Greenberg v. Veteran Opinion

    IN THE

United States Court of Appeals
FOR THE FIFTH dRCUTT

N o . 2 3 3 4 5

UNITED STATES OF AIVIEKICA and LINDA STOUT, by 
her father and next friend, BLEVIN STOUT,

Appellants,
versus

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL,
Appellees.

N o . 2 3 3 3 1

UNITED STATES OF AMERICA,
Appellant,

versus

THE BO^ABD OF EDUCATION OF THE CITY OF 
FAIRFIELD, ET AL,

Appellees.

N o . 2 3 3 3 5

UNITED STATES OF AJWERICA,
Appellant,

versus

THE BOARD OF EDUCATION OF THE CITY OF 
BESSEMER, ET AL.,

Appellees.

Appeals from the United States District Court for the 
Northern District of Alabama.



2 JJ. S., et al. V.  Jeff.  County Bd. of Educ., et al.

N o . 2 3 2 7 4

UNITED STATES OF AMERICA,
Appellant,

versus

CADDO PARISH SCHOOL BOARD, ET AL.,
Appellees.

N o . 2 3 3 6 5

UNITED STATES OF AMERICA,
Appellant,

versus

THE BOSSIER PARISH SCHOOL BOARD, ET AL.,
Appellees.

N o . 2 3 1 7 3

MARGARET M. JOHNSON, ET AL.,
Appellants,

versus

JACKSON PARISH SCHOOL BOARD, ET AL.,
Appellees.



U. S., et al .  V.  Jeff. County Bd. of Educ., et al. 3

N o . 2 3 1 9 2

YVORNIA DECAROL BANKS, ET AL.,
Appellants,

versus

CLAIBORNE PARISH SCHOOL BOARD, ET AL.,
Appellees.

N o . 2 3 2 5 3

JIMMY ANDREWS, ET AL.,
Appellant,

versus

CITY OF MONROE, LOUISIANA, ET AL.,
Appellees.

Appeals from the United States District Court for the 
Western District of Louisiana.



4 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

N o . 2 3 1 1 6

CLIFFORD EUGENE DAVIS, JK., ET AL.,
Appellants,

versus

e a s t  b a t o n  r o u g e  PAIMSH SCHOOL BOARD, ET
AL.,

Appellees.

Appeal from ike United States District Cmirt for the 
Eilstem District of Louisiana.

ON PETITIONS FOE REHEARING EN BANC

(March 29, 1967.)

Before TUTTLE, Chief Judge, BROWN, WISDOM, 
GEWIN, BELL, THORNBERRY, COLEMAN, GOLD­
BERG, AINSWORTH, GODBOLD, DYER, and SIMP­
SON, Circuit Judges.

P E R  CURIAM : 1. The Court sitting en banc
adopts the opinion and decree filed in these  cases De­
cem ber 29, 1966, sub ject to  the  clarifying statem ents 
in th is opinion and  the changes in the decree a ttached  
to th is opinion.

2. School desegregation  cases involve m ore than  
a dispute betw een certa in  Negro children and certain



U. S., et al. V.  Jeff.  County Bd. of Educ., et al.

schools. If N egroes a re  ever to en ter the  m a in s tream  
of A m erican  life, a s  school children they  m ust have 
equal educational opportunities w ith w*hite children.

3. The Court holds th a t boards and officials ad,- 
m in istering  public schools in th is circuit^ have the af­
firm ative  duty under the  F ourteenth  A m endm ent 
to b ring  labout an in tegrated , unitary  school system  
in w hich th e re  a re  no Negro schools and no w hite 
schools—^just schools. E xpressions in our ea rlie r opin­
ions distinguishing between in teg ra tion  and desegre­
gation® m ust yield to th is affirm ative  duty  v/e now 
recognize. In  fulfilling th is duty  it is not enough for 
school au thorities to offer N egro children the oppor­
tunity  to a ttend  fo rm erly  all-White schools. The neces­
sity  of overcom ing the  effects of the dual school sys­
tem  in th is c ircu it requ ires in tegration of faculties,

 ̂ “In the South”, as the Civil Rights Commission has pointed 
out, the Negro “has struggled to get into the neighborhood school. 
In the North, he is fighting to get out of it,” Civ. Rts. Comm. Rep., 
Freedom to the Free. 207 (1963).

This Court did not “excuse” neighborhood schools in the 
North and West which have de facto segregation. No case involv­
ing that sort of school system was before the Court.

School segregation is “inherently unequal” by any name and 
wherever located. But de facto segregation resulting from resi­
dential patterns in a non-racially motivated neighborhood school 
system has problems peculiar to such a system. The school 
system is already a unitary one. The difficulties lie in finding 
state action and in determining how far school officials must go 
and how far they may go in correcting racial imbalance. In such 
cases Shelley v. Kraemer, 334 U.S. 1 (1948) may turn out to be 
as important as Brown. A broad-brush doctrinaire approach, 
therefore, that Brown's abolition of the dual school system solves 
all problems is conceptually and pragmatically inadequate for 
dealing with de facto-segregated neighborhood schools.

We leave the problems of de facto segregation in a unitary 
system to solution in appropriate cases by the appropriate courts. 
2 This distinction was first expressed in Briggs v. Elliott, 
E.D.S.C. 1955, 132 F. Supp. 776: “The Constitution, in other 
words, does not require integration. It merely forbids discrimina­
tion.”



6 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

facilities, and activ ities, as well as students. To the 
extent th a t  ea rlie r decisions of this Court (m ore in 
the language of the  opinion than in the  effect of the 
holding) conflict w ith th is view, th e  decisions a re  
overru led . We re fe r specifically to  the  cases listed  
in footnote 2 of th is opinion.®

4. F reedom  of choice is not a  goal in itself. I t  is a  
m eans to an  end. A schoolchild has no inalienable 
righ t to choose h is  school. A freedom  of choice p lan  
is bu t one of the tools availab le  to school officials at 
th is stage  of the process of converting th e  dual sys­
tem  of sep a ra te  schools for N egroes and  w hites into 
a un ita ry  system . The governm ental objective of this 
conversion is—educational opportunities on equal 
term s to all. The crite rion  for determ ining  the^ valid ity  
of a provision in a school desegregation p lan  is w heth­
e r the provision is reasonab ly  re la ted  to accom plish­
ing th is objective.

5. The percen tages re fe rred  to in the  Guidelines 
and in this C ourt’s decree a re  sim ply a rough ru le  of 
thum b for m easuring  the effectiveness of freedom  of 
choice as  a  useful tool. The percen tages a re  not a 
m ethod for setting quotas or strik ing  a balance. If the 
p lan  is  ineffective, longer on prom ises th an  p erfo rm ­
ance, the school officials charged  w ith in itiating  and

3 Avery v. Wichita Falls Independent School District, 1956, 241 
F.2d 230; Borders v. Rippy, 1957, 247 F.2d 268; Rippy v. Borders, 
1957, 257 F.2d 73; Cohen v. Public Housing Administration, 1958, 
257 F.2d 73; City of Montgomery v. Gilmore, 1960, 277 F.2d 364; 
Boson V. Rippy, 1960, 285 P.2d 43; Stell v. Savannah-Chatham 
County Board of Education, 1964, 333 F.2d 55; Evers v. Jackson, 
1964, 328 F.2d 408; Lockett v. Board of Education of Muscogee 
County, 1965, 342 F.2d 225.



U. S., et al. V.  Jeff.  County Bd. of Educ., et al. 7

adm inistering  a  u n ita ry  system  have not m e t the con­
stitu tional req u irem en ts  of the F ourteen th  A m end­
m en t; they should try  o ther tools.

6. In  constructing the orig inal a n d  rev ised  decrees, 
the C ourt gave g re a t w eight to the 1965 and 1966 HEW 
Guidelines. These G uidelines estab lish  m inim um  
s tan d ard s  c learly  app licab le  to d isestablishing state- 
sanctioned segregation . These Guidelines and our de­
cree a re  w ithin the decisions of th is Court, com ply 
w ith the le tte r and sp irit of the Civil R ights A ct of 
1964, and m ee t the  requirem ents of the U nited S ta tes 
Constitution. Courts in th is c ircu it should give g rea t 
w eight to fu tu re  HEW  G uidelines, when such guide­
lines a re  applicable to th is c ircu it and  a re  w ithin law ­
ful lim its. We express no opinion as to the  applicabil­
ity  of HEW  Guidelines in rac ia lly  im balanced  s itua­
tions such as occur in som e o ther c ircu its  w here  it is 
contended th a t s ta te  action  m ay  be found in s ta te  tol­
erance  of de facto  segregation  o r in such action  as 
the  draw ing of a ttendance  boundaries based  on a 
neighborhood school system .

The Court rea ffirm s the rev e rsa l of the judgm ents 
below and  the  rem and  of each case for en try  of the 
decree a ttached  to th is  opinion.

The m andate  will issue im m ediately .



8 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

CORRECTED D EC R EE.

It is O RD ERED , ADJUDGED and D EC R EED  th a t 
the defendants, the ir agents, officers, employees and 
successors and  all those in ac tive  concert and par­
ticipation w ith them , be and they  a re  perm anently  
enjoined from  discrim inating  on the basis  of race  O'r 
color in the operation  of the school system . As 
set out m ore particu la rly  in  the  body of the  decree, 
they  ^ a l l  take  a ffirm ative  action to d isestablish  all 
school segregation  and to e lim inate  the  effects of the 
dual school sy s te m :

I.

SP E E D  OF DESEGREGATION

Com m encing w ith the  1967-68 school year, in ac­
cordance w ith  th is decree, all g rades, including kin­
dergarten  grades, shall be desegregiated and  pupils 
assigned to schools in these g rades w ithout reg a rd  to 
race  or color.

II.

