Board of Visitors of the College of William and Mary v. Norris Motion to Affirm or Dismiss

    In the

Imtrfc Court of Appeals
F ob the F ifth Circuit 

No. 24018

Onesephop Broussard, el al.,
Appellants,

T he H ouston Independent School District, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF TEXAS

PETITION FOR REHEARING WITH SUGGESTION 
FOR REHEARING EN BANC AND BRIEF 

IN SUPPORT THEREOF

Joseph L. Tita

2034 Houston Natural Gas Building 
Houston, Texas 77002

Jack Greenberg 
Conrad K. H arper 
F ranklin E. W hite 

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Appellants

JAMBS' M. NABRIIT, Ilf



I N D E X

Petition for Rehearing .......................................................  1

Brief in Support of Petition ..................... ..........................  5

Statement of the Case ................... ...............................  5

Reasons for Granting Rehearing en Banc ...............  10

A rgument

I. The Majority Opinions Are in Direct Con­
flict With the Law of This and Other Circuits 
and of the Supreme Court of the United 
States ......................    11

A. The Prevailing Law ..... ................ ...... .......  11

B. The Reasons Advanced by the Majority to
Uphold the District Court’s Decision Are 
Legally Insufficient ______     16

1. Retroactivity .............................    16

2. The other reasons ..................................  19

II. The Majority Erred in Failing to Grant Ap­
pellants Any Relief After Conceding That 
Appellees Had Violated Appellants’ Constitu­
tional Rights in the Selection of School Sites 22

Conclusion ......................      26

Certificate .............................................................................. 29

PAGE

Certificate of Service 30



ii

A ppendix

Initial Majority Opinion .................. ..... ..................  la

Judge Wisdom’s Dissent ............................................. 12a

Majority Supplemental Opinion ..............................  27a

PAGE

Table of A uthorities

Cases:

Bivins v. Board of Public Education and Orphanage 
for Bibb County, et al., C. A. No. 1296 (M. D. Ga.
1967) .................................................................................. 15

Board of Education of Oklahoma City Public Schools
v. Dowell, 375 F. 2d 158 (10th Cir. 1967) ...................  12

Board of Public Instruction of Duval County, Florida
v. Braxton, 326 F. 2d 616 (5th Cir. 1964) ................. 17

Brewer v. School Board of the City of Norfolk, Vir­
ginia, No. 11782 (4th Cir., May 31, 1968) ............ ...12,15

Briggs v. Elliot, 132 F. Supp. 776 (E. D. S. C. 1955) ....8,17,
18, 22, 27

Brown v. Board of Education, 347 U. S. 483 ...............12, 26
Brown v. Board of Education, 349 U. S. 294...........12, 22, 23

Green v. County School Board of New Kent County, 
Virginia, 36 U. S. L. W. 4476 (U. S. May 27,
1968) ..........................................................................12,13,20

Kelley v. Altheimer, Arkansas Public School District,
No. 22, 378 F. 2d 483 (8th Cir. 1967) ........................... 12

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965) .......... . 12

Lee v. Macon County Board of Education, 267 F. Supp.
468 (M. D. Ala. 1967) ..................................................  14

Louisiana v. United States, 380 U. S. 145....................... 23



I l l

Porter v. Warner Holding Co., 328 IT. S. 395 ....... . 23

Raney v. Board of Education of the Gould School Dis­
trict, 381 F. 2d 252 (8th Cir. 1967), rev’d and rem. 
on oth. gds., 36 U. S. L. W. 4483 (U. S., May 27, 
1968) ............................................................................ ....24,25

Ross v. Dyer, 312 F. 2d 191 (5th Cir. 1962) ............. .....  18

Singleton v. Jackson Municipal Separate School Dis­
trict, 347 F. 2d 729 (5th Cir. 1965) ........................... 17

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F. 2d 865 (5th Cir. 1966) ...........................17,18

United States v. Board of Public Instruction of Polk 
County, Florida, No. 25768 (5th Cir., April 18, 
1968) .......................................................................... 12,14,15

United States v. Concordia Parish School Board, No. 
26071 (5th Cir. May 21, 1968) .....................................  24

United States v. Jefferson County Board of Education,
372 F. 2d 836 (5th Cir. 1966), aff’d with mod. on reh. 
en banc, 380 F. 2d 385 (5th Cir. 1967), cert. den. sub 
nom. Caddo Parish School Board v. United States,
389 U. S. 840 (1967) ____      ....9,12,13,14,16,

19, 20, 21, 22, 24

Wheeler v. Durham Board of Education, 346 F. 2d 768 
(4th Cir. 1965) ..................................................................  12

Miscellaneous:

Southern School Desegregation, 1966-1967, A Report 
of the United States Commission on Civil Rights .... 19

PAGE



In the

Imtpfc States Court of
F oe the F ifth Circuit

No. 24018

Onesephor Broussard, et al.,

■v.-
Appellants,

The H ouston Independent School D istrict, et al.,

Appellees.

A PPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  SO U TH E R N  DISTRICT OF TEXAS

PETITION FOR REHEARING WITH SUGGESTION 
FOR REHEARING EN BANC

Onesephor Broussard and his wife, Yvonne, and Queen 
Ethel Young respectfully request rehearing, and suggest 
the appropriateness of an en banc rehearing of the de­
cision of this Court rendered on May 30, 1968 in an opinion 
by District Judge Ben C. Connallv, joined by Circuit Judge 
Rives with a dissent by Circuit Judge Wisdom.1 This, 2-1 
decision, affirmed an order of the United States District 
Court for the Southern District of Texas entered on July 
13, 1966 per The Honorable Allen B. Hanney, District 1

1 The original and supplemental opinions of the majority and 
that of Judge Wisdom, dissenting, are included in an appendix. 
Pages in the appendix are denoted by the prefix “A ” .



2

Judge. That decision is reported at 262 F. Supp. 266 
(1966).

This case concerns the propriety of certain features of a 
$59 million dollar building program embarked upon by the 
sixth largest school district in the country—a district 
segregated by law in 1954, and which as late as 1966, had 
95% of its Negro students in all Negro schools.

The school district admitted that several of its proposed 
sites were in dense Negro areas and that the schools to be 
built on those sites would open as all-Negro schools; that 
although the district was aware of the distribution of the 
Negro population in the area, it had no obligation to con­
sider race in selecting sites and that sites were not as­
sessed in terms of their potential to achieve desegregation. 
Appellants moved to enjoin construction at these sites until 
the district had conducted a survey with a view to select­
ing sites which would assist in eradicating the dual system. 
Neither the district court nor the majority in this court 
afforded relief.

Judge Wisdom’s dissent said of the majority opinion— 
most aptly: “ there is no ameliorating reason for the 
majority’s decision. It offends the law as it existed in this 
Circuit at the time the case was argued on appeal. It 
offends the law more egregiously now” (A. 14).

This petition for rehearing asks this Court, for the fol­
lowing reasons, to reconsider, en banc, the decision of May 
30, 1968:

1. The majority opinions, in agreeing with the reasons 
underlying, and in affirming, the district court’s opinion 
and decree, directly conflict with the action of the other



3

panels of this Circuit, the law of other circuits and of the 
Supreme Court of the United States.

2. The consequences of a building program of this 
magnitude are far-reaching and severe. Left uncorrected, 
it will impose continuing and irreparable deprivation on 
not only this, but on future generations of Negroes in 
Houston. Although some relief was still possible, the panel 
majority erred in failing to grant any relief after conced­
ing that the Houston Independent School District had vio­
lated appellants’ constitutional rights in the selection of 
school sites.

Attached is a Memorandum Brief in support of this 
petition.

Respectfully submitted,

Joseph L. T ita
2034 Houston Natural Gas Building 
Houston, Texas 77002

Jack Greenberg 
Conrad K. H arper 
F ranklin E. W hite 

10 Columbus Circle 
New York, N, Y. 10019



I n  th e

Ittiteii Butnt (£mvt rtf Appmhs
F or the F ifth Circuit 

No. 24018

Onesephor Broussard, et al.,
Appellants,

The H ouston Independent School D istrict, et al.,

Appellees.

BRIEF IN SUPPORT OF PETITION 
FOR REHEARING EN BANC

Statement of the Case

In March of 1966, the school administration of the Hous­
ton Independent School District announced, for the first 
time, the precise location of most of the sites selected for 
a $59,000,000 building program (voter approval was ob­
tained in March of 1965 without announcement of the 
specific sites). Immediately opposition was voiced by many 
in the community. Experts in the field of sociology, psy­
chology and demography including seven Ph.D.’s (three 
Department Heads of leading local universities) came to 
a common conclusion: the proposed building program, in 
placing many of the schools in the heart of areas of high 
Negro population was clearly an exercise in the perpetua­
tion of segregation, which would summarily cripple future



6

attempts at integration. They added that the consequences 
were long range and major since the patterns of residential 
segregation in the community were not likely to change for 
several generations. The contemplated program would 
adversely affect all aspects of community life, and increase 
the possibility of racial violence. They offered their ser­
vices without cost to assist the district in a study to select 
sites which would seek to overcome the effects of segrega­
tion and the dual system.

These warnings were not heeded, the offer was rejected, 
and the school district plunged forward with the proposed 
building program, unchanged.

As a consequence, in May, 1966, suit was filed by Negro 
parents in the district seeking to enjoin the building of 
those projects which would perpetuate segregation in 
Houston and make difficult the establishment of an in­
tegrated, unitary school system. (During the trial, appel­
lants voluntarily removed from the Court’s consideration 
those projects whose impact on segregation was remote.) 
At the hearing, in June of 1966, the school superintendent, 
who was the primary architect of the building program, 
testified readily arid unequivocally, that certain named 
schools to be built under the proposed building program 
would be “ all-Negro.” These schools would be segregated 
for five and probably ten years, and perhaps longer. He 
further admitted that the fate of other schools built in areas 
of dense Negro population would be the same, and stated 
that although the school authorities were very well aware 
of Negro population distribution in the community, the 
factor of race was never considered in the selection of 
school sites, nor were experts ever consulted to evaluate 
the consequences of site selection and the resulting segre­
gation. Testimony at the hearing also revealed:



7

(A ) That the district’s “Freedom of Choice Plan” did 
not, in most particulars, comply with then-existing stand­
ards of the Department of Health, Education and Welfare.2

(B) That bus transportation was used in large measure 
to discourage integration, i.e., many bus routes carried 
Negro students out of their neighborhoods past white 
schools to totally segregated Negro schools. (Some routes 
had distances of up to 24 miles one way.)

(C) That the district’s feeder system and method of 
initial assignment of new pupils utilized dual boundary 
lines which existed at a time when segregation was man­
dated by state law.

