United States v. Jefferson County Board of Education Brief on Rehearing for Intervenors and Appellants
Public Court Documents
March 4, 1967
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Brief Collection, LDF Court Filings. United States v. Jefferson County Board of Education Brief on Rehearing for Intervenors and Appellants, 1967. 2571b147-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e2abdd2f-5651-4e20-ae4a-9b4f0790f54f/united-states-v-jefferson-county-board-of-education-brief-on-rehearing-for-intervenors-and-appellants. Accessed June 03, 2025.
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IN THE
■Huttib States Court of Ayprals
FOR THE FIFTH CIRCUIT
No. 23,345
UNITED STATES, et al,
Appellants,
vs.
JEFFERSON COUNTY BOARD
OF EDUCATION, et al.,
Appellees.
No. 23,274
UNITED STATES, et al,
Appellants,
vs.
CADDO PARISH SCHOOL BOARD,
et al.,
Appellees.
No. 23,116
D AYIS, et al.,
Appellants,
No. 23,331
UNITED STATES, et al,
Appellants,
vs.
FAIRFIELD BOARD OF EDUCATION,
et al.,
Appellees.
No. 23,335
UNITED STATES, et al,
Appellants,
vs.
BOARD OF EDUCATION OF THE
CITY OF BESSEMER, et al,
Appellees.
No. 23,365
UNITED STATES, et al,
Appellants,
EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,
Appellees.
BOSSIER PARISH SCHOOL BOARD,
et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN AND SOUTHERN
DISTRICTS OF ALABAMA, AND EASTERN AND WESTERN DISTRICTS OF LOUISIANA
BRIEF ON REHEARING FOR INTERVENORS AND APPELLANTS
DAVID H. HOOD JACK GREENBERG
2001 Carolina Avenue JAMES M. NABRIT, III
Bessemer, Alabama M ICHAEL MELTSNER
HENRY ARONSON
JESSE N. STONE, JR. NORMAN C. AM AKER
854% Texas Avenue CHARLES H. JONES, JR.
Shreveport, Louisiana 10 Columbus Circle
New York, New York
A. P. TUREAUD OSCAR W. ADAMS, JR.
New Orleans, Louisiana 1630 Fourth Avenue North
Birmingham, Alabama
JOHNNIE JONES DEMETRIUS C. NEWTON
530 South 13th Street 408 North 17th Street
Baton Rouge, Louisiana Birmingham, Alabama
Attorneys for Intervenors and Appellants
I N D E X
Statement ............................................................................... 2
I. No. 23,335, United States, et al. v. Board of
Education of the City of Bessemer ................... 2
A. Pupil Assignment Policy ................................. 3
B. The Plan Approved by the Court B elow ....... 5
C. Faculty and Administrative Assignments .... 8
D. Inequality ................................ 9
E. School Construction ........................................... 10
P. Other Matters .................... 10
G. Administration of the P lan ............................... 10
II. No. 23,345, United States, et al. v. Jefferson
County Board of Education........... ....................... 11
A. Pupil Assignment Procedures......................... 11
B. The Plan Approved by the Court B elow ....... 16
C. Faculty Assignments ......................................... 18
D. Bus Transportation ........................................... 18
E. Inequality in Facilities for N egroes.... .......... 19
F. Other Matters ..................................................... 20
G. Administration of the Plan ............................. 20
III. No. 23,331, United States, et al. v. Fairfield
Board of Education ............................................. ... 21
IV. No. 23,274, United States, et al. v. Caddo Parish
School Board ................................... 26
PAGE
11
V. No. 23,365, United States of America, et al. v.
The Bossier Parish School B oa rd ......................... 30
VI. No. 23,116, Davis v. East Baton Rouge Parish
School B oa rd ............................................................. 40
A. The 1965 P la n ..................................................... 42
B. Aspects of the. 1963 Plan ................................. 45
C. Exclusion of Evidence on Adequacy of the
Plan ....................................................................... 46
A rgum ent—
Introduction ....................................................................... 47
I. The Plans Approved by the Courts Below Are
Not Adequate to Effectuate Transitions to
Racially Nondiscriminatory School Systems ....... 48
II. The Recent Decision of the Court of Appeals for
the Tenth Circuit Demonstrates the Soundness
of the Panel’s Opinion and D ecree....................... 54
III. The Adequacy of Freedom of Choice Plans Must
Be Determined in the Context of Particular
Cases ........................................................................... 58
IV. The Adoption of a Uniform Decree Is Essential 64
C onclusion ........................................................................... 69
Certificate of Service........................................................... 70
A ppen dix—
Excerpts from R acial I solation in th e P ublic
S c h o o l s .................................................................................... l a
PAGE
Ill
T able of Cases
Anderson v. Martin, 375 U.S. 399 . 61
PAGE
Barrows v. Jackson, 346 U.S. 249 ................................... 60
Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949) ........... 60
Board of Education of the Oklahoma City Public
Schools v. Dowell, No. 8523, 10th Cir., Jan. 23,
1967 .......................................................................47,48,54,56
Bossier Parish School Board v. Lemon, No. 22,675,
5th Cir. Jan. 5, 1967 ...................................................30, 33
Bradley v. Board of Education, 382 U.S. 103 ........... 52
Bradley v. Board of Education of the City of Rich
mond, 345 F.2d 310 (4th Cir. 1965), vacated on
other grounds, 382 U.S. 103 ....................................... 50
Briggs v. Elliott, 98 F. Supp. 529 (E.D. S.C. 1951) .... 63
Briggs v. Elliott, 103 F. Supp. 920 (E.D. S.C. 1952) .... 63
Briggs v. Elliott, 342 U.S. 350 ......................................... 63
Briggs v. Elliott, 132 F. Supp. 776 (E.D. S.C. 1955)
53, 57, 62, 63
Brown v. Board of Education, 347 U.S. 483 ........... 58, 63
Brown v. Board of Education, 349 U.S. 294 (1955)
48, 53, 59, 64, 68
Brunson v. Board of Trustees of School Dist. No. 1,
30 F.R.D. 369 (E.D. S.C. 1962) ................................. 63
Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir.
1962) ................................................................................. 63-64
Brunson v. Trustees of School Dist. No. 1, 244 F. Supp.
859 (E.D. S.C. 1965) ....................................................... 64
Buchanan v. Warley, 245 U.S. 60 .................................60, 61
Buckner v. School Board of Greene County, 332 F.2d
452 (4th Cir. 1964) ....................................................... 50
Bush v. Orleans Parish School Board, 308 F.2d 491
(5th Cir. 1961) 49
IV
City of Birmingham v. Monk, 185 F.2d 859 (5th Cir.
1950), cert, denied 341 U.S. 940 ......... .......................... 61
Clark v. School Board of City of Little Bock, 369 F.2d
661 (8th Cir. 1966) ....................................................... 50, 52
Cooper v. Aaron, 358 U.S. 1 ........................................... 48
Davis v. Board of School Commissioners of Mobile
County, 364 F.2d 896 -(5th Cir. 1966) ........................... 66
Davis v. East Baton Rouge Parish School Board, 214
F. Supp. 624 (E.D. La.) ............................................... 41
Davis v. East Baton Rouge Parish School Board, 219
F. Supp. 876 (E.D. La. 1963) ..... ................................. 41
Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1965), affirmed No. 8523, 10th Cir.,
Jan. 23, 1967 ............................................................... 54-55, 62
East Baton Rouge Parish School Board v. Davis, 289
F.2d 380 (5th Cir. 1961), cert. den. 831 ......................40,41
Elmore v. Rice, 72 F. Supp. 516 (E.D. S.C. 1947),
affirmed Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947),
cert, denied 333 U.S. 875 ............................................... 60
Goss v. Board of Education of Knoxville, 373 U.S. 683 54
Greene v. School Board of City of Roanoke, 304 F.2d
118 (4th Cir. 1962) ......................................................... 49
Jimerson v. City of Bessemer, Civil No. 10054, N.D.
Ala., Aug. 3, 1962 ............................... .......... .................. 61
Jones v. School Board of the City of Alexandria, Vir
ginia, 278 F.2d 72 (4th Cir. 1960) ..................... ......... 49
Mannings v. Board of Public Instruction of Hillsbor
ough County, 277 F.2d 370 (5th Cir. 1960) ............... 49
PAGE
V
Marsh v. County School Board of Roanoke County, 305
F.2d 94 (4th Cir. 1962) ................................................... 49
Miller v. School District No. 2, Clarendon County, S. C.,
253 F. Supp. 552 (D. S.C. 1966) ................................. 64
Miller v. School District No. 2, Clarendon County,
256 F. Supp. 370 (D. S.C. 1966) ................................... 64
Nesbit v. Statesville Board of Education, 345 F.2d 333
(4th Cir. 1965) ................................................................. 55
PAGE
Nixon v. Condon, 286 U.S. 73 ........................................... 60
Nixon v. Herndon, 273 IT.S. 536 ....................................... 60
Northcross v. Board of Education of City of Memphis,
302 F.2d 819 (6th Cir. 1962) .... .................... ...... ........ 49
Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) ....... 49
Shelley v. Kraemer, 334 U.S. 1 ....................................... 60
Singleton v. Jackson Municipal Separate School Dis
trict, 348 F.2d 729 (5th Cir. 1965) ............................... 67
Singleton v. Jackson Municipal Separate School Dis
trict, 355 F.2d 865 (5th Cir. 1966) ............................... 50
Smith v. Allwright, 321 U.S. 649 ....................................... 60
Sutton v. Capitol Club, Inc., No. LR-64-C-124, W.D.
Ark., April 12, 1965, 10 Race Rel. L. Rep. 791 ........... 60
United States v. Bossier Parish School Board, 220 F.
Supp. 243 (W.D. La. 1963), aff’d per curiam 336 F.2d
197 (5th Cir. 1964), cert. den. 379 U.S. 1000 ...... . 30
United States v. Bossier Parish School Board, 349 F.2d
1020 (5th Cir. 1965) ..................................... ......... 28, 30, 34
United States v. City of Bessemer Board of Education,
349 F.2d 1021 (5th Cir. 1965) ....................................... 5
United States v. Jefferson County Board of Education,
349 F.2d 1021 (5th Cir. 1965) 16
VI
Wheeler v. Durham City Board of Education, 309 F.2d
630 (4th Cir. 1962) ........................................................... 49
Wheeler v. Durham Board of Education, 346 F.2d 729
(4th Cir. 1965) ................................................................. 50
Other Authorities:
Civil Bights Act of 1964, Section 409 ........................... 68
Southern School News, Vol. II, No. 2, August 1955 .... 63
U. S. Comm, on Civil Bights, Beport, Survey of School
Desegregation in the Southern and Border States—
1965-66 ............................................................................. 59-60
IT. S. Commission on Civil Bights, Racial Isolation in
the Schools (1967) ................................. ....................... 52, 61
PAGE
IN THE
Imteft States Qlourt of Appeals
FOR THE FIFTH CIRCUIT
No. 23,345
UNITED STATES, et al,
Appellants,
vs.
JEFFERSON COUNTY BOARD
OF EDUCATION, et al.,
Appellees.
No. 23,274
UNITED STATES, et al.,
Appellants,
vs.
No. 23,331
UNITED STATES, et al.,
Appellants,
vs.
FAIRFIELD BOARD OF EDUCATION,
et al.,
Appellees.
No. 23,335
UNITED STATES, et al,
Appellants,
vs.
CADDO PARISH SCHOOL BOARD,
et al.,
Appellees.
No. 23,116
DAVIS, et al,
Appellants,
BOARD OF EDUCATION OP THE
CITY OF BESSEMER, et al,
Appellees.
No. 23,365
UNITED STATES, et al,
Appellants,
EAST BATON ROUGE PARISH
SCHOOL BOARD, et al,
Appellees.
BOSSIER PARISH SCHOOL BOARD,
et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN AND SOUTHERN
DISTRICTS OF ALABAMA, AND EASTERN AND WESTERN DISTRICTS OF LOUISIANA
BRIEF ON REHEARING
FOR INTERVENORS AND APPELLANTS
2
Statement
This consolidated Brief on Beargument is submitted on
behalf of the Negro pupils and parents who, as private
parties plaintiff, initiated these six school desegregation
suits involving the public schools of the cities of Bessemer,
and Fairfield, Alabama, Jefferson County, Alabama, and
Caddo, Bossier, and East Baton Bouge Parishes in Louisi
ana. In each of the cases, except No. 23,116, Davis v. East
Baton Rouge Parish School Board, the United States of
America intervened as a party plaintiff and appealed from
a district court order approving a proposed desegrega
tion plan. The private plaintiffs in these cases were per
mitted to intervene as appellants in this Court. In the
Davis case, supra, the appeal from a district court order
approving a desegregation plan was taken by the private
plaintiffs.
Several briefs have been submitted before and after the
original arguments in these cases. However, in order that
the entire Court may have access to a statement of the
proceedings and facts in each case, in a single volume,
we restate them below. The opinion of the panel of this
Court which decided the cases on the original arguments
stated that the Court had “ carefully examined each of the
records” and that: “ In each instance the record supports
the decree” (Slip Opinion, p. 111). We agree.
I. IVo. 23,335, United States, et al. v. Board of
Education of the City of Bessemer
The complaint in this action was filed by Negro students
and parents on May 24, 1965, to desegregate the public
schools of Bessemer, Alabama (B. 11-19). The City of
Bessemer maintained ten schools for the 5,286 Negro and
2,920 white pupils enrolled during the school year 1964-65
3
(R. 100). The system has 1 white high school (grades
10-12), 1 white junior high school (grades 7-9), 4 white
elementary schools (grades 1-6), 2 Negro schools offering
grades 1-12, and 2 Negro schools offering grades 1-8 (R.
95-97).
The procedures in the Bessemer desegregation plan
presently before this Court adopt with minor modifica
tions pupil assignment procedures utilized by the Bessemer
board prior to the plan to maintain a rigidly segregated
public school system. Detailed descriptions of these assign
ment procedures, of other aspects of the system, and of
the approved plan follow :
A. Pupil Assignment Policy
Bessemer maintained a dual system of schools, “ one set
of schools for Negroes and one set for whites,” at the
time this action was filed (R. 116). One map sets out the
attendance zones for each of the 4 Negro schools (R. 95)
and a second map sets out zones for each of the white
schools (R. 96). When asked at the hearing below if the
racial zone maps were “ being used at the present time,”
the Superintendent responded: “ To the best of my knowl
edge, we are still following these maps” (R. 98). Counsel
for the board asked that these maps be withdrawn from
the court at the conclusion of the hearing because “ Dr.
Knuckles has told us these are maps we need constantly”
(R. 99).
The board also maintained a map showing the residence
and race of each student and location of each of the schools
within the system, with “red dots showing the location
o f the Negro pupils” and “green dots indicating the resi
dential location of the white pupils enrolled in school
during this year” (R. 105-106).
4
The superintendent testified that the school system “ is
geared to placing students in schools that are closest to
their neighborhood” (R. 108). Yet, adherence to a policy
of strict separation of the races in the schools did not al
ways result in students being so assigned. Superintendent
Knuckles further testified:
Q. Do you have very many students who are at the
present time passing by schools which are closest to
their neighborhood!? A. I am sure we have some.
Q. Do you have any of your white students . . .
who are passing by Negro schools to go to white
schools? A. I expect there are some.
Q. And vice versa? A. And vice versa, yes sir.
(R. 108-109)
Some students were required to pass a school maintained
for children of the opposite race and “ cross a railroad
track and some more than one railroad track” to reach a
school maintained for their race (R. 159).
School zone lines were changed periodically as condi
tions changed, and in some instances the superintendent
and the hoard “have administratively transferred the pupils
who live in a particular area from one school to another
as the school was built or as a school was added to or
particular facilities were abandoned” (R. 146). The super
intendent testified that when a particular zone contained
more students than the school could accommodate “we just
had to arbitrarily assign them to another school” (R. 147).
Through this system of assignments the schools within
the City of Bessemer were kept completely segregated.
No white students attended Negro schools and no Negroes
attended white schools (R. 28).
5
B. The Plan Approved by the Court Below
On July 30, 1965, the conrt below entered an order ap
proving with minor modifications the first plan submitted
by appellees (R. 64-66). An appeal was taken from that
order and on August 17, 1965, this Court vacated the
judgment and remanded for further consideration, United
States v. City of Bessemer Board of Education, 349 F.2d
1021 (5th Cir. 1965) (R. 71-72). Thereafter, appellees filed
an amended plan (R. 81-84) which was approved by the
conrt below on August 27, 1965 (R. 85-86). The amended
plan is the subject of this appeal.
The plan adopts the racial assignment policy based upon
a dual set of zones described above, subject to minor modi
fications. Initially, pursuant to the plan, “ all pupils in
all grades of the Bessemer system will remain assigned
to school to which they are assigned or will be assigned
to schools in accordance with the custom and practice for
assignment of pupils that have prevailed in the school
system prior to the entry of the judgment of the District
Court in this case on June 30, 1965, such method of assign
ment being necessary in order to prevent a disruption of
the school system and to maintain an orderly administra
tion of the schools in the interests of all pupils” (R. 45-46).
Students entering the first grade are specifically required
to report to the elementary school located in the zone
maintained for their race—Negro students reporting to
Negro schools and white students reporting to white schools
(R. 44). Only after this segregated racial assignment
procedure may “ an application may be made by the parents
for the child’s assignment to any school (whether formerly
attended only by white children or only by Negro children)”
(R. 44).
Similarly, students in all other grades are initially as
signed to segregated schools maintained by appellees for
6
students of their race (R. 45).1 Once assigned to these
schools, students in grades 1, 4, 7, 10 and 12 during the
school year 1965-66, students in grades 2, 3, 8 and 11 dur
ing the school year 1966-67, and students in grades 5, 6
and 9 during 1967-68 may apply for transfer “ to a school
heretofore attended only by pupils of a race other than
the race of the pupils in whose behalf the applications are
filed” (R. 43-44, 88-83). Transfer forms must be picked
up, completed, and returned to the superintendent’s
office during the designated transfer period (R. 82).
Transfer applications will thereafter “be processed and
determined by the board pursuant to its regulations as
far as is practicable” (R. 44).2 No regulations were ever
introduced, and on cross-examination the superintendent
was unable to say what regulations were referred to by
1 Q. Am I correct that the plan in essence will assign particular schools
on the basis of race? A. Most of the pupils in Bessemer with the ex
ception of the first graders are presently assigned to schools they are
enrolled in and their records are there.
Q. Even in the grades you are desegregating you contemplate they will
attend the school that heretofore has been for their race unless a transfer
application is filed and approved? A. That is correct. (R. 264)
2 Prior to the adoption o f the plan and the possibility of desegregation
o f the schools, the board liberally granted transfers.
Q. Is it fair to say you granted that request more or less as a
matter of course as long as there was capacity in the school to which
they were transferring? A. I think that is true. W e attempted to
accomodate people where we didn’t overburden the school, the classes
or the teachers. (R. 148)
* * *
Q. Mr. Knuckles, you have testified in answer to some of my ques
tions about transfers from one zone to another. Have they been
initiated normally by either a letter or a telephone call? A. Yes,
sir.
