Lee v. Macon County Board of Education Brief for Plaintiffs

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i

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION

ANTHONY T. LEE, et al..
Plaintiffs,

UNITED STATES OF AMERICA, :
Plaintiff-Intervenor :
and Amicus Curiae,

v. : CIVIL ACTION
MACON COUNTY BOARD OF EDUCATION, et al., : NO. 604-E

Defendants. :

BRIEF FOR PLAINTIFFS

FRED D. GRAY34 North Perry Street 
Montgomery, Alabama

JACK GREENBERG 
CHARLES H. JONES, JR.
MELVYN ZARR 
HENRY M. ARONSON

10 Columbus Circle New York, New York 10019
Attorneys for Plaintiffs in 
No. 604-E



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Nos. 76-1998, 1999, and 2199

NORA LEWIS, ELIZABETH BULLOCK, MARY 
CARTER, BETTY JOHNSON and GERTRUDE 

MOODY, each individually and on behalf 
of all other persons similarly situated,

Appellees,

v .

PHILIP MORRIS INCORPORATED, a corporation 
TOBACCO WORKERS' INTERNATIONAL UNION, 

an unincorporated association; and LOCAL 
203, TOBACCO WORKERS' INTERNATIONAL UNION, 

an unincorporated association,

Appellants.

PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC 

OF NORA LEWIS, et al.



\

INDEX

Introduction

PART 1: The Constitution Of The Uhited States Imposes
Upon The Defendants An Affirmative Duty To 
Effectuate Statewide Desegregation Because The 
Defendants Operate A State System Of Education. 
This Duty Has Not Been Fulfilled; Rather, The 
Defendants Have Exercised Their General Control 
And Supervision Over All The Public School In 
The State To Promote And Maintain Segregation 
And Other Forms Of Racial Discrimination.

Introduction

I. The Defendants Have Continued To Exercise 
Their Pervasive Powers To Frustrate Local 
Attempts At Desegregation. -------------

II. The Defendants Control School Finances And 
Fiscal Policies And Have Exercised That 
Control To Promote And Maintain Segregation 
And Other Forms Of Racial Discrimination.~

III. The Defendants Control Instructional Programs 
And Policies And Have Exercised That Control 
To Promote And Maintain Segregation And Other 
Forms Of Racial Discrimination. -------------

IV. The Defendants Control School Construction And 
Consolidation Programs And Policies And Have 
Exercised That Control To Promote And Maintain 
Segregation And Other Forms Of Racial Discrimi­
nation. —

V. The Defendants Control School Transportation 
Programs And Policies And Have Exercised That 
Control To Promote And Maintain Segregation 
And Other Forms Of Racial Discrimination. --

PART 2: Nature Of The Relief.

PAGE
1

3

6

19

25

26

29

30

Proposed Decree 42



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this Court, was, of course, not applied by the district court 
to the facts of this case. Moreover, as this Court pointed out, 
"the opinion [of the district court] is not clear on the precise 
grounds on which it rests" (Slip Opinion at 21). Finally, 
this Court determined that the lower court not only failed 
to properly articulate the grounds for its decision but also 
that the opinion "may be said to have been based" (emphasis
added) on an erroneous legal analysis of the applicable law

3/
at the time the decision was rendered (Id.); this Court 
proceeded to set forth the applicable law.

This Court should remand the race allegations of 
the complaint to the district court to properly apply the 
intervening Supreme Court law, to adequately articulate 
the grounds for decision and to apply the law consistent 
with the opinion of the Court. This review requires, as 
we set forth below, consideration of several critical 
factual questions; this consideration should appropriately 
be undertaken in the first instance, as the Supreme Court 
directed in Hazelwood v. United States , supra and in Dothard v. 
Rawlinson, supra by the district court.

The Lewis petitioners respectfully maintain that 
rehearing may be granted and simply resolved by remand 

ing rather than dismissing the allegations of racial dis 
crimination. However, the Lewis petitioners further maintain

A finding that provides the Appellate Court with 
n  ̂ b mere conjectures as to the reasoning, both factually and 
legally, used by the district court" is reason for remand. 
Patrician Towers Owners, Inc, v. Fairchild, 513 F. 2d 216, 221 
(4th Cir. 1975) .



Introduction

In this supplementary proceeding, plaintiffs seek the 
establishment of no new principles of law. None are required. 
What is required is the establishment of procedures to insure 
that the principles enunciated by this Court on July 13, 1964 
will be enforced in such a way as to make equal educational 
opportunity a reality for Negroes in Alabama.

That these principles have not been translated into reality 
is an understatement. To the contrary, they have been system­
atically and openly defeated.

In its opinion, the Court directed the present defendants -—
2/ 3/

George C. Wallace, Austin R. Meadows and the Alabama State
4/Board of Education —  to recognize that !l in the exercise of 

their general control and supervision over all the public schools 
in the State of Alabama and particularly in the allocation and 
distribution of state funds for school operations, they have an 
affirmative duty to proceed with 'deliberate speed' in bringing 
about the elimination of racial discrimination in the public 
schools of this State" (231 F. Supp 743, 756). Those defendants 
were directed "to formulate and place into effect plans designed 
to make the distribution of public funds to the various schools 
throughout the State of Alabama only to those schools and school

1/ This proceeding is on plaintiffs’ alternative motion for fur­
ther relief filed September 22, 1966, and plaintiffs' motion for 
a preliminary injunction against defendant George C. Wallace in 
his capacity as Governor of the State of Alabama filed November 2̂., 
1966.
2/ Governor and President of the Alabama State Board of Education. 
This defendant was originally served solely in his latter capacity.
J3/ State Superintendent of Education and Executive Officer and 
Secretary of the Alabama State Board of Education.
4/ The present members of the Alabama State Board of Education 
are: James D. Nettles, Ed Dannelly, Mrs. Carl Strang, Fred L.
Merrill, W. M. Beck, Victor P. Poole, W. C. Davis, Cecil Word, and 
Rev. Harold C. Martin.



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the Appeals Court erred in substituting its judgment for
that of the trial court. The Supreme Court, however, ruled
that additional statistical factors require consideration;
but, importantly, the Supreme Court declined to rule on the
inferences to be determined from the statistics in the
first instance because,

"statistics . . . come in infinite variety
. . . Their usefulness depends on all the
surrounding facts and circumstances." Only 
the trial court is in a position to make the 
appropriate determination. . . ." 53 L.Ed.2d
at 780. (Emphasis added)
In another Title VII case decided on the same, day 

as Hazelwood, the Court further emphasized this point, Dothard 
v. Rawlinson, 53 L.Ed. 786, 803-04 (1977):

"It is for the District Court in the first 
instance to determine whether statistics appear 
sufficiently probative enough of the ultimate 
fact in issue . . . .  In making this determina­
tion, such statistics are to be considered in 
light of all other relevant facts and circum­
stances. . . . "  If the defendants in a Title 
VII suit believe there to be any reason to 
discredit plaintiffs' statistics that does 
not appear on their face, the opportunity to 
challenge them is available to the defendants 
just as in any other lawsuit. They may endeavor 
to impeach the reliability of the statistical 
evidence, they may offer rebutting evidence, 
they may disparage in arguments or in briefs 
the probative weight which the plaintiffs 
evidence should be accorded."

The defendants in this case attempted to discredit the
plaintiffs statistics in several of the ways outlined by
the Supreme Court in Dothard. The district court considered
and rejected these criticisms offered by the defendants,
419 F. Supp. at 354-56. Even though this Court disagreed
with the lower court's analysis, it was not proper for the



in thesystems that have proceeded with 'deliberate speed' 
desegregation of their schools and school systems as required 
by Brown v. Board of Education"(231 F. Supp. at 756-57).

Defendants concede that they have made no plans to cease
their "unconstitutional support of segregated school systems"

6/(231 F. Supp. at 756). Instead, they have continued to employ 
their general control and supervision over public education in 
the State of Alabama to promote and maintain segregation.

Plaintiffs still seek what they sought in 1964, namely, an 
order directing these defendants to effectuate "desegregation in 
all the public schools of the State of Alabama" (231 F. Supp. at 
756). In 1964, this Court held (231 F. Supp. at 756):

For the present time, this Court will 
proceed upon the assumption that the Governor, 
the State Superintendent of Education and the 
State Board of Education will comply in good 
faith with the injunction of this Court . . .  
and, through the exercise of considerable 
judicial restraint, no state-wide desegre­
gation will be ordered at this time.

The reliance by the Court on the good faith of these defend­
ants has since been conclusively demonstrated as misplaced. 

Instead of promoting and encouraging desegregation, these defen<j-
.ants have done their best to prevent, discourage and obstruct

7/
desegregation, both at the state and local level. Thus there is 
no cause today for continued judicial restraint, for it will only 
serve to further delay trie enjoyment of the federal constitutional 
rights of the 300,000 Negro public school students of Alabama.

5/

J5/ Delays once found to be consistent with "deliberate speed" 
are no longer permissible in this circuit. See United States v. 
Jefferson County Board of Education. 5th Cir., December 29, 1966, 
in which the Court stated (slip op. p. 49):

The announced speed of desegregation no 
longer seems to be a critical issue. The 
[defendant] school boards generally con­
cede that by the school year 1967-68 all 
grades should be desegregated.

€>/ State Superintendent of Education Meadows conceded in open 
court that he has done nothing to eliminate segregation, but he 
maintained that his only duty was to eliminate"discrimination" 
(Meadows' testimony, Transcript 77-78; 147-48). Brown v. Board of 
Education, 347 U.S. 483 (1954) teaches that segregation ̂ is discri­
mination.
1_/ The so-called anti-guidelines bill (Acts of Alabama 1966, Special Session, Act No. 252 (H. 446)) is but one example of the 
defendants' efforts to thwart desegregation.

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district judge. United States v. Appalachian Electric 
Power Co., 107 F.2d 761 (4th Cir. 1939) See aĵ so Hamnick 
v. Aerojet-General Corp., Indus. Sys. Div., 528 F.2d 65, 67 
(4th Cir. 1976) concurring opinion. cf. Glasscock v. United 
States 323 F.2d 589 (4th Cir. 1963) and United States v.
Warwick Mobile Home Estates, Inc., 537 F.2d 1148 (4th Cir. 1976).

The Supreme Court in the 1976 and 1977 terms 
summarized three general types of unlawful systemic dis­
crimination which may be briefly summarized for purposes 
of this petition. The Court determined that purposeful 
discrimination, disparate treatment, violates Title 
VII; but more to the point, the Court, as the panel noted,
(Slip Opinion at 25-6), held that a statistical imbalance 
may create a prima facie case of purposeful discrimination, 
Teamsters v. United States, supra at 339-40.

The second type of systemic discrimination, disparate 
effect, also may depend on statistical analysis, however, these 
statistics do not have to lead to a conclusion of purposeful 
discrimination but only that "the facially neutral standards 
in question select applicants for hire [or promotion, assign­
ment, etc.] in a significantly discriminatory pattern." Dothard 
v. Rawlinson, supra at 797; Teamsters v. United States, Supra at 
n. 15; see Nashville Gas Co. v. Satty, 15 EPD 1[7948 at 6734-35 
(1977) .

Finally, the Court held that practices which continue 
the effect of prior purposeful discrimination may be unlawful. 
For example,in Teamsters the Court determined that a seniority



In Part 1 of this brief, plaintiffs will demonstrate that 
the statewide relief sought since 1964 should no longer be with­
held. In Part 2 of this brief, plaintiffs will treat the nature 
of that relief.

PART 1

The Constitution Of The United States Imposes 
Upon The Defendants An Affirmative Duty To 
Effectuate Statewide Desegregation Because 
The Defendants Operate A State System Of 
Education. This Duty Has Not Been Fulfilled; 
Rather, The Defendants Have Exercised Their 
General Control And Supervision Over All The 
Public Schools In The State To Promote And 
Maintain Segregation .And Other Forms Of Racial 
Discrimination.

Introduction

In its 1964 opinion, this Court concluded that the present 
defendants —  George C. Wallace, Austin R. Meadows and the Alabama 
State Board cx Education —  possess "general control and super­
vision over all the public schools in the State of Alabama" (231 
F. Supp. at 756), finding (231 F. Supp. at 750-751):

The evidence in this case is clear that over the years the State Board of Education 
and the State Superintendent of Education 
have established and enforced rules and 
policies x'sgarding the manner in which the 
city and county school systems exercise their 
responsibilities under State law. This con­
trol relates, among other things, to finances, 
accounting practices, textbooks, transporta­
tion, school construction, and even Bible 
reading.