(D) That the ninth grade, faculty, and athletics were 
segregated.

(E) That in June of 1966 (twelve years after the Brown 
decision), less than five per cent of the Negro students in 
Houston attended integrated schools.

The defenses which the school District offered to the 
charge that the building program would promote segrega­
tion and make integration more difficult, were that:

(1) it had no affirmative duty to consider race in the 
selection of school sites (and that they deliberately re­
frained from such consideration);

(2) that the district’s “ Freedom of Choice Plan” justi­
fies the building of schools in ghettos or areas of dense 
Negro population;

2 Assignments were made initially on the basis of race. There 
was no requirement of an annual choice nor that letters be directed 
to children and their parents informing them of their right to 
choose. The transportation system was still segregated (A. 23, n.



8

(3) the policy referred to as the Board’s neighborhood 
school program is educationally sound and unrelated to 
segregation.

Belying, as did appellee-school board, on Briggs v. El­
liot, 132 F. Supp. 776 (E. D. S. C. 1955) and its progeny— 
that “ The constitution . . . does not compel racial inter­
mingling . . . but simply forbids enforced segregation”— 
the district court denied all relief. 262 F. Supp. 266, 
270-271.

At the time of trial (June, 1966), and at the time the 
district court issued its opinion, contracts had not been 
signed for any of the so called “ all-Negro” projects. Ap­
pellants promptly filed in the district court a Motion for 
Injunction Pending Appeal to preserve the status quo until 
this Court could rule on the matter. The motion was de­
nied.

As late as October of 1966, after appellants had per­
fected their appeal, construction on only one “ all-Negro 
school” had been commenced; contracts for all the remain­
ing Negro schools had not yet been executed. Appellants 
filed another Motion for Injunction Pending Appeal. It 
was denied but this court granted an accelerated hearing 
for January 25, 1967. There followed, however, considera­
ble contractual and construction activity, particularly in 
the “ all-Negro” schools.

The new schools for which contracts were signed in No­
vember, 1966 (some eight in number) were precisely those 
which appellants’ petition alleged would perpetuate segre­
gation, a fact unchallenged by the district’s Superinten­
dent of Schools. Located deep in large, populous Negro 
ghettos, bounded by natural and man-made barriers, the



9

prospect of their future integration under existing adminis­
trative and transportation procedures was remote.

On January 9, 1967, less than six months after the Dis­
trict Court’s opinion (and barely a month after the signing 
of the contracts for the several ‘'all Negro” schools cited 
above), the School Board, at a regular meeting had an 
opportunity carefully to consider the “Jefferson”  opinion,3 
and specifically the language referring to new construc­
tion. The Board majority summarily refused even to re­
consider the building program, its effect on integration, 
or any modification to conform to Jefferson. They simi­
larly refused reconsideration in March, 1967, when that 
decision was affirmed en banc.

In January 1967, appellants filed a third motion (the 
second in this Court) for injunction pending appeal. It 
was argued January 25th, when the ease was also argued 
on merits. The third motion was denied February 10, 1967 
by the same 2-1 majority for whose opinion rehearing is 
now sought. Two months after oral argument of the ap­
peal, appellants filed a fourth motion (the third in this 
Court) to delay construction pending decision. It has never 
been acted upon.

On May 30, 1968, a full sixteen months after oral argu­
ment, District Judge Ben C. Connally affirmed Judge Han- 
ney’s order denying the injunction. In so doing, he stated, 
in reference to integration, “ admittedly, the Houston au­
thorities did not affirmatively consider this factor” (A. 29).

3 United, States v. Jefferson County Board of Education, 372 
F. 2d 836, affirmed with modifications on rehearing en banc, 380 
F. 2d 385, cert. den. sub nom. Caddo Parish School Board v. United 
States, 389 U. S. 840.



10

Nevertheless, he “ agreed” with the District Court opinion, 
affirmed it, and did not order relief.

At the present time, many of the schools are nearing 
completion; as predicted, they will open as all-Negro 
schools unless some judicial relief is afforded.

Reasons for Granting Rehearing en Banc

1. The majority opinions, in agreeing with the reasons 
underlying, and in affirming, the district court’s decree are 
contrary to and in direct conflict with the law of this Cir­
cuit, other circuits and the Supreme Court of the United 
States.

2. The majority erred in failing to grant any relief, after 
conceding that the Houston Independent School District 
had violated appellants’ rights in the selection of school 
sites.



11

A R G U M E N T

I.

The Majority Opinions Are in Direct Conflict With 
the Law of This and Other Circuits and of the Supreme 
Court of the United States.

A. The Prevailing Law

One reading the initial majority opinion must repeatedly 
turn to the first page to verify the caption and date to 
reassure oneself that one is indeed reading an opinion by 
the Fifth Circuit entered in rnid-1968. That suggests how 
much the majority opinions are out of touch with the de­
cisional law of this Circuit.

The broad underlying issue before the panel was whether 
a school district formerly segregated by law is under a 
duty to take affirmative action to disestablish the dual sys­
tem. More narrowly, there were two issues: (1) whether 
the Houston School Board acted improperly in consciously 
rejecting considerations of race as a factor in site selec­
tion while implementing a $59 million dollar school con­
struction program and (2) whether there was any relief 
possible where at the time of decision, the construction 
program had been completed or was near completion.

The majority’s initial opinion concedes neither that the 
Board had an affirmative duty to desegregate the system 
nor that it acted wrongfully in failing to consider whether 
that duty was performed or shirked in choosing between 
alternative school sites. Indeed it appears to adopt the 
position of the appellees who not only admitted, but in­
sisted that:



12

“ No matter how you interpret the propositions or argu­
ments of plaintiffs or the plaintiffs’ law suit, there is 
only one issue and that issue is whether or not the 
school district has the affirmative duty to integrate the 
races. We submit that all cases, including Brown, 
clearly hold that the school district does not have the 
affirmative duty to integrate the races” (Brief for 
Appellees, pp. 21-22).

But the law of this and other circuits and of the United 
States Supreme Court is entirely to the contrary. Cf. 
Green v. County School Board of New Kent County, Vir­
ginia, 36 U. S. L. W. 4476 (U. S. May 27, 1968) interpret­
ing Brown v. Board of Education, 347 U. S. 483 (Brown 
I), 349 U. S. 294 (Brown I I ) ; United States v. Jefferson 
County Board of Education, 372 F. 2d 836 (5th Cir. 1966), 
affirmed with modifications on rehearing en lane, 380 F. 2d 
385 (5th Cir. 1967), cert. den. sub nom. Caddo Parish 
School Board v. United States, 389 U. S. 840 (1967); United 
States v. Board of Public Instruction of Polk County, 
Florida, No. 25768 (5th Cir., April 18, 1968); Brewer v. 
School Board of the City of Norfolk, Virginia, No. 11782 
(4th Cir., May 31, 1968); Wheeler v. Durham Board of 
Education, 346 F. 2d 768 (4th Cir. 1965); Kemp v. Beasley, 
352 F. 2d 14, 21 (8th Cir. 1965); Kelley v. Altheimer, 
Arkansas Public School District, No. 22, 378 F. 2d 483 
(8th Cir. 1967); Board of Education of Oklahoma City 
Public Schools v. Dowell, 375 F. 2d 158 (10th Cir. 1967).

Upon rehearing of the Jefferson County case this Court 
said (380 F. 2d at 389):

“ The Court holds that Boards and officials administer­
ing public schools in this circuit have an affirmative



13

duty under the Fourteenth Amendment to bring about 
an integrated, unitary school system in which there are 
no Negro schools and no white schools—just schools. 
Expressions in our earlier opinions distinguishing be­
tween integration and desegregation must yield to this 
affirmative duty we now recognize. In fulfilling this 
duty it is not enough for school authorities to offer 
Negro children the opportunity to attend formerly all 
white schools. The necessity of overcoming the effects 
of dual school systems in this circuit requires integra­
tion of faculties, facilities, and activities as well as 
students” (emphasis in original).

The Supreme Court, Green, supra 36 U. S. L. W. at 
4479-80, has similarly held that school boards must take 
steps “which promise realistically to convert promptly to 
a system without a ‘white’ school and a ‘Negro’ school, but 
just schools.”

With respect to the selection of sites for schools, the 
initial opinion of the majority in this case, is flatly con­
trary to Jefferson. Section VII of the Jefferson en banc 
decree provides:

“New Construction

“ The defendants, to the extent consistent with the 
proper operation of the school system as a whole shall 
locate any new school and substantially expand any 
existing schools with the objective of eradicating the 
vestiges of the dual system”  (emphasis added).

As explained in the Jefferson panel opinion, this pro­
vision means:



u

“ that . . . race is relevant, because the Governmental 
purpose is to offer Negroes equal educational oppor­
tunities. The means to that end, such as disestablish­
ing segregation among students, distributing better 
teachers, equitably equalizing facilities, selecting ap­
propriate locations for schools, and avoiding resegre­
gation must necessarily be based on race. School 
officials have to know the racial composition of their 
school population and the racial distribution within 
the school district. The Courts and HEW  cannot 
measure good faith or progress without taking race 
into account.” 372 F. 2d at 877 (emphasis added).

Similarly, in Lee v. Macon County Board of Education, 
267 F. Supp. 468 (M. D. Ala. 1967) (three judge-court), a 
unanimous Court ordered State officials to withhold ap­
proval of sites for the construction or expansion of schools:

“ if judged in the light of the capacity of existing facil­
ities, the residence of students and the alternative sites 
available, the construction will not to the extent con­
sistent with proper operation of the school system as 
a whole, further the disestablishment of state enforced 
or encouraged public school segregation and eliminate 
the effects of past state enforced or encouraged racial 
discrimination in the state school system.”

The Court also enjoined further reliance upon surveys 
not conducted in accordance with the standards of the 
Court in approval of school sites.

More recently, this Court has said in the United States 
v. Board of Public Instruction of Polk County, Florida, 
supra, in language which might well be directed specifically



15

to the Houston Independent School District and in refuta­
tion of the majority opinion in the instant case:

“ the appellee contends that inasmuch as the planning 
for the school was made without reference to race, 
there was no conscious effort on the part of the Board 
to perpetuate the dual system. This does not meet 
the requirements of the Court order. There is an 
affirmative duty overriding all considerations with 
respect to the locating of new schools, except where 
inconsistent with ‘proper operation of the school sys­
tems as a whole’, to seek means to eradicate the ves­
tiges of the dual system. It is necessary to give con­
sideration to the race of the students. It is clear 
from this record that neither the State Board nor 
the appellee sought to carry out this affirmative obliga­
tion before proceeding with the construction of this 
already planned school” (slip op. 6-7, emphasis in 
original).

