Motion for Summary Reversal and Other Relief

     [||e9d1a362-4ce0-4723-8b72-39f7eadc56f1||] ® * 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 

REBECCA FE, HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

THE CLARKSDALE MUNICIPAL 
SEPARATE SCHOOL DISTRICT, 
et al., 

Defendants-Appellees. 

MOTION FOR SUMMARY REVERSAL 
AND OTHER RELIEF 

: . 

This is an appeal from an order of the United States 

District Court for the Northern District of Mississippi, 

Honorable William C. Keady, dated January 10, 1970, which 

requires only that defendants integrate five of twelve 

grades in the Clarksdale school district by February 1, 

1970.1/ Elementary and ninth grade pupils will continue to 

attend segregated schools and classes under the zoning plan 

of desegregation held unconstitutional by this Court almost 

a year ago in Henry v. Clarksdale Municipal Separate School 

District, 409 F.2d 682, (5th Cir, 1969), petition for re- 

hearing en banc denied, F.2d = A 5chaCiv. 1969), ceri. 

denied, U.S. £1969). “Moreover, the district court's 

ve are advised by the clerk of the district court that 
the record on appeal will be transmitted to the Clerk of this 
court on or about January 23, 1870." However, for the con~ 
venience of the Court we append hereto several documents con- 
tained in the record. The order appealed from, January 10, 
1970, is appended hereto as exhibit "A", 

L) 



re " 

order fully contemplated the holding of Carter v. West 

Feliciana Parish School Board and a motion to reconsider in 

light of that decision, addressed to the district court, 

would be anavelling 2 

Under the district court's order the following pattern 

of pupil assignment will prevail until September, 1970: 3/ 

School White Enrollment Negro Enrollment Total 

Hall Elem. 7 : 493 500 
(1-6) 

Heidelberg Elem. 340 0 340 
(1-6) 

Kirkpatrick Elem. 385 0 385 

(1-69 
Oakhurst Elem. 335 0 335 

(1-6) 

Oliver Elem. 0 475 475 

(1-6) 

Riverton Elem. 6 469 475 

(1-6) 

Pos pecan Elem. 0 540 540 
1-6 

Totals: 1073 1977 3050 

In addition to the above the district court permitted 

the continued segregation of ninth grade pupils: whites are 

assigned to the white Clarksdale Junior Senior High School 

and blacks are assigned to the Negro Higgins School. 

2/ The district court carefully noted that elementary 
and ninth grade pupils would remain segregated even if 
Carter ordered desegregation by February 1, 1970. See pp. 
4-5 of district court order, exhibit "A" hereto. 

HM scavtsrics derive from Interrogatories propounded by 
plaintiffs and answers thereto dated August 28, 1969. These 
answers to interrogatories and the transcript of proceedings 
held on January 9-10 demonstrate that defendants, notwith- 
standing the opinion of this Court, continued to maintain 
segregated students, faculties and extra-curricula programs. 
See, in addition to answers to interrogatories, transcript 
of proceedings, January 9-10, pp. 107, 111, 130-134, 145. 



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To the extent that the district court permitted segre- 

gated elementary and ninth grade schools and classes beyond 

February 1, 1970, it failed to adhere to the clear holdings 

of Alexander and Carter and summary reversal is necessary and 

proper. 

IT 

The procedural history of this case is a tangled webb. 

But it must be untangled if this Court is to appreciate the 

obstacles plaintiffs have met in their effort to achieve a 

unitary system in Clarksdale; and it must be untangled for 

it demonstrates the importance and appropriateness of summary 

reversal. 

March 6, 1969, this Court held that the zoning plan of 

desegregation adopted by the school board failed to meet con- 

stitutional standards. The court held that a zoning plan, 

like freedom of choice, is inadequate if it does not result 

in meaningful desegregation. The school district was di- 

rected to redraw its attendance zones, incorporate a major- 

ity to minority transfer provision, close all Negro schools, 

consolidate and pair schools, rotate principals and take such 

other measures "to overcome the defects of the present sys- 

toni" 

March 19, 1969, defendants petitioned this Court for re- 

hearing en banc thus staying the mandate. When it appeared 

that the 1969-70 school year might pass without further dis- 

trict court proceedings, plaintiffs moved this Court for the 

immediate issuance of the mandate. June 26, 1969, this 

Court denied defendants petition for rehearing and ordered 

the mandate to issue. 

