, Va., 309 F. Supp. 671 (E.D. Va. 1970) ..... 63
Youngblood v. Board of Public Instruction of Bay
County, Fla. ------ F .2 d ------ (5th Cir. No. 29369,
May 24, 1970) .............................................................. 53
Statutes:
28 U.S.C. §1254(1) .......................................................... 5
42 U.S.C. § 2000h-2............................................. ............ 9
Other Authority:
Statement of the United States Commission on Civil
Rights Concerning the “Statement by the Presi
dent on Elementary and Secondary School Deseg
regation,” April 12, 1970 ...................................... 68,74,77
I k t h e
Supreme (Emtrt nf % luttefc States
October Term, 1970
No. 436
B irdie M ae D avis, et al.,
v.
Petitioners,
B oaed oe S chool C ommissiokers op
M obile C ouhty , et al.
OK WRIT OF CERTIORARI TO THE UKITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF FOR PETITIONERS
Opinions Below
The opinions and orders of the courts below are as
follows:
1. Order of the district court filed April 25, 1963, re
ported at 8 Race Rel. L. Rep. 480.
2. Opinion of the court of appeals dismissing the ap
peal, filed May 24, 1963, reported at 318 F.2d 63.
3. Opinion and order of the district court filed June 24,
1963, reported at 219 F. Supp. 542.
2
4. Opinion of the court of appeals issuing an injunction
pending appeal July 9, 1963, and denying rehearing July
18, 1963, reported at 322 F.2d 356.1
5. Order of the district court filed July 26, 1963, re
ported at 8 Race Rel. L. Rep. 901.
6. Order of the district court filed August 23, 1963, re
ported at 8 Race Rel. L. Rep. 907.
7. Opinion of the court of appeals filed June 18, 1964,
reported at 333 F.2d 53.2 3
8. Order of the district court issued June 29, 1964, re
ported at 9 Race Rel. L. Rep. 1177.
9. Order of the district court issued July 31, 1964, re
ported at 9 Race Rel. L. Rep. 1179.
10. Opinion and order of the district court issued March
31, 1965, reported at 10 Race Rel. L. Rep. 1016.
11. Opinion of the court of appeals filed August 16,
1966, reported at 364 F.2d 896.
12. Opinion and order of the district court filed October
13, 1967, reported at 12 Race Rel. L. Rep. 1820.
13. Opinion of the court of appeals filed March 12, 1968,
as modified on denial of rehearing, April 26, 1968, reported
at 393 F.2d 690.
1 Stay denied, 84 S.Ct. 10, 11 L.Ed.2d 26 (1963) (Mr. Justice
Black, in Chambers) ; cert, denied, 375 U.S. 894 (1963).
3 Cert, denied, 85 S.Ct. 85 (1964).
3
14. Opinion and order of the district court filed July 29,
1968, unreported.
15. Order of the district court filed August 2, 1968,
unreported.
16. Order of the district court filed December 20, 1968,
unreported.
17. Order of the district court filed March 14, 1969,
unreported.
18. Order of the court of appeals denying injunction
pending appeal, filed March 20, 1969, unreported.
19. Order of the district court filed April 7, 1969,
unreported.
20. Order of the court of appeals granting reconsidera
tion and issuing injunction pending appeal, filed May 6,
1969, unreported.
21. Opinion of the court of appeals filed June 3, 1969,
reported at 414 F.2d 609.
22. Opinion and order of the district court filed August
1, 1969, unreported.
23. Opinion of the court of appeals filed December 1,
1969, reported at 419 F.2d 1211.
24. District court order of January 28, 1970, unreported.
25. Opinion and order of the district court filed January
31, 1970, unreported.
4
26. Order of the district court tiled February 4, 1970,
unreported.
27. Opinion of the court of appeals filed February 16,
1970, reported at 422 F.2d 1139.
28. Order of the district court filed February 27, 1970,
unreported.
29. Order of the district court of March 12, 1970, un
reported.
30. Order of the district court of March 16, 1970, un
reported.
31. Eemand order of the court of appeals of March 25,
1970, not yet reported.
32. Order of the district court of March 31, 1970, un
reported.
33. Order of the district court of April 14, 1970, un
reported.
34. Opinion of the court of appeals filed June 8, 1970,
not yet reported.
35. Judgment of the court of appeals issued June 8,1970.
36. Order of the district court of June 12, 1970, un
reported.
37. Court of appeals orders on rehearing of June 29,
1970, not yet reported.
38. Opinion-order of the district court filed July 13,
1970, unreported.
5
39. Opinion-order of the district court issued July 30,
1970, unreported.
40. Opinion of the court of appeals issued August 4,
1970, not yet reported.
41. Judgment of the court of appeals issued August 4,
1970, recalling the judgment issued June 8, 1970, and sub
stituting therefor.
42. Opinion-order of the court of appeals issued August
28, 1970, not yet reported.
43. Orders of the district court filed September 4, 1970,
unreported.
Jurisdiction
The judgment of the court of appeals was entered on
June 8, 1970. Additional orders supplementing the man
date were entered August 4, 1970, and August 28, 1970.
The jurisdiction of this Court is invoked under 28 U.S.C.
§1254(1). The petition for a writ of certiorari was filed
in this Court on July 23, 1970. August 31, 1970, the Chief
Justice entered an order setting a briefing schedule and
argument date, and deferring action on the petition.
Constitutional Provision Involved
This case involves the Equal Protection Clause of the
Fourteenth Amendment to the Constitution of the United
States.
6
Questions Presented
Upon request from the courts below, the United States
Department of Health, Education, and Welfare developed
several plans to desegregate public schools in Mobile
County, Alabama. One plan integrated each school in the
system by establishing a number of school pairings and
clusters which necessitate the incidental transportation of
both black and white students. This technique of student
assignment—the use of school attendance zones with non
contiguous parts and the transportation of students—had
long been used in the Mobile school system to maintain
segregated schools. In spite of this history and without
any evidentiary hearing in the district court, the court of
appeals rejected this H.E.W. plan and ordered the imple
mentation of a plan which leaves 50% of the black ele
mentary students in metropolitan Mobile in all-black
schools. The rejection of the H.E.W. plan was based solely
on the court’s deference to a hypothetical “neighborhood
school concept” which Mobile’s history demonstrates it
never had. Two questions are presented to this Court:
(1) Whether black students are denied the equal pro-
tion of the laws when in the name of a newly conceived
“neighborhood school concept” they continue to be assigned
to segregated black schools despite the availability of al
ternative methods of student assignment which would de
segregate every school in the system and which are proved
workable by the school board’s past use of the same as
signment techniques, and
(2) Whether petitioners are entitled to an evidentiary
hearing in the district court prior to the approval of a
final desegregation plan!
7
Statement
1. A Brief Overview of the School System.
Mobile has a combined rural and metropolitan school
system serving the whole of Mobile County. It is the
largest school system in Alabama. During the 1969-70
school year, 91 schools served 73,504 students, of whom
42,620, or 58%, were white and 30,884, or 42%, were black.3
Throughout the litigation to desegregate Mobile’s schools,
the rural and metropolitan portions of the system have
been treated separately. Since September 1969, the rural
portion of the system has been desegregated adequately
and this brief concerns only the metropolitan area com
prised of the contiguous cities of Mobile, Prichard and
Chickasaw. Within the metropolitan area, 65 schools served
54,913 students during 1969-70, of whom 27,769, or 50.5%,
were white and 27,144, or 49.5% were black.
In addition to the rural-metropolitan division, another
division has more recently been advanced in this litigation.
This newer division is between the eastern and western
parts of the metropolitan area with Interstate Highway
3 The school board is under an order to submit reports to the
district court and opposing counsel within one week after the
beginning of every school year “showing the number of students
by school, grade, and race, expected and actually enrolled at the
schools in Mobile County.” 393 F.2d at 699. The statistics cited
in this brief overview are taken from the school board’s last report
which was filed on November 20, 1969, more than two months
after it was due and only after petitioners and the United States
moved to hold board officials in contempt. If the school board
complies with the order this year and files reports within a week
of the system’s September 9, 1970, opening, the petitioners will be
able to furnish the Court with current statistics. Most importantly,
the school board report will indicate the actual results of the
desegregation plan implemented by the courts below.
8
1-65 used as a north-south divider.4 * The western part is
predominantly white with 17 schools serving 13,875 stu
dents during 1969-70, of whom 12,172, or 88%, were white
and 1,703, or 12%, were black. These statistics reflect the
concentration of a majority of Mobile’s black citizens in a
racial ghetto located in the northeastern part of the City.
The controversy which led to the inclusion of Mobile
among the cases considered by this Court in Carter v. West
Feliciana Parish School Board, 396 U.S. 290 (1970), con
cerned the decisions of the courts below to treat separately
the predominantly white and majority black parts of met
ropolitan Mobile by permitting the formulation of sepa
rate plans for each and delaying the desegregation of the
majority-black part until 1970-71. Now that this Court’s
mandates in Alexander v. Holmes County Board of Edu
cation, 396 U.S. 19 (1969), and Carter v. West Feliciana
Parish School Board, supra, have precluded any further
delays by making clear that desegregation must be accom
plished “now” the school board and the courts belowT have
justified the continued segregated education of at least
50% of the black elementary school students living in
metropolitan Mobile by continuing to insulate the predomi
nantly white portions of metropolitan Mobile from par
ticipation in a system-wide plan of desegregation through
the adoption of a “neighborhood school concept.”
41-65 is a federally aided highway which for a considerable
extent of its route through Mobile acts as the dividing line between
black and white residential areas; it was constructed during the
1960’s.
9
2. Summary of Proceedings in the Courts Below,
This action by black parents and students to desegregate
Mobile County’s public schools began in 1963.6 The United
States intervened in 1967 as a plaintiff pursuant to 42 U.S.C.
<§, 2000h-2 and has participated in all stages of this litiga
tion since that time. Successive groups of white parents
intervened in 1968 and earlier this year to press for the
adoption of freedom-of-choice plans. Neither group of
white parents participated in the recent proceedings in the
court of appeals nor responded to the petition for certiorari.
a. March 1963—June 1969.
The early years of this litigation were consumed by peti
tioners’ efforts against strong resistance to initiate the
desegregation process in Mobile. The first of the many
appeals in this action concerned the district court’s failure
to rule on petitioners’ motion in March, 1963, to begin inte
6 The school board, although petitioned on several occasions by
black citizens, did nothing to begin desegregation between 1954
and 1963. As Judge Tuttle subsequently stated:
It must also be borne in mind that this school board ignored
for nine years the requirement clearly stated in Brown that
the school authorities have the primary responsibility for
solving this constitutional problem.
Davis v. Board of School Commissioners of Mobile County, 364
F.2d 896, 898, n. 1 (5th Cir. 1966) (67a). The delay in initiating
desegregation has been further compounded by the painfully slow
progress of this litigation. In a recent opinion in a collateral pro
ceeding Judge Goldberg observed:
For almost a decade there have been judicial efforts to deseg
regate the schools of Mobile County, Alabama. We do not
tarry now to count the many appeals to this court in further
ance of this hope, for we are concerned today with only a
single recent episode in this almost Homeric Odyssey. We
wonder when the epilogue will be written.
Davis v. Board of School Commissioners of Mobile County, 422
F.2d 1139, 1140 (5th Cir. 1970) (611a).
10
gration in the 1963-64 school year. The court of appeals
denied relief while instructing the district court that Mo
bile’s schools were unlawfully segregated and that it was
under a duty to rule promptly on petitioners’ motion. Davis
v. Board of School Commissioners of Mobile County, 318
F.2d 63-64 (5th Cir. 1963) (3a). After the district court did
rule by postponing any relief until the 1964-65 school year,
petitioners appealed and the court of appeals ordered the
school board to start desegregation by enrolling without
discrimination only those first grade students, and other
students moving into the county for the first time, who
satisfied the stringent requirements of the Alabama Pupil
Placement Law. Davis v. Board of School Commissioners
of Mobile County, 322 F.2d 356, amended in part on rehear
ing, 322 F.2d 359 (5th Cir. 1963) (14a), stay denied, 11
L.Ed.2d 26 (Mr. Justice Black, Circuit Justice), cert, denied,
375 U.S. 894 (1963), rehearing denied, 376 U.S. 928 (1964).
On remand the district court ordered the implementation
of a plan which was limited to high school seniors and ex
cluded first grade elementary students. Another appeal
followed immediately and the court of appeals ordered the
implementation of the assignment and transfer provisions
of the Alabama Pupil Placement Law at a rate faster than
one grade a year and required the abolition of Mobile’s
dual attendance zones as the plan affected each additional
grade. Davis v. Board of School Commissioners of Mobile
County, 333 F.2d 53 (5th Cir. 1964) (36a), cert, denied, 379
U.S. 844 (1964).
In response to the orders to abolish dual attendance zones
Mobile devised an assignment plan which the court of ap
peals in a fourth appeal struck down as effectively perpetu
ating the effects, if not the form, of the dual system. First,
attendance zones were drawn which conformed generally
with the racial character of neighborhoods and assignments
11
from elementary schools to junior high schools and then to
senior high schools were determined on a racial basis.
Davis v. Board of School Commissioners of Mobile County,
364 F.2d 896, 900 (5th Cir. 1966) (67a). Then, students
“were given the option of attending the school of their
‘area’ (unmistakingly identifiable as either a Negro or
white ‘area’ ) or the nearest school, outside the area,
formerly predominantly of the race” {id. at 903), a device
which the court of appeals found was plainly designed to
permit white students living in a black area to transfer to
white schools and “a plain violation of the oft-repeated
requirement that dual school zones must be abolished”
{ibid.). As a result, the court of appeals found that “ less
than two-tenths of one percent of the Negro children in
the system are attending white schools” and concluded
“there is no true substance in the alleged desegregation”
{id. at 901).
The school board then responded by drawing new bound
ary lines for some metropolitan attendance areas but still,
rather than actually assigning students to schools serving
their attendance area, offering options to students to at
tend either the school serving his attendance zone or the'
nearest “ formerly” white or black school. Although little
additional desegregation occurred (only 692, or 2%, of
Mobile’s black students attended white schools), the dis
trict court approved the school board’s plan and petitioners
appealed for the fifth time. The court of appeals found
that the results of the board’s plan “make inescapable the
inference that discrimination yet exists.” Davis v. Board
of School Commissioners of Mobile County, 393 F.2d 690,
693 (5th Cir. 1968) (122a). Addressing itself solely to
schools in metropolitan Mobile, the court of appeals re
jected the school board’s zones and ordered the redrawing
of attendance areas “according to strictly objective criteria
12
with the caveat that a conscious effort should be made to
move boundary lines and change feeder patterns which
tend to preserve segregation.” Davis v. Board of School
Commissioners of Mobile County, 393 F.2d 690, 694 (5tli
Cir. 1968) (122a). The court of appeals further ordered
that following the revision of attendance zones all students
should be required to attend the school serving their zone
in the absence of a compelling non-racial reason [id. at
697). In the rural portion of the system the court of appeals
allowed the board to use a freedom-of-choice plan lid. at
695).
Once again a remand to the district court failed to re
sult in an adequate desegregation plan. Three appeals
were taken from orders of the district court (the sixth,
seventh and eighth in this litigation), consolidated by the
court of appeals, and decided on June 3, 1969. Davis v.
Board of School Commissioners of Mobile County, 414
F.2d 609 (5th Cir. 1969) (186a). The current phase of this
case began with this decision.
b. June 1969—June 1970.
The main issue before the court of appeals in June 1969
was whether the school board and the district court had
complied with the previous decision of the court of ap
peals in establishing school attendance zones for elemen
tary and junior high schools, and maintaining freedom of
choice for high school students in metropolitan Mobile.
A second issue was retention of freedom of choice for all
students in rural Mobile County. The court of appeals
found that the district court had “ignored the unequivocal
directive to make a conscious effort in locating attendance
zones to desegregate and eliminate past segregation.” 414
F.2d at 610. Freedom of choice in metropolitan high
schools and all rural schools, where only 6% of all black
13
students attended white schools, was also held to be un
acceptable. Accordingly, the court of appeals ordered the
prompt formulation of a plan “to fully and affirmatively
desegregate all public schools in Mobile County, urban
and rural . . . ” and directed the district court to request
the Office of Education, of the United States Department
of Health, Education, and Welfare to collaborate with the
school board and submit its own desegregation plan if
agreement with the board was not possible {ibid.).
The original plan of the team of educators organized by
Ii.E.W .,6 consistent with the court of appeals’ directions,
placed the initiative with the school board. The board was
asked to develop a plan which would be jointly reviewed
by the H.E.W. team and school officials to determine
whether amendments could be made to increase desegre
gation by changing zone lines, pairing schools, and re
6 Four educators were involved in the preparation of H.E.W.
recommendations: Mr. Jesse Jordan, the Senior Program Officer
in the Atlanta Regional Office of the Equal Educational Oppor
tunities Division of the United States Office of Education repre
sented the Department of Health, Education and Welfare. Prior
to joining H.E.W. Mr. Jordan had been a teacher, principal, and
Assistant Superintendent of Schools in Cobb County, Georgia.
The actual study of Mobile was undertaken by Dr. Joe Hall, a
Visiting Professor of Education at the University of Miami and
Assistant Director of the Florida School Desegregation Consulting
Center. The desegregation center is located at the University of
Miami and financed under Title IV of the Civil Rights Act of 1964.
Prior to joining the desegregation center, Dr. Hall served eleven
years as Superintendent of Schools for Dade County (Miami),
Florida. Dr. Hall also has been employed as a teacher and prin
cipal in Carrabelle and Leon County, Florida, Director of the
Division of Instruction in the Florida State Department of Edu
cation, and Director of Instruction, Assistant Superintendent for
Instruction and Associate Superintendent of Instruction in Dade
County, Florida (362a). Dr. Hall was assisted by Dr. Michael
Stolee, Director of the Florida School Desegregation Consulting
Center, and Dr. Larry Weinkoff of the University of South Carolina.
14
structuring grades (396a).7 School officials did de
velop plans for both rural and metropolitan schools. How
ever, after joining the H.E.W. team in a review of the
rural plan school officials severed working relationships
with H.E.W. and obliged the H.E.W. team to prepare its
own recommendations (440a).
In the absence of agreement with the school board,
H.E.W. submitted its own county-wide desegregation plan
on July 10, 1969.8 The plan provided for zoning all schools
7 The school board took the depositions of Dr. Hall and Mr.
Jordan on July 15 and 16, 1969, after H.E.W. submitted its report
to the district court on July 10, 1969. The depositions were filed
in the district court on July 23, 1969, but in the absence of any
evidentiary hearing on H.E.W.’s plan were never moved into evi
dence. Apart from subsequent self-serving affidavits prepared by
Mobile’s Associate Superintendent of Schools, James A. McPherson,
these depositions are the only testimony concerning the preparation
of H.E.W.’s July 10, 1969 plan. An effort by the United States
to depose William B. Crane, president of the Mobile School Board
and Associate Superintendent McPherson was blocked when the
district court granted the school board’s motion that these deposi
tions not be taken (Docket Sheet No. 12).
s The failure of the school board to cooperate with H.E.W. in
preparing a plan for metropolitan Mobile inevitably meant that
there would be inaccuracies in H.E.W.’s recommendations. Dr.
Hall described the July 10, 1969, report as a “basic concept” (413a)
in which “adjustments” would be necessary (412a). Among the rea
sons why complete accuracy was not possible was that the school
board never amended the statistical information furnished by it to
the district court in 1968 pursuant to an order of the court of ap
peals, 393 F.2d at 698. Aware of this fact, Dr. Hall specifically
invited the school board to correct H.E.W.’s work. In a colloquy
with the school board’s attorney, Dr. Hall said: “ If you or the mem
bers of the school system found some error, I think you would have
an obligation to tell us.” The school board attorney responded: “ I
am sure we would if we did” (439a). The district court reiterated
H.E.W.’s invitation to the school board: “H.E.W. readily acknowl
edges that this plan is not perfect and invites the school board to
suggest improvements” . Yet, in spite of the fact that this invitation
was ignored, the school board has continued to cite inaccuracies in
H.E.W.’s recommendations. Subsequently, the court of appeals
noted the school board’s failure to cooperate in response to the
board’s claim that H.E.W. was inaccurate: “ The defendants warn
15
in rural and metropolitan Mobile (some schools would be
paired within zones), closing four black schools in eastern
Mobile, and transporting 2,000 black students from the
closed schools to white schools in the western and southern
parts of the metropolitan area. The plan failed in two
respects to adequately desegregate Mobile’s schools: (1)
it retained five large all-black elementary schools serving
5,500 students because H.E.W. was unwilling to recom
mend the transportation of white students in addition to
the transportation of black students; and (2) the plan
deferred desegregation in eastern metropolitan Mobile,
where 85% of the system’s black students live, until
1970-71.
The retention of all-black schools in H.E.W.’s plan was
explained by H.E.W. in terms of its uncertainty whether
“ assignments legally are required to be in the desegrega
tion plan if they require substantial additional transporta
tion,” an issue which H.E.W. considered to be “a legal
question which we can only leave to the parties and to
the court” (329a). In reality, however, H.E.W. was less
concerned about the legality of transportation generally
than it was about the transportation of white students.
As an educational matter, Dr. Joe Hall, who was prin
cipally in charge of preparing Ii.E.W.’s recommendations,
stated that while he always felt that it was better to have
less than more busing, he “always recognized that you had
to have busing in order to operate schools to get groups
of people together for educational purposes” (369a),
that “in our society today it is good for whites and
that the figures used by the Department of Justice and H.E.W. are
inaccurate. This may be true but the defendants, the only parties
in possession of current and accurate information, have offered no
help. This lack of cooperation and generally unsatisfactory condi
tion, created by defendants, should be terminated at once by the
district court” .
16
blacks to have associational experiences in a school situa
tion with each other” (371a), and “if it takes some
bussing to achieve that, I would say it -would be to the
advantage of all the children concerned” (372a). Con
cerning the competing value of neighborhood schools, Dr,
Hall held the view that while as a “general proposi
tion” he would not favor assigning children to schools out
side their neighborhoods, he did favor such assignments
“ as a specific proposition to achieve desegregation” (379a).
He noted that “all of us in education have been brought
up with the idea that the neighborhood school was
a good idea, and that the community and the school should
work together as a total situation (but) again I have
undergone some change in my thinking because in your
metropolitan areas your neighborhoods break down and
you just don’t have the neighborhood any more even
though you have a group of people that live close together”
(379a-380a).9
However, in applying these views, Dr. Hall only recom
mended the transportation of black students to available
spaces in white schools. As for the transportation of both
white and black students, Dr. Hall stated that “ at this
point in our educational philosophy we have not been will
ing to go to the cross-bussing idea” (448a) (em
phasis added). In his view “ cross-bussing doesn’t have the
financial support or the legal support or the community
support unless something in this case decides that it does
the legal support” (449a) (emphasis added). Of all
9 Mr. Jordan, in his deposition, expressed the view that it is
desirable to assign students to schools outside their neighborhoods
“if they obtain (a) better education where they are being trans
ferred to. . . . I think it’s better to take (students) to the point
where they can get the better education. Now, firmly believing,
based on research, that desegregated education is superior to segre
gated education, if a community school results in segregated educa
tion, then I think that is bad education” (477a).
