Marino v New York City Police Department Brief for the United States as Amicus Curiae
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July 1, 1987
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Case Files, Alexander v. Holmes Hardbacks. Motion to Vacate Suspension of and Reinstate Order Pending Certiorari with Exhibits, 1968. 4d06c249-cf67-f011-bec2-6045bdd81421. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2189e4d5-ac65-4218-b763-2cc115c444eb/motion-to-vacate-suspension-of-and-reinstate-order-pending-certiorari-with-exhibits. Accessed August 19, 2025.
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A
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1968
No.
BEATRICE ALEXANDER, et al.,
Plaintiffs-Appellants~Petitioners,
vs.
HOLMES COUNTY BOARD OF EDUCATION, et al.,
Defendants~Appellees-Respondents.
JOAN ANDERSON, et al.,
Plaintiffs-Appellants~-Petitioners,
UNITED STATES OF AMERICA,
Intervenor-Appellant-Respondent,
vs.
CANTON MUNICIPAL SCHOOL DISTRICT, et al., and
MADISON COUNTY SCHOOL DISTRICT, et al.,
Defendants-Appellees-Respondents.
ROY LEE HARRIS, et al.,
Plaintiffs-Appellants-Petitioners,
VS.
YAZOO COUNTY BOARD OF EDUCATION, et al.,
Defendants-Appellees~Respondents.
JOHN BARNHARDT, et al.,
Plaintiffs-Appellants-Petitioners,
vs.
MERIDIAN SEPARATE SCHOOL DISTRICT, et al.,
Defendants-Appellees~Respondents.
DIAN HUDSON, et al.,
Plaintiffs-Appellants-Petitioners,
UNITED STATES OF AMERICA,
Intervenor-Appellant-Respondent,
vs.
LEAKE COUNTY SCHOOL BOARD, et al.,
Defendants-Appellees-Respondents.
[3
—~ Y
JEREMIAH BLACKWELL, JR., et al.,
Plaintiffs-Appellants~-Petitioners,
VS.
ISSAQUENA COUNTY BOARD OF EDUCATION, et al.,
Defendants~-Appellees-Respondents.
CHARLES KILLINGSWORTH, et al.,
Plaintiffs-Appellants~Petitioners,
VS.
ENTERPRISE CONSOLIDATED SCHOOL DISTRICT and
QUITMAN CONSOLIDATED SCHOOL DISTRICT,
Defendants-Appellees~Respondents.
UNITED STATES OF AMERICA,
Plaintiff-Appellant-Respondent,
CEORGE MAGEE, JR.,
Intervenor-Petitioner,
VS.
NORTH PIKE COUNTY CONSOLIDATED SCHOOL
DISTRICT, et al.,
Defendants~Appellees-Respondents,
UNITED STATES OF AMERICA,
Plaintiff-Appellant-Respondent,
GEORGE WILLIAMS, et al.,
Intervenors-Petitioners,
vs.
WILKINSON COUNTY SCHOOL DISTRICT, et al.,
Defendants-Appellees-Respondents.
MOTION TO VACATE SUSPENSION OF, AND TO REINSTATE
PENDING CERTIORARI, AN ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT ORDERING
IMPLEMENTATION OF SCHOOL DESEGREGATION PLANS AT
THE COMMENCEMENT OF THE 1969-1970 SCHOOL YEAR
TO: The Honorable Hugo L, Black, Circuit Justice
For The Fifth Circuit.
Petitioners, Beatrice Alexander et al., pray that an order
be entered, pending consideration of a timely petition for a
writ of certiorari: (1) vacating an order of the United States
Court of Appeals for the Fifth Circuit entered August 28, 1969
which amended a previous order of that Court of July 3, 1969
(as amended July 25, 1969) by staying the provisions of said
order requiring the formulation and implementation of plans
of school desegregation commencing with the beginning of the
1969-70 school year; and (2) reinstating the order of July 3
(as amended July 25) providing for immediate implementation
of said plans of desegregation for the public schools of
respondent Mississippi counties. In support thereof, petitioners
show the following:
I
STATEMENT
These cases involve the desegregation of the public schools
of fourteen districts in Mississippi. The cases were all filed
originally in the United States District Court for the Southern
District of Mississippi. In seven of the cases involving
twelve districts, suits were initiated by Negro plaintiffs.
In two of the cases, Negro plaintiffs intervened August 25,
1969 in suits originally instituted by the United States.
In all of the cases, the district court, prior to the
decision of this Court in Green v. New Kent County Board of
Education, 391 U.S. 430 (1968), approved freedom of choice
desegregation plans. After the decision in Green, plaintiffs
filed motions in the district court for additional relief,
seeking the formulation and implementation of desegregation
plans other than freedom of choice, on the grounds that the
- 3 -
existing plans were not adequate to convert the dual school
systems in these districts to unitary rete The district
court denied these motions and refused to require the defendant
- school boards to formulate and implement plans promising
“realistically to work now." Green, supra, at 439 (emphasis
in original). Consequently, the Negro plaintiffs appealed
the cases instituted by them to the United States Court of
Appeals, as did the United States in the two cases in which
Negro petitioners later intervened. At or about the same
time, the United States, plaintiff in eleven other cases
(involving a number of school districts, to which cases Negro
plaintiffs were not parties) also appealed to the Fifth
Circuit from the refusal of the district court to enter
orders consistent with this Court's decision in Creen. The
cases appealed both by private plaintiffs and the United
States were all consolidated by the Court of Appeals,
On July 3, 19692, after the cases were briefed and argued,
the Fifth Circuit entered an order reversing the decision of
the district court in all the cases, ordering the district
court to require the school boards to seek the assistance of
the Office of Education of the Department of Health, Education
and Welfare in formulating new school desegregation plans for
each district and requiring the filing and implementation of
the plans in accordance with a timetable suggested by the
United States. (A copy of the July 2 order of the Fifth Circuit
is attached as Exhibit 1). The timetable approved by the
Court of Appeals provided for the submission of plans by
August 11, 1969, and their implementation at the commencement
1l/ All of the respondent school districts were appellees
in Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968).
of the 1969-70 school year in each of the districts. Subse-
quently, on July 25, 1969, the Court of Appeals amended its
order with respect to the date for implementation of these
plans providing in the amended order that the plans would go
into effect by September 1, 1969. (A copy of the amended
order is attached hereto as Exhibit 2).
Subsequent to the order of ie Court of Appeals, the
district court, in obedience to the mandate, required the
school boards in the twenty-five consolidated cases to seek
the assistance of the Office of Education of the Department
of Health, Education and Welfare in formulating the plans.
The plans were filed in accordance with the Court's timetable
on August A On August 19, little more than a week after
the filing of the plans, Robert Finch, the Secretary of Health,
Education and Welfare, wrote a letter addressed to each of
the judges of the district court and to the Chief Judge of
the Fifth Circuit, the Honorable John R. Brown, requesting
delay in the implementation of the plans at the commencement
of the school year, and asking for the opportunity to file
new plans by December 1, 1969. A formal motion by the United
States to this effect was made in the Court of Appeals on
August 21, 1969, asserting as its basis, Secretary Finch's
letter, a copy of which was attached to the motion. (The
motion of the United States with the letter of Secretary Finch
attached is appended hereto as Exhibit 3). The Secretary's
letter, and the subsequent motion, was the first indication
that the United States was now repudiating the timetable
which it had urged upon the Court of Appeals and the desegre-
gation plans prepared by it which, when filed, had been
represented to the court as acceptable both with respect to
substance and timing.
2/ Copies of the H.E.W. plans for the twelve districts involved
in the suits initially brought by Negro plaintiffs are submitted
herewith as appendices to these moving papers.
August 22, 1969, counsel for the Negro plaintiffs in
the seven cases initiated by them filed an opposition to the
government's motion, asserting that if the motion were granted,
the constitutional rights of black children in Mississippi
would be further delayed; and further, that the delay would
result from the long-standing pattern of resistance to the
consitutional rights of Negro citizens in Mississippi which
this Court held in Cooper v. Aaron, 358 U.S. 1 (1958) would
not be permitted to act as a bar to the realization of the
right of Negro children to an integrated education. (A copy
of this opposition is attached hereto as Exhibit 4).
By oral direction of the Court of Appeals, a hearing
was held before the district court in Jackson, Mississippi
on August 25, 1969 on the motion of the United States. At
the hearing, the United States was arrayed with all the
defendant school boards in the cases against the interests
of the Negro plaintiffs, who were insisting on the vindication
of their long-delayed constitutional right to equality of
educational A Consequently, at the hearing the
private plaintiffs (1) moved to realign the parties in the
suits initiated by them to make the United States party-
defendant with the school officials and (2) moved to intervene
in two additional cases which had been initiated by the
United States and to realign the parties in those cases.
The intervention was granted by the district court in the
two cases, but the motion to realign the parties to make
the United States defendant was denied.
At the hearing, the United States presented testimony
of two witnesses employed by the Office of Education of
the Department of Health, Education and Welfare, who testified
3/ some of the school boards formally joined in the motion
of the United States. See Exhibit 5 hereto.
that the integration plans submitted by them were educationally
sound. However, both witnesses testified, implementation
should be delayed because there were administrative difficulties,
generally stated, in implementing the plans' provisions =-
difficulties which by their own admission the school boards
had not attempted to solve in the fifteen years since Brown v.
Board of Education, 347 U.S. 483 (1954). In opposition,
private plaintiffs presented the testimony of an expert witness
who stated, after reviewing the plans submitted, that there
were not in his opinion any educational reasons to delay
their implementation; and further, that the reasons given by
the government's witnesses were generalities not related to
a single specific situation in any of the school districts
involved. Also introduced at the hearing was a letter from
Dr. Gregory Anrig, Director of the Equal Educational Opportuni-
ties Division, Office of Education, United States Department
of Health, Education and Welfare =~ the person responsible
for final review and submission of the plans to the court =-
who wrote to the district court that in his judgment the plans
were unobjectionable, both educationally and from the stand-
4/
point of timing.
5/
The record of the hearing was immediately transmitted to
the Court of Appeals pursuant to that Court's oral direction
to the district court. The district court, in transmitting
the record to the Court of Appeals, recommended that the
delay requested by the United States be granted. (A copy of
the district court's recommendation of decision is attached
hereto as Exhibit 7). On August 28, the panel of the Court
of Appeals which had entered the July 3 order (Chief Judge
Brown, Judges Thornberry and Morgan) entered an order granting
the government's request for delay in implementation of the
plan by amending their previous orders. (A copy of this order
4/ A copy of the letter transmitting the plans to the district
court is submitted herewith as an appendix to these motion papers.
5/ The transcript of the hearing is submitted herewith as an
Appendix to these motions papers.
“low
3 ® ®
hb)
is attached hereto as Exhibit 8).
II
REASONS FOR GRANTING THE MOTION
A,
The Authority Of This Court, Or A Single
Justice Of The Court, To Grant The Requested
Relief Is Conferred By 28 U.S.C. § 1651la.
Petitioners seek an order vacating what is in effect a
stay by the Court of Appeals of its previously entered order.
An order comparable to that which petitioners here seek was
entered by this Court in Lucy v. Adams, 350 U.S. 1 (1955).
The Lucy case involved the application of Negro petitioners
for injunctive relief to obtain admission to the then all-
white University of Alabama. The district judge granted
relief and then suspended his order. The Court of Appeals
refused to vacate the stay of the District Court injunction.
On motion in this Court, an order was entered vacating the
stay and reinstating the injunction ordering the University
to admit petitioners. Thus, the Lucy case is a direct precedent
for the relief requested here. The Court clearly has power
to grant the requested relief under the all-writs statute,
28 U.S.C. § 1651.
The power of a single Justice to grant such relief is
equally clear. Similar relief was granted by Mr. Justice
Black in an order entered on August 30, 1968 in Boomer v.
Beaufort County Board of Education. (Unreported). In
Johnson v. Stevenson, 335 U.S. 801 (1948), a single Justice
of this Court granted a stay of a District Court injunction
pending an appeal in the Court of Appeals. The Court subse-
quently approved the action of Mr. Justice Black acting as
a single Justice, by refusing to modify his order, Johnson v.
Stevenson, supra. For a discussion of the Court's power to
grant stays pending an appeal in the Court of Appeals, see
Stern & Gressman, Supreme Court Practice (3rd Ed. 1962),
- 8 -
: ® a
J
Pp. 418-420, 431-433; Robertson & Kirkham, Jurisdiction of
the Supreme Court of the United States (1951), pp. 900-902;
see also, Rule 51 of the Rules of this Court.
B.
The Delay In School Desegregation
Granted By The Court Of Appeals In
These Cases Is Unijustifiable.
When these cases were appealed and consolidated on appeal
with similar appeals by the United States, the Court of Appeals,
in recognition of the fact that "{[tlhe time for mere ‘deliberate
speed’ ha[d] run out" Griffin v. County School Board, 377 U.S.
218, 234 (1964) expedited its consideration of the appeals.