Cf. Bivins v. Board of Public Education and Orphanage 
for Bibb County, et al., C. A. No. 1296 (M. D. G-a. 1967) 
and Brewer v. School Board of the City of Norfolk, No. 
11782, 4th Cir. decided May 31, 1968, in which proposed 
construction was similarly enjoined.

All these holdings, which seem too explicit to be misinter­
preted, are ignored in the majority opinion, as are the 
decisions of this Circuit and other Circuits, which pre­
dated the present action. Nowhere in its initial opinion 
does the majority intimate that appellees should have 
chosen sites with the objective of eradicating the vestiges 
of the dual system.



16

To be sure when confronted by the challenge of Judge 
Wisdom’s dissent, the majority adds a supplemental 
opinion which attempts to put the matter in focus. But 
it is no less shocking that an initial opinion (in a case 
regarding the propriety of school construction) could have 
been written without reference to the legal standard of 
this Circuit embodied in Section Y II of the Jefferson de­
cree.

B. The Reasons Advanced by the Majority to Uphold 
the District Court’s Decision Are Legally Insufficient

1. Retroactivity

Forced now to grapple with Section VII of the Jefferson 
decree, the majority concedes in its supplemental opinion, 
that appellees acted erroneously in failing to consider 
race but elects rather to condone the admitted unconstitu­
tional actions of the Houston Independent School District 
“ because the school authorities were not endowed with 
sufficient prescience to anticipate Jefferson by some two 
years” (A. 29). They state also that: “ it [the Jefferson 
opinion] should not be given a retroactive effect unfairly to 
penalize this program undertaken in good faith and in full 
compliance with the law as it then existed” (A. 30).

But the question of retroactivity is simply not a part of 
this case. It is an argument devoid of merit. The Jeffer­
son ease’s direction that there was an affirmative duty to 
integrate the races and to locate schools with that objec­
tive did not rise like Venus from the sea; it reflected the 
law of this circuit, at the time this case was filed, when 
it was appealed and presently. As early as 1964 this 
Court upheld the power of a district court to enjoin:

“ approving budgets, making funds available, approving 
employment contracts and construction programs . . .



17

designed to perpetuate, maintain or support a school 
system operated on a racially segregated basis” (em­
phasis added).

Board of Public Instruction of Duval County, Florida v. 
Braxton, 326 F. 2d 616, 620 (5th Cir. 1964). And in 1965, 
almost a year before the Board announced its construc­
tion sites, this Court specifically rejected the Briggs case, 
upon which the Board and the lower court relied. See Sin­
gleton v. Jackson Municipal Separate School District, 347 
F. 2d 729. There it was said (at 730):

In retrospect, the second Brown opinion clearly im­
poses on public school authorities the duty to provide 
an integrated school system. Judge Parker’s well 
known dictum (“ The Constitution, in other words, does 
not require integration, it merely forbids discrimina­
tion” ), in Briggs v. Elliot, 132 F. Supp. 776, 777, 
should be laid to rest. It is inconsistent with Brown 
and the later development of decisional and statutory 
law in the area of Civil Rights.

The matter was put even more strongly (in January, 1966, 
seven months before the district court’s decision) in a sub­
sequent proceeding in Singleton:

The Constitution forbids unconstitutional state action 
in the form of segregated facilities, including segre­
gated public schools. School authorities, therefore, 
are under the constitutional compulsion of furnishing 
a single, integrated school system. . . .

This has been the law since Brown v. Board of Educa­
tion. . . . Misunderstanding of this principle is per­



18

haps due to the popularity of an over-simplified dictum 
that the constitution “ does not require integration” 
(emphasis added).

Singleton v. Jackson Municipal Separate School District, 
355 F. 2d 865, 869 (1966).

Thus by mid-1966, when the district court denied all 
relief, it was quite clear that school officials had an affirma­
tive duty to bring about “ an integrated unitary school sys­
tem” . From that it should have followed that school of­
ficials would have to be concerned about the placement 
of schools in any good faith attempt to eradicate the 
dual system. In any event, however, the Houston School 
Board knew then, as it knows now, that the location 
of schools had much to do with school segregation. 
It persisted nonetheless, after ample warning from the 
plaintiffs and others, with its program of constructing 
schools in the center of high-density Negro areas. It is 
not now entitled to consideration because it wrongfully 
assumed that Briggs (even then no longer the law) was 
justification for reinforcing rather than disestablishing its 
dual system.4

4 This marks the fourth appeal to this circuit by Negro plaintiffs 
seeking relief against this the sixth largest school district in the 
United States. Judge Connally, author of the majority opinion, 
said in 1960 when considering the first integration plan submitted 
by the Houston School District, the proposed “ plan does not con­
stitute compliance wnth the * * # order of this Court, nor does it 
constitute a good faith attempt at compliance,” but rather is a 
“subterfuge designed only to accomplish further evasion and delay.”  
(Emphasis added.) Judge Brown of this Circuit saw fit to quote 
this particular language when once again considering the school 
district’s efforts toward segregation (Boss v. Dyer, 312 F. 2d 191, 
at- 192). Today, regrettably, this language remains the apt descrip­
tion of a district bent on discrimination at any cost.



19

2. The other reasons

There are many inferences contained within the ma­
jority opinions which suggest that other factors besides 
ignorance offer a reasonable basis for excusing the Hous­
ton Independent School District from complying with a 
clear constitutional mandate. Some deal with integration 
and some are quasi-equitable. In concert, they form another 
portion of the “ rationale” of the majority opinion. Singly 
and collectively they fall far short of the constitutional 
mark.

a. The majority opinion contends “ that the constitu­
tional rights of the students are otherwise protected by 
“ an adequate Freedom of Choice Plan” , apparently on 
the assumption that since students may choose any school 
in the district the placement of particular schools is not 
important (A. 30). But the Court earlier admits that 
“ the Board’s experience has shown that . . . students prefer 
to attend the school in proximity to their homes” (A. 4). 
It is dubious, therefore, that “ free choice” is likely to 
overcome any segregative effects resulting from the pur­
poseful placement of small schools in ghetto areas.®

Even more important, however, is the Board’s policy of 
providing transportation only where the closest school is 
more than two miles from the child’s home. (As we have 
explained in our original brief before the panel, the district 5

5 Even if freedom of choice might aid in integrating those 
schools placed in outlying white areas, it was quite clear that it 
would not integrate the schools at issue here—those placed in 
Negro areas. White children in Houston like those elsewhere, uni­
formly choose only white schools. See Southern School Desegrega­
tion, 1966-67, A Report of the United States Commission on Civil 
Rights, at p. 142. “During the past school year, as in previous 
years, white students rarely chose to attend Negro schools.” Cf. 
United, States v. Jefferson County, supra, 372 F. 2d at 889.



20

deviated from its own policy and provided transportation 
to promote segregation. Thus white children were fur­
nished transportation past Negro schools and Negro chil­
dren past white schools.) Faced with having to provide 
his own transportation if he chose to leave his neighbor­
hood, most Houston children declined to leave the neigh­
borhood. Freedom of choice was stifled by the Board’s 
restrictive transportation policy.

Finally while quoting Jefferson (“ that freedom of choice 
is not a goal in itself” (A. 11)), the majority appears to 
hold squarely to the contrary:

Indeed, under the Houston plan, as described by the 
school authorities, it would appear that an “ integrated 
unitary school system” is provided where every school 
is open to every child (A. 12). (Emphasis added.)

But the Court in Jefferson and the Supreme Court in 
Green specifically rejected that view. Said the Court in 
Green, 36 U. S. L. W. at 4478:

The School Board contends that it has fully discharged 
its obligation by adopting a plan under which every 
student, regardless of race, may “ freely choose the 
school he will attend.” . . . But that argument ignores 
the thrust of Brown II. In the context of the state 
imposed segregated pattern of long standing, the fact 
that in 1965, the Board opened the doors of the former 
“white” school to Negro children and of the “ Negro” 
school to white children merely begins, not ends our 
inquiry whether the Board has taken steps adequate 
to abolish its dual segregated system.



21

The majority plainly erred therefore in assuming that 
“ an integrated unitary school system” was achieved be­
cause any child could choose any school.

b. The majority also speaks of the problems of the con­
tractors and laborers who would be put out of work, had 
an injunction been granted. Certainly any third parties 
have legal remedies against the Houston Independent 
School District. It should be remembered that no con­
tractual obligations had been entered into at the time the 
injunction was sought. Moreover the ink was hardly dry 
on the contracts and construction had not yet commenced, 
when the instant case was argued in this Court and when 
Jefferson was handed down. The Houston Independent 
School District deliberately entered into this unconstitu­
tional building program with full knowledge and notice 
of the possible consequences.

c. The majority asks “ What is the alternative? The 
plaintiffs offer none” (A. 29). The very question im­
properly places the burden and reflects a misconception of 
the law. Assistance was offered by the plaintiffs and re­
jected by the district. Preparation of a building program 
takes a considerable length of time. It is not reasonable 
to expect the appellants to have evolved a comprehensive 
plan in the less than six weeks between the first announce­
ment of site selection and the commencement of the hear­
ing. All that was ever asked in the injunction was a mini­
mum delay to study the effects on segregation of a certain 
specified number of projects. The bulk of the program 
was left unimpeded.

d. The majority alleges that the school district was 
irrevocably committed to certain sites previously pur­



22

chased. But testimony at the hearing indicated that no 
substantial loss would be incurred by virtue of selling ex­
isting sites and acquiring new ones.

II.

The Majority Erred in Failing to Grant Appellants 
Any Relief After Conceding That Appellees Had Violated 
Appellants’ Constitutional Rights in the Selection of 
School Sites.

In denying all relief the majority posed the question this 
way: Whether a court of equity should enjoin a program 
of this magnitude because the school authorities were not 
endowed with sufficient prescience to anticipate Jefferson 
by some two years? We have shown elsewhere that no pre­
science was necessary; that it was sufficiently clear then 
that Briggs was no longer the law and that school officials 
were obliged to take race into account in formulating 
affirmative action to disestablish the dual system.

The record does not show the extent to which the building 
program had been effectuated at the time of the panel 
opinion. Apparently, neither the majority nor the dissent 
believed it had been completed. This is an important 
matter into which the district court should be allowed to 
inquire on remand. But even assuming that construction is 
under way at all the contemplated sites or, indeed, that the 
program was nearing completion or had been completed, 
we submit that there were more options than either grant­
ing or denying the requested injunction and that the court 
erred in failing to consider them.