Q. No particular form being used? A. No form.
Q. And there has been no time limit for submitting them to the
board? A . No, but I did tell you we have discouraged transfer
during the school year.
Q. After school is started? A. Yes, sir.
7
the plan or their subject, except that they were “general
regulations under which we have operated for a long time”
(R. 260).
The above described transfer requirements do not ap
ply to Negro students applying for transfers from one
Negro school to another Negro school or to white students
applying for a transfer from one white school to another
white school.
The Court: I think this plan after the first para
graph only refers in cases where Negro pupils apply
to transfer to schools heretofore attended only by
white pupils in these classes and vice versa. I think
that is the plan.
Q. Is that the way you expect to administer the
plan? A. Yes, sir.
Q. So that procedure will be used only when a
Negro applies to attend a white school or a white
applies to attend a previous Negro school? A. In
these grades. (R. 261)
Students new to the system are similarly assigned on
the basis of race.3 The plan is silent and the board is
undecided on how applications to overcrowded schools
will be processed.
Q. I f a Negro child applies for the Bessemer Junior
High School [a white school] in the seventh grade, a
3 A. They will appear at a school to enroll and will abide by the same
regulations. I£ a child asks to transfer to the school o f another race and
it is after the deadline date, I would assume that he, like other children
who let the deadline pass for this time, just wait until his grade is open
at another time.
Q. Dr. Knuckles, a white child moving into the school district and is
due to enter the seventh grade will automatically go into the seventh grade
without making out any papers at all in a white school? A. A Negro
child would do the same thing in a Negro school. We are proposing in
this instance to follow the custom that has been followed for some time
in the interim period. (R. 265)
8
desegrated [sic] grade, and lives closer to Bessemer
Junior High School than white children who will seek
enrollment in the Junior High School, is there any
decision which will have priority under the plan?
Which will have priority if there isn’t room for both?
A. That question has not been determined.
Q. You don’t know? A. That is correct.
Under the plan students will not be permitted to transfer
from a school to which they are racially assigned to a
school maintained for children of the other race to take
a course not offered at their school unless the student is
enrolled in a grade reached by the plan.4
The plan provides for notice through publication in a
local newspaper. No individual notices are contemplated
(R. 266).
C. Faculty and Administrative Assignments
The plan makes no provision for non-raeial faculty
assignments.
The board employs 285 classroom teachers, 175 Negro
and 110 white (R. 115). For the 1964-65 school year
the board had a teacher turnover rate of 11.85% (R. 119).
The superintendent testified that all Negro teachers in
the system have met the minimum requirements of the
board and that they possessed “ the same or similar quali
fications as . . . white teachers” (R. 122, 123).
The faculty remains totally segregated with Negro
teachers instructing Negro students and white teachers
4 Q. And it [the transfer application] will be considered even though
the child is in a grade that has not yet been reached by the plan? A. I
think we will live with and operate under the provisions laid out in this
plan during this interim period.
Q. And that is your answer to that question? A. Yes, sir. (R. 267)
9
instructing whites (R. 120). The board has considered
desegregating the faculty but has not reached a conclu
sion “ simply because the request had not come from
parents at the time for the assignment of Negro children
to schools other than those they were attending” (R. 118-
119).
Teachers were freely assigned by the board when such
transfers met the administrative convenience of the dis
trict. “ [W ]e had three rooms in this small school and we
closed them and moved the children to one of the larger
schools and moved the teachers and consequently we saved
the operational cost of that building” (R. 244).
Faculty meetings are held on a segregated basis (R. 251).
Administrative and supervisory staff is also segregated.
Of 10 administrators employed by the board, 9 are white.
The one Negro administrator is in charge of Negro schools
(R. 116) and is provided an office apart from the other
administrators in a Negro school. No Negroes work in
the central office (R. 118).
D. Inequality
The record contains many examples of the inequality
between Negro and white schools, including:
1. Pupil-Teacher Ratios (R. 162-164):
Negro High Schools White High School
Carver 25 “ plus” / l Bessemer H. S. 19.08/1
Abrams 25/1
2. Library Boohs per Pupil (R. 164-165):
Abrams 8/1 Bessemer H. S. 19.08/1
Carver 3.17/1
10
3. Elective Subjects Offered in High Schools
The superintendent admitted that more electives were
offered in the white than the Negro high school but at
tributed this disparity to “ community pressure” (E. 166).
Latin, Spanish, and two years of French are offered in the
white high school; the only language taught in the Negro
high school is one year of French. Journalism is taught
in the white but not the Negro schools (E. 167-168, 229,
233-234).
The plan makes no provision for equalizing the facilities
between Negro and white schools.
E. School Construction
The Bessemer school district contemplates expending
approximately $460,000 for rebuilding or adding to exist
ing segregated facilities (E. 125). The plan makes no
provision to require that a rebuilding program be designed
so as to aid in abolishing the dual system.
F. Other Matters
The plan contains no provisions for individual notice
to pupils, no provision with respect to locating new school
buildings or additional facilities in such a manner as to
eliminate segregation, no provisions with respect to non
discrimination in various school connected or sponsored
activities or in extracurricular activities, and no provi
sions with respect to periodic reports to the court con
cerning desegregation.
G. Administration of the Plan
In the first year of the plan, 1965-66, only 13 of approxi
mately 5,284 Negroes attended formerly white schools.
(Affidavit of St. John Barrett attached to Motion to Con
11
solidate and Expedite Appeals in these cases, filed in this
Court April 4, 1966.) In the second year of the plan, the
current 1966-67 term, about 64 Negro pupils attend for
merly white schools. (Information supplied to intervenors
and appellants by U. S. Department of Health, Education
and Welfare.)
II. No. 23,345, United States, et al. v. Jefferson
County Board of Education
This action was filed June 4, 1965, by Negro students
and parents against the Jefferson County Board of Edu
cation requesting that the hoard be enjoined from continu
ing to operate a system of dual and unequal public schools
(R. 9-16). The Jefferson County Board of Education main
tains approximately 117 schools for 45,000 white students
and 18,000 Negro students (B. 80).
The procedures incorporated in the plan for desegrega
tion approved by the court below (R. 30-37, 66-68), adopt
with minor modifications the pupil placement procedures
utilized by the Jefferson County Board of Education since
1959 to maintain a rigidly segregated public school system.
Descriptions of these pupil assignment procedures, of other
aspects of the system, and of the plan follow.
A. Pupil Assignment Procedures
From 1959 until adoption of the plan under considera
tion in 1965 the Board assigned all pupils pursuant to a
pupil placement plan (R. 96-107). During this period the
district remained completely segregated. On June 22, 1965,
Superintendent Kermit A. Johnson testified that “at the
present time” Negro and white children are separated
within the school district.5 Total separation of the races 6
6 Q. Heretofore, and at the present time, it is the policy o f the Board
o f Education to separate Negro and white children in the school; isn’t
that true? A. W e have had them separated, and there has not been any
12
within the Jefferson County School District was effected
by utilizing the following pupil assignment procedures:
a. Assignments: Students entering the first grade, stu
dents newly moving into the jurisdiction of the board, and
students residing within the district who have been attend
ing school in another “ school community” 6 were “ accepted,
approved and enrolled” by a principal to his school upon
determining that the student resides in his “ school com
munity” and that the student “would normally attend his
school.” * 6 7 (E. 101-102). Without exception, students as
signed to schools they “would normally attend” resulted
in Negroes being assigned to Negro schools and whites
being assigned to white schools (E. 164).
other operation up until this point. I would hesitate to say the policy o f
the Board, because we have not had an application up until this time.
Q. But the Board has never authorized you— A. Never taken the
initiative for it or authorized me to make any changes. (R. 94)
6 Dr. Johnson described how a principal would define the boundaries of
his “ school community” as follow s:
A. They are not defined except those who live relatively close to the
school and then there is a broad area there where they might go to
his school or some other school and this is a case where he would
raise the question whether he should or shouldn’t take such students.
Q. You state the only way the principal o f any school would know
what pupils reside in his school community is on the basis of addresses
of the students already in school and who had attended the school in
the past? A. That is one of the best guides. He doesn’t have a defi
nition of a school community. It is a general thing. We don’t have
the geographical zones. In general it is always the closest to his
school would go to his school. (R. 163)
7 “How would a principal of a white school, elementary school, know
who would normally attend his school? What students would normally
attend his school? A. Well, there would be the brothers and sisters of
the students he had who lived in that general area.
Q. Assuming a Negro child or a white child lived next door to one
another, would that child be a person the principal would consider nor
mally would attend his school? A. In the past they would not come
under the general definition o f “ normally attending that school.” (R.
163-164)
13
b. Transfers: Students who desired to attend a school
other than the one they “would normally attend” (a school
provided exclusively for students of the white or Negro
race) or the school within his “ school community” (the
school nearest his home) were required to apply for a
transfer (R. 101-104). Requests for transfers were granted
only by the Central Office (R. 101-104). Seventeen “ fac
tors” were considered by the Central Office in evaluating
transfers.8 The list includes such matters as “home en
vironment,” “ severance of established social and psycho-
8 The 17 factors (R. 103-104) :
“Assignment, transfer and continuance o f pupils; factors to be
considered—
1. Available room and teaching capacity in the various schools.
2. The availability of transportation facilities.
3. The effect of the admission of new pupils upon established or
proposed academic programs.
4. The suitability of established curricula for particular pupils.
5. The adequacy of the pupil’s academic preparation for admission
to a particular school and curriculum.
6. The scholastic aptitude and relative intelligence or mental energy
or ability o f the pupil.
7. The psychological qualification of the pupil for the type of
teaching and associations involved.
8. The effect o f admission of the pupil upon the academic progress
o f other students in a particular school or facility thereof.
9. The effect o f admission upon prevailing academic standards at
a particular school.
10. The psychological effect upon the pupil o f attendance at a
particular school.
11. The possibility or threat o f friction or disorder among pupils
or others.
12. The possibility of breaches of the peace or ill will or economic
retaliation within the community.
13. The home environment o f the pupil.
14. The maintenance or severance of established social and psycho
logical relationships with other pupils and with teachers.
15. The choice and interests of the pupil.
16. The morals, conduct, health and personal standards of the
pupil.
17. The request or consent of parents or guardians and the reasons
assigned therefor.”
14
logical relationships” and the “morals, conduct, health and
personal standards” of the pupil requesting transfer (R.
103-104, 158). Applications for “ transfers” 9 required the
signature of both parents, the occupation and name of the
employer of both the students’ mother and father or guard
ian, the race of the applicant. This information was to
be included upon a transfer application and submitted to
the Superintendent’s Office. In considering transfer appli
cations :
“ [T]he superintendent may in his discretion require
interviews with the child, the parents or guardian, or
other persons and may conduct or cause to be con
ducted such examinations, tests and other investiga
tions as he deems appropriate. In the absence of
excuse satisfactory to the superintendent or the board,
failure to appeal for any requested examination, test
or interview by the child or the parents or guardian
will be deemed a withdrawal of the application.” (R.
100).
Superintendent Johnson testified that he never notified
parents, students or anyone else in the County that Negro
pupils could request assignment to a white school (R.
143). No Negro ever applied for a transfer to an all-white
school (R. 94). During 1964-65, 200 requests for transfer
were made and 95% were granted (R. 157), but none of
these were requests for desegregation (R. 94). No trans
fer period was designated; requests could be made at any
time (R. 93).
c. Reassignments: Once enrolled, either by assignment
or transfer “ [A ] 11 school assignments shall continue with
out change until or unless transfers are directed or ap- 8
8 Plaintiffs’ Exhibit 2-A (R. 97-98).
15
proved by the superintendent or liis duly authorized rep
resentative.” (R. 99). Negro elementary school graduates
were automatically assigned to a Negro junior high school
and Negro junior high school graduates were automati
cally assigned to a Negro senior high school. Similarly,
white students were automatically assigned on a racial
basis.10 The district specifically recognized these automatic
assignments or “ feeder” arrangements: “An application
for Assignment or Transfer of Pupils Card must be filled
out for each pupil entering your school for the first time
either by original entry or transfer except pupils coming
from feeder schools.” (R. 101) (emphasis supplied). Thus
students were initially assigned to segregated schools and
thereafter locked into these assignments. This lock-in
effect continued on throughout the students’ public school
career.
Assignments—whether through transfer, reassignment or
initial assignment—were all made to schools which were
admittedly constructed exclusively for students of the
white or Negro race (R. 130-131). Even as to proposed
future school construction, the Superintendent was able to
identify the race of the students for whom schools were
planned but not yet constructed (R. 131-132). Racial dot
maps, indicating the race and residence of every student
within the district, are maintained by the Board (R. 89).
10 Q. What about students who axe, for example, in the sixth grade
going to the seventh grade in another school that is separate and distinct?
A. Their names are passed over to the high school principal from the
elementary principal and their permanent records kept in the individual
folders. Every child has a folder with his records in it. They are passed
on to the high school and by that procedure the principal knows the
number and who it is he is expecting.
Q. That is an automatic process? A. That has been the way it has
operated in the past. (R. 195)
16
B. The Plan Approved by the Court Below
On July 22, 1965 the court helow entered an order
approving the first plan submitted by appellees (R. 52-53).
The United States appealed that order and on August 17,
1965 this Court vacated the judgment and remanded the
cause for further consideration. United States v. Jefferson
County Board of Education, 349 F.2d 1021 (5th Cir. 1965).
Thereafter appellees filed an amended plan (R. 66-68)
which was approved.by the court helow on August 27,
1965. This amended plan is the subject of this appeal.
The amended plan adopts the pupil assignment proce
dures discussed above—procedures which effectively per
petuated a totally segregated dual system of schools—
subject to the following modifications:
1. Every student is initially assigned to a segregated
school. Students entering grades 1, 7, 9, 11 and 12 during
school year 1965-66, grades 2, 3, 8 and 10 during 1966-67
and grades 4, 5 and 6 during 1967-68 may therafter apply
for a transfer from the segregated schools they are
initially assigned to. Transfer applications are to be con
sidered in light of the “ factors” set out in footnote 8,
supra}1 Transfer applications must be picked up and
completed application forms must he deposited at the
office of the superintendent (R. 67).
2. Students entering grade 1 shall register at schools
provided for students of their race— Negro students at
Negro schools and white students at white schools. Any
entering first grade student may apply for a transfer to
another school by following the steps set out in para- 11
11 White students are thereby insured o f space in the formerly white
schools. Applications for transfer by Negro students are to be considered
in light o f the space available at the school applied for. A ground for
rejecting an application is overcrowding. See footnote 8, supra.
17
graph 1 above only after registering at a segregated
school (R. 164).
3. Negro students new to the district may attend a
school formerly provided for whites only if the student
is entering a grade being desegregated under the plan
(E. 213).
4. Notice of the plan shall be published three times in
a newspaper of general circulation within the county
(R. 34).
Superintendent Johnson was asked:
Q. How then does this plan change the method of
assignment which by your testimony has not resulted
in any Negro attending any white school and white
attending any Negro school? A. The biggest change
I can think of is this will be the first time we have
advertised the fact in the daily newspapers that they
may do this and the requests will be considered
seriously and probably approved. We have never
done that before and this would be a change (R. 162).
Appellees’ plan permits Negroes to transfer out of the
segregated schools to which they are initially assigned,
providing they submit a request for transfer on a form
which they must pick up at, and after completion deliver
to, the superintendent’s office; and, they are not dis
qualified by one or more of the 17 tests set out in foot
note 8, supra.
Superintendent Johnson’s justification for initially as
signing all entering Negro first graders to Negro schools
is “we feel this would be the logical place for him to go.
His brothers and sisters have gone there in the past and
he would be in an atmosphere of people he had known
18
in the past and we think it is the easiest way for him to
make his wishes known” (R. 164).
C. Faculty Assignments
The plan contains no provisions for ending faculty as
signments based on race.
The hoard employed a total of 2,268 school teachers, in
cluding approximately 600 Negroes (R. 118). All Negro
teachers possess qualifications required by the school
board (R. 121); 35 white teachers failed to fulfill the
school board’s minimum requirements (R. 136-137). Negro
teachers teach only Negro students (R. 121). White
teachers teach only white students (R. 122). Negro super
visory personnel are confined to supervising Negro stu
dents and schools (R. 122) and are provided offices apart
from white supervisory staff (R. 123, 144). Teacher turn
over within the system averages approximately 13% per
year (R. 120). Dr. Johnson testified that the 2,200 teachers
in the system were qualified to each any child in the
system within their subject specialty but that “ the main
problem” to teacher desegregation would be “ acceptance
on the part of the parents” (R. 135), and Negro teachers
would encounter difficulties in teaching white students
“because of the traditions and practices of our people up
until this time” (R. 144).
D. Bus Transportation
The plan contains no provision for desegregating trans
portation facilities.
The 253 buses maintained by the district were operated
on a segregated basis (R. 123-124) pursuant to separate
route maps—one setting out routes for Negro students
and a second for white students. These routes overlapped
each other in some instances (R. 127-128).
19
E. Inequality in Facilities for Negroes
The plan contains no provision for eliminating various
tangible inequalities in the facilities for Negroes and
whites.
The superintendent testified that although there is only
one vocational school for white boys, Negro high schools
have comparable vocational subjects not offered in white
schools (R. 146). The only high school not accredited by
the Southern Association is Negro Praco High which
the superintendent said had not applied for an accredita
tion (R. 220). The Negro Rosedale school has grades 1-12;
white Shades Valley school has grades 10-12 (R. 221).
The two schools are about half a mile from each other.
Rosedale has five or six acres; Shades Valley has about
twenty acres. Shades Valley has an auditorium, a stadium
and a separate gymnasium; Rosedale lacks a stadium and
a gymnasium (R. 221-222, 232).12 Although the superin
tendent could name five white schools having summer
school sessions, he could not “ recall” other schools hav
ing such sessions (R. 232). Negro Gary-Ensley Elemen
tary School has outdoor toilet facilities (R. 234). In
Negro Docena Junior High School, there are pot-bellied
stoves rather than central heating. Students must go a
block away to use indoor toilet facilities (R. 233-34). The
superintendent could not recall a Negro school which had
a stadium with seats and lights. He stated that Negroes
have not wanted to play football at night (R. 235). Most
stadiums and lights, including an $80,000 stadium at white
Berry High School, have been provided, according to the
superintendent, by citizen efforts (R. 235-36). He did
state, however, that the school system gives assistance to
12 By way o f contrast to the Rosedale-Shades Valley situation, the
superintendent testified that Negro Wenonah High School had facilities
superior to white Lipscomb Junior High School (R. 240-41).
20
such efforts by grading the ground and furnishing the
light fixtures (R. 236).
An appendix to Intervening Plaintiff’s Exhibit No. 1,
shows that of the 79 white and 32 Negro schools listed,
81.3% of the Negro schools and only 54.4% of the white
schools had a student enrollment above capacity. Thus
33.3% of the Negro students (or 4,587 Negroes) were
enrolled in schools having over capacity population, while
only 10.1% of the white students (or 4,125 whites) were
enrolled in such schools. The United States also proved
that 45.6% of white schools but only 18.7% of the Negro
school enrollments were under capacity (R. 203).