17
these factors, it was the legal question to which Dr.
Hall would return. Speaking of the problem of desegre
gating the remaining all-black schools he said: “ [W ]e
could not figure out a way to do that without getting into
the problem of cross-bussing and we didn’t have a legal
decision yet on busses” (452a). The “ long-range” solu
tion which Dr. Hall envisaged was the construction of
new schools in integrated areas. For the present, in re
sponse to the question whether students in all-black schools
“will then continue to suffer as those in the past for the
lack of better educational opportunities,” Dr. Hall testi
fied: “That’s right, and the only recommendation, the only
part (sic) I can say at all to justify that is . . . that the
school system ought to make a strong effort there for
other aspects of compensatory education, which I said I
didn’t think were as effective as integration” (453a-454a).
Petitioners moved for an order implementing the H.E.W.
plan with amendments requiring the desegregation of the
five remaining all-black elementary schools and the im
mediate implementation of a plan throughout all of Mobile.
The United States moved for an order requiring the im
plementation of the H.E.W. plan without modifications,
and the school board moved to strike and expunge the
H.E.W. plan from the record but, in the words of the dis
trict court, “ filed absolutely no plan for the assistance
of the court” .
The directions of the court of appeals required that
“ [f]or plans as to which objections are made or amend
ments suggested or which in any event the District Court
will not approve without hearing, the District Court shall
commence hearings beginning no later than ten days after
the time for filing- objections has expired.” 414 F.2d at 611
(emphasis added). Nevertheless, in spite of petitioners’
timely objections, the district court, without an evidentiary
18
hearing, denied petitioners’ motion on August 1, 1969.10
The district court’s order provided only for the implemen
tation of H.E.W.’s plan for rural and western metropolitan
Mobile as modified by the court to eliminate the H.E.W.
proposal to transport 2,000 black students in northeastern
metropolitan Mobile to white schools in western and south
eastern metropolitan Mobile. The order also accepted
H.E.W.’s plan to defer desegregation in eastern metro
politan Mobile until 1970-71. Moreover, without the benefit
of evidence, and without offering any elaboration, the dis
trict court rejected H.E.W.’s deferred plan for eastern
metropolitan Mobile by finding that the plan “contains
some provisions which I think are both impractical and
educationally unsound” . The district court accordingly
ordered the school board to file a desegregation plan by
December 1, 1969, and directed further collaboration with
H.E.W.
Petitioners appealed the delay, the court of appeals
affirmed,11 Mr. Justice Black ordered the school board to
prepare for desegregation by February 1, 1970,12 and this
Court reversed the delay.13 The case returned to the dis
trict court in late January 1970 for second semester im
plementation of a plan to complete the desegregation of
Mobile’s schools.
10 The district court did hold an ex parte conference with the
school board and H.E.W. officials on July 3, 1969. Petitioners’
attorneys had no notice of the meeting and were not present. The
meeting was acknowledged by the school board’s attorney in his
motion to Mr. Justice Black in July 1969 seeking a stay of the
court of appeals’ June 3, 1969, decision.
11 Singleton v. Jackson Municipal Separate School District, 419
F.2d 1211 (5th Cir. 1970).
12 38 U.S.L.W. 3220 (1969).
13 Carter v. West Feliciana Parish School Board, 396 U.S. 290
(1970).
19
In the meanwhile, II.E.W. had submitted two additional
plans to the district court on December 1, 1969.14 * Using
the July 10, 1969 plan as a base (and labeling it Plan B),
II.E.W. proposed one modification (Plan B Alternative)
which totally eliminated the transportation of students by
continuing in operation the four black schools which the
July 1969 plan closed. Plan B Alternative would leave nine
all-black schools serving 7,971 students. The second mo
dification (Plan B -l Alternative) recommended closing two
black schools, and pairing or clustering all other black
schools in eastern Mobile with white schools in western
or southern Mobile. Transportation of both black and
white students would be required and all schools in the
system would be integrated.16
The same day the school board submitted its own plan
for eastern Mobile. It assigned 18,832 black students to
21 all or nearly all-black schools.16
The district court called attorneys for all parties to a
“pre-trial conference” in chambers on January 23, 1970
(603a). At the conference the following positions were
taken: (1) petitioners contended that the elementary school
provisions of H.E.W.’s Plan B-l Alternative and the junior
and senior high school provisions of H.E.W.’s Plan B should
14 The December 1, 1969, recommendations were prepared by Mr.
Jordan’s successor, Ernest E. Bunch, Acting Senior Program Offi
cer in the Atlanta Regional Office, Equal Opportunities Division
of the United States Office of Education.
16 Plan B-l Alternative involved only elementary schools. For
junior and senior high schools it proposed to incorporate the provi
sions of Plan B.
16 Petitioners, despite repeated requests, were not served with a
copy of the board’s plan and had to move on January 2, 1970, for
an order compelling service which was not made until the district
court granted the motion February 27, 1970.
20
be implemented forthwith, but if the transportation pro
posals made immediate relief impossible and the district
court selected another plan pendente lite, then a hearing
should be promptly set to determine a permanent plan;
(2) the United States proposed that the H.E.W. plan in
volving no transportation (Plan B Alternative) be imple
mented pendente lite while discovery and hearings on a
permanent plan proceeded; (3) the school board argued
against any changes in its operations; and (4) the district
court stated it would not consider the plans petitioners
supported and that the school board’s December 1, 1969,
plan was unacceptable without modifications.
The district court concluded the conference by asking the
school board for modifications of its December 1, 1969,
plan and the United States “for [a] revision of the H.E.W.
plan which the government thought should be followed for
the remainder of the present school year” (ibid.). The
school board failed to respond to the court’s request.17
The United States submitted a revision of H.E.W.’s no-
transportation alternative (Plan B Alternative) “as a plan
which could be implemented immediately to remain in
effect only for the present school year.” 18 Then, despite its
own characterization of the January 23 conference as a
17 In its January 31, 1970, order, the district court commented
on the board’s failure:
The school board and its staff of administrators and profes
sional educators, who know the Mobile Public School System
best, who have all the facts and figures which are absolutely
necessary for a meaningful plan, have not assisted or aided the
Court voluntarily. Consequently, the plan which is by this
decree being ordered is not perfect. . . .
18 Brief for the United States in the court of appeals, p. 22. The
memorandum of the United States in this Court in response to the
Petition for Certiorari reiterated the government’s position that in
the district court its plan had been proposed only for implementa
tion “immediately, pendente lite, to remain in effect until the con
clusion of the then-current school year” (p. 2, n. 1).
21
“pretrial conference” and both petitioners’ and the United
States’ clearly stated position that plaintiffs sought only
mid-year relief pending hearings on a permanent dese
gregation plan, the district court without an evidentiary
hearing entered an order on January 31, 1970, which pur
ported to finally disestablish the dual system in Mobile
(603a).
Mindless of its expressed view at the January 23, 1970,
conference that the board’s proposals were unacceptable,
the district court’s order adopted the school board’s Decem
ber 1,1969, plan with only several modifications. The order
left 18,623 black students, or 60% of the system’s black
students, in 18 all- or nearly all-black schools (680). The
court dismissed H.E.W.’s Plan B -l Alternative, which would
establish pairing and clusters of non-contiguous zones and
require transportation of students, by making the general
observation that it “would require busing of children from
areas of the city to a different and unfamiliar area (603a)
and by singling out one19 of the sixteen IJ.E.W. proposed
pairs or clusters, presumably to illustrate the court’s con
clusion that H.E.W.’s proposal was “motivated for the sole
19 The one elementary arrangement which the court singled out
involved three schools, two white and one black, in a cluster. All
students in the cluster would attend one of the white schools for
the first and second grades, the second white school for the third
grade, and the black school for grades four through six. Of the
remaining fifteen elementary school arrangements in H.E.W.’s Plan
B-l Alternative, only one other was similar. Eleven involved only
two schools with all students attending either the black or white
schools for two or three years and then attending the other school
for the remaining elementary school grades. Three other arrange
ments involved three schools, but required attendance at only two
schools. Under these arrangements all students in the cluster would
attend one school for grades one and two and then divide, with
one-half attending the second school in the cluster for grades three
through five and the other half attending the third school for the
same grades. Neither the simple pairing of two schools serving non
contiguous black and white zones nor this latter type of clustering
were discussed by the district court.
22
purpose of achieving racial balance” (ibid.). Similarly, the
court dismissed H.E.W.’s Plan B for junior high schools
by citing but one atypical proposal to establish a cluster
of three junior high schools, stating that in the court’s
view “the Supreme Court has not held that such drastic
techniques are mandatory for the sole purpose of achieving
racial balance” (ibid.).
Petitioners, the United States, and the school board, ap
pealed. Petitioners challenged both the failure of the dis
trict court to conduct an evidentiary hearing before
ordering a final plan and the court’s failure to require the
school board to implement H.E.W.’s plan to establish non
contiguous pairings and clustering and transport both
black and white students to achieve complete desegregation.
The United States, while acknowledging that “ if the past
practices of the school board can he relied upon as a guide,
they suggest that implementation of any of these plans
would be feasible,” asked the court of appeals to require
the implementation of H.E.W.’s sole no-transportation plan
for the negative reason that “no argument can be made
that Plan B Alternative, which is the most modest plan,
is either educationally unsound or administratively un
feasible.” 20 The school board, although cross appealing,
sought affirmance of the district court’s order.
The court of appeals, after remanding for further find
ings of fact,21 decided the appeal on June 8, 1970. The
court defined its judicial task in these words:
20 Brief for the United States in the Court of Appeals, p. 47.
21 The remand was required by the district court’s failure to
determine how the school board’s plan, which it adopted, would
affect the racial composition of any of the system’s schools. The
remand also directed the district court to make findings on the
extent of desegregation of faculty, transportation and extracur
ricular activities. Petitioners moved in the district court on April 6,
1970, to establish a procedure whereby after the board submitted
23
"We have examined each of the plans presented to
the district court in an effort to determine which would
go further toward eliminating all Negro or virtually
all Negro student body schools while at the same time
maintaining the neighborhood school concept of the
school system.
In the court’s view the neighborhood assignment system
allows two alternatives. One alternative requires the as
signment of each student to the school nearest his home
with such assignments limited only by the capacity of the
schools. Ellis v. Board of Public Instruction of Orange
County, Florida, 423 F.2d 203, 207 (5th Cir. 1970). The
other alternative is the establishment of attendance zones
“ on a discretionary basis as distinguished from a strict
neighborhood assignment . . . .” Mannings v. Board of
Public Instruction of Hillsborough County, Florida, No.
28643 (5th Cir., May 11, 1970) (Slip Op., p. 6). Mobile, the
court concluded, had itself chosen not to use “the strict
neighborhood assignment system” but instead uses “ discre
tionary zone lines” (Court of Appeals, June 8, 1970). As
Mobile had made that decision for itself the court ruled that
the desegregation plan “can be greatly improved by pair
ing some schools located in proximity to each other . . .
[and] also be improved by recasting the grade structure
in some of the buildings, but, at the same time, maintain
ing the neighborhood school concept” (ibid.).
The plan which found favor with the court was the plan
submitted by the United States as a modification of
H.E.W.’s no-transportation Plan B Alternative. The plan
proposed findings of fact an evidentiary hearing would be held.
The school board submitted an affidavit which the district court
accepted in toto “excluding self-serving declarations and specula
tive opinions.” Order of April 14, 1970. Petitioners’ motion for a
hearing was denied the same day.
24
left 8,515 black students in all- or nearly all-black schools
{ibid.). The court required modifications of the plan to
reduce the number of black students in all-black schools to
7,725 students in 8 elementary schools, which it noted
amounted to 25% of Mobile’s black students being assigned
to all-black schools (ibid.). In terms of elementary school
students in metropolitan Mobile, the plan resulted in the
assignment of 58% of black elementary school students to
all-black schools.
These results were justified by the court in four ways:
(1) “ every Negro child would attend an integrated school
at some time during his education career” ; (2) “ the all
Negro student body schools which will be left after the
implementation of the Department of Justice plan, as modi
fied, are the result of neighborhood patterns” ; (3) the re
maining segregation can be “alleviated” through a policy
allowing black students to transfer to white schools with
transportation provided; and (4) the situation may be
further alleviated by the establishment of a bi-racial com
mittee to serve in an “advisory capacity” to the school
board {Ibid.).
c. June 1970—August 1970
The court of appeals remanded the case to the district
court with instructions to implement a new plan by July 1,
1970. On remand the district court on June 12,1970 ordered
the implementation of the plans submitted by the United
States except for amendments to two school districts which
the court announced it would make.
Then, on July 13, 1970, with neither notice to petitioners
that revisions in attendance areas were being considered
nor an evidentiary hearing, the district court issued an
order establishing new attendance zones for metropolitan
Mobile. The order recited as its authority a provision in
25
the court of appeals June 8, 1970 decision that the district
court may make adjustments based on current demographic
information possessed by the school board (699a). How
ever, there is no indication that the school board officially
furnished any such demographic data to the district court;
at least no new demographic information has ever been
served by the school board on petitioners.22 Two weeks
later, on July 27, 1969, information showing projected en
rollments by race at each metropolitan school under the
district court’s July 13, 1970 plan was filed in the Clerk’s
office, presumably by the district judge although the origin
of the information is unclear and its accuracy unverified
(Docket Sheet No. 16). The projections revealed extensive
changes between the plan approved by the court of appeals
on June 8, 1970, and the plan ordered by the district court.
The district court also dissolved three proposed school pair
ings and closed one black school. Petitioners and the United
States appealed.
On August 4, 1970, the court of appeals affirmed the
district court’s entire revision of its June 8, 1970 decision
with the exception of the district court’s dissolution of one
elementary school pairing which the court of appeals again
ordered paired (704a). Relying on the statistics furnished
22 The court of appeals when it first ordered the school board to
redraw its attendance zones required the board to undertake a
survey of the school system and, inter alia, prepare maps showing
the location, by race and grade, of each student in the school system
during the 1967-68 school year. 393 F.2d at 698. Accordingly,
pupil locator maps were not only filed but also provided to peti
tioners and the United States. The purpose of the pupil locator
maps and other survey information was to provide to the district
court and the parties evidence to test the racial consequences of any
new attendance zones established by the board. 393 F.2d at 693-94.
If new information on residential patterns was used by the district
court to establish new attendance zones then that new information
should have been furnished to allow petitioners to assess the conse
quences of any such revisions.
26
by the district court, which as noted above were unverified,
the court of appeals concluded that the district court’s
amendments as modified by the court of appeals would re
duce the number of all-black schools to 6, and the number of
black students attending these schools to 5,310, or 17%
of all black students in Mobile County and consequently
constituted an “ improved result” . However, this conclusion
is marred by the fact that the district court’s order un
accountably fails to assign 1,740 black students to any
schools.23 Nevertheless, it still appears that at least 50%
of black elementary students in metropolitan Mobile have
been assigned to all-black schools.24
In order to allow this Court to consider its August 4,
1970 decision to be “ the final order on this appeal for
mandate and certiorari purposes” the court of appeals
recalled and amended the mandate issued after its June 8,
1970 decision (704a). However, the court of appeals acted
without knowing that several days earlier, on July 30, 1970,
the district court had once again, without a hearing, estab
lished new zone lines to govern attendance in metropolitan
Mobile. The district court’s order explained two zone line
changes, stated that since the July 13, 1970 order the school
board had suggested certain changes (petitioners were
never notified that zone changes had been proposed by the
28 The last attendance report filed by the school board shows
25,441 black students attending schools in metropolitan Mobile.
The district court plan approved by the court of appeals assigns
only 23,701 black students to metropolitan schools. This inaccuracy
underscores the need for evidentiary hearings prior to the entry
of orders governing a school system as complex as Mobile. If the
board’s reports for the current year show that these black students
reappear at all-black schools, then the improvement found by the
court of appeals will prove illusory.
24 Petitioners’ calculations from the data in the court of appeals
August 4th opinion show 5,351 black students assigned to all-black
elementary schools out of a total black metropolitan elementary
school population of 10,648.
27
school board and indeed no amendments were ever filed by
the board), and found that “ some changes” should he made
hut that “ these changes in the court’s opinion have no
racial significance” (702a). No statistical projections of the
effects of these zone line changes were filed until three weeks
later, on August 20, 1970, when the district court filed
projections which again were unverified (Docket Sheet
No. 17).
Petitioners appealed for the thirteenth time in the
history of this litigation, Judge Bell conducted a pre-
hearing conference with counsel, and on August 28, 1970,
the court of appeals “terminated” the appeal. Rather than
merely “ some changes,” the court of appeals found that
“ the July 30, 1970 order makes change in the attendance
zones of 32 separate schools” (720a). The court further
found that while “ some of the changes had no effect from
the standpoint of desegregation [ojthers diminished the de
gree of desegregation accomplished in the prior orders of
this Court and the district court.” The court rejected the
district court’s new junior and senior high school zones
and accepted the district court’s elementary school zones
while requiring some modifications (ibid.). The record
does not show what the effect of the modifications will be
on the extent of desegregation. Finally, the court of ap
peals, responding to the problems caused by the continuing
ex parte dealings between the school board and district
court ruled that “henceforth, any time the school board
desires to have changes in zone lines, it shall give reason
able notice to the parties” (ibid.).
3. The Techniques of Segregation.
Although the district court has not permitted any evi
dentiary hearings on a desegregation plan since the sum
mer of 1968, the record of the extensive hearing that
28
summer and in previous years fully documents the various
techniques used by the school board to racially segregate
Mobile’s schools.26
Prior to the initiation of this litigation in 1963 the
Mobile School Board had no need for the great variety
of assignment techniques subsequently used to maintain
segregated schools simply because segregation was easily
achieved through the maintenance of dual attendance zones,
one for whites and the other for blacks. Since 1963 the
school board has achieved the same result (1) by establish
ing racially defined attendance zones, increasing or de
creasing the capacity of schools or the grades served by
schools to commensurately increase or decrease the areas
served by schools in accordance with the racial character
of residential patterns, and closing or constructing schools
to serve predetermined racial groups, and (2) by providing
procedures for optional assignments to assure that those
few students who were “unavoidably” assigned to schools
serving a different race would continue to attend the
schools serving their race.
An examination of these assignment techniques over
whelmingly demonstrates that Mobile’s passing acknowl
edgements of a “neighborhood school concept” have never
in reality governed the way in which children are assigned
26 The first hearings in this litigation were held in 1963 and are
incorporated in the record before the Court of Appeals in No. 20,657
(333 F.2d 356). The next hearings were held in 1965 and are
reproduced in the record before the Court of Appeals in No. 22,759
(364 F.2d 896). Hearings held during 1967 and 1968 are re
produced in a combined record before the Court of Appeals in
No. 26,886 (393 F.2d 690 and 414 F.2d 609). Additional 1968
hearings limited to school construction problems are reproduced
in the record before the Court of Appeals in Nos. 27,491—27,260
(414 F.2d 609). The record in this Court includes the records in
each of these former proceedings in the Court of Appeals except
the 1963 case No. 20,657.
29
to schools. To be sure, the rhetoric of neighborhood schools
has periodically appeared in this litigation. However, the
meaning of the neighborhood school as an organizing device
has never been clear. In 1965, the Associate Superintendent
of Schools, James A. McPherson, in response to a motion
by petitioners stated that while the board “considers the
neighborhood elementary school . . . to be the desirable
organizational pattern where it is practicable to achieve . . .
the neighborhood school should not be misconstrued to
necessarily mean the school nearest a pupil’s residence”
(R. 22,759, pp. 25-26).26 Instead, as conceived by the school
board, neighborhoods are the product of not only physical
but also sociological factors.
There are many factors that determine a natural neigh
borhood. These include natural and physical barriers,
for example, traffic thoroughfares, railroads and drain
age canals, housing developments; and neighborhood
agencies and institutions such as churches, play
grounds, etc.; all of which tend to promote cohesive
ness between and among families (Ibid.)
But three years later, Cranford Burns, Mobile’s Super
intendent of Schools, testified that the school board had
not instructed personnel in charge of establishing atten
26 The school board had stated at the outset of this litigation its
opposition to any rule requiring the assignment of students on the
basis of proximity to schools or by free choice. In its first plan sub
mitted pursuant to an order of the district court in 1963 the board
stated:
D. The Board considers that any general or arbitrary reas
signment of pupils presently in attendance at the 89 exist
ing schools, according to any rigid rule of proximity to
schools or solely by request on the part of the parents of
pupils, would be impractical and a disservice to the sys
tem____(R. 22,759, p. 2).
30
dance zones how to define neighborhoods. Further when
asked:
Q. Is there a workable definition or a standard
definition which the school board has used to define
neighborhoods as such?
Superintendent Burns responded:
A. Not unless it would be something very informal
indeed that neighborhoods—We look upon neigh
borhoods in two different ways. You can create a
neighborhood on a map in terms of geographic
and natural barriers and that, but it’s mighty,
mighty, hard to identify a neighborhood sociologi
cally and otherwise because that has to do with
factors not fully understood and involves informa
tion we do not always have at our command, plus
the fact that neighborhoods are constantly chang
ing both psychologically and geographically and
this makes the problem of organizing the School
System very complex indeed (R. 26,886, Vol. IV,
pp. 1081-82).
Moreover, no matter what values the Mobile School Board
has attributed to the neighborhood school concept it has
never been advanced as the determinative basis for student
assignment when race has been the issue. Rather than
through the abstraction of the “neighborhood school con
cept” assignments in Mobile have been determined by a
combination of decisions concerning attendance zones, grade
structures, assignment of portable classrooms, transporta
tion of students, and the closing and construction of
schools.27
27 This portion of the brief is in large part a summary of a
longer analysis of these techniques contained in the Brief for the
31
a. Attendance Zones. The most straightforward way in
which the school board determines student assignments is
through the establishment of attendance zones. On four
separate occasions the court of appeals has faulted zone
lines established by the school board. In 1966 the court of
appeals noted “the school superintendent testified (as was
obvious to any who studied neighborhood patterns) that it
was ‘generally true than the actual make-up of the school
district [sometimes called ‘area’ ] tends to conform with
the race of the school within that district’.” 364 F.2d at
900. In 1968, the court of appeals found the school board’s
rebuttal “ somewhat unpersuasive” to petitioners’ charge
that racial factors determined zone lines. 393 F.2d at 694,
n. 3. Again, in 1969, the court of appeals found “ that the
attendance zones formulated by the district court are con
stitutionally insufficient and unacceptable. . . .” 414 F.2d at
610. Zones established by the school board and the district
court were again rejected by the court of appeals in the
recent proceedings below.