In the second Brown decision the Supreme Court de­
clared that “ in fashioning decrees the Courts will be guided



23

by equitable principles” (349 U. S. at 300). Equity courts 
have broad power to mold their remedies and adapt relief 
to the circumstances and needs of particular cases. Where, 
as here, the public interest is involved “ those equitable 
powers assume an even broader and more flexible charac­
ter . . . ” Porter v. Warner Holding Co., 328 U. S. 395, 398. 
Accordingly, such courts have required wrongdoers to do 
more than cease unlawful activities and compelled them to 
take affirmative steps to undo effects of their wrongdoing. 
In Louisiana v. United States, 380' U. S. 145, 154, it was 
put this way:

The Court has not merely the power but the duty to 
render a decree which will so far as possible, elimi­
nate the discriminatory effect of the past as well as 
bar like discrimination in the future.

We believe the panel majority erred in failing to con­
sider whether there were any equitable measures available 
to the district court on remand which might have tended 
to “ eliminate the discriminatory effects of the past” , i.e. 
the segregative effects of an admittedly unconstitutional 
building program.

Although much harm is done by the erection of schools 
without regard to their tendency to reinforce the dual 
system, all is not necessarily lost simply because the build­
ing has been completed or because it has progressed to 
such a point that an injunction against construction would 
be unwise. In some situations by reorganizing the grade 
structure (having it serve other or fewer grades than 
those for which it was intended) or by changing the method 
of assigning pupils to that particular school, the harm 
caused might, to some extent, be dissipated. Judge Wis­



24

dom was, therefore, correct in suggesting that “ It is not 
too late, however, for the Board to survey the situation 
and to propose expedients to undo the effects of its build­
ing policy” (A. 26). Having effectively denied three re­
quests for injunction pending appeal, thereby bringing 
about this very difficult situation, the very least the Court 
should have done was to remand the case with instruc­
tions that the district court hold a hearing to ascer­
tain whether and to what extent the segregative effects 
of the building program might be dissipated by grade re­
organization or by alternative methods of assigning pupils. 
By way of preparation for that hearing, it would seem 
appropriate for the district court to require the board to 
make the kind of survey proposed by Judge Wisdom and 
to report its findings at the hearing.

That disposition would be entirely consistent with the 
law in this and other circuits. Thus, for example, in United 
States v. Concordia Parish School Board, No. 26071 (5th 
Cir. May 21, 1968), although this Court denied a motion 
by the United States to enjoin pending appeal, construc­
tion alleged to be in violation of Section VII of the Jef­
ferson decree, it nonetheless stated that the denial was:

Without prejudice, however, to the right of the ap­
pellants to seek in this court, on appeal, when the 
case is heard on the merits, such modification of the 
Board’s attendance plans as would lessen the likeli­
hood that the new facility would be attended solely by 
white pupils.

Cf. Raney v. Board of Education of the Gould School Dis­
trict, 381 F. 2d 252 (8th Cir. 1967) reversed and remanded 
on other grounds, 36 U. S. L. W. 4483 (U. S., May 27, 1968).



25

In Raney, Negro plaintiffs (in a district having only two 
twelve-grade school complexes, one Negro and one white) 
sought to enjoin replacement of the Negro high school at 
the Negro site on the ground that it would perpetuate 
the dual system. The district court denied relief and, be­
cause of the illness of the Court reporter, construction was 
completed prior to determination on appeal. The Eighth 
Circuit recognized that alternative uses of the building 
and of assigning students thereto would undo segrega­
tion that would otherwise result from its ill-chosen site. 
Said the Court:

There is no showing that the Field [Negro] facilities 
with the new construction added could not be con­
verted at a reasonable cost into a completely inte­
grated grade school or into a completely integrated 
high school when the appropriate time for such course 
arrives (381 F. 2d at 255).

The Supreme Court, in reversing and remanding on other 
grounds, specifically pointed out that petitioners might 
renew on remand their request that the new construction 
be utilized some other way (36 U. S. L. W. at 4483-84).

In sum, we believe the panel majority erred in assum­
ing that because construction was well under way or had 
been completed no relief was appropriate.



26

CONCLUSION

Appellants, at great expense, have done everything pos­
sible to prevent implementation of a massive construc­
tion program which all members of a panel of this court 
now agree was conducted unconstitutionally, but which 
the panel majority claims it is powerless to undo. It is 
difficult, even with the benefit of hindsight, to see what 
more appellants might have done. Well in advance of the 
signing of contracts, we sought by way of injunction a 
minimum delay so that the Board could reconsider its 
sites in light of its constitutional obligation to disestab­
lish the dual system. Our request was refused by a trial 
court in an opinion at variance with the law then and now. 
The same trial court refused to delay commencement of 
construction pending this appeal, even though no harm 
would have been caused thereby. Several times, there­
after, we moved in this court to preserve the status quo 
pending decision. Again, we were rebuffed by the same 
majority that now refuses all relief. Added to that, some 
sixteen months elapsed between oral argument and deci­
sion during which time the Board hurried to complete the 
program.

Now the majority concedes, albeit grudgingly, that ap­
pellants were correct all along but abstains from entering 
any relief because construction is completed (or near com­
pletion). We believe the judiciary, and certainly this Court 
en banc, is capable of affording Negro minors seeking 
the benefits of Brown more than a “ Pyrrhic victory.” .

The notion of awarding a bonus for delay in the area of 
integration is as repugnant to the law of this and every



circuit, as is withholding a constitutional right because of 
hostility to its enforcement. Constitutional guarantees are 
made of sterner stuff, and are. not so readily expendable.

No case has presented to this Court the propriety of a 
building program as massive and so dangerous, if wrongly 
implemented, to the effectuation of an “ integrated unitary 
school system” as that involved here. The consequences of 
the Board’s acknowledged unconstitutional conduct are far 
reaching and severe. They impose continuing and irrepara­
ble deprivation on this and future generations of Negroes 
in Houston. Whether the majority properly dealt with the 
underlying questions and whether the district court should 
investigate possible remedial action merits the attention 
of the full court.

The Houston Independent School District is by its own 
projections soon to launch on another building program. 
They may well elect to follow their past practice, rein­
forced by the majority opinion’s affirmation, and again 
utilize the delays inherent in judicial procedures. To avert 
this very real danger, Judge Wisdom as a dissenting voice 
seeks to admonish not only this, but other districts against 
such a course (A. 26). It remains however, merely the ad­
monition of a dissenting Judge.

We believe the decision of the majority, if left to stand, 
not only sets a retrogressive legal precedent, totally in 
conflict with the existing law, but will also be an open in­
vitation to still another round of subversion and evasion 
by districts such as Houston. The resilience of the Briggs 
case should be an object lesson, demonstrating that bad

’ l l



law can confound, confuse and substantially impede the 
progress of integration in the South despite seemingly 
clear language of refutation.

For the foregoing reasons appellants ask that this Court 
grant rehearing en banc.

Respectfully submitted,

Joseph L. Tita

2034 Houston Natural Gas Building 
Houston, Texas 77002

Jack Greenberg 
Conrad K. H arper 
F ranklin E. W hite 

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Appellants



Certificate

I hereby certify that the foregoing Petition for Rehear­
ing with Suggestion for Rehearing en banc is presented in 
good faith and not for purposes of delay.

Attorney for Appellants



30

Certificate of Service

This is to certify that on the 3rd day of July, 1968, I 
served a copy of the foregoing Petition for Rehearing with 
Suggestion for Rehearing en banc and Brief in support 
thereof upon Joe H. Reynolds, Esq., 1340 Tennessee Bldg., 
Houston, Texas 77002, by mailing a copy thereof to him 
at the above address via United States mail, postage pre­
paid.

Attorney for Appellants



A P P E N D I X



A P P E N D I X

la

Initial Majority Opinion 

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 4 0 1 8

ONESEPHOR BROUSSARD, ET AL,
Appellants,

versus

THE HOUSTON INDEPENDENT SCHOOL DISTRICT,
ET AL,

Appellees.

Appeal from the United States District Court for the 
Southern District of Texas.

(May 30, 1968.)

Before RIVES and WISDOM, Circuit Judges, and 
CONNALLY, District Judge.

CONNALLY, District Judge: This action was filed 
in the United States District Court for the Southern 
District of Texas as a suit for injunction against the 
Houston Independent School District. The plaintiffs 
are a number of pupils of that District, of the col­
ored race, who have filed the proceeding as a class 
action. Its purpose is to restrain the School District 
and its officers and employees from  acquiring and



2a

condemning land, from  soliciting bids, accepting bids 
or distributing funds, letting contracts or doing any 
other acts in furtherance of an extensive program  
for the construction of new schools and the im prove­
ment and modernization of other schools within the 
District. This relief was sought upon the allegation 
that the program  of new construction and rehabilita­
tion—in particular the location of a number of new 
schools—was designed by the Board to prom ote and 
to perpetuate de facto segregation in the schools. It 
was alleged that such de facto segregation deprived 
the minor plaintiffs of their right to attend an inte­
grated school, and thus deprived them of due process 
and equal protection of the laws. After a full hearing 
consisting of seven trial days and including an in­
spection by the trial judge1 of some 17 locations, in­
cluding the four or five most vigorously attacked by 
the plaintiffs, the injunctive relief was denied.1 2 We 
affirm.

To bring the issues thus presented into proper fo ­
cus, som e background is necessary. The Board of Ed­
ucation of the Houston Independent School D istrict is 
com posed of seven elected m em bers. It is charged by 
law with the operation and maintenance of the public 
school system within its geographic limits. This is an 
area of approxim ately 311 square miles, including 
most of the Houston, Texas metropolitan area. In ex­
cess of one million persons reside within its geo­

1 The Honorable Allen B. Hannay, an able and experienced 
trial judge.
2 The District Court opinion is reported 262 F.Supp. 266 
(1966).

Initial Majority Opinion



3a

graphic boundaries. Approximately 230,000 scholas­
tics attend its schools, with an average increase of ap­
proxim ately 10,000 students per year. It is the sixth 
largest school district in the nation. At the time of 
trial, it operated in excess of 200 schools (elementary, 
junior high and high schools), located throughout the 
District.