Since that time nothing has occurred to diminish the force 
of that conclusion (See, e.g. Meadows’ testimony, Tr. 15-16).

To the contrary, that conclusion has been buttressed by 
defendant Meadows himself. On March 4, 1965, defendant Meadows
cited his plenary constitutional power over public education in

8/Alabama, granted him by Section 262 of the Constitution

Q/ Section 262 of the Constitution of Alabama provides:
The supervision of the public schools shall 
be vested in a superintendent of education, 
whose powers, duties and compensation shall 
be fixed by law.

3



-8-

neutrality is, in fact, not neutral, for 
past acts of discrimination continue to 
significantly affect modern practice.
'Under the act, practices, procedures, or 
tests neutral on their face, and even 
neutral in terms of intent, cannot be 
maintained if they operate to 'freeze' the 
status quo of prior discriminatory employ­
ment practices." Griggs v. Duke Power Co.,
401 U.S. 424, 430 (1971). See also Quarles 
v. Philip Morris, Inc., supra. The company 
in order to reassert a balance, should have 
informed all applicants for hourly positions 
at the beginning of any interview (1) of the 
position currently available in each of the 
four departments with an appropriate job 
description and (2) that it assigns and 
hires new workers without reference to race.
All those class members that were not so 
informed when they were hired into the Stemmery, 
and that believed that their race substantially 
limited their initial employment to the Stemmery 
are entitled to recover for their losses." (emphasis 
supplied)
Appellees submit that the above-quoted excerpt 

indicates that the district court was not referring to a 
"racially balanced workforce" but instead that language 
referred to the previously mentioned "disadvantage" that black 
applicants had because of the prior discriminatory practices of 
the company and the company's failure to adequately dispel 
the belief of black workers established by the company's 
unlawful practices that initial job assignments were made by 
race; a belief which was not held by most white applicants.
In order to remove this disadvantage the court held that the 
company should have informed applicants of all the available 
positions and tha.t job assignments are made without reference
to race.



of Alabama to then United States Commissioner of Education Keppel
(Government's Exhibit 157):

The State Superintendent of Education is the 
only educational official or agency that is 
in the Constitution for the supervision of 
the public schools in this State . . . The 
State Superintendent of Education is the 
only state agency or official required by law 
to sign and approve budgets of county and city school systems, sale of school warrants of 
indebtedness by county and city school systems, 
all vocational education contracts with county 
and city boards of education, all Title III 
documents of county and city boards of educa­
tion, all Title V-A documents, all Title X 
documents, all Vocational Education Act of 
1963 documents, all Manpower Development and 
Training Act of 1962 documents, all Training 
Redevelopment Act documents, and will be the 
legally constituted authority to disburse all 
Federal funds to all services, local and State.

The following year, in his letters of May 24, 1966 to local
school superintendents (Government's Exhibits 36-57), defendant
Meadows invoked his plenary constitutional power under Section
262, in the following terms:

In accordance with Section 262 of the Constitu­
tion of Alabama that places the supervision of 
the public schools under the State Superintendent 
of Education, I am requesting that no superinten­
dent nor board of education sign any such agree­
ment and, if signed, that such board withdraw 
such agreement [to comply with HEW regulations].

Defendant Meadows' view of his powers mirrors a view con­
sistently held by the Supreme Court of Alabama. In 1935, that 
Court said:

Without question, public education through 
a system of public schools is, by the Constitu­
tion, as well as by the statutes, a government 
function in Alabama; indeed a major 'activity of the state government.

County boards of education, county superin­
tendents of education, county treasurer[s] of 
public school funds, school district organiza­
tions, are all part of the state set-up in 
maintaining a system of public schools through­
out the state.

*  *  *

Every public school is a state school, created 
by the state, supported by the state, supervised 
by the state, through state-wide and local agen­
cies, taught by teachers licensed by the state, 
employed by agencies of the state. Williams. 
Supt. of Banks, et al. v. State. For Use and

4



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in Castaneda v. Partida. . . .  It involves
calculation of the "standard deviation" as a 
measure of predicted fluctuations from the 
expected value of a sample . . . .  The Court 
in Castaneda noted that "[a]s a general rule 
for such large samples, if the difference 
between the expected value and the observed 
number is greater than two or three standard 
deviations", then the hypothesis that teachers 
were hired without regard to race would be 
suspect.
It is illuminating to apply the Castaneda -

Hazelwood formula to this case. From 1965-1974 approximately
50% of those hired were black while approximately 80% of

5/
those hired into the Stemmery were black. (Slip Opinion
at 24) Using the 50% figure as the expected value (assuming
even distribution by race as does the Supreme Court), the
difference between the observed value (80%) and the expected
value was 57.9 standard deviations. Moreover, for the period
from 1971-1974 the picture does not improve; there is a
difference of 57.4 standard deviations between the expected

6/
and the observed values.

Thus, the disparity in this case, 57 standard 
deviations, is much larger than the general rule of 2-3

5/The specific figures which are used in the analysis 
are found in the Record at App. 624-625.

6/Between 1971 and 1974, approximately 59% of all 
hires were black while approximately 86% of all hires assigned 
to the Stemmery were black.



Benefit of Pickens County, et al., 230 Ala.
395, 397, 161 So. 507, 507-08 (1935); fol­
lowed in State v. Tuscaloosa County, et al»,
233 Ala. 611, 172 So. 892 (1937).9/

Succeeding sections of Part 1 will analyze specific major 
areas of defendants' control of public education in Alabama and 
will demonstrate the exercise of that control to promote and 
maintain segregation and other forms of racial discrimination.
In I, plaintiffs will show that since this Court's 1964 opinion 
and injunction the defendants have continued to exercise their 
pervasive power over local school systems to frustrate desegre­
gation attempts. In II, plaintiffs will examine the control 
by these defendants over local school systems through rigid 
control of their finances and will show that this control has 
been exercised to promote and maintain segregation and other 
forms of racial discrimination. In III, IV and V, plaintiffs 
will show that the defendants control programs and policies 
relating to, respectively, instruction, school construction and 
transportation and have exercised that control to promote and 
maintain segregation and other forms of racial discrimination.

This analysis will demonstrate the propriety and necessity of 
a statewide desegregation order.

9/ Nothing said by the Supreme Court of Alabama in its advisory 
opinion of February 18, 1964 casts doubt upon the state constitu­
tional power of the defendants "to exercise general control and 
supervision over the county and city boards of education" (160 
So.2d 648, 650) or, presumably, to define and enforce state edu­
cational policy regarding segregation and desegregation. The 
court found that the Alabama Legislature had delegated to local 
boards of education the power to assign pupils and teachers and 
to provide transportation. However, as a matter of federal law, 
that delegation is plainly ineffective to withdraw from responsi­
ble state officials state authority to do what the federal con­
stitution requires. "[Decisions of the Supreme Court of the 
United States] compel a state in this [Fifth] Circuit to take 
affirmative action to reorganize its school system by integrating 
the students, faculties, facilities and activities” (United States 
v. Jefferson County Board of Education, 5th Cir., Dec. 29, 1966, 
slip op. p. 19).

5



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the facts in the Record and to support its legal conclusion
8/

led to error in the panel's opinion. In fact, this witness was 
affirmatively discouraged from initially seeking employment

9/
in a permanent department. Moreover, many other witnesses 
testified at trial that they were only informed of vacancies
in the Stemmery, even though many of them were in fact seeking

10/permanent employment. Though not stated in the lower court's 
findings, that testimony was a basis for, and adequately 
supports the lower court's ultimate finding.

The district court, in fact, relied on the disparate 
effect analysis of systemic discrimination in concluding that 
the defendants violated Title VII:

8/
The question of whether, or to what extent, the trial 

court relied on the testimony of a particular witness is a basis 
for remand. See School v. Conboy, 551 F.2d. 41, 43 (4th Cir. 1977) .

9/
See App. 820-824; this testimony was unrefuted. In 

fact, several other witnesses testified that they had been dis- 
courgaged from transferring from Stemmery to Fabrication, which 
amounted to the same as being a new hire since they could not 
retain seniority credit for time spent in Stemmery. See App. 
711-713; 737-738; 745; 749; 776; 780-782; 848; 945; 955; 1262; 
1311-1313 and 1334.

10/
See pp. 703-705; 728, 730, 793, 943, and 1115;

See also 729, 777, 821, 843, 1065-67, 1104, and 1114. The panel 
made repeated references to the lack of evidence to show that 
defendants discouraged applicants (Slip. Opin. p. 30), however, 
as noted above the trial court's basis for liability was 
"failure to inform".



The Defendants Have Continued To 
Exercise Their Pervasive Powers 
To Frustrate Local Attempts At 
Desegregation.

In its 1964 opinion, the Court warned these defendants that 
they must no longer interfere with local desegregation attempts 
" —  either directly or indirectly —  through the use of subtle 
coercion or outright interference" (231 F. Supp. at 756). More­
over, these defendants were ordered not to fail to exercise their 
"control and supervision over the public schools of the state... 
in such a manner as to promote and encourage the elimination of 
racial discrimination in the public schools, rather than to 
prevent and discourage the elimination of such discrimination" 
(Order of July 13, 1964, <][6) .

Defendants concede that they have failed to promote or 
encourage desegregation of the public schools of Alabama (Meadows' 
testimony, Tr. 77-78; 147-48; Mrs. Strang’s testimony, Tr. 170). 
What they have done is to flout this Court's warning against 
interference with local desegregation attempts.— ^

The defendants' actions since the Court's 1964 ruling can 
most usefully be examined chronologically.

On August 31, 1965, Governor George C. Wallace, Lieutenant 
Governor James B. Allen;» and Speaker of the House of Representa­
tives Albert Brewer sent telegrams to local school superintendents 
of systems that had submitted desegregation plans to the United 
States Department of Health, Education and VTelfare (HEW) covering 
all grades (Government's Exhibits 6-11). These telegrams stated,

I.

10/ Plaintiffs recognize that this Court's warning against 
interference with local desegregation included the words "when 
the local school authorities are attempting to comply with the 
desegregation orders of a federal court" (231 F. Supp. at 756).
But these words do not limit the defendants' obligation to refrain 
from all interference with any local school system, for all local 
school systems (whether under federal court order or not) are 
under a federal constitutional obligation to desegregate.

6



-In­

applicable law (much of which was announced by the Supreme
Court subsequent to the decision) should not lead to a dis­
missal of the allegations of race discrimination but rather

11/
to a remand. As the Fourth Circuit stated in EEOC v. United
Virginia Bank-Seaboard National, 555 F.2d 403, 406 (1977):

" . . .  there is not the 'detail and exactness' 
on the material issues of fact necessary for an 
understanding by an appellate court of the factual 
basis for the trial court's findings and conclusions, 
and for a rational determination of whether the 
findings of the trial court are clearly erroneous.
It was to assure that 'detail and exactness' in 
the trial court's findings as a predicate for intel­
ligent appellate review that Rule 52(a) was adopted. 
The failure of the district court to comply in this 
case with the basic requirement of the Rule for 
detailed findings of fact compels us to remand 
the cause for detailed findings of fact and con­
clusions of law by the trial court."
The panel's reasons for remanding the issue of

sex discrimination apply equally to the issue of race
12/

discrimination:
1. The findings of fact, on which the judgment

was granted, were phrased in broad conclusory 
terms and did not include any subsidiary find­
ings which would give appropriate support to

11/See United States v. Commonwealth of_ Virginia,
_______ F.2d __ _ (No. 77-1683), (4th Cir. 1978); and, Moseley
v. United States, 499 F.2d, 1361, 1363 (4th Cir. 1974).

12/
Petitioners respectfully submit that the Record 

is sufficiently clear on the issue of race discrimination for 
the Court to affirm the lower court's decision. But, at least, 
the issue of race discrimination should be remanded.



in part: "[T]hose school systems which have been required to
desegregate under federal court order are not required to desegre­
gate all 12 grades in one year. We think it would be advisable 
for your school board to reconsider your action in the submission 
of your compliance plan."