Its opinion-order of July 3rd stated its reasons:
"The Court on the motion to summarily reverse
or alternatively to expedite submission of
the case filed by the Government and the
private plaintiffs concluded that fundamental
constitutional rights of many persons would
be jeopardized, if not lost, if this Court
routinely calendared this case for briefing
and argument in the regular course. Before
we could ever hear it, the opening of the
school year September 1969-1970 would have
gone by. With this and the total absence of
any new issue even resembling a constitutional
issue in this much litigated field, we therefore
concluded that the appeals should be expedited.”
(Emphasis added.)
In addition to expediting the appeals, the Court also required
the parties to submit in advance of oral argument proposed
opinion-orders so that it could arrive at a decision quickly
after oral Eg As the Court noted in its August 28th
opinion-order, all parties were fully heard and given the
opportunity to present any arguments they had to justify delay
7/
in implementation of new school plans. After entertaining
6/ "As questions of time present such urgency as we approach
the beginning of the new school year September 1969-70, the
court requested in advance of argument that the parties submit
proposed opinion=-orders modeled after some of our recent school
desegregation cases." July 3 opinion-order, p. 1l.
7/ "On the argument, the Court heard from some 18 counsel
over a period of the entire day." August 28 opinion=~order,
Pe. ®
the arguments of the parties, including the United States,
and reviewing the pre-filed proposed opinion-orders, the
Court issued its opinion-order the very next day after the
arguments concluded.
In its opinion, the Court was firm in not countenancing
any arguments for delay in the implementation of the new
school plans that it required to be prepared beyond the opening
of the 1969-70 school year. Its firmness in this regard was
in response to a record which demonstrated the woeful inadequacy
of the freedom of choice plans operating in the school
Alstuigtel as well as the inadequacy of the arguments urged
by the defendant school boards for retention of these in-
adequate plans, e.g., polarization of Negroes and whites,
exodus of white students from the school system (July 3 opinion=-
order, pp. 7-8). This latter argument was properly characterized
as "but a repetition of contentions long since rejected in
Cooper v. Aaron.”
Since the July 3 opinion-order, there have been neither
new facts of record nor any new arguments justifying in any
way the Court's retreat from its order of that date. Indeed,
in the period between the date of that order and the receipt
of Secretary Finch's letter, plans for desegregation of the
school districts, agreed by all the educators who reviewed
them to be sound, were presented by the United States to the
district court in accordance with a timetable for their pre-
sentation and implementation proposed and urged by the United
States! Nothing occurred during this period to make that
8/ Attached to the Court's opinion-order were footnotes
showing the almost total absence of any measurable integration
both with respect to pupil and faculty assignment. See also
the detailed summary of statistics in each district prepared
by the United States for the oral argument at the request of
the Fifth Circuit, submitted herewith as an appendix to these
motion papers.
“ 10 =
1
timetable unacceptable save what has perennially marked the
frustration of school desegregation over the years: (1) the
absolute refusal of the school officials to prepare for the
implementation of plans that would actually accomplish de-
segregation of the public schools and (2) the hardening of
community attitudes in resistance to any effective integration
plans. But as the Court of Appeals itself noted in its
July 3 opinion~-order, these things are "the total absence of
any new issue even resembling a constitutional issue in
this much litigated field" and are only repetitive "of contentions
long since rejected in Cooper v. Aaron." As this Court said
in Green v. School Board of New Kent County, 391 U.S. 430,
last year, "it is relevant [here as in that case] that this
first step did not come until some 11 years after Brown I was
decided and 10 years after Brown II directed the making of
a 'prompt and reasonable start'", 391 U.S. at 438. As this
Court in Green continued "[t]his deliberate perpetuation of
the unconstitutional dual system can only have compounded the
harm of such a system. Such delays are no longer tolerable..."
Ibid.
Nor did the August 25 hearing ordered by the Court of
Appeals in response to the motion of the United States for
delay produce any acceptable reasons justifying the delay.
The testimony was to the effect that there were some things
that it was desirable to do before implementing the H.E.VW.
proposed plans. But not only was there contrary testimony
that these steps were not sufficient to justify delay in
implementation of the plans; there was also the total absence
of any evidence that these school officials, who had made
no effort to prepare either their school systems or their
communities for the implementation of any plan amounting to
more than token integration, would now do so. Thus the Court
% ® @®
of Appeals, without stating any reasons for its actions other
than the Government's request, assented to delay of effective
school integration plans without any evidence that the delay
would bring about the desired results. Clearly in light of
Green, there could no longer be any acceptable reason for
postponing the full realization of the constitutional rights
of the black children of Mississippi in their attendance in
school districts such as those before this Court, districts
in which the only "reasons" for delay are the failures of
the school administrators themselves and the feared reaction
of the community. If these reasons are in fact acceptable,
if these reasons fifteen years after Brown I can serve to
justify delay in the implementation of desegregation plans,
then desegregation of schools will never be accomplished and
the decision in Brown will remain a mockery.
«13 «
“ 7
> ® rR A
1
C.
The Delay in Desegregation Occasioned
By The August 28 Order Will Cause
Petitioners Irrevarable Harm And In
The Circumstances Of The Cases It
Would Be Equitable To Grant A Stay
Injunction Pending Certiorari
It is respectfully submitted that the balance of equities
favors the petitioners and the reinstatement of the original court
order pending certiorari. At stake in the litigation is the
constitutional right of Negro schoolchildren in Mississippi as
declared by this Court more than 15 years ago in Brown v. Board of
Education, 347 U.S. 483; 349 U.S. 294 (1954-55). This Court has
on numerous occasions since the Brown decision considered applica-
tions for stays to delay compliance with the Brown decision.
Consistently, the Court and the individual Justices of the Court
have rejected efforts to delay compliance with Brown bv southern
school districts and universities by invoking the discretionary
powers of the courts to issue stays. See, e.g., Lucy v. Adams,
350 U.S. 1 (1955); County School Board of Arlington County, Virginia
v. Hamm, 4 Race Rel. L. Rep. 14 (1959) (Order of Mr. Chief Justice
Warren); United States v. Louisiana, 264 U.S. 500 (1960): Ennis Vv.
Evans, 364 U.S. 802 (1950); Houston Independent School District v.
Ross, 364 U.S. 803 (196C); Orleans Parish School Board v. Bush, 364
U.S. 803 (1960); Danner .v. Holmes, 364 U.S. 9229 (1960), refusing to
reinstate a stay dissolved by Chief Judge Tuttle of the Fifth
Circuit in Holmes v. Danner, 5 Race Rel. L. Rep. 1091 (1961):
Board of Education v. Tavlor, 82 S. Ct. 1C (1961) (opinion by Mr.
Justice Brennan in chambers); Meredith v. Fair, 9 L. Ed. 2d 43, 83
S. Ct. 10 (1962) (opinion of Mr. Justice Black in chambers); Board
of School Commissioners v. Davis, 11 L. Ed. 24 26, 84 S. Ct. 10
(1963) (opinion of Mr. Justice Black in chambers); Wallace v. Lee,
387 U.S. 916 (1967): Caddo Parish School Board v. United States, 386
U.S. 1004 (1967). This Court has recently reiterated that delays
in implementing the constitutional right to a desegregated public
school education are "no longer tolerable." Green v. County School
Board, 391 U.S. 430 (1968); see also Watson v. Citv of Memphis, 373
A
1 .
U.S. 526, 529 (1963); Bradley v. School Board, 382 U.S. 103
(1965); Rogers v. Paul, 382 U.S. 198 (1965); Griffin v. County
School Board, 377 U.S. 218, 234 (1964); Goss v. Board of
Education, 373 U.S. 683, 689 (1963). In an unreported order
in Boomer v. The Beaufort County Board of Education (August
30, 1968), Mr. Justice Black vacated stay orders in two cases
issued by a panel of the Fourth Circuit, and reinstated in-
junctions requiring prompt school desegregation. In the Boomer
order Mr. Justice Black said that the Green decision "requires
that the desegregation of schools be completely carried out
at the earliest possible moment." The effect of the August
28 order is to postpone any effective desegregation plan in
the school systems for another year. The experience of the
school systems with the freedom of choice plan demonstrates
that no substantial reorganization of the system can possibly
be expected while the free choice plan is continued in effect
for another year. Accordingly, the grant of a delay denies
the petitioners' constitutional rights to desegregated public
education and thus does them irreparable harm. Chief Judge
Tuttle of the Fifth Circuit wrote in Holmes v. Danner, 5 Race
Rel. L. Rep. 1091 (January 9, 1961) that:
The denial of a constitutional rights, for
whatever reason, cannot be said to be wanting
in serious damage merely because the damage
cannot be measured by money. Irreparable
injury results in the denial of a constitutional
right, largely because it cannot be measured
by any known scale of value. I do not believe
that the courts can deny relief when asked to
prevent a continued denial of constitutional
rights merely on the ground that the grant
of relief will produce difficult or unpopular
results,
In United States v. Board of Education of City of Bessemer,
396 F.2d 44, 49 (5th Cir. 1968), the Court said:
Unfortunately, the clock has run. It still
ticks. The past with its demonstrated perform-
ance (or lack of it) cannot be eradicated. The
question then is: What is now to be done =-
done (a) to achieve as soon as possible those
things which ought to have been accomplished
up to this time and (b) to finish the job?
- 14
: a | ®
1
The opinion below states no ground for continuing the
segregation pattern sought to be remedied by the original
order for another school year. Accordingly, it is respectfully
submitted that the order of the Fifth Circuit of July 3, 1969
(as amended July 25, 1969), requiring desegregation of these
Mississippi school districts should be reinstated pending
disposition of a timely petition for certiorari to review
the action of the Court of Appeals in issuing its August 28
order.
Respectfully submitted,
pra . :
4 / 4 - > - 4 - Zz v
{ 4 bo; FIL 7 C ; Ponca HLT
So Greenberg
James M. Nabrit, III
Norman C. Amaker
Norman J. Chachkin
10 Columbus Circle
New York, New York 10019
Melvyn R. Leventhal
Reuben Anderson
Fred L. Banks, Jr.
538% No. Farish Street
Jackson, Mississippi
Attorneys for Petitioners
w'i5 -
JAR THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
DT TEU a
Nos, 28030 & 28042
a
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Ve
HINDS COUNTY SCHOOL BOARD, et al.,
Defendants-Appellees.
{Civil Action do, 2075(3))
a
BUFORD A. LEE, et al.,
Plaintiffs-Appellees,
Vv.
UNITED STATES OF AMERICA,
- Defendant-Appellant,
Vo.
MILTON EVANS,
Third Party
' Defendant-Appellee.
(Civil Action No. 2034 (1))
UNITED STATES OF AMERICA,
SE Plaintiff-Appellant,
v. .
KEMPER COUNTY SCHOOL BOARD, et al.,
Defendants-Appellees.
(Civil Action No. 1373(Z))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Ve
NORTH PIKE COUNTY CONSOLIDATED
SCHOOL DISTRICT, et al.,
Defendants-Appellees.
(Civil Action No, 3807(J))
UNITED STATES OF AMERICA,
Plaintiff-Appecllant,
Ve
NATCHEZ SPECIAL MUNICIPAL SEPARATE
SCHOOL DISTRICT, et al.,
y Defendants-Appellees.
(Civil Action No. 1120(W))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Ve
MARION COUNTY SCHOOL DISTRICT, et al., i
Defendants-Appellees. ;
(Civil Action lo, 21781))
JOAN ANDERSON, et al.,
- ° ~
Pl a: iit a lg: Anne antec
CA bl Ce COD Lays ded Cats C0
UNITED STATES OF AMERICA
. 2laintiff-Intervenor-Appellant,
Ve
THE CANTON MUNICIPAL SCHOOL DISTRICT, et al.,
and THE MADISON COUNTY SCHOOL DISTRICT, et al.,
Defendants-Appellees.
(Civil Action No. 3700(J))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Y,
SOUTH PIKE COUNTY CONSOLIDATED
SCHOOL, DISTRICT, et al.,
Defendants-Appellees.
(Civil Action Yo. 3984 (J))
BEATRICE ALL. {ANDER, et al.
Plaintiffs- Appellants,
HOLMES COUNTY BOARD OF EDUCATION, et al.,
Defencanie ~-Appellees.
(Civil Action No. 3779(J))
ROY LEE HARRIS, et al.,
Plaintiffs-Appellants,
V.
THE YAZOO COUNTY BOARD OF EDUCATION, et al.,
| Defendants-Appellees.
(Civil Action No, 1209(W))
JOHN BARNHARDT, et al.
Plaintiffe-Appellants,
Ve.
MERIDIAN' SEPARATE SCHOOL DISTRICT, et al,
: Defendants- Appellees.
(Civil Action No, 1300(E))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Yeo
i
NESHOBA COUNTY SCHOOL DISTRICT, et al.,
Defendants-Appellees.
(Civil Action No. 1396(E))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
ve.