At the time of Brown vs. Board of Education, 347 
U.S. 483 (1954), the Houston schools were com pletely 
segregated by state law, with a dual boundary sys­
tem. Following Brown, on Decem ber 26, 1956 a suit 
was filed in the United States District Court for 
the Southern District of Texas (C.A. 10444, Ross vs. 
Board of Trustees, Houston, Independent School Dis­
trict) to desegregate the Houston schools. Following 
a series of hearings the District Court entered an or­
der directing that the schools be desegregated on a 
one-grade-per-year basis, beginning with the school 
year of September 1960, with com plete desegregation 
to be effected by 1971. On appeal, this action of the 
trial court was affirm ed [Houston, Independent 
School District v. Ross, 282 F.2d 95 (I960)]. Since 
that time the plan of desegregation has been acceler­
ated, in large measure by voluntary action by the 
Board,8 so that at the time of trial (June 1966) only 
the ninth grade remained segregated, and with that 
remaining vestige to be eradicated beginning with the 
school year of September 1967.3 4

3 At least such action was “voluntary” in the sense that it was 
not court ordered.
4 Additionally, the Board had taken steps to integrate its 
school faculties and its athletic program, each of which had until 
recently remained largely segregated.

Initial Majority Opinion



4a

The record shows that there is in operation a free­
dom of choice plan, pursuant to which a student, re­
gardless of his race or place of residence, m ay 
register at any school within the District, m erely by 
notifying the school authorities of the choice, and by 
having the student appear at the school of his choice 
on opening day.5

While it would appear at first blush that such a plan 
would be calculated to lead to overcrowding of some 
of the m ore popular schools, the Board’ s experience 
has shown that in large measure the students prefer 
to attend the school in proxim ity to their homes, and 
in no instance had admission been denied to a school 
of one’ s choice by reason of overcrowding.

With some variations due to population densities, it 
has been the policy of the Board to space the loca­
tion of its elementary schools at intervals of approxi­
mately one m ile; junior high schools at intervals of 
two m iles; and senior high schools at three m ile in­
tervals throughout the District. Thus inevitably many 
of the schools are located in predominantly colored 
residential sections, others in predominantly white 
residential sections, and still others in areas of a 
mixed or com m ingled racial pattern.6 Similarly, the
5 This was true at the time of trial for all grades except the 
ninth, and, as stated, this exception expires with the 1966-67 
school year.
6 Examples of schools within “fringe areas” and having ap­
proximately equal numbers of white and negro students are Mc­
Gregor Elementary, Kashmere Gardens High, Lockett Junior- 
Senior High, Rogers Junior High.

Brock Elementary School furnishes an interesting ex­
ample of the effect which a change in residential pattern will have 
on a school. Originally attended principally by white children,

Initial Majority Opinion



5a

new construction and renovation is even-handedly ap­
plied throughout the District, some in white, som e in 
negro and some in commingled areas. As most of the 
scholastics, regardless of their race, prefer to attend 
the school in their immediate vicinity,7 the racial 
com position of the student body of each school re­
flects, in general, the racial com position of the 
neighborhood wherein such school is located.

The need for the construction program  is not de­
nied. It is undisputed that many of the existing 
school facilities are grossly overtaxed; some areas 
of rapidly increasing population are inadequately 
served, or served not at all.

Initial Majority Opinion

On M ay 19, 1965, the voters of the Houston Inde­
pendent School District by popular election authorized 
the issuance of some $59 million in bonds for con­
struction purposes. The program  contemplated the 
construction of a number of new schools, some at 
new, others at old sites; the construction of new 
classroom s, the addition of cafeterias, the enlarge­
ment of campuses, etc.; and the repairing and re­
furbishing of existing facilities at still other locations. 
Some fifty schools were involved in the project.

While this was the largest single bond issue for this 
purpose in the Board’ s history, experience had shown

the number of negro children increased as the complexion of the 
neighborhood changed from white to colored. Now it is pre­
dominantly negro. Another interesting example of a mixed racial 
pattern is that of McReynolds School. It is approximately 49% 
Latin-American, 49% Anglo-American, and 2% negro.
7 This is the testimony of plaintiffs’ witnesses, and con­
firmed by School Board records.



6a

that substantial new construction was necessary at 
intervals of approxim ately four years. Preceding is­
sues had been in the amount of $39 million in 1963 and 
in the amount of $32 million in 1959.

This was the thrust of plaintiffs’ case. After de­
veloping the fact that certain schools in areas of 
dense colored population were overcrowded, and that 
the construction program  contemplated the relief of 
this situation by the erection of new schools close by, 
or the enlargement of existing facilities, the testi­
m ony of several sociologists and psychiatrists was 
offered. These witnesses, all eminently qualified in 
their fields, testified in substance that a colored child 
would not receive as good an education attending a 
com pletely, or predominantly, colored school as he 
would attending a m ore thoroughly integrated 
school.8 Hence the argument was advanced that the 
construction of a new school in an area of dense ne­
gro population, or making an old school more service­
able, m ore efficient, or m ore attractive, would, in ef­
fect, constitute a denial to the negro child residing 
in such area of the integrated-type education to 
which he was entitled.

Despite their pedagogic attainments, none of these 
witnesses had any experience as a school adminis­
8 These witnesses further testified that the Board should 
take as its objective the achievement of the same white to colored 
ratio in each school as prevailed in the overall census of the 
scholastics within the District (namely, 70% white, 30% negro). 
They further testified that this should be achieved by bussing the 
students outside of their residential areas, if other expedients 
were ineffective.

Initial Majority Opinion



7a

trator. They had little fam iliarity with the overall 
building program . No one could or would venture a 
suggestion as to where or how any one of the ques­
tioned sites should be relocated. They showed little 
awareness of any factor to be taken into account in 
the location of a school other than the racial com po­
sition of the area. The only answer which these wit­
nesses could offer to the question as to how they 
would solve the problem  of locating the new schools 
was to say that they should not be located in a pre­
dominantly negro area ;9 and to say further that if 
given time they (the experts) could no doubt find a 
better location.

The defense was that the policy of the School 
Board, past and present, was to build the schools 
where they were needed, i.e., where they would be 
most convenient for the students, particularly those of 
tender years. If was shown that in addition to the 
need for a school in a given area, many considerations 
came into play in the selection of a particular site. 
Am ong others were (a) econom ics—in some cases the 
Board, with foresight, had previously acquired prop­
erty not then needed, but held for future use which 
might profitably be availed of at this time, (b) acces­
sibility and convenience—including the condition of 
the streets, the avoidance of traffic hazards, etc., 
and (c ) coordination with the City Planning 
Commission, with realtors and developers plan-

9 These witnesses all seem to have a great affinity for the 
word “ghetto” . They repeatedly referred to certain sections of 
this city by that term. Judge Hannay found no ghetto-type 
conditions in the vicinity of any of the sites which he visited.

Initial Majority Opinion



8a

ning new subdivisions and developments, where 
large population increases might be anticipated. On 
abundant and convincing evidence, Judge Hannay 
found that the Board had been guided only by such 
proper considerations as these, and denied relief. 
Deal v. Cincinnati Bd. of Ed., 369 F.2d 55 (6th Cir. 
1966); Clark v. Bd. of Educ. of Little Rock, 369 F.2d 
661 (8th Cir. 1966); Sealy v. Dept, of Public Instruc­
tion of Pa., 252 F.2d 898 (3rd Cir. 1958).

When carefully analyzed, the plaintiffs’ position is 
simply this. No new schools should be built, or old 
schools im proved, in densely populated colored areas. 
The child resident in such area, regardless of his 
wishes, of necessity must be required to attend a 
school in some other section with a relatively high 
ratio of colored-to-white students. Considerations of 
convenience, of traffic hazards, or the wishes of the 
student and his parents should be disregarded. Such 
child simply would have to attend a high ratio col- 
ored-to-white school, and would be required to do this 
only because he was a negro.

The Constitution does not require such a result, 
and we entertain serious doubt that it would permit 
it. Racial im balance in a particular school does not, 
in itself, evidence a deprivation of constitutional 
rights. Zoning plans fairly arrived at have been con­
sistently upheld, though racial im balance m ight re­
sult. Swann v. Charlotte-Mecklenberg Bd. of Ed., 369 
F.2d 29 (4th Cir. 1966); Springfield School Commit­
tee v. Barksdale, 348 F.2d 261 (1st Cir. 1965); Wheel­

Initial Majority Opinion



9a

er v. Durham City Board of Education, 346 F.2d 768 
(4th Cir. 1965); Gilliam v. City of Hopewell, Vir­
ginia, 345 F.2d 325 (4th Cir. 1965); Downs v. Kansas 
City, 336 F.2d 988 (10th Cir. 1964); Bell v. School 
of Gary, Indiana, 324 F.2d 209 (7th Cir. 1983).

Houston has not adopted a zoning plan. Rather, un­
der the Houston plan, a child m ay attend the school 
of his choice. Those negro children who wish to at­
tend a school some distance from  their homes, with a 
high colored-white ratio, m ay do so. But those negro 
children who wish to attend a school close to their 
hom es have constitutional rights, too; and they well 
might assert such rights against a School Board 
which refused to construct a needed school in their 
area simply because it would he attended largely 
by negro students. This would be discrimination with 
a vengeance, based solely on account of race. 
Brown v. Board of Education, 347 U.S. 483 (1954). 
And would it not constitute discrimination to hold, as 
plaintiffs would have us hold, that every child in 
Houston m ay attend the school of his choice— chosen, 
perhaps, because it is convenient, because his best 
girl attends, because it has a good football team, or 
for any other sufficient reason—except those children 
living in the Fifth W ard; and to hold that they must 
attend the school chosen for them because of what 
others have determined to be a favorable colored- 
white student ratio?10 In their zeal to press for inte­
gration of the races at all levels and in all things—
10 Bradley v. School Board of Richmond, 345 F.2d 310 (4th Cir. 
1965).

Initial Majority Opinion



10a

scholastic, business, social, m arital—m any persons, 
som e of good will, com pletely lose sight of the rights 
of those who do not desire to be integrated at the m o­
ment. The Constitution protects that right, also. The 
recognition given by Court decree and by statute in re­
cent years to the negro’ s constitutional freedom  from  
enforced segregation in the field of public education, 
public transportation, voting, jury service and in re­
lated areas is to a privilege which he m ay enjoy. But 
integration, at these levels, is not a concept to which, 
like Procrustes’ bed, every individual must be fitted, 
regardless of his desires. If a negro prefers to ride in 
the rear of the bus today, he m ay not be com pelled 
to take a forw ard seat. If he wishes to vote, he m ay; 
but he m ay not be required to cast his ballot by 
those who feel it would be to his, or their, benefit that 
he do so. Of m ost recent recognition, he m ay inter­
m arry with one of another race .11 The Constitution af­
fords him these rights, not recognized until recently. 
It does not im pose an obligation on him1 to exercise 
them. It is for him to decide whether it be to his ad­
vantage. The individual is still the m aster of his 
fate.11 12

The validity of the defendant B oard ’s freedom  
of choice plan is attacked by the plaintiffs. It is ar­
gued that when new schools are com pleted in the col­

11 Loving v. V irginia,-----U.S........... (June 12, 1967), where the
Court states, “Under our Constitution, the freedom to marry, or 
not marry, a person of another race resides with the individual 
and cannot be infringed by the State.” (Emphasis added.)
12 “It is the individual who is entitled to the equal protection 
of the laws.” McCabe vs. Atchison, Topeka & Santa Fe R. Co., 
235 U.S. 151 (1914); Reynolds vs. Sims, 377 U.S. 533 (1964); 
Shelley v. Kraemer, 334 U.S. 1 (1948).