EX ERC ISE OF CHOICE

The following provisions Shall apply to all g rades:

(a) Who M ay E xercise  Choice. A choice of schools 
m ay  be exercised by a p a re n t or o ther adult person 
serv ing  a s  th e  s tuden t’s parent. A studen t m ay  ex er­
cise his own choice if he (1) is exercising a choice



U. S., et al. V.  Jeff.  County Bd. of Educ., et al. 9

for the n inth  o r a  h igher g rade, or (2) has reached  
the age of fifteen at the tim e of th e  exercise of choice. 
Such a  choice by a s tuden t is controlling unless a dif­
feren t choice is exercised for h im  by his p a ren t or 
other adu lt person serving as his p a re n t during the 
choice period  o r a t such la te r  tim e as the  studen t ex­
erc ises a  choice. E ach  refe rence  m  th is  decree to a  
studen t’s exercising a choice m eans the exercise 
of the  choice, as appropria te , by a p a re n t o r such 
o ther adult, o r by the studen t himseK.

(b) Annual E xerc ise  of Choice. All students, both 
white and  Negro, shall be requ ired  to exercise a  free 
choice of schools annually.

(c) Choice Period. The period for exercising 
choice shall com m ence M ay 1, 1967 and end June  1, 
1967, and in subsequent y ears  shall com m ence M arch 
1 and end M arch  31 preceding the school y ear for 
which the  choice is to be exercised. No studen t or 
prospective student who exercises his choice w ithin 
the choice period shall be given any preference  be­
cause of the  tim e  w ithin the period w hen such  choice 
w as exercised.

(d) M andatory E xercise  of Choice. A failu re  to 
exercise a  choice w ithin the choice period shall not 
preclude any studen t from  exercising a  choice a t any 
tim e before he com m ences school for the y ear w ith 
respec t to  w hich the  choice applies, bu t such choice 
m ay  be subordinated to the choices of students who 
exercised choice before the expiration of the  choice



10 U. S., et al. V. Jeff.  County Bd. of Educ., et al.

period. Any studen t wiho h a s  not exercised h is  choice 
of school w ithin a w eek a f te r  school opens shall be 
assigned  to  the  school n e a re s t his hom e w here space 
is available under s tan d a rd s  for determ ining avail­
ab le space w hich shall be applied uniform ly through­
out the system .

(e) Public Notice. On or w ithin a  w eek before 
the date the choice period opens, the defendants shall 
a rran g e  for the conspicuous publication of a notice 
describ ing the provisions of this decree in the new s­
p ap er m ost generally  c ircu lated  in the com m unity. 
The tex t of the notice shall be  substantia lly  s im ila r to 
th e  tex t of the explanatory  le tte r sen t hom e to paren ts. 
Pub lication  as a legal notice will not be sufficient. 
Copies of th is notice  m u st also be given a t  th a t 
tim e to all rad io  and television stations located  in the 
com m unity. Copies of th is  decree shall be posted in 
each  school in the school system  and a t the office of 
the Superin tendent of Education.

(f) M ailing of E xp lanatory  L e tters  and Choice 
Form s. On the firs t day of the  choice period there  
shall be d istribu ted  by first-c lass  m ail an  exp lanatory  
le tte r and a choice form  to the p a ren t (or o th e r adult 
person  acting as paren t, if known to the defendants) 
of each student, together w ith a re tu rn  envelope ad­
dressed to the Superintendent. Should th e  defendants 
satisfac to rily  dem onstrate  to the court th a t they a re  
unable to com ply w ith the requ irem en t of distributing 
the  exp lanatory  le tte r and choice form  by first-class



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 11

m ail, they  shall propose an alternative m'ethod which 
will m axim ize individual notice, i.e., personal notice 
to p a ren ts  by delivery  to the pupil w ith adequate  pro­
cedures to insure the delivery  of the notice. The text 
for the  exp lanatory  le tte r and choice fo rm  shall es­
sen tia lly  conform  to the  sam ple le tte r and choice 
form  appended to th is decree.

(g) Extra Copies of the Explanatory Letter and 
Choice Form . E x tra  copies of the  exp lanato ry  le tte r 
and. choice fo rm  shall be free ly  available to paren ts, 
students, prospective students, and the general public 
a t each  school in the system  and a t the office of the 
Superintendent of E ducation  during the tim es of the 
y e a r w hen such schools a re  usually  open.

(h) Content of Choice Form . E ach  choice form  
shall se t fo rth  the nam e and location and the g rades 
offered a t  each  school and m ay  req u ire  of the  person 
exercising the  choice the  nam e, address, age of s tu ­
dent, school and  grade currently  or m ost recen tly  a t­
tended by  the  student, the school chosen, the signa­
tu re  of one p a ren t or other adult person serv ing  as 
paren t, or w here appropria te  the s ignatu re  of the stu­
dent, and  the identity  of the  person signing. No state­
m en t of reasons for a p a rticu la r choice, o r any  o ther 
inform ation, or any w itness or other authentication, 
m ay be  requ ired  or requested , w ithout approval of 
the court.

(i) R eturn  of Choice Form . A t the  option of the  
person com pleting the  choice form , the  choice m ay



12 U. S., et al. V.  Jeff.  County Bd. of Educ., et al.

be re tu rn ed  by m ail, in person, o r by m essenger to 
any schoo'l in the school system  or to the office of the 
Sup er in tenden t.

(j) Choices not on O fficial Form . The exercise of 
choice m ay also be m ade by the' subm ission  in like 
m an n er of any  other w riting  w hich contains in fo rm a­
tion sufficien t to identify  the  studen t and indicates 
th a t h e  h a s  m ad e  a choice of school.

(k) Choice F orm s Binding. W hen a  choice form  
has once been  subm itted  and the choice period has ex­
pired , the choice is binding for the en tire  school year 
and m ay  not be changed except in cases of paren ts  
m aking d ifferen t choices from  th e ir  children under 
the conditions se t fo rth  in p a ra g rap h  II (a) of th is 
decree and  in exceptional cases w here, absen t the 
consideration of race, a change is educationally  
called fo r or w here com pelling hardsh ip  is shown by 
the student. A change in fam ily  residence from  one 
neighborhood to ano ther shall be considered an ex­
ceptional case for purposes of th is p a rag rap h .

(l) P reference in A ssignm ent. In  assigning stu ­
dents to schools, no p re fe ren ces  shall be given to any 
student fo r p rio r attendance a t a  school and, except 
w ith the approval of court in ex trao rd in ary  c ircum ­
stances, no choice shall be  denied fo r any reason  other 
than  overcrow ding. In  case of overcrowding' at any 
school, p reference shall be given on the basis of the 
proxim ity  of the school to the hom es of the  students 
choosing it, w ithout reg a rd  to race or color. S tandards



U. S., et al. V. Jeff. County Bd. of Educ., et al . 13

for determ ining overcrovv^ding ahall be applied uni­
form ly throughout the system .

(m ) Second Choice w here F irst Choice is Denied. 
Any student whose choice is denied m u st be prom ptly  
notified in w riting and given h is choice of any school 
in the  school system  serving h is g rade  level w here 
space is  available. The studen t shall have seven days 
from  the receip t of notice of a denial of f irs t choice in 
which to exercise a second choice.

(n) Transportation. W here tran spo rta tion  is gen­
erally provided, buses m u st be routed to the  m ax i­
m um  extent feasib le in ligh t of the geographic d is tri­
bution of students, so as to serve each studen t choos­
ing any school in tlie system . E very  student choosing 
either the fo rm erly  w hite o r the fo rm erly  Negro 
school n ea res t his residence m ust be transpo rted  to 
the school to w hich he is assigned under these pro­
visions, w hether or not it is his f irs t choice, if that 
school is  sufficiently d is tan t from  his hom e to m ake 
him  eligible for transpo rta tion  under generally  appli­
cable transpo rta tion  rules.

(o) O fficials not to Influence Choice. At no tim e 
shall any  official, teacher, or em ployee of the school 
system  influence any paren t, o r o ther adult person 
serving as  a paren t, or any student, in the exercise 
of a choice or favor or penalize any person  because of 
a choice m ade. If the defendant school board  em ­
ploys professional guidance counselors, such persons 
shall base their guidance and counselling on the in­
dividual s tuden t’s p a rticu la r personal, academ ic,



14 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

and vocational needs. Such guidance and counselling 
by te ach e rs  as well as professional guidance counsel­
lors shall be available to a ll s tuden ts w ithout regard  
to race o r color.

(p) Protection of Persons E xercising  Choice. W ith­
in th e ir authority  school officials a re  responsible for 
the pro tection  of persons exercising righ ts under or 
otherw ise affected  by th is  decree. They shall, w ithout 
delay, tak e  app rop ria te  action  w ith re g a rd  to  any  stu ­
dent or staff m em b er who in te rfe res  w ith the success­
ful operation  of the plan. Such in terference  shall in­
clude harassm en t, in tim idation, th rea ts , hostile words 
or acts, and s im ila r behavior. The school board  shall 
not publish, allow, or cause to be published, the nam es 
or add resses of pupils exercising righ ts o r otherwise 
affected by th is decree. If officials of the  school sys­
tem  a re  not able to provide sufficient protection, they 
shall seek w hatever assistance is necessary  from  
other app ro p ria te  officials.

III.

PRO SPECTIV E STUDENTS

E ach  prospective new  studen t shall be requ ired  to  
exercise a choice of schools before or a t the tim e of 
enrollm ent. All such studen ts known to defendants 
shall be fu rn ished  a copy of the  p rescribed  le tte r to 
parents, and choice form , by m ail or in person, on 
the d a te  the  choice period opens or as soon th e rea fte r 
as the school system  learns th a t he p lans to enroll.



U. S., et al. V.  Jejj. County Bd. of Educ., et al. 15

W here th e re  is no p re-reg istra tion  p rocedure  for new­
ly entering students, copies of the choice fo rm s shall 
be availab le  a t the Office of the Superintendent and 
a t each  school during the tim e  the school is usually 
open.

IV.

TRA N SFERS

(a) Transfers for S tudents. Any student shall 
have the righ t a t the beginning of a new  te rm , to 
tran sfe r to any school from  w hich he w as excluded or 
would otherw ise be excluded on account of his race  or 
color.