On September 3, 1965, these same superintendents received 
"follow-up" telegrams from the same state officials, again urging 
that their all-grade compliance plans be reconsidered (Government's 
Exhibits 15-20) and defining the maximum tolerable desegregation 
under state policy as the minimum desegregation required by the 
federal courts.— ^ These telegrams requested the local superinten­
dents to "take whatever action is necessary to see that the 
administration and execution of these plans do not go beyond the 
requirements of federal court orders of five grades." The 
telegrams urged obedience to the resolution of the State Board of 
Education of September 2, 1965 (Government’s Exhibit 12), which 
stated that "any action taken by local school boards in excess 
of minimum requirements of laws and court orders could jeopardize 
the continued support by the public of public education." The 
telegrams also stated: "We again respectfully call to your
attention that the execution and administration of plans beyond 
those required is not in the interest of public education in the 
State of Alabama."

On September 2, 1965, defendant Meadows sent telegrams to 
local superintendents stating: "Please wire immediately number or
Negroes enrolled in white schools and total number grades in 
which enrolled" (Government's Exhibits 13-14).

11/ Lauderdale County Superintendent Thornton's reply to this 
telegram failed to convince the senders that he was innocent of 
unnecessary desegregation. They replied: "We call upon you to
align your policies with the minimum requirements of the law and 
of court orders" (Government's Exhibit 2 (Lauderdale)).

7



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the district court; in the alternative the appellees
respectfully suggest that the case be reheard en banc.

Respectfully submitted
By ! * ' -/f -/>■' *-> ____

Henry L. Marsh, III 
William H. Bass, III 
Hill, Tucker & Marsh 

509 North Third Street 
Richmond, VA 23219

BARRY L. GOLDSTEIN
806 15th Street, N.W. 
Suite 940
Washington, D.C. 20005

JACK GREENBERG
10 Columbus Circle 
Suite 2030
New York, N.Y. 10019

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of June, 1978, 
two (2) copies of the foregoing Petition For Rehearing And 
Suggestion For Rehearing En Banc were mailed, postage prepaid, 
to Lewis T. Booker, Esquire, Hunton & Williams, P. O. Box 1535, 
Richmond, VA 23217, and Jay J. Levit, Esquire, Suite 2120, 
Central National Bank Building, Richmond, VA 23219, counsel
for appellants.



A few days later, on September 7, 1965, a meeting was held 
of all local school superintendents and defendants Wallace and 
Meadows in Montgomery (see Government's Exhibits 21-25). At this 
meeting, so defendant Meadows testified (Tr. 33), defendant 
Wallace "again urged school boards not to go beyond what was 
required...by the courts." The effect on the local superintendents 
of being summoned by telegram from all over the state to attend a 
special meeting at the State Capitol was predictable —  and 
intended. They got the message. Within a few hours after 
returning from this meeting, the Choctaw County Board of Education 
met and passed the following resolution (Government's Exhibit 35):

RESOLVED, that due to the change in 
conditions, particularly within the past 
few days, the Board concludes it is for the 
best interest of the children attending the 
schools of Choctaw County, Alabama, their 
safety and welfare, for the continued orderly 
operation of the schools in the County, and 
for the prevention of violence which would 
likely result in serious consequences adversely 
affecting the orderly operation of the schools, 
the plan of desegregation of the schools of Choctaw County, Alabama, adopted by this Board 
on August 23, 1965, be and the same is hereby 
revoked.

Another such meeting was held on March 31, 1966 (see Plain­
tiffs' Exhibit 3). Defendant Wallace again urged the local boards 
to do nothing in excess of the minimum desegregation requirements 
of the federal courts (Meadows' testimony, Tr. 33). A smaller 
meeting, involving only about 15 local superintendents, was held 
in the Governor's office on April 6, 1966 (see Government's 
Exhibit 26). At this meeting defendants Wallace and Meadows 
recommended that the local superintendents not submit HEW compliance 
agreements or, if submitted, that they be qualified (Meadows' 
testimony, Tr. 40-41) ^

12/ Some local superintendents who attended apparently were 
persuaded. That same day, defendant Meadows wrote HEW requesting 
the return of Geneva County's executed Form 441-B, submitted the 
previous day (Government's Exhibit 2 (Geneva)).

8



The defendants next accelerated their campaign against 
faculty desegregation. On May 10, 1966, defendant Meadows sent 
a letter to Lauderdale County Superintendent Thornton "recom­
mending" "that you not integrate teachers unless you have a court 
order requiring you to do so" (Government's Exhibit 27). The next 
day defendant Meadows sent letters to about 20 local superintendents 
(those that he knew had signed unconditional Form 441-B compliance 
agreements) (see Government's Exhibit 34), stating (Government's 
Exhibits 28-34): "I am requesting that you ask your Board of
Education to reconsider its action in adopting form 441-B and 
through you, I recommend that your Board rescind agreement of 
HEW Form 441-B." The next day. May 12, 1966, defendant Meadows 
returned Cleburne County's form 441-B with the "recommendation" 
that it be amended, setting forth the amendment. This was done 
(Plaintiffs' Exhibits 12-13).

On May 13, 1966, a resolution was unanimously approved by 
defendants Wallace and Moadows, the Lieutenant Governor, the 
Speaker of the House and the Alabama Congressional Delegation 
and sent to all local superintendents in a release by defendant 
Meadows of May 16, 1966 (Government's Exhibit 36). This resolu­
tion urged "that every responsible official should continue to 
resist all illegal requirements imposed by the 1966 Guidelines, 
such as faculty desegregation and quota or percentage pupil 
assignments." (As we have seen, the defendants' definition of 
"illegal" desegregation is any desegregation beyond the minimum 
requirements of the federal courts.) On May 19, 1966, defendant 
Meadows released a resolution of the State Board of Education 
commending the May 13th resolution to all the local superintendents 
and "recommending""that local school superintendents and boards 
of education withdraw any 441-B signed agreements for the new 
Guidelines" (Government's Exhibit 37).

On May 24, 1966, defendant Meadows sent letters to all local 
superintendents "requesting" them to withdraw their unconditional

9



Forms 441-B and to report their actions to him by May 30, 1966. 
The letters stated in part (Government's Exhibits 38-57):

In accordance with Section 262 of the 
Constitution of Alabama that places the 
supervision of the public schools under 
the State Superintendent of Education, I 
am requesting that no superintendent nor board of education 3ign any such agreement and, at such board withdraw

On June 2, 1966, defendant Meadows sent telegrams to 17 
superintendents that had not furnished the reports "requested" 
in his May 24th letter, stating (Government's Exhibits 66-67); 
Plaintiffs' Exhibit 11): "May 24th letter requesting report,
approved by State Board of Education, on your Board's action on 
HEW guidelines not received and such report will be necessary 
before any further distribution of any funds to your school sys

On June 6, 1966, a meeting of all local superintendents with 
defendants Wallace and Meadows was held in Montgomery (see Govern-

the local school authorities he would take his case against volun­
tary desegregation plans submitted in compliance with HEW require­
ments "to the people," meaning that he would stage mass meetings

13/ Defendant Meadows’ May 24th letter bore immediate fruit. 
Winston County Superintendent Albright wrote him on May 30, 1966, 
advising him that HEW Form 441-B had been withheld "from respect 
of you, the State Department of Education and our Governor" 
(Government's Exhibit 118). Sheffield City Superintendent Brewster 
replied on May 27, 1966: "I am pleased to report that the
Sheffield Board has not signed form 441-B" (Government's Exhibit 
112). Marion County Superintendent Hudson replied on May 27, 1966.. 
that it was withdrawing its form 441-B (Government's Exhibit 109). 
Escambia County Superintendent Weaver replied on May 28, 1966 thr.t 
at the May 27th meeting of the Board of Education, it voted not to 
sign form 441-B (Government's Exhibit 106). Other systems delayed 
action on compliance until after the state-wide meeting of June 6, 
1966, discussed, infra, (see, e.g., Government's Exhibits 105,107, 110).
14/ In advance of this meeting, local superintendents were fur­
nished by the Governor with a legal memorandum arguing the 
illegality of the guidelines, in which defendant Wallace stated:
"I hope you will reconsider or already have reconsidered this 
matter in accordance with our request" (Government's Exhibits 62-65).

such

tem. "

ment's Exhibits 58-61) 14/ At that meeting Governor Wallace told

10



in localities where compliance had been effected (Meadows' 
testimony, Tr. 61-62)

To the local superintendents the message was unmistakably 
clear. That same day the Talladega County Board of Education 
reversed its earlier intention to execute a form 441-B? this 
action was communicated on June 9th to HEW by Superintendent 
Pittard, with the explanation that "conditions are such that our 
Board is unwilling to pledge compliance with the 1966 Guidelines 
at this time" (Government's Exhibit 2 (Talladega)).

On June 9th, Martin Ray, the attorney for the Tuscaloosa
City and County School Systems, wrote to HEW (Government's
Exhibit 1 (Tuscaloosa)):

As a result of pressures, applied and 
threatened, I request that any informa­
tion with regard to the proposed staff 
cross-overs by either the Tuscaloosa 
County or City School System remain 
confidential.

Florence City Superintendent Hibbert characterized the
situation in the period after the meeting in a later letter to
HEW (Government's Exhibit 1 (Florence)):

...About that time the top blew off 
again in Alabama over the fact that we 
had signed 441-B. Some local Boards, 
including ours, were threatened with 
called mass meetings to oppose the 
signing of 441-B. Although our Board 
was unmoveable on the question of 
rescinding 441-B, it seemed best not 
to go beyond our present position for 
fear that a certain party might cause 
an explosion in our otherwise peaceful 
and harmonious community.

On June 10 and 11, 1966, defendant Wallace, Lieutenant 
Governor Allen and Speaker Brewer sent telegrams to local super­
intendents requesting the status of compliance with the guidelines 
(Government's Exhibits 68-76).

15/ Defendant Meadows testified that the Governor had offered 
Meadows' services as well and that he did not demur (Tr. 63). Defendant Meadows also testified that the local officials would be 
"invited" to attend and would be given an opportunity to defend 
their positions (Tr. 62).

11



On July 1, 1966, defendant Meadows expressed his views on 
"segregation" in a release sent to all local superintendents 
(Government's Exhibits 77-82), This release stated in part: 
"Segregation is the basic principle of culture."

On July 29, 1966, defendant Meadows sent telegrams to all 
local superintendents directing them to report by return mail or 
telegram "the number of Negro teachers assigned for 1966-67 to 
white schools" (Government's Exhibits 84-91).

As the defendants1 war against faculty desegregation intensi' 
fied, newer weapons appeared indicated.

On August 18, 1966, defendant Wallace appeared before a 
joint special session of the Legislature of Alabama and urged the 
enactment of H.B. 446, the anti-guidelines bill (Government’s 
Exhibit 92). On August 22, 1966, the defendant State Board of 
Education "wholeheartedly" endorsed the legislation (Government's 
Exhibit 93), and, the following day, defendant Meadows, in a 
statement to the committee of the Legislature, recommended certain 
strengthening amendments to the proposed legislation (Plaintiffs' 
Exhibit 8; Meadows' testimony, Tr. 134).

On September 2, 1966, the anti-guidelines bill was passed 
as Act No. 252. It provides that: "Any agreement or assurance of
compliance with the guidelines heretofore made or given by a local 
County or City Board of Education is null and void and shall have 
no binding effect."

In the face of the defendants' incremented attack on faculty- 
desegregation, the Tuscaloosa County Board of Education displayed 
uncommon pluck in assigning two Negro teachers to teach in white 
schools at the opening of school on September 6th. A response 
from the defendants was not long in coming. On September 8th, 
defendant Meadows telephoned Superintendent Elliott and "recom­
mended" that the two Negro teachers be returned to Negro schools 
(Elliott's deposition, p. 63). Defendant Meadows, invoking his 
power as constitutional officer of the state, stated that the

12



assignment of Negro teachers to white schools was "against the 
law" and "public policy" of the State of Alabama (Elliott's 
deposition, pp. 63, 64, 68).

The next day, Friday, September 9th, defendant Wallace 
informed a press conference that he would use the police power of 
the state to maintain"peace"and "requested" that the two Negro 
teachers be returned to Negro schools (Elliott's deposition, p. 68). 
The two Negro teachers immediately took heed. On Sunday evening, 
September 11th, they called Superintendent Elliott and asked him 
to meet with them at 7:30 the next morning (Elliott's deposition, 
p. 119). The next morning they not unexpectedly voiced apprehen­
sion about their assignments and expressed an unwillingness to 
teach that day (Elliott's deposition, p. 119). They remained in 
Elliott's office all morning and then went home, staying there 
for the next two days.