F. Others Matters
The plan contains no provisions for individual notice
to pupils, no provision with respect to locating new school
buildings or additional facilities in such a manner as to
eliminate segregation, no provisions with respect to non
discrimination in various school connected or sponsored
activities or in extracurricular activities, and no provi
sions with respect to periodic reports to the court con
cerning desegregation.
G. Administration of the Plan
In the first year of the plan, 1965-66, only 24 of approxi
mately 18,000 Negroes attended formerly white schools.
(Affidavit of St. John Barrett attached to Motion to Con
solidate and Expedite Appeals in these cases, filed in this
Court April 4, 1966.) In the second year of the plan,
the current 1966-67 term, about 75 Negro pupils attend
formerly white schools. (Information supplied to inter-
venors and appellants by U. S. Department of Health,
Education, and Welfare.)
21
III. No. 23,331, United States, et al. v. Fairfield
Board of Education
The board maintains nine public schools in the City of
Fairfield, Alabama which serviced a total school-age pop
ulation of 3,095 children during the 1964-65 school term.
Of this number 2,273 were Negro and 1,822 were white
(Intervenor’s Exhibit No. 3).
By long term policy and practice, the board segregates
Negro school children from white school children through
the use of dual racial school zones (R. 182, 183, Inter
venor’s Exhibit 3). In 1954 Negro parents petitioned the
board to desegregate the schools and again in May, 1965,
Negro parents petitioned for desegregation. The board
did not respond to either petition (R. 125-27, 220-23). On
July 21, 1965, Negro parents and school children brought
suit against the board asking for a preliminary and
permanent injunction against continuing segregation of
students and teaching staffs (R. 14-23). The district
court found there was an illegally segregated system in
Fairfield (R. 84), and pursuant to a court order the board
filed a Plan and later an Amended Plan for Desegrega
tion of Fairfield Schools System (R. 59).13
13 On August 17, 1965, the board filed a Plan for Desegregation of
Fairfield School System (R. 48), which the court failed to approve. This
first plan provided in part that
(1) Negro children in the 9th, 11th, and 12th grades would be permitted
to apply for transfers which transfers would “ be processed and deter
mined by the board pursuant to its regulations . . (R. 49).
(2) Negro children entering the 1st grade would be assigned to Negro
schools, but if both parents accompany the child and sign an application
on the first day o f school, the child would be permitted to apply to a
white school (R. 50, 151-155).
(3) Applications to be acted upon for the 1965-66 term had to be filed
at the office of the board between 8:00 A.M. and 4:30 P.M. on August
30, 1965 (R. 50, 151).
(4) During the 1966-67 terms, the 2nd, 3rd, 8th and 10th grades would
be desegregated. During the 1967-68 terms the remaining 4th, 5th, 6th
22
The amended plan, which the district court approved,
provides that:
(1) Negro students in the 7th, 8th, 10th and 12th would
be allowed to apply for transfer to white schools if their
applications were submitted to the board on or before
August 30, 1965, the applications to be processed by the
board “pursuant to its regulations” (E. 60).
(2) Negro children entering the 1st grade must attend
a Negro school unless the parents of the child on the first
day of school apply for his assignment at a white school
(R. 61).
(3) Applications of Negro children for admission to
white schools or white children to Negro schools are to
be reviewed by the superintendent “pursuant to the reg
ulations of the board” (R. 61). (A similar process is not
required for applications of Negroes for transfer to
Negro schools or white children to white schools.)
(4) During the entire month of May 1966 applications
by Negro children for transfer to white schools in the
2nd, 3rd, 9th, and 11th grades for the 1966-67 school term
will be accepted. (No provision is made for publication
of notice prior to May of 1966) (R. 61-62 and 157-158).
(5) During May of 1967 applications by Negro students
for transfer to the remaining segregated 4th, 5th, and
6th grades will be accepted by the board for the 1967-68
and /th grades would be desegregated. Applications by students entering
desegregated grades would be accepted from the period of May 1 through
May 15 preceding the September school term opening for the desegre
gated grades (R. 50-51).
(5) Unless Negro students applied for and obtained transfer, they
would be assigned to Negro schools (R. 51).
(6) The Board would publish in a newspaper o f general circulation the
provisions o f the plan on three occasions prior to August 30, 1965 (R. 51).
23
school term. (No provision is made for publication of
notice prior to May of 1967) (R. 62 and 157-158).
(6) Except for those students applying for and receiv
ing transfer, the schools within the Fairfield system will
remain segregated.
(7) One notice of the plan is to he published for three
days prior to August 30, 1965 (R. 63).
The plan is silent as to admission of named plaintiffs,
desegregation of faculty and extracurricula activities,
abolition of dual zone lines, and filing of progress reports
with the Court. The plan also does not mention the con
struction and location of new schools and their effect on
desegregation.
Under the plan, transfer applications are not granted
as a matter of course, but the board, in its discretion,
may deny transfer (R. 149, 166).
As understood by school officials, the plan requires both
parents request transfer to a white school before an ap
plication will be considered (R. 150-152). This is also true
for students applying to the first grade, although they are
required to present themselves at schools with an applica
tion signed by both parents and application forms are
not available prior to the time of initial enrollment (R.
153) . Transfer forms are distributed to principals of
schools in Fairfield but are not distributed to parents or
students unless a request is made of the principal (R.
154) . A Negro unable to obtain certain courses because
they are taught only in the white schools will not be
considered for transfer unless the plan covers the grade
in which he is enrolled (R. 159). The plan is also silent
as to the standards to be applied to transfer requests
from students moving into the district subsequent to the
transfer period (R. 158).
24
Prior to desegregation the board permitted applica
tions for transfer during a three-month period but the
desegregation plan reduces this period (ft. 145). When
asked by the district judge to explain why “ such a restric
tive period” had been decided upon the superintendent
stated:
My reaction to that point would be we are moving,
it seems, from a segregated school to an integrated
school system, and the rules of the game are just
going to be different in the future from what they
have been in the past (R. 145).
The record shows that the tangible facilities and ser
vices available at the Negro and white schools are not
equal. The white schools in the City of Fairfield are
organized on a 6-3-3 plan, i.e. the first six grades in an
elementary school; the seventh, eighth, and ninth grades
in a junior high school; and the tenth, eleventh, and
twelfth grades in a senior high school (R. 87, 96, 189-190).
Although the 6-3-3 system is thought to be the most edu
cationally sound school-organization plan by the school
authorities, Negro schools are not organized on a 6-3-3
plan (R. 87, 96, 189-190, 192).
The teacher-pupil ratios for the 1964-65 school term at
the various schools are these:
Grades 1-6
Negro
Robinson 34/Teacher
Englewood 25/Teacher
White
Forest Hills 26/Teaeher
Donald 26/Teaeher
Grades 7-9
Interurban 35/Teacher Fairfield Junior High 28/Teacher
Grades 10-12
Industrial High 29/Teacher Fairfield 20/Teacher
(Computed from Intervenor’s Exhibits No. 3)
25
The plant facilities provided for the Negro children
are inferior to those provided for white students. The
buildings are in disrepair (R. 217-218, 207-210); the lava
tory facilities are unusable, in part, or otherwise of in
ferior quality or condition (R. 108-109 and Defendant’s
Exhibits 7 & 8). Vermin and ants have been found in
eating facilities (R. 161-167, 218) and there is little recrea
tional area provided around the Negro schools while
each white school is provided with ample grounds (R. OI
OS, 97, 98, 210, 211, 212, 218). The per pupil values of
the plant facilities
these:
of the Fairfield school system are
Negro White
Robinson Elementary $ 258 Donald Elementary j ; 743
Englewood Elementary 492 Forest Hills Elementary 920
Glen Oaks Elementary 817
Interurban Junior High 130 Fairfield Junior High 699
Industrial High 1,525 Fairfield High 2,476
(Computed from Defendant’s Exhibit No. 11)
Numerous courses which are offered to the white stu
dents in the junior and senior high schools are not offered
to the Negro students in comparable grades in the various
Negro schools (R. 90, 131-132, 215, 201). A full-time
guidance counselor was provided for the white students
at Fairfield High School and not for the Negro students
at Industrial High School (Intervenor’s Exhibit 3).
On August 23, 1965, the District Court overruled the
objections of the Negro plaintiffs and the United States
and approved the amended plan of the board (R. 65).
On September 8, 1965, the court formalized its findings
and ordered the desegregation of that system pursuant
to the amended plan (R. 67-72). On August 20, 1965,
the court rejected the objections raised by the Negro
plaintiffs and the United States (R. 84). An attempt was
26
made to show that the inferior condition of the Negro,
schools should have some effect upon the rate of desegre
gation and the provisions of the plan, but the district
court held this evidence to be irrelevant (R. 169-170).
On October 22, 1965, the United States filed a Notice
of Appeal from the order of the district court overruling
its objections and approving the plan of the Fairfield
Board of Education (R. 73).
During the 1965-60 school year only 31 of 2,273 Negroes
attended formerly all-white schools.14 15 The Department of
Health, Education and Welfare informs intervenors and
appellants that a total of 49 Negroes attend white schools
during the present school year. None of the system’s
1,779 whites attended formerly Negro schools.16
IV. No. 23,274, United States, et al. v. Caddo
Parish School Board
There are approximately 72 schools under the jurisdic
tion of the board (R. 191) which includes the city of
Shreveport and rural areas of the parish. Attending these
schools are approximately 55,000 children of whom 24,000
are Negroes (R. 191, 189). The board employs approxi
mately 2,200 teachers (R. 191).
Racial separation within the system was maintained
through the use of dual attendance zones (R. 69, 81). No
Negro child attended any school in which white children
were in attendance; no Negro teacher was employed at
any school at which white children were in attendance
(R. 74-75, 81, 91-92). Athletic facilities and bus trans
portation were segregated (R. 107-08, 110-12).
14 Affidavit o f St. John Barrett attached to Motion to Consolidate and
Expedite Appeals filed April 4, 1966.
15 Ibid.
27
After the decision of the Supreme Court in Brown v.
Board of Education, the board made no effort to end
segregation in the schools, being of the opinion that it
had no duty or responsibility to do so until, and only to
the extent that, it was so ordered by a court of the
United States (E. 87-89).
On March 23, 1965, Negro school children and their
parents notified the board that they and other Negro
children desired to attend the public schools of the Parish
without discrimination on the basis of their race (R. 60).
The hoard replied that it had “gone the extra mile” in
its efforts to provide the best education for all students,
but took no affirmative action to desegregate or honor
the request of these Negro children and their parents
(R. 62, 73).
On June 14, 1965, the district court found that the
school board had operated a compulsory segregated sys
tem, enjoined the board from continuing and maintaining
a racially segregated school system, and ordered the
board to submit a plan to desegregate the schools of the
parish (R. 133-36). The court stated that it issued the
decree “not willfully or willingly, but because we are com
pelled by decisions of the Supreme Court . . . [and] . . .
the Fifth Circuit . . . ” (R. 131). The board submitted
a desegregation plan on July 7, 1965 (R. 138-50). Ob
jections were filed July 21, 1965 (R. 158-60) and hearing
was held on the objections August 3, 1965 (R. 161 et seq.).
The board first proposed a plan in which students, after
being initially assigned on the basis o f race, would be
permitted to request transfer to the school closest to their
residence (R. 141). It was established at the hearing that
in many instances this would result in Negro children
applying for transfer from one Negro school (the original
28
assignment) to another Negro school (the school closest
to residence) (R. 273-274).
As a result of the hearing, the plan was approved, as
modified, and incorporated into an order by the District
Court August 3, 1965 (R. 291-98). On August 20, 1965
the district court altered the plan in light of the deci
sion of this Court in United States v. Bossier Parish School
Board, 349 F.2d 1020 (August 17, 1965) (R. 300-04).
The plan as finally approved provides for transfer ap
plications for grades one, two, eleven and twelve during
the 1965-66 school year, remaining grades to he covered
during the 1966-67 and 1967-68 terms (R. 303-04). All
initial school assignments of children entering the first
grade and those presently enrolled from prior years,
would “be considered adequate” subject only to these
transfer provisions (R. 291-95).
The community is to he advised of the plan by publica
tion in a local newspaper advising of the right to request
transfers. There are to he no individual notices.
Negro children in the covered grades could apply for
transfer to white schools only if they applied within a
five-day period extending from August 9, 1965 through
August 13, 1965, although prior to issuance of the plan
transfer applications were permitted throughout the school
year (R. 85, 95, 96). Application forms would not be dis
tributed to all students but would be available from princi
pals on request.
Transfer applications would be granted if in “ the best
interest of the child” and if applicants met transfer criteria
(R. 182, 292-94) such as available space,16 age of the
pupil as compared with ages of pupils already attending
16 AO schools in the Parish are overcrowded (R. 258-59, 281).
29
the school to which transfer is requested, availability of
desired courses of instruction, and an aptitude test (E.
147, 217, 243-48). These criteria are part of “ the pro
cedures pertaining to transfers currently in general use
by the Caddo Parish School Board” and are incorporated,
in the plan (E. 292). An interview may be required and
if parents fail to attend the transfer application is con
sidered withdrawn (E. 145, 146).
The board specifically refused to obligate itself to pro
vide busing for transfer students to formerly all-white
schools although in some cases this would require students
to arrange trips of about 19 miles (E. 70, 143, 206).17
The board was granted the right to reassign a transfer
applicant to a “ comparable” school nearer his residence.
However, “comparable” is not defined in the plan.
Students moving into the parish are initially assigned
according to race to formerly all-white or all-Negro schools
(E. 177-78, 295).
The order did not provide for assignment of named
plaintiffs to white schools or for desegregation of faculty,
extracurricular activities or transportation facilities. Prog
ress reports to the court are not required. A spring pre
registration of future first graders “ is very important”
(E. 95, 94) to administration of the system but the plan
is silent regarding its desegregation. The plan does not
mention the construction and location of new schools and
their effect on desegregation.
During the first year of the plan’s operation, only one
Negro child of the 24,457 attending public schools in Caddo
17 There was testimony that all or nearly all the white children from
the rural area of Caddo Parish were bussed into Shreveport from as much
as 19 miles away. Rural Negro children were provided with three Negro
high schools located at various points about the county closer to their
residence than the Shreveport schools (R. 274-75).
30
Parish (of whom approximately 1,720 are entering first-
graders) has been admitted to a formerly white school
(E. 78). (See the affidavit of Mr. St. John Barrett attached
to motion to consolidate and expedite filed in this Court
April 4, 1966).
July 19, 1965, the United States sought leave to inter
vene as of right as party plaintiff and to file objections
to the desegregation plan submitted by the board. At the
August 3, 1965 hearing on the plan, the district court
denied the motion to intervene (E. 166) on October 4, 1965,
the United States filed notice of appeal to this Court from
the order denying intervention (E. 305). The panel found
that “ the motion was timely filed and should have been
granted” (Slip Opinion p. 116).
V. No. 23,365, United States of America, et al. v.
The Bossier Parish School Board
This is the fourth appeal to this Court involving segre
gation in the Bossier Parish schools. See United States v.
Bossier Parish School Board, 220 F. Supp. 243 (W.D. La.
1963), aff’d per curiam 336 F.2d 197 (5th Cir. 1964), cert,
den. 379 U.S. 1000, an unsuccessful attempt by the United
States to sue for desegregation prior to the 1964 Civil
Eights Act. See also two prior appeals in the present
suit, sub nom. United States v. Bossier Parish School Board,
349 F.2a 1020 (5th Cir. 1965) (per curiam) and Bossier
Parish School Board v. Lemon, No. 22,675, 5th Cir., Janu
ary 5, 1967 (not yet reported).
This suit was commenced in December 1964 by a group
of Negro servicemen and their families who were assigned
to the Barksdale Air Force Base near Bossier City, Louisi
ana; the United States intervened and brought this appeal.
31
The present appeal involves the “ adequacy,” underBrown
v. Board of Education, 349 U.S. 297, 301, of a court-ordered
plan of desegregation (R. Yol. II, 251-258; as amended R.
Yol. II, 261-263). (NB The record on this appeal is in
two volumes. Volume I consists of the record multilithed
for use in 5th Cir. Case No. 22,675, a prior appeal. Volume
II is marked as Case No. 23,365 and consists of 281 pages.)
Bossier Parish, which adjoins Caddo Parish in north
west Louisiana, is a rapidly growing area (R. 11-40) which
embraces both urban (Bossier City) and rural areas and
several large federal installations, including the Barksdale
Air Force Base. Its Superintendent of Schools described
the system as the most federally impacted system of its
size in the South (R. 11-38). The Superintendent also de
scribed the areas as a “hard core segregation area” where
people have “ strong and fixed opinions in opposition to
integration,” and said in March 1965 that “Bossier Parish
is not ready for integration” (R. 1-56).18
The school system had (in the spring of 1965) 15,267
students, including 10,894 white pupils and 4,375 Negroes, * 66
18 The quoted remarks are from a written answer to an interrogatory
inquiring what obstacles there were to complete desegregation in the 1965-
66 term (R. Vol. I, 40). The Superintendent responded (R. Yol. I, 56)
with the following:
Bossier Parish, Louisiana can properly be termed a “ hard core”
segregation area. The people in Bossier Parish have strong and fixed
opinions in opposition to integration. People here feel that negroes
in Bossier Parish are treated fairly and with justice and there has
been an unusual degree of racial harmony. Indeed, from the negroes
in Bossier Parish there has been no desire expressed for integration
of the races other than that which come from Barksdale Air Force
Base; that is, from non-Bossier Parish negroes.
In contrast to some other areas o f the South which have maintained
segregated school systems, Bossier Parish is not ready for integration.
/ s / E mmett Cope
E mmett Cope, Individually and
on behalf o f the Bossier Parish
School Board
32
in 23 school buildings (R. Vol. I, 45-46). There were 17
all-white and 6 all-Negro schools (Ibid.). About 1,100
students live on the Barksdale Air Force Base, and ap
proximately 4,400 students are “ federally connected” (R.
Yol. II. 36). The student population has a large turnover
which includes an average of 1,000 to 1,500 newcomers
each year, largely due to the federal installations and re
lated industries (R. Vol. II. 38). The system received more
than $1,860,000 for school construction from the Federal
Government between 1951 and 1964 (R. Vol. I. 104), and
also received substantial annual amounts of federal funds
for maintenance and operation of the schools, including
more than half a million dollars in November 1964 (R. Vol.
I. 108).
There was no desegregation of the Bossier schools until
September 1965 when twenty-five (25) Negroes were ad
mitted to six previously all-white schools (R. Vol. II. 266).
Until 1965, the schools were completely segregated with
a system of dual school zones for Negroes and whites (R.