NOXUBEE COUNTY SCHOOL DISTRICT, et al.,
Defendants - Appellees.
(Civil Action No. 1372(E))
A A A Stn. int mete +
UNITED STATES OF AMER LCA,
Plaintiff-Ap; sellant,
V.
LAUDERDALE COUNTY SCHOOL BISTRICY, eb al, ,
Defendants Appaliecs,
(Civil Action No. 1367 (E))
——
DIAN HUDSON, et al.,
Plaintiffs-Appellants,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor- Appellant,
V.
. LEAKE COUNTY SCHOOL BOARD, et al,,
Defendants-Appellees.
(Civil Action No, 3382 3).
UNITED STATES OF AME RICA,
Plaintiff- Appellant,
yg
COLUMBIA MUNICIPAL SEPARATE SCHOOL, et al.,
Defendants- -Appellees.
(Civil Action No. 2199 (H))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Ve.
AMITE COUNTY SCHOOL DISTRICT, et al.
Defendants- ADDAllced.
(Civil Action No. 3983 (J))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Ve
COVINGTON COUNTY SCHOOL DISTRICT, ef al.,
Defendants-Appellees.
(Civil Action No. 2148(H))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Vv e
LAWRENCE COUNTY SCHOOL DISTRICT, et al.,
Defendants-Appellees.
(Civil Action No. 2216 ())
JEREMIAH BLACKWELL, JR., et:al.,
Plaintiffs-Appellants,
x7
v e
ISSAQUENA COUNTY BOARD OF EDUCATION, et al.,
: Defendants-Appellees.
(Civil Action No. 1096 (W))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Ve.
WILKINSON COUNTY SCHOOL DISTRICT, et al.,
Defendants-Appellees.
(Civil Action No. 1160(W))
CHARLES KILLINGSWORTH, et al.
Plaintiffs- -Appellants,
Ve
THE ENTERPRISE CONSOLIDATED SCHOOL DISTRICT
gn QUITMAN CONSOLIDATED SCHOOL DISTRICT,
Defendants-Appelleecs.
{Civil Action No, 1302(E))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
LINCOLN COUNTY SCHOOL DISTRICT, et al.
Defendants-Appellees.
[
’
{Civil Action No, 4294(J))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
V ® :
PHILADELPHIA MUNICIPAL SEPARATE or Ny
SCHOOL DISTRICT, et al.,
Defendants-Appellees.
(Civil Action No, 1368(E))
UNITED STATES OFF AMERICA,
Plaintiff-Appellant,
Ve
FRANKLIN COUNTY SCHOOL DISTRICT, et al.,
; Defendants-Appellees.
(Civil Action No, 4256(J))
Appeals from the United States District Court for the
Southern District of Mississippi :
(July 3, 1969)
Before BROWN, Chief Judge, THORNBERRY and MORGAN, Circuit Judges.
L
4
PER CURIAM:
As questions of time present such urgency as we
approach the beginning of the new school year September
1969-70, the court requested in advance of argument that
the parties submit proposed opinion-orders modeled after
some of our recent school desegregation cases. We have
drawn freely upon these proposed opinion-orders.
These are twenty-five school desegregation cases
in a consolidated appeal from an en banc decision of
the UU. 8. District Court for the Southern District of
yi
Mississippi. These cases present a common issue:
whether the District Court erred in approving the con-
tinued use by these school districts of freedom of
choice plans as a method for the disestablishment of
the dual school systems.
The plaintiffs' position is that the District
Court erred in failing to apply the principles anncunc
- -~
K .
in recent decisions of the Supreme Court and of this
Court. a AT
> Hoh,
These same school districts, along with others,
were before this Court last vear in Adans Vv. Mathews,
403 F.2d 181 (5th Cir., 1968). The cases were there
remanded with instructions that the district courts
(1) whether the school board's Xigting
plan of desegregation is adequate "to
convert [the dual systen] to a unitary
system in which racial discrimination
would be elininated root and branch" and"
(2) whether the proposed changes will
result in a desegregation olan that
"promises realistically to work now."
oe
~
ind
z
“3
pe
A .
¢
’
403 F.2d at 188. In determining whether freedom of choice
- would be acceptable, the following standar O
= \
4 NN
Ss wore to be
applied:
If in a school distvict thers are
still all-Hegro schools or only a
small fraction of Negroes enrolled in
whlie schools, or no substantial
integration of faculties and school
activities then, as a matter of law,
the existing plan fails to neet
constitutional standards as estab-
lished in Green.
en a ree ea
In all pertinent respects, the facts in these cases
are similar. No white students has ever attended any
traditionally Negro school in any of the school districts.
Every district thus continues to operate and maintain its
all-Negro schools, The record conpels the conclusion tha
to eliminate the dual character of these schools alterna-
tive methods of desegregation must be employed which
would include such methods as zoning and pairing.
Not only has there been no cross-over of white
students to Negro schools, but only a snall fraction of
Negro students have enrolled in the white schools. The
highest percentage is in the Enterprise Consolidated
School District, which has. 16 percent of its Negro
students enrolled in white schools~-—-a degree of desegre-
gation held to be inadequate in Green v. County School
Board, 331 U. 8. 430 (1968). The statistics in t
remaining distr.cts range from a high of 10.6 percent
in Porrest County to a low of 0.0 percent in Neshoba
,. .
and Lincoln Counties. For the most part school activi-
ties also continue to be segregated, Although Negroes
attending predominantly white schools do participate on
teams of such schools in athletic contests, in none of
the districts do white and all-Negro schools compete in
¢
s
athletics,
: »
These facts indicate that these cases fall squarely
within the decisions of the Supreme Court in Green and
its companion cases and the decisions of this Court.
See United
Ea
States v. Greenwood Municipal Senarate School (
nr a rn re 4 at te —————— ——— ——————
Distvrict, 4056 ¥,.24 1086 45th Cly. 19469); Henry v. Clarhksg-
dale Municipal Separate School District, No. 23,255(5¢th
Ss —— a —— a Cr—a. re St et a Ar —— — ————
Cir., March 6, 1969); United States v. Indianola Municipal
Crrmaradn Separate SC
Br arn rn et th ee + Some — ——
1969); Anthony v. Marshall County Board of Education,
oh
0 Py
0 oy
No. 26,432 {5th Cir.; April 15, 1969); Hall v. S
Parish.School Board, No. 26,450 {5th Civ., May 28,1569);
— —— —— ————-- —
Davis v. Board of School Commissioners of Mobile County,
a
No. 26,886 (5th Cir., June 3, 1969); United States v.,
Jefferson County Board of Education, No. 27,444 (5th
rn cn tr amen. To
.
Cir., June 26, 1969); United States v. Choctaw County
Board of Education, 5 Cir. 1969, F.28 (Fo. 27, 297,
July 1, 1969); United States v. The Board of Education
of Baldwin County, 5 Cir, 15690, F. 24 (No. 27,281;
July 1, 1969); United States v. The Board of Education of
the City of Bessemer, 5 Cir. 1969, F.2d
(Nos. 26,582; 26,583; 26,584, July 1, 1969). The proper
3
4
7
conclusion to be drawn from these facts is clear from
the mandate of Adams v. Mathews, supra: "as a matter of
law, the existing plan fails to meet constitutional
standards as established in Green,"
3a
[§
r We hold that these school districts will no
Tonner be able to rely on freedom of choice as the
method for disestablishing their dual school SyS—
tems.
This may mean that the tasks for the courts
will become more difficult. The District Court
itself has stated that it "does not possess any of
the training or skill or experience or facilities
to operate any kind of schools; and unhesitatingly
admits to its utter incompetence to exercise or
exert any helpful power or authority in that area.”
And this Court has observed that judges "are not
educators or school administrators." United States
v. Jefferson County Board of Education, supra at
a a — >
855. Accordingly, we deem it appropriate for the
Court to require these school boards to enlist the
assistance of experts in education as well as
desegregation; and to require the school boards to
cooperate with them in the disestablishment of their
dual school systems.
¢
FJ
With respect to faculty desegregation, little
2/
progress has been made. Although Natchez-Municipal
Separate District has a level of 19.2% and Lawrence
County a level of 10.6%, seven school districts have
less than one full-time teacher per school assigned
across racial lines. In the remaining systems, fewer
than 10 percent of the full-time faculties teach an
schools in which hel race is in the minority. Paculties
must be integrated. United States v. Montgomery County
Board of Education, No. 798, at 8 (Sup.Ct., June 2, 1969).
Minimum standards should be established for making
substantial progress toward this goal in 1969 and finish-
ing the job by 1970. United States v. Board of Education
of the City of Bessemer, 5 Cir., 1968, 396 F.2d 44 ,
J
Choctaw County, supra; Baldwin County, supra.
a i :
{
’
authorities from influencing the exercise of choice
by students or parents. We find this completely
unsupported. This record affords no basis for any
expectation of any substantial change were the provision
modified.
Based upon similar testimony, the School Districts
urged a related contention that the uncontradicted
statistics showing only slight integration are not a
reliable indicator of the commands of Green. This
argument rests on the assertion that quite apart from
a prior dual race school system, there would be concen-'
tration of Negroes or white persons from what was described
as "polarization." To bolster this, they pointed to
school statistics in non-southern communities. Statistics
are not, of course, the whole answer, but nothing is as
pHs, m— v
emphatic as zero, and in the face of slight numbers and
low percentages of Negroes attending white schools, and
no whites attending Negro schools, we find this argument
unimpressive.
In the same vein is the contention similarly based
on surveys and opinion testimony of educators that on
stated percentages (e.g., 20%, 30%, 70%, etc.), integration
of Negroes (either from influx of Negroes into white
schools or whites into Negro schools), there will be an
Ld
’
exodus of white students up to the point of almost 100%
Negro schools. This, like community response or hostility
or scholastic achievement disparities, is but a repetition
of contentions long since rejected in Cooper v. Aaron,
1958, 358 U.S. 1, B.08. LeEd, Cy Stell wv. rom —
Savannan-Chatham County Bd. o
F.2d 55, 61; and United States v. Jefferson County Bd. of
Bd.,, 5 Cir., 1959, F.248 [No. 27444, June 26, 1969].
¢
if
The order of the District Court in each case
is reversed and the cases are remanded to the
District Court with tle following direction:
l. These cases shall receive the highest
priority.
2. The District Court shall forthwith request
that educators from the Office of Education of the
united States Department of H=alth, Education and
Welfare collaborate with the defendant school boards
in the preparation of plans to disestablish the dual
school systems in question, The disestablishment
plans shall be. directed to student and faculty
assignment, school bus routes if transportation is
provided, all facilities, all athletic and other
tion activities. The District Court shall further
require the school boards to make available to the
Office of Education or its designees all requested
information relating to the operation of the school
.
systems.
3. The board, in conjunction with the Office
Of Education, shall develop and present to the District
Court before August 11, 1969, L an acceptable plan of
‘desegregation.
4. If ths Office of Education and a school
board agree upon a plan of desegregation, it shall
be presented to the District Court on or before
¢
>
August 11,1969. The court shall approve such plan
for implementation commencing with the 1969 school
year, unless within seven days after submission to
the court any party filee any objection or propos~d
amendment thereto alleging that the plan, ‘or any
part thereof, does not conform to constitutions
standards.
5. If no agreement is reached, the Office
of Education shall present its proposal to the
District Court on or before August 11,1969. The
Court shall approve such plan for implem=ntation
commencing with the 1969 school year, unless
within seven days a party makes proper showing
that the plan or any part thereof does not conform
tO congtitutional standards.
6. For plans to which objections are made
or amendments. suggested, or which in any event
the District Court will not approve without a hear-
ing, the District Court shall. hold hearings within
>
five days after the time for filing objections and
proposed. amendments has expired. In no event later
than August 21, 1969.
7. The plans shall .be completed, approved,
and ordered for implementation by the District
Court no later than August 25, 1969. Such a plan
shall be implemented commencing with the beginning
of the 1969-1970 school year.
-10~-
¢
2
8. ‘Because of the urgency of [ormulating
and approving plans to be implemented for the 1969Y-
70 school term it is ordered as follows: The
mandate of this Court shall issue immediately and
will not be stayed pending petitions for rehearing
Or certiorari. This Court will not’ extend the
time for filing petitions for rehearing or briefs
in support of or in opposition thereto. Any
appeals from orders or decrees of the District
Court on remand shall be expedited, The record
on any appeal shall be lodged with this court and
appellants' brief filed, all within ten days of
the date of the order or decree of the district
court from which the appeal is taken, Appellee's
| ol
Le brief shall
court will determine the time and place for oral
argument if allowed, The court will determine
the time for briefing and for oral argument if Oo oo
allowed, No consideration will be given to the
RE
>
fact of interrupting the school year 'in the event g y
further relief is indicated.
REVERSED AND REMANDED WITH DIRECTIONS
«ll
UNITED STATES OF AMERICA,
Vv.
HINDS COUNTY SCHOOL BOARD, ET AL,
Nos.
Y/
Plaintiff-Appeliant,
Defendants-—-Appellees.