The next day, Tuesday, September 13th, defendant Meadows 
again called Superintendent Elliott and "recommended" the Negro 
teachers be reassigned.l^/ The same day, Hugh Maddox, legal 
advisor to the Governor, telephoned Elliott and reminded him that 
it was the public policy of the state that Negro teachers not 
teach white children; Maddox also reminded Elliott of the Gover­
nor's intention to use the police power of the state to preserve 
desirable conditions (Elliott's deposition, pp. 66-68).

Also on September 13th, defendant Meadows undertook to 
answer a letter to Superintendent Elliott from a private citizen 
on this matter, stating (Plaintiffs’ Exhibit 7): "A strong stand
by people like you will help to prevent assignment of Negro 
teachers to white schools.... The Governor has certainly done 
everything that anyone can do to prevent what is happening at 
the Tuscaloosa County school system and we are both trying to do 
everything that we can to get the teacher assignment changed."

16/ Defendant Meadows testified generally as to those conversa­
tions (Tr. 65, 139).

13



On September 22, 1966, defendant Meadows issued a release
reminding the local superintendents that any desegregation beyond 
the minimum required by federal law was intolerable as a matter of 
state policy (Government's Exhibit 94). In an initialled attach­
ment to the release defendant Meadows stated: "The Governor
requests reassignment of Negro teachers so as not to be teaching 
white children."

On October 17, 1966, defendant Meadows again telephoned
Superintendent Elliott and advised him that the Governor had
suggested that two additional teacher units be allotted to
Tuscaloosa County on condition that the students in the white
schools then being taught by the Negro teachers be allowed the
freedom to choose a white teacher (Government's Exhibit 95). On
the following day, defendant Meadows attended a meeting of the
Tuscaloosa County Board of Education and made the same proposal
in person (Government's Exhibit 96). On October 24th, defendant
Meadows wrote Superintendent Elliott reconfirming his previous
offer, and adding (Defendants' Exhibit 5):

This is to further announce to you that 
the Public School and College Authority 
will approve any priority request for use 
of the State Board Issue funds allocated 
to the Tuscaloosa county Board of Education 
for making classroom space available for the two teachers.

Defendants' attempts to resegregate faculties culminated in 
a faculty resegregation plan promulgated on October 25, 1966, 
providing (Government's Exhibit 97): "In complete accord and with
full approval of Governor George C. Wallace, any county or city 
board of education will be allocated a teacher unit and apportion­
ment of funds therefor where such board employs a teacher for 
pupils to transfer from a teacher of the opposite race to a 
teacher of their own race by freedom of choice of such pupils and 
their parents."

Having considered at some length the actions taken by these 
defendants since this Court's opinion and injunction of July 13,

14



1964, it is now appropriate to state some of the conclusions which 
emerge therefrom.

First, the defendants have manipulated the concept of 
"deliberate speed" enunciated by the Supreme Court in Brown v.
Board of Education II to inhibit desegregation. Brown II and 
succeeding decisions made it clear that nothing short of complete 
desegregation would be countenanced, although a transition period 
to accomplish complete desegregation was permitted during which 
public school systems were expected to do all in their power to 
accomplish complete desegregation. That transition period has 
expired: "The clock has ticked the last tick for tokenism and
delay in the name of 'deliberate speed'" (United States v.
Jefferson County Board of Education, 5th Cir., Dec. 29, 1966, 
slip op. p. 57). As the preceding survey has shown, the defendant? 
have stood Brown II on its head by consistently defining state 
policy as rendering unlawful any actions of local school officials 
in excess of minimum desegregation requirements of federal courts 
(see e.g.. Meadows' testimony, Tr. 61). This policy has defeated 
the function of the transition period envisaged in Brown II.
The anti-guidelines bill marks merely a codification of this 
policy, for it was enforced for at least a year prior to enactment 
of the bill. To stifle voluntary desegregation and discourage 
acceleration of existing desegregation plans beyond minimum 
requirements of federal courts is nothing short of the "outright 
interference" condemned by this Court's 1964 ruling.

Second, the defendants have seriously misconstrued their 
federal constitutional obligation to desegregate. Defendant 
Meadows, in open court, purported to be ignorant of the teaching 
of Brown v. Board of Education, viz, that "segregation" is. 
"discrimination." Defendant Meadows drew a distinction between 
the two terms (Tr. 148) and, although admitting he had done 
nothing to eliminate segregation in the public schools of Alabama 
(Tr. 77-78; 147-48), he denied having done nothing about "dis­
crimination." Apparently, the teaching of Brown must be made

- 15



clear to him and his successors if segregation and releases such 
as that of July 1, 1966 (Government's Exhibits 77-82) are to 
end.i^/ The defendants have also apparently failed to understand 
that the desegregation of faculties is essential to the disesta­
blishment of dual school systems based upon race. Bradley v.
School Board of Virginia, 382 U.S. 103 (1965); Rogers v. Paul,
382 U.S. 198, 200 (1965)— /

Third, defendants' protestations that their actions have 
been non—coercive have a hollow ring. It is true that in the 
defendants' letters, telegrams, releases, meetings, etc., preca­
tory words such as "request," "recommend," and "advise" have been 
employed. But it may hardly be thought that local school authori­
ties, being in a dependent position vis-a-vis these defendants 
did not get the message. One example will suffice. In his 
letters of May 24, 1966, to all local superintendents (Government's 
Exhibits 38-57), defendant Meadows "requested" them to submit 
reports to him as to their compliance with the HEW guidelines.
Some 17 of the local superintendents failed to satisfy this 
"request" and were immediately threatened with a cutoff of all 
state funds.(Government's Exhibits 66-67; Plaintiffs' Exhibit 11). 
Nor can the anti-guidelines bill be considered non-coercive.
Among other things, this bill nullifies all local compliance agree­
ments of HEW in their entirety. Its effect on local school 
officials has been predictable and intended: it is state law and

17/ Even under defendant Meadows' pre-Brown definition of racial 
discrimination, the defendants have been guilty of federal consti­
tutional violations, for there is a tragic disparity between 
educational opportunities offered to Negroes and educational 
opportunities offered to whites in Alabama.
18/ See Meadows' testimony, Tr. 99.
19/ See, e.g., Anniston City Superintendent Hall's letter of 
April 15, 1966, pointing out one aspect of local dependency 
(Government's Exhibit 1 (Anniston)).

16 -



they feel bound by it. See Walker County Superintendent 
Cunningham's testimony, Tr. 54? Lee County Superintendent Marshall's 
letter of September 29, 1966 to HEW (Government's Exhibit 2 (Lee))? 
Pickens County Superintendent Burns' letter of October 11, 1966, 
to HEW (Government's Exhibit 2 (Pickens))? Calhoun County Super­
intendent Boozer's response to Mr. Maddox of October 25, 1966 
(Plaintiffs' Exhibit 16).

Fourth, the defendants have failed to understand that, 
notwithstanding a school system is not under a federal court order 
to desegregate or has not complied with HEW requirements, it is 
not relieved from its paramount federal constitutional obligation 
to desegregate. Strictly speaking, the absence of a federal court 
order only allows a school system that does not effectively de­
segregate to escape punishment for contempt. And failure to 
comply with HEW desegregation requirements only triggers the 
withdrawal of federal financial support. But no amount of 
obfuscation can blur the fact that local school authorities have 
a federal constitutional obligation to totally and effectively 
desegregate their school systems and that these defendants are 
forbidden to interfere with the performance of that obligation.

Fifth, it is against this background of a paramount federal 
constitutional obligation to desegregate on the part of local 
school systems that the anti-guidelines act must be considered. 
Although its importance cannot be doubted, the question of the 
compatibility of the guidelines with the Civil Rights Act of 19G4 
is not central to this c a s e . ^

The question presented here is whether the anti-guidelines 
act has been employed by the defendants as an instrument of inter­
ference with the performance by local school systems of their 
paramount federal constitutional obligation to desegregate. Since 
the anti-guidelines act nullifies all desegregation compliance

20/ It is, of course, central to the companion case, No. 2457-N.

17



agreements in their entirety, it must be condemnable if it in 
any way interferes with the performance of the local systems' 
obligation to desegregate. From the survey earlier undertaken, 
there can be no doubt of that interference. Indeed, the defend­
ants have conceded as much: since the anti-guidelines act is
avowedly designed to defeat faculty desegregation, and since 
faculty desegregation is part of the local systems1 federal 
constitutional obligation to desegregate, the act must fall.

18



II.

The Defendants Control School Finances And 
Fiscal Policies And Have Exercised That 
Control To Promote And Maintain Segregation 
And Other Forms Of Racial Discrimination.

A. Nature And Extent Of The Control.
In its 1964 opinion, this Court found that "[t]he control 

by the State Board of Education over the local school systems 
is effected and rigidly maintained through control of the 
finances" (231 F. Supp. at 751). This condition continues to 
prevail.

It is undisputed that state funds are the predominant 
support of local schools. In 1964, the Court found that for 
the latest reported year, over 90% of the financial support of 
the public schools in Macon County came from the State (231 F. 
Supp. at 751). The Court continued: "The annual report of the
State Board of Education further reflects that the other counties 
in Alabama heavily rely upon State financing for the operation 
of their school systems" (231 F. Supp. at 751). This is still 
true today. The latest figures released by the State Department 
of Education reveal that over 70% of the financial support of21/
public education in the State of Alabama comes from the State.

Most of the state financial support is administered under 
the Minimum Program Fund. In 1964, the Court found: "The allo­
cation of State 'minimum program' funds, which comprise a manor 
part of the State contribution, is according to 'teacher units' 
in each local school system. The State Board of Education has 
considerable discretion in the manner of allocating these teacher
units" (231 F. Supp. at 751).

The defendants today continue to exercise considerable 
discretion in the allocation of Minimum Program funds. For 
example, the State Board of Education has granted the following

21/ The 1965 Annual Report, p. 18.

19



broad powers to the State Superintendent:
In order to provide more nearly equal 

educational facilities for all children, 
the State Superintendent of Education may 
approve the allocation of additional teacher 
units to junior and senior high schools where 
requested, to carry out the purpose of the 
pupil placement law, if in his judgment after 
investigation the circumstances justify such 
approval (Government's Exhibit 127, I.A. 1, 
p. 2) .

Other examples of the State Board's discretion over Mini­
mum Program funds are its power to change the teacher unit 
ratio (Government's Exhibits 127, 128) and to grant more units 
to small survey-approved schools than to small non-approved 
schools (Director Layton's testimony, Tr. 227-28).

Moreover, defendant Meadows possesses the wide powers
of the purse recited by him in Government's Exhibit 157, quoted

22/
earlier at p. 4, supra.

What the State gives, it can take away. In defendant 
Meadows' telegrams to the 17 local superintendents who had 
not filed the requisite reports on their rescission of Form 
441-B, defendant Meadows threatened the cut-off of all state 
funds to their school systems (Government's Exhibits 66-67; 
Plaintiffs' Exhibit 11). At the trial of this case, defendant
Meadows testified that such cut-offs were within his state

23/
constitutional power (Tr. 149).

22/ Defendant Meadows' control over federal funds to local 
schools was underlined in his telegram of April 8, 1965 to 
Commissioner Keppel, which read in part (Meadows' testimony, 
Tr. 167-68):

The Alabama State Superintendent of Education 
as Chief Constitutional Education Officer has 
signed every agreement for federal funds for education in this state without any countersigning 
or approval of any board, body, or agent since 
1917. Your suggestion not to accept my signing 
Title VI Civil Rights Act state agreement is a 
complete violation of 48 years of practice in 
Alabama.

23/ See Code of Ala., Tit. 52, §174.

20



Nor is failure to make satisfactory reports the only 
ground for the cut-off of all state funds. Code of Ala., Tit.
52, §544 compels the cut-off of all state funds to local school 
systems which fail to comply with the state statutory require­
ments of Bible reading (Code of Ala., Tit. 52, §§542-43) and 
temperance instruction (Code of Ala., Tit. 52, §536). Moreover, 
Code of Ala., Tit. 52, §551 compels cut-off of all state funds 
to public schools which fail to comply with the state statu­
tory requirements for the proper display of the flag (Code of

24/
Ala., Tit. 52, §§549-50).