Vol. II. 43-45). The 700 teachers in the system were also
assigned on the basis of race (R. Vol. II. 175, 179). In
school taxation district 13, the urban area, all Negro
children, regardless of residence, were assigned to either
Butler School (grades 1-6) or Mitchell School (grades 7-
12) (R. Vol. I. 45-46; Vol. II. 160). White pupils in dis
trict 13 were assigned to elementary, junior high or high
schools on the basis of geographic attendance areas re
flected on maps which were revised annually to adjust to
changing conditions (R. Vol. II, 44, 67-69, 159-161, 168).
Similarly, there were dual zones in the rural areas, all
pupils having been assigned on a dual zone racial basis
(R. Vol. II. 127, 130). Under the segregated system pupils
were placed in schools by assignment and not by choice
(R. Vol. II. 130). The board also maintained separate
33
school buses, and bus route maps for Negroes and whites
(R. Yol. II. 244-245).
After the trial judge in April 1965 ordered the board
to submit a desegregation plan, the board appealed that
order19 but, as there was no stay in effect, submitted three
alternative proposals for desegregation (R. Vol. II. 1-12).
None of the proposals involved a start of desegregation
until 1966, and the proposed completion dates ranged from
1970-71 (the board’s first choice) to 1968-69. We omit any
detailed description of the board’s proposed plan, except
to state that under the proposal all prior initial assign
ments— all of which were segregated—were “ considered
adequate” , subject to a pupil’s right to transfer to “ the
nearest formerly all-white or all-colored school” (R. II. 4).
Although the plan was labeled as one considering both
“ freedom of choice” and “proximity” by the superintendent
(R. Yol. II. 92), all Negro first graders were directed to
register at the all-Negro Butler School and white children
were directed to the white schools. The superintendent
sought to justify this by his assumptions that the major
ity of Negroes would want to go to Butler, and that they
would get better registration advice from teachers of their
own race (R. Vol. II. 124-125). The private plaintiffs and
the United States filed objections to the plan (R. Yol. II.
13-15, 30-33), and a hearing was held on July 28, 1965.
On July 28, 1965, the District Court entered an order re
quiring desegregation in September 1965, in grades 1 and 12
(R. Vol. II, 251-258). The United States promptly appealed
(R. Yol. II, 258), and this Court within a few weeks vacated
the judgment and remanded for reconsideration (R. Vol.
19 This court rejected the board’s arguments on appeal calling them
a “ bizarre excuse” for segregation. Bossier Parish School Board v. hemon,
No. 22,675, 5th Cir., January 5, 1967. Undaunted, the board promptly
filed a rehearing petition, still resisting the order to desegregate in Janu
ary 1967. Rehearing was denied February 6, 1967.
34
II, 260; see 349 F.2d 1020). The plan was then amended hy
the trial judge to permit desegregation in two additional
grades in 1965 (R. Vol. II, 261-263). There were no other
changes in the plan, and the United States then brought
this appeal, in which the private plaintiffs were permitted
to intervene.
The Court Ordered Plan, as Amended
(R. Vol. II, 251-258, 261-263)
•F
1. Rate of desegregation.
The plan, as amended, provides for desegregation in three
years, as follows:
School Year Grades Desegregated
The plan also provided that all pupils newly entering
the school system would he eligible for desegregation in 1965
without regard to their grades (R. Vol. II, 255).
2. Method of assignment.
a. 1965-66 school year. Initial assignments, already made
on a completely segregated dual racial zone basis were “con
sidered adequate” subject to certain transfer rights (R. Vol.
II, 251). Transfer provisions for the various grades af
fected were as follows:
Grade 1—Notice to be published in newspaper for three
days advising that applications to first grade in any school
could be made by applying in person at school board office
during four day period (R. Vol. II, 252-25 ). As imple
mented, the board ran a notice of this provision for “Any
Negro child . . . who desires to attend a formerly all-white
1965- 66
1966- 67
1967- 68
1, 2, 11, 12
1, 2, 3, 4, 9, 10, 11, 12
All Grades
35
school” to apply in person at the school hoard office in
Benton, Louisiana accompanied by his parents or guardian
(R. Yol. II, 271).
Grades 2 and 11—The procedure prescribed in the order
was similar to that for grade 1. The board’s newspaper
notice, said that “Any Negro child .. . who desires to attend
a formerly all white school, will report . . . in person, ac
companied by his or her parents or guardian to the School
Board office at Benton, Louisiana.” A three-day period was
prescribed (R. Vol. II, 273).
Grade 12— The order provided that all 12th grade stu
dents, regardless of race, were to be mailed notices advising
of the right to transfer to any school by applying in person,
accompanied by parents, during a four day period (R. Vol.
II, 252). The notice actually mailed to pupils (R. Vol. II,
269) said that pupils could apply for a transfer, but it con
tained no statement indicating that pupils would be accepted
in any school regardless of race, or that grade 12 was de
segregated, or any similar explanation (R. Vol. II, 269-270).
The court order did not grant an unconditional right of
free choice. Rather, it provided that requested “ transfers
or assignments . . . shall not be unreasonably denied”
(R. Vol. II, 253). It listed certain criteria to be applied
in granting or denying requests, including desire of pupils
and parents, availability of space and other facilities in
the school to which transfer or assignment is requested,
age of the pupil as compared with ages of pupils already
attending the school, and availability of requested courses
o f study (R. Vol. II, 253-254). The order also provided
that the board may “if it deems it advisable” assign a
pupil to “ another school, in all respects comparable to the
one to which transfer or assignment is requested, closer
to the applicant’s residence” (R. Vol. II, 254). All pupils
36
whose requests were denied were to get a notice setting
forth specific reasons (R. Yol. II, 255).
b. School years subsequent to 1965-66. Only very gen
eral provision was made in the order with respect to the
method of assignment in future years. The order provides
only that “ initial assignments . . . shall he made purely and
simply on the basis of individual choice, reserving to all
pupils, however, the right to apply for transfer in accord
ance with the procedures hereinabove established, and
reserving to the School Board . . . the right to place a
pupil in a comparable school other than the school of his
choice . . . closer to the pupil’s residence” (R. Yol. II, 256).
The order also provides that “ Dual school districts on
racial lines shall be abolished” .
Because these provisions are so general, a variety of
things are unclear. The plan does not state (1) whether
school attendance lines and the feeder system will be used
in some manner in the future; (2) whether once assigned
to a school, pupils will be required to make an annual
choice of schools or will remain where they previously
were assigned unless they seek transfers; (3) what will be
done if pupils indicate no preference; (4) whether pupils
already attending a school will have priority over others
choosing a school in the event of overcrowding; (5) or any
definition of the “ comparable school” discretion given to
the school board.
3. Notice and related procedures.
The procedures ordered and utilized for the 1965-66
term were set forth in the discussion above. The order
gives no details with respect to the procedures in other
years except the general statement that the assignments
will be “ subject to all reasonable procedural requirements
37
that may be adopted and promulgated by” the school
board (R. Vol. II, 257). This leaves unclear, for example,
whether the choice and transfer procedures will be only
for Negroes and not for whites as they were in grades 1,
2 and 11 in 1965; whether there will be individual notices
or only newspaper advertisements; and whether the school
board may adopt its proposal of having all Negroes register
at Negro schools and all whites at white schools. Other
unresolved issues related to the content of notices, the
time for transfer, whether pupils and parents must appear
in person at the school board office, etc. The plan deals
with none of these matters.
4. Transforation.
The plan makes no mention of transportation facilities.
In a somewhat confusing colloquy between the superin
tendent and the Court, during trial, the superintendent
may have indicated an intention to desegregate buses
(R. Yol. II, 101-102). The extent, if any, by which the
prior pattern of segregated buses, and bus routes for
Negroes and whites is to be changed is unclear.
5. Faculty and staff desegregation.
The plan makes no mention of faculty desegregation.
The school authorities made clear that they had no plans
to end the system of assigning faculties on a racial basis
(R. Vol. II, 179-180). The faculty turnover rate was about
9.2% annually (R. Vol. II, 176).
6. School connected activities, extra-curricular
activities, etc.
The plan contains no provision with respect to these
matters.
38
7. New construction.
The plan makes no reference to planning new facilities
or additions so as to eliminate segregation. At least two
new buildings had been built and opened on a segregated
basis during the three years superintendent Cope had
been in office (R. Yol. II, 80).
8. Unequal Negro school facilities.
The plan makes no provision for steps to equalize educa
tional opportunities for Negroes in the parish.
The schools operated for white and Negro children in
Bossier Parish show considerable disparity in a number
of qualitative aspects. The white high school (Bossier)
for one district offers 53% courses over a four year period,
including two years of Latin, two years of French, two
years of Spanish, and three years of art (R. Vol. II, 184-
185). However, the Negro high school (Stikes) for the
same district offers only 28 courses, and offers no Latin,
French, or Spanish (R. Vol. II, 186). Another district’s
white high school (Airline) offers 43.5 coiirses, while the
Negro high school (Mitchell) offers 30.5 (R. Vol. II, 189).
Similarly, the white high school (Haughton) for a third
district offers 40.5 courses, while the Negro high school
(Princeton) offers 34 (R. Vol. II, 192). The Superintend
ent stated that the criterion for offering a course was:
if a course is requested on the senior high level by
as many as ten students we attempt to offer that course
in that particular school. Yet, at the same time, there
are other, factors where maybe ten students have not
applied as far as conditions are concerned in the other
schools and I think that situation has to be taken into
consideration (R. Vol. II, 100).
39
Disparities are found in other respects in addition to the
number of course offerings. While there are two full time
guidance counselors at Airline (white), there are none at
Mitchell (Negro) (E. Yol. II, 190). In fact, while there
generally are guidance counselors at the schools for whites
in the parish, there are none at any of the Negro schools
(R. Yol. II, 187, 194). At the Princeton school (Negro),
there are 3.8 volumes of “approved books in good condi
tion” per pupil, while at Haughton (white) in the same
district there are 6.3 per pupil (R. Vol. II, 190-191).
Mr. William Stormer, of the United States Office of Edu
cation, Department of Health, Education, and Welfare, an
expert in the evaluation of the quality of school plants, testi
fied on his inspection of the Bossier Parish schools in the
summer of 1965 (R. Vol. II, 195-198). Using the Lynn-
McCormick Rating System which combines a number of
weighted ratings to allow numerical comparisons between
schools, he determined that the highest white school (Air
line) ranked at 82 on the scale, while the highest Negro
school (Mitchell) ranked at 16 (R. Vol. II, 199, 202). F if
teen of the seventeen white schools rated above the top
Negro building (R. Vol. II, 202). When challenged upon
cross-examination that there was really no dramatic dif
ference between the Negro and white schools, he responded:
“Yes, there is. I beg your pardon. For example, the wooden
structures used at Stikes for what I presume to be ele
mentary classrooms . . . there are no wooden structures at
Curtis” (R. Vol. II, 209). Similarly, the structures used
for elementary grades at Irion (Negro) are wooden, while
those used for the same purpose at Benton (white) are not
(R. Vol. II, 209). The home economics facilities at Stikes
high school (Negro) are in a wooden frame two story struc
ture, whereas similar facilities at Bossier high school
(white) are in a modern main building (R. Vol. II, 200).
40
All of the Negro schools must use their gymnasiums as
auditoriums, while Airline, Bossier, Benton, and Haughton
schools which are all white have separate auditorium facili
ties (R. Vol. II, 200-201). The gymnasium floors in all of
the Negro high schools are constructed of cement or asphalt
tile surface, compared to wooden floors in all of the white
high schools (R. Vol. II, 200).
9. Periodic compliance reports.
The plan makes no provision for periodic compliance re
ports to indicate the extent of desegregation under the
plan. However, in September 1965, the board voluntarily
filed a report indicating that 25 Negroes had been admitted
into six formerly white schools (R. Vol. II, 266-267). No
subsequent reports have been made.
VI. Dio. 23,116, Davis v. East Baton Rouge Parish
School Board
The East Baton Rouge Parish school system includes the
City of Baton Rouge, Louisiana’s state capital, as well as
rural areas in the parish. The system, in 1965, had 87
schools housing 54,894 pupils (R. 70) and about 2,300
teachers (R. 123). About 60% of the pupils and teachers
were white and 40% were Negroes.20 There were 33 all-
Negro schools, 50 all-white schools, and 4 predominantly
white schools attended by a few Negroes (R. 49-50, 93).
Although this school desegregation litigation was com
menced in 1956, the parish schools remained completely
segregated until the court ordered a twelve year desegre
gation plan to begin in the 1963-64 term. The early litiga
tion is described briefly in the note below.21
20 There were 33,186 white pupils and 21,708 Negro pupils (R. 70-71).
21 The board was enjoined on May 25, 1960, and ordered to desegregate
with deliberate speed. This Court affirmed. East Baton Rouge Parish
41
In 1963, twenty-eight Negroes (of 38 applicants) were
admitted to white schools at the 12th grade level (R. 93-94).
In 1964, sixty-one Negroes (of 99 applicants) were admitted
to white schools in the 11th and 12th grades (R. 99-100).
Only four of the fifty-four white schools were desegregated
(R. 93). No white pupils sought transfer to all-Negro
schools (R. 61). No figures for 1965 appear of record, but
apparently, about 130 Negroes were admitted to white
schools in grades 1, 2, 10, 11 and 12 in September 1965.22
After the 1963 desegregation plan (R. 4-9; 219 F. Supp.
at 885-887) had been in effect two years, the plaintiffs
moved for amendment and acceleration of the plan, and
made various objections to the manner in which it was
administered (R. 11-28). Following a hearing (R. 170-
251), the Court ordered the board to present an amended
plan in accordance with its directions (R. 158-159, 242-250).
An amended plan was presented and approved (R. 161-
167). Plaintiffs appealed from the order approving the
plan (R. 167).
School Board v. Davis, 289 F.2d 380 (5th Cir. 1961), cert. den. 368 U.S.
831 (1961). On January 22, 1962, no steps to implement desegregation
haying been taken by the board, plaintiffs sought further relief in the
trial court. In March 1963, Judge West, expressing his disagreement with
the Brown decision, nevertheless “reluctantly” ordered the school board
to file a desegregation plan. Davis v. East Baton Rouge Parish School
Board, 214 F. Supp. 624, 625, 626 (E.D. La. 1963). The board filed a
plan to begin in 1964 and desegregate one grade a year for 12 years;
the Court ordered desegregation to begin in 1963 under a grade-a-year
plan. Davis v. East Baton Rouge Parish School Board, 219 F. Supp. 876
(E.D. La. 1963).
22 This estimate is extrapolated from the School Board’s original brief
on this appeal where it is stated that a total of 219 Negroes were admitted
to white schools in the three year period. (Brief o f Appellees, pp. 6-7.)
The record reflects that in the spring of 1965, before the plan was
amended by court order, 89 Negroes (o f 103 applicants) were accepted
in white schools in grades 10, 11 and 12 (R. 107).
42
A. The 1965 Plan
1. Rate of desegregation.
The 1965 plan provided that desegregation be extended
to all grades by September 1968 according to the following
schedule (R. 162):
School Year Grades Desegregated
Thus, under the plan one grade was desegregated in
each of the first two years, 3 additional grades the third
year, two grades the fourth year, three grades the fifth
year, and two grades the sixth year of operation.
2. Method of assignment.
The plan provides that as additional grades were covered
by the plan “new districts will be prepared providing the
students living within the boundaries of such districts a
choice of school to attend on a first come-first served basis
without regard to race or color (R. 163). The plan also
provides that students will be accepted “ at any of the
schools within their respective district” until such school
is “ filled,” and that excess registrants shall be sent to the
other school or schools in their district for registration
(R. 164). It provides that no student shall be denied ad
mission because of race (R. 184).
These provisions must be understood in the context of
the board’s practices and procedures. The board has main
tained 100 school districts or geographic attendance areas
1963- 64 (under 1963 plan)
1964- 65 (under 1963-plan)
12
11,12
1, 2, 10, 11,12
1, 2, 3, 4,10,11,12
1, 2, 3, 4, 5, 6, 7,10,11,12
all grades
1965- 66
1966- 67
1967- 68
1968- 69
43
(R. 103). About 70% of the districts contained residences
of both races (R. 103), and segregation was maintained
by a dual system of attendance districts, with separate over
lapping districts and maps for Negroes and whites (R.
74-76, 79-80). Elementary schools were designated as
“ feeder schools” for designated secondary schools, also on
a segregated basis (R. 77, 84-85, 105). This method con
tinues in effect in all grades not yet “desegregated” under
the plan’s schedule. In those grades which are nominally
desegregated, the Negro and white zones are combined into
multiple-school districts, so that each zone contains one
or more white and one or more Negro schools. Pupils are
allowed to choose either the white school or the Negro
school in their geographic attendance district (R. 76-78,
83-84). I f a pupil fails to make a choice, he remains in
the segregated school where he was previously assigned
under the pre-existing arrangement (R. 209). The plan
makes no mention of abolishing the segregated “ feeder
system” which moves students on a racial basis if they
express no choices.
3. Notice and related procedure.
The plan provides that principals and teachers be noti
fied of the attendance districts and that the districts be
advertised in the local news media. A registration day is
also to be advertised for at least 30 days (R. 163). The
superintendent is authorized to use a better method if he
can devise one (R. 163-164). There is no provision for in
dividual written notice to pupils or parents. The plan does
not specify the content of the public announcements beyond
stating that the boundaries and registration date will be
advertised.
Similar procedures had been used under the 1963 plan
(R. 92-93, 98, 107), in disregard of the court’s prior order
44
that all pupils be given individual mailed notices of their
transfer rights (R. 5).
4. Transportation of pupils.
The school system operates 250 buses which transport
more than 25% of the pupils to school (R. 128-129). The
plan provides that transportation will be furnished or not
furnished in accordance with state laws and policies with
out regard to race (R. 164). The plan makes no reference
to desegregation of buses or bus routes.
Students are segregated by race on the buses (R. 129).
This policy was applied to the Negro pupils admitted to
formerly white schools (R. 129, 211). The superintendent
was questioned about this (R. 211):
Q. Would you agree that the way it has been oper
ating in the past is that Negro children when assigned
to desegregated schools are still being taken to and
from the school in segregated buses! A. Yes.
Q. And my question is: Is there any reason why
you would change that, beginning with this Fall and,
if not, why not! A. I just have not thought about it.
Judge West sustained objections to questions about deseg
regating the buses ruling: “We are not interested in the
School Bus situation right now” (R. 213).
5. Faculty and staff segregation.
The plan makes no provision for faculty desegregation.
Judge West denied relief on the faculty issue (R. 246).
All faculties were completely segregated on the basis of
race (R. 124-125). Negro supervisory personnel assigned
to the central administration were segregated in a separate
building (R. 125-126, 226-227). Teachers are assigned to
45
specific schools by the administration (E. 202). About 13
or 14 percent of the teachers are replaced each year in
the regular turnover of personnel (E. 147-148).
6. School connected activities, extra-curricular
activities, etc.
The plan makes no provision with respect to equal ac
cess to school connected activities, etc. without regard
to race.
7. New construction.
The plan makes no reference to planning new facilities
or additions to facilities so as to eliminate segregation.