In addition to racially identifiable attendance zones, the
splitting of school attendance zone (i.e., non-contiguous
zones) has been a common method of school assignment in
Mobile. As many as nineteen non-contiguous or split zones
were used in one year, 1964-65, including one split zone in
which the parts were separated by over 11 miles (Brief
Appendix, App. C). This non-contiguous zoning involved
both the combination of rural and metropolitan zones as
well as two or more non-contiguous zones in metropolitan
United States in the Court of Appeals, pp. 4-18, and Appendices
B, C and D to that brief. The analysis contained in the United
States’ brief is, in petitioners’ view, an accurate and extremely
helpful compilation of facts concerning the board’s past practices
and for this reason is appended to this brief and will hereinafter
be cited as Brief Appendix,------ .
Mobile.28 The board’s non-contiguous zoning invariably
linked only racially similar areas. Transportation between
split zones was provided by the school board (R. 26,886,
Yol. I, pp. 5-6).
b. Transportation. The use of buses to transport stu
dents to school has long been a practice in Mobile. During
1967-68 (the last year for which the record shows these
facts) the Mobile School Board used 207 buses to transport
22,094 students daily for an average round trip of 31 miles
spending $480,156 or $21.73 per each student transported.
(HEW Report, July 10, 1969, p. 61) A summary of the
extent to which transportation has been used to facilitate
student assignments in Mobile is contained in the following
chart prepared by H.E.W .:
28 Maps illustrating some of the board’s non-contiguous zones are
included in the Brief Appendix, p. 7a.
CURRENT OPERATIONAL COSTS OF TRANSPORTATION
Year
Transportation
Total
Expenditure
Enrollment
of all
Transported
Per
Transported
Pupil Enrolled
Per Year
Number
of
Buses
Seating
Capacity
Average
Total miles
Traveled for
Year
Length of
Bound trip
in Miles
1964-65 $405,833 24,972 $16.25 218 59 1,271,585 31
1965-66 414,192 24,101 17.18 203 59 1,209,608 33
1966-67 503,934 22,218 22.68 229 59 1,221,207 32
1967-68 480,156.75 22,094 21.73 207 59 1,188,204 31
Four Year Average Cost Per Transported Pupil Enrolled $19.46
Each New Bus 1st Year $6,648.14—6,948.14
Each Year for Next 8 Years at $1,148.14 plus increases in cost which cannot be calculated
For an average seating capacity of 59, the average operational cost equals $1,148.14
Cost of New Bus $5500—5800
(State Purchase)
TABLE 3-7
H
.E
.W
. R
eport, July 10, 1969, p. 61:
34
This extensive use of busing has not been limited to the
rural parts of the school system. During 1966-67 the
school board bused 7,116 students daily in the metropolitan
area. Approximately 2,350 of these students were bused
because of non-contiguous zoning (R. 26,886, Yol. I, pp.
5-6). A considerable amount of busing was designed to
maintain segregation. As an example, 582 black students
were bused over 6 miles from rural Saraland and Satsuma
to a black school in metropolitan Mobile to prevent integra
tion at white schools in their communities {Ibid.). Simi
larly, 381 black elementary and junior high school students
were transported from the Austin attendance area in the
City of Mobile, which was served by a white school, to two
black schools, Warren Elementary School and Booker T.
Washington Junior High School, also located in the City of
Mobile (Ibid.).M
29 In February 1967 the school board considered a proposal to
transport students from the Russell Elementary School which the
board had closed to the Leinkauf Elementary School, both in the
City of Mobile. An assistant superintendent of schools reported
to the school board the results of a survey to determine the board’s
practices in transporting students. His survey reported the use of
busing to transport black students away from their “neighborhood”
schools:
“ Set forth below is a summary of schools serving elementary
children who have to travel at least as far or further than will
the pupils formerly attending Russell. . . .
III. Schools where elementary children are now furnished
public school bus transportation from out-of-district
attendance areas as approved by the Board.
A. Warren-Negro pupils residing in the Austin area.
B. Hillsdale-Negro students residing in the Semmes
area.
C. Hall-Negro pupils residing in the Kate Shepard
area and Negro pupils residing in the South Brook-
ley area.”
(R. 26,886, pp. 24-25).
35
c. Portable Classrooms and Grade Structures. In addi
tion to the way in which zones are established and the
transportation of students, the school board has used port
able classrooms and the grade structures of schools to re
late the capacity of schools to selected racial neighborhoods.
For example, the selective assignment of portable class
rooms in order to expand the capacity of black schools as
a way of avoiding the assignment of black students to
under-utilized nearby white schools has been a method of
maintaining segregated schools. The most striking exam
ples of this practice have occurred in downtown Mobile. A
school board study shows that between 1962 and 1967 resi
dential movements decreased the number of white students
attending white downtown schools from 14,128 to 9,897
while the number of black students attending black down
town schools increased from 13,022 to 15,120 (E. 26,886,
Yol. VI, pp. 26-27). This led to overcrowded conditions in
black schools which the school board responded to by as
signing 39 portable classrooms to black schools instead of
using 44 available empty classrooms in white schools (id.
at 29).
Besides effecting the racial composition of schools
through the selective assignment of portables or non
utilization of vacant classrooms, the Mobile School Board
has also determined the grade structures of numbers of
schools in order to effect the racial composition of these
schools.
The Mobile school system has used an extraordinarily
wide variety of grade structures, including schools serving
grades 1-5, 1-6, 1-7, 1-8, 1-9, 1-12, 2-5, 6-7, 6-8, 6-9, 6-10,
6-12, 7, 7-8, 7-9, 7-11, 7-12, 8-12, 9-12, 10-11, 10-12. A school
which serves a small number of grades may house more
students in each grade than the same school serving a large
number of grades. Consequently, the smaller the number
3 6
of grades served, the larger the attendance area served by
the school may be. By selectively decreasing or increasing
the number of grades served at particular schools, the
school board has increased or decreased the area served by
the school to coincide with racial residential patterns
(R. 26,886, Yol. V, pp. 1527-1534). For example, the school
board established the Hillsdale School as the only metro
politan school serving grades 1-12 in order to restrict its
attendance area to a small black community in the western
part of the metropolitan area. School segregation was also
the objective in arranging grade structures at four white
schools surrounding a black school in northern metropoli
tan Mobile to enable white students to attend one white
school for grade 6, a second for grades 7 and 8, a third for
grade 9, and a fourth for grade 10, all in order to prevent
their attendance at a nearby black school (R. 26,886, Vol.
IV, pp. 1331-32). An expert witness for petitioners, Dr.
Myron Lieberman, a Professor of Education at Rhode
Island College, testified without contradiction that he had
never encountered a school system with as many deviations
in grade structures as Mobile and that, while not question
ing the necessity for deviations in grade structures, the
problem in Mobile is “that the deviations always seem to
result in more segregation, not less” (R. 26,886, Yol. V, pp.
1526-32).
d. Classroom Additions, Construction, Closings, and
Conversions. The Mobile School Board has not always been
able to determine the racial composition of schools by the
establishment of zone lines, transportation of students,
reassignment of portables, and reorganization of grade
structures. The task of maintaining school segregation
has often involved more permanent decisions concerning
construction of both new schools and additional classrooms
to existing schools, the closing of some white schools to
37
avoid integration, and the conversion of other white schools
to black schools.
The use of construction programs to perpetuate segre
gation is perhaps best illustrated by the board’s response
to the change in racial residential patterns in downtown
Mobile which resulted in underutilization of white schools
and the overcrowding of black schools. The hoard’s short
term response was the assignment of portable classrooms
to black schools. Its long term solution was the construc
tion of four new black schools and additions to a fifth exist
ing black school in order to “relieve 35 of the 39 portables
now in use in the formerly Negro schools of this area” (R.
26,886, Vol. VI, pp. 29-30). More generally, the board’s
procedures in determining the need for new schools, both
in terms of location and size, have been based on the as
sumption that new schools will only serve predetermined
racial groups (Brief Appendix, pp. 13-15).
The school board’s use of its construction program to
perpetuate segregation has received judicial recognition
since the outset of this litigation. In 1963, when the school
board sought to justify to this Court its failure to even
begin desegregation by pointing to its ongoing construc
tion of “ colored schools,” Justice Black’s opinion in cham
bers observed:
Yet this record fails to show that the Mobile Board
has made a single move of any kind looking toward a
constitutional public school system. Instead, the Board
in this case has rested on its insistence that continua
tion of the segregated system is in the best interests
of the colored people and that desegregation would
“ seriously delay and possibly completely stop” the
Board’s building program “particularly in the improve
ment of and completion of sufficient colored schools
38
which are so urgently needed.” In recent years, more
than 50% of its building funds, the Board pointed out
to the parents and guardians of its colored pupils, had
been spent to “build and improve colored schools,”
and of eleven million dollars that would be spent in
1963, over seven million would be devoted to “colored
schools.”
It is quite apparent from these statements that
Mobile County’s program for the future of its public
school system, “lends itself to perpetuation of segre
gation,” . . . Davis v. Board of School Commissioners
of Motile County, 11 L.ed.2d 26, 28 (1963).
Concern that the school board’s construction program is
being used to maintain segregation has also led the court
of appeals on two occasions to order the suspension of
school construction projects. 393 F.2d 690 at 697, and
414 F.2d 609 at 610.
The closing and conversion of schools is a segregation
technique used by the school board often in conjunction
with its school construction program. In downtown Mobile
the school board has persistently sought to close under
utilized white schools located close to overcrowded black
schools in order to avoid the assignment of black students
to these schools (Brief Appendix, p. 16). This has been
done at the same time that portable classrooms have been
assigned to black schools and proposals advanced to con
struct new black schools.
On other occasions the school board has converted white
schools to black schools rather than close them. One ex
ample of this process occurred in the Prichard area of
metropolitan Mobile where the board, in order to provide
classroom space for black students, converted the Snug
39
Harbor and Turnerville Elementary Schools to black
schools, renaming them as Adams and Palmer after locally
prominent blacks, and reassigning white students elsewhere
(Brief Appendix, pp. 12a-14a). The explicit racial consider
ations involved in these decisions are revealed by the school
board memorandum set forth in the note below.30
30 B. 26,886, Yol. VI, p. 36 (Pit. Int. Exh. No. 72) :
“May 1, 1963
“Memo : Dr. Burns
From: Dr. Scarborough
Be .- Your memo of April 26—Neece Property in the
Snug Harbor area.
“ The population in Prichard is fairly well stabilized by now it
appears, so far as the total population is concerned. It appears
to me that our difficulty lies not in too many or not enough
schools, but in the matter in having the schools adjusted to the
Negro or white population. With the addition of this new
Prichard building for the Negroes, north of Carver Boad, and
the use of Snug Harbor and Turnerville School for Negro
schools that for some time this would meet the needs of the
population of the Negroes from Telegraph Boad to St. Stephens
Boad and from the Prichard City Limits northward to High
way 1-65.
“If the Board is to go along with permanent use of Snug Harbor
and Turnerville for housing Negro children and by the build
ing of the new Prichard Elementary School, north of Carver,
I think you can see that they are fairly well housed. It is my
opinion that if more Negroes move in that area we again would
have to abandon another white school and that it in turn could
house the increase of Negroes in a school between Craft High
way and Telegraph Boad in the vicinity of Happy Hill. This
would be a desirable substitution for Snug Harbor in that they
would not have to cross the Craft traffic lane, but to make this
exchange would cost the Board approximately one half of a
million dollars. It is my opinion that they will want to forego
crossing Craft Highway and continue with the present facility
at Snug Harbor in order to save this one half million dollars
in buildings.
“It might be worth consideration if the people, who resist our
turning Snug Harbor into a Negro school, could find a way to
make that property worth as much as a half of a million dol-
40
Summary of Argument
I.
The issue presented is what are the requirements of a
final school desegregation plan that satisfies the require
ments of Brown v. Board of Education, 347 U.S. 483 (1954).
Petitioners believe that nothing less than total desegre
gation will suffice. But the Fifth Circuit and the Fourth
Circuit are accepting the idea that some “ reasonable” de
gree of desegregation satisfies the Constitution. We believe
that this is incorrect. Brown decided that it was the indi
vidual constitutional right of each and every black child to
have an education free of racial segregation. No black
child should be assigned to a “black school”—that is one
identified as the repository of minority children. The focus
through the years since Brown on effecting a gradual tran
sition to non-discriminatory systems has led the courts
below into dealing with desegregation in a manner that
now distorts the final objective by forever denying a de
segregated education to large numbers of black children.
The goal required by the Constitution is that: every
black child, at every grade in his educational career, must
be free of assignment to a “black”—a racially identified
lars. In such cases it might be worth the Board’s consideration
to abandon the use of Snug Harbor School and making use
of the Neece property that we looked at. As I see it, these are
the only reasons for our making use of the Neece property of
which we looked.
“Naturally if we had the Neece property and an 18 room build
ing with modern facilities, it would be much more valuable
than our present Snug Harbor assignment, but it would house
no more children. As an investment it might be wise, but in
the matter of housing our children at the least possible cost
to the citizens, it looks as if Snug Harbor is our best bet.
C. L. Scarborough”
41
minority—school. Racially identified minority schools are
those which by reason of a very considerable racial con
centration or disproportion are conceived as designed to
receive black children.
H.
The Fifth Circuit’s “neighborhood school concept,” first,
announced in Ellis v. Board of Public Instruction of Orange
County, Fla., 423 F.2d 203 (5th Cir. 1970), and later de
veloped and applied in more than a score of cases during
1970 including the opinion below, is unworkable, undesir
able and unconstitutional. The doctrine is not defended or
defensible as non-racial or as affording a neutral basis for
assignment. The doctrine does not reflect past school board
policy. It was invented by the Fifth Circuit. The Fifth
Circuit “neighborhood school concept” requires a balancing
of a set of values labeled “neighborhood” against the value
of total integration. The policy is unclear, and it involves
complicated judgmental appraisals with differing results
when applied by different judges.
Mobile has never had any neighborhood school assign
ment policy. Assignments have been based on a multitude
of methods designed to further racial segregation includ
ing the use of busing to promote segregation. The Fifth
Circuit principle as applied in the decision below leaves a
full half of the black elementary children in metropolitan
Mobile (where most of the blacks in the county reside) in
schools which are all-black or virtually all-black.
III.
The Fourth Circuit is applying parallel doctrine of
“reasonableness” which even more explicitly acknowledges
that complete desegregation is not required. The concept
is not based on an appraisal of the workability (Mr. Jus
42
tice Harlan, concurring in Carter v. West Feliciana Parish
School Board, 396 U.8 . 290, 292) of desegregation plans.
Nevertheless at least in the Charlotte case the Fourth Cir
cuit is requiring more integration than the Fifth. The
contrast is striking. By a vote of 5-1 the Fourth Circuit
in Charlotte rejected the school board’s elementary plan
on the ground that it left half of the black elementary school
children in all-black schools. The opinion below in Mobile
orders a plan which leaves half of the black elementary
school children in all-black schools.
IV.
This Court should declare that every black child is to be
free from assignment to a “black” school—an identifiable
racial minority school—at every grade of his education.
The only excuse from this general principle should be the
case of absolute unworkability of any proposal for eliminat
ing the racially identifiable black schools. Our concept
of absolute unworkability refers to really extreme demog
raphic or geographic flukes far beyond the range of con
cerns evidenced by recent Fifth Circuit decisions leaving
all-black schools in most systems.
The general principle should not be relaxed on the basis
of transportation inconveniences and costs, rigid theories
of desired grade structures, neighborhood associational
values, or fears of sending children to “ strange or hostile”
neighborhoods. When these rationalizations for continuing
segregation are properly examined (particularly in the
context of the practices in Mobile) they are all insufficient
to justify failure to eliminate state imposed racial segre
gation. Mobile schools can be fully integrated merely by
using the administrative techniques which have long been
used in Mobile to keep schools separate.
We believe that the principles we urge will be easier to
administer than those now employed by the lower courts.
43
They have the advantages of simplicity, uniformity, flexi
bility, and accomplishment of the objectives of the Constitu
tion as construed in Brown 1. The Constitutional goal of
eliminating racially identifiable minority schools in dual
systems is within the capacity of this nation to achieve.
The promise of Brown is broken by the current approach
of the courts below.
V .
Final school desegregation plans should not be approved
without evidentiary hearings. The district court in this
case failed to follow fundamentals of procedural fairness.
We do not complain of mere isolated events or of irregular
ities caused by the need for speedy disposition of a difficult
and complicated case. This record shows a consistent pat
tern of denial of hearings, and a repetitious pattern of
deciding important issues based on the school board’s
ex parte factual submissions to the district court. This
consistent course of conduct denied the fundamentals of
due process: the right to be heard and to have the case
decided on evidence introduced in court. Ohio Bell Tele
phone Co. v. Public Utilities Commission, 301 U.S. 292
(1937); Morgan v. United States, 298 U.S. 468 (1936) ;
Goldberg v. Kelly, 397 U.S. 254 (1970).
44
ARGUMENT
I.
Introduction
This case presents a fundamental question with respect
to the meaning and validity of this Court’s historic deci
sion rendered over sixteen years ago in Brown v. Board
of Education, 347 U.S. 483 (1954) (Brown I). The issue
presented is : What are the requirements of a final school
desegregation plan: one that finally fulfills the commands
of Brown I by vouchsafing to all black school children their
rights to a desegregated education. Since 1955' when the
Court announced in Brown II (Brown v. Board of Educa
tion, 349 U.S. 294 (1955)) that more time might be allowed
to effect a transition to racially non-discriminatory school
systems, and increasingly in recent terms (see, e.g., Green
v. County School Board of New Kent County, 391 U.S.
430 (1968); Alexander v. Holmes County Board of Educa
tion, 396 U.S. 19 (1969); Carter v. West Feliciana Parish,
School Board, 396 U.S. 290 (1970); Northcross v. Board,
of Education, 397 U.S. 232 (1970)) this Court’s school
desegregation decisions have been concerned with the ques
tion, how soon? The Court has finally answered that ques
tion. The answer is, now.31 The remaining question is,
how much—that is, how much desegregation must occur
before a school district has finally satisfied the require
ments of Brown I. The answer will determine whether the
promise of Brown will be kept or broken for countless black
children.
31 “Under explicit holdings of this Court the obligation of every
school district is to terminate dual school systems at once and to
operate now and hereafter only unitary schools.” Alexander v.
Holmes County Board of Education, 396 U.S. 19, 20 (1969).
45
One would have supposed that the answer to that ques
tion was plain from Brown I itself; nothing less than total
desegregation will suffice.82 But this is not the answer
that the Court of Appeals for the Fifth Circuit has accepted
in this case, nor in other recent school desegregation deci
sions, nor is it the answer of the Court of Appeals for
the Fourth Circuit in Swann v. Charlotte-Mecklenburg
Board of Education, ------ F .2 d ------ (May 26, 1970),
certiorari granted, 399 U.S. 926 (1970). Both the Fourth
and Fifth Circuits, by differing formulations which amount
to the same thing in the end, have accepted the notion
that a “ reasonable” degree of desegregation discharges
the obligation of Brown I—with the result that now, at the
end of the road of desegregation, as a final fulfillment of
the promise of Brown I, thousands upon thousands of
southern black school children are to be permitted to re
main in “black” schools. In the recent Fifth Circuit deci
sions, frequently as many as one-fifth or one-fourth of the
black school population of a district is required to remain
in all-black or virtually all-black schools and, doubtless,
the effect of Swann, supra, will be much the same in the
Fourth Circuit.
This remaining segregation is not the result of a shirking
of desegregation efforts by the Fifth Circuit (or the
Fourth). To the contrary, the Fifth Circuit has worked
tirelessly to desegregate the schools, and has afforded
review of a large number of school cases at a greatly
accelerated pace since this Court’s decision in Alexander v.
Holmes County Board of Education, 396 U.S. 19 (1969). 32
32 “We conclude that in the field of public education the doctrine
of ‘separate but equal’ has no place. Separate educational facilities
are inherently unequal. Therefore, we hold that the plaintiffs and
others similarly situated for whom the actions have been brought
are, by reason of the segregation complained of, deprived of the
equal protection of the laws guaranteed by the Fourteenth Amend
ment.” Brown v. Board of Education, 347 U.S. 483, 495 (1954).
46
Nor is the continuing segregation the result of failures
in the details of specific desegregation plans which the
courts in both circuits—particularly the Fifth—have
worked to hammer out in painstaking detail. Rather, the
breaking of the promise of Brown I to perhaps 20 or 25
percent or more of southern black school children is the
result of a mistake of basic principle which, paradoxically,
seems to arise precisely from the long desegregation efforts
of both circuits. Even more than this Court, the Courts
of Appeals of the Fourth and Fifth Circuits have been
long and continuously concerned with hoiv soon, and with
how to speed the process of desegregation. In this concen
tration upon means—and particularly the means of interim
adjustment—the Fourth and Fifth Circuits have developed
principles and outlooks which, while quite serviceable dur
ing the period of transition envisaged by Brown II, distort
the ultimate end which it was the purpose of that transi
tion to attain.
What we mean is this: Brown I decided that it was the
right—the individual and particular right—of every black
school child to have an educational experience free of the
demeaning and damaging effects of racial segregation. It
was the right of each not to be compelled to attend a “black”
school—that is, one identified as the repository of black
children because they were black. Brown II recognized
that the creation of school systems which would fulfill
this right could not be instantaneously achieved, and it
ushered in a period of adjustment during which it was
quite candidly recognized that some black children would
be denied this right while changes in the system were made,
looking to a time when all should have realization of the
right. The adjustment took—and perhaps had to take—a
number of forms. Black children were denied an integrated
education in 1955 and 1960 which it was recognized that
47
identically situated black children would be getting in 1965
and 1970.33 Black children were denied an integrated
education for six years—throughout grammar school—
which it was planned that those same black children would
get for three years—in junior high or high school.34 Black
children in some schools were denied an integrated educa
tion under a comprehensive school plan which gave an in
tegrated education to other black children in other schools.35 36
True to Brown I, it could not be said that any of these
children were receiving the desegregated education to
which they were constitutionally entitled: But the denial
to them of a constitutional, desegregated education was
accepted as a part of the process of transition, while the
focus of attention was upon the development of school
systems that could eventually give all black children their
constitutional rights.
Concentration on desegregation of systems was neces
sary during the transitional period, and it remains neces
33 See, for example, the approval of stair-step grade-a-year deseg
regation plans as in Mobile in 1963. Davis v. Board of School Com
missioners of Mobile County, 322 F.2d 356, 359-360 (1963) (14a).
34 Thus, for example, in 1966 the Fifth Circuit described Mobile’s
plan: “ The plan was to have application in the school year 1963-64
to the twelfth grade in the city of Mobile only, in the school year
1964-65 it was to have application to the eleventh and twelfth grades
in all schools in Mobile County and to the first and tenth grades in
the city of Mobile schools. In 1965-66 it was to have application to
grades one, two, nine, ten, eleven and twelve of all schools of Mobile
County. In 1966-67, grades three and eight were to be added, in
1967-68, grades four and seven were to be added, in 1968-69, grade
five was to be added, and in 1969-70 it became applicable to grade
six.” (Davis v. Board of School Commissioners of Mobile Cty., 364
F.2d 896, 900 (1966) (67a). The court later ordered that all grades
be desegregated by September 1967 (374 F.2d at 904).