B. Racially Discriminatory Exercise Of The Control.
The defendants* discretion in the allocation of Minimum 

Program funds has been directed toward the promotion of segre­
gation, notably faculty segregation. The most recent abuse 
of this discretion occurred in October, 1966, when defendant 
Meadows sought to induce Tuscaloosa County Superintendent 
Elliott and other local superintendents to resegregate their 
faculties by offering them additional teacher units (Defen­
dants* Exhibit 5; Government's Exhibit 97; Meadows' testimony,
Tr. 68-71) .

Just as Minimum Program funds have been employed to 
reinforce segregation and induce resegregation, vocational 
education funds have been employed to reward local non-compliance 
with federal desegregation requirements. Bibb County is an 
outstanding example. In 1966-67, after federal aid to Bibb 
County was terminated for non-compliance with Title VI of the 
Civil Rights Act of 1964, defendant Meadows used state money 
to more than offset the lost funds (Defendants' Exhibit 70, p. 
109; Government's Exhibit 143). Defendant Meadows was then able

24/ Although the sanction of withdrawal of state funds is not 
made explicit. Code of Ala., Tit. 52, §545 commands the schools 
to provide instruction in the Constitution of the united States.

21



to cite this case to the Alabama Legislature as an example
that "the State has already replaced federal funds in these
school systems [not eligible for federal aid] out of funds
over and above that necessary for matching federal funds"

25/(Plaintiffs' Exhibit 8, p. 3).
Not only have state funds been employed by the defendants 

as inducements to, and rewards for, maintaining segregation, 
but the threat of their withdrawal has also been employed. It 
requires little subtlety to appreciate that the defendants' 
continued "requests" for information on desegregation were 
nothing more than reminders of state power to local authorities 
guilty of attempts at desegregation in excess of the minimum 
federal requirements. Thus, the threatened cut-offs of all 
state funds to the 17 local superintendents for failure to 
immediately respond to the defendants' "requests" for informa­
tion must be seen as part of the total fabric of the defendants' 
campaign against desegregation.

Finally, even under defendant Meadows' pre-Brown defini­
tion of "discrimination" (see Note 6, supra), the defendants 
have committed federal constitutional violations in their 
administration of state funds. The defendants have knowingly 
allowed Negro students to be short-changed by local school 
authorities in the enjoyment of Minimum Program funds*

During the 1963-64 school year, such maladministration 
was impossible because teacher units were computed separately 
for each race and the local systems were required to use the 
funds allocated to each race exclusively for that race (Stone 
deposition, U.S. Ex. 16, p. 2). The Wilcox County superinten­
dent requested Dr. Meadows to change this rule, saying: "I
think you can easily see the advantage in a system such as ours

25/ Defendant Wallace told Bibb County Superintendent Pratt 
that he was very anxious to see further vocational units allotted 
to his system by the State (Pratt deposition, p. 47). The 
schools of Bibb County are still completely segregated (Pratt deposition, p. 18).

22



where we have allotted only 26 teacher units 
162 of another if we can account for this on 
(Government's Exhibit 138). Dr. Meadows, on 
replied:

of one race and 
an overall basis" 
October 26, 1964,

The use of Negro children teacher units 
to employ white teachers in white schools (1) 
will result in the court assigning the Negro 
children to said white schools, [and] (2) will 
show Negro teachers and our Negro supporters 
that the white people in official positions 
do not intend to treat Negro pupils either 
justly or fairly and thereby jeopardise their 
support . . . .  (Government's Exhibit 139).

Notwithstanding this pronouncement, in 1965 the rule was 
in fact abandoned. Local school boards are now permitted to 
use teacher units earned in Negro schools to hire teachers for 
white schools. Director Layton's testimony on this matter merits 
examination (Tr. 217-19):

Q. . . .  [T]here is one thing I want to clarify; 
you have determined the teacher units earned 
on the basis of the teachers that each school 
within the system is entitled to? right?

A. Yes, sir.
Q. By your formula?
A. Yes, sir.
O. But those units are paid out regardless of how the 

teacher units are split up back at the . . .  local 
school system level once the monies are received?

A. This is a matter for —  this is for the local Board 
to determine —  to the entire system as a whole.

Q. All right, one last question on this . . . Sup­
pose you have two high schools within the system, 
each of them having three hundred students, and 
each of them being exactly the same type of build­
ing in terms of brick and approved, et cetera, and 
accreditation, they are both accredited by the 
Southern Association; each of those schools would 
have the same number of teacher units, wouldn't 
they?

A. If they had three hundred A.D.A., average daily 
attendance —

Q. Three hundred A.D.A. in each school?
A. —  they would have the same number of earned 

teacher units, as far as our calculations are 
concerned.

Q. All right? and let's just assume for the pur­poses of this examination that each school, 
according to your formula, got ten teacher 
units; all right?

23



A. Yes, sir.
Q. Now, if the school system saw fit to give one 

school fifteen teachers and the other school 
five teachers —  in other words, if they took 
their ten for each school, added them up to 
twenty, but then re-allocated them at the dis­
trict level, giving one school fifteen and 
another five, you would continue to pay out 
for twenty units throughout the year; is that 
not correct?

A. As long as the system employed the total number 
earned and paid them —

Q. Yes.
A. —  on the allocation schedule, we would; yes, 

sir; we do not exercise control over the dis­
tribution of the teachers into the various 
schools.

Q. But your records do reflect how the teachers 
are deployed, do they not?

A. Our —  our —  yes, sir; we calculate from this, 
because this is the beginning; we have to do 
this; this is necessary; there is no other way 
to do it.

Q. But during the year, you would know at any given 
point in time, from records sent in to you by the 
local system, the numbers of teachers and, indeed, 
the exact identity of each teacher within each 
school, wouldn't you?

A. Yes, sir; employed within that school.

The defendants cannot be unaware that they are presently 
subsidizing racial discrimination. For example, the defen­
dants can hardly fail to know that the average pupil-teacher 
ratio in Negro schools is higher than in white schools; the 
defendants' own records reveal this (Government's Exhibit 137; 
Appendix c to Government's Brief, Tables I and II).

The discrimination against Negro students in Alabama is 
traceable in other ways as well. The per-pupil valuation of 
school buildings and contents is $607.12 per white pupil as 
compared to $295.40 per Negro pupil (Government's Exhibit 172). 
And over 25% of the Negro high schools in Alabama are un­
accredited, as compared with only 3.4% of the white high schools

26/
(see 1966-67 Educational Directory).

26/ For other examples of disparity, see the Government's 
Brief, pp. 114-16.

24



Ill

The Defendants Control instructional Programs 
And Policies And Have Exercised That Control 
To Promote And Maintain Segregation And Other 
Forms Of Racial Discrimination.

Although this area of defendants' control is highly
important, it may nevertheless be treated briefly. Defendants
cannot deny that they have bent every effort short of obvious
contempt of federal court orders to enforce their statewide
policy of faculty segregation. See, pp. 9-14, supra. Moreover
as the Government's brief adequately illustrates (pp. 82-95?
111-13), the defendants have exercised their control over

27/
numerous instructional programs to promote segregation and 
other forms of racial discrimination. This being so, the only 
matter left for discussion is the appropriate relief (see Part 
2, infra).

27/ Vocational and exceptional children teaching programs ? 
teacher institutes; in-service training programs; teacher certi 
fication? and trade schools and junior colleges.

25



IV

The Defendants Control School Construction And 
Consolidation Programs And Policies And Have 
Exercised That Control To Promote And Maintain 
Segregation And Other Forms Of Racial Discrimi­
nation.

That the State Department of Education has an important
role in establishing and locating public schools is documented
in the preface to its 1965 REPORT OF A PARTIAL SURVEY OF THE

28/
CLARKE COUNTY SCHOOLS:

For more than 35 years the State Depart­
ment of Education has maintained a survey 
staff which has provided assistance to county 
and city superintendents and their boards of 
education in the solution of various types 
of educational problems. One of the most 
important aspects of the service has been 
the location of permanent centers for ele­
mentary, junior and senior high schools.
(Emphasis supplied)

This role has not been a salutary one. It is a sad
fact that every public school in the State of Alabama has been 
planned and constructed as a segregated school -*■ for white 
children or for Negro children —  pursuant to the supervision, 
direction and control of the State Department of Education.

In light of the Government's detailed analysis of the role 
of the State of Alabama in maintaining and perpetuating segre­
gated school systems through its control over abandonment, con­
solidation, site selection and construction of schools within the
several school district of Alabama, no purpose would be served

29/
in discussing the matter at length here. The defendants'
role in perpetuating the dual system, amply supported by the 
evidence summarized in the Government's brief, is buttressed by 
the testimony of Dr. George Layton, Director of the Division of 
Administration and Finance, which was not transcribed at the

23/ Government's Exhibit 144B# p. 2. 
29/ See Government's brief, pp. 52-75.

26



time the Government's brief was written (Transcript of November 
30, 1966, pp. 176-234), Dr. Layton testified (Tr. 210):

Q. Are you aware of any school that has been 
built in the State of Alabama, public ele­
mentary, junior, or senior high school, which your Department has not issued a final approval 
for the last five years?

A. There may —  there may have been; I would not 
say that it has not been.

Q. Do you know of any?
A. I don't know of —  right off hand, I don't; 

no, sir.
Q. Furthermore, do you know of any school within 

the last five years that has been built on a 
site which had not previously been approved by 
your Department?

A. I am not aware of this; no, sir.
Q. All right. So it is fair to say, at least, 

that predominantly all sites for new school 
construction are approved by your Department?

A. Yes, sir; in general they are; we —  we hope 
they are.

School sites or locations are not selected until com­
pletely separate analyses, by race, are made of the systems’ 
facilities by the State Department of Education. These surveys 
include: an inventory of the number, condition and capacity of
each existing school facility; the taking of a census of school 
age children from which a "dot map" is prepared which reflects, 
by race, the residence of each school age child; and a forecast 
of the number of school age children, by race, anticipated to 
be in attendance in the system within the foreseeable future.
Two such analyses are always made —  one for white children and

30/one for Negro children. Standards establishing the minimum
attendance and minimum acreage for each elementary, junior high 
and senior high school have been promulgated by the State Board

30/ Dr. Layton testified (Tr. 211):
Q. . . .  [H]as there ever been a survey,

to your knowledge, up to the current day, 
which has not included clusters or dots 
showing densities of children by race?

A. Not to my knowledge; I don't think so.

27



31/ 32/of Education. Using these rules as benchmarks, the State
Department of Education survey personnel analyze the size, age
and capacity of existing school facilities, by race, in light
of the number and location of students attending the system
(as indicated on the "dot map").

To this day, the State Department of Education considers
each school system as two school systems (see Government's
Exhibit 147). School consolidations are recommended only between
schools for children of the same race (Dr. Layton's testimony,
Tr. 233-34). The surveys of Negro students and the facilities
provided for them are in practice unrelated to the surveys of
white students and the facilities provided for them. Thus, the
Court of Appeals for the Fifth Circuit correctly concluded that
"the location of Negro schools with Negro faculties in Negro
neighborhoods and white schools in white neighborhoods cannot
be described as an unfortunate fortuity: It came into existence
as state action and continues to exist as racial gerrymandering,

33/
made possible by the dual system." This conclusion accurately
summarizes conditions in each of the one hundred and eighteen 
public school districts of Alabama. These conditions were 
intentionally designed, financed and implemented —  and continue 
to exist —  as a result of the concerted activities of the 
Alabama State Department of Education.

31/ See, e.g.. Government’s Exhibit 144B, Report of a Partial 
Survey of the Clarke County School System, p. 11; Government's 
Exhibit 152.
32/ Government's Exhibit 144B, Note 31, supra, p. 11: 
"Obviously, exceptions should be made only in extreme cases and 
after careful study."
33/ United States v. Jefferson County Board of Education, 5th 
Cir., December 29, 1966, slip op. p. 32.

28



V.

The Defendants Control School Transportation 
Programs And Policies And Have Exercised That 
Control To Promote And Maintain Segregation And 
Other Forms Of Racial Discrimination.

In its 1964 opinion, the Court found that the defendants 
exercise considerable control over local school bus transporta­
tion (231 F. Supp. at 751). As the Government's brief demon-
strates (pp. 96-98), that control continues to exist.

theIn 1964, the Court cited/racially discriminatory exercise
of that control as exemplary of the fact that "the State of
Alabama has operated and presently operates a dual school system
based upon race" (231 F. Supp. at 750). Defendants cannot deny
that the Court's holding is equally true today (see Government's

35/
brief, pp. 99-103).