At the time the trial was held, the school board was
planning 17 new school buildings in the next five years
(E. 130). The school system also made extensive use of
temporary classroom building or “ T-Buildings” (E. 53,
69). Plaintiffs proffered, but the court refused to con
sider, testimony of an expert witness, a school administra
tion expert, that certain temporary buildings were ar
ranged so as to preserve segregation. For example, tempo
rary rooms were added to Negro schools while nearby
white schools had vacant spaces (E. 267-271).
B. Aspects of the 1963 Plan
The 1963 plan expressly permitted the board to con
tinue to make initial assignments on a racial basis (E. 5).
As noted above, the board modified its dual zone proce
dure so that some Negro pupils were permitted to transfer
out of segregated schools to the white schools in their
areas. This transfer right was subject to a screening
process in which Negro pupils were measured by a variety
of criteria which had not been applied to white students
attending the schools (E. 6-7). Ten Negro applicants were
46
rejected in 1963 and 38 were rejected in 1964 by applica
tion of these criteria. As an example, one Negro was re
fused admission to a white school on the ground that he
was “nervous” (R. 110). In 1965, the court ruled that the
screening criteria could no longer he used (R. 249).
C. Exclusion of Evidence on Adequacy of the Plan
The trial court refused to permit an expert witness,
called by the plaintiffs, to be sworn or to testify on the
sole ground that the witness was from Massachusetts.
The court said: “I don’t want someone from Massachusetts
coming down to tell the Baton Rouge school board how
to run their schools” (R. 228). The witness, Dr. Donald
P. Mitchell, was experienced in educational administration
and in making school surveys (R. 252-258). He is Execu
tive Director of the New England School Development
Council and a member of the Harvard University faculty
(R. 261-262). The Court stated that Dr. Mitchell’s testi
mony could be proffered by deposition and filed, but that
the Court would not consider it (R. 228, 231).
Dr. Mitchell’s deposition was taken and appears in the
record at R. 251-287. He testified that the system “ is still
a segregated system that has slight deviations from that
overall pattern” (R. 262); that the “procedures for initial
pupil assignment, regardless of grade level, are definitely
ones which separate the races” (R. 262); that the trans
portation was segregated (R. 263); that teachers and
supervisors were segregated (R. 263). He said of the plan
that “on the results of the last two years and this year
approaching, unless the approach is changed, only a token
result will come forth” (R. 266). He described the over
lapping segregated bus routes as “a prohibitive operation”
causing the taxpayers “quite a load” (R. 272-273). He
regarded the freedom of choice plan as “ a bankruptcy deci
47
sion on the part of a local district” and said that the
hoard’s earlier policy of having geographic zones “made
sense from an administrative point of view” (R. 273-274).
He concluded that “ The idea that the freedom of choice is
democratic is completely hypocrisy because it only applies
to the Negro students” (R. 275).
ARGUMENT
Introduction
Appellants urge that the Court en banc adopt the opinion
and decree filed in these cases December 29, 1966, by the
majority of the panel which originally considered them. We
urge that the opinion and decree he adopted without modi
fication or amendment.
Because we believe that the opinion and decree of De
cember 29, 1966, stands on its own merits, and answers all
of the principal arguments now made by the school hoards,
this brief does not address the school hoards’ detailed and
carping attacks on the opinion. We have, however, re
viewed the facts and described the desegregation proposals
of these school boards at length. Study of the actual facts
and desegregation plans involved shows that the decisions
below were properly reversed by the panel. It shows that
none of the varied desegregation plans involved is ade
quate by any relevant standard. It shows the necessity for
a specific and detailed decree to guide the trial courts and
school boards.
We argue but a few points. In part I below we discuss
some of the most prominent common inadequacies of the
school board plans. In part II, we discuss the significant
recent opinion by the Court of Appeals for the Tenth Cir
cuit in The Board of Education of the Oklahoma City
48
Public Schools v. Dowell, No. 8523, 10th Cir., January 23,
1967, which we believe supports the opinion of December
29, 1966. In part III we discuss some of the circumstances
and arguments which support the conclusion in Judge
Wisdom’s opinion that the various “ freedom of choice”
methods for desegregating schools “have serious short
comings” and should be “ closely scrutinize[d] by the
Courts in the actual circumstances of their operation in
particular cases” (Slip opinion, part V I). And, in part
IV, infra, we state further grounds for our views that the
Court should prescribe uniform and detailed standards ap
plicable throughout the circuit; that the decree appended
to Judge Wisdom’s opinion provides appropriate uniform
standards; and that the U. S. Office of Education Guide
lines were appropriately given weight in formulating that
decree.
I.
The Plans Approved by the Courts Below Are Not
Adequate to Effectuate Transitions to Racially Nondis-
criminatory School Systems.
Brown v. Board of Education, 349 U.S. 294, 301, directs
the courts to “consider the adequacy of any plans the de
fendants may propose . . . to effectuate a transition to a
racially nondiscriminatory school system.” In Cooper v.
Aaron, 358 U.S. 1, 7, the Supreme Court said the “ State
authorities were thus duty bound to devote every effort
toward initiating desegregation and bringing about the
elimination of racial discrimination in the public school
system.” By no means can it fairly be said that the six
desegregation plans which we have discussed in detail in
the Statement, supra, either initiate desegregation or elimi
nate racial discrimination.
49
These six cases demonstrate the great variety of arrange
ments which school hoards may call “ free choice” plans..
We focus on some common inadequacies.
Some of these plans quite explicitly and avowedly con
tinue routinely to assign pupils newly entering the sys
tems, and pupils being promoted from one level to another,
to schools on a racial basis. They violate the elementary
principle announced in dozens of cases, but apparently first
articulated in Jones v. School Board of the City of Alex
andria, Virginia, 278 F.2d 72 (4th Cir. 1960), that separate
geographic attendance areas for Negro and white pupils—
the dual racial zone systems—must be abolished. The prin
ciple is well settled.23 It has simply not been applied in
these cases. Other plans before the court dutifully recite
that they “abolish” the dual racial zones, but leave all the
pupils placed in schools to which they were assigned by
such dual zones. The plans which place pupils in schools
on a racially segregated basis contain varying transfer
arrangements. None of them are adequate. It was long
ago settled in this Circuit,24 and the other circuits which
considered the matter,25 that Negro pupils thus racially
placed may not be subjected to criteria limiting their trans
fers to white schools on grounds not applicable in routinely
placing white pupils in the white schools. Yet, such ar
23 It is equally clear that segregated “ feeder school” systems are un
constitutional. Greene v. School Board of City of Roanoke, 304 F.2d 118,
120 (4th Cir. 1962).
24 Mannings v. Board of Public Instruction of Hillsborough County,
277 F.2d 370 (5th Cir. 1960); Bush v. Orleans Parish School Board, 308
F.2d 491 (5th Cir. 1961).
25 Greene v. School Board of the City of Roanoke, 304 F.2d 118 (4th
Cir. 1962); Marsh v. County School Board of Roanoke County, 305
F.2d 94 (4th Cir. 1962); Wheeler v. Durham City Board o f Education,
309 F.2d 630 (4th Cir. 1962) ; Northcross v. Board o f Education of City
of Memphis, 302 F.2d 819 (6th Cir. 1962); Norwood v. Tucker, 287 F.2d
798 ( 8th Cir. 1961).
50
rangements continue in these cases. It is equally clear that
even relatively “free” transfer plans are inadequate if they
are superimposed upon initial placements based on racial
segregation.26
The few plans before the Court which do afford a modi
cum of choice to some of the pupils entering the school
systems, all retain some continuing racial assignment prac
tices, and all fail to contain adequate safeguards and pro
cedures to insure that choices are really “ free.” All of
the plans, for example, are silent on a whole range of
administrative and operational concerns which must he con
sidered in any rational plan to desegregate a school sys
tem.27 The failure of the plans to grapple with these issues
26 Singleton v. Jackson Municipal Separate School District, 355 F.2d
865, 871 (5th Cir. 1966) ; Bradley v. Board of Education of the City of
Richmond, 345 F.2d 310, 319 n.18, (4th Cir. 1965), vacated on other
grounds, 382 U.S. 103; Wheeler v. Durham Board of Education, 346 F.2d
729 (4th Cir. 1965) ; Nesbit v. Statesville Board of Education, 345 F.2d
333, 334 (4th Cir. 1965); Buckner v. School Board of Greene County,
332 F.2d 452 (4th Cir. 1964).
27 The Alabama school boards have filed a brief on rehearing relying
on Clark v. School Board o f City of Little Rock, 369 F.2d 661 (8th Cir.
1966) (rehearing petition pending). But every plan now before this
Court is defective under the standards adopted by the Eighth Circuit in
that case. With one exception, discussed below, the court endorsed a
freedom o f choice plan modeled on the new Guidelines.
The Clark court required “ a positive program aimed at ending in the
near future the segregation of the teaching and operating staff” although
52 teachers were teaching in minority situations. None o f the plans before
the court in these cases directs itself to the issue o f faculty desegregation
much less contains the “ definite program” required in Clark (369 F.2d
at 669, 670). There has been no actual faculty desegregation in any o f
these Alabama or Louisiana cases.
The Clark court rejected the notice provision o f the Little Rock plan
because it “ only requires a limited public notice and the delivery of notice
to the student by the classroom teacher.” The Court held: “ only by
thorough notice can we be assured that the students and parents in Little
Rock are fully aware of their newly accorded rights.” The Clark court
commended the HEW Guidelines to the board (369 F.2d at 668, 669).
The notice provisions o f the plans before this Court do not even come
51
speaks eloquently of their implicit purpose to minimize
desegregation and maintain as much of the segregated sys
tems as the courts will tolerate for as long as possible.
up to the level o f those of the Little Rock Board which the Eighth Cir
cuit rejected much less comport with the Guidelines.
The Clark court rejected a challenge to the Little Rock Free Choice
Plan based on the fact that the system had once allowed a delay in
desegregation to put a zone plan into effect and provisionally accepted
such a plan “ that accords with the H.E.W. guidelines and provides a
meaningful annual choice. . . . ” Appellees can find scant consolation in
such a holding. The Clark court approved, with one exception, exactly
what the Guidelines provide and what the panel in these cases decreed,
a plan whereby dual zones are abolished, choice is mandatory for all
students, where a request for reassignment must be granted save in one
circumstance, that of overcrowding, and where subsequent reassignment
must be based on residence, bjone of the plans before the court meet
these standards.
The only portion of the Clark holding which varies from free choice
as defined by the Guidelines is that which rejects the necessity of man
datory and annual free choice in Little Rock.
The critical passage in the Court’s opinion in Clark rejects a mandatory
annual free choice requirement as follows:
In the plan before us the students are required to choose before
entering the first, seventh and tenth grades. They are not, however,
“ locked” to their initial choice. They are afforded an annual right
to transfer schools if they so desire. The failure to exercise this
right does not result in the student being assigned to a school on the
basis of race. Rather, the student is assigned to the school he is
presently attending, by reason of a choice originally exercised solely
by the student. (Emphasis in original.)
Rehearing has been sought by plaintiffs on the ground, among others,
that facts overlooked by the court render the last sentence of the quoted
passage inaccurate.
In short, the court concluded that the annual voluntary “right” to
obtain transfer constitutes a suflicient desegregation plan because it per
mits Negro students to seek annual placement in a desegregated school
on similar terms to the mandatory free choice which takes place in the
first, seventh, and tenth grades, the only distinction between the two
being that in the first, seventh, and tenth grades all students choose
schools rather than only those seeking transfer. Because all transfer ap
plications must be granted, absent overcrowding, the court found that a
real, unencumbered and not illusory opportunity for admission to a deseg
regated school exists for those who desire it.
The plans before this Court do not clearly provide for even the absolute
right to transfer much less the free choice system operating in the 1st,
7th and 10th grades in Little Rock.
52
None of the plans directs itself to desegregation of faculty
and staff personnel. Bradley v. Board of Education, 382
U.S. 103.
None of the plans directs itself to the issue of location
and construction of new schools although there is no more
critical set of decisions affecting the practical impact of
assignment procedures in either changing or preserving the
segregated situations which the boards have created. We
have appended to this Brief a lengthy discussion of this
vital topic and related matters, in an excerpt from the re
cently published study by the U. S. Commission on Civil
Bights, B acial I solation in t h e S chools (1967). See Ap
pendix infra. This is an issue of transcendant importance
in the reform of segregated systems.
None of the plans directs itself to elimination of dis
crimination in extra-curricular activities, such as, athletic
events, meetings, special education programs and use of
fields, physical plants and other facilities.
None of the plans directs itself to elimination of tangible
inequalities in former Negro schools such as overcrowding,
high teacher and pupil classroom ratios, inadequate cur
riculum, and substandard buildings, although some of the
records before the court show dramatic discrepancies be
tween Negro and white schools and maintenance of un
equal facilities has been unconstitutional long before 1954.
Few if any of these school systems could even pass muster
in a scrupulous application of the discarded “ separate but
equal” doctrine.
None of the plans provides for more than “ a limited
public notice,” Clark v. School Board of the City of Little
Rock, 369 F.2d 661, 668, 669 (8th Cir. 1966), of publica
tion in a newspaper of general circulation in the community.
Given the long “ established pattern of attending segregated
53
public schools” and the “new and unfamiliar system” the
form of notice is of critical practical significance for “only
when the affected persons are aware of their rights can we
be assured that they are making independent and informed
choices.” {Ibid.) None of the plans provides for a simple
and straightforward explanation of the plan, and the rights
of school children and parents, to be delivered directly to
individual parents and children.
The restrictive nature of the plans is demonstrated by
the fact that with desegregation certain of these districts
have actually decreased the period of time in which stu
dents are able to request transfers. Such procedures are
not reasonably designed to facilitate change; they are de
signed to minimize change of the segregated status quo.
None of the plans provides for the desegregation of
transportation services although many of the records be
fore the court show operation of wasteful dual bus sys
tems functioning to perpetuate segregation.
None of the plans requires periodic progress reports to
the courts, although the continuing supervisory responsi
bility of the federal courts to insure racially nondiscrimina-
tory school systems emanates explicitly from Brown v.
Board of Education, 349 U.S. 294, 301 (1955). Plainly,
periodic reports are necessary for the courts to perform a
useful supervisory role in appraising the practical impact
of desegregation plans.
It seems to us that regardless of one’s view of the
H.E.W. Guidelines, or the relevance of northern school
cases, or the vitality of the Briggs v. Elliott dictum,28 the
plans under consideration must be held inadequate. They
are defective because they do not afford “ a racially non-
discriminatory school system,” Brown v. Board of Educa
28132 F. Supp. 776 (E.D. S.C. 1955); discussed below, note 35, infra.
54
tion, 349 U.S. 249, 301. A plan which does not address it
self to the facts of school system life in a considered and
businesslike way does not begin to discharge a board’s con
stitutional obligation.
II.
The Recent Decision of the Court of Appeals for
the Tenth Circuit Demonstrates the Soundness of the
Panel’s Opinion and Decree.
Subsequent to the decision of the panel, on December 29,
1966, the Court of Appeals for the Tenth Circuit con
sidered and decided kindred issues in Board of Education
of Oklahoma City v. Dowell, No. 8523, January 23, 1967.
We believe this case is of special significance to the consid
eration of these cases and merits detailed discussion.
After the Supreme Court’s 1955 decision in Brown v.
Board of Education, 349 U.S. 297, the Oklahoma City
School Board undertook to redraw school boundaries to
eliminate duality of zones based on race. At the same time
the hoard adopted a “minority-to-majority” racial transfer
policy which was maintained through 1963 when invali
dated under Goss v. Board of Education of Knoxville, 373
U.S. 683. The new zones generally conformed to racial
residential patterns, and residential segregation was cus
tomary and had been legally supported by statute and court
enforcement in Oklahoma City. In 1964, out of a total
Negro school population of 12,503 about 10,000 or 80% at
tended all-Negro schools.
The district court found that the board had “ failed to
desegregate the public schools in a manner so as to elimi
nate either the tangible elements of the segregated system,
or the violation of the constitutional rights of the plain
tiffs and the members of their class” Dowell v. Board of
55
Education of Oklahoma City, 244 F. Supp. 971, 976 (W.D.
Okla. 1965). As a remedy for the failure of the hoard to
take sufficient affirmative action to correct the effects of
segregation, the court ordered, after receiving the report
of a group of educational experts, a compensatory transfer
plan:
a “majority to minority” transfer policy which would
turn the old “minority to majority” policy inside out.
The “majority to minority” policy would permit an
elementary school pupil, if he were in a majority
group, to transfer to a school in which he was in a
minority. Thus if the attendance area for a school
was predominantly Negro (over 50%), Negro pupils
could transfer out. However, the Negro pupils could
transfer only to schools in which they would be in a
minority, i.e., white schools (over 50%).
(Compare this with a similar suggested policy in the
H.E.W. Guidelines, 1966, §181.33(b)).
School consolidation:
Each of the old districts now maintains a school in
cluding the seventh through the twelfth grades. Upon
consolidation, each of the two new districts would main
tain two schools in the existing facilities, one for the
seventh through the ninth grades and the other for
the tenth through the twelfth grades. The combina
tion of Harding and Northeast would produce a racial
composition of 91% white and 9% non-white; the com
bination of Classen and Central would produce a racial
composition of 85% white and 15% non-white. The
present racial compositions in the four schools are:
Harding 100% white, Northeast 78% white, Classen
100% white and Central 69% white.
56
Faculty desegregation:
Desegregation of all faculty personnel, i.e., central
administration, certified nonteaching and teaching per
sonnel, so that by 1970, the ratio of whites to non
whites assigned in each school of the defendants’ sys
tem will he the same, with reasonable leeway of ap
proximately 10%, as the ratio of whites to non-whites
in the whole number of certificated personnel in the
Oklahoma City Public Schools.
Faculty workshops:
In-service education of faculty including (1) City-wide
workshops devoted to school integration, (2) special
seminars.
The Court of Appeals affirmed, Board of Education of
Oklahoma City v. Dowell, No. 8523, 10th Cir., Jan. 23,
1967.29 The court approved the “majority-to-minority”
transfer plan because it “would enable any Negro student
in the system who so desires to enjoy the desegregated
education to which he has long been entitled and yet of
which he has been inexcusably deprived. In view of the
long wait the Negro students in Oklahoma City have been
forced to endure after their rights had been judicially es
tablished we think that requiring the new transfer plan
was within the court’s power to eliminate racial segrega
tion.” 30
29 The district court decree was modified to exclude in-service work
shops, seminars and clinics from the plan, the court being o f the opinion
“ such a program may very well be a desirable and worthwhile effort but
we are unable to say that compelling such action is necessary for the
elimination of the unconstitutional evils sought to be corrected by the
decree” (Typewritten opinion, p. 25). The school board’s rehearing
petition is now pending.