28030 and 28042
FOOTNOTES
Illustrative are the following tables,
he
in each district and the enrollment by race:
District
Amite
Canton
Columbia
Covington
Forrest
Franklin
Hinds
Kemper
Lauderdale
lawrence
leake
Lincoln .
Madison
Marion
Meridian
Natchez-Adams
Neshoba
North Pike
Noxubee
Philadelphia
Sharkey-Issaquena
Anguilla-Line
South Pike
Wilkinson
Total
RACIAL CHARACTER
Number
of Schools
nN
R
W
W
A
R
N
N
O
U
T
O
O
N
T
U
U
T
A
W
W
D
I
d
e
n
pt
pd
13.
corrected
racial character
to the latest
available data furnished and checked by counsel, in the cases in which
the Government is a party showing of the schools
All- All- Predominantly
Negro White White
2 1 2
3 . 2
1 - 3
3 Yih 3
1 2 6
3 _ 2
10 1 11
2 1 2
Y 2 2
2 3 2
3 3. 1
2 3 -
4 - 4
1 2 2
8 - 11
7 8
1 —- 1
1 2 1
3 - 3
3 l 1
4 - 1
2 1
2 oS
2 2
Contd - Footnotes
2/ The latest corrected figures —
District
Amite
Canton
Columbia
Covington
Forrest
Franklin
Hinds
Kemper
Lauderdale
lavrence
leake
Lincoln
Madison
Marion
Meridian
Natchez-Adams
Neshoba
North Pike
Noxuhee
Philadelphis
Sharkey-Issaquena
Anguilla-~Line
South Pike
Wilkinson
Full & part
time teachers
Full time desegre-
gating teachers
Negro White
95 66
120 81
43 71
64 103
43 122
44 45
295 281.9
68 45
82 131
S50 81
87 90
38 74
147 66
48 96
180 317
484
35 86
26 30
138 61
25 46
71 31
78 52.8
97 39
-14-
see Note
Negro
1 supra) are:
White
A)
O
N
O
O
C
H
O
O
O
U
N
O
O
O
O
W
O
M
N
M
W
A
W
U
L
M
I
W
O
fo
d
D
W
O
R
N
W
W
R
A
O
O
Se
d
N
W
O
O
O
H
N
W
O
I
R
O
O
Part time desegre-
gating teachers
Negro White
0 0
1 S
0 4
1 S
1 2
1 1
0 3
0 0
0 ;
0 1
0 0
0 1
0 0
4 10
40 53
0 2
1 2
C O
0 2
0 0
0 0
0 2
0 0
XH BT RX
IN HE UNITED STATES COURT Or APPEALS
POR THE FIFTH CIRCUIT
Nos, 28030 & 28042
tetas See SS a aes ——
UNITED STATES OF AMERICA,
Plaintiff-A ppellant, L
Ve
HINDS COUNTY SCHOOL BOARD, ef al...
Defendants- Appa) one.
(Civil Action Jo, 2075 (3))
tee tee eats rath. sient vrata ts
BUFORD A, LEE, et al.,
Plaintiffs-Appellees,
Ve
UNITED STATES OF AMERICA,
De efendant- Appellant,
Vv,
MILTON EVANS,
Third Party
‘ Defendant-App ellee,
(Civil Action No, 2034 (1))
UNITED STATES OF AMERICA.
. Plaintiff-Appellant,
Ve.
KEMPER COUNTY SCHOOL BOARD, et 81.5
Defendants- App pallncs,
(Civil Action No. 1373 ¢E))
UNITED STATES OF AMERICA
Plaintiff-Appellant,
Vv.
NORTH PIKE COUNTY CONSOLIDATED
SCHOOL DISTRICTE, ot al.
Defendants-Appellees.
{Civil Action No. 3807(J))
URITED STATES OF AMERICA,
Plaintiff-Appellant,
Vie .
NATCHEZ SPECIAL MUNICIPAL SEPARATE |
SCHOOL, YJ ~ et al.,
J;
Defend lants -Appellees.
{Civil Action No. 11200%))
UNITED STATES OF /
)
Plaintiff-Appellant,
Ve
MARTON COUNT UNTY SCHOOL DISTRICT,
Defendants-
(Civil Action
et al. 3
Appellees.
“NY
ry. 2178 (H))
JOAN ANDERSON, et 22.
Plain {ty ffs-A PLY pel 1:
UNITED STATES TES OF AMERICA
Plaintiff-Intervenor-Appellant
nts,
Vv.
THE CANTON MUNICIPAL SCHOOL DISTRI
and THE MADISON COUNTY
CP, ef al., :
SCHOOL DISTRICT, et al.,
Defendants-Appellees.
(Civil Action No. 3700(3))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Ve
: SOUTH PIKE COUNTY CONSO LIDATED
SCHOOL DISTRICT, et al.,
Defendants-~Appellees.
{Civil Action lo, 984 (J))
3
HOLMES COUNTY
THE
Bran or Sr te MA Set ee ain
BEATRICE ALEXANDER, et
PlLaintif{fs-Appecll
Vv.
.
'
(Civil Action No. 37
Bee i se A Geet A i
al.
79(3))
ROY LEE HARRIS, ‘et al.,
Plaintiffs-Appellants,
Ve.
YAZOO COUNTY BOARD OF EDUC!
Defendants-Ap
A
{Civil Action No,
~ PUN
JOHN BARNHARDT, et
VI LON
pelle
209 (W))
al.
ants,
BOARD OF EDUCATION, é&t al.,
Defendants-Appellees,
et al, ,
es.
Pratntitie-Anallante,
Ve
MERIDIAN’ SEPARATE SCHOOL DISTRICT,
Defendants- -4ppel lees.
{Civil Action No, 1300 (£))
[SES SS —
UNITED STATES OF AMERI CA b
et al.
Plaintiff-Appellant,
Ve
NESHOBA COUNTY SCHOOL DIST
Defendants-A
RICT.,
ppelle e
(Civil Action No. 1396(E))
po a
UNITED STATES OF AMER 21CA,
al. t
So
Plai ntice - Appellant,
vi
NOXUBEE COUNTY SCHOOL DIST
Defendants-
RICT, et al.,
Appellee
{Civil Action No. 1372(E))
Pd
— eo
De
UNITED STATES oF A Ca
a “f-Appel i, ant
V.
LAUDERDALE COUNTY SCHOO] Li DISTRICT. el a) - 9 )
Defendants-Appe) lees,
(Civil Action No, 13674(F))
DIAN HUDS ON, ef al.
Plaintiffs. Appellants,
UNITED STATES OF AMERICA,
Plaintiff-Inter venor-Appe llant,
Vv,
LEAKE COUNTY SCHOOL BOARD, et Bhs
le De any ot
(Civil Action No, 3382(J))
UNITED STATES OF AMERICA,
3 Plaintiff-Appe ll ant,
Ve
COLUMBIA MUNICIPAL SEPARATE SCHOOL, et AL : Defendants- Appellees
(Civil Action No. 2199(@))
aaa
.
UNITED STATES OF AMERICA,
Plaintiff-Appe ellant,
Ve
AMITE COUNTY SCHOOL DISTRICT, ‘et al;.
: Defenda ants SAPDALICES,
«(Civil Action No, 3983 (J))
Ctra em at sr mmr
URITED STATES OFF AMERIC ol
COVIRGTO!
Plaintiff-Appellant
Y.
COUNTY SCHOOL DISTRICT, et al., \
Defendants-Appellees.
{Civil Action No. 214801)
LAWRENC
JEREMIAH BLACKWELL, JR., el al.,
DE a
UNITED STATES OF AMERI A,
Plaintiff-Appellant,
Ye.
1 COUNTY Sr tyranny, et al.
efendants-Appellees.
(Civil Action No, 2216 (H))
+e ~ Plaintiffs-Appellants,
Vv.
LSSAQUENA COUNTY BOARD OF EDUCATION, etal.
4% Defendants-Appellees,
(Civil Action No. 1096 (W))
UNITED STATES OF AMERICA,
Plaintiff-Appellant, Pl nt,
Ve
WILKINSON COUNTY SCHOOL DISTRICT, at al.,
Defendants-Appellees
(Civil Action No. 1160 (W))
a
CHARLES KILLINGSWORTH, et al.,
Plaintiffs-Appellants,
A]
ve
THE ENTERPRISE CONSOLIDATED SCHOOL DISTRICT
DATED SCHOOL DISTRICT, and QUITMAN CONSOLIDAJ
Defendants-Appellees.
ction No, 1302(F)) (Civil Ac
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v,
|
LINCOLN COUNTY SCHOOL, DISTRICT ef 2)
Defendants. Appellees
-e 3
4
(Civil Action No, 4294 (J))
a SL
UNLTED STATES OF AMERICA, |
Plaintiff-Appellant
Vv,
PHILADELPHIA 1 URS CIPAL SEPARATE
SCHOOL, DISTRICT, et i
Vl De fendants-Appellees.
(Civil Action No, 1368(E))
EEN rp ye a Qrp A FAI OY 1H ANETY R UNITED wLAILS OF AME! iC A
: a Plaintiff Apel lant,
Te. Ys * Se : : % 5 :
FRANKLIN COUNTY SCHOOL, DESI et al...
Defendants-Ap Pellees, »P
(Civil Action No. 4256 (J3))
I —hnIw
~—y— ——
Appeals from the United States District Court for the.
Southern District of Miss sissippi
(July 25, 1969) H
MODIFICATION OF ORDER
J
Before BROWN, Chief Judge, THORNBERRY and MOR GAN, Circuit Judges.
TD
PE Ly CUKI
The opinion published in the above styled case
1969 is hereby modified by renumbering former paragraph
number 7 and striking from such order y On pages 17 and 1
paragraphs 5, 6 and 7 in their entirety, and inserting i
thereof new paragraphs 5 and 6 which shall read as follo
5. If no agreement is reached, the Office of Educ:
shall present its proposal for a plan for the
district to the district court on or before Aug
11, 1969, The parties shall have ten (10) days
the date such a propos
1Tict court to file ob
ments thereto, The di
hearing on the propose
ot
suggested amendments
which conforms to
re
wa than ten (10) day
xx pired.,
A plan for the school
C g implementation by the
a n
beginning of the 1969-
court shall enter Findings
Law regarding the efficacy
5
8 approve
cons
aay PR EOL Ne . 3.1. a. 5 ed plan is filed with the
Sant nares YP? S110 ao ART IA JECLLIONE OF suggested ane
widened ade mii dt mln Tl ten? SLiYice Cour Baal nGild a
A Tan and t%7 OIL eer de 3 Ah a plan ang any oonjections
o
d
C
sha
39 ~
to immediately d
itutional
ereto, and shall enter
for
4
t court
11 be t [> effe
0 school year,
.]
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Fact d an ® bb
y
b
y
~
of any plan
dey vv zl ew yr ed
stanuaxra
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4
no 1
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a
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2
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ater %
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Conclusi
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NM Tre
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no later
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Nos, 28030 and 28042
UNITED STATES OF AMERICA,
Pinintiff-Apnel lang
HINDS COUNTY SCHOOL BOARD, et ‘al,
Defendants-Appellees
(AND CONSOLIDATED CASES)
Appeals fromthe United States District Court
For the Southern District of Mississippi
MOTION IN THE COURT OF APPEALS
The United States moves this Court for an order
ahending its order of July 3, 1969 and subsequent amendments
thereto in accordance with the proposed amendment order
attached hereto.
This motion is based upon the following considera-
tions:
By letter dated August 19, 1969 ( a copy of which
is attached) to Honorable William Harold Cox, Chief Judge,
United States District Court for the Southern District
of Mississippi, Secretary Robert H. Finch of the Department
of Health, Education and Welfare requested to be permitted *
additional time during which experts of the Office of
Education may go into each school district in these cases
and develop meaningful studies in depth and recommend
terminal desegregation plans to be submitted to the Court
not later than December 1, 1969, Since Secretary Finch
3 is in the best possible position to judge the need and
capacities in the Office of Education, we respectfully
request that this motion be granted. We have filed
a
[] ¥ «
LJ
simultaneously with this motion a motion in the district
court for an order granting leave to file this motion
in this Court.
Respectfully submitted,
‘JERRIS LEONAR
Assistant Attorney General
Civil Rights Division
Washington, D.C. 20530
Ia
[
August 19, 1969
Honorable Willi 3 am larold Cox
United Sta T
1 "
istrict Judge c
t
A
(
D
+
p
o
o
H
ear Judge Cox:
In accordance with an order of the United States Court of \ppeals
for the Fifth Circuit experts from the Office of Parrubion in the
on rie na Welfa e have
These terminal plans were developed, reviewed with the school
districts, and filed with the United States District Court for
the Southern District of Mississippi on August 11, 1969, as required by the Order of the United States Court of Appeals for the Fifth
Circuit. These terminal plans were developed under great stress in approximately three weeks; they are to be ordered for implementation
on August 25, 1069, and ordered to be implemented commencing with the beginning of the 1969-70 school year. The schools involved are to be opened for school during a period which begins two days before
August 25, 19569, and 311 are to be cpen ior school not later than
September 11, 1959,
On Ai y of iash gh
and filed by th C
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Nos. 28030 and 23042
UNITED STATES OF AMERICA,
Plaintiff-Appellant
HINDS COUNTY SCHOOL BOARD, et al.