36 See, for example, the Fifth Circuit order allowing the district
judge in the Mobile case to defer the start of desegregation in rural
Mobile schools for a year after it was to begin in the city of Mobile.
Davis v. Board of School Commissioners of Mobile County, 322 F.2d
356, 359 (1963) (14a).
48
sary in the sense that the end result of the transition must
be school systems that provide the opportunity for de
segregated education. But concentration upon systems can
not be permitted to obscure the ultimate goal which is the
vindication of every black child’s right to a desegregated
education. This right—recognized by Brown I—is not
simply to be educated within a system in which some other
black children, even a majority of black children, are given
a desegregated education. It is a right of each and every
black child to have a desegregated education himself. (And
it is not a right to merely 3 or 6 years of desegregated
education, but to a complete—twelve year—desegregated
education.) So the necessary feature of a final school
desegregation plan, one that ends the transitional period
and fulfills the promise and command of Brown, is that
every black child receive an education during no part of
which he is assigned to a “black” school— a school identi
fiable as a school for blacks. Brotim requires the end of the
racially identifiable minority schools—the schools which
by reason of a very considerable racial concentration or
disproportion are conceived as designed to receive black
children. The final Fifth Circuit plans, as exemplified by
its Mobile decision below, and the final Fourth Circuit plans
envisaged by the Charlotte-Mecklenburg decision (Swann,
supra), which leave large numbers of black children in
identifiable “black” schools, simply do not satisfy this ulti
mate goal. What has happened is that the Fourth and Fifth
Circuits have permitted the thinking of the transitional
period—that some black children might be denied their
rights for a time—to carry over and define the ultimate
goal of the transition, as a measure of finally satisfactory
desegregation, so that it is now accepted that “desegrega
tion” is satisfactory which will forever deny twenty to
twenty-five percent of black children (or even more) a
desegregated education.
49
We deal below with the doctrines that have led to this
result. But what is required in these cases is that this
Court set right, once and for all, the ultimate matter of
principle, of the goal which every desegregation plan must
achieve (and under Alexander v. Holmes County Board of
Education, 396 U.S. 19 (1969), and Carter v. West Feliciana
Parish School Board, 396 U.S. 290 (1970), must achieve
now). That goal is: that every black child, at every grade
in his educational career, must be free of assignment to a
“black”—a racially identified minority—school. If and
when this Court announces that principle clearly, we are
sure that the Fourth and Fifth Circuits will find it no more
difficult to administer—and in many ways easier to ad
minister—than the principles which they are now adminis
tering, which call for most—some uncertain number less
than all—black children to realize their constitutional rights.
II.
The Fifth Circuit’s Approach to Final School Desegre
gation Plans Since Alexander and Carter.
A. Ellis v. Board of Public Instruction of Orange County:
Announcement of the “Neighborhood School” Con
cept.
On February 17, 1970, shortly after this Court’s decisions
in Alexander36 and Carter,31 the Fifth Circuit announced
for the first time* * 37 38 that it would require application of a
86 Alexander v. Holmes County Board of Education, 396 U.S. 19
(1969) .
37 Carter v. West Feliciana Parish School Board, 396 U.S. 290
(1970) .
38 Before Alexander, the Fifth Circuit had been engaged in de
ciding a number of cases involving the adequacy or inadequacy of
freedom of choice plans under this Court’s decisions in Green v.
County School Board of New Kent County, 391 U.S. 430 (1963) ;
Monroe v. Board of Commissioners, 391 U.S. 450 (1968) ; and
50
“neighborhood school” concept in final desegregation plans.
This announcement came in a decision by Judge Bell in
Ellis v. Board of Public Instruction of Orange County, Fla.,
423 F.2d 203 (5th Cir. 1970). In the Orange County case
{Ellis, supra) the Fifth Circuit found that the board’s geo
graphic zoning plan left 51% of the black students in
eleven all-black schools. The board said it wished to main
tain a neighborhood basis of assignment but the Fifth Cir
cuit found “variances . . . from the neighborhood school
assignment system with the result that some white students
are attending schools located greater distances from their
home than nearby schools where the student body is all
Raney v. Board of Education, 391 U.S. 443 (1968). See, e.g., Adams
v. Mathews, 403 F.2d 181 (5th Cir. 1968); Btall v. St. Helena
Parish School Board, 417 F.2d 801 (5th Cir. 1969), cert, denied,
396 U.S. 904 (1969); United States v. Hinds County School Bd.,
417 F.2d 852 (5th Cir. 1969), reversed as to delay granted sub nom.
Alexander, supra. In Adams v. Mathews, supra, at 189, the Fifth
Circuit announced that plans leaving all-Negro schools were un
satisfactory.
“If in a school district there are still all-Negro schools or
only a small fraction of Negroes in white schools, or no sub
stantial integration of faculties and school activities then, as
a matter of law, the existing plan fails to meet constitutional
standards as established in Green.
This language was reiterated in Henry v. Clarksdale Municipal
Separate School Dist., 409 F.2d 682, 689 (5th Cir. 1969).
The Fifth Circuit held in several cases that geographic zoning
plans for desegregation could be accepted only if they actually
worked to desegregate the schools—they were to be judged by the
same principle applied to free choice plans. See, e.g., United States
v. Greenwood Municipal Separate School Dist., 406 F.2d 1086 (5th
Cir. 1968), cert, denied, 395 U.S. 907 (1969); Henry v. Clarksdale
Municipal Separate School Dist., 409 F.2d 682 (5th Cir. 1969), cert,
denied, 396 U.S. 940 (1969) ; United States v. Indianola Municipal
Separate School Dist., 410 F.2d 626 (5th Cir. 1969), cert, denied,
396 U.S. 1011 (1970). The same rule was applied in an earlier
appeal in the Mobile County cases holding that the board zones
failed to achieve sufficient desegregation. Davis v. Board of School
Commissioners of Mobile County, 414 F.2d 609 (5th Cir. 1969).
51
Negro” (423 F.2d at 207). The Fifth Circuit decided “this
cannot be permitted in a school system operated on a neigh
borhood basis” (ibid.) and required that the board adopt
what the Fifth Circuit called “ a true neighborhood assign
ment system, assigning students to the school nearest the
student’s home up to the capacity of the given school”
(ibid.).
The Ellis decision ordered a plan based on zone lines
equidistant between schools, but limited by the existing
capacity of schools, and also leaving to the board the de
cision whether “to expand present facilities” (ibid.). The
court said that the principle must be applied “without ex
ception” and without “variances” :
We also hold that the neighborhood system, based
on school capacity, must be observed without exception.
This will prevent any variance based on traffic condi
tions, such as are disclosed in the supplemental find
ings of fact with respect to 53 students who should
go to Callahan school, or by zone line locations as is
the case with five children who should be assigned to
the Webster Avenue school. Variances by arbitrary
zone lines, or for reasons of traffic, while reasonable on
their face, may destroy the integrity and the stability
of the entire assignment plan. If Orange County wishes
to maintain a neighborhood assignment system, then
it must do so without variances. Each student in the
system must be assigned to attend the school nearest
his or her home, limited only by the capacity of the
school, and then to the next nearest school. (Ellis,
supra, 423 F.2d 203, 207-208.)
Applying this Fifth Circuit no-variances “neighborhood”
principle to the Orange County system—which had 68,012
white pupils (82%) and 14,856 blacks (18%)—left three
all-black schools which would serve 2,397 black elementary
52
students (27% of black elementary pupils and 16% of all
black pupils). The Fifth Circuit’s neighborhood plan left
these 2,397 black pupils in all-black schools because—the
court said—their segregation resulted from residential pat
terns. The court concluded that student desegregation “will
be accomplished once the district court requires and ascer
tains as a fact that the neighborhood student assignment
system, based on the definition herein contained is invoked
and the transfers made necessary thereby have been made”
(423 F.2d at 208).
B. Analysis of the “ Neighborhood School” Concept, Fifth
Circuit Style.
Analysis of the “neighborhood school” concept—Fifth
Circuit style—requires a consideration of the host of deci
sions in which the concept has been applied since Orange
County, supra.39 A number of characteristics of the
39 There have been several dozen Fifth Circuit school desegrega
tion decisions during 1970 to date. The following is a selective list
ing of cases since Orange County which deal with the “neighborhood
school” concept.
1. Andrews v. City of Monroe, 425 F.2d 1017 (5th Cir. 1970)
2. Singleton v. Jackson Municipal Separate School Dist., 426
F.2d 1364 (5th Cir. 1970)
3. Mannings v. Board of Public Instruction of Hillsborough
County, 427 F.2d 874 (5th Cir. 1970)
4. Harvest v. Board of Public Instruction of Manatee County,
No. 29425 (5th Cir., June 26, 1970)
5. Carr v. Montgomery County Board of Education, No. 29521
(5th Cir., June 29, 1970)
6. Bradley v. Board of Public Instruction of Pinellas County,
No. 28639 (5th Cir., July 1,1970), new opinion substituted
on rehearing (July 28, 1970)
7. Hightower v. West, No. 29993 (5th Cir., July 14, 1970)
8. Lee v. Macon County Board of Education, No. 29584 (5th
Cir., July 15, 1970)
9. Tillman v. Board of Public Instruction of Volusia County,
No. 29180 (5th Cir., July 21, 1970)
53
“neighborhood” concept have unfolded as it has been ap
plied to a variety of factual contexts by different panels of
the Fifth Circuit:
First, the Fifth Circuit concept is not a doctrine which
asserts that strict geographic zoning, in the context of these
school systems, is “non-racial.” This is admitted by the
Fifth Circuit in the Orange County and Mannings cases
and is the holding of a number of the recent Fifth Circuit
decisions (Andrews v. City of Monroe; Henry v. Clarksdale
Municipal Separate School Hist.; Ross v. Eckels, all cited
in note 39, supra). As recognized also by both courts below
in Swann v. Charlotte-Mecklenburg Board of Education,
Oct. Term, 1970, No. 281, the “neighborhood” assignment
is not non-racial, because the very school neighborhoods in
question were created by state action to achieve school
segregation. On the one hand housing, zoning, public hous
ing, urban renewal and construction, and racial discrimina
te). Youngblood v. Board of Public Instruction of Bay County,
No. 29369 (5th Cir., July 24, 1970)
11. Wright v. Board of Public Instruction of Alachua County,
No. 29999 (5th Cir., Aug. 4, 1970)
12. Singleton v. Jackson Municipal Separate School Dist., No.
29226 (5th Cir., Aug. 12, 1970)
13. Pate v. Dade County School Board, Nos. 29039 and 29179
(5th Cir., Aug. 12, 1970)
14. Henry v. Clarksdale Municipal Separate School Dist., No.
29165 (5th Cir., Aug. 12, 1970)
15. Allen v. Board of Public Instruction of Broward County,
No. 30032 (5th Cir., Aug. 18, 1970)
16. Valley v. Rapides Parish School Board, No. 30099 (5th Cir.,
Aug. 25, 1970)
17. Conley v. Lake Charles School Board, No. 30100 (5th Cir.,
Aug. 25, 1970)
18. Ross v. Eckels, No. 30080 (5th Cir., Aug. 25, 1970)
19. Brown v. Board of Education of City of Bessemer, No. 29209
(5th Cir., Aug. 28, 1970)
20. Robertson v. Natchitoches Parish School Board, No. 30031
(5th Cir., Aug. 31, 1970)
54
tion in housing, and on the other hand, school board deci
sions relating to school site selection, the determination of
building sizes and capacities (including use of portable
classrooms), grade structures, optional zones, non-con-
tiguous zones, and bussing were all adjusted to create
neighborhoods of convenience with the structure of the
legally established dual school systems. To stop calling
the system dual but assign pupils along the lines of con
venience thus established is merely to permit the mainte
nance of identical—indeed, continuation of the same—
segregation patterns under a different name. As Judge
Wisdom observed in Henry v. Clarhsdale Municipal Sep
arate School Dist., 409 F.2d 682, 689 (5th Cir. 1969):
A school board’s zoning policy may appear to be neu
tral but in fact tend to retard desegregation because
it binds pupils to custom-segregated neighborhoods.
In this situation, the board’s failure to take corrective
action amounts to the State’s giving official sanction to
continued school segregation, contrary to the mandate
of this Court and of the Supreme Court.
And the court held, in the same Clarhsdale case (409 F.2d
at 683):
As this case demonstrates, a school board’s adoption
of a geographic zoning system instead of a “ freedom of
choice” system is not a guarantee of effective desegre
gation. “ Geographic zoning, like any other attendance
plan adopted by a school board in this circuit, is ac
ceptable only if it tends to disestablish rather than re
inforce the dual system of segregated schools.” United
States v. Greenwood Municipal Separate School Dis
trict, 5 Cir. 1968, 406 F.2d 1086.
The Fifth Circuit has simply made a determination to
permit some values, generally expressed under the rubric
55
of “neighborhood school concept,” to prevail over the rec
ognized conflicting values and goals of a fully integrated
school system (i.e., one in which no black child is ever as
signed to a black school). For the Fifth Circuit holds that
“neighborhood” assignment is not non-racial (see Henry
v. Clarksdale Municipal Separate School Dist., No. 29165
(5th Cir., Aug. 12, 1970); Ross v. Eckels, No. 30080 (5th
Cir., Aug. 25, 1970); and the treatment of Toulminville
school in the opinion below in Mobile). It holds that “black”
schools must be disestablished “where reasonable alterna
tives exist,” Allen v. Board of Public Instruction of Brow
ard County, No. 30032 (5th Cir., Aug. 18, 1970) ;40 and
the “neighborhood school concept” is simply a verbal
formula for indicting some alternatives as “unreasonable”
where they involve “ impracticable attendance zones or in
ordinate transportation problems,” Bradley v. Board of
Public Instruction of Pinellas County, No. 28639 (5th Cir.,
July 28, 1970) (new opinion on rehearing).
Second, the “neighborhood school concept” so used is not
a description of any policy actually adopted in the past, or
even used in the present, by any of the school boards. It is
40 Slip opinion, p. 10 (footnotes omitted) (per Judge Goldberg) :
In the conversion from dual school systems based on race to
unitary school systems, the continued existence of all-black or
virtually all-black schools is unacceptable where reasonable
alternatives exist. And it is clear that one acceptable way to
achieve reasonable alternatives is by pairing schools. The tenor
of our decisions is unmistakable: where all-black or virtually
all-black schools remain under a zoning plan, but it is prac
ticable to desegregate some or all of the black schools by using
the tool of pairing, the tool must be used. Thus we have re
quired the pairing or clustering of schools in Dade County,
Florida, in Pinellas County, Florida, in Hillsborough County,
Florida, in Alachua County, Florida, in Clarksdale, Mississippi,
and in Jackson, Mississippi, to mention only a few instances.
It is now clear beyond peradventure that the tool of school
pairing—a most viable tool in the school desegregation process
-—must be embraced where it is practicable and desegregation
cannot be achieved by other means.
5 6
invoked (as in Davis, the opinion below) where the school
board has never used a true “neighborhood school” system;
and (as in Mannings41 and Davis) where it does not now
use a true “neighborhood school” system as defined in the
Orange County case {Ellis, supra). This indicates both (a)
that the Fifth Circuit is not accommodating local educa
tional policy, hut is inventing its own;41 42 and (b) that the
nature of the policy is to prefer certain values, labeled
“neighborhood” to the value of the total integration.
Third, the “neighborhood school concept” so used is un
workable, undesirable, and unconstitutional:
(a) The concept is inherently unclear. “Neighborhood”
means any one of a number of different pupil-assignment
systems. For example, in Ellis (Orange County), supra, it
means strict equidistant zoning based on school capacity.
In Mannings (Hillsborough County), supra, it means either
a strict Ellis neighborhood plan or pairing of schools for
high schools, a requirement that schools be “paired on a
neighborhood basis” for junior highs, and for elementary
schools some zoned by what the court calls variously “ dis
cretionary” or “arbitrary” zone lines, with other schools
required to be paired “without departing from neighbor
hood concepts.” In Davis (the opinion below), it means
41 Mannings v. Board of Public Instruction of Hillsborough
County, 427 F.2d 874 (5th Cir. 1970).
42 The Orange County decision indicates very explicitly that the
Fifth Circuit is creating its own definition of “neighborhood school
policy” :
It was not clear from the opinion and findings of the district
court that the defendants were in fact maintaining a neighbor
hood school system as we would define stick a system. A neigh
borhood school system cannot be a system where variances are
allowed to permit children a choice of not attending the nearest
school to his or her residence and. thereby avoiding assignment
to a formerly Negro or formerly white school as the case may
be.” (Ellis, supra, 423 F.2d 203, 206) (emphasis added).
57
use of arbitrary zone lines in a Justice Department plan
for pairing schools and recasting grade structures within
a generalized “neighborhood concept.” In Ross v. Eckels
(Houston, Texas), supra, it means rejecting the trial
judge’s strict Orange County type plan based on equidis
tant capacity zoning in favor of the school board’s discre
tionary zones for secondary schools (to get more desegre
gation) and court-ordered pairing of contiguous school
zones for a number of elementary schools, with the pair
ings described only as “well within any reasonable defini
tion of a neighborhood school system.”
(b) It inevitably involves judgmental appraisals, with
out a consistent goal or measure, as to how far “neighbor
hood” considerations may weigh against the goal of total
desegregation. It therefore leads to conflicting decisions
by different Fifth Circuit panels (compare Clarksdale and
Houston with Orange County and Fulton County),43 and
still more conflict in the decisions of differing district
judges. This is inevitable because the only principle of
decision is that “neighborhood” considerations are some
how to be “balanced” against considerations of eliminating
the all-black schools. The weights to be assigned in balanc
ing are left to the balancing judge.
(c) Its common result (except where geographic fortuity
makes “neighborhood” considerations essentially insignifi
cant (as in Broward County))*4 is to leave a significant 43 44
43 Henry v. Clarksdale Municipal Separate School Dist., No. 29165
(5th Cir., Aug. 12, 1970) ; Boss v. Eckels, No. 30080 (5th Cir.,
Aug. 25, 1970); Ellis v. Board of Public Instruction of Orange
County, 423 F.2d 203 (5th Cir. 1970); Hightower v. West, No.
29993 (5th Cir., July 14, 1970).
44 Allen v. Board of Public Instruction of Broward County,
No. 30032 (5th Cir., Aug. 18, 1970). The Fifth Circuit applied
the pairing technique to desegregate each one of 13 schools left
all-black or virtually all-black by the board’s discretionary zone
lines.
5 8
number of “black” schools—usually 20 or 25% of the black
school population and a much larger percent of the black
elementary school population. This is the ultimate evil and
deficiency of the Fifth Circuit “neighborhood school con
cept” : it simply denies the rights vouchsafed by Brown I
to 20 to 25% of black children—or even more—forever.
C. Application of the Fifth Circuit Approach in Mobile—
the Opinion Below.
Mobile has never had “neighborhood schools.” All of the
values which are supposedly embodied in the “neighbor
hood school concept” have consistently been subordinated
by the Mobile School Board to the goal of racial segrega
tion. This is so thoroughly documented in this record as
to be virtually incontestable. (See the Statement, supra,
pp. 27 to 37, and the Appendix to this brief containing the
Statement from the Brief of the United States in the Fifth
Circuit, infra.) In Mobile “neighborhood school” has been
only a euphemism for racial separation. In his 1966 opinion
in this case Judge Tuttle described the Mobile practice:
Both in the testimony and in the briefs, much is said
by the appellees about the virtues of “neighborhood
schools.” Of course, in the brief of the Board of Edu
cation, the word “neighborhood” doesn’t mean what it
usually means. When spoken of as a means to require
Negro children to continue to attend a Negro school
in the vicinity of their homes, it is spoken of as a
“neighborhood” school plan. When the plan permits
a white child to leave his Negro “neighborhood” to
attend a white school in another “neighborhood” it
becomes apparent that the “neighborhood” is some
thing else again. As every member of this court knows,
there are neighborhoods in the South and in every city
of the South which contain both Negro and white
59
people. So far as has come to the attention of this
court, no Board of Education has yet suggested that
every child be required to attend his “neighborhood
school” if the neighborhood school is a Negro school.
Every board of education has claimed the right to
assign every white child to a school other than the
neighborhood school under such circumstances. And
yet, when it is suggested that Negro children in Negro
neighborhoods be permitted to break out of the segre
gated pattern of their own race in order to avoid the
“ inherently unequal” education of “ separate educa
tional facilities,” the answer too often is that the
children should attend their “neighborhood school.”
So, too, there is a hollow sound to the superficially
appealing statement that school areas are designed
by observing safety factors such as highways, rail
roads, streams, etc. No matter how many such barriers
there may he, none of them is so grave as to prevent
the white child whose “area” school is Negro from
crossing the barrier and enrolling in the nearest white
school even though it be several intervening “areas”
away. (Davis v. Board of School Comm’rs of Motile
County, 364 F.2d 896, 901 (5th Cir. 1966) (67a).)
Mobile did not have “neighborhood schools” under its
plan during the last school year (1969-70), nor does it have
“neighborhood schools” under the Justice Department plan
ordered into effect by the Fifth Circuit for the current
school year (1970-71). The opinion below states: “Unlike
Orange County (Ellis v. Orange County, supra), Mobile
does not purport to use the strict neighborhood assignment
system. It employs zones based on discretionary zone
lines.” The Justice Department plan promotes desegre
gation on the basis of arbitrary zones by pairing zones and
changing grade structures.
60
There is nothing in the record in this case which demon
strates that the values involved in “neighborhood schools”
amount to anything, or what they amount to. As “neigh
borhood schools” have never really been tried in Mobile as
a policy of the system there is nothing in the Mobile ex
perience which supports such a policy. The fact that the
district judge repeatedly denied an evidentiary hearing
(see part V, infra), masks the fact that the actual costs
involved in establishing non-contiguous zones, or in pairing
non-contiguous zones, or in providing more transportation
are not established on this record. Unlike the record in the
Charlotte case (Swann), there has never been any oppor
tunity for factual inquiry in this case by which the courts
might appraise the costs or the relative convenience of the
various proposals to desegregate the system. For example,
there is no factual data in the record at all relevant to the
policy embodied in the plan approved by the Fifth Circuit
of limiting pairings to schools with adjacent zones. Obvi
ously in some instances the transportation required to bus
pupils from non-contiguous zones will be no different than
the transportation required in busing pupils between con
tiguous zones. In such circumstances, a policy of not pair
ing schools with non-contiguous zones does not even have
any rational basis. There is no evidence in this record
upon which one might make an informed judgment about
whether pairing schools in Mobile with non-contiguous
zones would require “ inordinate transportation require
ments.” The last phrase was the one used in Mannings,
where the court gave a particularly opaque explanation of
the difference between “pairing on a neighborhood school
concept”-—which it approved—and the “ other” kind of
pairing that it disapproved. After noting that the pairings
the Fifth Circuit was requiring were between schools which
were adjacent and in close proximity, the court said:
61
This type of assignment, denominated as pairing, is
singularly distinguishable from the grouping of several
schools, located in other than a neighborhood area,
into one group for assignment purposes in order to
manipulate racial balances through inordinate trans
portation requirements.