30 Typewritten opinion p. 25.
57
In support of the definite faculty desegregation standards
of the decree the court found “the existing situation re
flects racial discrimination in the assignment of teachers
and other personnel. The order to desegregate faculty is
certainly a necessary initial step in the effort to cure the
evil of racial segregation in the school system.” 31
In support of the consolidation of school districts the
court stated: “ It is obvious this part of the plan would
result in a broader attendance base and in a better racial
distribution of pupils.” 32
The court concluded:
It must be conceded Oklahoma City not unlike many
other similarly situated localities has a problem and
that problem must be faced up to. Delays and evasive
ness will not aid in its solution. This Court certainly
cannot say the methods of solution proposed by the
panel of experts and embraced by the decree are the
only and the best ones. It may very well be necessary
for the board to inaugurate new and additional pro
cedures to overcome the unconstitutional evil of racial
discrimination.33
The Oklahoma School Board made most of the substan
tive legal arguments made by appellees here. They were
all rejected. The Tenth Circuit found that language in
northern school cases where there was no legal segrega
tion about there being no duty to remedy racial imbalance
is clearly inapplicable to a southern school system which
brought about segregation and inherent inequality of
schools by state action. The Briggs v. Elliott, 132 F. Supp.
776 (E.D. S.C. 1955) dictum was rejected and the court
31 Id. at p. 22.
32 Hid.
33 Typewritten opinion p. 25.
58
found that a plan which promotes or gives rise to con
tinued segregation or token desegregation is not good faith
compliance with a board’s constitutional duty under Brown
v. Board of Education, 347 U.S. 483. Although the Okla
homa City school system had a far greater degree of
desegregation than any of the systems before this Court,
the district court’s plan was affirmed because the system
was not reorganized in such a way as to disestablish the
segregated system and to maximize the degree of desegre
gation.
Both the reasoning and language of Dowell undisputedly
stand for the proposition that a school board which has
operated as a legally compelled segregated school system
is under a duty to reorganize that school system in such
a way as to maximize the degree of desegregation.
III.
The Adequacy of Freedom of Choice Plans Must Be
Determined in the Context of Particular Cases.
The decree prepared by the panel of this Court and
appended to the December 29, 1966, opinion in these cases
orders school boards to implement free choice desegrega
tion plans, which are designed with specific safeguards.
However, the court has stated that free choice plans may
have inherent shortcomings and that in some circumstances
they may be invalid. Thus, the decree “ contemplates . . .
continuing judicial evaluation of compliance by measuring
the performance . . . of school boards in carrying out their
constitutional obligation ‘to disestablish dual, racially segre
gated school systems and to achieve substantial integra
tion within such systems.’ ” (Slip opinion, p. 115.)
59
We urge that the entire Court adopt this view. The
adequacy of free choice, or any other method of desegrega
tion, must be appraised in terms of its practical conse
quences and practical impact on the segregated systems
established by the states. They must also be appraised in
the light of other reasonably available alternative methods
of reforming segregated systems into nondiscriminatory
systems. Such plans must not be judged merely as ab
stract documents as if they were facially valid and pre
sumptively valid laws. School boards bear the burden of
showing that their plans are reasonably designed to re
form school systems which are in fact segregated as the
result of unconstitutional laws and practices. The probable
and actual effects of such plans must be considered if the
courts are to exercise the requisite “ practical flexibility in
shaping . . . remedies.” Brown v. Board of Education, 349
U.S. 294, 300. Desegregation plans must be viewed against
the educational and social background which prevails in
the communities. Actual experience and performance are
the relevant guides in appraising their adequacy.
The majority opinion of the panel has pointed out various
problems presented by free choice plans. We direct the
Court’s attention specifically to the material in the Court’s
footnote 110, slip opinion, p. 98; we set out verbatim in
the note below the U. S. Civil Rights Commission appraisal
of freedom of choice plans in operation.34 We add a few
34 The Court’s footnote reads as follows:
Eep. U. S. Comm, on Civil Rights, Survey of School Desegregation
in the Southern and Border States—1965-66, p. 51. “ Freedom of
choice plans accepted by the Office of Education have not disestab
lished the dual and racially segregated school systems involved, for
the following reasons: a. Negro and white schools have tended to
retain their racial identity; b. White students rarely elect to attend
Negro schools; c. Some Negro students are reluctant to sever normal
school ties, made stronger by the racial identification o f their schools;
d. Many Negro children and parents in Southern States, having lived
60
observations of onr own. Free choice plans in effect per
mit private individuals to perpetuate a substantially segre
gated school system by direct physical or economic coer
cion, or by subtly and indirectly expressed hostility which
may be equally effective. The states having created a segre
gationist momentum through compulsive laws, suddenly ab
dicate their traditional responsibility for assigning pupils
to schools. The pattern has become familiar in race rela
tions litigation. When official discrimination is outlawed,
the old practices are sought continued by so-called private
arrangements. Similar “hands off” policies by the states
in favor of private control were attempted in efforts to
preserve the white primaries. Nixon v. Herndon, 273 U.S.
536; Nixon v. Condon, 286 U.S. 73; Smith v. Allwright, 321
U.S. 649; Elmore v. Rice, 72 F. Supp. 516 (E.D. S.C. 1947),
affirmed, Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert,
den. 333 U.S. 875; Baskin v. Brown, 174 F.2d 391 (4th Cir.
1949). Note the comparable development with housing dis
crimination, from racial zoning laws, Buchanan v. Warley,
245 U.S. 60, to restrictive covenants, Shelley v. Kraemer,
334 U.S. 1; Barrows v. Jackson, 346 U.S. 249. Such efforts
reached an apogee of absurdity when the public cafeteria
in the Arkansas State Capitol building was suddenly con
verted to a white-only “private club” a few days after the
Civil Rights Act of 1964 was enacted. Sutton v. Capitol Club,
Inc., No. LR-64-C-124, W.D. Ark., April 12, 1965, 10 Race
Rel. L. Rep. 791.
for decades in positions of subservience, are reluctant to assert their
rights; e. Negro children and parents in Southern States frequently
will not choose a formerly all-white school because they fear retalia
tion and hostility from the white community; f. In some school dis
tricts in the South, school officials have failed to prevent or punish
harassment by white children of Negro children who have elected to
attend white schools; g. In some areas in the South where Negroes
have elected to attend formerly all-white schools, the Negro com
munity has been subjected to retaliatory violence, evictions, loss of
jobs, and other forms of intimidation.”
61
Free choice plans are often profoundly influenced in op
eration by the coercive and influential effects of various
state-established traditions of segregation which identify
schools by race, including faculty assignments, tangibly
inferior sites,'and-facilities and similar factors. The very
fact that the states have thought it important to segregate
faculties communicates to parents and pupils the idea that
the race of a school’s faculty should be considered in mak
ing choices. Cf. Anderson v. Martin, 375 U.S. 399. The
multitude of forces and practical limitations imposed by
generations of active planning to create a segregated sys
tem, include the location of schools, the arrangement of
classes and grades in the schools, and the planning of the
sizes of schools conveniently to accommodate one race.
This segregated planning frequently makes segregation so
convenient and desegregation so difficult that little reform
can be expected by offering choices. Free choice plans
sometimes give priorities among students based upon proxi
mity to schools if schools become crowded. Therefore, free
choice offers no promise of change in communities where
crowded schools were planned to accommodate segregated
neighborhood patterns. And, of course, governmental ac
tion has been profoundly influential in creating segregated
housing patterns throughout the nation. Report of U.S.
Commission on Civil Rights, R acial I solation in th e P ub
lic S chools (1967), pp. 21-22, 254-259. The Commission
points out that Bessemer, for example, until recent years
had racial residential zoning laws, notwithstanding that
such laws were invalidated by the Supreme Court early in
the century. Buchanan v. Warley, 245 U.S. 60. In Jimerson
v. City of Bessemer, Civil No. 10054, N.D. Ala., Aug. 3,
1962, the district court noted that Bessemer had repealed
its racial zoning ordinance “ several years ago.” And cf.
City of Birmingham v. Monk, 185 F.2d 859 (5th Cir. 1950),
62
cert, denied 341 U.S. 940, involving a racial zoning law.
And see, Dowell v. School Board of Oklahoma City, 244
F, Supp. 971, 975-976 (W.D. Okla. 1965), affirmed No.
8523, 10th Cir., Jan. 23, 1967.
The factors which may make a free choice plan ineffec
tive include the unavailability of transportation. Bus routes
may trace the boundaries of the theoretically abolished
dual school system. School boards may refuse to furnish
transportation to attend desegregated schools. Free choice
may be restricted by the school authorities’ determinations
of what constitutes overcrowding. Free choice plans may
be inconsistent with the school authorities’ duty to equalize
the opportunities of children in schools by not countenanc
ing tangible inequalities or some schools standing half
empty while others nearby are on double shifts. A respon
sible school board, not intent on accommodating racial
segregation, would assign students in such situations to
equalize the use of facilities. The free choice plans make
no such adjustments. Such inefficiencies and inequalities
were common to the dual systems and the free choice plans
continue to tolerate them.
We agree with the majority of the panel that the school
boards owe a duty to “ disestablish segregated systems,”
to “desegregate,” and to “ integrate” the schools. We sug
gest that the school board arguments about this terminology
—the arguments that “ there is no duty to integrate”—
all stem from their scarcely concealed desire to do as little
as possible to change the status quo. We believe the ma
jority of the panel has fully and adequately treated this
subject and the dictum in Briggs v. Elliott, 132 F. Supp.
776 (E.D. S.C. 1955). We add only a historical footnote
about Briggs and the historic Clarendon County litigation.
The footnote shows among other things that at least in
63
Clarendon County, S. C. the Briggs dictum has no con
tinuing vitality in the law.35
35 A chronological recapitulation of the Clarendon County, S. C., liti
gation may give added perspective to the Briggs dictum. The first opinion
in the ease, Briggs v. Elliott, 98 F. Supp. 529 (E.D. S.C. 1951), held
that South Carolina’s school segregation laws were valid and that “ federal
courts are powerless to interfere” with segregation of the races in public
schools (98 F. Supp. at 532). The majority opinion by Circuit Court
Judge Parker, joined by Judge Timmerman, said that “ it is a late day
to say that such segregation is violative o f fundamental constitutional
rights” (98 F. Supp. at 537). The majority did find that the Clarendon
schools for Negroes were not equal, and issued an injunction requiring
the board to equalize educational facilities. District Judge Waring dis
sented arguing that segregation in public education violated the Four
teenth Amendment (98 F. Supp. at 538-548). The plaintiffs appealed to
the Supreme Court which vacated the judgment to obtain the trial court’s
views on progress made in the equalization program. Briggs v. Elliott,
342 U.S. 350. On remand, the district court again refused an injunction
against segregation. Briggs v. Elliott, 103 F. Supp. 920 (E.D. S.C.
1952). (Circuit Judge Dobie replaced Judge Waring on the panel when
the latter retired.) Plaintiffs’ second appeal, consolidated with other
cases, resulted in the decisions in Brown v. Board of Education, 347 U.S.
483; 349 U.S. 294.
The Briggs opinion, reported in 132 F. Supp. 776 (E.D. S.C. 1955),
was announced July 15, 1955. A transcript o f the proceedings on that
day is published in Southern School News, Col. II, No. 2, August 1955,
pp. 6-9. The court convened to issue an order in accordance with the
mandate in Brown. When the court opened, Judge Parker read the
opinion reported in 132 F. Supp. 776. Having rendered the opinion, the
court then invited counsel to submit their proposals for the decree on
the mandate. The school board submitted a petition for delay and sought
permission to run the schools on a segregated basis during 1955-56. An
argument on the time for desegregation ensued. This was the only issue
discussed, there being no desegregation plan before the court, and no
issue before the court about the adequacy of any particular method of
desegregation. Finally, the court entered a general decree restraining the
board from refusing on account of race to admit children to schools “ from
and after such time as they have made the necessary arrangements for
admission . . . on a nondiscriminatory basis with all deliberate speed. . . .
Segregation continued in the county schools for another decade. When
some o f the original plaintiffs and other Negroes brought another suit
against the county system a district judge, relying on the Briggs dictum,
dismissed their suit. Brunson v. Board o f Trustees of School Dist. No. 1,
30 F.R.D. 369 (E.D. S.C. 1962). The Court of Appeals reversed, ignor
ing the arguments based on the Briggs dictum. Brunson v. Board of
64
IV.
The Adoption of a Uniform Decree Is Essential.
In Brotm v. Board of Education, 349 U.S. 294, the Su-.
preme Court recognized the right of Negro plaintiffs to:
. [AJdmission to public schools as soon as prac
ticable on a non-discriminatory basis. To effectuate
this interest may call for elimination of a variety of
obstacles in making the transition to school systems
operated in accordance with the constitutional princi
ples set forth in our May 17, 1954 decision.” 349 U.S.
at 300 (emphasis supplied).
A school generation has past since Brown II was de
cided. The fact situations raised in these appeals, in com
mon with fact situations commonly confronted by this
Court, dramatically represent the “variety of obstacles”
which have effectively perpetuated racially segregated
schools. These “ obstacles” include: pupil assignments based
upon race; inadequate notice; construction programs de
signed to perpetuate segregation; segregation of facilities,
activities and programs; segregated transportation; and,
segregated teaching and administrative staffs. The whole
sale failure of the school boards to assume and forth-
Trustees, 311 F.2d 107 (4th Cir. 1962). A decade after Brown, the dis
trict court ordered the county white schools to admit Negro plaintiffs,
and required a desegregation plan. Brunson v. Trustees of School Dist.
No. 1, 244 F. Supp. 859 (E.D. S.C. 1965).
Meanwhile, other litigation was commenced against a school jurisdiction
within Clarendon County in August 1965. The District Court enjoined
segregation and directed the school board to submit a desegregation plan,
suggesting that the board follow the 1966 H EW Guidelines. Miller v.
School District No. 2, Clarendon County, S. C., 253 F. Supp. 552 (D.
S.C. 1966). A subsequent opinion invalidated the school board’s first
proposals. Miller v. School District, etc., 256 F. Supp. 370 (D. S.C.
1966). The litigation continues.
65
rightly carry out the task of eliminating racial segrega
tion within their school districts left Negro plaintiffs no
alternative hut litigation. This litigation should not have
been necessary. Once commenced it should not be endless.
At a minimum district courts, school authorities, and the
tens of thousands of Negroes represented by plaintiffs in
school desegregation litigation throughout this Circuit are
entitled to a clear statement of the essential features which
every plan must encompass to remove the “ obstacles” to
enjoyment of the right to an equal and desegregated ed
ucation guaranteed Negro students by the Fourteenth
Amendment— “ obstacles” which the Supreme Court recog
nized must be destroyed twelve years ago.
The panel adopted a uniform decree to be entered by
the district courts. The provisions of the decree are in
tended, at least transitionally, to apply uniformly through
out this circuit in cases86 involving plans based upon free
dom of choice absent exceptional circumstances which com
pel modification. “The substantive requirements of the
decree derive from the Fourteenth Amendment as inter
preted by decisions of the Supreme Court and of this
Court, in many instances before the HEW Guidelines were
published. For administrative details, we have looked to
the Office of Education.” (Slip Opinion, p. 112.) Appel
lants support the application of these minimum standards
because without them orderly progress of court ordered
school desegregation on a broad scale is impossible, fur
ther denial of Negro students rights is inevitable and
countless district and circuit court proceedings are fore-
& 128 school desegregation cases were docketed at the time the briefs
were filed with this Court prior to the May 24, 1966 hearing. Volume I,
Appendix to Briefs of the United States.
66
ordained37—to consider administrative minutiae—unless a
uniform decree is entered by this Court.
The finding of the panel that “case by case development
of the law is a poor sort of medium for reasonably prompt
and uniform desegregation” is undisputable.38 (Slip Opin
ion, p. 23.) A comprehensive and uniform decree, there
fore, will provide invaluable assistance to district courts
in fulfilling their responsibility to require the reorganiza
37 Note the frequency o f appeals of school desegregation orders in this
circuit:
Number o f cases with one or more appeals 42
Number of cases with two or more appeals 21
Number of cases with three or more appeals 8
Number of cases with four or more appeals 4
Number o f cases with five or more appeals 2
(Volume I, Appendix to Briefs of the United States, in these cases.)
38 This conclusion is supported by the statement o f this Court in Davis
v. Board of School Commissioners of Mobile County, 364 F.2d 896, 898
(5th Cir. 1966) :
This is the Fourth appearance o f this case before this court. This
present appeal, coming as it does from an order of the trial court
entered nearly eighteen months ago, on March 31, 1965, points up,
among other things, the utter impracticability of a continued exer
cise by the courts of the responsibility for supervising the manner
in which segregated school systems break out of the policy o f com
plete segregation into gradual steps of compliance and towards com
plete compliance with the constitutional requirements o f Brown v.
Board of Education, 347 U.S. 483. One of the reasons for the im
practicability of this method o f overseeing the transitional stages of
operations o f the school boards involved is that, under the Supreme
Court’s “ deliberate speed” provisions, it has been the duty of the
appellate courts to interpret and reinterpret this language as time
has grown apace, it now being the twelfth school year since the
Supreme Court’s decision. Another is that appellate court require
ments have grown more exacting as time has passed, and during
the last eighteen months pronouncements of this court have inter
preted the Supreme Court’s interim decisions as requiring consider
ably greater measures of desegregation. Thus a decision by a trial
court eighteen months ago is not likely to reflect the current law on
the subject.
67
tion of segregated school systems under Brown. Such a
decree as adopted by the panel provides a distillation of
the experience with desegregation of the courts, the Ex
ecutive branch, educators and administrators. As recog
nized by this Court in the past, failure to adopt such a
decree will encourage litigation by recalcitrant school
boards. “ I f judicial standards are lower than H.E.W.
standards, recalcitrant school boards in effect will receive
a premium for recalcitrance; the more the intransigence,
the bigger the bonus.” 39 Uniformity avoids totally different
rates of desegregation in communities with identical tradi
tions and provides Negroes with a definite understanding of
what they can expect and district courts with what they
must require from school authorities. It insures that de
segregation plans will encompass the minimum range of
administrative and planning functions which must be re
organized if the unlawful segregated system is to be dis
established. The right to show that certain of the uniform
provisions are not locally appropriate was properly re
served to school boards.
Appellees make elaborate arguments in support of the
claim that it was inappropriate for the panel to follow the
H.E.W. Guidelines. These arguments are founded on the
claimed unconstitutionality of the Guidelines and the claim
that the Guidelines do not comport with the 1964 Civil
Rights Act. These arguments are for the most part irrele
vant. The Guidelines provide nothing more or less than ad
ministrative procedures designed to accomplish the un
disputed obligation of this Court—namely, the destruction
of “ obstacles” to Negro pupils’ enjoyment of their right to
39 Singleton v. Jackson Municipal Separate School District, et al., 348
F.2d 729, 731 (1965).
6 8
an equal and desegregated education. The 1964 Civil Rights
Act, in terms, clearly does not limit or otherwise effect
the judicial obligation to protect these constitutional rights:
“Nothing in this Title should effect adversely the right of
any person to sue for or obtain relief in any court against
discrimination in public education.” Civil Rights Act of
1964, section 409. The majority opinion of the panel is
persuasive in explaining the propriety of reliance upon
the educational expertise which the Guidelines reflect. In
adapting techniques and procedures from the Guidelines
to a judicial decree the panel exercised “ practical flexibility
in shaping . . . remedies.” Brown v. Board of Education,
349 U.S. 294, 300.
69
CONCLUSION
Wherefore, intervenors and appellants pray that the
judgments of the courts below be reversed for the reasons
set forth in the December 29, 1966, opinion of this Court
and that decrees be entered in accordance with that opinion.