Defendants-Appellees
(AND CONSOLIDATED CASES)
Appeals from the United States District Court
For the Southern District of Mississippi
AMENDED ORDER
The order of this Court dated July 3, 1969, 2s
amended by Order entered July 25, 1969, is hereby
further amended as follows:
PArdgraphs 3,4,5,6, and 7 are deleted and the
following paragraphs will substitute therefor:
3. The Boxzd, in conjunction with the Office
of Education, shall develop and present to
the District Court on or before December ie
1969, an acceptable plan of desegregation.
4. " 1f the Office of Education and a school board
agree upon a plan of desegregation, it shall
be presented to the District Court on or before
December 1, 1969. The Court shall approve
such plan unless within 15 days after submission
to the Court any party files any objection or
proposed amendment thereto alleging that the
plan, or any part thereof does not conform
to Constitutional standards.
3. 1f no agreement is reached, the Office of
Education shall present its proposal for a
r
!
H
|
i
August
[ |
: : ®
plan for the school district to. the
District Court on or before December },: 1960
The parties sholl have 13 days from the date such
8 proposed plan is filed with the District
Court to file objections or suggested amendments
thereto. The District Court shall hold a
hearing on the proposed plan and any objections
and suggested amendments thereto, and shall
promptly approve a plan which shdl conform
to Constitutional standards. The District
Court shall enter Findings of Fact and
or Conclusions of Law regarding the efficacy of
any plan which is approved or ordered to
disestablish the dual school sytem in question.
Jurisdiction shall be retained until it is
clear that. disestablishment has been achieved.
, 1969.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NOS. 28030 & 28042
UNITED STATES OF AMERICA,
Appellant,
Vv.
HINDS COUNTY BOARD OF EDUCATION, et Bl.;
Appellees,
BEATRICE ALEXANDER, et al.,
Appellants,
VY.
HOLMES COUNTY BOARD OF EDUCATION, et al.,
Appellees.
OPPOSITION TO MOTION FOR PERMISSION TO
WITHDRAW PLANS FILED BY THE DEPARTMENT
OF HEALTH, EDUCATION AND WELFARE
Private plaintiffs-appellants are advised by newspaper report
that the United States has filed or will shortly file with this
1969 in the
CQeiicsa: Motion to permit the plans filed August 11,
United States District Court for the Southern District of
Mississippi by the Office of Education, United States Department
of Health, Education and Welfare to be withdrawn; and further
seeking amendment of this court's mandate to allow the Office of
Education until December 1, 1969 to file new recommended plans of
desegregation in accordance with this court's opinion herein.
Since time is of the essence and although private plaintiffs-appellants
have never been served with any papers, we would respectfully oppose
any such relief, and would show this court:
1. The plans filed by the Office of Education in the
District Court on August 11, 1969 would, if implemented, result in
a constitutional unitary school system in each of the appellee
districts for 1969-70.
2. The plans filed by HEW were drawn only by educators, in
accordance with this court's expressed concern at the argument of
this case.
3. Private plaintiffs-appellants understand from newspaper
reports that the Honorable Robert Finch, Secretary of the Department
of Health, Education and Welfare, has approached this Court on an
ex parte basis seeking permission to withdraw HEW plans on the
grounds that, inter alia, he did not see the plans prior to their
filing.
4. The effect of permitting withdrawal of the HEW plans
already filed in the district court and allowing further time for
the filing of new plans will be to further delay realization of the AX :
Can rational rights of Negro children in Mississippi. Both private
plaintiffs-appellants and appellees have already responded to the
HEW plans and the issue of their constitutional sufficiency is now
presented to the district court for determination.
~Brr-rACcording to private plaintiffs-appellants' information
and belief, Mr. Finch seeks to withdraw the HEW plans on the
grounds that implementation of unitary systems in September 1969
will be disruptive because of longstanding patterns of resistance
to the constitutional rights of Negro citizens in Mississippi.
This is clearly the meaning of his statement that Mississippi is
unprepared because it has had only token desegregation of its
schools for so long a period. Were this court to permit further
delay on the basis of the Secretary's representations, it would be
acting completely contrary to the Fourteenth ..mendment and to
CoopeYy v. Aaron, 358 U,.8. 1 (1958).
6. Educators from the Office of Education have concluded that
. there is no educational or nonracial reason for postponing the
unitary system in appellee school districts. Mr. Finch's
intervention at this late date, 10 days after HEW's plans were filed,
is based on no legal or factual consideration cognizable by the
Constitution of the United States.
7. Should this court conclude, contrary to our position, that
there is some constitutionally acceptable reason for delaying full
student integration beyond 1969-70, we strongly urge that the court
nevertheless direct the district court that the other provisions of
the HEW plan such, for example as are concerned with Faculty
ET N55 bah PES
Las Eeihli
desegregation, desegregation of extracurricular activities,
including athletic competition between predominantly-white and all-
black schools, transportation, etc., be placed into effect
immediately in accordance with the original mandate of this court.
Respectfully submitted,
ah ) 7 oh :
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Lif Pe 7 { £7 / i / ( er Sl 2 7 Sy
MELVYN R. LEVENTHAL
FRED IL. BANKS, JR.
REUBEN V. ANDERSON
538% North Farish Street
Jackson, Mississippi 39202
JACK GREENBERG
NORMAN J. CHACHKIN
JONATHAN SHAPIRO
Suite 2030
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiffs-Appellants
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Opposition
to Motion for Permission to Withdraw Plans Filed by the Department
of Health, Education and Welfare has been served upon each of the
following attorneys, by depositing true copies of same in the United
States mail, air mail, postage prepaid.
Hon. Robert E. Hauberg Hon. Robert C. Cannada
United States Attorney Ps O. Drawer 1250
Po. 0,:B0% 131 Jackson, Mississippi 39205
Jackson, Mississippi 39205
Hon. John M. Putnam
P.-0. Boxy 2075
Jackson, Mississippi 39205
Hon. Howard 1L,. Patterson, Jr.
P. O. Boy 808 :
Hattiesburg, Mississippi 39401
Hon. L. P. Spinks
DeKalb, Mississippi 39238
Hon. R. Brent Forman
P. O. Box 1377
Natchez, Mississippi 39120
Hon. Philip Singley
203-04 Newsom Building
Columbia, Mississippi 39429
Hon. W. 5S. Cain
133 South Union Street
Canton, Mississippi 39046.
Hon. Robert S. Resves
P. OO. Box S98
McComb, Mississippi 39648
Hon. William B. Compton
P.O. Box 845 : :
Meridian, Mississippi 39301
Hon. Herman Alford
424 Center Avenue
Philadelphia, Mississippi 39350
Hon. Ernest L. Brown
Macon, Mississippi 39341
Hon. Maurice Dantin
P. O00. Box 604
Columbia, Mississippi 39429
Hon. William D. Adams
P. O..Box 521
Collins, Mississippi 39428
Hon, Cary C. Bass, Jr.
P. OO. Box 626
Monticello, Mississippi 39654
Hon. M. M. Roberts
P:-0O. :BO% 870
Hattiesburg, Mississippi 39401
Hon. Thomas H. Watkins
P. OC. Box 650
Jackson, Mississippi 39205
Hon. ‘John Gordon Roach
P.O. Box'506
McComb, Mississippi 39648
Hon. Richard D. Foxworth
216 Newsom Building
Columbia, Mississippi 39429
Hon. Robert Goza
Caton, Mississippi 39046
Hon. Joe R. Fancher
P. OO. Box 245
Canton, Mississippi 39046
Hon. Thad Leggett, III
P. OO. Box /
Magnolia, Mississippi 39652
Hon. Robert B. Deen, Jr.
P. OO. Box 883
Meridian, Mississippi 39301
Hon. Laurel CG. Weir
P. O.. Box 150
Philadelphia, Mississippi 39350
Hon. Harold W. Davidson
Carthage, Mississippi 39051
Hon. J. D. Gordon
Liberty, Mississippi 39645
Hon. John K. Keyes
Collins, Mississippi 39428
Hon. A. F. Summer
Attorney General
New Capitol Building
Jackson, Mississippi 39205
Hon. Charles Clark
Cox, Dunn & Clari,
Attorneys at Law
Deposit Guaranty National Bank
Building ~- Suite 1741
Jackson, Mississippi 39201
Hon. J. Wesley Miller
401 Pine Street
Rolling Fork, Mississippi 39159
Hon. Henry WwW, Hobbs, Jr.
P. OO. BOX 356
Brookhaven, Mississippi 39601
Hon. Calvin R. Xing
106 Mulberry Street
Durant, Mississippi
Bon. Thomas RB. Campbell, Jr.
P. 0. Box 35
Yazoo City, Mississippi YO
Hon. John C. Satterfield
P. O. Box 466
Yazoo City, Mississippi
Hon. Robert E. Covington
Jeff Carter Building
Quitman, Mississippi
Hon. David D. Gregory
Attorney
Department of Justice
D.C.
U.S.
Washington, 20530
“Hon. Herman C. Glazier
506 Walnut Street
Rolling Fork, Mississippi 39159
Hon. Richard T. Watson
Woodville, Mississippi 39669
Hon. Charles H. Herring
Meadville, Mississippi 39653
Hon. G. Milton Case
114 West Center Street
Canton, Mississippi
Bon. Walter R. Byridgforth
P. O. Box 48
Yazoo City, Mississippi
Hon. J. E. Smith
111 South Pearl
Carthage, Missis
+ Stre
Sippil
Hon, Tally D. Riddell
P. OO. Box 199
Quitman, Mississippi
; I ®
1
IN THE UNITED STATES COURT OF APPEALS
YOR THE FIFTH CIRCUIT
NUMBERS 28030 and 28042
BEATRICE ALEXANDER, ET AL | PLAT NTIFFS~-APPELLANTS
VS. CIVIL ACTION NO. 3779(J)
HOLMES COUNTY BOARD OF EDUCATION, ET AL DEFENDANT-APPELLEES
ROY LEE HARRIS, ET AL PLAINTIFFS-APPELLANTS
VS. CIVIL ACTION NO. 1209 (W)
YAZOO COUNTY BOARD OF EDUCATION,
YAZOO CITY MUNICIPAL SEPARATE SCHOOL DISTRICT
HOLLY BLUFF LINE CONSOLIDATED SCHOOL DISTRICT DEFENDANT~APPELLEES
DIAN HUDSON, ET AL PLAINTIFFS-APPELLANTS x
U.S.A. PLAINTIFF~INTERVENOR~-
APPELLANTS
VS. CIVIL, ACTION NO. 3382 (J)
LEAKE COUNTY SCHOOL BOARD, ET AL : DEFENDANT-APPELLEES
JEREMIAH BLACKWELL, JR., ET AL PLAINTIFFS-APPELLANTS
VS. CIVIL ACTION NO. 1096 (W)
ISSAQUENA COUNTY BOARD OF EDUCATION, ET AL DEFENDANT S-APPELLEES
CHARLES KILLINGSWORTH, ET AL PLAINTIFF-APPELLANTS
VS. CIVIL ACTION NO. 1302(%)
THE ENTERPRISE CONSOLIDATED SCHOOL DISTRICT
AND QUITMAN COLSOLIDATED SCHOOL DISTRICT DEFENDANT S~-APPELLEES
N
To. - * ' .
; » ®
’ »
MOTION BY THE DEFENDANTS IN THE ABOVE STYLED CONSOLIDATED
CASES JOINING IN THE MOTION THEREIN FILED BY THE ATTORNEY
GENERAL OF THE UNITED STATES IN BEHALF OF SECRETARY
ROBERT H. FINCH OF THE DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE AND THE UNITED STATES OF AMERICA
Now come all of the defendants in the above styled consolidated
cases and join in the Torin filed therein by the Attorney General of
the United States entitled "UNITED STATES OF AMERICA, PLAINTIFF-
APPELLANT HINDS COUNTY SCHOOL BOARD, ET AL, DEFENDANTS-APPELLEES (AND
CONSOLIDATED CASES) -- MOTION IN THE COURT OF APPEALS" filed in this
Court on or about August 21, 1969, and show to the court the following:
l. This motion is filed in the United States Court of Appeals
for the Fifth Circuit by permission of the United States District Court
for the Southern District of Mississippi granted on open court and made
of record therein.
2. That the said motion thus filed in this Court on or about
August 21, 1969, was filed in the consolidated proceedings numbered
upon the docket of this Court as "Nos. 28030 and 28042", particularly
referring to the first listed case of the UNITED STATES OF AMERICA VS.