2 irs v. Clarksdale Municipal Separate School District, 
409 F.2d 652, 659-90, 



* R 

Upon the issuance of the mandate, the district court on 

July 8, 1969, ordered defendants to formulate and file a new 

plan of desegregation to be implemented by the commencement 

of the 1969-70 school year. Plaintiffs had every reason to 

believe that September, 1969 would be marked by a new plan of 

desegregation for Clarksdale. 

June 30, 1969, defendants, moved this Court to recall the 

mandate. After filing their motion with this Court, defend- 

ants moved the district court to stay further proceedings and 

to vacate its order of July 8, 1969, requiring a new plan of 

desegregation. And the district court on July 17, 1969, did 

vacate its order stating: 

it having been brought to the attention 
of the Court that there is pending a 
motion by defendants in the United States 
Court of Appeals for the Fifth Circuit to 
rescind issuance of mandate and to allow 
stay pending filing petition for writ of 
certiorari in the United States Supreme 
Court, and the Order of this Court di- 
recting defendants to file a new plan by 
July 23, 1969, with hearing thereon to 
be held on July 30, 1969, should be va- 
cated and the matter held in abeyance 
pending action by the Circuit Court of 
Appeals for the Fifth Circuit; it is 
ORDERED, That the Order of this Court 
dated July 8, 1969, for submission of 
new school desegregation plan is here- 
by vacated pending disposition by the 
United States Court of Appeals for the 
Fifth Circuit of defendants' motion to 
rescind mandate. [Emphasis added]2 

Upon the order of the district court staying proceedings 

plaintiffs filed in this Court a motion seeking an immediate 

ruling on defendants! motion for recall of mandate. We 

pleaded with this Court as follows: 

Because the district court has stayed 
proceedings until this Court rules upon 
defendants' Motion for Recession of 
Order for Immediate Issuance of Mandate 
and for Stay of Mandate, it is of para- 
mount importance to plaintiffs that the 

5/sce exhibit "B", hereto. In this manner, defendants 
and the district courl, in effect, reversed this Couri's 
order directing the mandate to issue. No further proceed- 
ings were to be held in this case until the Supreme Court of 
the United States denied certiorari, November 24, 1969. 

dy 



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Court issue immediately an order deny- 
ing the said motion; once again relief 
effective for the 1969-70 school year 
is at stake, in a case decided by this 
Court as long ago as March 6, 1969. 67 

This Court never took action on these motions. Thus, while 

this Court was ordering new plans of pupil assignment into ef- 

fect throughout the Circuit and was directing the mandates to 

issue forthwith, one of the most segregated school districts 

in the state managed to postpone Compliance Day - "C" Day - 

beyond the beginning of the 1969-70 school year. 

When the Supreme Court of the United States denied de- 

fendants' petition for writ of certiorari, the district court, 

on November 25, 1969, entered an order directing defendants 

and HEW to formulate a new plan of desegregation. HEW sub- 

mitted its plan on December 23, 1969, and hearings on objec- 

tions thereto filed by defendants were heard on Friday and 

Saturday, January 9-10, 1970.2/ Those proceedings concluded 

in the order from which plaintiffs-appellants appeal. 

111 

Defendants position at the hearing of this cause tried 

the patience of the district court and plaintiffs. Notwith- 

standing the holding of this Court, and notwithstanding the 

denial of certiorari by the Supreme Court, and notwithstand- 

ing the ruling of the district court that a dual school system 

prevailed in Clarksdale, defendants maintained that their ex- 

isting plan was constitutional; and they refused to offer any 

Sl vnatntiitstmAppellonts’ Motion for an Immediate Order 
denying Defendants'-Appellees' Motion for Recall of Mandate 
and for Stay of Mandate, July 29, 1969, appended hereto as 
exhibit "Cn, 

2 vying supported the HEW plan of desegregation ex- 
cept that we objected to the failure of the plan to desegre- 
gate the all-Negro Booker T. Washington Elementary School; 
HEW determined that Washington was isolated from white chil- 
dren and should remain segregated. Plaintiffs, however, re- 
quested that the district court "implement the HEW plan in 
its entirety by February 1, 1970; and that the modifications 
necessary to integrate Booker T. Washington Elementary School 
be implemented by September, 1970. Attached hereto as exhibit 
"D" are relevant excerpts from the HEW plan of desegregation. 