(b) Transfers for Special Needs. Any student 
who requ ires a course of study not offered a t the 
school to  which he  h as  been assigned m ay  be p e rm it­
ted, upon h is w ritten  application, a t the beginning of 
any school te rm  or sem ester, to tran sfe r to  another 
school which offers courses for his special needs.

(c) Transfers to Special Classes or Schools. If 
the defendants operate  and m ain ta in  special classes 
or schools fo r physically  handicapped, m en ta lly  re­
tarded , o r gifted children, the defendants m ay  assign 
children to such schools or classes on a basis related 
to th e  function of the special class or school th a t is 
o ther than  freedom  of choice. In no event shall such 
assignm ents be m ade on the  basis of race  or color or 
in a m an n er whidh tends to perpetuate  a dual school 
system  based on race  or color.



16 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

V.

SERVICES, FACILITIES, ACTIVITIES AND PRO ­
GRAMS

No studen t shall be seg rega ted  or d iscrim inated 
against on account of race  o r color in any service, 
facility , activ ity , or p rog ram  (including tran sp o rta ­
tion, a th le tics , or o ther ex tracu rricu la r activ ity) that 
m ay be conducted or sponsored by th e  school in which 
he is enrolled. A studen t attending school for the  firs t 
tim e  on a desegregated  basis m ay  not be sub jec t to 
any disqualification or w aiting period for p a rtic ip a ­
tion in activities and p rog ram s, including athletics, 
w hich m igh t otherw ise app ly  because he is a tran sfe r 
or new ly assigned  studen t except .that such tra n s ­
ferees shall be  subject to longstanding, non-racially 
based  ru les  of city, county, or s ta te  athletic associa­
tions dealing w ith the eligibility of tran sfe r students 
for athletic contests. All school use or school-spon­
sored use of ath letic  fields, m eeting room s, and  all 
o ther school re la ted  services, facilities, activities, and 
p ro g ram s such as com m encem ent exercises and p a r ­
ent-teacher m eetings which a re  open to persons other 
th an  enrolled s tuden ts, shall be open to  all persons 
w ithout reg ard  to race  or color. All special education­
al p ro g ram s conducted by the defendan ts shall be 
conducted w ithout reg a rd  to. ra c e  or color.



U. S., et al. V. Jeff.  County Bd.. of Educ., et al. 17

VI.

SCHOOL EQUALIZATION

(a) In ferior Schools. In  schools heretofore m ain ­
ta ined  for Negro students, the defendants shall take 
prom pt steps necessa ry  to provide physical facili­
ties, equipm ent, courses of instruction, and instruc­
tional m aterials of quality  equal to th a t provided in 
schools previously m ain ta ined  for w hite students. 
Conditions of overcrow ding, as de term ined  by pupil- 
teacher ra tios and  pupil-classroom  ratios shall, to the 
extent feasible, be d istribu ted  evenly betw een schools 
fo rm erly  m ain ta ined  for Negro students and those 
form erly  m aintained for w hite students. If for any 
reason  i t  is not feasible to im prove sufficiently any 
school form erly  m aintained for Negro students, w here 
such im provem ent would otherw ise be requ ired  by 
this p a rag rap h , such school shall be closed as soon 
as possible, and students enrolled in the school 
shall be reassigned  on the basis of freedom  of choice. 
By October of each  year, defendants shall rep o rt to 
the Clerk of the Court pupil-teacher ra tios, pupil-class­
room  ratios, and per-pupil expenditures both as to 
opera ting  and capital im provem ent costs, and shall 
outline the steps to be taken  and the tim e within 
which they shall accom plish the equalization of such 
schools.

(b) R em ed ia l Program s. The defendants shall p ro­
vide rem ed ial education p rog ram s which p e rm it s tu ­
dents attending or who have previously attended seg-



18 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

regated  schools to overcom e past inadequacies in 
th e ir education.

VII.

NEW  CONSTRUCTION

The defendants, to  the extent consistent w ith the 
p roper operation of the school system  as a whole, 
shall locate  any new school and substan tia lly  expand 
any existing schools w ith the objective of ©radicating 
the vestiges of the dual system .

VIII.

FACULTY AND STAFF

(a) F aculty  E m ploym en t. R ace or color shall not 
be a fac to r in the hiring, assignm ent, reassignm ent, 
prom otion, demotion, or d ism issal of teach ers  and 
other professional staff m em bers, including student 
teachers, except th a t race m ay  be tak en  into ac ­
count for the purpose of counteracting or correcting  
the effect of the segregated  assignm ent of facu lty  and 
staff in the dual system . Teachers, p rincipals, and 
staff m em bers shall be assigned to schools so th a t the 
faculty  and staff is not com posed exclusively of m em ­
bers  of one race. W herever possible, te ach e rs  shall 
be assigned so th a t m ore th an  one teach e r of the m i­
nority  race (white or Negro) shall be on a desegre­
gated  faculty . D efendants shall take positive and af­
firm ative steps to accom plish the desegregation of 
their school faculties and to achieve substan tia l de-



U. S., et al. V. Jeff. County Bd. of Educ., et al. 19

segregationi of faculties in as  m any of the schools as 
possible for the  1967-68 ischool y e a r notw ithstanding 
th a t teacher con tracts  for the 1967-68 or 1968-69 school 
y ears  m ay have a lready  been signed and approved. 
The tenure  of teachers in  the system  shall not be used 
as an excuse for fa ilu re  to com ply w ith  th is provision. 
The defendants shall estab lish  as an  objective tha t 
the p a tte rn  of teach er assignm ent to any p articu la r 
school not be identifiable as ta ilo red  for a h eav y  con­
centration of e ither Negro or white pupils in the 
school.

(b) D ism issals. T eachers and  other professional 
staff m em bers m ay  not be d iscrim inatorily  assigned, 
dism issed, dem oted, or passed  over for retention, 
prom otion, or reh iring , on the ground of race or color. 
In any  instance w here one or m ore teachers o r other 
professional staff m em bers are  to be d isplaced as a 
resu lt of desegregation, no staff vacancy in the  school 
system  shall be filled through rec ru itm en t from  out­
side the  system  unless no such displaced staff m em ­
ber is qualified to fill the vacancy. If, as a resu lt of 
desegregation, there  is to be a reduction in the  to tal 
professional staff of the school system , the qualifica­
tions of all staff m em bers in th e syshetrL-shaU.,bemiial-- 
ua ted  in selecting the staff m em ber to be released 
w ithout consideration of race  or color. A repo rt con­
taining any such proposed dism issals, and the re a ­
sons therefor, shall be filed w ith the Clerk of tiie 
Court, serving copies upon opposing counsel, w ithin 
five (5) days a fter such dism issal, demotion, etc., as 
proposed.



20 U. S., et al. V.  Jeff.  County Bd. of Educ., et al.

(c) P ast A ssignm ents. The defendants shall take 
steps to assign  and reass ig n  teachers and other p ro­
fessional staff m em bers to elim inate the effects of 
the dual school system .

IX.

B EPO R TS TO THE COURT

(1) R eport on Choice Period. The defendants 
shall serve upon the opposing p a rtie s  and file w ith the 
C lerk of tihê  Court on or before A pril 15, 1967, and on 
or before June 15, 1967, and in each subsequent year 
on o r before June  1, a  rep o rt tabu la ting  by race the 
num ber of choice applications and tran sfe r applica­
tions received for enrollm ent in each g rad e  in  each 
school in the system , and the' num ber of choices and 
transfers granted  and the num ber of denials in each 
grade of each school. The report shall also s ta te  any 
reasons re lied  upon in denying choice and shall tab­
ulate , by school and by race  of student, the num ber 
of choices and transfers  denied for each  such reason.

In  addition, the rep o rt shall show the percen tage 
of pupils actually  tra n sfe rre d  or assigned from  seg- 
re giite d : g r a d e s  o r tô  .schools a ttended  predom inantly  
by puphs of \a race  other than  the race  of the  appli­
cant, for a ttendance during the  1966-67 school year, 
w ith com parable da ta  for the 1965-66 school year. 
Such additional inform ation shall be included in the 
rep o rt served upon opposing counsel and filed w ith 
the Clerk of the Court.



U. S., et al. V. Jeff.  County Bd. of Educ., et al. 21

(2) R eport A fter  School Opening. The defend­
ants shall, in addition to repo rts  elsew here described, 
serve  upon opposing counsel and  file w ith  th e  Clerk 
of th e  C ourt w ithin 15 days a fte r the  opening of 
schools for the fa ll sem este r of each  y ear, a rep o rt 
setting  fo rth  the following inform ation:

(i) The nam e, address, g rade, school of 
choice and school of present a ttendance of 
each  studen t who h as  w ithdraw n or requested  
w ithdraw al of h is choice of school o r who has 
tra n s fe rre d  a fte r the  s ta r t  of the school year, 
together w ith a  description of any  action taken 
by  the defendants on his request and  the  re a ­
sons therefor.

(ii) The num ber of facu lty  vacancies, by 
school, th a t  h av e  occu rred  o r been filled 
by  the  defendants since the order of th is  Court 
o r  the la te s t rep o rt subm itted  pursuan t to this 
sub-paragraph . This rep o rt shall state the race  
of the  te ac h e r em ployed to  fill each such va­
cancy landi indicate w hether such  te ach e r is 
newly em ployed or w as tra n s fe rre d  from  With­
in the  system . The tabu la tion  of the  num ber of 
tra n s fe rs  w ithin the  system  shall indicate the  
schools from  which and to w hich the tra n s fe rs  
w ere m ade. The rep o rt shall also se t fo rth  the 
num ber of facu lty  m em bers of each race  a s ­
signed to  each school for the cu rren t year.

(iii) The num ber of students by race, 
each  g rad e  of each school.

in



22 17. S., et al. v. Jejj. County Bd. of Educ., et al.

EXPLANATORY LE TT ER  

(School System  N am e an d  Office A ddress)

(D ate Sent)
D ear P aren t:

All g rad es  in our school system  will be desegre­
gated  nex t year. Any studen t who will be en tering  
one of these g rades nex t year m ay  choose to attend 
any school in our system , reg ard less  of w hether th a t 
school w as fo rm erly  all-white or all-Negro. I t  does 
not m a tte r  w hich school your child is a ttending  th is 
year. You and your child m ay  select any  school you 
wish.