HINDS COUNTY SCHOOL BOARD, ET AL and particularly being filed not only
applicable to said case but applicable to it "AND CONSOLIDATED CASES".
3. That there were appealed to this Court and assigned the
above docket numbers twenty-five school desegregation cases involving
a total of thirty-three soho) districts. That the said twenty-five
consolidated cases included those listed above in which this Motion of
Joinder is filed.
4. That in the opinion and mandate of the Court of Appeals
dated July 3, 1969, the following findings were made:
These are twenty-five school desegregation cases
in a consolidated appeal from an en banc decision
of the U. S. District Court for the Southern
District of Mississippi . . + &
LJ «
] p :
’
The order of the District Court in each case is
reversed and the cases are remanded to the
District Court with the following direction:
l. These cases shall receive the highest priority.
2. . The District Court shall forthwith reguest that
educators from the Office of Education of the
United States Department of Health, Education
and Welfare collaborate with the defendant school
boards in the preparation of plans to disestablish
the dual school systems in question . . . (Emphasis
ours.) :
4. That the United States District Court for the Southern
District of Mississippi requested the United States Department of
Health, Education and Welfare to collaborate with the defendant school
boards "in each of these cases" and to file plans of desegregation for
all of the defendant school districts, including the defendants making
this Motion. That on or about .August 11, 1969, proposed plans of
desegregation were filed by the United States Department of Health,
Education and Welfare in each of the above cases.
5. That in accordance with the mandate of this Court and the
direction of the said District Court each of the above defendant school
districts filed proposed plans of desegregation on or about August 11,
1969, reserving, however, all of their rights existing under the order
of the District Court dated May 16, 1969, the appeal therefrom to the
United States Court of Appeals for the Fifth Circuit, the Petition for
Rehearing en banc now pending before this Court, the right to file a
petition for Writ of Certiorari with the Supreme Court of the United
States and all other rights existing in them. Such plans were filed
subject to such reservation.
6. .0n or ‘about August 21, 1969, these defendants filed
additional motions for supplemental relief, including prayer that the
Court grant additional time for further collaboration between the
Department of Health, Education and Welfare and the defendants with
plans to be submitted not later than December 1, 1969. - The motions
filed by the three school districts above named in Civil Action No.
1209 (W) in the District Court, The Yazoo County Board of Education,
The Yazoo City Municipal Separate School District and The Holly
Bluff Line Consolidated School District alleged that within the time
allowed it was "impossible to work out a plan satisfactory to either
the Court, the defendants or the plaintiff". Similar allegations
were made by the other defendant school districts. 2
7. These movants join in the motion to amend the mandate of
this Court filed in behalf of the Secretary of Health, Education and
Welfare and by the United States of America as the same was filed on
or about August 21, 1969, joining in the allegations and prayer
thereof as it was filed and joining in the motion for the amendment
of the mandate as therein stated.
8. These defendants by this motion adopt any proof which may
be introduced in the said District Court in support of the said Motion
as it was filed on or about August 21, 196%, but 4c not adopt any
amendment, should an amendment be requested. These defendants adopt
the proof which may be presented in behalf of the Secretary of Health,
Education and Welfare and the United States of America solely to the
extent that such proof supports the said Motion as it was Filed.
.! That said motion is proper and sufficient, but these
defendants join therein because of the "OPPOSITION TO MOTION FOR
PERMISSION TO WITHDRAW PLANS FILED BY THE DEPARTMENT OF HEALTH, EDUCA-
TION AND WELFARE" which has been filed by attorneys for certain
individual plaintiffs in this consolidated appeal. These defendants
deny all of the allegations and conclusions set forth in such "OPPOSITION
TO MOTION" to the extent that such allegations are inconsistent with
this Motion and the Motion filed herein in behalf of the Secretary of
Health, Education and Welfare and by the United States of America.
® | | §
WHEREFORE, these defendants join in the said Motion as filed
Pe
herein on or about August 21, 1969, including the prayer for relief
therein contained.
Executed under authority granted in open Court and respectfully
~~ ri
: 7 :
submitted this £9 day Of August, 1969,
CALVIN R. KING, Attorney for
Holmes County Board of Education, et als,
Civil Action No. 2779{J) in the District Court
BRIDGFORTH & LOVE; CAMPBELL & CAMPBELL; SATTERFIELD,
SHELL, WILLIAMS & BUFORD, Attorneys for
The Yazoo City Municipal Separate School District, The Yazoo County
Board of Education and The Holly Bluff Line Consolidated School District,
Civil Action No. 1209(W) in the District Court
HAROLD M. DAVIDSON, Attorney for
Leake County School Board, et al
Civil Action No. 3382{(J7) in the District Court
HERMAN GLAZIER, Attorney for
The Issaquena County Board of Education, et al,
The Sharkey County Board of Education, et al,
The Anguilla Line Consolidated School District, et al and
The Sharkey-Issaquena Line Consolidated School District, et al
Civil Action No. 10%6(W) in the District Court :
TALLY D. RIDDELL and ROBERT H. COVINGTON, Attorneys for
The Enterprise Consolidated School District, et al,
The Quitman Consolidated School District, et al, and
The Clarke County Board of Education, et al
Civil Action No. 1302{F) in the District. Court
By:
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i A ge ¥ 4 ” 2 - 7 / 7 F ; pA | &
John C. Satterfield, Attorney/
: “7
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.
CERTIFICATE OI SERVICE
I hereby certify that copies of the foregoing Motion by the
Defendants in the above Stuled Consolidated Cases Joining in the Motion
Therein Filed by the Attorney General of the United States in Behalf of
Secretary Robert H. Finch of the Department of Health, Education and
Welfare and the United States of America were served on the plaintiffs
on this 4%" day of August, 1969, by mailing copies of same, postage
prepaid, to their counsel of record at the last known address as follows:
Melvyn R. Leventhal
Reuben V. Anderson
Fred L. Banks, Jr.
John A. Nichols
538-1/2 North Farish Street
Jackson, Mississippi 39202
Jack Gréenberg
Jonathan Shapiro
Norman Chachkin
Suite 2030
10 Columbus Circle
New York. New York
I further certify that I have also mailed a copy of said Motion
to the Department of Health, Education and Welfare of the United States
addressed as follows:
Mr. J. J. Jordan, Regional Director
United States Office of Education
Room 404
50 Seventh Street, N. E.
Atlanta, Georgia 30323
iF / 5 3 / ~
{7 pas EP ol eo ds
re Sh nts Fl En Vr
Ff frm 7 / / ’ a Sh a AH
Of Counsel,
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1 ———— i ——— —————— ST — ry.
AIR 2 619
INTHE UNITED STATES DISTRICT COURT | @°
FOR THE SOUTHERN DISTRICT OF MISSISSIPPL.
JACKSON DIVISION |
UNITED STATES OF AMERICA, PLAINTIFF
VERSUS CIVIL ACTION NO. 4075
HINDS COUNTY SCHOOL DISTRICT,
et al,, and RELATED CASES, DEFENDANTS
IN THE UNITED STATES COURT OF APPEALS
NOS. 28030 and 28042
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In an opinion-order of July 3, 1969, a panel of three
Judges on the Fifth Circuit Court of Moneath, reversed the
decision of three District Judges sitting as the District Court
of the Southern District of Mississippi upholding freedom of
choice plans for the desegregation of students and faculties in
twenty-five cases including thirty school districts on the docket
of this Court. -
The opinion-order, as amended, directed the District
Court in ach case 5 request educators from the Office of
Education of the United States Department of Health, Education
and Welfare, hereinafter called HEW, to collaborate with the
respective defendant school boards in the preparation of plans
to disestablish "the dual school systems.'" The opinion~-order
provided that each school board shall develop and present to
the District Court before August 11, 1969, an acceptable plan
of desegregation. It provided that if the board and HEW agreed
upon a plan, the plan should be presented to the District Court
on or before August 11, 1969, and the Court should approve such
plan unless within seven days after submission any party should
file an objection or proposed amendment alleging that the plan,
§
4
i
f
RT C. THOMAS, CL1
: as
Or any part thercof, did not conform to constitutional standards,
The opinion-order further provided that if no agreement be reach-
ed HEW should present its proposed plan on or before August 11,
1969, and the parties should have 10 days from the date of filing
to file objections or suggested amendments thereto. The opinion-
order further directed the District Court to hold a hearing on
the proposed plan and sd and amendments thereto and to
enter a plan no later than September 1, 1969, to be effective
for the beginning of the 1969-70 school year, retaining juris-
diction until it was clear to the Court that disestablishment
had been achieved.
With respect to three school districts, those of
Hinds County, Holmes County, and Meridian, the HEW recommended
plans provided for full implementation beginning with the
1970-71 school year, As to all other districts, HEW has submitt-
ed two proposals - one for complete disestablishment beginning
with the 1969-70 school year, and one for partial or interim
desegregation at the opening of the 1969-70 term,
On the date of August 20, 1969, one day prior to the
deadline set by the United States Court of Appeals for the Fifth
Circuit in its Opinion and Mandate for all parties to file their
proposed plans, objections, suggested modifications and affi-
davits, this Court was informed through telephone conversation
with Chief Judge John R. Brown of the Fifth Circuit that he was
in receipt of a letter dated August 19, 1969 from Honorable
Robert H. Finch, Secretary of Health, Education and Welfare, the
substance of which was that the Secretary had received the
terminal plans as developed and filed by the experts in the
Office of Education of the Department of HEW, and had reviewed
each of the plans, he being charged with the ultimate responsi-
Fee
I : : ®
bility for the education of the people of the United States
in this letter, which was subsequently hand-delivered to both
of the undersigned on the same date, namely, August 20, 1969,
and which is attached to the original Motion filed in the
Court of Appeals on August 21, 1969, by the United States For
Leave to File Motion Seeking Modification of Mandate, the
Secretary stated that he was gravely concerned that the time
allowed for the development of these terminal plans was much
too short for the educators of he Office of Education to develop
terminal plans which can be implemented in the school year
1969-70, which this Court finds was to open on August 20, in
some of the school districts involved, with various other open-
ing dates between that date and September 2, 1969. The
Secretary further stated in his letter that the administrative
and logistical difficulties which must be encountered and met
in the "terribly short space of time remaining" must sure in his
judgment, "produce chaos, confusion, and a catastrophic
educational setback to the 135,700 children, black and white
alike, who must look to the 222 schools of these 33 (sic) school
districts for their only available educational opportunity."
The Secretary, therefore, in the concluding paragraph of his
fetter vequested the Court of Appeals and this Court to consider
the shortness of time involved and the administrative difficul-
ties which lie ahead and permit additional time during which
experts of the Office of Education may go into each school
district and develop meaningful studies in depth and recommended
terminal plans to be submitted to the Court not later than
December 1, 1969.
The above letter from the Secretary was attached to
a motion filed on August 21, 1969 by the United States, entitled
Motion of the United States for Leave to File Motion Seeking
“3
Mi | ul
Modification of Mandate, to which was attached a proposed order
of the United States Court of Appeals for the Fifth Circuit.
Due to the extreme emergency resulting from the shortness of
time, Chief Judge Brown of the Fifth Circuit, in a telephone
conversation with the undersigned Judges suggested and requested
that this Court conduct a hearing on the motion filed by the
United States, and make a orl thereon, and enter findings
of fact and conclusions of law, all of which should be transmitt-
ed to the three judges composing the panel which ravitied the
decisions of this Court in an opinion of July 3, 1969, which was
subsequently modified on July 25, 1969. Chief Judge Brown
directed that the record, which would be transcribed immediate-
ly, and this Court's written Findings of Fact and Conclusions
of Law be filed forthwith with the Clerk of the United States
Court of Appeals for: the Fifth Circuit in New Orleans and that
copies be transmitted to the three Judges condos ti panel
which reversed this case, at their home offices, namely, Chief
Judge John R. Broun, Jude Homer Thornberry and Judge Lewis
R. Morgan. The Chief Judge also instructed this Court to
inform all counsel of record, which this Court has done, that
anyone objecting to or wishing to offer any evidence on this
motion, which was subsequently amended by the Government on
August 25, 1969, must do so by presenting in person or in some
other suitable manner, their objections and affidavits together
with memoranda to the above three judges on the panel at their
home offices no later than the, morning of Wednesday, August 27, .