(.Mannings v. Board of Public Instruction of Hills
borough County, No. 28643 (5th Cir., May 11, 1970),
slip opinion, p. 7, note 2.)
Nothing in the record demonstrates that the Fifth Circuit
neighborhood school concept has any particular educa
tional or other community value. One must speculate at
large about the relative merit of the Fifth Circuit “neigh
borhood school policy” as it has been applied in the opinion
below.
The one thing that is plain about the policy as applied
in Mobile is its result in leaving a substantial number of
black children in all-black schools. The plan will leave six
all-black or virtually all-black schools enrolling 5,351 black
pupils. These 5,351 pupils represent 22% of the black
pupils in metropolitan Mobile schools and a startling 50%
of the black elementary pupils in metropolitan Mobile
schools. The stark reality of the plan approved by the
court below is that half of all black pupils will—during
their elementary school years—attend schools that are all
black, the very schools that Brown I held unconstitutional.
62
III.
The Parallel Doctrine Applied by the Fourth Circuit.
The Fourth Circuit’s “ resonableness” test announced in
Swann v. Charlotte-Mecklenburg Board of Education,----- -
F.2d------ (4th Cir. 1970), amounts to a process of weighing
the same sorts of “ neighborhood” values against total de
segregation that the Fifth Circuit has been weighing. How
ever, the Fourth Circuit decision is more explicit that total
desegregation is not required, but only a reasonable amount
of desegregation:
. . . not every school in a unitary school system need
be integrated; second, nevertheless, school boards must
use all reasonable means to integrate the schools in
their jurisdiction; and third, if black residential areas
are so large that not all schools can be integrated by
using reasonable means, school boards must take fur
ther steps to assure that pupils are not excluded from
integrated schools on the basis of race. (Swann, No.
281, O.T. 1970, Appendix p. 1267a.)
The Fourth Circuit’s disregard of factual findings of the
district court in Swann relating to the feasibility of the
transportation requirements of the district court desegrega
tion plan highlights that the balancing process being utilized
is not an appraisal of the “workability” of the plan (Mr.
Justice Harlan, joined by Mr. Justice White, concurring in
Carter v. West Feliciana Parish School Board, 396 U.S.
290, 292), but a balancing of values. As Judge Sobeloff ex
pressed it the majority in Swann made “no more than an
abstract, unexplicated judgment—a conclusion of the ma
jority that, all things considered, desegregation of this
school system is not worth the price.” (Swann, supra, No.
281, O.T. 1970, Appendix 1288a). The dissenting opinions
of Judges Sobeloff and Winter in Swann demonstrate that
63
there was no conclusion by the majority that the district
court’s plan was unworkable or not feasible.
At least in the Swann case the Fourth Circuit’s “ reason
ableness test” seems to require significantly more desegre
gation than the Fifth Circuit requires by its “neighborhood
school concept.” This is strikingly demonstrated by the
fact that the Fourth Circuit upheld the trial judge’s rejec
tion of the Charlotte-Mecklenburg board’s plan because the
“board’s elementary school proposal . . . left about one-
half of both the black and white elementary pupils in
schools that were nearly completely segregated.” Yet,
precisely that result—one-half of the black elementary
pupils completely segregated—was approved by the de
cision of the Fifth Circuit for Mobile.
IY .
The Legal Principles This Court Should Declare.
Petitioners urge that this Court declare the following
general principle stating the goal which the courts should
require to bring dual systems into compliance with the
Constitution: Every black child is to be free from assign
ment to a “black” school—an identifiable racial minority
school— at every grade of his education. We would define
“identifiable racial minority schools” as those schools which
by reason of a very considerable racial concentration or
racial disproportion are conceived as designed to receive
black children.45 46 Our statement of the principle focuses on
45 In judging concentration and disproportion, we refer to the
racial make-up of the school administrative unit, leaving for sep
arate resolution disputes relating to the racial composition of such
political or administrative units. See, for example, the problem
of a separate black school system located within a white county
school system dealt with by the Eighth Circuit in Haney v. County
Board of Education of Sevier County, Ark., 410 F.2d 920 (8th
Cir 1969); and cf. Wright v. County School Board of Greensville
County, Va., 309 F. Supp. 671 (ED . Va. 1970), appeal pending.
64
the black schools because we regard the elimination of
racially identifiable “white” schools as an incident-—albeit
a necessary incident—to desegregation of these minority
schools where black children are set apart as a separate
caste.46
We believe that the only excuse from the general prin
ciple stated should be the case of absolute unworkability
(cf. the concurring opinion of Mr. Justice Harlan in Carter
v. West Feliciana Parish School Board, 396 IT.S. 290, 292)47
of any proposal for eliminating the black schools. The
available techniques of desegregation are adequate to cope
with most school systems without even approaching the
46 Judge Sobeloff has well-stated the significance of Brown in a
recent decision:
Certainly Brown had to do with the equalization of educa
tional opportunity; but it stands for much more. Brown
articulated the truth that Plessy chose to disregard: that
relegation of blacks to separate facilities represents a declara
tion by the state that they are inferior and not to be associated
with. By condemning the practices as “ inherently unequal,”
the Court, at long last expunged the constitutional principle
of black inferiority and white supremacy introduced by Dred
Scott, and ordered the dismantling of the “ impassable barrier”
upheld by that case. (Brunson v. Board of Trustees of School
District No. 1 of Clarendon County, South Carolina, No. 14,571
(4th Cir., June 5, 1970) (concurring opinion), slip opinion
pp. 8-9.)
Judge Sobeloff also wrote: “ Certainly it is hoped that under
integration members of each race will benefit from unfettered
contact with their peers. But school segregation is forbidden
simply because its perpetuation is a living insult to the black
children and immeasurably taints the education they receive.
This is the precise lesson of Brown.” (Id. at p. 11.)
47 See also the language of Judge Sobeloff in Swann v. Charlotte-
Mecklenburg Board of Education, —— F.2d ------ (4th Cir., May
26, 1970) (dissenting opinion) :
Of eourse it goes without saying that school boards are not
obligated to do the impossible. Federal courts do not joust at
windmills. Thus it is proper to ask whether a plan is feasible,
whether it can be accomplished.
6 5
range of real unworkability. We have in this country the
available technology to integrate the schools. The concept
of absolute unworkability refers only to extreme circum
stances of geographical or demographic flukes—such as all
black towns far removed from whites—cases far beyond
the range of concerns evidenced in the recent Fifth Circuit
opinions leaving all-black schools.
Specifically, a relaxation of the general principle that
every black child shall be free from assignment to a “black”
school, cannot be justified on the basis of (a) transporta
tion inconveniences and costs, (b) rigid theories about
maintenance of grade structures, (c) “neighborhood”
associational values such as facilitation of P.T.A. meetings,
or (d) concerns that children not be sent to school in a
“ strange or hostile” neighborhood. We discuss below the
inadequacy of each of these concerns as a basis for not
achieving total desegregation of dual systems.
Transportation inconveniences and costs do not justify
the retention of black schools. As the facts with respect
to school busing become known, it is apparent that it is
a wide-spread, normal and sensible part of the daily life
of 18 million American pupils—forty percent of all school
children. The United States Civil Rights Commission has
put the busing issue in a fair perspective:
In his statement, the President raised the issue of
busing and cautioned that we must proceed with the
least possible disruption to our children’s education.
Busing has become an emotionally charged word and
the issues involved have been the subject of consider
able misunderstanding. Many who oppose busing do
so on the basis of certain assumptions, one of which
is that riding to school disrupts a child’s education
and causes harm. This is a serious issue which should
6 6
not be argued solely in terms of assumptions or emo
tion. The Commission believes that facts which it has
found in the course of its investigations may contribute
to clarifying the issue and sharpening the debate
over it.
Busing is neither a new nor a unique technique, and
its use is not limited to facilitating desegregation. For
example, for decades, black and white children, alike,
in the South were bused as much as 50 miles or more
each day to assure perfect racial segregation. In many
cases, busing was the exclusive privilege of white
children—black children often were required to walk
considerable distances. No complaints then were heard
from whites of any harmful effects. Nor was any
concern exhibited over the damage suffered by black
children through their deliberate segregation. The
Supreme Court in Broivn described vividly the nature
of the harm to which Negro children were being
subjected.
“ To separate them from others of similar age and
qualifications solely because of their race gener
ates a feeling of inferiority as to their status in
the community that may affect their hearts and
minds in a way unlikely ever to be undone.”
Thus the arguments that some now make about the
evils of busing would appear less than ingenuous.
The plain fact is that every day of every school year
18 million pupils—40 percent of the Nation’s public
school children—are bused to and from school, and
the buses log in the aggregate more than two billion
miles—nine billion passenger miles—each year. It also
should be understood that the overwhelming majority
of school busing has nothing to do with desegregation
67
or achieving racial balance. The trend toward con
solidation of schools, for example, particularly in rural
areas, requires extensive busing. It causes no disrup
tion to the educational routines of the children and is
treated as normal and sensible.
Amid the controversy over busing, in many school
systems, North and South, transportation is being used
quietly and effectively as a means of bringing about
desegregation. The bus rides are not long—in Berk
eley, California, for example, a city of 120,000 people,
the bus trip never exceeds 20 minutes—and it causes
no harm. In the South, of course, the amount of bus
ing needed to bring about desegregation frequently is
considerably less than was required to maintain dual
school systems. For example, at the Commission’s
1968 hearing in Montgomery, Alabama, we found that
black students in Selma, seeking to attend trade school,
were bused some 50 miles to the nearly all-black
Trenholm School in Montgomery, although the Rufus
King trade school was located in Selma. Rufus King,
however, was all-white.
It is a mistake to think of the problems of desegrega
tion and the extent that busing is required to facilitate
it solely in the context of the Nation’s relatively few
giant urban centers such as Chicago, New York, Los
Angeles. In most of our cities the techniques necessary
to accomplish desegregation are relatively simple and
busing creates no hardships. The experience in com
munities which have successfully desegregated could
easily be transferred to cities of greater size.
Even in giant urban centers, progress in desegrega
tion does not require interminable bus rides or disrup
tion of our children’s education. The President, in dis
cussing the recent California court decision requiring
desegregation of the Los Angeles school system, quoted
6 8
“ local leaders” as estimating* that the total cost of bus
ing’ will amount to 40-million dollars over the next
school year. This estimate represented the contention
of the defendants in that litigation. It was presented
to the court for the purpose of arguing against the
feasibility of desegregation in that city’s school system,
in fact, the court rejected this estimate as unrealistic.
In Los Angeles, as in other cities, substantial
desegregation can be accomplished through relatively
simple devices such as alteration of existing school
attendance areas, school pairing, and the establish
ment of central schools. To be sure, transportation is
necessary in giant urban centers as it is in smaller
cities, but here too, it is false and defeatist to assume
that the bus rides must be lengthy or that the educa
tion of our children will be disrupted.
In the Commission’s view, the emphasis that some
put on the issue of busing is misplaced. As most
Americans would agree, it is the kind of education
that awaits our children at the end of the bus rides
that is really important.
(Statement of the United States Commission on Civil
Rights Concerning the “ Statement by the President
on Elementary and Secondary School Desegregation” ,
April 12, 1970.)
The fully developed record in the Swann case (No. 281,
O.T. 1970), shows that furnishing bus transportation costs
a relatively small amount of money in the context of the
total costs of a school system. The average annual cost of
busing in North Carolina is only about $20 per child. The
figures on cost in this record indicate that the same thing
is true in Mobile and that busing in Mobile also costs some
thing around $20 per child per year (see Statement, supra,
69
p. 31). School busing frequently results in substantial
savings in construction and other costs because it enables
a system to purchase less expensive suburban land away
from concentrated population areas (this is the pattern of
new site acquisitions shown in the Charlotte case) and
enables more complete use to be made of existing facilities
notwithstanding population movements in a community.
It is generally recognized throughout the United States
that school buses furnish the safest transportation avail
able for school children. Judge McMillan’s findings in the
Charlotte case are based on the national data: “ Upon the
basis of data furnished by the school hoard and on the basis
of statistics from the National Safety Council, it is found
as a fact that travel by school bus is safer than walking or
than riding in private vehicles” (Appendix in No. 281, p.
1202a) and “ School bus transportation is safer than any
other form of transportation for school children” (Swann,
swpra, Memorandum Decision of Aug. 3, 1970, not yet re
ported).
The widespread use of busing to achieve racial segrega
tion has been completely established on this record in
Mobile. The same thing has been shown in the Charlotte
record and—as the Civil Eights Commission has reported
—it is true in the South generally. The analysis done for
the court below by the Department of Justice describing
the use of busing to preserve segregation in Mobile in 1965
and 1967 is reprinted as an appendix to this brief. The
Mobile board has made extensive use during very recent
years of non-contiguous or split attendance zones with
pupils transported outside their neighborhoods to promote
racial segregation. The HEW plan urged by petitioners in
the courts below (Plan B -l Alternative) would integrate
all schools in Mobile by use of transportation facilities and
techniques of the same kind used by the Mobile board to
70
keep the system rigidly segregated. The court below ac
knowledged that “any one of the” HEW plans “would lead
to a unitary system” but declined to require the hoard to
make use of the same techniques to integrate the system
that were used to keep it segregated. In the absence of any
record showing that use of transportation to integrate all
the Mobile schools as proposed by the HEW Plan B-l
Alternative is “unworkable” the board has not carried the
“heavy burden” necessary to support the use of “a less
effective method” of desegregation. Green v. County School
Board of New Kent County, 391 TJ.S. 430, 439 (1968).
The concern for maintenance of traditional grade struc
tures—for example, all six elementary grades in each school
—should not be permitted to justify continued racially
identifiable minority schools. The pairing technique widely
used to promote desegregation usually involves the altera
tion of grade structures. For example, pairing might com
monly involve combining the attendance areas for two
schools serving grades one to six and assigning grades 1-3
to one school and 4-6 to the other. This has the effect of
enlarging the attendance area of each school, and fre
quently that will be sufficient to integrate two previously
segregated schools. The same effect can also be achieved
by other techniques such as closing small schools and con
solidating programs in larger schools, building larger facili
ties so that larger geographic areas can be served, provid
ing non-adjacent attendance areas—variously called
attendance islands, non-contiguous zones, satellite zones,
etc.—for schools so as to promote integration, and re
adjusting grade structures in clusters of more than two
schools. Although pairings require students to change
buildings, they will not be constantly shifting to new
environments for their entire classes will move together
at the appropriate grade levels to the buildings serving
71
their schools. Each pupil will attend his nearest school
during some years. In other years, he and his neighbors
will go to a school which may be more distant. The court
below said petitioners used a euphemism in calling this a
“ shared neighborhood” plan, but that phrase accurately
describes the pairing technique. Each pupil will share his
“neighborhood school” at some point with pupils from
another “neighborhood.”
Both the Fourth and Fifth Circuits are now firmly on
record in support of the use of the pairing technique.48 The
Fifth Circuit has made it clear that it will not permit any
abstract idea of grade structure maintenance to block
desegregation: “ The restructuring of the grade system in
the proposed pairings is not, by itself, such an indicium
of educational unsoundness as to render an otherwise
feasible alternative unacceptable. Andrews v. City of
Monroe, 425 F.2d 1017 (5th Cir. 1970). No particular
grade structure can be considered inviolate when constitu
tional rights hang in the balance.” Brown v. Board of Ed
ucation of the City of Bessemer, No. 29209 (5th Cir., Aug.
28, 1970) (Ingraham, J.). The Fourth Circuit in Swann
also has required that there be consideration of “ every
method of desegregation, including rezoning with or with
out satellites, pairing, grouping and school consolidation”
(Appendix No. 281, p. 1277a). The Mobile School Board
has used a great variety of differing grade structures in
organizing the schools to keep them segregated. This is
detailed in the Statement, supra. Whatever educational
values there may be in particular grade structures have
been subordinated to the value of racial segregation by the
Mobile Board. Now, to satisfy the obligation of Brown I,
48 See, e.g., Judge Goldberg’s opinion in Allen v. Board of Public
Instruction of Broward County, No. 30032 (5th Cir. Aug. 18,
1970), quoted at note 40, supra, wherein he collects a sampling of
eases where pairing has been required.
72
these values must be subordinated to the value of integra
tion.
The concerns often voiced for maintenance of psychologi
cal or sociological “neighborhood” values often mask an
appeal for preservation of racial homogeneity which is in
the teeth of Brown I. The only sense in which such neigh
borhood values have been honored in Mobile is that where
neighborhoods have been racially homogeneous the racial
lines have coincided with the school lines. But assertions
of such concerns as having schools accessible to homes so
that parents can attend PTA meetings easily, and pupils
can relate to a “neighborhood institution” are mostly re
flections of a sentimentalized view of neighborhood schools
having little relationship to reality in a nation where 40%
of all children routinely ride the buses to school every day.
For the small child whose school is far enough from home to
require a bus ride, the value of closeness to home is al
ready dissipated. Our nation’s public schools (and often
private schools, too) have been organized so as to utilize
transportation technology and to subordinate values of
closeness to home. The whole movement away from the
one-room schoolhouse to the consolidated school has been
based in part on use of the school bus and on a judgment
that busing is a routine and useful tool of educational
administration.
The Fifth Circuit “neighborhood school concept” does
not rest on any established concern for the safety of chil
dren traveling to school. The rigid rule of Orange County
using strict proximity zoning and building capacity ex
pressly disclaims any variances for traffic problems (Ellis,
supra, 423 F.2d 203, 208). Judge Simpson’s opinion in
United States v. Indianola Municipal Separate School Dist.,
410 F.2d 626 (5th Cir. 1969), demonstrates that claims
based on safety must be closely analyzed, and that where
73
pupils of both races have freely crossed alleged “hazards”
to attend segregated schools such claims are often mere
excuses for not desegregating schools. Generally speaking,
real safety hazards can be overcome by furnishing trans
portation to students if other means will not suffice. Segre
gation cannot be maintained on the theory that desegrega
tion involves “ safety hazards.”
The concern that pupils not be bused to a neighborhood
mainly inhabited by persons of another race because that
neighborhood may be strange or “hostile” rests in essence
on opposition to integration. This kind of hostility can no
more be used to justify preserving segregation than any
other form of opposition to integregation. Cooper v. Aaron,
358 U.S. 1 (1958). When segregation was the legal norm—
and in places like Mobile long after Brown I—it was never
thought that the value of going to school in a familiar neigh
borhood was sufficiently important to justify a breach of
the racial rule decreed by segregation laws and practices.
Such a value cannot be asserted now as an excuse for con
tinuing the segregation patterns created by law. Segrega
tion cannot be maintained on the basis of an appeal for
maintenance of the comfortable patterns of the segregated
past. To be sure, it will be a new experience for white
children to be bused to a black residential area in many of
our communities. This novelty consists mainly in the new
ness of integration, for the same children are now frequently
bused equal distances from their homes in all-white neigh
borhoods. The opposition of white parents to busing of
their children to black schools (or formerly schools now
integrated but in black residential areas) is grounded in
fear, prejudices and opposition to integration. Such ob
stacles must be overcome if the Equal Protection Clause is
to be given full meaning. Cooper v. Aaron, 358 U.S. 1
(1958).
74
The elimination of racially segregated dual systems can
not be accomplished on the basis of desegregation tech
niques that require only busing of black pupils and which
place all of the burdens of change on the black community.
The Fifth Circuit now uniformly requires that school boards
offer blacks left in all-black schools the option of trans
ferring to any white school under a majority-to-minority
transfer plan with free transportation and a priority for
space—they can “bump” neighborhood whites if necessary.
See, e.g., Allen v. Board of Public Instruction of Broward
County, No. 30032 (5th Cir., Aug. 18, 1970). The device—
like freedom of choice—depends on the courage of black
children to break segregation patterns. It also disregards
the professed concern about placing children in “ strange
and hostile” neighborhoods.
No lasting change can be expected by the use of desegre
gation plans which limit desegregation to those white
citizens—mostly of lower incomes—who reside closest to
the black ghettos while affluent areas remain segregated.
Such plans are mere blueprints for racial separation in the
future because of resegregation and the flight of whites
from heavily black areas.
We cannot, under the Constitution, “consign another gen
eration of children to education in racially isolated schools”
while hoping for residential desegregation to be achieved
through open housing laws.49 It may be plausible to hope
that fair housing laws will enable blacks to escape the
ghetto. But there is little reason to expect that even a
vigorous enforcement of such laws—and they now depend
for the most part on case by case litigation by private
citizens—will have any impact on the all-black schools.
49 Statement of the United States Commission on Civil Rights
concerning the “ Statement by the President on Elementary and
Secondary School Desegregation,” April 12, 1970.
75
The concept that the black schools in the all-black neigh
borhoods might become integrated as the result of fair
housing laws rests on assumptions entirely outside the
experience with such laws—that whites wTill use fair housing
lawT to move into black neighborhoods and thus integrate
those neighborhoods and in turn integrate the all-black
schools. The Fifth Circuit’s statement that its policy of
leaving all-black schools will be alleviated in the future by
fair housing (see, e.g., Hightower v. West, No. 29993 (5th
Cir., July 14, 1970) is merely an illusion. The idea that
fair housing laws will enable Negroes to move to white
neighborhoods (see Ellis and the opinion below) expresses
a very long range hope. However, there is reason to
fear the opposite result, that the “neighborhood school con
cept” will encourage housing segregation as an escape from
school integration. As Judge Sobeloff observed in Swann,
the rule “furnishes a powerful incentive to communities to
perpetuate and deepen the effects of race separation so
that, when challenged, they can protest that belated remedial
action would be unduly burdensome” (Appendix No. 281,
pp. 1290a-1291a).
We believe that our proposed principle, forbidding rele
gation of pupils to black schools except in cases of absolute
unworkability of integration plans, has a number of merits.
They include simplicity, uniformity, flexibility and satis
faction of the constitutional objectives stated in Brown I.
The virtue of relative simplicity is found in the sole
exception based on the test of “workability.” A test focus
ing on the goal of complete integration in every case except
where desegregation simply cannot work can hope to reduce
litigation and bring protracted litigation to an end. The
multiple appeals in this case led Judge Goldberg to call
plaintiffs’ efforts to integrate the schools of Mobile County
76
“an almost Homeric odyssey.” 60 Unfortunately, Mobile is
not unique in being a community still largely having segre
gated schools notwithstanding years and years of litiga
tion by Negro pupils seeking their rights under Brown.
Our proposed principle is not offered as a panacea that
will bring all litigation about school segregation to an end—
that is too much to expect in the area of disputes about
racial equality. But the relative simplicity of the rule, and
its focus upon the practical workability of desegregation
proposals should hasten the end of litigation in the same
way this Court’s decisions in Green and Alexander have
accelerated the same process.