E v ery  student, w hite and Negro, m u st m ake a 
choice of schools. If a child is entering the n in th  or 
h igher g rade , o r  if the child is fifteen years old or old­
er, he m ay  m ake the choice him self. O therw ise a  p a r ­
ent o r o ther ad u lt serving as p a re n t m u st sign the  
choice form . A child enrolling in  the school sy stem  for 
the  f irs t tim e m u st m ake a  choice of schools before or 
at the tim e  of his enrollm ent.

The fo rm  on w hich th e  choice should be m ade is a t­
tach ed  to  th is  le tte r. I t  should be com pleted and re ­
tu rned  by  Ju n e  1, 1967. You m ay m ail it in the en­
closed envelope, or deliver it by  m essenger or by 
hand  to any school p rinc ipal or to the Office of the 
Superintendent a t  any tim e betw een M ay 1 and June 
1. No one m ay  requ ire  you to re tu rn  your choice form  
before  Ju n e  1 an d  no p reference  is given for re tu rn ­
ing th e  choice fo rm  early .



U. S., e t  a l .  V.  Jeff.  County Bd. of Educ., et a l . 23

No principal, teacher or o ther school official is p e r­
m itted  to influence anyone in m aking  a choice or to 
requ ire  early  re tu rn  of the  choice form . No one is p e r­
m itted  to favo r or penalize any  studen t or o ther p e r­
son because of a choice m ade. A choice once m ade 
cannot be changed except for serious hardship .

No child will be denied his choice unless fo r re a ­
sons of overcrow ding a t the school chosen, in which 
case children living n ea res t the  school will have  p re f­
erence.

T ransporta tion  will be provided, if reasonably  pos­
sible, no m a tte r  w hat school is chosen. [Delete if the 
school system  does not provide transporta tion .]

Y our School B oard an d  the school staff w ill do 
everything w e can  to  see to i t  th a t the  rig h ts  of all 
students a re  pro tected  and  th a t desegregation of our 
schools is carried  out successfully.

Sincerely yours,

Superintendent.

CHOICE FORM

This fo rm  is provided for you to choose a school for 
your child to a ttend  next year. You have 30 d ay s  to 
m ake your choice. It does not m atte r w hich school 
your child attended  la s t y ear, and does not m a tte r  
w hether the  school you choose w as fo rm erly  a  w hite 
or Negro school. This fo rm  m ust be m ailed  or brought



24 17. S., et al. v. Jeff.  County Bd. of Educ., et al.

to th e  p rinc ipa l of any school in the system  or to  the 
office of the  Superintendent, [address], by  June 
1, 1967. A choice is req u ired  for each child.

Name of c h i ld ..............................................................................
(Last) (First) (Middle)

A d d ress ..........................................................................................

N am e of P a re n t or o ther
adult serving as parent .............................................................

If child is entering f irs t g rade, date of b irth :

(Month) (Day) (Year)
G rade child is entering . . .  

School attended  la s t y ea r

Choose one of the following schools by m ark ing  an  X 
beside the nam e.

N am e of School G rade Location

Signature
Date

To be filled in by Superintendent: 
School Assigned .

1 In subsequent years the dates in both the explanatory letter 
and the choice form should be changed to conform to the choice 
period.



U. S., et al. V.  Jeff.  County Bd. of Educ., et al. 25

GEWIN, C ircuit Judge, w ith whom  Judge Bell con­
curs, DISSENTING:

The opinioh of the m a jo rity  and the proposed de­
cree  a re  long, com plicated, som ew hat am biguous 
and ra th e r  confusing. The p e r cu riam  opinion of the 
m ajo rity  of the en banc court does not substantia lly  
clarify , m odify o r  change anything said  in the orig­
inal opinioh filed D ecem ber 29, 1966. Only m inor and 
inconsequential changes w ere m ad e  in the proposed 
decree.^ In  m y  view both the opinion and decree con­
stitu te  an  ab ru p t and unauthorized dep artu re  from  
the m a in s tream  of jud ic ia l thought both of this C ir­
cuit and a  hum ber of o ther C ircuits. I am  unable to 
ag ree  e ither w ith  the opinion or the decree, e sp e ­
cially  those provisions dealing w ith  the following: (1) 
de facto  and de ju re  segregation ; (2) the guidelines;
(3) the proposed decree; (4) a ttendance  percen tages, 
proportions, and freedom  of choice; and (5) enforced 
in tegratioh .

De Facto and De jure Segregation

The thesis  of the m ajo rity , lik,e M inerva (A thena) 
of the  classic  m yths,^ w as spaw ned full-grown and

 ̂ “The opinion” and “the decree” as used herein refer to the 
opinion and decree filed in these cases by the three judge 
panel on December 29, 1966, wherein two of the judges agreed 
and one dissented. Of necessity, references to page numbers 
of the opinion refer to the slip opinion.

 ̂ See Gayley, The Classic Myths, (Rev. ed. 1939) page 23
“She sprang from the brain of Jove, agleam with panoply 
of war, brandishing a spear and with her battle-cry 
awal^ening the echoes of heaven and earth,”



26 U. S., et a l .  V.  Jeff.  County Bd. of Educ., et a l .

fu ll-arm ed. I t  h as  no su b stan tia l legal ancestors.® 
We m u st w a it to see w h a t progeny it will produce.

While professing to fashion a  rem edy  under the 
benevolent canopy of the F ed era l Constitution, the 
opinion and  the decree  a re  couched in  divisive te rm s  
and  proceed  to dichotom ize the  union of s ta tes into 
two sep ara te  and d istinc t p a rts . B ased  on such re a ­
soning the Civil R ights A ct of 1964 is s tripped  of its 
national ch arac te r, the national policies there in  
s ta ted  a re  nullified, and  in effect, the  rem edial p u r­
poses of the A ct a re  held to apply  to approx im ately  
one-third of the s ta tes of the union and to a  m uch 
sm alle r p e rcen tage  or proportion of the to ta l popu­
lation of the country. I am  unable to believe th a t 
the  Congress had  any such in tent. If it did, a  serious 
constitu tional question would be p resen ted  as to the 
valid ity  of the en tire  A ct under our concepts of A m er­
ican  constitu tional governm ent.

The Negro children in  Cleveland, Chicago, Los 
Angeles, Boston, New York, o r in any o ther a re a  of 
the nation  w hich the  opinion classifies u n d e r de facto 
segregation , would receive little  com fort from  the a s ­
sertion  th a t the  ra c ia l m ake-up of th e ir  school system  
does not vio late  their constitu tional righ ts because

® However, compare the doctrine of the majority and the 
theme of an article in the Virginia Law Review entitled “Title 
VI, The Guidelines and School Desegregation in the South”, 
by James R. Dunn. Virginia Law Review, Vol. 53, page 42 
(1967). According to footnote 85 of the law review article, 
the majority opinion was released “as this article was going 
to press.” Mr. Dunn is Legal Adviser, Equal Educational 
Opportunities Program, United States Office of Education, 
HEW, Washington, D.C.



U. S., et al. V.  Jeff.  County Bd. of Educ., et al. 27

they  w ere  born  into a de facto  society, w hile the 
exact sam e ra c ia l m ake-up of the  school system  in 
the  17 Southern and bo rder s ta tes  vio lates the con­
stitu tional righ ts of th e ir coun terparts, o r even their 
blood b ro thers , because they  w ere  born  into a  de ju re  
society. All ch ildren  everyw here in the nation  a re  
p ro tec ted  by the  Constitution, and  tre a tm e n t which 
violates their constitu tional righ ts  in one a re a  of the 
country, also v iolates such constitu tional rig h ts  m  
ano ther a rea . The details of the rem ed y  to be applied, 
how ever, m ay  v a ry  w ith  local conditions. B asically , 
a ll of them  m u st be given the sam e constitutional 
protection. Due process and  eq u al pro tection  will not 
to le ra te  a  low er standard , and  su re ly  not a  double 
s tandard . The prob lem  is  a na tional one.

R egard less  of our decrees, in spite of our hopes and 
notw ithstanding our disappointm ents, th e re  is no in­
fallible and  certa in  process of a lchem y w hich will 
e rase  decades of h isto ry  and tran sm u te  a  d istastefu l 
set of c ircum stances into a  utopia of perfection. All 
who have studied the sub jec t recognize th a t d iscrim ­
inato ry  p rac tices  did not a rise  from  a single cause. 
Such p rac tices  had  th e ir origin and b irth  in social, 
economic, educational, legal, geographical and nu­
m erous o ther considerations. These fac to rs  tend to 
be self-perpetuating. We m u st e rad ica te  them , and I 
have the fa ith  th a t they  will be e rad ica ted  and elim ­
inated  by responsible and responsive governm ental 
agencies acting  p u rsuan t to the best in te rests  of the 
com m unity. There is no social antibiotic w hich will



28 U. S., et al. V. Jeff.  County Bd. of Educ., et al.

effect a  sudden or overnight cure. I t is not possible 
to specifically  fix the b lam e or to a ttrib u te  the origin 
of d iscrim inato ry  p rac tices  to isolated  causes, and 
it is su re ly  inappropria te  to undertake  to fa s ten  guilt 
upon ahy segm ent of the population. In  th is  a re a  of 
our n a tion ’s h istory  em inent histo*rians still dis­
ag ree  as to causes and effects. Some studies have 
p laced  em phasis on the slave tra d e r  or the im porter 
of slaves, o thers have b lam ed the slave holder, while 
o thers have tried  to tra ce  the guilt back  to trib a l 
ch ieftans in A frica. P e rh a p s  the m ost com m on under­
standing  am ongst all the h isto rians and students of 
the problem  is the conclusion th a t causes cannot be 
isolated  and responsibility  cannot be lim ited  to a  p a r ­
ticu la r group. W hatever the cause or explanation, it 
is c lea r th a t the responsibility  rests  on m ahy  ra th e r  
than  few.