Initial Majority Opinion



11a

ored sections, they will be too convenient and too at­
tractive; and under the freedom  of choice will tend 
to produce a high incidence of de facto segregation. 
Hence we observe that a freedom  of choice plan— 
fairly and non-discriminatorily administered—has had 
the specific approval of this court as recently as the 
en banc consideration of United States vs. Jefferson 
County Bd. of Ed., . . . .  F.2d . . . .  (5th Cir. 1967), 
where the court said:

“ Freedom  of choice is not a goal in itself.
It is a means to an end. A schoolchild has no 
inalienable right to choose his school. A  free­
dom of choice plan is but one of the 
tools available to school officials at this stage 
of the process of converting the dual system 
of separate schools for Negroes and whites 
into a unitary system. The governmental 
objective of this conversion is—educational 
opportunities on equal terms to all. The 
criterion for determining the validity of a 
provision in a school desegregation plan is 
whether the provision is reasonably related to 
accomplishing this objective.” 13

While we reiterate that “ a schoolchild has no inalien­
able right to choose his school” , we add the corollary 
that where the law or rules of the School Board af­
13 And see the language of Judge Wisdom, speaking for this 
Court in Singleton v. Jackson Municipal Separate School District, 
355 F.2d 865 (1966), at p. 871:

“At this stage in the history of desegregation in the 
deep South a freedom of choice plan is an acceptable method

Initial Majority Opinion



12a

ford this right to others,14 it m ay not be denied to the 
negro child because of his race.

Judge Wisdom’s Dissent

Indeed, under the Houston plan, as described by 
the school authorities, it would appear that an “ inte­
grated, unitary school system ’ ’ is provided, where ev­
ery school is open to every child. It affords “ educa­
tional opportunities on equal terms to all.”  That is 
the obligation of the Board.15

The action of the trial court was right, and is

AFFIRM ED.

Judge W isdom ’s Dissent

WISDOM, dissenting.
I respectfully dissent.

It seems scarcely possible that in the Fifth Circuit 
a school board in a great city could look a judge in 
the eye and say that in spending sixty million dol­
lars for school buildings the board need not consider 
residential racial patterns as a relevant factor in the 
selection of school sites. The Houston School Board 
knows, everyone knows, that the location of schools 
is highly relevant to school segregation.

for a school board to use in fulfilling its duty to integrate 
the school system.” 

and cases there cited.
14 Such is the case here. The plaintiffs do not challenge the 
freedom of choice as applied to white students, nor question the 
new construction in white or in mixed residential areas.
15 United States v. Jefferson County Bd. of Ed., supra, p. 6 slip 
opinion, en banc consideration.



13a

I can understand, though I can not accept, the 
Board’ s explanation of its decision. The Board relied 
on the Briggs dictum: “ The Constitution . . . does 
not require integration. It m erely forbids desegrega­
tion.”  Briggs v. Eliott, E.D.S.C. 1955, 132 F. Supp. 
776. Many other school boards throughout the South 
have been willing victims of the Briggs word-magic. 
They em braced the chains that held them captive. 
The glitter of the rhetoric obscured the looseness of 
their bonds.

I doubt if many laymen understand the question- 
begging distinction between “ desegregation”  and 
“ integration” . In the vernacular there is no distinc­
tion. But here, as in similar situations in other states, 
the lay board understood the effect of their law yers’ 
reading of Briggs. As stated in the Board’s brief: 
“ There is no affirm ative duty on the School District 
to consider race in the selection of school sites” ; 
that would be an affirm ative act leading to integra­
tion.1

In the years that first followed the School Desegre­
gation cases, Brown v. Board of Education, 1954, 347 
U.S. 483, apologists for token desegregation could ra­
tionalize the Delphic riddle Briggs found in Brown.* 2 
Briggs offered a middle way in a difficult transition- 
ary period. And the lack of specific directions in the 
Supreme Court’s mandate in Brown along with a
’ The Board’s brief states: “ there is only one legal issue. That 
issue is whether or not the school district has this affirmative 
duty to integrate the races” .
2 Briggs was one of the original School Desegregation cases.

Judge Wisdom’s Dissent



14a

district court’ s inherent equitable power and prim ary 
responsibility for tailoring decrees to individual 
cases seem ingly gave inferior courts wide latitude in 
their handling of school desegregation plans. Later 
and slowly, by the case-by-case development of the 
law, the Supreme Court put limits on the scope of an 
inferior court’s authority to bless local action to de­
segregate schools.®

Judge Wisdom’s Dissent

There is no ameliorating reason for the m ajority ’s 
decision. It offends the law as it existed in this circuit 
at the time the case was argued on appeal.1 It offends 
the law m ore egregiously now.3 4 5

I.

The broad question this case presents is whether 
the administrators of a public school system  are un­
der a duty to take affirm ative action to desegregate
3 See, e.g. Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1399,
3 L.Ed.2d 3; Bradley v. School Board of the City of Richmond,
1965, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; Rogers v. Paul, 
1965, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265.
4 United States v. Jefferson County Board of Education, 5
Cir. 1966, 372 F.2d 847, aff’d en banc, 1967, 380 F.2d 385, cert, 
denied sub nom. Caddo Parish School Board v. United States, 
1967, U.S. , S.Ct. , 19 L.Ed.2d 103; Lee v.
Macon County Board of Education, M.D.Ala. 1964, 231 F. Supp. 
743; 1966, 253 F. Supp. 727; 1967, 267 F. Supp. 458; Braxton 
v. Board of Public Education of Duval County, M.D.Fla. 1962, 7 
Race Rel. L. Rep. 675, aff’d 5 Cir. 1964, 326 F.2d 616, cert, 
denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216.
5 Stell v. Board of Education for the City of Savannah and
the County of Chatham, 5 Cir. 1967, F.2d [No. 23724,
Dec. 4]; Davis v. Board of School Commissioners of Mobile 
County, 5 Cir. 1968, F.2d [No. 25162, March 12];
United States v. Board of Public Instruction of Polk County, 
Fla., 5 Cir. 1968, F.2d [No. 25768, April 18],



15a

the school district. The Board faced  up to this issue.® 
The narrow question before the Court is whether, in 
a context necessarily involving a choice of alterna­
tives, a school board should select sites tending to 
erase the effects of the dual system  of legalized seg­
regated schools or is free to select sites tending to 
maintain segregation (or token desegregation). The 
Board recognized the presence of this issue, but re­
solved it by determining that consideration of race 
would be an affirm ative integrative act that need not 
be taken.

M y brothers sweep the issues under the rug.

The Court does not discuss whether the Board was 
right or wrong to rest its actions on the lack of a 
duty to take any affirm ative action that might lead 
to integration. The Court does not discuss the Board’s 
deliberate decision to disregard the racial factors in 
school site selection. Instead, m y brothers try to jus­
tify the Board’ s action by finding a rational relation­
ship between the sites selected and certain nonracial 
factors, such as safety of access, the use of previous­
ly acquired property, and coordination with the City 
Planning Commission.* 63- No one doubts the relevance
G See footnote 1.
63 Many factors are relevant to the proper selection of school 
sites: safety, accessibility, economical use of city property, co­
ordination with city planners, and so on. But as Judge Tuttle 
said in Davis v. Board of Commissioners of Mobile County, 5 
Cir. 1966, 364 F.2d 896, 901: “ . . . there is a hollow sound 
to the superficially appealing statement that school areas are 
designed by observing safety factors, such as highways, rail­
roads, streams, etc. No matter how many such barriers there 
may be, none of them is so grave as to prevent the white chil­
dren whose ‘area’ school is Negro from crossing the barrier and 
enrolling in the nearest white school, even though it be several 
intervening areas away.”

Judge Wisdom’s Dissent



16a

of such criteria. But a relationship otherwise rational 
m ay he insufficient in itself to meet constitutional 
standards—if its effect is to freeze-in past discrim ina­
tion. For exam ple, a rational relationship exists be­
tween literacy or citizenship tests (fairly admin­
istered) and the right to vote. But we enjoin the use 
of such tests when they freeze into a voters ’ regis­
tration system  the effects of past discrim ination.7 
Again, a rational relationship may exist between pres­
ervation of the peace and segregation o f  schools. 
That was Little R ock ’s argument. The Supreme 
Court held that it was not enough.8

The Negro plaintiffs do not charge the Board with 
bad faith. Nor do I. The Board acted on the advice of 
its law yers; the lawyers relied on Briggs and on de­
cisions in this circuit which followed Briggs.

At most, however, Briggs addressed itself to a 
school board ’ s duty, not to its power. And the duty 
dealt with was the Board’ s minimum, negative duty 
to the individual complainant, not its duty in adminis­
tering a public school system to take affirm ative ac­
tion to provide equal educational opportunities to all 
(N egro school children as a class) by eradicating the 
vestiges and effects of the dual system of segregated 
schools.

7 See United States v. Louisiana, E.D.La. 1963, 225 F. Supp. 
353, aff’d 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709; United 
States v. Mississippi, S.D. Miss. 1964, 229 F. Supp. 925, rev’d 
380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717.
8 Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1399, 3 L.Ed.2d 3.

Judge Wisdom's Dissent



17a

Judge Wisdom’s Dissent 

II.

For m ost school boards Briggs stood like Horatius 
at the bridge, repelling the invaders while the city 
fathers cut down the bridge behind him and fortified 
the city ’s defenses. However, early in 1966 this Court 
criticized Briggs. Singleton v. Jackson Municipal 
Separate School District, 355 F.2d 865. In Decem ber 
1966, a month before this case was argued on appeal, 
this Court repudiated Briggs. United States v. Jeffer­
son County, 1966, 372 F. 2d 836. The Court en banc, 
in M arch 1967, adopted the panel’ s opinion and de­
cree, and specifically overruled earlier decisions to 
the extent that they followed Briggs. We said:

The Court holds that boards and officials 
administering public schools in this circuit 
have the affirm ative duty under the Four­
teenth Amendment to bring about an inte­
grated, unitary school system  in which there 
are no Negro schools and no white schools— 
just schools. Expressions in our earlier opin­
ions distinguishing between integration and 
desegregation must yield to this affirm ative 
duty we now recognize. In fulfilling this duty 
it is not enough for school authorities to offer 
Negro children the opportunity to attend 
form erly all-white schools. The necessity of 
overcom ing the effects of the dual school 
system  in this circuit requires integration of 
faculties, facilities, and activities, as well 
as students. To the extent that earlier de­
cisions of this Court (m ore in the language



18a

of the opinion than in the effect of the holding) 
conflict with this view, the decisions are over­
ruled. 380 F.2d at 389.