The principle petitioners urge will do much more to
promote uniformity in desegregation enforcement than the
approaches of the Fourth and Fifth Circuits. Our approach
is not based on “balancing” the values of a “neighborhood”
concept against the value of integration. The Fifth Cir
cuit’s “neighborhood” formula and the Fourth Circuit’s
“ reasonableness” test involve the kind of judgmental bal
ancing and evaluation of competing values in every case
which insures that there will be little uniformity in de
segregation case results where different men do the judg
ing. The Fifth Circuit approach puts a premium on ad hoc
evaluation of whether a particular school pairing for ex
ample, is really “worthwhile” to achieve integration or
whether there has already been “sufficient” integration of
other pupils in the system. There is no way to get uni
formity with such a principle, and the best response that
the Fifth Circuit can make when there is a criticism of the
lack of uniformity of decision-making (as in Judge Clark’s
dissent in Ross v. Eckels, No. 30080 (5th Cir., Aug. 25,
1970)) is to say that “ each case had to be judged on all
60 Davis v. Board of School Commissioners of Motile County
(Davis v. United States), 422 F.2d 1139, 1140 (1970) (611a).
77
facts peculiar to this particular system,” that “ school cases
are unique” and that “ each school case must turn on its own
facts.” (Boss v. Eckels, supra, opinion of the court.)
The approach we urge has flexibility. It is flexible in that
the means, of desegregation may remain in local control so
long as the goal is achieved. The major means of desegrega
tion currently being used are discussed elsewhere in this
brief. School consolidation and school closing, pairing or
clustering schools, readjusting school zone lines, controlling
school sizes through construction, expansion, portable
classrooms and other means, site location, the use of non
contiguous or split zones, and transportation systems are
all part of the technology of educational administration
which can be adapted to serve the goal of desegregation.
The Fourth Circuit has declared broadly in Swann that all
such methods and any others must be considered. We urge
that this Court follow the same pragmatic view of the avail
able techniques. None of the techniques will suffice in every
case. But generally flexible practical approaches can solve
desegregation problems where there is the will to find such
solutions.
The test of “ absolute unworkability” leaves a doctrinal
basis for dealing with the really extreme situations that
may exist in a few communities, without allowing the un
usual problems to paralyze the search for solutions of more
typical desegregation problems. As the Civil Rights Com
mission has stated :51
It is a mistake to think of the problems of desegrega
tion and the extent that busing is required to facilitate
it solely in the context of the Nation’s relatively few
giant urban centers such as Chicago, New York, or 61
61 Statement of the United States Commission on Civil Rights
concerning the “ Statement by the President on Elementary and
Secondary School Desegregation,” April 12, 1970.
78
Los Angeles. In most of our cities the techniques
necessary to accomplish desegregation are relatively
simple and create no hardships.
And also:
The Commission is aware that the problem of school
segregation is one of enormous difficulty and com
plexity. Yet a realistic assessment of the scope and
dimensions of the problem should not result in re
signed acceptance of its indefinite continuation or a
defeatist conclusion that it is beyond our capacity
to resolve. The Commission is convinced of the ability
and will of the American people to respond affirma
tively to a call to end the injustice that school segre
gation represents.
Finally, the principle stated by petitioners satisfies the
Constitution. The Fifth Circuit has offered no satisfactory
alternatives in a “neighborhood school concept” which can
function as it has in Mobile to leave half of the black
elementary pupils in schools which are unmistakably
black—either all-black or virtually all-black. Brown must
promise something more than a regime in which black
children remain in the same black schools under a new
justification. We believe our statement of the goal—no
more black schools—is consistent with Brown. The Fifth
Circuit announced this rule shortly after the Green deci
sion (in Aclams v. Mathews, 403 F.2d 181, 188 (5th Cir.
1968); Henry v. Clarksdale Municipal Separate School
Dist., 409 F.2d 682, 689 (1969); United States v. Indianola
Municipal Separate School Dist., 410 F.2d 626, 628 (1969)),
and retreated from it after the requirement of immediate
desegregation became established by Alexander and Carter,
supra. We believe that our statement of the goal of dese
79
gregation is entirely supported by this Court’s decision in
Green v. County Board of New Kent County, 391 U.S.
430, 435, 442 (1968):
The pattern of separate “white” and “Negro” schools
in the . . . system established under compulsion of state
laws is precisely the pattern of segregation to which
Brown I and Brown II were particularly addressed,
and which Brown I declared unconstitutionally denied
Negro school children equal protection of the laws.
(391 U.S. at 435)
# # #
The Board must be required to formulate a new
plan and . . . fashion steps which promise realistically
to convert promptly to a system without a “ white”
school and a “Negro” school but just schools. (391
F.S. at 442)
The decision of the Court in these cases may decide
whether the promise of Broivn will be kept for thousands
upon thousands of black children. That promise is broken
by the current approach of the Fifth Circuit which leaves
segregation intact in the main institutions of dual sys
tems------ the all-black schools. The current approach of
the lower courts represents a new kind of gradualism which
functions in much the same manner as the doctrine of
“deliberate speed,” now repudiated by Alexander and
Carter. This Court should require that school districts
maintaining dual systems desegregate the schools now and
maintain them in a desegregated status without separate
racially identifiable minority schools.
80
V.
Final School Desegregation Plans Should Not Be
Approved Without Evidentiary Hearings. Petitioners
Were Denied Due Process by the District Court’s Ex
Parte Procedures in Deciding the Case.
The Fifth Circuit’s “neighborhood school principle” is
so inherently unclear and subjective as to highlight the
need for a full and fair development of the facts in adver
sary proceedings following the usual procedures. Findings
of Fact based on such an adversary record and evidentiary
hearings are all the more vital in a case such as this where
the Fifth Circuit, and now this Court, is called upon to
announce general principles of law which will vitally affect
hundreds of thousands of citizens. Adherence to funda
mentals of procedural fairness is essential where such vital
public interests are at stake. Regretfully this case has been
litigated in the district court by procedures which fall so
far short of the essentials of fair play and due process as
to call for special condemnation and the exercise of this
Court’s supervisory powers over the functioning of the
lower federal courts. We are not complaining about some
minor or isolated irregularity caused by the need for expe
ditious decision of the case, or the stringent time limita
tions imposed by the court of appeals. This record shows
a consistent denial of evidentiary hearings over a period
of years and the decision of important constitutional rights
upon the basis of ex parte unsworn factual submissions to
the district judge by the respondent school board. This
consistent course of denials of fundamental fairness under
mines the integrity of the entire judicial process.
The principal episodes we complain of are these: (a)
denial of a hearing prior to entry of order of August 1,
81
1969 ordering a desegregation plan based in part on an
HEW submission— err parte meetings with court, school
board and H E W ; (b) denial of hearing prior to entry of
order of January 31, 1970 approving school board plan
with modifications—board plan never served on plaintiffs
until February 27, 1970, nearly a month after its approval
by court; (c) denial of hearing prior to order of April 14,
1970 making findings of fact at request of court of appeals
entirely based on school board affidavits; (d) denial of
notice or hearing and consideration of ex parte factual sub
missions prior to entry of order amending desegregation
plan entered July 13, 1970; and (e) denial of notice or
hearing and consideration of ex parte factual submissions
prior to order of July 30, 1970 changing zones for 32
schools.
August 1, 1969 Order. Denial of a hearing following the
Fifth Circuit’s decision of June 3, 1969 was in direct dis
obedience of that court’s order which stated that: “For
plans as to which objections are made or amendments sug
gested, or which in any event the district court will not
approve without hearing, the district court shall commence
hearings beginning no later than ten days after the time
for filing objections has expired.” (414 F.2d 609, 611; em
phasis added.) Nevertheless the district court held no
hearing. The school board took the depositions of Dr. Joe
Hall the responsible HE W official. When the United States
attempted to take the depositions of the school board presi
dent and associate superintendent of schools the district
court prevented this by granting a board motion that the
depositions not be taken. On July 3, 1969, the district
judge held an ex parte conference with school board repre
sentatives and HEW officials. Petitioners’ attorneys had
no notice of the meeting and learned of it when the board
filed a stay application with Mr. Justice Black in July
82
1969, seeking a stay in part based on “facts” from the ex
parte meeting.
January 31,1970 Order. The court had before it two new
HEW plans filed December 1, 1969, a school board plan of
the same date and a Justice Department proposal submitted
for the balance of the school year, at the time it entered
the January 31, 1970 order. On January 14, 1970, this
Court ordered that complete desegregation proceed in
Mobile County not later than February 1, 1970. Carter v.
West Feliciana Parish School Board, 396 U.S. 290 (1970).
The court held a “pretrial conference” January 23, but no
trial. The district court thus ignored the suggestion in Mr.
Justice Harlan’s concurring opinion in Carter v. West
Feliciana Parish School Board, 396 U.S. 290, 292 (1970),
that where HEW desegregation proposals were “already
available the school districts are to bear the burden of
demonstrating beyond question, after a hearing, the un
workability of the proposals . . . .” (Emphasis added). On
January 2, 1970—a month after the board’s plan was filed
and when informal efforts were exhausted—-petitioners filed
a motion asking that they be served with a copy of the
board’s plan, which was filed with the court. The January
31 order adopted the board’s plan with some modifications.
Nearly a month later the district court on February 27, 1970
granted petitioners’ motion for a copy of the board’s plan,
which was then served by the board. The district judge
chose between the four plans presented without hearing
any evidence. There was no opportunity for the parties to
examine witnesses and present evidence with respect to the
workability of the four plans under consideration.
April 14,1970 Order. Because the district court had made
no fact findings on matters the Fifth Circuit believed to be
relevant, that court remanded the appeal for the trial
judge to make findings of fact. Petitioners moved in the
district court on April 6, 1970 to establish a procedure
whereby the board’s proposed findings might be tested by
an evidentiary hearing. This motion was denied April 14th.
The district judge accepted the board’s affidavit “ excluding
self-serving declarations and speculative opinions” as its
own fact findings.
July 13,1970 and July 30,1970 Orders. The district court
twice amended the desegregation plan in July, 1970 without
any notice to petitioners. On at least two occasions new
statistical information listing the numbers of pupils in each
school by race under various versions of the plan were
filed in the clerk’s office by someone—presumably the court.
The data apparently comes from the school board but its
origin is not indicated. Nevertheless it has promptly been
adopted in the district court order, and in the Fifth Circuit
opinion of August 4, 1970.
Petitioners’ repeated complaints to the Fifth Circuit
about ex parte dealings and denial of hearings evoked little
response from that court62 until the Fifth Circuit opinion
of August 28, 1970, which finally ordered rather cryptically
that:
(5) Henceforth, any time the school board desires to
have changes in zone lines made, it shall give rea
sonable notice to the parties.
62 In a collateral proceeding, wherein district judge Thomas had
enjoined certain civil rights advocates from engaging in certain
demonstrations on the request of the school board, the Fifth Circuit
did reverse because of the trial court’s failure to make findings
of fact. Davis v. Board of School Commissioners of Mobile County
{Davis v. United States), 422 F.2d 1139 (5th Cir. 1970) (611a).
The court refused a hearing on the evidence insisting that testimony
be by affidavit only in connection with the preliminary injunction.
This practice, too, may deny litigants a fair opportunity to develop
the facts. See Louisiana ex rel Gremillion v. N.A.A.C.P., 366 U.S.
293, 298 (1961) (Mr. Justice Frankfurter, concurring).
8 4
As the case now stands a final desegregation plan for
Mobile’s thousands of pupils has been approved without
any semblance of an evidentiary hearing.
There can be no doubt that the procedures followed by
the district court in this case do not comport with the
fundamentals of due process. “The fundamental requisite
of due process of law is the opportunity to be heard.”
Grannis v. Ordean, 234 U.S. 385 (1914). Important rights
may not be adjudicated on the basis of the privately ac
quired knowledge of the judge where a litigant is given no
opportunity to make a showing about contested matters.
Ohio Bell Telephone Co. v. Public Utilities Commission,
301 U.S. 292 (1937). Due process is plainly not satisfied
where one litigant communicates the vital facts to the
court on an informal ex parte basis. See Hall v. West,
335 F.2d 481, 483-484 (5th Cir. 1964) condemning such
ex parte consideration of another school desegregation case.
A fair and open hearing is vital to the integrity of judicial
proceedings. “Nothing can be treated as evidence which
is not introduced as such.” Morgan v. United States, 298
U.S. 468, 480, 481 (1936); Interstate Commerce Commis
sion v. Louisville d N.R. Co., 227 U.S. 88 (1912). “ The
right to such a hearing is one of the ‘rudiments of fair
play’ (Chicago, M. d St. P.R. Co. v. Polt, 232 U.S. 165,168)
assured to every litigant by the Fourteenth Amendment
as a minimal requirement.” Ohio Bell Telephone Co. v.
Public Utilities Commission, supra at 304. “ In almost
every setting where important decisions turn on questions
of fact, due process requires an opportunity to confront
and cross-examine adverse witnesses.” Goldberg v. Kelly,
397 U.S. 254, 269 (1970).
8 5
CONCLUSION
W herefore, it is resp ectfu lly subm itted that the ju d g
m ent below should be reversed in so far as it fa ils to p rov id e
fo r the elim ination o f all rem ain ing racia lly identifiable
m in ority schools and the cause rem anded fo r the im m e
diate im plem entation o f a com plete d esegregation plan in
accordance w ith the princip les u rged in this b rie f.
Respectfully submitted,
J ack Greenberg
J ames M. N abrit, III
M ichael D avidson
N orman J. C h a c h iiin
10 Columbus Circle
New York, New York 10019
V ernon Z. Crawford
A lgernon J. Cooper
1407 Davis Avenue
Mobile, Alabama 36603
A n th o n y G. A msterdam
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
Brief o f the United States in the Court o f Appeals:
Statement o f Facts and Appendices B, C and D
A P P E N D I X
A P P E N D I X
Brief o f the United States in the Court o f Appeals:
Statement o f Facts and Appendices B, C and D
I n the
UNITED STATES COURT OF APPEALS
F oe th e F if t h Circuit
No. 29,332
B irdie M ae D avis, et al.,
Plaintiffs-Appellants,
U nited S tates of A merica,
Plaintiff -Intervenor-Appellant,
v.
B oard of S chool Commissioners
of M obile C ou nty , et al.,
Defendants-Appellees.
ON A PPE A L FROM T H E U N ITED STATES DISTRICT COURT
FOR T H E SO U TH E R N D ISTRICT OF ALABAM A
B rief for th e U nited S tates
2a
I ssue P resented
"Whether, in view of the circumstances of this ease and
more effective options available, the district court erred
in substantially adopting the school board’s desegregation
plan.
S tatem ent
1. Procedural History
This Court has twice recently considered this case.1 In
June 1969 the Court disapproved a plan combining ele
ments of freedom of choice, zoning, and minor ity-to-major-
ity transfers, 414 F.2d 609. The district court was directed
to request the assistance of the Office of Education of the
United States Department of Health, Education and Wel
fare. The Office of Education developed a two-step deseg
regation plan, reaching all rural schools and the schools
in the western portion of metropolitan Mobile in 1969-70,
and reaching the eastern urban schools in 1970-71. The
district court adopted a plan substantially the same as the
first step of the HEW plan and directed submission of a
revised plan for the eastern schools. That decision was
affirmed by this Court in Singleton v. Jackson Municipal
Separate School District, 419 F.2d 1211 (5th Cir. 1969)
(en banc) (per curiam), rev’d as to timing sub nom. Carter
v. West Feliciana Parish School Board, 396 U.S. 290 (1970)
(per curiam).
On December 1, 1969, plans were filed by the school
board and HEW. (At the court’s request, the Department
of Justice filed on January 27, 1970, a separate proposal
for implementation pendente lite.) On January 31, 1970,
the district court adopted, with some modification, the
school board’s submission based on geographic zoning.
After the board directed the staff to discontinue prepara
1 For earlier proceedings see 364 F.2d 896, 898-900 (5th Cir.
1966); 393 F.2d 690 (5th Cir. 1968).
3a
tions for desegregation in view of the enactment of a state
statute prohibiting assignment of students to schools on
the basis of race, the district court on March 16 directed
that students be reassigned according to its January 31
order, as modified. On March 20 the order was imple
mented by the board.
This Court on March 25 remanded the case for supple
mental findings. The district court ordered the school board
to submit by affidavit the facts sought and adopted the
information furnished by the board.2 3
2. Facts
A. The Mobile County school system, with 42,620 white
and 30,884 Negro students, (November 26, 1969 Report to
the Court) is the largest in Alabama. In maintaining and
operating a system of this size educational and adminis
trative decisions have been made periodically affecting
such matters as construction, location of new facilities,
alteration of zone lines, grade structures and the use of
school transportation.
Grade Structures. The Mobile schools have had grade
structures which include 1-5, 1-6, 1-7, 1-8, 1-9, 1-12, 2-5,
6-7, 6-8, 6-9, 6-10, 6-12, 7, 7-8, 7-9, 7-11, 7-12, 8-12, 9-12,
10-11, 10-12. One school housed grades 1-4, 6 and 8 during
the 1962-63 school year. (PL Ex. 22, 23, Pl.-Int. Ex. 29,
July 1967 Hearing; A. in Nos. 27,260 and 27,491 Vol. I
pp. 6-13; November 26, 1969 Report to the Court.)3 Many
2 The district court adopted the statistical information attached
to the affidavit and indicated its belief that the “ general informa
tion” furnished in the document “excluding self-serving declara
tions and speculative opinions” was correct.
3 There are printed records from previous appeals in this ease
on file with the Court, and evidence has been introduced at several
hearings. We will cite the printed records filed in early appeals
by using R. for the 1965 appeal and A. for the printed appendices
in the three appeals taken in 1968 and 1969. When referring to
exhibits which are not part of printed records, we will indicate
the date of the hearing and the exhibit number.
4a
of the grade organizations had a clear racial effect: The
Hillsdale school (Negro), located in a small Negro com
munity surrounded by white neighborhoods, was the only
facility in the metropolitan area that has served grades
1-12 (A. in No. 26,886 Vol. V P. 1527-1530) ;4 5 the Marechael
building was used as a one-grade school in 1963-64 to
supplement the Emerson and Southside plants (both Negro)
(Appendix A to our Trial Brief filed in this Court on
September 23, 1967 in No. 25,175, p. A -2 ); and the Turner-
ville (Adams) plant covered grades 6-7 during 1965-66 and
1966-67 in order to absorb the 6th grade at all-Negro Whit
ley and the 7th grade at the Mobile County Training School,
also a Negro school, (id. p. A-7).
Grade reorganizations were also made to cope with en
rollment trends in the downtown Mobile and Prichard
schools. White schools in this area were losing students
while the enrollment at Negro schools increased,6 and,
as the number of students living in the area served by a
school decreased, additional grades were often added to
maintain the level of enrollment. The Gorgas school, for
example, was expanded from grades 1-6 in 1964-65 to 1-7
in 1965-66 (PI. Ex. 22 and Pl.-Int. Ex. 29 at July 1967
Hearings), and the Toulminville School was expanded from
7-9 in 1962-63 to 7-10 in 1963-64 and 7-11 in 1964-65 (Id.
Pl.-Int. Ex. 29).6
Students have often been required to attend schools for
a brief period before changing to another facility. For
example, 6th grade students who attended Gorgas in 1965-
66, were assigned to Old Shell Hoad for the 7th grade in
1966-67 (Appendix A to Trial Brief at p. A-10), Phillips
4 In 1968 it was reduced to 1-9 and in 1969 to 6-8.
5 In 1966 the school board studied this problem and made a de
tailed report on it. See Trial Brief, Appendix B.
6 In 1965-66 Toulminville was made a Negro school covering
grades 10-11 only. See p. 18, infra.
5a
for the 8th grade in 1967-68 (Ibid.), and Murphy in 1968-69
for grade 9 (A. in Nos. 27,260 and 27,491 Vol. I, p. 10).
A 6th grade student at Emerson in 1963-64 would attend
four schools in five years: grade 6 at Emerson, 7 at Mare-
chael, 8 and 9 at Southside (Appendix A to Trial Brief,
p. A-2), and grade 10 at Williamson (PL Ex. 23 at July
1968 Hearing). While some of these school changes were
the result of opening and closing schools for racial reasons,7
the board has used similar feeder organizations on a per
manent basis. Pupils in the Indian Springs zone go to
Indian Springs for the 6th grade, Eight Mile for the 7th
and 8th, Clarke for the 9th, and Vigor for the 10th (A. in
No. 26,886 Vol. IV, pp. 1331-1332).
The board’s alterations in the grades taught at particular
schools required, from time to time, that elementary school
facilities he used for junior high or middle school grades,8
that junior high plants be used for senior high grades,9 and
that senior high buildings house elementary and junior high
grades.10
In making grade changes the board has paired (or
grouped) two or more schools located on separate campuses
to serve one set of grades. For 1963-64 the Emerson School
zone was served by three schools: Emerson, grades 1-6:
Marechael, grade 7; and the Old Lee School (later renamed
Southside), grades 8-9. (See Appendix A to Trial Brief,
7 See infra, pp. 16-18.
8 E.g., Carver and Hall which are now being used as middle
schools were both built as elementary schools, and last year Craig
head was a junior high.
9 E.g., Toulminville was built to house only junior high students,
and Williamson, which is now a senior high, covered grades 8-12
last year.
10 E.g., Hillsdale originally covered grades 1-12, but last year
the board recommended using the plant for grades 1-9.
6a
p. A-2).11 During the 1964-65 school year, four schools were
grouped to educate the white children in grades 1-6 in
the Saraland-Satsuma area. (Id. at A-4). From 1965 to
1967 the Turnerville (Adams) school was grouped with
Whitley and Mobile County Training Schools, located about
1.6 miles from Turnerville.12
Zones. In order to utilize efficiently available classroom
space, the board has employed zoning, including noncon
tiguous or split attendance zones. As many as 18 noncon
tiguous attendance areas were used in a single year. (Ap
pendix A to Trial Brief).13 The zones included instances of
combining rural areas with portions of metropolitan Mo
bile14 and combining two or more noncontiguous areas in
the city.15 Maps on page 7a illustrate split elementary
zones by shading in the same color areas served by the
same school.16
11 Marechael was evidently always paired with Southside and is
never mentioned separately when reports were made even though
they are located several blocks apart.
12 See also, e.g., Snug Harbor (later Palmer) which was paired
wtih Carver and Grant; and Toulminville, which was paired with
Central. App. A to our Trial Brief at p. A-10.
13 Appendix C, infra, lists the noncontiguous zones which were
proposed or noted by the pupil placement recommendations each
school year. It should be understood that the placement bulletins
do not mention many of the split zone assignments that are to be
continued without change.
14 See e.g., Old Shell Road-Griggs areas (Appendix to Trial
Brief pp. A-4, A-10, A -l l) , St. Elmo-Hillsdale area (Id. p. A-5),
and Brookley Air Force Base-Theodore (Id. p. A-2).