A t th is tim e, a lm ost 13 y e a rs  a fte r the decisions in 
Brow n v. Board of Education  (1954) 347 U.S. 483, 98 
L.ed. 873 (Brow n I) and Brow n v. Board of Education  
(1955) 349 U.S. 294, 99 L.ed. 1083 (Brown II),  there  
should be no doubt in the  m inds of anyone th a t com ­
pulsory  segregation  in the public school system s of 
this nation  m ust be elim inated. Negro ch ildren  have 
a personal, p resen t, and unqualified constitutional 
rig h t to a ttend  the public schools on a  rac ia lly  non- 
d iscrim inato ry  basis.

A lthough espousing the cause of un iform ity  and a s ­
serting  th e re  m u st not be one law  fo r A thens and 
ano ther for Rom e, the opinion does Pot follow th a t 
thesis o r principle. One of the chief difficulties



U. S., et al. V. Jeff. County Bd. of Educ., et al. 29

w hich I encounter w ith the opinion is th a t it con­
cludes th a t the Constitution m ean s one thing in 17 
s ta tes  of the nation and som ething else in the  rem ain ­
ing sta tes. This is done by a  ra th e r  ingenious though 
illogical distinction between the te rm s  de facto  seg­
regation  and de ju re  segregation. While the opinion 
recognizes the evils com m on to both types, it relies 
heavily  on background fac ts  to justify  the conclusion 
th a t the evil will be corrected  in one a re a  of the n a ­
tion and not in the other. In m y view the Constitution 
cannot be bent and tw isted in such a m an n er as to 
justify  or support such an incongruous result. The 
very  subj ect m a tte r  under consideration tends to nul­
lify the assertion th a t the constitutional prohibition 
against segregation  should be applied in 17 s ta tes  
and not in the re s t of the nation.

Legislative h istory  c learly  supports the idea th a t 
no distinction should be m ade v/ith respect to the 
various s ta tes  in dealing w ith the problem . Senator 
P asto re  w as one of the p rincipal spokesm en who 
handled this legislation. He gave the follov/ing ex­
planation:

“ F ran k ly  I do not see how we could have 
gone any  fu rther, to be fa ir  . . . Section 602 
of Title VI, not only requ ires the agency to 
p rom ulgate  rules and regulations, but all 
p rocedure m u s t be in accord  w ith  these 
ru les and regulations. They m ust have 
broad  scope. They m ust be national. They 
m ust apply  to all fifty states. We could not



30 U. S., et al. V. Jeff.  County Bd. of Educ., et al.

draw  one ru le  to apply  to the S ta te  of M issis­
sippi, ano ther ru le  to apply  to the S ta te  of 
A labam a, and ano ther ru le  to apply  to the 
S ta te  of Rhode Island. T here m u st be only one 
ru le , to apply  to every  s ta te . F u rth e r, the 
P resid en t m u s t approve the ru le .” (110 Cong. 
Rec. 7059, A pril 7, 1964)

“ MR. PASTORE. . . We m ust do w hat Title 
VI p rovides; and we could do it in no m ilder 
fo rm  th an  th a t now provided by Title VI. The 
Senator from  Tennessee says, ‘Let us read  
th is title ’. I say  so, too. W hen we read  these 
two pages, we understand  th a t the whole phil­
osophy of T itle VI is to prom ote volun tary  
com pliance. I t is w ritten  righ t in the  law. 
T here  shall be the volun tary  com pliance as 
the  firs t step, and then the second step  they 
m u st inaugura te  and prom ulgate , ru les th a t 
have a  national effect, not a  local effect. 
They shall apply to Tennessee, to Louisiana, 
to Rhode Island, in equal fash ion .” (110 Cong. 
Rec. 7066, A pril 7, 1964)

In  connection w ith  the distinction w hich the opin­
ion undertakes to m ake, it is p e rtin en t to observe the 
following strong and unequivocal pronouncem ent in 
the v e ry  beginning of the decision in Brown II:

“All provisions of federal, sta te , or local law  
requiring or perm itting  such discrim ination  
m u st yield to this principle. T here  rem ains



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 31

for consideration the m anner in w hich relief 
is to be accorded .” (E m phasis added) (page 
298)

It should be observed th a t all public school seg reg a­
tion w as de ju re  in the b road  sense of th a t te rm  p ri­
or to the  f irs t Brown  decision, in th a t segregation 
w as perm itted , if not required , by law.

It is undoubtedly tru e  th a t any problem  which 
reaches national proportions is often generated  by 
vary ing  and different custom s, m ores, laws, habits 
and m anners. Such differences in the causes which 
contributed to the creation  and existence of the 
p roblem  in the firs t instance, do not justify  the appli­
cation of a fundam ental constitutional princip le in 
one a re a  of the nation and a fa ilu re  to apply  it in an ­
other.

While all the au thorities recognize the  existence 
and operation of d ifferent causes in the h isto rica l 
background of rac ia l segregation, th e re  a re  also 
m ark ed  sim ilarities. This fac t is noted in the recen t­
ly re leased  study by the U nited S tates Com m ission 
on Civil R ights, RACIAL ISOLATION IN THE 
SCHOOLS, 1967, Vol. I (pp. 39, 59-79). In  discussing 
the sub ject the  following observation is m ade early  
in the re p o r t;

“ Today it [racia l isolation or segregation] 
is a ttrib u tab le  to rem nan ts  of the dual school 
system , m ethods of studen t assignm ent, re s ­
idential segregation, and to those discretion-



32 U. S., et al .  V.  Jejf. County Bd. of Educ., et al .

a ry  decisions fam ilia r in the North—site se­
lection, school construction, tran sfe rs , and 
the determ ination  of w here to p lace  students 
in the event of overcrow ding.” (E m phasis 
added)

In  its su m m ary  the  Comimissien notes th a t the causes 
of rac ia l isolation or school segregation  a re  com ­
plex and self-perpetuating. I t speaks of the N ation 's  
m etropolitan  a reas  and re fe rs  to social and eco­
nomic fac to rs  as well as geographical ones. A ccord­
ing to the sum m ary , not only do sta te  and local gov­
ernm ents sh are  the blam e, it is ca tegorica lly  a sse rt­
ed th a t “ The Federal G overnm ent also sh ares in 
this responsib ility .” (E m phasis added) P e rtin en t 
s im ilarities in the problem , applicable to the  en tire  
nation, a re  forcefully a sse rted  in the final sentence 
of the Com m ission’s. S u m m ary ;

“In  the North, w here school segregation  w as 
not generally  com pelled by law, these [dis­
crim inatory] policies and  p rac tices  have 
helped to increase  rac ia l separation . In  the  
South, w here until the Brown decision in 1954 
school segregation  w as requ ired  by law, s im ­
ilar policies and practices  have contributed to 
its perp e tu a tio n .” (E m phasis added)

By a process of syllogistic reasoning based  on fa ­
tally  defective m ajo r p rem ises the opinion has dis­
to rted  the m eaning of the te rm  segregation  and has 
segm ented its  m eaning  into de facto and de ju re  seg­
regation. All segregation in the South is classified as



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 33

de jure^ while segregation  in the N orth is classified 
as de facto. D ifferent ru les apply to the different 
types of segregation. The South is heavily  con­
dem ned. The opinion approaches the p roblem  on a 
sectional basis and fails to consider the sub jec t ex­
cept on a sectional or regional basis. T here  a re  m any  
references to “ the eleven” Southern s ta te s  and “ the 
seven” border sta tes. This a re a  of the  nation is v a ri­
ously ch arac te rized  as “The eleven s ta tes  of the Con­
federacy ,” “ the en tire  region encom passing the 
southern and border s ta te s” , “w earing  the badge of 
s lav e ry ” , and “ a rp a rth e id ” . F inally , the opinion 
concludes th a t the two types of segregation  a re  dif­
ferent, have different origins, c rea te  different 
p roblem s and requ ire  d ifferent corrective action. It 
is suggested  th a t there is no p resen t rem edy  fo r de 
facto segregation but th a t the problem s and questions 
arising  from  de facto segregation m ay  som eday be 
answ ered by the Suprem e Court.®

* At one place in the opinion pseudo de facto segregation in 
the South is mentioned, but it is asserted that any similarity 
between pseudo de facto segregation in the South and actual 
de facto segregation in the North is more apparent than real 
(p. 68)

® The case of Blocker v. Ed. of Educ. of Manhasset, N.Y. (E.D. 
N.Y. 1964) 226 F. Supp. 208 cited and relied on by the ma­
jority does not support the de facto-de jure distinction. In 
fact Judge Zavatt disavows any such distinction. The fol­
lowing is from the opinion:

“On the facts of this case, the separation of the Negro 
elementary school children is segregation. It is segre­
gation by law—the law of the School Board. In the light 
of the existing facts, the continuance of the defendant 
Board’s impenetrable attendance lines amounts to nothing 
less than state imposed segregation.”

*  *  4 :

“This segregation is attributable to the State. The 
prohibitions of the Fourteenth Amendment ‘have refer­
ence to actions of the political body denominated a State, 
by whatever instruments or in whatever modes that ac-



34 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

This Court, and the d is tr ic t courts  w ithin the six 
s ta tes  em b raced  w ith in  ou r ju risd iction  like m any 
o ther fed era l courts of the nation have given m uch 
tim e and  a tten tion  to the  solution of the problem s 
aris ing  a fte r the Brown  decisions. M uch has been a c ­
com plished, m uch  rem ain s  to be done. It is  not pos­
sible fo r m e to jo in  in the  expressions of pessim ism  
contained in the  opinion or to approve the  insinua­
tions th a t the courts have failed  in the perfo rm ance 
of th e ir duty.® E ven  Congress is tak en  to ta sk  for 
fa ilu re  to ac t e a r lie r  and fo r fa ilu re  to recognize

tion may be taken. * * *Whoever, by virtue of public 
position under a State government, * * ♦ takes away the 
equal protection of the laws, violates the constitutional 
inhibition; and as he acts in the name and for the State, 
and is clothed with the State’s power, his act is that of 
the State.’ Ex Parte Virginia, 100 U.S. 339, 346-347, 25 
L.Ed. 676,679 (1880). ‘The situation here is in no dif­
ferent posture because the members of the School Board 
and the Superintendent of Schools are local officials; 
from the point of view of the Fourteenth Amendment, 
they stand in this litigation as the agents of the State.’ 
Cooper V. Aaron, supra, 358 U.S. at 16, 78 S.Ct. at 1408, 
3 L.ed.2d 5.”