Respectfully submitted,
J ack G reenberg
J am es M . N abrit , I I I
M ich ael M eltsner
H e n r y A ronson
N orm an C. A m aker
C harles H . J ones, J r .
10 Columbus Circle
New York, New York
Oscar W. A dams, J r .
1630 Fourth Avenue North
Birmingham, Alabama
D em etriu s C. N ew ton
408 North 17th Street
Birmingham, Alabama
D avid H . H ood
2001 Carolina Avenue
Bessemer, Alabama
J esse N. S tone , J r .
854% Texas Avenue
Shreveport, Louisiana
A. P. T ureaud
1821 Orleans Avenue
New Orleans, Louisiana
J o nnie A. J ones
530 South 13th Street
Baton Rouge, Louisiana
Attorneys for Intervenors and Appellants
70
Certificate of Service
This is to certify that a copy of the foregoing brief has
been served on each of the attorneys for appellees and the
United States, as listed below, by being deposited in the
United States mail, air mail, postage prepaid, on this 4th
day of March, 1967:
Hon. John A. Richardson
District Attorney
1st Judicial District
Caddo Parish Courthouse
Shreveport, Louisiana
Hon. William P. Schuler
Assistant Attorney General
201 Trist Building
Arabi, Louisiana
Mr. J. Bennett Johnston, Jr.
930 Giddens Lane Building
Shreveport, Louisiana
Mr. Macon Weaver
United States Attorney
Federal Building
Birmingham, Alabama
Mr. Maurice F. Bishop
Bishop & Carlton
325-29 Frank Nelson Building
Birmingham, Alabama
Mr. Reid B. Barnes
Mr. W ill J. Somerville
Lange, Simpson, Robinson &
Somerville
317 North 20th Street
Birmingham, Alabama
Hon. Jack P. F. Gremillion
Attorney General
State Capitol
Baton Rouge, Louisiana
Mr. Edward L. Shaheen
United States Attorney
Federal Building
Shreveport, Louisiana
Mr. J. Howard McEniry
MeEniry, McEniry & McEniry
1721 4th Avenue North
Bessemer, Alabama
Hon. Louis H. Padgett, Jr.
District Attorney
Bossier Bank Building
Bossier City, Louisiana
Hon. John Doar
Mr. St. John Barrett
Mr. David Norman
Department o f Justice
Washington, D. C. 20530
Mr. George F. Wood
510 Van Antwerp Building
Mobile, Alabama
Mr. Franklin H. Pierce
Southern Finance Building
Augusta, Georgia
Mr. John F. Ward
Burton, Roberts and Ward
206 Louisiana Avenue
Baton Rouge, Louisiana
Mr. John Satterfield
Masonic Building
Yazoo City, Mississippi
also
552 First National Bank Bldg.
Jaekson, Mississippi 39205
Mr. William H. Baker
Post Office Drawer E
Jonesboro, Louisiana
71
Mr. Alvin J. Bronstein
603 North Farish Street
Jackson, Mississippi
Mr. Robert F. Collins
2211 Dryades Street
New Orleans, Louisiana
Mr. Harry Kron
Assistant Attorney General
State Capitol Building
Baton Rouge, Louisiana
Mr. Harold B. Judell
Suite 2312
225 Baronne Street
New Orleans, Louisiana
Hon. Albin P. Lassiter
District Attorney
Courthouse
Monroe, Louisiana
Mr. William F. Pipes, Jr.
Post Office Box 1184
Monroe, Louisiana
Mr. Fred L. Jackson
416 East Main Street
Homer, Louisiana
Mr. Carl Rachlin
150 Nassau Street
New York, New York 10038
Mr. Stanley E. Tolliver
8811 Quincy Avenue
Cleveland, Ohio
Hon. Ralph Moody
Deputy Attorney General
State Capitol
Raleigh, North Carolina
Mr. J. Robertshaw
P. 0. Drawer 99
Greenville, Mississippi 38702
Attorney for Intervenors and Appellants
APPENDIX
la
A P P E N D IX A
Excerpts From Racial Isolation in the Public Schools
(U.S. Comm, on Civil Rights, Vol. I, pp. 39, 59-71).
Educational Policies and Practices
Although residential patterns and nonpublic school enrollment in the
Nation’s cities are key factors underlying racial concentrations in city
schools, the policies and practices of school systems also have an
impact. These policies and practices are seldom neutral in effect. They
either reduce or reinforce racial concentrations in the schools.
Underlying all policy and practice is the method that the school
system uses in determining which children particular schools shall serve.
While there are exceptions and variations, the method most commonly
used in city school systems is that of geographical attendance zoning.
* * #
Southern and Border State Schools
School segregation in the Southern and border States was sanctioned
by law until the 1954 Brown decision. As the elements of legal compul
sion have been removed, the causes of racial isolation in Southern and
border city schools have become more complex. Today it is attributable
to remnants of the dual school system, methods of student assignment,
residential segregation, and to those discretionary decisions familiar in
the North— site selection, school construction, transfers, and the deter
mination of where to place students in the event of overcrowding.
59
Geographical Considerations
Residential Segregation.— After the Brown decision, two main ap
proaches to school desegregation were taken in Southern and border
cities. The first was to convert the dual attendance zones, drawn accord
ing to race and sometimes overlapping, into single attendance zones
without regard to race. Ostensibly, student assignment would then de
pend only on proximity and convenience. The second was to allow
students some freedom of choice in their assignment. Common to the
many variations of the free choice approach is the principle that if more
students choose a given school than it can accommodate, first priority
will be given those students living in the school’s immediate area.
In all approaches to desegregation in Southern and border cities, then,
residence is an important factor in determining school attendance. Since
residential segregation generally is as intense in Southern and border
cities as in Northern cities,151 the racial composition of Southern and
border city schools substantially reflects the pattern of residential
segregation.
St. Louis is a case in point. There, the school administrators volun
tarily complied with the Brown decision in 1954 by converting from dual
to single attendance school zones over a two-year period.15* The new at
tendance zones were established after carefully counting public school
children on a block-by-block basis without regard to race.153 Residential
segregation was extensive, however,154 and relatively few boundary
changes were made in converting from dual to single attendance zones.155
M ost of the all-Negro school remained unchanged.15® By 1965, 91 per-
“ See Taeuber and Taeuber, supra, note 49, 37. The mean residential segregation
index for Southern cities is 90.9 for 1960, compared to 83.0 for cities of the North and
West. The index for Cleveland is 91.3; for Nashville, 91.7. The index for Gary is
92.8; for Memphis, 92.0; the index for Tulsa is 86.3; for Buffalo, 86.5 Id. at 39-40.
“ St. Louis Study 35 (1966).
“ * Valien, The St. Louis Story, A Study of Desegregation, 27-28 (1956); St.
Louis Study at 6.
“ * In 1960, the index of residential segregation in St. Louis was 90.5. Taeuber and
Taeuber, supra, note 49, at 33.
** According to a statement by the Superintendent of Schools, Dr. Philip G. Hickey,
quoted on Sept. 4, 1955, in the St. Louis Post Dispatch, 62 out of 119 elementary
school boundaries were changed in the conversion from a dual to a geographical zon
ing plan. An examination of the elementary school boundary lines in 1954-55, before
desegregation, and in 1955-56, after redistricting, shows that there were very few
changes in the formerly “ white” districts. The “Negro” districts which reached out to
cover the few Negroes living in the south and southeast were cut back to the Negro
area. St. Louis Study, based on boundaries specified in the minutes of the Board of
Education of St. Louis, 1954-55 and 1955-56.
For high schools, see Valien, supra, note 153, at 38. The St. Louis Public School
Department estimated in September, 1956, that 37 formerly all-white elementary
schools would have Negro children in attendance and 13 formerly all-Negro elementary
schools would have white pupils on their rolls. Thus, 73 of the 123 elementary
schools would not be affected at all. See St. Louis Public Schools, Desegregation of
St. Louis Public Schools, 45-47 (1956).
60
3a
tent of the Negro elementary school children attended schools that were
nearly all-Negro.157
Again in Memphis the new single attendance zones developed by the
school board resulted in less than 1 percent of the student body attend
ing school with children of the opposite race. In a suit brought against
the school system, it was charged that school boundaries had been gerry
mandered to perpetuate segregation.158 An expert witness for the Negro
plaintiffs showed how the boundaries could be redrawn based purely on
nonracial considerations. Under this system of neutral boundaries, ap
proximately 1,300 more children would have attended schools, formerly
serving the opposite race. Yet this still would have amounted to only
slightly more than 1 percent of the total school enrollment.150 Thus
even if neutral boundaries had been drawn for Memphis, the extent
of school desegregation would have been minimal because of the severe
residential segregation in the city.
Residential patterns, however, important as they are, do not invari
ably determine the racial composition of Southern and border city
schools. Under any system of student assignment in which place of
residence plays an important role, school boards and administrators
have discretionary powers that can intensify or reduce segregation.
Their decisions often have served to reinforce and perpetuate racial
isolation.
Site Selection.— As noted in the discussion of Northern schools, the
location of new schools has a marked effect on patterns of isolation.
Whether a school system uses geographical zoning, free choice, or a varia
tion on these methods of assignment, a key determinant of the student
racial composition is the location of the school.
At the time of the Brown decision, Southern educators were aware
that the location of schools was an important factor in maintaining
segregated school attendance patterns.100 A story in a Memphis, Tenn.,
newspaper on May 18, 1954, is illustrative:
Ruling Fails To Shock City: Officials See Little Difficulty
School authorities in Memphis yesterday evidenced no surprise
at the [Brown] decision. . . . Mr. Milton Bowers, Sr., President
IBT St. Louis Study, at P-1 and P-2. “ Racial Distribution of Pupils, St. Louis
Elementary and Secondary Schools,” based on St. Louis Public Schools Instruction
Department, The Status of Integration in the St. Louis Public Schools During the
1965-66 School Year; A Factual Report to the Board of Education, November, 1965,
and also the first supplement to that report dated October 1966.
a See Northcross v. Board of Education (Memphis), 333 F. 2d 661 (6th Cir. 1964).
I=* Testimony of Floyd L. Bass, transcript, vol. I l l , pp. 427, 462, and E. C. Stimbert,
Superintendent of Schools, transcript, vol. II, p. 236, Northcross v. Board of Educa
tion (Memphis), supra, note 158. The total school enrollment was 105,637.
"“ See Southern School News, January 1955, p. 3. The Chairman of the State
Footnote continued on following page.
61
4a
o f the Memphis Board of Education, said, “ W e have been expect
ing this to happen a long while. . . . W e believe our Negroes
will continue using their own school facilities since most o f them
are located in the center of Negro population areas. . . . [Negro
schools are] fully equal to and in some instances better [than white
schools]. W e are very optimistic about this [ruling].” 181
Throughout the 1950’s, Southern cities made considerable investments
in new school facilities. In Houston, almost every school constructed
after 1955 was located in racially homogeneous residential areas. O f the
56 Negro schools in Houston in 1965, for example, 49 were newly built
or enlarged in Negro residential areas after 1955.162 One Negro enclave,
entirely surrounded by white residential areas, had only five elementary
schools in 1955. Instead of enlarging the capacity of schools ringing
the Negro area to serve both Negro and white children, the system ac
commodated the growing Negro enrollment within the Negro area. By
1965, the five Negro elementary schools had been enlarged and three
more elementary schools had been built within the Negro area. They
remained all-Negro. Five of the seven white schools outside the Negro
area were nearly all-white in 1965.163 More school construction is
Board of Education of Arkansas is quoted: “ The only hope the schools have of main
taining segregation . . . (is to make Negro schools so attractive that) the Negroes
will not demand integration. . . . However, if the districts build adequate facilities
now, in most instances the new buildings will be located in Negro districts.” Seexalso
Miss. Code Ann., tit. 24, secs. 6216-01 to 6672 (Supp. 1962) calling for equalizing
Negro schools and reorganization of school systems throughout the State. The intent
of the equalization program reportedly was to prevent desegregation. Aside from
building new Negro schools, the program called for “ relocation of many white schools
according to student residences.” Southern School News, February 1957, 13. See
also, Atlanta Constitution, May 19, 1954, p. 6 : “ Reports from over the South indicated
some areas may try to escape the impact of the antisegregation decree by ‘zoning’
schools in natural population patterns. . . .” See also Pierce et al., White and Negro
Schools in the South at 297 (1955), where it was predicted that Southern schools
would use districting powers to perpetuate segregation.
Memphis Commercial Appeal, May 18, 1954, p. 1.
1,3 Defendant’s exhibit No. 3 and plaintiffs exhibit No. 2, Broussard v. Houston
Independent School District, C.A. 66-H -445, S.D. Tex., June 7, 1966. See also
U.S. Commission on Civil Rights, Civil Rights, U.S.A., Public Schools, Southern
States 1963, Texas, 35-38. The Board first considered desegregation in 1955 and
made it clear that it was postponing action until schools could be built to minimize
the impact: “ If the bond issue is submitted and approved by the voters and a con
struction program is carried out so as to give every section of the city reasonably
equal and adequate school facilities and a liberal policy of transfer is continued so that
no Negro student will be compelled to attend against his will a school predominantly
white in student body and teaching staff, and no white child will be compelled against
his will to attend a school predominantly Negro in student body and teaching staff,
it is our opinion that such a course will be approved by the overwhelming majority
of our peoDle, both white and Negro, and our problems with reference to desegre
gation will largely be resolved.” Id. at 37-38.
Plaintiff’ s exhibit No. 2 and defendant’s exhibit No. 3, Broussard v. Houston
Independent School District, supra note 162. The new Negro schools were, Black-
shear (which also received an addition), 100 percent Negro in 1965, and Lockhart,
100 percent Negro in 1965. Negro schools receiving additions only were: Dodson
Footnote continued on following page.
62
planned under a 1965 bond issue, and the Houston school superintendent
has identified 16 of the 50 new projects as “for predominantly Negro
schools.” 164
The pattern is similar in Adanta. Since 1954, classroom space has
for the most part been added in areas of high Negro concentration and
schools have been constructed for white children in areas where few
Negroes lived. Four high schools which opened in 1960, for example,
were located almost at the city limits in virtually all-white areas.160 Dur
ing the current school year, two of the schools are 96 percent white; the
other two are 100 percent white.166 Adanta’s proposed. 1966 school build
ing program continues to emphasize construction in racially homogeneous
residential areas. Three new elementary schools, two high schools, and
additions to an elementary and two high schools are planned for Negro
residential areas. There also are plans to purchase additional land for the
expansion of one of the white high schools on the fringe of the city.16.
This pattern is common throughout the South. As Table 10 shows,
the great majority of Southern and border State elementary schools built
5a
(2 additions), Douglass (1 addition), J. W. Jones (1 addition), Dunbar (1 addition)
and Turner (1 addition)— all 100 percent Negro in 1965. One new white school,
Rusk (newly constructed in 1960), was 99 percent white in 1965. Montrose, Fannin,
Lubbock, and Lantrip, existing white schools ringing the ghetto, were 99—100 percent
white in 1965. Two other formerly all-white schools outside the ghetto, MacGregor
and Southland, were 58 percent Negro and 32 percent Negro in 1965.
1M Testimony of Dr. Glenn Fletcher, Acting Superintendent, Record, vol. II, p. 256,
Broussard v. Houston Independent School District, C.A. supra note 162. Plaintiffs
in this case (still in progress at this writing) are seeking to enjoin the system from
constructing further schools in segregated residential areas. Brief for plaintiff, pp.
9-10, Broussard v. Houston Independent School District. Defendants base their argu
ment on the educational desirability of neighborhood schools and the absence of legal
requirement to take positive steps to achieve racial balance in the schools. Record,
vol. V , p. 1173, Broussard v. Houston Independent School District. The pattern of
placing new schools in racially homogeneous areas is maintained in the school system’s
plans for a building program to meet the anticipated growth in enrollment by 1970.
For the racial composition of each new school facility constructed since 1954, see
Clark College, Race and Education in Atlanta, a study prepared for the U.S. Com
mission on Civil Rights [hereinafter cited as Atlanta Study] 100—109. The four
white high schools referred to in the text are Therrell, Dykes, East Atlanta, and
George. (Id. at 29.) For a map of Negro residential areas in Atlanta, see Atlanta
Study, overlays based on Atlanta Region Metropolitan Planning Commission, “ Popu
lation and Housing” (1965).
Information concerning the racial composition of Atlanta public schools as of
September 1966 was obtained by the Commission staff from John W. Haldeman of
the office of the Superintendent of Schools of Atlanta, by telephone interview on
Nov. 4, 1966.
” ” Atlanta Study at 98. See also the Atlanta school board’s Proposed 1966
Building Program, map, and list of proposed construction projects, distributed by the
school board during the campaign for the 1966-67 bond issue.
63
i
6a
or enlarged since 1950 are nearly all-white or nearly all-Negro.*; In San
Antonio, six of the city's seven nearly all-Negro elementary schools were
built or enlarged since 1950; in Houston, 42 of the city's 44 Negro ele
mentary schools were built or enlarged since 1950.
T a b l e 10.— Elementary school construction in 11 Southern cities, 1950-65
1
<*)
City
(b)
Number schools 1
newly built or
enlarged by
addition
(C)
Number opened
90-100 percent
white and were
90-100 percent
white in 1905
(d)
Number opened
90-100 percent
Negro and were
90-100 percent
Negro in 1965
(e)
Percent total
Negro enrollment
in 1905 attending
schools listed in
column (d)
Nashville __ 46 36 9 58. 7
Tulsa__________________ 50 41 6 54. 7
San Antonio___ ____ 57 43 6 59. 0
Richmond__________ 20 7 12 58. 8
Lexington, Ky_ 9 3 2 49. 7
Knoxville _______ . 19 13 5 68. 8
Dallas_________________ 106 79 n 44. 3
Houston ____ 133 87 42 91. 5
Baltimore__ 74 13 35 42. 3
Atlanta ------- _ . 63 25 34 70. 3
Kansas City, M o. . . . 31 12 6 25. 6
Not only did most of these schools open almost totally segregated but
they remained so in 1965. In Richmond, this was true for all but one of
the new elementary schools constructed or enlarged since 1950. In At
lanta, it was true for all but four schools. In Nashville, 59 percent of
the total Negro elementary enrollment attended schools that were almost
entirely Negro at the time of construction and remained so in 1965. In
Knoxville, the figure was 69 percent and in Houston 92 percent.
School Size.— In addition to the selection of sites for new schools,
decisions on school size are important. The size of a school determines
the number of children who may attend, whether or not the school
assigns students strictly on the basis of geographic zoning. Although a
school may be located where it is possible to draw a racially mixed stu
dent body, its size may so limit the area it can serve that it will be
segregated. A school in a Negro enclave surrounded by whites, for
instance, could be constructed large enough to accommodate both the
Negro and white children, or so small that it could serve only the Negro
children in the enclave.