16 See e.g., Whistler zone (R. in No. 22,759, p. 253).
16 Because most of the zones shown were used between 1964 and
1967 a 1965 map is used. See A. in No. 26,886, Vol. VI, P. 1. In
some instances only certain grades were assigned to a school from
its noncontiguous zone, and in other cases only Negro or white
children in an area were assigned on the split-zone basis. The
zones are taken from Appendix A to Trial Brief, except for the
students transported to Rail from South Brookley which is taken
from Appendix B to Trial Brief, p. 5.
w n
L
7a
8a
Portable Classrooms. The Mobile County school system
presently has 268 portable classrooms (A. in No. 26,886
Yol. I, pp. 90-94) which are shifted among schools as they
are needed. For example, in preparing for the 1964-65
school year the board discontinued use of portables at the
Lott and Brazier schools and added portables at twelve
other schools. (Appendix A to Trial Brief, p. A-6). In
1963-64 the Hillsdale School (grades 1-9) had 24 portable
and no permanent classrooms. (PI. Int. Ex. 29, July 1967
hearing). In 1967-68 portable classrooms composed 50
per cent or more of the regular classroom space at thir
teen schools in the system.17
Assignment of portables often reflects racial considera
tions. Thirteen portable classrooms were in use in 1967-68
at all-Negro Toulminville High School while traditionally
white Murphy High, serving an adjacent attendance area,
had none and was 410 students undercapacity. (A. in No.
26,886 Vol. I, pp. 92-93). In the same year the Negro
Washington school had 15 portables while Phillips, a tra
ditionally white junior high serving the adjacent attend
ance zone, had no portables and was 114 students under-
capacity. The Nelson Adams School (Negro) serving
grades 1-12 had no portables in 1967-68 although the
(white) Lee (1-6), Saraland (1-6), and Satsuma (7-12)
schools together serving basically the same attendance
area as Adams, needed 14 portables, with 12 at Satsuma.
All-Negro Blount High School (Negro) had 19 portables
in 1967-68, while traditionally white Vigor High, located
about six blocks away, had no portables and was 62 stu
dents under its normal capacity. (Id. pp. 90, 93).
Transportation. Mobile County school officials have tra
ditionally provided transportation to students in the urban
17 An appendix to this brief, infra, p. 64, contains the number
of portable classrooms used or recommended between 1964 and
1968 at schools where portables constituted substantial portions of
the total capacities.
9a
as well as the rural portions of the system. Between 1964-
65 and 1967-68 the board bused from a high of just under
25,000 students to 22,094 per year. During this time it
spent from $405,833 to $503,934 per year to operate the
buses and between $43,787 and $137,911 on new buses each
year. (Office of Education July 10, 1969, submission)
In 1966-67, in the metropolitan area alone, the board
bused more than 7,000 students, approximately 2,350 of
whom were transported because of noncontiguous zones.18
(A. in No. 26,886, Vol. I, pp. 5-6). Over 580 were bused
about 6.3 miles from the rural Saraland and Satsuma. areas
to the Mobile County Training School (Negro) located in
the eastern section of metropolitan Mobile; 381 elementary
and junior high school children were bused from the at
18 The 1964-65 pupil-reassignment notice provides in part:
South Brookley—will serve its district for grades 1-5. The
sixth grade will be transported to Craighead along with stu
dents presently transported.
Craighead—will serve its district for grades 1-6, plus the stu
dents formerly transported to Oakdale from Morningsdale
in grades 1-6, those formerly transported to Arlington from
Williams in grades 1-6, those presently transported to Craig
head from South Brookley in grades 1-6 and the 6th grade
from South Brookley.
Tanner Williams— grades 1-9 for its district only. Students
now transported from Shaw and Semmes will return to those
schools.
Fonvielle—reduce district and assign to Stanton Road. Will
serve grades 1-5 with 6th grade transported to Palmer.
Hillsdale—grades 1-12. Discontinue transportation to St.
Elmo. Double session grades 1-4 until building is complete m
November. Add to Hillsdale students transported from High
way 98 west (beyond Howell’s Ferry Road), formerly trans
ported to Warren, Washington and Central.
Thomas—grades 1-8. Assign 8th grade to Blount. Continue
to transport those students enrolled at Mobile County Training.
The assignments are taken from our Trial Brief, Appendix A,
p. A-4, A-5. For a more complete list of split zones where trans
portation was offered see the remainder of Appendix A to the
Trial Brief and appendix to this brief, infra p. 61.
10a
tendance areas served by the white Austin school (white)
to the Warren and Washington schools (Negro), all of
which are located in the city. (Ibid.)
Some schools in the city have a high percentage of their
students transported from other areas. In 1966-67, ap
proximately 61 per cent of the third grade pupils at Craig
head school were came from other attendance zones (Ap
pendix C to Trial Brief, p. C-33) with the majority of the
out-of-district students bused from the South Morningside
and South Brookley areas about 5.5 and 7.4 miles away.
At the Old Shell Road School for the same year 46 per
cent of the third graders lived in other attendance zones,
(Id. p. C-34), coming from as far as the Todd Acres area,
located outside the city limits about 11.4 miles away. The
Todd Acres students (white) who were bused lived closer
to at least 10 other elementary schools, most of which are
also white schools.
Construction. The board has consciously selected build
ing sites and constructed schools in a manner designed to
perpetuate separate schools for Negro and white children.
A report prepared by the school staff in 1967 discussing
some of the existing school capacity problems treated sep
arately problems of overcrowding in Negro schools and
problems of underpopulation in white facilities in the same
downtown Mobile area.18 Rather than reassign the stu
dents to utilize the existing schools equally, the board made
plans to construct four schools in Negro areas and build
an addition to a fifth which “will relieve 35 of the 39
portables now in use in the formerly Negro schools of this
area.” (Report, Appendix B to Trial Brief, pp. 5-6) 19
19 The reports notes 23 vacant classrooms at “ formerly white
schools” and predicts a possible additional 21 vacant classrooms at
those schools; separately treated were “ formerly Negro schools”
having 39 portables. See Report on Research of the Pupil Per
sonnel for Use in Planning for the Full Utilization of School Facil
ities in Downtown Area. See Appendix B to Trial Brief.
11a
The school system has a standard form used to justify
the need for establishing a new plant on a particular site
(PL Int. Ex. 61 July 1967 hearing). The form requires a
listing of the distances to the closest schools offering the
same grades, distances to the closest schools accommodat
ing higher grades, and schools where children in the pro
posed new district are now enrolled. In every case where
these questions are unanswered, the schools listed are of the
same race. If a school for Negroes is contemplated, all the
schools listed are Negro; if a school for whites is planned,
all the schools named are white.
Mobile County school officials, in order to determine the
racial composition of a contemplated new school, consult
with agencies whose programs may affect the need for
school facilities. For example, in 1964 the Prichard Hous
ing Authority informed the school system of the number
of nonwhite students who would be living in the “newly
formed Robbins District” 20 (PI. Int. Ex. 87, July 1967
hearing) and, after the school officials asked about white
children, replied that in calculating the number of students
living in the urban renewal area to be included in the
school attendance zone, “ [t]he ratio of white families and
children is not included as we believe that each and every
white family located within this 116 acres will relocate
outside of the area.” (Ibid.)21 When the Robbins school was
completed, it housed only Negro children.22
20 Similar letters were written concerning the all-Negro Blount
High School (PL Int. Ex. 87, July 1967 hearing).
21 The area served by Robbins had previously been discussed on
May 1, 1963, in a memorandum from an assistant superintendent
to Dr. Burns saying (PL Int. Ex. 87, July 1967 hearing) :
If the Board is to go along with permanent use of Snug Harbor
and Turnerville for housing Negro children and by the build
ing of the New Prichard Elementary School, north of Carver,
I think that you can see that they are fairly well housed.
22 In addition to consulting with other governmental agencies,
the school officials sometimes checked with the leaders of the Negro
12a
The location and design of many schools reflect the
racial considerations in their planning.23 Blount High
School (Negro) with a capacity of 1972 students was built
about six blocks from the traditionally white Vigor High
School (capacity 1769) (A. in 26,886, Vol. VI, p. 40). The
Williamson Junior-Senior High School (capacity 1350),
also Negro, was built about 14 blocks from the white Banes
Junior High School (capacity 1218) and less than 20
blocks from the white Murphy High School (capacity
2813) (Id. pp. 40, 42). The Mobile County Training School
was rebuilt in 1967 on the back edge of a Negro neighbor
hood, and is bordered on the other side by the Mobile
River, even though, as the Acting Director of the Mobile
City Planning Commission testified, the population in its
service area was not sufficient to support a high school
(Id. Vol. I ll , p. 929).24
School Closings and Conversions. The school board has
closed white schools with declining enrollments which were
located near overcrowded Negro schools and has converted
or white communities depending on which racial community a new
school was planned to serve. When the new Cleveland School (now
called Adams) was being considered, the board sought the advice
and assistance of the Negro community in the areas to be served.
(A. in No. 26,886, Vol. Ill, pp. 758-765; PI. Ex. 25, July 1967
hearing).
23 The most recent construction efforts of the school board—to
build a new high school on the same campus as the existing all-
Negro Gorgas and Toulminville schools, and replace the Negro
Howard Elementary School—were enjoined by this Court pending
the appeal whieh resulted in the June 3, 1969, decision. 414 F.2d
609. The June 3 order continued the injunction until attendance
zones were drawn in accordance with the Court’s mandate. 414
P.2d at 610.
24 Similarly, the Hillsdale School was planned and equipped for
students in grades 1-2 because there was no Negro junior or senior
high school nearby. The Toulminville and Prichard schools were
constructed as white junior high facilities with capacities of only
609 students— far less than any other junior high in the metro
politan area. Such design is consistent with the fact that they
13a
other underpopulated white schools into all-Negro facili
ties. Predominantly white Oakdale, Barton, and Russell,
all serving areas adjacent to zones served by overcrowded
Negro schools, were all closed because their white enroll
ments were too small to permit their efficient operation
as white schools.25 26 After several years of declining white
enrollment at Arlington school, the board proposed for
1968-69 that the school serve students transported from
South Brookley, a noncontiguous area (A. in No. 26,886,
Vol. VI, p. 41). Arlington served an attendance zone ad
jacent to the area served by the Council school (Negro).
The district court ordered that Arlington be used to serve
the elementary students in the area surrounding it, and
its enrollment was 384 white and 153 Negro. (A. in Nos.
2.7,260 and 27,491, p. 6). The board’s December 1969 plan
proposed closing Aldington, and it is now closed pursuant
to the district court’s adoption of that plan.
An alternative to closing white schools was suggested in
a May 1963 memorandum from an assistant superintendent
suggesting that there were enough schools in the Prichard
area and the only problem was “in having the schools ad
justed to the Negro or white population.” (PI. Int. Ex. 87,
July 1968 hearing). Thus, in that year, the board changed
two previously white schools in the Prichard area, Snug
Harbor and Turnerville, to all-Negro schools.26 For the
served small white neighborhoods with the former school’s zone
surrounded by Negro residential areas and the latter’s bordered
on three sides by Negro areas. The new Southside Junior High
School proposed by the board was planned as another smaU facil
ity, with just enough space to accommodate the pupils feeding in
from the Negro Emerson and Council elementary school areas.
25 The board proposed a similar closing for old Shell Road, but
the proposal was successfully opposed by the white community and
the private plaintiffs and the government in this case.
26 Even with the conversion of these two schools, Dr. Scarborough
suggested other facilities might have to be. changed. On May 1 he
wrote a memorandum to the Superintendent saying: “ [I]t is my
14a
1963-64 school year the white students and teachers were
reassigned to other schools.27 The schools were renamed
Adams (Turnerville) and Palmer (Snug Harbor) after
prominent Negroes (Id., Addenda to Board Agenda dated
August 28, 1963) and given new attendance zones (Id.,
Memorandum from McPherson to Scarborough dated Au
gust 20, 1963). Only Negro students and teachers were
assigned to the schools; and they opened the following
year as all-Negro schools, each having effectively been
“converted from a white school to a Negro school” (PI. Int.
Ex. 87, July 1968 hearing, undated recommendations at
tached to minutes of August 28, 1963, board meeting).28
Similar conversions were effected at Toulminville, Gor-
gas, Southside, and Howard schools. Toulminville, for
example, offering grades 7-11, was officially “closed” in
March 1965.29 (A. in No. 26,886, Yol. II, p. 95; PI. Int.
opinion that if more Negroes move in that area [Prichard] we
again would have to abandon another white school and that it in
turn could house the increase of Negroes. . . .” (PI. Int. Ex. 87,
July 1967 hearing).
27 In effecting the conversion the board sent a questionnaire to
each parent asking whether he planned to be living in the atten
dance zone for 1963-64 and requesting that he indicate a preference
of three white schools in case the school his child attended was
closed. (Such practices indicate how a school board can affect
residential make-up.) These and other school conversions are dis
cussed in detail in our trial brief, pp. 39-63.
28 Adams was closed at the end of the 1966-67 school year, with
students reassigned to the new Cleveland school (later renamed
Adams) and to Mobile County Training School, both of which are
Negro schools (Id. Ex. 14).
29 At that time, students were reassigned, on paper, to two other
schools and parents were notified of the reassignments. Actual re
assignments were made the following fall. Toulminville had been
expanded from grades 7-9 to 7-11 before the closing, was subse
quently again expanded from 10-11 to 10-12 after the conversion.
(PI. Int. Ex. 23, July 1967 hearing). The school was also con
verted from an annex to Central to an independent facility with
its own attendance area. (PI. Int. Ex. 84, July 1967 hearing).
See p. 5 supra.
15a
Ex. 1, 83, 87, July 1967 hearing). At the commencement
of the following year, after its students, teachers, and
administrators were transferred to other schools, Toulmin-
ville opened with a Negro student body and faculty, and
a grade structure of 10-11, as an annex to Central High
(Negro). (PL Ex. 17, 22, PI. Int. Ex. 94, 84, July 1967
hearing). In 1966-67 and 1967-68 the school board acted
on the Gorgas school in the same manner. (A. in No. 26,886,
Vol. II, p. 95).
16a
APPENDIX B
This Appendix shows for each school in the system which
was used this year, its normal capacity, the enrollment
and grade structure as of September 26, 1969, the grade
organization and projected enrollment under each of the
desegregation plans before the district court on January
31, 1970, and the enrollment and grade structure as of
March 23, 1970, under the district court’s order.
The chart is based on the November 26, 1969, Report to
the Court filed by defendants, the desegregation plans filed
by the United States Office of Education on July 10, and
December 1, 1969, the attendance zone maps and projected
enrollments filed by defendants on December 1, 1969, the
attendance zone maps and projected enrollments submitted
by the United States on January 27, 1970, and the Attach
ment D1 to the affidavit of James McPherson filed in the
district court on April 10, 1970. The latter data should
reflect the assignments under the January 31 Order, as
amended on February 4 and March 12.
Figures submitted by the Office of Education with its
December 1, 1969, recommendations were in some aspects
corrected during a January 22, 1970, conference with the
Court and all parties. The chart reflects the corrected
statistics.
16a
APPENDIX B
This Appendix shows for each school in the system which
was used this year, its normal capacity, the enrollment
and grade structure as of September 26, 1969, the grade
organization and projected enrollment under each of the
desegregation plans before the district court on January
31, 1970, and the enrollment and grade structure as of
March 23, 1970, under the district court’s order.
The chart is based on the November 26, 1969, Report to
the Court filed by defendants, the desegregation plans filed
by the United States Office of Education on July 10, and
December 1, 1969, the attendance zone maps and projected
enrollments filed by defendants on December 1, 1969, the
attendance zone maps and projected enrollments submitted
by the United States on January 27, 1970, and the Attach
ment D1 to the affidavit of James McPherson filed in the
district court on April 10, 1970. The latter data should
reflect the assignments under the January 31 Order, as
amended on February 4 and March 12.
Figures submitted by the Office of Education with its
December 1, 1969, recommendations were in some aspects
corrected during a January 22, 1970, conference with the
Court and all parties. The chart reflects the corrected
statistics.
ENROLLMENTS UNDER DESEGREGATION' PLANS AND THE D IST R IC T COURT'S ORDERS
ELEMENTARY SCHOOLS
i i /
September Board HEW HEW Plan HEW Plan Government March %School 1969 Plan Plan B B--A lt . B--1 A lt . Jan. 27 Plan
Arlington w 307 :3S0 737 160
Cap. 462 (1 -5 ) CLOSE ( 1 - 5 F (1 -5 ) (3 -5 ) (Morningside 1 - 2) (1 -5) CLOSEDN 237 Council 659 Council 659 437 Tot. Cap. 1584
Austin W 396 I V 331 331 311 396 4**/
Cap. 396 ( 1 - 6 ) (1 -5 ) (1 -5 ) (4 -5 ) (Old Shell Road 1-3) (1 - 6 ) _______
N 22 34 22 139 Tot. Cap. 891 22
B ien ville W 262 300 300
Cap. 660 (1 - 6 ) (1 - 6) CONVERTED TO HIGH SCHOOL (1 - 6)
N 299 313 3 39
Brazier W 0 0 10 10 3 55 10
Cap. 1122 (1 - 6 ) (1 -5 ) (1 -5 ) (1 -5 ) (3 -5 ) (Ind. Springs 1-2) (1 -5 ) (1 -5 )
N 1123 983 1022 1022 812 Tot. Cap. 1551 1022 808
Caldwell W 0 13 1 291 2?\
Cap. 594 (1 - 6 ) (1 - 6 ) CLOSE (1 -5 ) (1 -3 ) (South Brookley 4-5) (1 -5 ) ( 1 - 6)
N 314 401 404 255 Tot. Cap. 1023 350 375
Chiclcasaw w 494 500 473 473 3.11 473 500
Cap. 627 (1 - 6 ) ( 1 - 6) (1 -5 ) (1 -5 ) (1 - 2) (Robbins-Hamilton 3-5) (1 -5 ) (1 - 6)
N 3 0 100 100 662 Tot. Cap. 2112 100 0
Council W 0 6 45/350 3 50 737 4 'y
Cap. 561 (1 -5 ) (1 -5 ) ( 1 -5 )— 7 (1 -5 ) (3 -5 ) (Morningsido 1 -2) (1 -5 ) (1 -5 )
N 481 525 A r l. 659 A r l. 659 A r l. 437 Tot. Cap. 1584 391 543
Craighead w 383 347 22 fa
Cap. 891 MIDDLE SCHOOL (1 -5 ) CONVERTED TO> HIGH SiGKO CL (1-5) (1 -5 )
N 512 489 560
Crichton W 507 518 438 4 jo 401 * ~4 O
Cap. 759 (1 - 6 ) (1 - 6 ) (1 -5 ) (1 -5 ) (3 -5 ) (Sieoarc 1 - 2) (1 -5 ) (1 - 6)
N 237 243 348 343 241 Tot. Cap. 1287 348 260
i2/ Under th is plan two or more schools are paired in order to house one group0f elementary students. This column indicates the particu lar grades
suggested fo r the school, the schools which are to be included in the pairing, and the to ta l capacity o f the build ings. Where more than one Softool
is to be used fo r the one group of grades, the school other than the one in the le f t hand column w ill be shewn in this column without parenthesis.
See, e .g . Council.
AV The to ta l capacity fo r the Arlington-Counci1 f a c i l i t i e s is 1023.
cV The board's plan does not propose any change in the elementary and middle
are a v a ila b le fo r those sch ools.
schools located west or 1-65 and enrollment projection s ta t is t ic s
JUS/ Attachment D 1 to the a ffid a v it of James McPherson which provides the basis-for the Karon
for those schools west o f 1 -65 not a ffe cted by the d is tr ic t co u rt's order.
&§/ See footn ote 4 3 . - 54 -
attendance s t a t is t ic s does not show e n r o l f i g u r e
Schoo.1,
Dichson
Cap. 742
September
i960
Bos rd
Plan
HEW
Plan B
HEW Plan
3 -A lt .
K3
B-
W Plan
1 A lt .
Government
Jan. 27 Plan
w
(1 - 6 )
835
(1 -5 )
680
(1 -5 )
630 ( 1 - 2)
195
(Stanton Road 3 -5) (1 - 6)
835
II 153 125 125 534 Tot. Cap. 1714 193
Dodge
Cap. 793
w
(1 - 6 )
67 5
(1 -5 )
565
(1 -5 )
555
( 1 - 2)
3 51
(W illiams 3, Owens 1-2) (1 - 6)
67 5
65
N 65 45 45 506 Tot. Cap. 2674
Eight M ile
Cap. 560
w
(1 -3 )
586
( 1 - 6 )
230
( 1- 6)
280
( 1 - 2)
98
(Grant 3-5) ( 1 - 6)
280
66M 110 56 66 250 Tot. Cap. 1848
Emerson aj /
(Southside)— 7 w 4
(1 - 6)
16 CLOSE
(1-5)
3 CLOSE CLOSED
Cap. 696
N
(1 - 6 )
3 54 340 518
Fonde
Cap. 825
w
(1 - 6 )
679
(1 -5 )
605
(1 -5 )
605
( 1 - 2)
405
(Palmer-Glendale 3 -5) ( 1 - 6)
679
N 11 236 11 450 Tot. Cap. 2112 161
Fonvielle
Cap. 1155
W
N
(1 - 6)
0
1209
(1 - 6 )
8
1153
CONVERTED
TO MIDDLE
SCHOOL
(1-5)
0
1000
(3 -5 )
400
(Forest H ill 1-2)
666 Tot. Cap. 1815
(1 -5 )
0
1000
Forest H ill
Cap- 660
W
(1 -5 )
560
(1 -5 )
536
(1 -5)
536
(1 - 2)
204
(F onvielle 3 -5) (1 -5)
560
N 0 355 n 334 Tot. Cap. 1815 95
Glendale
Cap. 633
V?
N
(1 -5 )
503
149
(1 -5 )
444
206
( l - 5 ) ^ 434
Palmer 931
(1 -5 )
Palmer
434
931
634
(3 -5 ) (Fonde 1-2)
Palmer 717 Tot. Cap. 2112
(1 -5 )
Palmer
434
913
Go r gas w 8 7 3 ' 449
(1 -5 )
7
(1 - 6) (1 - 6) (1 -5 ) (1 -5 ) (1 -3 ) (Orchard 4 -5)
Cap. 850
w 1153 1150 960 953 441 Tot. Cap. 1597 963
Grant w
(1 -5 )
1
(1 -5 )
15
(1 -5)
15
(1 -5)
15
(3 -5 )
197
(Eight M ile 1-2) (1 -5 )
15
Cap. 11B8
>.? 1274 1250 1285 1235 l i o l Tot. Cap. 1848 1285
M arch 23
A t t e n d a n c e
<1-6)
3
1175'
402
(1 -5)
180
2
( 1 - 6 )
1171
1
(1 -5)
127?
4 j / The Emerson School building was apparently abandoned
Southside Junior High School which the Board had closed in
l is te d capacity fo r the Southside p lan t. The capacity or
sometime during the
1968 because of
the Emerson School
1969-70 school year and the children were moved to the old
i t s condition. "The capacity figure used fo r Emerson is the
when i t was used was 528.
4§4 The to ta l capacity fo r the Palmer-Glendale f a c i l i t i e s is 1287.