® See for example the following statements from the opinion: 
“The courts acting alone have failed.’’ (p. 7)

*  *  *

“Quantatively, the results were meager.’’ (p. 20-21)* * *
“And most judges do not have sufficient competence— 
they are not educators or school administrators—to
know the right questions, much less the right answers.” 
(p. 24)

♦ *  ♦

“In some cases there has been a substantial time-lag be­
tween this Court’s opinions and their application by 
the district courts. In certain cases—^which we consider 
unnecessary to cite—there has even been a manifest 
variance between this Court’s decision and a later dis­
trict court decision. A number of district courts still 
mistakenly assume that transfers imder Pupil Placement 
Laws—superimposed on unconstitutional initial assign­
ment—satisfy the requirements of a desegregation plan,” 
(p. 36)



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 35

school desegregation  “ as the law  of the lan d ,”  ̂ In 
the Brown  cases the Court c learly  and  w isely recog­
nized the fa c t th a t those decisions had  changed the 
law  w hich had  been in effect for decades. Due notice 
w as taken  of the fa c t th a t the new  o rd e r of the day 
would “ involve a varie ty  of local problemjs.” The 
court recognized “ the conaplexities arising  from  the 
transition  to a system  of public educatioh freed of 
rac ia l d iscrim ination .” M oreover, the C ourt stated , 
“ F ull im plem entation  of these constitutional p rinc i­
ples m ay  requ ire  solution of varied  local school p rob­
lem s.” The courts w ere instructed  to be “ guided by 
equitable p rinc ip les ,” to give consideration to “ p ra c ­
tical flexibility in shaping rem ed ies” and observed 
th a t equity courts have a pecu liar “ facility  for ad­
justing and reconciling public and p riv a te  needs.” 
The Brown  decisions em phasized the concept th a t 
courts of equity  a re  p a rticu la rly  qualified to shape 
such rem edies as would “ call for elim ination of a 
v a rie ty  of obstacles in m aking the transition  to 
school system s operated  in accordance w ith the con­
stitutional p rinc ip les” pronounced in the firs t Brown  
decision. C ontrary  to the tone and expressions of the 
m ajo rity  opinion, the Suprem e Court early  announced 
the policy of heavy reliance on the d istric t courts and 
tha t policy has continued to this date.

’’ See item (5), page 24 of the opinion:
“(5) But one reason more than any other has held 
back desegregation of public schools on a large scale. 
This has been the lack, until 1964, of effective congres­
sional statutory recognition of school desegregation as 
the law of the land.”



36 U. S., et al. v. Jeff. County Bd. of Educ., et al.

II

Guidelines

W ith re sp ec t to the guidelines, it should be noted 
th a t they w ere  not an  issue p resen ted  to the D istric t 
Court. The cases h e re  involved had  been tried  in the 
respective d is tric t courts, appeals tak en  to th is Court 
and w ere pending on the docket of this Court before 
the 1966 Guidelines w ere p rom ulgated . G uidelines 
w ere not m ade  an issue by the p leadings or otherw ise 
in the d is tric t courts and no evidence w as taken  w ith 
respect to them . The issue of the guidelines a re  be­
fore th is Court because the Court, sua sponte, 
brought the issue before it.** In m y v iew  their valid ­
ity  is not an  issue to be decided in th is Court. See 
United S ta tes v. Petrillo  (1947) 332 U.S. 1,5,6; United 
S ta tes  V.  International Union (1957) 352 U.S. 567,590; 
ConnoT V.  N ew  Y o rk  T im es  (5 Cir. 1962) 310 F.2d 133, 
135; Gibbs v. B lackw ell (5 Cir. 1965) 354 F.2d 469,471.

In  its f irs t approach  to the question the C ourt in­
d icated  th a t it would not p ass  upon the constitu tional­
ity  of the guidelines bu t would give w eight to or rely  
upon them  as a m a tte r  of jud icia l policy. When con-

® See opinion, page 10, footnote 13.
It should be noted that v/hen the panel which originally 
heard this case invited briefs no mention was made of any 
constitutional question or issue with respect to the HEW 
guidelines. Rather, the questions posed related to whether 
it was “permissible and desirable” for the court to give 
weight to or rely on the guidelines; and if so, what practical 
means or methods should be employed in making use of the 
guidelines. From the questions raised by the court, counsel 
could not have gained the impression that the court was to 
make a full scale determination of the constitutional ques­
tions involved.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 37

fronted  w ith  the  fa c t th a t the guidelines w ere not ap ­
proved by the P resid en t a s  req u ired  by the Civil 
R ights A ct of 1964, the opinion then  concluded th a t 
they do not constitu te  o r pu rp o rt to be rules or reg u la ­
tions or o rders of general application. I t w as then 
sta ted  th a t since they  w ere  not a rule, regulation  o r 
order, they  constitu te “ a s ta tem en t of policy” , and 
while HEW  ‘‘is under no s ta tu to ry  com pulsion to issue 
such s ta tem en ts” it w as decided th a t it is “ of m an i­
fest ad v an tag e” to the  general public to know the 
basic considerations which the Com m issioner uses 
“ in determ ining  w hether a school m eets  the requ ire­
m ents fo r eligibility to receive financial a ss is tan ce .” 
Im m edia te ly  the opinion recognizes the inherent un­
fa irness and vices of such pronouncem ents of adm inis­
tra tiv e  policy w ithout an ev identiary  hearing . “ The 
guidelines have the vices of all adm in istra tive  policies 
established un ila te ra lly  w ithout a h earin g .” * Finally , 
the opinion concludes th a t the guidelines a re  fully con­
stitutional, recognizing as it is bound to do, th a t a fa il­
u re  to com ply w ith them  cuts the purse  strings and 
closes the tre a su ry  to all who fail to com ply:

“The g re a t bulk of the school d is tric ts  in this 
c ircu it have applied for federa l financial as­
sistance and therefore  opera te  under volun­
ta ry  desegregation  plans. A pproval of these 
p lans by the Office of Education qualifies the 
schools for federal aid. In  th is opinion we 
have held tha t the H EW  G uidelines now in  
ef fect  are constitutional and are w ith in  the  
sta tu tory authority  created in the Civil R ights

See opinion page 30.



38 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

A c t of 1964. Schools therefore, in com pliance 
w ith the G uidelines can in g enera l be re g a rd ­
ed a s  d ischarg ing  constitu tional obligations.” 
(E m phasis  added) (p. 112)

W hether view ed from  a substan tive o r p rocedural 
point of view, due process and sound jud ic ia l ad ­
m in istra tion  requ ire , a t  the very  least, an  eviden­
tia ry  hearing  on a  m a tte r  so v ita l to so m any  people.^® 
Not only a re  num erous people affected , bu t those 
m ost affected  a re  the  school children of the  nation. 
The m ost v ita l segm ent of our dem ocratic  society is 
our school system . The operation and adm in istra tion  
of th e  public school system s of th is nation  a re  essen­
tia lly  a  local business. I t is unthinkable th a t m a tte rs  
th a t so v ita lly  affect th is phase of the national w elfare  
should be decided in such su m m ary  fashion. In  the

The 1966 Guidelines were promulgated on March 7, 1966, after 
these cases were docketed in this Court. The fact that the 
appellees had no opportunity to have a hearing and that the 
guidelines were unilaterally issued without receipt of evi­
dence from the numerous school districts was called to the 
attention of this Court by one of the briefs for appellees: 

“As pointed out in detail below, the Constitutional and 
legi-slative principles applicable to the expenditures of fed­
eral funds, the legislative and administrative discretion 
placing conditions upon the receipt and use thereof, the lack 
of due process in the adoption thereof and the lack 
of any opportunity to be heard by those affected thereby 
all render such Guidelines inapplicable to the pending

“The 1966 Guidelines (as well as the 1965 Guidelines) 
were not approved by the President. They were issued 
by the Office of Education unilaterally without an op­
portunity for the representatives of the thousands of 
school districts affected thereby to be heard. As 
unilateral directives they have not been subject to 
judicial review.”

See consolidated brief Jefferson County Board of Education,
pp. 76-77.



U. S., e t  a l .  V.  Jeff.  County Bd. of Educ., e t  a l . 39

two m o st recen t pronouncem ents by the Suprem e 
Court dealing w ith  the p roblem  of segregation  as re­
la ted  to facu lty  and staff, th a t C ourt refused  to ac t 
w ithout an  ev iden tiary  hearing . In  both decisions the 
cases w ere rem anded  to the d is tric t court “ fo r eviden­
tia ry  h earin g s .” B radley v. School Bd. of R ichm ond  
(1965) 382 U.S. 103, 15 L.ed.2d 187; R ogers v. Paul 
(1965) 382 U.S. 198, 15 L.ed.2d 265. S im ilarly , in Cal­
houn V.  L a tim er  (1964) 377 U.S. 263, 12 L.ed.2d 288, the 
Court h ad  for consideration a  desegregation p lan  of 
the A tlan ta  B oard  of Education. D uring the a rgum en t 
before the Suprem e C ourt counsel for the B oard  of E d­
ucation inform ed the Court th a t subsequent to the de­
cision of the low er court, the B oard  had  adopted addi­
tional provisions authorizing “ free  tra n s fe rs  w ith cer­
ta in  lim ita tions in the city high schools” . The petition­
ers contended th a t the changes did not m eet constitu­
tional s tan d ard s  and a sse rted  th a t w ith resp ec t to  ele­
m en tary  students the changed p lan  would not achieve 
desegregation  until som etim e in the 1970’s. The Su­
p rem e  C ourt did not “ g rasp  the n e ttle ” bu t vaca ted  
the o rd e r of the lower court and rem anded  the  case to 
“ be ap p ra ised  by the d is tric t court in a p roper eviden­
tia ry  hearing.” (E m phasis added)

III

D ecree

I now com e to a consideration of the decree o rdered  
to be en tered  and its  re la tion  to the opinion. I t  is im ­
possible to consider the  decree and the opinion sep-



40 U. S., et al. V.  Jeff.  County Bd. of Educ., et al.

ara te ly ; they  a re  inex tricab ly  interw oven. N either 
takes into account “ m ultifarious local difficulties” , 
and  therefore, any p a rtic u la r  or p ecu liar local p rob­
lem s a re  subm erged  and  sacrificed  to the  ap p aren t 
determ ination , evident on the face of both the opin­
ion and the decree, to achieve percen tage  enrollm ents 
w hich w ill re flec t the kind of ra c ia l ba lance the 
opinion seeks to achieve.