This leaves only the question of effective relief to dis­
establish this abuse of state power, discussed in Part 2, infra.

34/ For example, approximately 97 percent of the total cost of 
local school transportation programs is paid for by the State 
(See Government's Exhibit 127; Defendants' Exhibit 70, p. 21).
35/ Not only are busses segregated, but the percentage of Negro 
busses over 10 years old (when they should be discarded) is nearly 
3 times that of white busses (Government's Appendix C, Table V).

29



PART 2

Nature Of The Relief

In 1964, this Court admonished these defendants:
"Needless to say, it is only a question of time until [their] 
illegal and unconstitutional support of segregated school 
systems must cease. These State officials and the local school 
officials are now put on notice that within a reasonable time 
this Court will expect and require such support to cease" (231 
F. Supp. at 756). The Court's expectations have not been ful­
filled. Mere "notice" has not been enough. "Illegal and un­
constitutional support" continues to be the sole guideline 
followed by these defendants in the supervision of the 118 
school systems in Alabama. Thus, nothing short of an order of 
this Court requiring these defendants to forthwith apply the 
full range of their resources to convert the segregated and 
unequal schools which they have helped create into integrated 
schools providing equal educational opportunities for all
students will make the deferred promise of Brown a present36/
reality. It is toward this end —  and only this end —  that 
plaintiffs propose relief.

Defendants have successfully engaged in a wide range of 
activities to create and maintain segregated public education 
throughout Alabama (see Part 1). These activities have per­
meated and contaminated virtually every aspect of public edu­
cation in Alabama, including site selection, construction, 
consolidation, assignment of classroom teachers, allocation of 
minimum program funds, textbooks, transportation, vocational 
education, education of exceptional students, athletic programs 
and the assignment of students.

26/ Plaintiffs agree with the Government that "it is inappro- 
Priate ho think in terms of retribution for [the defendants'] 
constitutional wrongs" (Government's brief, p. 117). plaintiffs 
also agree with the Government that effective relief "must Aead 
to the complete desegregation of each and every individual school 
system in the State of Alabama" (Government's brief, p. 1).

30



The remedy in this case must be coextensive with the 
wrong. It must reach the limits of the defendants' activities 
and require them to totally disestablish all forms of racial 
discrimination in every public school system within Alabama 
and to establish, in their stead, equal educational opportunities 
for all students. That the defendants have the power to accom­
plish this result cannot seriously be questioned. In 1687, Sir
Isaac Newton discovered that "to every action there is an equal

37/
and contrary reaction." In this proceeding, plaintiffs seek
no more than the application of Newton's Third Law to these 
defendants —  that they be required to apply equal ingenuity, 
effort and resources toward the destruction of the dual system 
that they have so long labored to maintain.

37/ PHILOSOPHIAE NATURALIS PRINCIPIA MATHEMATICA (1st ed., 1687).

31



I EXISTENCE AND LOCATION OF SCHOOL FACILITIES

The State Department of Education has traditionally 
exerted decisive control over the existence and location of 
school facilities (see Part 1, IV, supra). The exercise of this 
control regulates which existing facilities will remain opera­
tional and which will be discontinued and which new or remodeled 
facilities will be constructed —  and where. The record indi­
cates that this control has not been used arbitrarily, but rather
according to well-defined objective educational criteria, re-

38./quiring:
1. "28-30 pupils per teacher in A.D.A. with a 

minimum of six teachers, or one teacher 
per grade, for elementary schools";

2. "Six teachers for junior high schools";
3. "Six teachers for senior high schools";
4. " . . .  175 pupils or more in ADA for a 

six-grade elementary school, an additional 
175 pupils in a nine-grade school, and 
approximately 350 pupils for a six-grade 
accredited high school . . .";

5. "A plot of ten acres with an additional 
acre for each 100 pupils ultimately to be 
accommodated . . .  as the minimum for all 
schools where any secondary grades are to be housed —  primarily this means junior 
high schools";

6. "A minimum of five acres plus one additional 
acre for each 100 pupils ultimately to be 
accommodated . . .  for elementary schools."

The following definitional standards have also been
39/adopted:
1. Permanent Sites —  "All sites conforming to 

the acre minimum standards, or which could 
be made to conform at a nominal expense";

2. Temporary Sites —  "All sites in such condition 
that they could not be made to classify as per­
manent without the expenditure of considerable 
funds, and those located in areas where the 
school population was declining";

3. Sites to be Abandoned —  "If it seemed impossible 
to make a site conform to the above requirements";

38/ Clarke County survey, Note 31, supra, p. 11. 
39/ Ibid.

32



4. Permanent Buildings —  "All buildings considered 
satisfactory for continued use for a reasonable length of time";

5. Temporary Buildings —  "Those regarded as 
unsuitable for continued use but which could be used until replaced";

6. Buildings to be Abandoned —  "Buildings con­
sidered not suitable for a satisfactory minimum 
program or which were hazardous . . .  and those 
schools should be abandoned or replaced at the earliest date."

Although the above criteria are not rigidly followed,
the State Department of Education believes that "obviously,
exceptions should be made only in extreme cases and after care-

411/ful study."
But this does not tell the whole story. An unarticulated 

major premise underlies the foregoing criteria —  EACH AND EVERY 
ONE OF THEM IS TO BE WAIVED IF NECESSARY TO PRESERVE SEPARATE 
SCHOOLS FOR THE RACES.

In accordance with this inviolate premise, the State 
Department of Education has directed that separate school 
facilities for Negro and white students be constructed and 
maintained in each of the 118 school districts —  including 34 
districts which have insufficient white and/or Negro students 
to support a separate school. During the school year 1965-66, 
411 white schools and 400 Negro schools were operated with less 
than the minimum attendance required by the State Department of 
Education (Government's Brief, Appendix B, Table I). Similar1?7- 
although the seventy surveys conducted between 1959 and 1966 
by the State Department of Education recommended abandonment of 
166 white school buildings, 310 Negro school buildings, 122 whit 
school sites and 301 Negro school sites and recommended detailed 
procedures for the liquidation of these facilities, notably 
consolidation procedures, never was consolidation of white and 
Negro schools a recommended remedy (Government's Brief, Appendix 
B, Tables III and IV).

40/ Ibid



The maintenance of separate facilities must be termi­
nated forthwith and the conditions spawned thereby must be 
reversed. Plaintiffs propose a decree which offers a workable 
plan for the abandonment, consolidation and expansion of — and 
the selection of sites for-new school facilities —  a decree 
which relies heavily upon the professional expertise and past 
factual determinations of the defendants.

Indispensable to relief is that the State Superintendent 
of Education must identify all public school facilities, i,e,, 
buildings and sites presently being used for public school pur­
poses, throughout Alabama which do not meet the minimum require­
ments established by the State Board of Education. This should 
not be difficult. The Department of Education's surveys have 
already identified several hundred of these facilities. And
the objective criteria set out above can easily be applied to

41/non-survey schools.
Once this is done the State Superintendent must then 

make a complete report to the Court and to the parties. The 
contents of this report are specified in IAof plaintiffs' pro­
posed decree, infra.

On the basis of this report, every facility designated 
as "temporary" or "to be abandoned" must be discontinued prior 
to the commencement of the 1967-68 school year. Where insuf­
ficient capacity exists in the remaining schools to absorb the 
students attending these facilities, they shall be discontinues 
according to the priority rules established in IB of the decree.

41/ Attendance statistics of each school are received monthly 
by the State Department of Education.

34 -



These priority rules emerge from two considerations:
1) facilities designated "to be abandoned" are grossly inferior
to "temporary" facilities; and 2) since abolition of the dual
system requires abolition of the traditional Negro school, and
since it is clear that white children will not choose to attend
a Negro school as long as freedom of choice is permitted as a

42/means for desegregating systems, priority is necessary to 
abolish the dual system.

Hundreds of deficient facilities —  schools operating
with less than the number of students and/or teachers required
by the State Department of Education in buildings and/or upon
sites not designated as "temporary" or "to be abandoned" —  will
not be closed immediately pursuant to IC of plaintiffs' proposed
decree. Yet students attending these facilities are deprived
of an equal education in the same sense, if to a lesser degree,
as were the 21 Negro students in attendance during the 1965-66
school year at the Mt. Sinai School in Clarke county, a school
described by the State Department of Education as "a one room 

43/
frame shack."

These deficiencies must be corrected. As in the case 
of closings, correction of these deficiencies will necessarily 
require consolidations and reassignments. Paragraph IC of 
plaintiffs' proposed decree provides for timely correction of 
these deficient facilities in a manner consistent with the over­
all goal of eliminating the dual structure and maximizing 
integration of faculty and staff within the subject district.

The policy of the State Department of Education with 
respect to site selection for new facilities and improvement 
and expansion of existing facilities has contributed to the

42/ "In this circuit white students rarely choose to attend schools identified as Negro schools." United States v. Jefferson 
County Board of Education, et al.. supra, p. 46.
43/ P. 20, Clarke County Survey, Note 31, supra.

- 35 -



failure of freedom of choice plans to desegregate schools. 
Defendants have continued to build and expand schools for white 
or for Negro students on sites strategically placed through 
the sophisticated use of racial population density maps. The 
selection of a site based upon the geographical location of 
the students or the improvement of a facility so located is 
inherently inconsistent with a free choice plan. The location 
of the school cannot help but influence a child's choice and 
may well determine his choice fully as much as a cordon of 
highway patrolmen surrounding a school building.

Defendants cannot be permitted to continue selecting 
sites for new schools and improving and expanding existing 
facilities on the same bases as they have in the past. All 
recommendations contained in existing surveys are based upon 
unconstitutional considerations and therefore cannot be 
utilized as bases for consolidation, site selection or con­
struction. Accordingly, paragraph ID of plaintiffs' proposed 
decree requires the State Department of Education to forthwith 
communicate disapproval of all expansion and improvement sites, 
previously approved, upon which construction has not yet com­
menced.

The selection of the site for a new school building 
or the determination of which schools to expand or improve 
can and should properly serve as an opportunity for utilizing 
the new facility as a basis for abolishing a segregated school 
system. To insure that defendants do not miss this opportunity, 
paragraph ID of the proposed decree requires the defendants to 
continue to approve all site selections and new construction 
by local systems, but to condition such approval upon the 
implementation of the recommendations contained in a compre­
hensive survey fulfilling the requirements set out in the 
section of the decree captioned Future Surveys, IE, infra.

44/

44/ See Government's brief. Appendix C, Table II.

- 36



Finally, the survey procedures utilized to date by 
the State Department of Education must be amended to correct 
two constitutional deficiencies: the present practice of
locating, constructing and improving schools on the basis 
of racial population maps; and the failure to incorporate 
procedures for the assignment of students to existing schools 
and the location and construction of new school facilities so 
as to correct the effects of past unconstitutional site 
selections and construction activities. To correct this 
situation, all data presently included in school surveys must 
be incorporated in future surveys. "School officials have 
to know the racial composition of their school population 
and the racial distribution within the school district. The 
courts . . .  cannot measure an official's good faith or pro­
gress without taking race into account," United States v. 
■Jefferson County, p. 32b. In conducting surveys defendants 
shall be specifically guided by the following recent admoni­
tion of the Court of Appeals for the Fifth Circuit (ibid., 
p. 57):

If school officials . . .  should find that 
their district still has segregated faculties 
and schools or only token integration, their 
affirmative duty to take corrective action 
requires them to try an alternative to a 
freedom of choice plan, such as a geographic 
attendance plan, a combination of the two, 
the Princeton plan, or some other acceptable 
substitute, perhaps aided by an education park.

- 37



II
DESEGREGATION PLANS FOR LOCAL SYSTEMS

At issue in this proceeding is "illegal and uncon­
stitutional support of segregated school systems" (231 F. 
Supp. at 756) by State of Alabama officials. Plaintiffs' 
proposed decree requires defendants to insure that state 
resources shall not be used in a racially discriminatory
manner by any local school district. Paragraph IIA of45/
plaintiffs' proposed decree requires every local school

45/ This portion of plaintiffs' proposed decree (requiring 
each of the 118 school districts to submit a plan of desegre­
gation to the State Superintendent of Education) is at 
variance with the relief proposed by the United States. The 
United States divided the 118 school districts into three 
categories— districts under court order, districts having 
submitted an HEW plan and districts under neither an HEW 
plan or a court order ("uncommitted districts"). The Govern­
ment's decree would require only those in the latter category 
— 42 school districts— to submit a plan for desegregation to 
the State Superintendent of Schools.