1969,
~The Amended Motion filed by the United States in the
Court of Appeals and in this Court moves the United States Court
of Appeals for an order amending its order or mandate of July 3,
dim
“ 1]
. v
i 1 M | w |
Md ' : |
1969 and subsequent amendments thereto, in accordance with the
new proposed ''New Amended Order' attached to said amended motion.
|
The substance of the Amended Motion and the proposed ''New Amended |
| Order" filed by the United States in these cases, all of which
were consolidated in the United States Court of Appeals and are
being treated as consolidated cases here, is that Paragraphs 3-7 should be deleted and the paragraphs contained in the suggest
ed New Amended Order, 3 = 7, be substituted therefor. For the
sake of brevity and because of the time limitation, this rode |
I will not recite in detail the Amended Motion and proposed "New |
Amended Order", but in effect it provides that the school eatin
in conjunction with the Office of Education, shall develop and
| present to the fnttedi Stace District Court for the Southern
;
District of Mississippi on or before December 1, 1969, an
i acceptable plan of desegregation, and if the Office of Education
and the school boards agree upon the plan it shall be presented
to the District Cone on or before that date and shall be
approved, unless within fifteen days after submission to the
Court, any party files an objection or proposed amendment there-
| to in accordance with the terms of said order. If no agreement { is reached, the Office of Education shall present its plan for
i desegregation of the school districts to this Court on or before
! December 1, 1969, and the parties shall have 15 days within
which to object or file suggested amendments thereto. The
proposed New Amended Order further provides that this Court shall
hold a hearing on the proposed ,plan and any objections and |
suggested amendments thereto and promptly approve a plan which |
shall conform to constitutional standards, while at the same
time, elitoring findings of fact and conclusions of law regard-
ing the efficacy of any approved plan.
Paragraph 6 of the proposed New Amended Order, as
modified by the Government through dictation into the record
' ® "
" 6 '
|
| in this case, provides that by October 1, 1969 the Board of
|
!
Trustees, in conjunction with the Office of Education shall
develop a program to prepare its faculty and staff for the |
conversion from dual to unitary school system and that the
Office of Education shall report to this Court on October 1,
1969 with respect to this program, In the event that the Board fails to develop a program, the Office of Education shall
submit a program which the Court may approve unless meritorious
objection shall be made thereto.
Paragraph 7, as modified and revised by counsel for
the Government through dictation into the record during the
hearing on the motion before this Court, provides ''"The Boards
shall not let any new contracts for the construction of any new
facilities nor materially alter any existing facilities until
a terminal plan has been approved by the court, except with the
i prior agreement of all parties or by order of the court upon
motion and hearing. The Boards shall present its proposals
: to the parties.and seek their consent at least fifteen days
prior to moving for court approval."
: Attorneys for private plaintiffs filed in the Court
! of Appeals an "Opposition to Motion for Permission to Withdraw
| Plans Filed by the Department of Health, Education and Welfare. Attorneys for private plaintiffs filed a motion dated
August 21, 1969 in the Paited States Court of Appeals for the
Fifth Circuit, but did not file a copy thereof with this Court,
and therefore this Court does not know its filing date. Private
plaintiffs appear alone as plaintiffs in Civil Actions numbered
1209, 1302 and 3779, which encompass six separate school
districts, and prior to being allowed to intervene and being
aligned as plaintiffs in several additional cases during this
-(y-
|
|
| hearing of yesterday, appeared as plaintiffs together with the
}
United States in Civil Actiors numbered 1036, 1300, 3382 and
and 3700, involving six separate school districts, and now
also appear as plaintiffs as of yesterday in Civil Actions
‘numbered 1160,
Ic i by all counsel in the hearing conducted
by this Court that private plaintiffs" opposition to withdrawal
of the HEW plan apply to only those cases in which they appear
as parties, but that the Government's amended motion hy to
3 all of these cases in which the HEW had filed proposed plans
pursuant to the order and mandate of the United States Court
of Appeals. Motion was also granted allowing all of the
defendant school boards in all of these cases before the count
to join in the Motion: and Amended Motion filed by the United
States and the proposed New Amended Order with the exception
of Paragraph 7 thereof, which relates to new construction and
alteration of present structures.
This -Court conducted a full-day hearing on August
25, 1969, receiving testimony on the Amended Motion filed
by the United States, during which three witnesses testified,
two for the United States in support of its motion, and one
for the private plaintiffs in opposition to the motion,
The Court finds that the testimony by Dr. Myron
Leiberman, the only witness to testify for the private
plaintiffs in opposition to the Government's motion, is
not entitled to much weight, if any, due to the fact that he
had never visited any of the school districts in question and
was not familiar with the facilities, school bus routes,
qualifications of the faculty, physical composition of the
’
various classrooms, including laboratories in the various
buildings, or any other of the vital aspécts necessary to form
an opinion or make a judgment in connection with the relief
sought in the motion filed herein. On cross examination,
this witness, who appeared to be more an integration expert
than an education expert, interested more in the constitutional
aspect rather than educational aspect of the plans under
consideration, admitted on cross examination that he had
no experience as a principal or assistant principal of
any elementary or high school and had no administrative
experience nor operating experience in any school as
a superintendent thereof; had never drawn a curriculum
or student assignment plan nor any transportation plan
for any high school or elementary school: had never
participated in the opening of an elementary or high
school; and that his only familiarity with the plans.
of the HEW concerning which he testified, was a two-
hour perusal of these plans the night before this
hearing, from 9:30 to 11:30 PM, and a short discussion
with the attorneys for the private plaintiffs. In
any . event, the Court finds that his testimony is clearly
and convincingly outweighed by that of the two witnesses
PZ
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who testified in support of: the motion.
Mr. Jessie J. Jordan, of Smyrna, Georgia, who has been
with the Department of Health, Education and Welfare for approxi-
mately two years, serving as Senior Program Officer for Title IV
of the Civil Rights Act of 1964, received a Bachelor of Science
degree in Education and Mathematics, and a Masters degree in School
Administration. This witness has wads a classroom teacher for
shred years, has served as high school crincipal for three years,
and was an administrative officer, director of transportation,
director of maintenance and operation and assistant superintendent |
. over a twelve-year period in the Cobb County, Georgia school sytem)
i This school district has 55 schools with approximately 40,000 to
; 50,000 students and involves the utilization of about 150 buses.
! Mr. Jordan testified that he has done desegregation work in a six-
» state area for HEW, including Mississippi, South Carolina, Georgia, |
Florida, Alabama and Tennessee, and has worked with school boards
! within these various states, usually in response to requests by
: these boards or the superintendents of school: districts for assis-
. ‘tance in formulating and implementing desegregation plans. He |
! first became involved in this case on July 15, 1969 when he
attended a meeting in Mobile, Alabama, at which ten field teams |
were formed and sent to the defendant school districts on July 16,
where they worked ontid July 23, gathering statistics which they
took to Atlanta, having spent approximately one and one-half days
in each district. A second trip was made by these teams on July 23
through August 1, 1969, during which they met with various school
| boards and their superintendents, asking for suggestions. These
| meetings involved approximately one-half day in each school !
! school system was far superior to a dual school system because all
| question are basically sound, but that sufficient time was not had
. finds in accordance with his testimony that these plans call for
: massive and substantial changes involving changes in curriculum,
building renovations, including the adjusting of laboratories and |
' of these plans, he did work with the review teams, asking their
| members various questions concerning these plans and acted in an
i advantaged students. It was his opinion that the HEW plans in
"ijke facilities, and faculty and student preparation, including
- and the solutions therefor. The Court further agrees with the
| witness and finds that inadequate time remains between this period
‘district. Information was taken back to Atlanta, where plans were
formalized and between the dates of August 7 and August 9, these
HEW plans were presented to the various school boards and superin-
i tendents and then filed with this Court. Although the witness |
|
made no tr ps to Mississippi in connection with the formalization
advisory capacity. The witness was of the opinion that a unitary
. people living in an integrated society and attending school together!
familiarizes each with the culture of the other and also helps dis-
for the in depth peripheral studies such as curriculum study and
financial study required to implement these new plans. The Court
various meetings and discussions of the problems to be presented
and the opening of school in the 1969-70 school year to accomplish
a workable, smooth desegregation which is desired. This witness
requested further time of Dr. Anrig, his superior in the Office of
Education, but this was denied in view of the fact that the Court
Order had set the time limitation. The witness was of the further
opinion, and the Court so finds, that bus routes must be redrawn,
- 10 -
teachers reassigned in accordance with their capabilities and
coveifications, which were not considered by HEW, classrooms will
have to be converted and that there must be some meaningful educa-
tional program involving teachers and students, to prepare for the
implementation of the terminal plans. This Court finds further in
accordance with the testimony of this witness that the necessary
delay requested would allow collaboration between the Office of
Education and the defendant school districts to prepare for imple-
mentation of the terminal plans, thus resulting in better education
and better community relations and consequently, an effective,
workable desegregation of the defendant school districts and the
conversion from a dual to a unitary system. |
The second and last witness who testified in support of
the Government's motion was Mr. Howard O. Sullins, of Charlottes-
ville, Virginia, who received a B.A. degree from Emory Henry
College, and an M.A. degree -in Education from Columbia University,
and has completed all of his work for a doctorate in Education
at the University of Virginia, with the exception of completion
of his dissertation, on which he is now working. This witness
has been a classroom teacher for two years, has served as principal!
of various high schools for a period of thirteen years, and was a
superintendent of schools in Stafford County, Virginia for three
years. In addition, he has been working with the United States
Office of Eiacation as Program Officer, Equal Educational Oppor-
tunities Program, Region Three, HEW, in Charlottesville, Virginia
since June 15, 1968. As Program Officer, his area of responsibility
is Virginia and West Virginia and involves furnishing technical
assistance to school districts in the process of desegregation.
|
1
|
This witness worked on desegregation plans in New Kent County,
Virginia, Prince George County, Maryland, and various other coun-
ties in the State of Virginia. His total experience in education
1s approximately twenty years.
Mr. Sullins was the team leader for the team that visited,
and had the responsibility of recommending desegregation in three
of the defendant school districts, Hinds County, Madison County
and Canton. He visited these districts during the above stated
dates as team leader, talking to school boards and superintendents,
as well as attorneys for the three defendant school districts. It
was his opinion that the unitary school system is far superior to
a dual Po system; and that although adequate time was had to
develop the basic plans in question, however, he strongly feels
that there is insufficient time to implement these plans in order
to have an effective school year in 1969-70 for the children
affected, because these plan: call for a massive reorganization
-
of school systems which takes months of planning to accomplish
with required outside consultation, expert assistance, particularly!
to set up junior high school systems and restructuring of grades;
some districts have no fixed boundary lines because of the free-
dom of choice system under which they have been operating and
this would have to be publicized and the students and parents
acquainted therewith; it would be necessary to revamp transporta-
tion systems, which takes a great deal of time; there must be
14
adequate planning in ‘real troubled spots', which would involve
proper training and instruction of teachers and the placing of
teachers in jobs where they will be most effective; all pupils
will be uprooted and entered into new schools and they must have
: a
the opportunity to learn and know what they will face, which must
be done through project programs, including the meeting of student
leaders of both races with each other and with teachers; the
school administration will need time to rethink and redo things to
properly plan the expenditures: of Title I funds well in advance,
which funds may be lost without proper and adequate planning, and
which HEW did not have time to consider; school boards and super-
swbendents need a program also to build communities' support for
the unitary system. The witness was of the opinion and the Court
finds, that in order to formulate and implement successful and
effective desegregation plans, the additional bind requested will
be required. This witness suggested additional programs which
should be undertaken to effect a smooth, workable conversion to a
completely unitary school system, such as a workshop for teachers
and pupils to discuss potential problems of desegregation and their
solution, as was done in other districts in which this witness
worked, tncluding some in South Carolina. These committees of
students and teachers must meet with experts to obtain more know-
ledge on how to solve problems that will arise. The witness stated
that all defendant school districts with which he dealt cooperated
fully with his team but that his team was not authorized to negoti-
ate any differences with the school boards. The first time that
the defendant school districts saw the HEW plan in written form
was on August 7, 1969, at which time there could be no more col-
laboration from HEW's standpoint, that is, there could be no furthe
change in the HEW plan which was filed subsequently in this Court
in all these school district cases.
Even if the motion of the Government for additional time
|
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|
i had not been filed in this case with all due deference, it'is
| extremely doubtful if this Court could have physically complied
Jute the mandate of the United States Court of Appeals for the
Fifth Circuit, because of the devastating effect of super Hurricane
I Camille, which this Court d 2¢ dor hove to take judicial notice of,
‘because it has personal and actual wacwledge chareo:. This deadly,
i gigantic "hurricane- tornado’ struck not only the Mississippi Gulf
1 Coast where the undersigned Judges reside, but also caused great
iotianes to many other parts of the State of Mississippi, including
many of the areas in which the datendont school districts are
‘located. The storm not only resulted in many deaths, but in addi-
; tion, caused conatidavabie loss of and damage to property, disruption
of communications, the complete elimination of electrical power,
“water and telephones to homes and offices of the undersigned Judges
"and many others, causing utter lack of communication and inability
. to travel. Not only were fhe undersigned Judges deprived of
+ electrical power and facilities with which and in which to work,
, but their staffs were scattered and without communication for many
days and sustained considerable personal damage which required
. their immediate attention and care. Much more could be said about
. the devastation and complete destruction caused by this killer
‘hurricane, however, it is felt that the members of the United Stated
. Court of Appeals for the Fifth Circuit, and especially the members
i of this panel, are completely aware of many of these factors and
lave sympathetic with and PEN, the inability of the undersigne
i Judges to consider and study the various plans in question, togeth
with all other pleadings filed by the parties, to assemble a staff
| and equipment necessary to dictate their findings and orders, whilg
hat the same time being deeply concerned with the necessary safety
hn that it has jurisdiction to consider this motion and make findings
and welfare of their families and the preservation of their property
In addition, many schools were destroyed or severely damaged in the
coastal area, which will require the transportation or reassignment
of students therefrom to other school districts, some of which are |
1
!