The opinion a sse rts  th a t uniform ity  m ust be 
achieved forthw ith  in  everyone of the six s ta tes  em ­
braced  w ithin the F ifth  C ircuit. No consideration  is 
given to any distinction in any of the num erous school 
system s involved. U rban  schools, ru ra l  ones, sm all 
schools, la rg e  ones, a reas  w here ra c ia l im balance  is 
la rg e  or sm all, the re la tiv e  num ber of N egro and  w hite 
children in any p a rtic u la r  a rea , or any  of the  other 
m y riad  problem s w hich a re  known to every  school 
ad m in is tra to r, a re  taken into account. All th ings m ust 
yield to speed, uniform ity , p e rcen tages and propor­
tional rep resen ta tion . T here  a re  no lim itations and 
there  a re  no excuses. This philosophy does not com ­
p ort w ith  the philosophy w hich has guided and  been 
inheren t in the segregation  problem  since Brown II. 
As the C ourt th e re  s ta te d :

“ B ecause these cases arose under d ifferen t 
local conditions and th e ir  disposition will in­
volve a v a rie ty  of local problem s, we requ ired  
fu rth e r argum ent on the question of re lie f.”
(p. 298) (E m phasis added)



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 41

See also D avis v. Bd. of Com m, of Mobile Co., A la., 
322 F.2d 356 (5 Cir. 1963) -wherein this Court m ade a 
distinction in  the ru ra l and u rban  schools of Mobile 
County, A labam a. We held;

“The D istric t C ourt m ay  m odify th is o rder 
to defer desegregation  of ru ra l schools in 
M obile County until Septem ber 1964, should 
the D istric t C ourt a fte r fu rther hearing  con­
clude th a t special planning of adm in istra tive  
problem s fo r ru ra l schools in the county m ake  
it im prac ticab le  for such schools to s ta r t  de­
segregation  in Septem ber 1963.”

The effectiveness of the d is tric t courts h a s  been 
seriously im paired , in a re a l sense, co n tra ry  to the 
teachings of all the decisions of the  Suprem e Court 
since Brow n II. U nder the opinion and decree a 
U nited S ta tes  D istric t Judge serves essen tially  as a 
referee, m a ste r, or hearing  exam iner. Now his only 
functions a re  to o rder the enforcem ent of the de­
tailed, uniform , stereotyped fo rm al decree, to super­
vise com pliance w ith its detailed  provisions as th e re ­
in o rdered  and directed , and to receive periodic re ­
ports  m uch  in the sam e fashion as reports  a re  re ­
ceived by an o rd inary  clerk  in a la rge  business es­
tablishm ent.

Such a  detailed decree on the appellate  level not 
only v io la tes sound concepts of jud ic ia l ad m in is tra ­
tion, bu t it v io lates a longstanding philosophy of the 
federal jud ic ia l system , and indeed all jud icia l sys­
tem s com m on to this country, w hich vest wide dis-



42 17. S., et al. v. Jeff.  County Bd. of Educ., et al.

cretion  and  au thority  in tr ia l courts because of their 
closeness to and  fam ilia rity  w ith  local problem s. See 
the opinions in  Brown II, B radley, Rogers, and  Cal­
houn. F o r exam ple, in Brow n II  the  Court s ta ted :

“F u ll im plem entation  of these constitu tional 
p rinc ip les  m a y  requ ire  solution of varied  local 
school problem s. School au thorities have the 
p rim ary  responsibility  for elucidating, a ssess­
ing, and solving these p rob lem s; courts w ill 
have  to consider w hether the action  of school 
au thorities  constitutes good fa ith  im p lem en ta­
tion of the  governing constitu tional principles. 
B ecause of their p roxim ity  to local conditions 
and  th e  possible need for fu rth er hearings, 
the courts w hich originally heard these cases  
can best perform  th is  judicia l appraisal. Ac­
cordingly, we believe it app rop ria te  to rem an d  
the cases to those courts.

“ In fashioning and effectuating the decrees, 
the courts  w ill be guided by equitable p rin ­
ciples. T raditionally , equity  h a s  been char­
acterized hy a practical flex ib ility  in shaping 
its rem ed ies and by a fac ility  for ad justing  
and reconciling public and p riv a te  needs. 
T hese cases call for the exercise of these tra ­
ditional a ttribu tes of equity power. At stake  is 
the personal in te rest of the p lain tiffs in adm is­
sion to public schools as soon as p rac ticab le  
on a  nondiscrim inatory  basis. To effectuate 
th is in te re s t m ay  call for elim ination of a  va ­
rie ty  of obstacles  in m aking  the  transition  to



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 43

school system s opera ted  in accordance w ith 
the  constitu tional principles set fo rth  in our 
M ay 17, 1954, decision.” (E m phasis added)

The opinion a sse rts  th a t “m ost ju d g es” do not 
possess the necessa ry  com petence to deal w ith the 
questions p resen ted , and do not “ know the righ ts 
questions, m uch  less the rig h t an sw ers .” N otwith­
standing the foregoing assertion , the  judges of the 
m ajo rity , acting on the appellate  level, p roceed  to 
fashion a  decree of such m inu te  detail and specificity 
as to rem ove all d iscretion and au thority  from  the 
d is tric t judges on w hom  the Suprem e Court has relied 
so heavily . In  m y  view the d istric t judges a re  in m uch 
b e tte r position to know the questions and the answ ers 
than  appellate  judges who necessarily  function som e 
d istance aw ay from  an evidentiary  hearing  and a re  
rem oved fro m  the “m ultifarious local p rob lem s” and 
“ the  v a rie ty  of obstac les” inheren t in the solution of 
the issues p resen ted .

IV

Percentages, Proportions and Freedom of Choice

F reed o m  of choice m eans the unrestric ted , unin­
hibited, u n restra in ed , unhurried , and u n h arried  righ t 
to choose w here a  studen t will a ttend  public school 
sub jec t only to adm in istra tive  considerations w hich 
do not tak e  into account or a re  not re la ted  to con­
siderations of race . If there  is a free  choice, free  in 
every sense of the word, exercised by students or by 
th e ir p a ren ts , or by both, depending on the  c ircum ­
stances, in accordance w ith a p lan  fa irly  and  ju stly



44 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

adm in istered  fo r the purpose of elim inating segrega­
tion, the  dual school system  as such w ill u ltim ate ly  
d isappear. Goss v. Board of Education, 373 U.S. 683 
(1963); B radley v. School Board, 345 F .2d 310,318 (4 
Cir. 1965), vaca ted  and rem anded  on o th er grounds, 
382 U.S. 108 (1965 per cu riam ). See also Clark v. 
Board of Educ. of L ittle  R ock, 369 F .2d 661 (8 Cir. 
1966); Deal v. C incinnati Bd. of E duc., 369 F.2d 55,59 
(6 C ir. 1966); Lee, et al. v. M acon County Board of 
Education, et al. (D.C. M.D. Ala. 1967) C.A. 604-E, 
. . . .  F . Supp...........If the com pletely fi^ee choice is a f ­
forded and neither the students nor th e ir p a re n ts  de­
sire  to change the schools the students h ave  hereto ­
fore attended, th is C ourt is w ithout au thority  under 
the Constitution or any enactm en t of C ongress to com ­
pel them  to m ake a change. Im plic it in freedom  of 
choice is the rig h t to choose to rem a in  in a  p a rtic u la r  
school, pe rh ap s  the school hereto fore  attended . T h a t in 
itself is the exercise of a  free^ choice. The fac t th a t 
N egro children m ay  not choose to leave th e ir asso­
ciates, friends, or m em bers of the ir fam ilies to a ttend  
a school w here those associates a re  elim inated  does 
not m e an  th a t freedom  of choice does not w ork or is 
not effectively afforded. The assertion  by the m ajo rity  
th a t “ the only school desegregation p lan  th a t m eets 
Constitutional s tan d ard s  is one th a t w orks’’ as in te r­
p re ted  by th a t opinion, sim ply m eans th a t students 
and p a ren ts  w ill not be given a free  choice if the re ­
sults envisioned by the  m a jo rity  a re  not actually  
achieved. T here  m u st be a  m ixing of the races  ac ­
cording to m a jo rity  philosophy even if such m ixing 
can  only be achieved under the lash  of compul-



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 45

sion. If the percen tage of Negro and w hite chil­
dren  attending a p a rticu la r school does not con- 
fornn to the  percen tage  of N egro and  white 
school population p reva len t in the com m unity, the 
m ajo rity  concludes th a t the p lan  of desegregation 
does not work. A ccordingly, w hile professing to vouch­
safe freedom  and liberty  to Negro children, they have 
destroyed the freedom  and liberty  of a ll students, 
Negro and w hite alike. T here  m ust be a m ixing of the 
races, or in tegra tion  a t all costs, or the p lan  does not 
w ork according to the opinion. Such has not been 
and is not now the sp irit or the le tte r of the law.