All school construction and enrollment data from official school documents for
each system listed in the table. In St. Louis, of the 45 elementary schools built since
1954 or enlarged by addition since 1961, 4 were 10 to 90 percent Negro in 1965.
Four are known to have opened less than 10 percent Negro and to have remained so,
and 21 opened more than 90 percent Negro and remained so. Forty percent of the
1965 Negro elementary enrollment attended these 21 schools. The racial composition
of 15 of the 45 schools at the time construction was completed is unknosvn. Thirteen
of these were more than 90 percent Negro in 1965. St. Louis Study, exhibits E—5,
E-6 and P-1 and P-2.
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IS
Size also is a consideration when school officials must decide which
schools should be enlarged and what their enlarged capacity should be.
These decisions can determine a school's racial composition. For ex
ample, the Sojourner Truth Elementary School in San Antonio opened
in 1950 as a 192-pupil school to serve a very small Negro residential area
completely surrounded by whites. Four blocks away was a white school,
Hidalgo. In 1959, Hidalgo was enlarged, but only enough to accommo
date its nearly all-white student body. In the 1959 school year, Hidalgo
enrolled 346 students, 2 of whom were Negroes. Sojourner Truth, which
was not enlarged, remained all-Negro.100
The Sam Hill Elementary School, in Knoxville, is another example
of the effects of decisions regarding school size. The school was built in
1952 to serve a small Negro area. In 1958, in order to contain an ex
panding Negro population, it was enlarged to a capacity of about 400.
Yet two blocks away was the all-white Londale Elementary School, which
in 1960 was underenrolled by over 100 pupils. In 1965 Sam Hill re
mained all-Negro, and Lonsdale was 98 percent white.170
Grade Structure.— Another factor determining the racial composition
of a student body is the number of grades accommodated by the school.
Ordinarily, the fewer the grades the narrower the age limits and the
larger the geographical area that can be served. Conversely, the more
grades taught at a school the smaller the area it will serve. There have
been a number of instances in Southern and border cities where schools
have served more grades than is customary and this deviation from
normal school practice has had the effect of preserving school segregation.
The Meigs School in Nashville serves grades 1 to 12. It is the only
school in the city serving 12 grades. Most Nashville schools are orga
nized on a 6 -3 -3 or an 8 -4 pattern. The school is located in a small
Negro area and was all-Negro in 1965.171 172
The Dunbar Junior-Senior High School in Lexington, Ky., is the only
secondary school in the city that combines a junior and senior high school.
It is located in a Negro area and serves an all-Negro student body, com
prising 80 percent of all Negro secondary students in the city. Since
1949, it has been enlarged twice to accommodate its all-Negro
enrollment.171
School data from San Antonio school system. Racial composition of neighbor
hoods for San Antonio, and for cities referred to in notes 170—172 infra, from U.S.
Bureau of Census, U.S. Census of Housing: I960, Series H C (3 ).
1,7 School locations from Dolph’s Map of Greater Knoville, Tenn. Other data
supplied by the Knoxville school system.
171 School locations from Arrow Official City Map; Greater Nashville, Tenn.
Other data supplied by the Nashville school system.
172 School locations obtained from U.S. Office of Education. Other data supplied
by the Lexington school system. The J. N. Ervin School (all-Negro) in Dallas is
Footnote continued on following page
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8a
Thus the location, size, and grade structure of school facilities can be
key factors in determining a school s racial makeup. Decisions on loca
tion, size, and grade structure of school facilities often have served to
perpetuate racial separation in Southern and border State schools. In
addition, the manner in which free choice systems have been administered
sometimes has contributed to school segregation.
Free Choice Provisions
Under the free choice plans prevalent in the South, students generally
are permitted or required to state a preference for the schools they wish
to attend. If more students choose a given school than it can accommo
date, priority typically is given to students who reside in the immediate
area. Thus, geographical considerations may influence the racial com
position of the schools even under free choice plans. Under these plans,
however, considerations unrelated to geography also determine racial
composition. In Houston, for example, although dual attendance areas
officially are abolished, children automatically are re-enrolled in schools
they previously attended under the system of dual boundaries, and their
younger brothers and sisters also are given preference at these schools.
Other children are permitted to enroll only if there is space to accom
modate them. The fact that a Negro child may live closer to a white
school than some of the white children does not guarantee that he will be
accepted.11*
Even where race is not a factor in the initial school assignment of
children, school officials may influence the exercise of choice in ways
that intensify segregation. In Adanta, the superintendent of schools
sent a letter to the parents of children in the Kirkwood School (100 per
cent white), which was located in an area becoming all-Negro, notifying
them that Negroes were being permitted to transfer to Kirkwood. The
white children transferred elsewhere and the Kirkwood School, which
had been all-white in 1964, was all-Negro in 1965.174 * 14
another example. It is the only school in the system serving 12 grades. It is lo
cated in a Negro area. The South Oak Cliff High School, grades 10-12, serving the
adjacent white area had only 9 Negro children enrolled in 1965. Data supplied by
the Dallas school system.
iri Broussard v. Houston Independent School District, supra note 162, at 423-424;
see also Houston Independent School District, Superintendent's Bull., Aug. 4, 1966.
14 Atlanta Journal, Feb. 15. 1965. p. 1. In a footnote to Calhoun v. Latimer, 10
Race Rel. L. Rep. 621 M 965). the Federal district court described the facts sur
rounding the change of the Kirkwood School from all-white to all-Negro, as follows:
“ A typical instance of [rapid changes in residential patterns] involved the Kirkwood
Elementary School, formerly all-white, but in an area where the sudden and sub
stantial influx of Negroes left the latter without adequate school facilities. The board
allowed, but did not compel, white students to transfer to Wesley and Whiteford
Elementary Schools, and gave a choice to the faculty of the Kirkwood School to remain
or leave, and the principal of the latter with some other personnel, remained at the
Footnote continued on follow ing page.
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9a
There are other factors that impede desegregation under free choice
plans. A prerequisite to the exercise of free choice by white and Negro
students would appear to be the elimination of racial identification of
schools. The racial identity of Southern schools, however, is maintained
in a variety of ways.17'’ One is the continued segregation of teaching
staff. In Houston, for example, only six of the city’s more than 200
schools had any desegregation of their full-time staffs in 1965. This in
volved only 17 out of some 9,500 teachers in the city.176 In Louisville,
84 percent of the Negro teachers taught at schools more than 90 percent
Negro.177 In Atlanta, only four of the 59 schools 90 percent or more
Negro had any white teachers by 1965.178 In Baltimore, 85 percent of
the Negro staff were in schools more than 90 percent Negro in 1965.
The story is the same in many other cities.170
Kirkwood School.” The court found, in discussing the use of proximity as a criterion
for transfers that this was perfectly proper: “ Another illustration [of shifting popu
lation] is Kirkwood Elementary School above referred to where, although it was not
covered at the time by the Atlanta plan, the large influx of Negroes into the com
munity was solved by voluntary application of many white students for transfers to
Wesley and Whiteford Schools, making room for Negroes in close proximity to
Kirkwood. No discrimination was practiced in this regard.” Id. at 625.
178 In Houston, for example, the Research Department still arranges its files according
to “ white” and “ colored” schools. (Observed in staff visit to Houston public
schools, Aug. 1966.) In the fall of 1964, reports of the results of achievement test
scores were sent to junior high school principals. The reports sent to Negro schools
were labeled results of “ Colored Junior High Schools.” Averages were given by “ City
(W hite); City (Colored); Your School.” Reports of the same test results sent to
white schools were broken down by averages for “ City” and “Your School.” Negro
test score results were not included in the “ City” average. Plaintiff’ s Ex. No. 18,
Broussard v. Houston Independent School District, supra note 162. In Baltimore,
the Merganthaler Vocational High School was opened in 1953 for a white student
body. (Baltimore City Public Schools, Directory of the Public Schools of Baltimore,
Md.— 1953-54, 77.) At the same time a new Negro vocational high school was
planned. (Southern School News, September 1954, 7.) In 1954, when the schools
were desegregated, Negro children remained in their old school awaiting completion of
the new school, and Merganthaler remainder virtually all-white. (Information ob
tained from Miss Clara Grether, Research Specialist, Bureau of Research, Baltimore
City Public Schools; Baltimore City Schools, Net Roll by Grades and Types as of Octo
ber 1954— White and Negro— Taken from Child Population Register.) In 1955, the
new Negro school opened. It was named Carver and had an all-Negro student body.
(School construction data for 1955, supplied by Bureau of Research, Baltimore City
Public Schools.) Both of these schools draw students from all parts of the city. In
1965 they remained segregated. Baltimore City Public School, Net Roll by Race, Oct.
31, 1965. See also U.S. Commission on Civil Rights, Survey of School Desegrega
tion in the Southern and Border States, 1965-66, 33—35 (1966).
178 Broussard v. Houston Independent School District, Defendants Ex. No. 3, op. cit.
supra, note 162.
177 Samuel V. Noe, Superintendent of Schools, Status of Desegregation in the
Louisville Public Schools, Sept. 23, 1966 (Oct. 17, 1966), and State Department of
Education, Integration in the Public Schools of Kentucky, Oct. 1965.
1,8 Data received from Atlanta Public Schools.
779 City of Baltimore. Bureau of Research, Department of Education, Faculty By
Race, September 30, 1965. In Raleigh, N.C., staff segregation on the elementary
level remained complete in 1965, so that all but 54 Negro elementary children
attended all-Negro schools with all-Negro staffs. (Source: Raleigh Public School
Footnote continued on following page.
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The availability of transportation to a school outside one’s neighbor
hood also limits the exercise of choice. In some cases transportation is
available only on a basis which will promote, not reduce, segregation.
In Houston, for example, bus routes devised to serve the dual school
system were not revised when the dual system was abolished officially.180
Consequently, in 1965, children received transporation only as it was
routed to schools under the dual attendance system. In many instances,
buses traced the actual boundaries of the abolished dual areas.18’ The
vehicles traveled long distances to carry Negro children past white schools
to Negro schools, and while children past Negro schools to white schools.
White children living in the Piney Point area, served by a Negro school,
received transportation to the all-white Pilgrim school.182 Since the
buses were not routed to carry Negro children to white schools, many
Negro children could not choose to attend white schools for lack of
transportation.183
The exercise of free choice also is limited by school authorities’ deter
minations of what constitutes overcrowding. If different standards are
applied to majority-white and majority-Negro schools, they can maintain
or intensify segregation.
The Board of Education in Baltimore provided that when a school was
in danger of becoming overcrowded, its usual open enrollment program
could be discontinued and the school “ districted,” permitting the attend
System.) In Richmond, Va., all but two Negro elementary teachers remained at
all-Negro schools in 1965. Twenty-four white elementary teachers taught at four
schools 90 percent or more Negro. Ninety-five percent of the Negro elementary chil
dren in 1965 attended Negro schools with virtually all-Negro staffs. (Source: Rich
mond Public School System.) In Wilmington, Del., where pupil and staff desegrega
tion was more advanced in 1965, 40 percent of the Negro elementary children
remained at nearly all-Negro schools with virtually all-Negro staffs. Seventy-six per
cent of the Negro elementary staff remained at schools 90 percent or more Negro.
(Source: Wilmington Public School System.) See also App. A, Table 1, for extent of
staff desegregation in Southern and border cities.
Broussard v. Houston Independent School District, Record, Vol. I l l , pp. 590,
609, 611, supra, note 162. The director of school transportation testified that the
bus routes used during the 1965-66 school year were the same as those used when the
system had been segregated. He stated that practices would be revised for the 1966-67
school year so that Negro children, riding a “ Negro bus” that passed a white school,
could alight at the white school if they wished. If the demand were sufficient, buses
would also carry children from Negro areas to white schools. However, demand had
to be made known by the middle of August. It seems unlikely that the demand could
be known by the middle of August, since the choice period was not until the end of
August. Furthermore, the system did not publicize the revised transportation policies,
making it likely that many Negro children would not choose a white school, thinking
there was no possible way to get there. See Houston Independent School District,
“ Letter to Parents on Registration,” Aug. 5, 1966.
1,1 Houston Independent School District, Report on Geographical Sources for
School Bus Transportation, Pupils Eligible and Ineligible, (Dec. 16, 1965) and
official school board map of elementary boundaries, 1964—65.
183 Ibid.
153 Staff interviews with Mrs. Gertrude Barnstone and Mrs. Charles White, board
members, Houston Independent School District, Prof. William McCord, Department of
Sociology, Rice University, and Rev. and Mrs. William Lawson, August 1966.
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11a
ance only of those children residing within the geographical district lines.184
But different standards of overcrowding were used for white and Negro
schools. White schools were districted when equally crowded Negro
schools were not. Some Negro schools were put on double shift.185 One
of the criteria used by administrators for determining when a school was
threatened with overcrowding was when the area surrounding the school
was “ in the process of changing from a white to a Negro residential
area.” 186 The arrangement of these district lines sometimes had the ef
fect of maintaining racial separation in racially mixed areas. An exam
ple was Baltimore’s Elementary School 242, which was all-white in 1954.
That year the boundary lines were extended to include the white children
living in an area that was becoming predominandy Negro. As a result,
School 242 was nearly 50 percent over capacity. A nearby Negro school
opened the same year well under capacity.187
Only limited school desegregation has been achieved under free choice
plans in Southern and border city school systems. A combination of
factors has operated to retard school desegregation under these plans.
Some factors, such as the use of racial criteria in honoring student prefer
ences, the maintenance of school staff segregation, and the perpetuation
of dual boundaries through bus transportation routes, can be readily iden
tified as interfering with the exercise of free choice and impeding progress
in school desegregation. Other factors, including deeply entrenched
patterns of dual attendance in Southern and border city schools, cannot
be assessed so easily. Nonetheless, the degree of school segregation in
these free-choice systems remains high. In some instances racial isolation
is greater than it would be under a strict system of geographical zoning.
In Atlanta, for example, the nearest high school for many elementary
students attending Bolton (100 percent white), Chattahoochee (100
percent white), and Mount Vernon (92 percent white) is Archer High
School (100 percent Negro). Under strict geographical zoning these
three elementary schools normally would feed into Archer High School.
Under Adanta’s free choice system, however, students graduating from
*** Baltimore Public Schools, Desegregation Policies and Procedures, 1954-63, May
22, 1963, at 2-3, 10-11.
“ “ The average percentage enrollment of capacity for nearly all-Negro elementary
schools in 1954 was 138.6 percent, whereas for nearly all-white schools it was 123.1
percent. Yet, only one-fifth of the Negro schools were districted compared to one-
third of the white schools. Computed from capacity and enrollment figures given
in City of Baltimore, Bureau of Research, Department of Education, Physical and
Administrative Details of School Buildings, 1954.
1B* Baltimore Public Schools, op.cit. supra note 184, at 10, 11.
Id . at 88; see map of Baltimore, Md., for location of schools; for school capacity
and enrollment figures, see Baltimore Department of Education, supra note 185.
Memorandum to the School Plant Planning Committee from the Bureau of Research,
Oct. 24, 1956, Subject: Northwood Elementary School No. 242 Population Pressure
and the Yorkwood School No. 219. In 1959 a new school, No. 209, was constructed
one-half block west of the district line for School No. 242. Although the school was
located in an integrated area, it opened 90 percent Negro.
243-637 0 - 67 - 6
69
these elementary schools attend O ’Keefe High School (97 percent
white).188
In Houston, too, some schools— Katherine Smith and Piney Point, for
example— would have been less segregated had neutral attendance zones
been drawn. But under Houston’s free choice plan Smith School was
all-white and Piney Point School was all-Negro in 1965.189 Thus even
in cities with high degrees of residential segregation, free-choice plans
sometimes have produced more rigid school segregation than under a
system of school attendance based entirely on residence.
* * *
In Southern and border cities, then, school segregation results from
a number of factors. First, zoning plans— even if free from gerry
mandering— may result in school segregation merely because of rigid
residential segregation. Second, carryovers from the dual school system,
such as transportation and segregated teaching staffs, still persist. In
addition, school segregation in Southern and border cities has been
furthered by decisions on site selection, school size, grade structure,
transfer priorities, and standards of overcrowding.
Summary
The causes of racial isolation in city schools are complex and the
isolation is self-perpetuating. In the Nation’s metropolitan areas, it rests
upon the social, economic, and racial separation between central cities
and suburbs. In large part this is a consequence of the discriminatory
practices of the housing industry and of State and local governments.
The Federal Government also shares in this responsibility. Federal hous
ing policy, for many years openly discriminatory and attuned largely to
the suburban housing needs of white, affluent Americans, has contributed
substantially to this separation. Even now, the Federal Government’s
policy on equal housing opportunity and its programs aimed at providing
housing for low-income families are inadequate to reverse the trend
toward racial isolation in metropolitan areas.
The separation between city and suburban populations has been rein
forced by increasing disparities in wealth. At a time when the financial
1 2 a
” ■ Atlanta Study, at 125 (proximity), 132 (feeder pattern). Telephone inter
view with Jdhn W. Haldeman, Administrative Assistant, Office of Superintendent,
Nov. 4, 1966 (racial composition 1966-67).
xm Broussard v. Houston Independent School District, supra note 162, Plaintiff’s
Ex. No. 2, and Defendant’s Ex. No. 3. Houston Independent School District, Report
on Geographic Services for School Bus Transportation, Pupils, Eligible and Ineligible,
Dec. 16. 1965. White children were bused from near the all-Negro Piney Point School
to the white Pilgrim School some distance away. Negro children were bused from
near the all-white Smith School to the all-Negro Highland Heights School some
distance away. Because these children live so close to schools serving the other race,
were a neutral boundary to be drawn, some desegregation would occur.
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burdens of central cities and the demands for social services have been
growing, cities have been losing fiscal capacity. Cities which formerly
surpassed suburbs in educational expenditures are now falling behind.
State education aid fails to equalize the growing disparity between sub
urban and central city public schools and recently enacted Federal aid
programs are insufficient to reverse the trend. This disparity adds
further impetus to the existing movement of affluent white families to
the suburbs. In many metropolitan areas, racial concentrations in the
central city schools have reached the point where solutions are no longer
even theoretically possible within the city alone.
The pattern of residential segregation is reflected within the central
city as well. Here, too, the private housing industry, and government at
all levels, share much of the responsibility for creating and perpetuating
residential segregation. Geographical zoning is the common method
of determining school attendance and the neighborhood school is the
predominant attendance unit. When these are imposed upon the exist
ing pattern of residential segregation, racial isolation in city schools is the
inevitable result. In addition, the day-to-day operating decisions of
school officials— the location of new school facilities, transfer policies,
methods of relieving overcrowded schools, determination of the boundary
lines of attendance areas— often have further intensified racial isolation.
In the North, where school segregation was not generally compelled by
law, these policies and practices have helped to increase racial separation.
In the South, where until the Brown decision in 1954 school segregation
was required by law, similar policies and practices have contributed to
its perpetuation.
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