Plaintiffs agree with the Government that
the decree should deal with the problem of 
committing each and every local system in 
Alabama to a desegregation program meeting 
minimum legal standards. The need for relief 
directed to this end is clear (Government's 
Brief, p. 118).

But plaintiffs fail to understand how the limitation 
proposed by the Government can accomplish this result. The 
desegregation statistics set out in Table I at pp. 121-23 
of the Government's Brief reveal many "uncommitted" school 
districts which have accomplished greater desegregation than 
districts which they would excuse from submitting a plan. 
This observation is central to plaintiffs' disagreement with 
the United States' conclusion that:

The most important statistics, in terms of 
defining the scope of the task before this 
Court, are those relating to the number of 
school districts in Alabama that; are committed 
neither by court order nor by written assur­
ances to HEW to disestablish their dual systems 
(Government's Brief, p. 120).

For refutation one need look no further than the 
Government's statistics referred to above. The districts 
in the categories established therein display no common 
pattern insofar as the degree to which they have desegre­
gated.

Restricting its focus to these 42 districts, the 
Government further suggests as an alternative to submitting 
a decree to the State Superintendent of Education, that they "become committed to a satisfactory program of desegregation

- 38



district within the State to submit an acceptable plan for 
the desegregation of the district. Paragraph IIB defines an 
acceptable desegregation plan.

The comprehensive plan required by Paragraph IE of 
plaintiffs' proposed decree to be included in every State 
Department of Education survey will ultimately become the 
required plan for every district-—a plan devised by Alabama 
Department of Education experts for the comprehensive non- 
racial reorganization of the several districts. During the 
period pending the survey of every local school district, 
transitional plans will be acceptable. These plans, if free­
dom of choice, must provide for the termination of obviously 
discriminatory activities, such as the transportation of 
students in or out of the district on the basis of race and 
assignment of students to new or expanded schools commencing 
operation in the school year 1967-68. Further, local dis­
tricts must incorporate plans promulgated in conjunction with 
closing or correcting deficient schools required by Para­
graphs IB and IC of the proposed decree in all acceptable 
desegregation plans.

Throughout Section II of plaintiffs' proposed decree 
are procedures for the Superintendent of Education with 
respect to the progress of school districts in adopting and 
implementing these plans.

by submitting a plan and assurance to the Commissioner of 
Education. . . . "  But these districts cannot fulfill their 
obligation to this Court by submitting a plan to HEW. "The 
clock has ticketed the last tick" for paper compliance 
(United States v. Jefferson County Board of Education, passim, 
p. 57). "The only school desegregation plan that meets con­
stitutional standards is one that works (ibid., p. la) 
(emphasis in original).

39



Ill
INSTRUCTIONAL PROGRAMS

A. Teachers
Plaintiffs substantially adopt paragraphs IIA, B, C,

D, E and F of the United States' proposed relief regarding 
teachers and include them, with minor modifications, in 
plaintiffs' proposed decree as paragraphs IIIA-1, 2, 3, 4,
5 and 6,

Plaintiffs' proposed decree further requires the 
State Superintendent of Education to inform all local school 
districts that teacher contracts for the year 1967-68 shall 
not be entered into for any specific school. School dis­
tricts may continue to contract for the services of teachers 
based upon their proposed needs, but specific assignments 
must be held in abeyance until the detailed teacher desegre­
gation program required in paragraph IIIA.l. has been pro­
mulgated and approved by the Court, Once approved by the 
Court, a copy of this program shall be provided to each school 
district by the State Superintendent of Education. Indi­
vidual teachers may then be assigned to the various schools 
within the system on a desegregated basis pursuant to the 
program.

Plaintiffs1 proposed decree also sets forth specific 
requirements for the assignment of teachers to new schools 
commencing operation during the school year 1967-68 and pre­
vents the execution of contracts prior to the implementation 
of the plan for faculty desegregation.

B. Trade schools and junior colleges are under the 
direct supervision of the State Board of Education. By 
defendants' own admission, new junior colleges and trade 
schools for whites and Negroes have been created since the 
July 13, 1964 decree of this Court. Plaintiffs' proposed 
decree requires defendants to submit a plan providing for 
the desegregation of junior colleges and trade schools.

40



IV
SCHOOL TRANSPORTATION

Plaintiffs' proposed decree provides that the State 
Superintendent of Education shall require each local school 
district to submit a plan providing for the nonracial 
assignment of students to buses, for the establishment of 
bus routes based upon objective criteria, for the equaliza­
tion of transportation facilities, and for the communication 
by means and in terms to be understood by all students within 
the district of their right to equal, nondiscriminatory 
transportation to the school of their choice or to the 
school to which they were assigned.

V
EQUALIZATION OF FACILITIES

The facilities provided for Negro students in Negro 
schools throughout Alabama are vastly inferior to those 
provided students attending traditional white schools. 
Plaintiffs substantially adopt the Government's proposed 
relief for equalization of facilities except for those provi­
sions relating to physical facilities. Plaintiffs believe 
that the improvement of small inadequate Negro schools other 
than pursuant to a systematic and comprehensive plan as pro­
posed in paragraph I of the plaintiffs' proposed decree will 
serve to perpetuate discrimination.

Plaintiffs’ proposed decree requires an extensive 
inventory of facilities within each district. Absent such 
an inventory, no enforceable equalization plan can be 
envisaged.

41



PROPOSED DECREE

The Alabama State Board of Education, George C.
Wallace, Governor of the State of Alabama and President 
of the Alabama State Board of Education, James D.
Nettles, Ed Dannelly, Mrs. Carl Strang, Fred L.
Merrill, W. M. Beck, Victor P. Poole, W. D. Davis,
Cecil Word, and Rev. Harold C. Martin, members of 
the Alabama State Board of Education, and Austin R. 
Meadows, Executive Officer and Secretary of the 
Alabama State Board of Education and Alabama State 
Superintendent of Education, together with their 
agents, servants, employees, successors in office 
and all those in active concert or participation with 
them, shall be and hereby are ordered, as set out in 
this decree, to disestablish all public school segre­
gation and to eliminate the effects of past racial 
discrimination in all the public schools of Alabama:

I.

Existence And Location Of School Facilities

A. Reports.
In order to identify the public school buildings and 

sites (hereinafter "facilities") in the State which must be 
discontinued or corrected, the State Superintendent shall file 
with the Court and serve upon all parties within 60 days from 
the entry of this decree a report specifying the following:

1. The name, location, designation (temporary or to be 
abandoned) and date of designation of each non-permanent public 
school facility within the State of Alabama, by district, which 
has been so designated by any survey ever conducted by or for 
the State Department of Education.

42



2. The name, location, designation (permanent, temporary 
or to be abandoned) and date of designation of each public school 
facility within the State of Alabama, by district, which has 
been so designated by any survey ever conducted by or for the 
State Department of Education and which during the 1966—67 school 
year was included in one or more of the following categories:

a. Elementary, junior or senior high school with
less than 175 students in average daily attendance;

b. Combined junior-senior high school with less than 
350 students and/or less than 12 teachers and/or 
located on a site comprising less acreage than 
prescribed by the Department of Education;

c. Combined elementary-junior-senior high school 
(grades 1-12) with less than 525 students and/or 
less than 18 teachers with one teacher for each 
elementary grade (1-6) and/or located on a
site comprising less acreage than prescribed by 
the Department of Education;

d. Elementary school located on a site of less than 
five acres plus one additional acre for every 100 
students, and/or less than one teacher for each 
grade;

e. Junior high school located on a site of less than 
10 acres plus one acre for every one hundred 
students and/or with less than six teachers;

f. Senior high school located on a site of less 
than 15 acres plus one acre for every one hundred 
students, and/or less than six teachers.

3. The number of students enrolled in and average 
daily attendance in each class by race and grade for the 1966-67 
school year for each school identified in paragraphs 1 and 2 
above.

4. If any school identified in paragraphs 1 and 2 above 
is presently scheduled to be abandoned for the 1967-68 school 
year, the name and location of the school(s) where students are 
to be assigned, a detailed statement on the basis upon which

43



these assignments are to be made and the proposed enrollment, 
by grade, race and class for each school within the district 
for the school year 1967-68.

B. Closing of Facilities.

1. Each facility in the State designated as "temporary"
or "to be abandoned" shall be closed prior to the commencement46/
of the 1967-68 school year, unless insufficient capacity 
exists in the remaining schools of the district to absorb all 
students attending these facilities. If insufficient capacity 
exists for fewer than all students attending these facilities, 
schools shall be closed in the following order of priority:

a. Facilities designated "to be abandoned" which 
have traditionally been attended by Negro 
students or which presently have a majority 
of Negro students;

b. Facilities designated “to be abandoned" which 
have traditionally been attended by white students;

c. Facilities designated "temporary" which have 
traditionally been attended by Negro students 
or which presently have a majority of Negro 
students;

d. Facilities designated "temporary" which have 
traditionally been attended by white students.

2. If;-, any facility designated "to be abandoned" or 
"temporary" is to be operated during the 1967-68 school year, 
the State Superintendent of Education shall submit to the 
Court and all parties within 60 days from the entry of this 
decree, a survey of the capacity of each facility within the 
district and the number of students by race and grade enrolled 
in and the average daily attendance in each such facility 
during the 1966-67 school year and anticipated during the 1967- 
68 school year. He shall further submit detailed plans for

46./ The capacity of any school within the system shall not 
be considered to be exceeded until its pupil-teacher ratio is 
equal to or greater than the highest pupil-teacher ratio based 
upon enrollment for the past five years of any school in the 
system and it has no unused classrooms.

- 44 -



the closing of these facilities including a projection of the 
date(s) when such closing(s) shall take place.

3. Reassignments of teachers and students due to the 
closing of any facility shall be designed to promote integration. 
Specifically, students and faculty shall be assigned to schools 
presently attended by students of the opposite race pending the 
complete reorganization of the schools contemplated on the 
occasion of additional construction within the district. The 
State Superintendent shall submit a report to the Court indicat­
ing the basis of the reassignments of faculty and students, 
including a projection of the anticipated results of such 
reassignments in terms of the race of staff and students for 
each grade at each school within the system within 30 days of 
the anticipated closing. All parties shall have 15 days there­
after to object to these reqssignments.

C. Deficient Facilities.
The State Department of Education shall file in the 

Court and serve on all parties a report within 90 days from the 
entry of this decree containing:

1. A list of all public schools within the State of 
Alabama which fail, in one or more ways, to meet the 12 
standards set out at pp. 32-33, supra, showing the deficiency 
present in each such school.

2. The plan for the correction of each deficiency set 
out in paragraph 1. Since this plan will, of necessity, require 
the closing and consolidation of existing facilities and the 
reassignment of teachers and pupils, it shall be designed to 
contribute toward the elimination of the dual system by providerg 
for maximum integrationof students, faculty and staff as well as 
to eliminate each such deficiency. The plan shall indicate
the enrollment and average daily attendance by class, grade and 
race of students and faculty at each school within the subject 
district during 1966-67 and the proposed enrollment and average 
daily attendance by class, grade and race of students and 
faculty in all facilities contemplated to be used under the plan

45



for the correction of deficient facilities.
All deficiencies shall be corrected prior to the 1967-68 

school year, unless the Superintendent of Education shows 
cause why such deficiencies cannot be corrected at that time.
In such event, a projected date for such corrections shall be
fixed.

D. Site Selection and Construction.
1. The State Superintendent of Education shall, 

within 10 days from the entry of this decree, communicate 
disapproval of all expansion and improvement sites, previously 
approved, upon which construction has not yet commenced.

2. The State Superintendent of Education shall continue 
to approve all site selections and new construction by local 
systems, but shall condition such approval upon the implemen­
tation of the recommendations contained in the comprehensive 
survey fulfilling the requirements set out in IE, infra.

E. Future Surveys.
1. The recommendations included in past school surveys 

shall be expressly disapproved and such disapprovals shall be 
communicated immediately by the State Superintendent of Edu­
cation to the respective school districts throughout the State
of Alabama.

2. All school surveys hereinafter conducted shall
continue to include data by race.

3. All surveys hereinafter conducted shall include
a plan for the assignment of all students and facilities 
designed to produce an entirely integrated school system.
This plan must in part provide for the placement of all 
students within the district on an integrated basis. The 
plan cannot be based solely on freedom of choice. The plan 
must provide the present and projected number of students 
in each class of each existing and proposed school within 
the system by grade and race.