This conclusion was an inevitable development. We 
had already required faculty integration in public 
schools. Obviously, faculty integration cannot be ac­
complished without affirm ative action, affecting a 
school system as a whole, based on taking into ac­
count the racial com position of faculties.®

With respect to site selection of schools, the de­
cision of the m ajority in this case is flatly contrary 
to Jefferson. The Jefferson en banc decree provides:

NEW CONSTRUCTION

Judge Wisdom’s Dissent

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

We explained this provision in the earlier opinion:

Here race is relevant, because the govern­
mental purpose is to offer Negroes equal 
educational opportunities. The means to that 
end, such as disestablishing segregation 
among students, distributing the better teach-

9 See Bradley v. School Board of the City of Richmond, 1965, 
380 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; Rogers v. Paul, 1965, 
380 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265.



19a

ers equitably, equalizing facilities, selecting 
appropriate locations for schools, and 
avoiding resegregation must necessarily be 
based on race. School officials have to know 
the racial com position of their school popu­
lations and the racial distribution within the 
school district. The Courts and HEW can­
not measure good faith or progress without 
taking race into account. 372 F.2d at 877.

Judge Wisdom’s Dissent

The m ajority ’s decision on the Houston school con­
struction program  is also flatly contrary to a three- 
judge court’ s decision on ninety-nine school systems 
in Alabam a, a state with racial problems at least as 
difficult as those in Texas. In Lee v. Macon County 
Board of Education, M.D. Ala. 1967, 267 F. Supp. 
458, a unanimous court ordered state officials to with­
hold approval of sites for the construction or expan­
sion of schools

if, judged in light of the capacity of existing 
facilities, the residence of the students, and 
the alternative sites available, the construc­
tion will not, to the extent consistent with the 
proper operation of the school system as a 
whole, further the disestablishment of state 
enforced or encouraged public school segre­
gation and eliminate the effects of past state 
enforced or encouraged racial discrimina­
tion in the State’ s school system.

The court also enjoined further reliance upon surveys 
not conducted in accordance with the standards of



20a

this Court in the approval of school sites. 267 F. Supp. 
at 480-481.

Judge Wisdom’s Dissent

On the subject of school construction, these de­
cisions do not stand alone. In 1962 a district court is­
sued a decree enjoining the Jacksonville School 
Board from  “Approving budgets, making funds 
available, approving employment contracts and con­
struction program s, and approving policies, curricula 
and program s designed to perpetuate, maintain or 
support a school system  operated on a racially seg­
regated basis” . This Court approved the decree. 
Board of Public Instruction of Duval County, Fla. v. 
Braxton, 5 Cir. 1964, 326 F.2d 616. We said: “The 
argument of appellants here is largely to the effect 
that no court heretofore has expressly required . . . 
the planning of schools and finances to avoid racial 
operation of the schools. This argument falls fa r wide 
of the m ark.”  326 F.2d at 620.

This Court has stood firm ly behind Jefferson.10 We 
have said, “ No panel of this Court . . . has the au­

10 See Stell, et al v. Board of Public Education, et al, supra, 
slip opinion page 11, F.2d . “ [W]ith respect to pro­
visions of Section VII of the Jefferson decree, dealing with new 
construction, [tlhere is no basis for not requiring the provisions 
of that section to be a part of the order affecting the operation 
of the Dougherty County school system. Otherwise, the court 
may be faced in the future with a fait accompli after the board 
may have purchased land and entered into contracts for new 
schools without having complied with the requirements of this 
provision.”

March 12, 1968, in Davis v. Board of School Commissioners 
of Mobile, 5 Cir. 19 , F.2d [No. 25175] this Court
entered a decree containing the following provision:

CONSTRUCTION
To the extent consistent with the proper operation of 

the school system as a whole, the school board will, in



21a

thority to permit deviation from  those provisions of 
the Jefferson decree which deal with matters of sub­
stance and policy .” 11 In our most recent decision re­

Judge Wisdom’s Dissent

locating and designing new schools, in expanding facilities, 
and in consolidating schools, do so with the object of eradi­
cating past discrimination and of effecting desegregation. 
The school board will not fail to consolidate schools because 
desegregation would result.

Until such time as the Court approves a plan based on 
the survey conducted pursuant to section IV herein, con­
struction shall be suspended for all planned building projects 
at which actual construction has not been commenced.

Leave to proceed with particular construction projects 
may be obtained prior to the completion of the survey upon 
a showing by the appellees to the Court, that particular 
building projects will not have the effect of perpetuating 
racial segregation.”
February 24, 1968, in Carr v. Montgomery County Board 

of Education, M.D.Ala., F. Supp. , the Court found:
“ The evidence further reflects that the defendants have continued 
to construct new schools and expand some existing schools; cer­
tainly, there is nothing wrong with this except that the con­
struction of the new schools with proposed limited capacities 
geared to the estimated white community needs and located in 
predominantly white neighborhoods and the expansion of the 
existing schools located in predominantly Negro neighborhoods 
violate both the spirit and the letter of the desegregation plan 
for the Montgomery County School System. Examples of this 
are the construction of the Jefferson Davis High School, the 
Peter Crump Elementary School and the Southlawn Elementary 
School—all in predominantly white neighborhoods—and the ex­
pansion of Haynesville Road School and the Carver High School, 
both in predominantly Negro neighborhoods. The location of 
these schools and their proposed capacities cause the effect 
of this construction and expansion to perpetuate the dual school 
system based upon race in the Montgomery County School Sys­
tem. . . . All of this means that the defendants have failed 
to discharge the affirmative duty the law places upon them to 
eliminate the operation of a dual school system.” The Court’s 
order contains the provision: “The school board will obtain ap­
proval from the State Superintendent of Education prior to let­
ting contracts for or proceeding with the construction of any 
new school or any additions to an existing school. The State 
Superintendent will, upon receipt of such proposals, take appro­
priate action on said proposals as required by the March 22, 
1967, decree entered in Lee, et al. v. Macon County Board of 
Education, et al., 267 F. Supp. 458, 470-472, 480-481.
11 Gaines v. Dougherty County Board of Education, 5 Cir. 1968, 

F.2d [No. 25776],



22a

lating to new school construction, United, States v. 
Board of Public Instruction of Polk County, Fla., 

F.2d [No. 25768, April 1968], Judge Tuttle, 
speaking for the Court, quoted with approval the pro­
vision of the Jefferson  decree regarding new con­
struction, and then pointed out:

The appellee contends that inasmuch as the 
planning for the school was m ade without 
reference to race, there was no conscious ef­
fort on the part of the Board to perpetuate 
the dual system. This does not m eet the re­
quirements of the court order. There is an 
affirm ative duty, overriding all other con­
siderations with respect to the locating of 
new schools, except where inconsistent with 
“ proper operation of the school system  as a 
whole”  to seek  means to eradicate the ves­
tiges of the dual system. It is necessary to 
give consideration to the race of the stu­
dents. It is clear from  this record  that nei­
ther the state board nor the appellee sought 
to carry out this affirm ative obligation, be­
fore proceeding with the construction of this 
already planned school.

Judge Wisdom’s Dissent

III.

Here the Board admittedly declined to consider ra­
cial residential patterns.lla Instead, it chose the cen-

lla “If a school board is constitutionally forbidden to institute 
a system of racial segregation by the use of artificial boundary 
lines, it is likewise forbidden to perpetuate a system that has 
been so instituted. It would be stultifying to hold that a board



23a

ters of Negro residential areas, present and project­
ed, for many new schools. This building program  was 
carried out in a school district where an illusory free­
dom of choice plan, one that does not com ply with 
the Jefferson standards in many respects, has re­
sulted only in token desegregation.* 12 A few Negro 
children attend some white schools, many white chil­
dren resegregate, and the great mass of Negro chil­
dren in Houston continue to receive the inferior edu­
cation that is indelibly a part of segregated school­
ing.13

may not move to undo arrangements artificially contrived to 
effect or maintain segregation, on the ground that this inter­
ference with the status quo would involve ‘consideration of race.’ 
When school authorities recognizing the historic fact that exist­
ing conditions are based on the design to segregate the races, 
act to undo these illegal conditions—especially conditions that 
have been judicially condemned—their effort is not to be frus­
trated on the ground that race is not a permissible considera­
tion. This is not a ‘consideration of race’ which the Constitution 
discountenances . . . there is no legally protected vested inter­
est in segregation. If there were, then Brown v. Board of Edu­
cation or the numerous decisions based on that case would be 
pointless. Courts will not say in one breath that public school 
systems may not practice segregation and in the next that they 
do nothing to eliminate it.” Wanner v. Arlington County School 
Board, 4 Cir. 1966, 357 F.2d 452, 454-455.
12 In a number of respects the Houston plan falls far short 
of the standards required by Jefferson. Assignments are made 
initially on the basis of race. The plan does not require all 
students to make an annual choice. The Board sent out only 
26,000 letters or notice to parents in a district of 236,000 stu­
dents; these were inexplicit and contained no choice forms. 
Bus routes “were set up . . . on a segregated basis” and the 
“present transportation policy or transportation of the routes 
in force now will continue” , as Dr. Westmoreland, Assistant 
Director for Transportation, testified. Some Negro children are 
bussed 20 miles to segregated schools, although there are white 
schools much closer to their homes. No notice of the plan is 
given to parents.
13 Approximately 95 per cent of all of the Negro school chil­
dren in Houston attend all-Negro schools. Two per cent attend 
integrated junior high schools. One per cent attend integrated 
senior high schools. As of the date of the trial, the assignment 
to secondary schools was based on the old dual racial boundaries.