55
S c h o o l
September
1969
Boa rd
Plan
HEVI
Plan B
HEW Plan
3 -A lt .
Hall W 0 CONVERTED TO
(1 -5 )
483
(1 -5 )
483
Cap. 1188 ( i - 6) MIDDLE SCHOOL
664N 686 664
Hamilton W 629
(1 - 6 )
625 ,638
(1 -5 )
638
Cap. 600 ( i - •6) (l_5 )aa /
N 0 0 Robbins 855 Robbins 855
Howard W 0 21 0
Cap. 429 ( i -•6 ) (1 - 6) CLOSE (1 -5 )
465N 447 465
Indian Springs w 520
(1 - 6 )
53 5 535
Cap. 429 ( i -•6 ) ( 1 - 6 )
N 12 11 .'.1
Lienkauf w 268 258
(1 -5)
273
(1 -5 )
273
Cap, 495 a - -6) (1 -5 )
N 177 96 165 loo
Haryvale W 548
(1 -5 )
478
(1 -5 )
472 472
Cap. 594 (i--6 ) (1 -5 )
15N 55 130 145
Mertz W 461 496 402
(1 -5 )
402
Cap. 528 (l-- 6 ) (1 -5 ) (1 -5 )
0N 0 0 120
Momingside W 740 631 636 636
Cap. 561 (1 - 6 ) (1 -5 ) (1 -5 ) (1 -5 )
N 0 0 120 0
Old S h ell Road W 249 250
(1 - 6 )
232
(1 -5)
232
CaD. 4S5 (1 -6 ) (1 - 6 )
29 5N 112 120 295
Orcha rd W 754
(1 -5 )
7 59 7 59
Cap. 79 2 (1-5 ) — - (1 -5 )
117N 113 125
Owens w 0
( 1 - 6 )
0
(1 -5 )
2 2
Cap. 1485 (1-6 ) (1 -5 )
1414N 1100 1237 1414
1 2 / The to ta l capacity fo r the Robbins-Hamilton f a c i l i t i e s is 1485.
56 -
HEW P la n
B - l A i r .
G o v ern m en t m r c r . *
Jan. 27 Plan
(1 -3 ) (Haryvale 4 -5 ) MIDDLE SCHOOL
450 Tot. Cap. 1782
300
(1 -5)
638 586
(3 -5 ! (Chickasaw 1-2)
855
( 1 - 6)
Robbins 693 Tot. Cap. 2112 Robbins C
8
CLOSE CLOSE (1 - 6)
410
( 1 - 2)
190
(Brazier 3-5) ( •% C \
53 5
U - j J
11221 Tot. Cap. 1551
273 273
(1 -5)
176
(5) (Westlawn 1 -2 , Mertz 3-4)
33 T ct. Cap. 1551
(1 -5)
215 279
(4 -5 )
380
(Hall 1-3) (1 -5)
414
(1 -5 )
479
167236 Tot. Cap. 1782 167
(3 -4)
402
(Westlawn 1 -2 , Lienkauf 5) (1 -5 )
498
(1 - 6)
438
66 Tot. Cap. 1551 104 0
3 69 631
(1 - 6 )
749
( 1 - 2) (Arlingtcn-Council 3-5)
222 Tot. Cap. 1534
(1-5)
100 0
232 269
CLOSE (1-5)
295
(1 - 6)
1 1 C
(4-5)
313
(1 -5 )
754
(Gorges 1-3)
113639 Tot. Cap. 1815
484 2
(1 - 6)
O
(4 -6 ) (Dodge 1 -2 , Williams 3) (1 -5 )
1100 T ct. Cap. 2674 1414 1328
f,
1,
3
September
School 1969
Pa liter V7 57
Cap. 594
N
(1 -5 )
67 4
Robbins
Cap. 825
w
(1 -5 )
6
N 815
Shepard W 409
Cap. 528
N
(1 - 6 )
29
South Brookiey w 493
Cap. 429 ( 1 - 6 )
N 7 5
5tanton Road
Cap. 990
W
( 1 - 6 )
r>
N 977
Thomas
Cap. 297
w
( 1 - 6)
222
N 101
West lawn
Cap. 528
w
(1 - 6 )
516
N 0
W histler
Cap. 726
W-
(1 - 6 )
227
N 231
Whitlev
Cap. 594
W
(1 -5 )
0
N 395
W ill
Cap. 792
W
\ 1 -5 i
657
N 17 5
Williams
Cap. 396
W
(1 - 6 )
497
N 60
Woodcock
Cap. 594
W
(1 - 6)
239
N 119
Boa rd HEW HEW Plan
Plan Plan B B -A lt.
60 50/434 434
(1 -5 ) (1 -5 ) (1 -5 )
660 Glen,. 931 Glen. 931
o 51/638 638
(1 -5 ) (1 -5 ) (1 -5 )
805 Kami1. 855 Hamil. 855
(.1-5)
383
(1 -5 )
160 43
502 514 514
(1 - 6 )
71
(1 - 6)
72
(1 - 6 )
72
14 6 5
( 1 - 6 )
1077
(1 -5 )
900
(1 -5 )
900
< 1-5)
180
(1 -5 )
180
95 95
483 495 495
(1 - 6)
0
(1 -5 )
75
(1 -5 )
0
(1 -5 )
181
(1 -5)
181
205 205
0 216 216
(1 -5)
42-1'
(1 -5 )
431
(1 -5 )
481
(1 -5)
6/8
(1 -5 )
678
395 355
571 571 571
(1 - 6)
43
(1 - 6 )
43
( 1- 6 )
43
249
(1 -5 ) CONVERTED T■o MIDDLE SCHOOL
170
5Q / See footnote 48.
C1 / See footnote 49.
KEW Plan
B~i A lt .
634
(3 -5 ) (Fcnde 1 - 2)
Glen. 717 Tot. Cap. 2112
800
(3 -5 ) (Chickasaw 1-2)
Kamil. 693 Tot. Cap. 2112
410
(1 -2 ) (Crichton 3-5)
150 Tot. Cap. 1287
224
(4 -5 ) (Caldwell 1 -3 )
218 Tot. Cap. 1023
491
(3 -5 ) (Dickson 1-2)
491 Tot. Cap. 1717
123
(1 -2 ) (Whitley 3-5)
235 Tot. Cap. 891
495
(i-2) (Mertz 3 -4 , Lienkauf 5)
66 T ot. Cap. 1551
462
(1 -2 ) (W ill 3 -5)
178 Tot. Cap. 1518
273
(3 -5 ) (Thomas 1-2)
341 Tot. Cap. 891
397
(3 -5 ) (W histler 1-2)
422 Tot. Cap. 1318
303
(3) (Dodge 1 -2 , Owens 4-6)
225 Tot. Cap. 2674
AS PART OF BANES
Government March 23
Jan. 27 Plan Attendance
434 65
(1 -5 ) (1 -5 )
Glen. 931 610
638 9
(1 -5) (1 -5 )
Hami1. 855 841
(1 - 6)
409
29
502 501
( 1 - 6) ( 1 - 6 )
71 79
6 1
(1 -5 ) 0 - 6 )
900 984
(1 -5)
180
95
432 507
(1 -5 ) (1 - 6)
50 0
181
(1 -5)
205
~ ~
216 0
(1 -5 ) (1 -5 )
481 388
657
(1 -5 )
17 5
----------- --
571' 562
( 1 - 6) (1 -5 )
43 .55
424 191
(1 -5 ) (1 -5 )
217 203
MIDDLE SCHOOLS
Azalea Pd.
Cap. 1015
Sc h o o l
Carver --
Cam 1023
Central
Cap. 1508
Clark
Cap. 1390
Craighead
Cap. 891
Dunbar
Cap. 1131
Banes
Cap. 1218
Fonv i e l i c
Cap. 1155
Hall
Cap. 1183
September Board HEW
1969 Plan Plan B
w 1039 857
(7 -3 ) (6 -7 )
N 38 133
W 1 8
(6 -7 ) (6- 8) CONVERTED TO
N 857 867
W 53 /1 0 4 4
USED AS HIGH SCHOOL (6 -9 )
N 1562
w 1039 1242 535
(7 -9 ) (7 -9 ) (8)
N 203 278 948
r.T 119 ELEMENTARY
(6 -7 ) SCHOOL CONVERTED TO
N 405
w 2
(7 -8 )
6
(7 -8 )
« / 1044
( 6 - 9 P
N 837 912 Central 1562
w 966 911 930
(7 -9 ) (6- 8 ) (6 -3 )
N 134 160 Wdck. 764
W 57/1C 40
USED AS ELEMENTARY SCHOOL V O -9 }
(6 -7 )
HEW Plan
5-A l t .___
857
133
(6-9)
( 8 )
1044
1562
536
948
(6-9)
(6-9)55-/
1044
1562
980
764
USED AS
HEW Plan
E -l A lt .
Government
Jar.. 27 Plan
M arch 23
A t t e n d a n c e
11/
ELEMENTARY SCHOOL
(7 -8 )
1039
38
USED AS HIGH SCHOOL
468
( 6- 8 )
0
920
(6 -9 ) USED AS HI 31 SCHOOL
1206
( 8 )
536
943
(7 -9 )
USED AS ELEMENTARY SCHOOL
(6-9)
181
985
r56/l292
(6-9)
H all 977
(7 -8 )
(6-3)
N Phil-Wash. 1562
W
N
(1 - 6 )
0
636
(6- 8)
182
USED AS ELEMENTARY SCHOOL
573
(6 -9)
Eanes
1292
977
(S -8)
.1071
267
4
806
994
283
137
817
§2/ Under Plan B -l A ltern ative the same middle school and high school plans proposed in Plan B or Plan B -A lternative could be used. I f Plan B
were used, Touim inville would be substituted fo r Fonvielle as part of the Washington-Phi H ip s middle school f a c i l i t y .
53/ The to ta l capacity fo r the Dunbar-Central f a c i l i t i e s is 2S39.
W Ib id .
Jjj/ Under Plans E and B -A ltem a tiv e Eanes would be used with Woodcock as a middle School. The combined capacities o f the two f a c i l i t i e s would be
1812.
86/ The to ta l capacity fo r the Eanes-F.all f a c i l i t i e s is 2496.
/ Th<= to ta l capacio> fo r the P hillips-W ashington-! o n v ie lle f a c i l i t i e s is 327 A-
- 58 -
September Doard HEW HEW Plan
1969 Plan Plan B B -A lt .
H illsdale W 431 858 853
Cap. 847 (6- 8 ) (8) (8)
N 217 131 131
Mob. Co. Tr. W 0 102 432 432
Cap. 1305 (6- 1 2 ) ( 6- 1 2 ) (6 -7 ) (6 -7 )
N 1283 1177 859 859
P h illips w 752 861 1040 .1040
Cap. 1073 (7 -3 ) (7 -8 ) ( 6 -9 ) — / 16-9
N 122 171 Wash-Ban 1562 "Wash-Fon 1562
Pri cha rd w 353 340 240 240
Cap. 609 (6 -9 ) (6- 8) (6 -7 ) (6 -7 )
N 170 167 410 410
Rain w 1296 1150 1150 1150
Cap. 986 (7 -12) (7 -1 2 ! (7 -12) (7 -12)
N 112 97 97 97
Scarborough w 638 855
(6 -7)
855
Cap. 1000 (6- 8 ) (6 -7 )
N 77 133 133
Toultr.invilie W 60 / 3040
USED AS HIGH SCHOOL ( D-S )
N Fon- P h il. 1562
Trinity Card. VI 0 0 380 360
Cap. 899 (7 -12) (6- 8) (6 -7 ) (6 -7 )
N 1084 992 690 690
Washington W 0 16 6J/1040 1040
Cap. 1043 (7 -9 ) (7 -9 ) (6 -9 ) (6 -9 )
N 1528 1559 Fcr.-Phil 1562 Phil-Tcul 3562
Williamson w 1
Cap. 1350 (8- 12 ) USED AS HIGH SCHOOL ONLY
N 1142
Woodcock VI 980 980
USED AS ELEMENTARY SCHOOL (6-9) (6 -9 )
N Eanes 764 Eanes 704
HEW Plan
b-1 Alt:.
38 / Ib id .
.13/ The to ta l capacity of the Phi H ips-W ashington f a c i l i t i e s is 2116.
fO/ The to ta l capacity o f the T o u lm in v ille -F o n vielle -P h iH ip s f a c i l i t i e s is 2817.
63/ See footnote 57.
S i ' See footnote 57 .
G o v ern m en t M arch 23
J a n . 27 P la n A t t e n d a n c e
633
(6- 8)
77
(6 -7)
432
(6- 8)
2
859 1188
9?,/ m n 71 u
(6 -9 ) (7 -3 )
Wash. 1716 176
240 308
(6 -7 )
410
(6-S)
209
1150 1306
(7-12)
97
(7 -1 2 !
116
(6- 8)
638
77
USED AS HIGH SCHOOL
380 0
(6 -7 ! t c -8)
680 ?U*1
62 / 1170
(7 -9 )
0
(6 -9 )
P h illip s 1716 1462
USED AS HIGH SCHOOL
59
HIGH SCHOOLS
S c h o o l
Bi e n v ille
September
__ 1969
Board
Plan
HEW
Plan B
HEW Plan
B -A lt.
HEW Plan
B -l A lt .
62J
Blt-Carv 1908 Bit-Cbxv 1908
Cap. 660 USED AS ELEMENTARY SCHOOL (9-12) (9 -12)
N Vigor 2962 Vigor 3516
Blount W 0 22 Vig-Qfen 1908 Vig-Bien 19C8
Cap. 1972 (8- 12 ) (9 -12) (9 -12) (9 -12)
N 1893 1875 Carver 2962 Carver 351S
Carver W Vig- Bien 1903 Vig-Bien 1908
Cap. 1023 USED AS MIDDLE SCHOOL (9-12) (9 -12)
N Blount 2962 Blount 3 516
Central w 0 17
Cap. 1508 (9 -12) (9 -12) CONVERTED TO MIDDLE SCHOOL
N 1470 1372
Davidson W 2302 2150 1738
(9-12)
1738
Cap. 1972 (9-12) (9 -12) (9 -12)
N 72 70 604 51
Mobile Co. Tr. W 0 102
Car?. .1301: (o ~ i2) (6- 1 2 ) USED AS MIDDLE SCHOOL ONLY
N 1283 1177
Murphy W 2602 2171
(10- 12 )
1440
( 10- 12 )
1440
Cap. 2313 (9 -12) (9 -12)
N 239 425 1360 1913
Rain W 1296 1150 1150
(7-12)
1150
Cap. 986 (7 -12) (7 -12) (7 -12)
97N 112 97 97
Shaw Y? 1242 1250 1150
(9-12)
1150
Cap. 1044 (9-12) (9 -12) (9 -12)
196N 237 240 471
Toulm inville V7 0 20 0
Cap. 609 (10- 12 ) (10- 12 ) (12 ) CONVERTED TO
N 1135 1145 365 MIDDLE SCHOOL
Vigor W 1504 1296 ELt-Carv 2 903 nt-Carv 1903
Cap. 1769 (10- 12 ) (9 -12) (S -12 ! (9 -12)
3 516NT 1 9S 468 Bien. 2962 Bren.
Williamson w i 762 _5&/1008
(10- 12 )
1008
Cap. 1350 (8- 12 ) (9 -12) (10- 12 )
'■’67N 1142 474 Craig. 767 Craig.
6 3 / Use to ta l capacity of the Bienvi11e-Blount -Carver-V igor f a c u i t i e s rs 542
64 / The to ta l capacity fo r the Vi g o r-E ie n v ille f a c i l i t i e s is 2241.
65 / .Tie to ta l capacity fo r the Blount-Carver f a c i l i t i e s :.s 2995.
55j i^ie to ta l capacity o f the Williamson-Craighead f a c i l i t i e s is
Government
Jan. 27 Plan
March 23
Attendance
64/1134
(9-12) ELEMENT[*■
Vigor 1211 SCHOOL
&5/ 854 0
(9 -12) (9 -12)
Carver 1846 1748
854
(9 -1 2 ! MIDDLE SCHOOL
Blount 1846
MIDDLE SCHOOL (9-12)
0
2302
1254
2363
(9-12) (9 -12)
72 73
MIDDLE SCHOOL (6- 12 )
2
1643
1188
2247
(10- 12 ) (9 -12)
1761 490
1150 1106
(7-12) (7 -12)
97 116
1250 1179
(9-12) (9 -12)
240 220
9 0
(10- 12 ) (10- 12 )
940 1097
1134 1474
(9 -12) (9 -12)
Bien. 1211 40 0
880 625
( 10- 12 ) (9 -12)
471 90
2 2 4 1 . 60
17a
1
18a
APPENDIX C
This appendix lists the non-eontiguous or split attend
ance zones which were recommended or noted on the annual
Pupil Placement Recommendations of school board (Ap
pendix A to Trial Brief), except for the inclusion of a
part of South Brookley in the Hall zone. The latter ex
ample is taken from the Report on Research Of The Pupil
Placement Office For Use In Planning For The Full
Utilization Of School Facilities In The Downtown Area
(Appendix B to Trial Brief). In some instances not all
grades are assigned from the split part of the zone, and
in other cases only students of one race living in the split
zone are assigned. The chart shows the area assigned to
a school other than the one located in its geographic zone,
the school to which it is assigned, and the approximate
distance from the middle of the split area to the school to
which it is assigned.
INSTANCES WHERE THE SCHOOL BOARD HAS ASSIGNED OR
RECOMMENDED STUDENT ASSIGNMENT USING
NON-CONTIGUOUS ZONES
Year
N on-Contiguous
Area Assigned
Distance between
Area and School School
1963-64 Brookley Air 3.6 miles Woodcock
Force Base
Owens 3.6 miles Carver
Highway 98 8.8 miles Washington
Whistler 1 mile Whistler
Highway 98 10 miles Warren
So. Morningside 5.1 miles Oakdale
Hillsdale 14.5 miles St. Elmo
Mobile Terrace U n k n o w n St. Elmo
Brookley Air 9.5 miles Theodore
Force Base
Highway 98 9.6 miles Toulininville
1964-65 Highway 98 3.5 miles Hillsdale
Oakdale 2.2 miles Barton
Lee 4.5 miles Ellicott
Lee 7.8 miles Gorgas
So. Morningside 4.5 miles Craighead
Griggs 11.4 miles Old Shell Rd.
Indian Springs 9.8 miles Prichard Jr. Hi.
Whistler 3.4 miles Prichard Jr. Hi.
Shaw 16 miles Tanner-Williams
Shaw 10 miles Semmes
Shaw 10.8 miles Barton
Adams 2 miles Blount High
Fonvielle 1.9 miles Palmer
Highway 98 West 3.5 miles Hillsdale
Thomas 3.2 miles Mobile Cty. Trng
So. Brookley 6.6 miles Hall
Owens 3.8 miles Williamson Hi.
Owens 4.1 miles Hall
Wolf Ridge Area 3.1 miles Crichton
1965-66 Whitley 1.6 miles Adams
Mobile Co. Trng. 2 miles Adams
So. Morningside 4.5 miles Craighead
So. Brookley 7.4 miles Craighead
1966-67 Gorgas 1.9 miles Old Shell Rd.
Gorgas 3.4 miles Phillips
Saraland-Satsuma 6.3 miles Mobile Co. Trng.
Cottage Hill 5.7 miles Dickson
Lloyd Station 3.8 miles Hall
Lloyd Station
Austin
4.1 miles Williamson Hi.
3.2 miles Warren
Austin 4.6 miles Washington Hi.
Austin 5.1 miles Toulminville Hi.
APPENDIX D
This Appendix reflects the number of portable and per
manent classrooms used or recommended at schools in
the Mobile system between 1964 and 1968 where there were
substantial portions of the total capacities housed in port
able classes. The data were obtained from PI. Ex. 22, 23
and Pl.-Int. Ex. 29 at the July 1967 Hearing and A. No.
26,886, Yol. I, pp. 90-94.
S c h o o l s W h i c h H a v e H a d M a j o r P o r t io n s o f T h e ir
S t u d e n t s H o u s e d i n P o r t a b l e s
Portable Permanent
Year School Classrooms Classrooms
1964-65 Burroughs 3 10
Calcedeavor 3 8
Cleveland 7 8
Cottage Hill 1 3
Council 5 18
Dixon 7 5
Fonde 7 14
Forest Hill 6 20
Griggs 12 16
Hillsdale 24 0
Hollinger’s Island 4 12
Mobile County 6 20
Mobile County Training 11 19
Morningside 5 15
Mount Vernon Elementary 8 10
Semin es 12 27
Shepard 9 16
Stanton Road 15 11
Trinity Gardens 5 25
Williamson 15 35
20 Schools 165 292
1966-67 Baker 9 20
Blount 14 38
Calcedeavor 3 7
Citronelle 18 33
Cleveland 7 8
Cottage Hill 2 2
Council 7 17
21a
S c h o o l s W h i c h H a v e H a d M a j o r P o r t i o n s o p T h e i r
S t u d e n t s H o u s e d i n P o r t a b l e s (Continued)
Year School
Portable
Classrooms
Permanent
Classrooms
1964-65 Dixon 7 5
(Cont’d.) Fonvielle 13 35
Grant 10 36
Griggs 10 16
Hillsdale 7 15
Hollinger’s Island 5 12
Mobile County High School 12 19
Mobile County Training 17 18
Morningside 7 15
Mount Yernon Elementary 9 10
Northside 8 13
Palmer 7 17
Shaw 7 16
Shepard 17 16
Thomas 4 8
Vigor 8 29
Washington 9 24
24 Schools 211 429
1967-68 Baker 9 20
Belsaw 10 10
Blount 18 38
Calcedeavor 3 7
Cleveland 6 8
Council 5 17
Dixon 8 5
Garc 1 0
Griggs 11 16
Hillsdale 8 15
Hollinger’s Island 4 12
Howard 7 13
Mobile County High School 15 19
Mobile County Training 21 14
Morningside 7 15
Palmer 5 18
Rain 8 14
Satsuma 9 25
Shaw 17 16
Shepard 11 16
Thomas 5 8
Vigor 8 29
Washington 10 24
Williamson 10 18
24 Schools 216 377
22a
Year
1968-
S c h o o l s W h i c h H a v e H a d M a j o r P o r t i o n s o p T h e ir
S t u d e n t s H o u s e d i n P o r t a b l e s (Continued)
School
Portable
Classrooms
Permanent
Classrooms
Austin 3 12
Azalea Road Jr. High 6 21
Baker 10 21
Belsaw Jr. High 9 10
Blount High School 19 44
Calcedeavor 4 5
Griggs 12 18
Gorgas 8 26
Hillsdale High 8 15
Hollinger’s Island 4 12
Howard Elementary 7 14
Mobile County High School 18 19
Morningside 7 15
Palmer 7 18
Rain 9 14
Satsuma 12 25
Shaw 15 24
Thomas 5 9
Toulminville 13 12
Trinity Gardens 6 17
Washington 15 24
Williamson 17 7
22 Schools 214 382
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