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defendants herein, and various schools within the defendant school
districts have sustained damage which will require transfer of
students and rescheduling of classes, which will result in over-
crowding and considerable confusion and chaos. |
In view of all of the above, this Court finds and concludes |
of fact thereon and suggestions and reeonmindnb ions to the approp-
riate panel of the United States Court of Appeals for the Fifth
Circuit in these cases. This Court is further of the opinion and
finds, as a matter of fact and of law, that the motion filed by
the Government, joined in by the defendant school districts, is
meritorious and should be granted for the foregoing reasons and
for the further reasons that the granting of the requests made by
the Government will, in truth and in fact, probably result in a smooth, workable conversion of the ‘defendant school districts from
a dual to » unitary system, with the elimination of the many prob-
|
lems of chaos and confusion referred to by the Secretary of HEW in |
his letter. |
IL is therefore the recommendation of this Court that the |
appropriate panel of the Court of Appeals grant the amended motion |
filed by the Government in all of these cases, and then adopt and
enter the proposed "New Amended Order" as revised in this hearing,
which was filed by the United States and attached to its Amended
Motion filed here and in the Court of Appeals. ;
RESPECTFULLY SUBMITTED, this 26th day of
150
CD % Y UNITED STATES COURT OF APPEALS
— ” FOR THE FIFTH CIRCUIT
NOS. 28030 and 28042
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VS.
HINDS COUNTY BOARD OF EDUCATION, et al.,
Defendants-Appellees.
BEATRICE ALEXANDER, et al.,
| Plaintiffs-Appellants,
VS.
HOLMES COUNTY BOARD OF EDUCATION, et al.,
Defendants-Appellees.
*
(August 28, 1969)
Before BROWN, THORNBERRY and MORGAN, Circuit Judges.
PER CURIAM: :
The United States Attorney General, by motion filed
with this Court on August 21, 1969, and parallel motions filed
in the District Court for the Southern District of Mississippi, as
of same date, requests, in effect, that this Court modify the
mandate and orders heretofore entered, and, on the permission of
this Court being granted, that the district court do likewise to
extend the time for filing the terminal plans required in our order
of July 3, 1969, to a date not later than December 1, 1969.
Because of the relative shortness of time and in order to
permit appeals to be heard, decided and effective action to be taken
by the opening of the school term September, 1969-1970, this Court
*Petitioners have made strenuous efforts to obtain an official copy
of the opinion and order of the Fifth Circuit of August 28, 1969
but have been unable to obtain same prior to filing. This version
is a telephonic transcription as the opinion was read to counsel
from New Orleans.
ERHSIT 8
»
: : re ; ,
x 2
»
expedited the initial appeal from the decision of the district
court entered in May, 1969 by letter-directive from the Clerk
dated June 25, 1969. We set the case for oral argument at 9:30
a.m. July 2, at New Orleans. Paragraph 7 of that letter directive
read as follows: |
7. To enable the Court to announce a decision
as quickly as possible after submission, the
appellants are requested to file in 15 copies
a proposed opinion-order with definitive time
table and provisions on the hypothesis that
the appeal will be sustained. These should
be modeled somewhat on the form used by the
Court in its recent opinions in Hall, et al.
ve. St. Helena Parish School Board, et al.,
No. 26450, May 28, 1969, and Davis, et al. v.
. Board of School Commissioners of Mobile County,
et al., No. 26886, June 3, 1969. When and as
additional opinion-orders of this type are
issued in other school desegregation cases,
copies will be immediately transmitted to all
counsel so that the parties can make appro-
priate comments during argument with respect
to suggested modifications or changes in their
proposed opinion-orders.
The Court hopes that the appellants, private
and government, can collaborate and submit a
mutually agreeableproposed opinion-order and
it desires from the appellees contrary propesed
opinion orders covering separately (a) on the
hypothesis that the decrees of the District Court
will be affirmed, and (b) on the hypothesis
that the appellants' motion and appeals will be
sustained for reversal.
In response to this request of the Court, several proposed
decrees were supplied by one or another of the parties, including
a detailed proposed opinion-order submitted by the United States
Attorney General on the eve of the hearing. As pointed out later,
this proposed opinion-order prescribed a precise timetable.
On the argument, the Court heard from some eighteen
counsel over a period of the entire day. On the following day,
July 3, 1969, the Court handed down its opinion-order, which in
its opening paragraph stated:
As questions of time present such urgency
as we approach the beginning of the new
school year September 1969-70, the Court
requested in advance of argument that the
parties submit proposed opinion-orders
modeled after some of our recent school
desegregation cases. We have drawn freely
upon these proposed opinion-order.
.
Ad - Ll
” : ®» : ®
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¥
Both the opinion portion and, more specifically, the order
portion of the opinion-order of July 3 (see slip opinion, page 16
et seg.) was substantially that proposed by the United States Attorney
General in response to the Court's invitation (see paragraph 7 of
the letter-directive above). Except that the Court allowed
approximately ten additional days, the timetable schedule fixed
by the Court was substantially that recommended by the United States
Attorney General:
3. The board, in conjunction with the Office of
Education, shall develop and present to the
District Court before August 11, 1969, an
acceptable plan of desegregation.
4. If the Office of Education and a school
board agree upon a plan of desegregation, it
shall be presented to the District Court on
or before August 11, 1969. The court shall
approve such plan for implementation commen-
cing with the 1969 school year, unless within
seven days after submission to the court any
party files any objection or proposed amendment
thereto alleging that the plan, or any part
thereof, does not conform to constitutional
standards.
5. If no agreement is reached, the Office of
Education shall present its proposal to the
District Court on or before August 11, 1969.
The Court shall approve such plan for imple-
mentation commencing with the 1969 school year,
unless within seven days a party makes proper
showing that the plan or any part thereof does
not conform to constitutional standards.
6. For plans to which objections are made or
amendments suggested, or which in any event
the District Court will not approve without
a hearing, the District Court shall hold
hearings within five days after the time for
filing objections and proposed amendments has
expired. In no event later than August 21,
1969.
7. The plans shall be completed, approved
and ordered for implementation by the District
Court no later than August 25, 1969. Such a
plan shall be implemented commencing with the
beginning of the 1969-1970 school year.
8. Because of the urgency of formulating
and approving plans to be implemented for the
1969-70 school term it is ordered as follows:
The mandate of this Court shall issue immed-
iately and will not be stayed pending petitions
for rehearing or certiorari. This Court will
not extend the time for filing petitions for
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: : $ ; ®
€ <4
rehearing or briefs in support of or in
opposition thereto. Any appeals from orders
or decrees of the District Court on remand
shall be expedited. The record on any appeal
shall be lodged with this court and appellants
brief filed, all within ten days of the date
of the order or decree of the district court
from which the appeal is taken. Appellee's
brief shall be due ten days thereafter. The
court will determine the time and place for
oral argument if allowed. The court will
determine the time for briefing and for oral
argument if allowed. No consideration will
be given to the fact of interrupting the
school year in the event further relief is
indicated.
REVERSED AND REMANDED WITH DIRECTIONS
Subsequently, on July 25, 1969, the Court on its own
motion modified its July 3 opinion order by renumbering former
paragraph 8 to be number 7, and striking from such order
paragraphs 5, 6, 7 to insert in lieu thereof new paragraphs 5
and 6 with the resulting timetable:
5. If no agreement is reached, the Office
of Education shall present its proposal for
a plan for the school district to the district
court on or before August 11, 19692. The
parties shall have ten (10) days from the date
such a proposed plan is filed with the district
court Lo file objections or suggested amendments
thereto. The district court shall hold a
hearing on the proposed plan and any objections
and suggested amendments thereto, and shall
enter a plan which conforms to constitutional
standards no later than ten (10) days after
the time for filing objections has expired.
6. A plan for the school district shall be entered
for implementation by the district court no later
than September 1, 1969 and shall be effective
for the beginning of the 1969-1970 school year.
The district court shall enter Findings of Fact
and Conclusions of Law regarding the efficacy
of any plan which is approved or ordered to
immediately disestablish the dual school system
in question. Jurisdiction shall be retained,
however, under the teaching of Green v. County
School Board of New Kent County, 391 U.S. 430,
439 (1968), and Raney v. Board of Education of
gould School District, 391 U.S. 443, 449 (1968),
until it is clear that disestablishment has been
achieved. :
Thus it is shown that the timetable adopted was substan-
tially that recommended by the United States Attorney General
to be feasible and appropriate.
From the numerous other cases referred to in the letter-
directive, the Court was conscious that precise timetables were
in order. Consequently, in the course of arguments heard on
July 2, 1969, the Court addressed specific questions to all
counsel in the case concerning proposed timetables. Questions
were specifically directed to the Assistant Attorney General
appearing on behalf of the government. Without qualifications
in response to precise inquiries he affirmed the government's
view that the timetable proposed by the government was reason-
able. And, with emphasis on the Attorney General's proposed
order that the Department of Health, Education, and Welfare
should beicailed in to advise the boards and the district court,
he affirmed that sufficient resources of the Executive Department
would be made available to enable the Office of Education of the
United States Department of Health, Education, and Welfare to
fulfill its role as specified in the order proposed by it and
actually thereafter entered by the Court.
Except for its entry of the modification order on July 25,
which moved the deadline for the effective date of the plans
from August 27 to September 1, 1969, no further action was taken
by this Court. Likewise, until the motion of August 21, 1969,
there has been no suggestion by the United States Attorney
General that the times fixed by the Court should be relaxed, or
extended, or that such Sinetable was unattainable.
The first information that the proposed and adopted time-
table was not appropriate came on August 19, 1969, when Judge
John R. Brown, Chief Judge and presiding judge of this panel,
received by safehand courier a communiction from the Secretary
of Health, Education, and Welfare dated August 19, 1969, which in
turn enclosed a copy of the Secretary's communication of like
date to Judges Cox, Russell and Nixon. These matters are set
forth in this Court's order of August 20, 1969, copy of which
is Annexe? as schedule A.
As time was so short, this Court by oral order communicated
to the district court, granted full leave £0 the district court
to receive, consider and hear the government's motion for exten-
sion of time to December 1, 1969. Upon the hearing to be held
after notice to counsel representing all parties not later than
Monday, August 25, it further requested the district court to
make its recommendations to the Court of Appeals. The district
court was to communicate its recommended decision and transmit a
copy of the tra script of any evidence to each of the judges at
his home Sara This Couns further prescribed that in view
of the shortness of time, all counsel were required to forward
directly to their home stations any memorandum, briefs in sup-
port of or in opposition to the motion and recommended decision
of the district court, so that it would be in the judges' hands
not later than 11 A.M., Wednesday, August 27.
Following this, the Court has received and considered the
findings of fact, conclusions of law and recommendations of the
district court, the record of the hearings and the briefs and
arguments of counsel, pro and con. On the basis of the matters
set forth herein, the Court amends its order further as follows:
First, the Order of this Court dated July 3, 1969, as
amended by order entered July 25, 1969, is hereby amended by
renumbering paragraph 7 to be paragraph 9 and by deleting para-
graphs 3, 4, 5 and 6 and the following paragraphs are substituted
therefor:
6. The district court shall make findings of fact and
conclusions of law regarding the efficacy of the plan to dis-
establish the dual school system in question. Jurisdiction shall
# : §
be retained, however, under the teachings of Green v. County
School Board of New Kent County, 391 U.S. 430, 439 (1968), and
Raney v. Board of Fducation of Gould School District, 391 U.S.
443, 449 (1968), until it is clear that disestablishment has
been achieved.
7. By October 1, 1969, the board, in conjunction with
the Office of Education, shall develop 2 program to prepare its
faculty and staff for the conversion from the dual to the uni-
tary system. This program shall include, but not be limited
to, biracial team teaching, in-service training programs and
seminars. The Office of Education shall report to the Court
on October 1, 1969, with respect to this program. If the Board
fails to develop a program, the Office of Education shall sub-
mit a program which the Court may approve unless meritorious
objections supported by affidavit or other documentary evidence,
are made by any party.
8. The Board shall not construct any new facilities nor
materially alter any existing facilities until a terminal
plan has been approved by the court, unless by agreement of
all parties or upon motion and order of the court. Any such
proposed construction shall be sresented to the parties at
least fifteen days prior to motion in the court for an order
approving same.
| Second, it is a condition of this extension of time that
the plan as submitted and the plan as finally approved shall
require significant action toward disestablishment of the dual
school systems during the school year September, 1969-June,
1970.
Third, in all other aspects, the order of this Court of
July 3, 1969, as amended July 25, 1969, remains in full force
and effect.