Judge Wisdom’s Dissent



24a

Houston’ s “ freedom  of choice”  plan was superim­
posed on existing dual attendance zones. The Super­
intendent of Schools testified that the various school 
boundary lines which now determine the assign­
ment of children to schools “ are the vestiges of when 
the schools did have a segregated system  under 
law ” ; that these lines have been “ maintained pretty 
much on the sam e basis since 1964” . The Board with 
no apologies, asserts in its brief, “ In selecting school 
sites fo r  any new schools in the Houston School Dis­
trict, segregation was not a fa ctor” . The failure of the 
Houston’ s freedom  of choice plan therefore was not 
a peripheral question but was the central fa ct the 
Board should have considered in selecting new school 
sites. The foreseeable effect of m ere genuflecting to­
ward freedom  of choice while carrying out a new 
building program  was to freeze existing school pat­
terns. Old “ N egro”  schools are to continue as Negro 
schools and new Negro schools are being built fo r  all- 
Negro student bodies.14

Judge Wisdom’s Dissent

14 In Jefferson, 5 Cir. 1967, 372 F.2d at 876, we said “Here 
school boards, utilizing the dual zoning system, assigned Negro 
teachers to Negro schools and selected Negro neighborhoods as 
suitable areas in which to locate Negro schools. Of course the 
concentration of Negroes increased in the neighborhood of the 
school. Cause and effect came together. In this circuit, there­
fore, the location of Negro schools with Negro faculties in Negro 
neighborhoods and white schools in white neighborhoods cannot 
be described as an unfortunate fortuity.” In Davis v. Board of 
Commissioners of Mobile County, 5 Cir. 1966, 364 F.2d 896, 901, 
Judge Tuttle, for the Court, observed: “When spoken of as a 
means to require Negro children to continue to attend a Negro 
school in the vicinity of their homes, it is spoken of as a 
‘neighborhood school plan’. When the plan permits a white 
child to leave his Negro ‘neighborhood’ to attend a white school 
in another ‘neighborhood’, it becomes apparent that the ‘neigh­
borhood’ is something else again. As every member o f this 
court knows, there are neighborhoods in the South and every 
city in the South which contain both Negro and White people.



25a

The Negro plaintiffs have taken a moderate posi­
tion. They did not ask for cross-town bussing. They 
modestly asked the Board to consider residential pat­
terns as one of a number of relevant factors in the 
site selection of public schools.15 The complaint 
asked only for an injunction against construction of 
facilities “ in such a manner as will prom ote and per­
petuate segregation and/or substantially delay de­
segregation” .

Judge Wisdom’s Dissent

So far as has come to the attention of this Court, no Board of 
Education has yet requested that every child be required to at­
tend his ‘neighborhood’ school if the neighborhood school is a 
Negro school. Every Board of Education has claimed the right 
to assign every white child to a school other than the neighbor­
hood school under such circumstances. And yet, when it is 
suggested that Negro children in Negro neighborhoods be per­
mitted to break out of the segregated pattern of their own race, 
in order to avoid the ‘inherently’ unequal education of ‘separate 
educational facilities’, the answer too often is that the children 
should attend their ‘neighborhood school.’ Review of the record 
and Exhibits relative to Transportation, Pupil Assignment, the 
‘choice plan’, and placement of new schools leaves little doubt 
as to the intent of the local district—it is clearly to perpetuate 
segregation at any cost. The neighborhood school concept is 
but another means toward that illegal end.”
15 The plaintiffs contend that Negro children living near white 
schools are bussed up to fourteen miles to Negro schools and 
that white children living near Negro schools are bussed to 
white schools  ̂ The Board counters that the Negro children may 
get off the busses to attend any white school along the way 
which they attend in accordance with the freedom of choice plan.

The plaintiffs divided the building projects into three cate­
gories: (1) new schools and expanded facilities in areas of
heavy concentration of Negroes (as to these the board acknowl­
edged that the building program would result in continued 
segregation fQr the foreseeable future); (2) projects, not neces­
sarily planned for Negro residential areas, which will reinforce 
patterns of segregation; (3) projects having an uncertain effect 
on segregatibh. The plaintiffs asked for a committee of experts 
to study these projects to determine their effect on segregation.



26a

Judge Wisdom’s Dissent

IV.

When the majority of the Court in this case reject­
ed the plaintiffs’ request for injunctive relief pend­
ing the appeal the Board’ s building program  becam e 
a fait accompli. By now therefore the Houston plan 
for continued token desegregation by a selective 
school site program  is nearing completion. It is not 
too late however for the Board to survey the situation 
and to propose expedients to undo the effects of its 
building policy.

It is not too late to sound a note of caution to 
school boards in other cities which m ay adopt a large- 
scale school construction program . With defer­
ence, I suggest that such school boards bear in mind 
that the m ajority ’ s decision is irreconciliable with 
Jefferson, Lee v. Macon County, and Braxton; and 
that recent decisions fully support Jefferson, in gen­
eral and specifically as to school construction. It is 
not too late to heed these decisions. I

I remind all school boards in this circuit that the 
Houston Board relied on Briggs as its authority for 
declining to take affirm ative action to overcom e the 
effects of the dual system of de jure segregated 
schools. But Briggs has fallen. There is a bridge un­
der construction, resting on the Constitution, connect­
ing whites and Negroes and designed to lead the two 
races, starting with young children, to a harmonious, 
peaceful, civilized urban existence. That bridge is a 
plan for equal educational opportunities for all in an



27a

integrated, unitary public school system based on 
school administrators affirm atively finding ways to 
make the plan work.

School integration is relevant. It is an educational 
objective as well as a constitutional imperative.

Majority Supplemental Opinion

Majority Supplemental Opinion

CXDNNALLY, District Judge.
While I consider the issues both of fact and of law 

presented by this record to have been fully discussed 
and clearly decided in the original opinion, the dissent 
of Judge Wisdom constitutes an indictment of the de­
fendant School Board and an accusation that the m a­
jority herein “ flatly disregarded”  the accepted law 
of this Circuit.1 Hence I feel an additional word m ay 
be appropriate. The theme for the indictment of the 
defendant Board is that it is not sufficiently integra­
tion oriented, and the charge, contrary to the find­
ings of the trial court, that what it has done looking 
toward desegregation has not been done in good 
faith.1 2

1 As announced in United States v. Jefferson County, 380 
F.2d 385.
2 For example, (1) “ . . .the Board’s unyielding policy, . . . 
is transparently a dodge to maintain segregated schools.” (2) 
“Houston’s illusory freedom of choice plan.” (3) “A freedom of 
choice plan (such as Houston’s) is only a graceless genuflection 
toward the unitary integrated public school system the Constitu­
tion requires.”

No mention is made of the steps taken toward faculty integra­
tion, integration of the athletic program, of the bus system 
designed to facilitate the exercise of the freedom of choice plan, 
etc.



28a

It should be borne in mind that the freedom  of 
choice plan, and the bona fides of its application, is at 
issue here, if at all, only in a peripheral sense. It is 
squarely in issue in an entirely separate action pend­
ing since 1956 in the District Court of the Southern 
District of Texas, where m ost of the problem s attend­
ant upon the desegregation of this largest school dis­
trict in the south have been solved am icably, and 
where the solutions have in general had approval of 
this Court, 282 F.2d 95 (1960); 312 F.2d 191 (1963).

What is at issue here is whether this $59 million 
construction program , planned, financed, and begun 
long before the controversy giving rise to Jefferson 
had matured, and while that opinion, which ultimate­
ly becam e the law in this Circuit, lay dormant in the 
heart of its author, should be enjoined as contrary to 
Jefferson.3

Jefferson im posed a duty on school authorities “ to 
the extent consistent with the proper operation of 
the school system as a w hole”  affirm atively to con­
sider the effect which a proposed new location or ex­
pansion might have upon the question of integration; 
and to choose between possible alternatives that 
which would tend to prom ote integration of student 
bodies. This mandate is perhaps m ore clearly spelled 
out in U.S. v. Board of Public Instruction of Polk
3 The chronology is as follows:

May 24, 1966—present action filed in District Court;
July 13, 1966—District Court opinion filed;
December 29, 1966—first Jefferson opinion;
January 25, 1967—present action submitted to this Court;
March 29, 1967—en banc Jefferson opinion.

Majority Supplemental Opinion



29a

County, Florida, . . . .  F.2d . . . .  (5th Cir., April 18, 
1968). Admittedly, the Houston school authorities did 
not affirm atively consider this factor, but followed 
the practice, then sanctioned both by law  and cus­
tom, of selecting sites which would best serve the 
needs of all of the scholastics of the district. The 
Board’s good faith in seeking neither to attract nor to 
divert scholastics of either race to or from  a particu­
lar school is found affirm atively by the trial court 
upon abundant evidence. The question then is wheth­
er a court of equity should enjoin a program  of this 
magnitude, well under way, because the school au­
thorities were not endowed with sufficient pre­
science to anticipate Jefferson by some two years. 
We would answer in the negative. This is required, 
we believe, by additional considerations not hereto­
fore mentioned. The Houston School Board is not the 
only party interested in this litigation or who would 
be adversely affected by the injunction which the 
plaintiffs seek. There are hundreds of contractors 
and subcontractors, and thousands of laborers whose 
work would be disrupted if this project were halted.4 
The 230,000 scholastics need the im proved facilities 
which are (or were) in the course of construction. 
Their interests would not be served by granting the 
injunction.

And what is the alternative? The plaintiffs offer 
none. There is no suggestion that Tract A  would be
4 It is interesting to note that not a word has heretofore been 
said as to whether plaintiffs were able or willing to post a bond 
to protect against damage if the injunction be issued wrongfully. 
The United States is not a party to this action.

Majority Supplemental Opinion



30a

a better site than Tract B. There is no com parison 
of price, of accessibility, or of any other factor. The 
plaintiffs ask only for delay, so that som eone m ay 
search for  other sites which the plaintiffs might con­
sider m ore suitable. Whether this would require six 
months or six years is not disclosed. Meanwhile, the 
district would be required to pay interest on its $59 
million debt, and all of those whom  it serves would 
be deprived of the new facilities. We do not feel that 
a court of equity should lend its hand to this result. 
Other construction program s will be begun, and other 
sites selected, since Jefferson has been written. They 
should, and no doubt will, be undertaken with its m an­
date in mind. It should not be given a retroactive ef­
fect unfairly to penalize this program  undertaken in 
good faith and in full com pliance with the law as it 
then existed.

After all, the granting of an injunction rests in the 
sound discretion of the Court to be exercised in ac­
cordance with equitable principles and in the light of 
all the facts and circum stances in the case.5 That is 
especially true here since the record shows that the 
constitutional rights of the students are otherwise pro­
tected by an adequate freedom  of choice plan. In our 
opinion, far from  abusing its discretion, the District 
Court acted properly under all of the facts and cir­
cumstances of this case.

5 City of Montgomery, Alabama v. Gilmore, 5th Cir. 1960, 277 
F.2d 365, 370; 43 C.J.S., Injunctions § 14; 28 Am. Jur., Injunc­
tions § 35.

Majority Supplemental Opinion



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