"5 



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alternatives, except a majority to minority transfer provision 

and the assignment of 25-30 blacks to the white Clarksdale High 

School, {transcript,. pp. 122-126).8/ In addition to insisting 

that their present plan was constitutional defendants attacked 

as educationally unsound every aspect of the HEW proposal. 

They offered no constitutional alternative to the HEW plan 

whatsoever. 

8/1¢ is true that this Court noted that a long time has 
passed between trial and the decision of the Court: "(i)n view 
of the delay, we believe that the interests of justice require 
that the case be remanded for a hearing to determine the effec- 
tiveness of the Clarksdale plan in today's factual setting and 
in light of Green and other decisions of the Supreme Court and 
of this Court. The Board should bear in mind that it bears the 
burden of proving that its existing plan of desegregation is 
adequate now 'to convert [the dual system] to a unitary system 
in which racial discrimination would be eliminated root and 
branch, 'Y Henry, supra, 409 F.24 at 689, The factual setting 
of today, however, demonstrates beyond peradventure that the 
existing plan fails to meet the standards of Green and Adams 
v. Mathews, 403 F.2d 181 (5th Cir. 1968) and its progeny. Not 
a single black child is assigned to schools attended by white 
children; only a token number of whites are assigned to black 
schools; no black teachers are assigned to any white schools; 
only eight white teachers are assigned to the six black schools; 
there have been no inter-scholastic activities among white and 
black schools. See Interrogatories and Answers thereto, dated 
August 28, 1969, and transcript of proceedings held on January 
9-10, pp. 107-108, 131. Of course, the district court had this 
statistical information at hand when it directed defendants and 
HEW to submit a plan "which will convert its present dual sys- 
tem of schools to a unitary system in which racial discrimina- 
tion would be wholly eliminated," Order of the District Court, 
November 25, 1969, p. 1, exhibit "E" hereto. 

When the HEW plan was filed defendants objected to its 
every feature. They objected to the new construction provi- 
sions of Jefferson I and II and Singleton v. Jackson Municipal 
Separate School District, oth Cir., December 1, 1969; they ob- 
jected to the faculty provisions of Singleton, noting that 
"there is neither authority nor justification for the proposal 
for the desegregation of the faculty and other staff. As the 
district's faculty and staff are now constituted and assigned 
they do not violate the constitutional rights of any pupil of 
the district." See exhibit "F" appended hereto, Objections of 
Defendants to Plan for School Desegregation Filed Herein by the 
United States Office of Education, Department of Health, Educa- 
tion and Welfare, January 2, 1970. 

Defendants' position can be simply stated: we don't care 
what the district court holds, nor do we care what the Fifth 
Circuit Court of Appeals and the United States Supreme Court 
hold, our plan is constitutional: 

Q. In this Court's order of November 25, 1969, the 
Court referred to your present dual system of schools. 
Did you read that order? 



IV 

The district court decision at the close of the hearing 

was more than predictable: 

from the time that [the Fifth Circuit's] 
decision was handed down it was perfectly 
apparent that this school board had to do 
something to get its house in order. . . 
It is evident that the present plan is not 
constitutional and it is idle for the school 
board to contend to this Court that it is. 
They argued the case, they lost the case. 
That should have been i months ago 
to this school district.2 

8/(continued) 
A. I read that and I would have to take exception 

to that, with all deference to this Court, we do 
not believe for one minute that we have that type 
of school system. 

(cross-examination of Superintendent Tynes, p. 141.) 

Q. Reading further [from the decision of the Fifth 
Circuit of March 6, 1969]: 

"If there are still all-Negro schools or only a 
small fraction of Negroes in white schools and 
no substantial integration of faculty and school 
activities as a matter of law the existing plan 
fails to meet constitutional standards established 
in Green and its companion cases." 

What did that mean to your board of education? 

A. I would say that we disagree with it. 

Q. Sir, are you in a position to disagree with the 
Fifth Circuit Court of Appeals? 

A. Mr. Leventhal, we believe, sincerely so, sir, that 
our present plan meets all constitutional require- 
ments. 

(cross-examination of Leon T. Porter, Jr., attorney 
and member of defendant school board, p. 199) 

Sbvonscyine, pp. 205-206. The Court further found the 
white schools completely segregated, "studentwise and faculty- 
wise." The opinion of the district court is contained in the 
transcript and is appended hereto as exhibit "G". 