46



4. All surveys and all data relied upon in establishing 
the survey and plan for integration shall be submitted to the 
Court and served on all parties, who shall have thirty days
to object to the plan and to any new construction based upon 
unconstitutional methods or requests.

5. No site, construction, addition or improvement may47/
be based upon a "partial survey."

II
DESEGREGATION PLANS FOR LOCAL SCHOOL SYSTEMS

A. The State Superintendent of Education shall, within 
5 days from the entry of this decree, inform each public school 
district within the State that it must adopt an acceptable 
desegregation plan, as defined in paragraph B below, within
20 days from the entry of this decree.

B. 1. Every school district which has been surveyed 
pursuant to paragraph IE above shall submit and adopt the com— 
prehensive plan for desegregation included therein.

2. Every local school district which has not been 
surveyed pursuant to paragraph iE of this decree must submit 
a plan for the desegregation of its school as follows:

a. School districts adopting a freedom of choice 
plan must, at a minimum, meet the standards embodied in the 
proposed uniform decree announced by the United States court 
of Appeals for the Fifth Circuit in United States v. Jefferson 
countv Board of Education (C.A. No. 23345, December 29, 1960). 
An adequate desegregation plan based upon geographic attend­
ance zones must, at the minimum, meet the standards embodied 
in the pertinent provisions of "Revised Statement of Policies 
for School Desegregation Plans under Title VI of the Civil 
Rights Act of 1964," C.F.R., Part 181.

b. All plans submitted pursuant to this paragraph 
must additionally include recommendations included in plans

.4y  See testimony of Dr. George Layton, November 30, 1966, 
pp. 178-79.

47



formulated pursuant to paragraph IB of this decree (dealing 
with school closings) and/or paragraph IC (dealing with cor­
rection of deficiencies). No school designated to be closed 
pursuant to paragraph IB of the decree or containing a 
deficiency to be corrected pursuant to paragraph IC of the 
decree may be considered available for choice unless the 
conditions for its continued existence are met as required 
in paragraphs IB and IC of this decree.

c. Commencing with the school year 1967-68, 
regardless of the type of plan submitted, every school 
district must educate all students residing within the dis­
trict. In no event shall any students be transported to 
another district unless facilities are not presently 
available for such students. If facilities are not presently 
available, the class of students to be transported out of 
the district shall be based upon age, grade, or some other 
objective non-racial criteria. No student shall be trans­
ported out of the district based upon race, and no child 
shall be permitted to choose to attend school in another 
district. Each school district receiving or sending students 
from or to another district shall report to the State Super­
intendent by June 1, 1967:

(1) The number of students by race and grade sent 
to other districts during 1966-67?

(2) The number of students by race and grade 
received from other districts and the schools to which these 
students were assigned during 1966-67;

(3) Detailed plans for the assignment of these 
students to schools within their home district fot the year 
1967-68;

(4) The number, grade and race of students to be 
received or transferred by district for 1967-68.
Copies of these reports shall be submitted to the Court and 
provided the parties.

d. Any school district commencing operation of 
a new or expanded school facility during the school year

- 48 -



1967-68 shall insure that the school cannot be identified 
by the race of the student body of faculty as a "Negro" or 
"white" school. A list of each new or expanded school com­
mencing operation during the 1967-68 school year and the 
race, number and basis of assignment shall be submitted to 
the Court and provided the parties.

3. Prior to June 1 of each year, the State Superin­
tendent shall submit a report to the Court, serving all 
parties, setting forth the following information Wxc.h 
respect to each school system within the State of Alabama:

a. The number of students by race, in each grade 
of each school for the current school year;

b. The nuiriber of faculty members of each race 
assigned to each school for the current school year, together 
with the number of faculty vacancies or new positions, by 
school, that have arisen or have been filled by the school 
board since the last report;

c. The number of students that have requested
to transfer from the schools they were assigned to, together 
with a description of the action taken by the local school 
board on such requests and the reasons therefor;

d. For each such school system operating under 
a freedom of choice attendance plan, the number of choice 
applications received for each grade, the number of choices 
granted and denied, and the reasons for all denials;

e. For each such school system operating under 
an attendance plan based on geographic zones, the name and 
location of each school facility planned to be used during 
the coming school year, the attendance zones for each school 
in operation during the current school year, and any changes 
in the attendance zones planned for the coming school year. 
Copies of each such report shall be submitted to the Court 
and to the parties.

49



C. Within 30 days from the entry of this decree, the 
State Superintendent shall submit a report to the Court and 
to all parties informing them of his discharge of this obli­
gation, including:

1. A copy of every plan submitted?
2. An analysis by the Superintendent of Education 

of each plan indicating in detail any aspect of said plan 
that fails to meet the minimum standards set out above?

3. A detailed statement of all actions taken by 
the State Superintendent of Education to effect compliance 
of districts that fail to submit an acceptable plan, includ­
ing action by him "designed to make the distribution of 
public funds to the various schools throughout the State of 
Alabama only to those schools and school systems that have 
[adopted an acceptable desegregation plan]” (231 F. Supp.
at 756-57).

D. Nothing contained herein shall limit the right of 
the United States, the parties or any ether person to encour 
age any school system within the State to adopt an adequate 
desegregation plan.

50



Ill
Instructional‘Programs

A. 1. The State Superintendent of Education shall 
develop a detailed program for assisting and encouraging 
faculty desegregation in the local school systems through­
out the State for implementation prior to the 1967-68 
school year and shall submit this program to the Court and 
all parties within 60 days after the entry of this decree.

2. Any services made available by the State 
Superintendent of Education to assist local school boards
to locate and employ suitable teachers or to assist teachers 
to find suitable positions shall be provided in the manner 
which best effectuates faculty desegregation in the public
schools throughout the State.

3. The State Superintendent of Education shall
not give force or effect to that provision of §339 of Title 
52 of the Alabama Code which requires that separate teacher 
institutes be held for Negro and white teachers; and he 
shall direct that a single, system-wide teacher institute 
be held in each local school system for the 1967-68 school 
year and that for each school year thereafter, such insti­
tutes be conducted on a desegregated basis.

4. The State Superintendent of Education shall 
conduct all in-service training programs on a desegregated 
basis.

5. The State Superintendent of Education shall 
apply certification requirements without discrimination on 
the basis of race and shall apply certification requirements, 
or grant provisional certificates in such a manner as to 
promote faculty desegregation.

6. The State Superintendent of Education shall 
inform all applicants for certification that the school 
systems throughout the State are obliged to desegregate 
their faculties and that teachers are subject to assignment 
in accordance with that obligation.

51



7. Upon the entry of this decree, the State 
Superintendent of Education shall forthwith inform all local 
school districts within the State of Alabama that:

a. A faculty desegregation plan is being 
prepared by the State Department of Education for local 
districts and that no contract shall be entered into between 
any district and a teacher which binds the school to assign 
the teacher to a particular school for the 1967-68 school 
year;

b. A copy of the faculty desegregation plan 
will be provided each school district within 90 days of the
entry of this decree;

c. Local school districts may enter into 
contracts for the services of teachers provided both parties 
expressly understand that such teachers will be subject to 
assignment pursuant to the aforementioned faculty desegre­
gation plan;

d. With respect to new schools to commence 
operating during the 1967—68 school year, local school 
districts shall be put on notice that the racial composition 
of the faculty shall not vary more than 15 percent from the 
racial composition of the teacher population within the 
district;

e. If any contract is entered into contrary 
to the above provisions, or if any contract is entered into 
at an earlier date than is usual for such contracts, and 
providing that faculty segregation continues, this Court 
shall presume a discriminatory intent and shall decree any 
such contract unenforceable.

B. The State Board of Education shall cause to be 
prepared within 60 days from the entry of this decree a 
comprehensive plan for the desegregation of students and 
faculties at all trade schools and junior colleges within the 
State of Alabama. This plan shall provide for student and 
faculty assignments which disestablish the racial character
of each such school.

52



«

Transportation

1. The State Superintendent of Education shall require 
every local school district to submit a transportation plan 
for the 1967-68 school year within 20 days after the assign­
ment of students to their respective schools pursuant to 
an approved desegregation plan. This transportation plan 
must provide:

a. For the elimination of race as a basis 
for assigning students to buses or as a basis for bus 
routes y

b. For unitary bus routes planned on a 
district-wide basis using objective criteria such as 
population density, location of schools and residence 
of pupils. The plan must specify these criteria, and 
the manner in which they are applied;

c. That routes shall not duplicate or 
overlap one another;

d. For the right of students living within 
a district operating under a freedom of choice plan to 
be provided equal, nondiscriminatory transportation to the 
school of the student's choice within the district if that 
school is at least two miles from his residence. The local 
school district shall communicate this right by means and
in terms calculated to reach and be understood by all students 
and parents within the district prior to the choice period. 
Every student in districts operating under geographic zone 
plans shall have the right to equal, nondiscriminatory 
transportation to the school to which he has been assigned, 
and the local school district shall communicate this right 
by means and in terms calculated to reach and be understood 
by all students and parents within the district.

e. For the communication to every student within 
the district by means and in terms calculated to be understood

IV

53



of the bus route and stop to which he has been assigned;
f. For the nonracial assignment of bus drivers;
g. For the equalization of the expenditure of 

funds, allocation of facilities, assignment of students and
length of routes for all transportation facilities maintained 
or operated by or for the district;

h. For a report to be filed with the State 
Superintendent within 10 days after bus raoutes are established 
of the race of the driver, the number of students, by race, 
assigned to the bus, the length of each route, the number of 
trips to be made by each bus and the age and capacity of
each bus.

2. The reports called for in subparagraph (h) above 
shall be filed with the Court and served on all parties.

54



V
Equalization of Facilities

1. The State Superintendent of Education shall require 
within 30 days from the entry of this decree each local school 
district to submit a detailed inventory of all equipment 
presently located and assigned to or used within each school 
within the district. This inventory shall be compiled for 
each school and shall include, but not be limited to, an 
accurate description and statement of condition of the 
following:

a. The number of books in each school library
or room?

b. The number of encyclopedias by" title, edition
and year of publication?

c. All scientific equipment, projectors and 
similar equipment and facilities?

d. Athletic equipment and facilities?
e. The title and edition of each textbook assigned 

to each grade and class?
f. All other facilities and equipment.

This inventory shall indicate which, if any, facilities are 
assigned to two or more schools and the basis of the allocation 
The inventory shall be prepared and its authenticity sworn 
to by the principal of the school to which the equipment is 
assigned or by another person familiar with the equipment ar/" 
facilities.

2. The State Superintendent of Education shall require 
each local school districts to submit within 30 days of
the entry of this decree a list of each course taught in 
each school during the current school year.

3. Copies of these inventories and course lists shall 
be submitted to the Court within 5 days of receipt by the 
Superintendent.

55



%

Interference

The defendant state officials shall not interfere with, 
prevent or obstruct, by any means, the elimination of segrega­
tion or other forms of racial discrimination by local school 
officials in any school system in the State of Alabama.

VII.

The costs of this action shall be taxed against the 
defendant state officials.

Respectfully submitted,

VI..

FRED D. GRAY
34 North Perry Street 
Montgomery, Alabama

JACK GREENBERG 
CHARLES H. JONES, JR.MELVYN ZARR 
HENRY M. ARONSON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs in 
No. 604-E

56 -



41 4/
*

CERTIFICATE OF SERVICE

I hereby certify that on January ___, 1967, I served a
copy of the foregoing Brief for Plaintiffs upon each of the 
attorneys of record listed below, by United States airmail, 
postage prepaid:

Maury Smith, Esq.Goodwyn, Smith & Bowman 
325 Bell Building 
Montgomery, Alabama 36104
Hugh Maddox, Esq.Governor's Office 
Montgomery, Alabama
John C. Satterfield, Esq.
P. 0. Box 466
Yazoo City, Mississippi
St. John Barrett, Esq.
Brian Landsberg, Esq.United States Department of Justice 
Civil Rights Division 
Washington, D. C. 20530
Oscar W. Adams, Jr., Esq.
1630 Fourth Avenue North 
Birmingham, Alabama 35203
Robert L. Carter, Esq.
20 West 40th Street 
New York, New York
Martin Ray, Esq.901 First National Bank Building 
Tuscaloosa, Alabama

Attorney for Plaintiffs in 
No. 604-E