\' 

The sole error, we contend, is that the district court 

postponed desegregation of the elementary and ninth grades 

beyond February 1, 1970, after finding that a dual system 

prevailed in Clarksdale. "Graduated implementation of re- 

lief is no longer constitutionally pavitesible, n20/ The 

district court granted defendants "until eleven o'clock 

tommorrow morning" to prepare and submit a plan for junior 

and senior high school svades.3/ It should have required 

that a plan be submitted which would desegregate all grades 

by February 1, 1970 and, in the absence of such a plan form- 

ulated by defendants and consistent with constitutional stand- 

ards, the district court should have ordered into effect the 

HEW plan of desegregation. Alexander v. Holmes County Board 

of Education and Carter v. West Feliciana Parish School Board. 

Alternatively, if the district court determined that the HEW 

plan was unworkable "beyond question" the district court should 

have "devise(d) measures to provide the required relief. 12/ 

1% vnrier v. West Feliclana Parish School Board, Oct. 1969 
Term, Nos. 944, 972, January 14, 1970, concurring opinion of 
Mr. Justice Harlan and Mr. Justice White, p. 2. 

11/54 the close of the Friday, January 9, 1970 hearing, 
the district court directed defendants to produce by the fol- 
lowing morning a plan for junior and senior high school grades. 
On Saturday, January 10, 1970, a hearing was held on defendants 
proposal. See exhibits "D" and "F" hereto. 

12/ carter, supra, at p. 2. Defendants' objections to the 
HEW plan are identical to their objections to any change in 
their current plan. They argued that HEW's plan would require 
a reorganization of the present 6-3-3 grade structure; that it 
would require children to traverse so called natural boundaries; 
and that it would require children to walk substantial distances. 
All of these contentions were disposed of by this Court in 
Henry, supra; "While the use as a boundary of the elevated 
railroad tracks in Clarksdale would appear reasonable, such ap- 
pearance must be measured against the past history of school 
children crossing those tracks to go to a school for their 
particular race. Having disregarded the tracks as impediments 
in order to maintain the racial purity of its schools, the school 
board cannot turn around and consider the tracks inpenetrable 
when doing so will perpetuate that former racial purity," 409 
F.24 at 683, f.m. 10. See also, transcript, pp. 128-130, 134- 
136. The HEW plan would desegregate the schools and would al- 
leviate the overcrowded conditions existing in some schools 
136-138, 

“Be 



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WHEREFORE, plaintiffs-appellants respectfully move this 

Court to: 

1) order that any response to this motion be filed no 

later than February 4,.:1970; 

2) SUMMARILY REVERSE, the order of the United States 

District Court for the Northern District of Misslssivpl, £0 

the extent that it approves a dual elementary and ninth grade 

program in defendant school district; 

3) direct the district court to order implemented no 

later than February 15, 1970 a plan of desegregation which 

completely eliminates the dual school system prevailing with- 

in the Clarksdale Municipal Separate School District; 

4) direct the district court to order implemented the 

HEW plan of desegregation in its entirety, in the event that 

defendants fail to submit a constitutionally acceptable al- 

ternative; 

5) order that the mandate issue immediately; 

6) grant such other or additional relief as the Court 

may deem just and proper. 

January 29, 1970 Respectfully submitted, 

Be, OR ahd 
MELVYN 'R. LEVENTHAL d 
REUBEN V. ANDERSON 
FRED 1. BANKS, JR. 
JOHN A. NICHOLS 

538% North Farish Street 
Jackson, Mississippi 39202 

JACK GREENBERG 
NORMAN CHACHKIN 
JONATHAN SHAPIRO 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Counsel for Plaintiffs-Appellants 



CERTIFICATE OF SERVICE 

I hereby certify that on this 29th day of January, 1970, 

I caused to be served by United States mail, postage prepaid, 

a copy of the foregoing Motion For Summary Reversal and Other 

Relief upon Semmes Luckett, Esquire, 121 Yazoo Avenue, 

Clarksdale, Mississippi 38614. 

LISINAN 
—\ don AN SAAN 
MERYYN R. LEVENTHAL [||e9d1a362-4ce0-4723-8b72-39f7eadc56f1||]