The a im  and  a ttitude  of the m ajo rity  is reflected  
by the  following s ta te m e n t:

“ In  review ing the effectiveness of an ap ­
proved p lan  it seem s reasonable to use som e 
so rt of y a rd stick  or objective percen tage 
guide. The percen tage  requ irem en ts in the 
G uidelines a re  m odest, suggesting only th a t 
system s using free  choice p lans for a t  leas t 
two y e a rs  should expect 15 to 18 p e r cent of 
the pupil population to have selected  desegre­
gated  schools.”

F u rth e r the Court equates the percen tage  attendance 
test w ith  p e rcen tag es  in ju ry  exclusion^ cases and

One of the leading and most recent cases on jury exclusion 
is Swain v. Alabama (1965) 380 U.S. 202, 13 L.ed.2d 759. 
With respect to proportional representation on juries the 
Court concluded:

“Venires drawn from the jury box made up in this 
manner unquestionably contained a smaller proportion



46 U .  S., e t  a l .  V.  J e f f .  County Bd. o f  Educ., e t  a l .

voter reg istra tion  cases. I t  should be pointed out th a t 
such cases had  no e lem ent of free  choice in them , 
and therefore, the com parison  is inapposite. In the 
in s tan t cases the  m a jo rity  condem ns a  free  choice 
p lan  unless it achieves the percetitage  re su lt w hich 
suits the  m ajo rity . A ccordingly, the opinion con­
cludes ;

“ P ercen tages have  been used in o ther civil 
righ ts  cases. A s im ila r inference m ay  be 
d raw n in school desegregation  cases, when 
the num ber of N egroes attending  school w ith 
w hite  children is m an ifestly  out of line w ith 
the ra tio  of N egro school children to w hite 
school ch ildren  in public schools. Common 
sense suggests th a t a gross d iscrepancy  be­
tween the  ra tio  of N egroes to w hite children 
in a  school and the HEW  p ercen tag e  guides 
ra ise s  an  inference th a t the school p lan  is not 
working as it should in providing a un itary , 
in teg ra ted  sy stem .”

T here is no constitu tional requ irem ent of p ropor­
tional rep resen ta tion  in the schools according to race.

of the Negro community than of the white community. 
But a defendant in a criminal case is not constitutionally 
entitled to demand a proportionate number of his race 
on the jury which tries him nor on the venire or jury 
roll from which the petit jurors are drawn.” (p. 208) 

Further, the Court; in Stvain quoted with approval the fol­
lowing statement from Cassell v. Texas, 339 U.S. 282, 286- 
287, 94 L.ed. 839, 847:

“Obviously the number of races and nationalities appear­
ing in the ancestry of our citizens would make it im­
possible to meet a requirement of proportional representa­
tion. Similarly, since there can be no exclusion of 
Negroes as a race and no discrimination because of color, 
proportional limitation is not permissible.”



U. S., et al. V. Jeff. County Bd. of Educ., et al. 47

F u rth erm o re , sihce th e re  can  be no exclusion based  
on race , proportional lim itation  is likewise im perm is­
sible under the Constitution.

We should be concerned w ith the elim ination of 
d iscrim ination  on account of race, and  freedom  of 
choice is  one m ean s of accom plishing th a t goal. I t  is 
not our function to condem n the children o r the  school 
au thorities because the free  choices actua lly  m ade  do 
not com port w ith our own notions of w hat the  choices 
should have been. When our concepts as to p ropor­
tions and p ercen tages a re  im posed on school system s, 
notw ithstanding free  choices actually  m ade, we have 
destroyed  freedom  and liberty  by jud icia l f ia t; and 
even w orse, we have done so in the v e ry  nam e of 
th a t liberty  and freedom  we so avidly c laim  to es­
pouse and em brace. Our duty in seeking to elim inate 
rac ia l d iscrim ination  is to vouchsafe to all children, 
regard less of race , a  full, com plete and  tim ely  free  
choice of schools in appropria te  cases in keeping w ith 
sound adm in istra tive  p rac tices  w hich take  into con­
sideration  p roper c rite ria . Both proportional rep resen­
tation  and proportional lim itation  a re  equally uncon­
stitutional.

Enforced Integration

The opinion seeks to find a C ongressional m andate  
requiring  com pulsory or enforced in tegration in the 
public schools as distinguished from  the elim ination 
of segregation. Throughout the  opinion th e re  appear



48 U. S., et al. V. Jeff.  County Bd. of Educ., et al.

a tangled  conglom eration of w ords and ph rases  of 
various shades of m eaning, all of w hich a re  equated 
w ith  each  other to reach  the conclusion desired  by 
the m a jo rity  th a t school boards in th is C ircuit m ust 
adopt and im plem ent a p lan  of forced integration.

I t  seemis app rop ria te  to re tu rn  to the Civil R ights 
A ct of 19'64 and the leg islative h isto ry  w hich spaw ned 
its enac tm en t in o rder to ascerta in  the true  C ongres­
sional intent. Section 401(b), 42 U.S.C.A. § 2000c(b) 
defines desegregation  in unequivocal term*s:

“ ‘D esegregation’ m eans the assignm ent of 
students to public schools and w ithin such 
schools w ithout reg a rd  to th e ir race, color, 
religion, or national origin, but ‘desegrega­
tion’ shall not m ean  the assignm ent of stu ­
dents to public schools in order to overcom e 
rac ia l im b a lan ce .”

Section 407(a)(2) of Title IV, Title 42 § 2000c-6(a) (2) 
provides as  follows:

‘‘. . .provided th a t nothing herein  shall em ­
power any  official or court of the U nited 
S tates to issue any o rder seeking to achieve 
a rac ia l balance in any school by requiring  
the tran sp o rta tio n  of pupils or students from  
one school to ano ther or one school d is tric t to 
ano ther in order to  achieve such racial bal­
ance, or otherwise enlarge the existing power 
of the court to insure com pliance w ith  consti­
tutional standards.” (E m phasis added)



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 49

It  should be noted th a t the portion of the language of 
the proviso w hich is underscored  is om itted in the 
co u rt’s opinion. As to enforced in teg ra tion  the follow­
ing s ta tem en t by Senator H um phrey is exactly  in 
point:

“ Mr. H um phrey. . .1 should like to m ake one 
fu rth e r reference to the G ary case. This case 
m akes it quite c lear th a t w hile the Constitu­
tion p rohib its segregation, it does not require 
in tegration . . .The bill does not a ttem p t to 
in teg ra te  the schools but it does a ttem p t to 
elim inate segregation  in the schools. . .The 
fac t th a t there  is a  rac ia l im balance p e r se is 
not som ething w hich is unconstitutional. T hat 
is why we have attetm pted to clarify  it w ith 
the language of Section 4.” (110 Congression­
al R ecord 12717)

Likewise w ith respect to Section 407(a)(2) Senator 
H um phrey’s s ta tem en t clarifies and m akes p lain  
the Congressional in tent by re fe rring  to the Gary 
case.^^

The following additional excerpts from  the leg isla­
tive h isto ry  serve to clarify  the  in ten t of Congress. 
C ongressm an Celler, C hairm an  of the Ju d ic iary  
C om m ittee of the House and F loor M anager of the 
bill;

“T here  is no authorization for e ither the At­
torney G eneral or the Com m issioner of Edu-

Bell V. School City of Gary, Indiana, 213 P. Supp. 819 (1963).



50 17. S., et al .  V.  Jeff. County Bd. of Edue., et al.

cation to w ork tow ard  achieving rac ia l ba l­
ance in  given schools.” (110 C ongressional 
R ecord 1519, Jan u a ry  31, 1964)

Senators Byrd and H um phrey :

‘‘MR. BYRD of W est V irginia. B ut would the 
Senator from  M innesota also indicate 
w hether the w ords ‘provided th a t noth­
ing herein  shall em pow er any official 
or court of the United S tates to issue 
any order seeking to achieve a rac ia l 
balance in any school by requ iring  the 
tran sp o rta tio n  of pupils or students 
from  one school to ano ther or one school 
d is tric t to ano ther in o rder to achieve 
such rac ia l ba lance’ would p rec lude  the 
Office of Education, under section 60'2 or 
Title VI, from  establishing a  req u ire ­
m ent th a t school boards and school dis­
tric ts  shall take action to relieve rac ia l 
im balance  w herever it m ay  he deem ed 
to exist?

‘‘MR. HUM PHREY. Yes, I do not believe in 
duplicity. I believe th a t if we include 
the language in Title IV, it m u st apply  
throughout the A ct.” (110 Congressional 
R ecord, P age  12715, June  4, 1964).

Senator Jav its ;

‘‘MR. JAVITS. . .Taking the case of the 
schools to which the  Senator is referring , 
and the danger of envisaging the ru le  or



U. S., et al. V.  Jeff.  County Bd. of Educ., et al. 51

regu la tion  re la ting  to ra c ia l im balance, 
it is negated  expressly  in the bill, w hich 
would com pel ra c ia l balance. Therefore 
there  is no case in w hich the th ru s t of 
the s ta tu te  under w hich the m oney would 
be given would be d irected  tow ard  re ­
storing or bringing about a  rac ia l ba l­
ance  in the schools. If such a ru le  w ere 
adopted or prom ulgated  by a b u reau cra t, 
and  approved by  the P residen t, the  Sen­
a to r’s S ta te  would have an  open and  shut 
case  under Section 603. T h a t is why we 
have provided for jud icia l review . The 
Senator knows as a law yer th a t we never 
can  stop anyone from  suing, nor stop any 
G overnm ent official from  m aking  a  fool 
of him ’self, or from  try ing  to do som ething 
th a t he has no righ t to do, except by re m ­
edies provided by law. So I believe it is 
th a t se t of w ords w hich is opera tiv e .” 
(110 C ongressional R ecord, P age  12717, 
June  4, 1964).

Senators B yrd and H u m p h rey :

“MR. BYRD of W est V irginia. . .C annot the 
Office of Education, pu rsu an t to c a r ry ­
ing out this regulation, deny assis tance  
to school d is tric ts  w herein rac ia l im bal­
ance exists?

MR. HUM PHREY. Let m e read  from  the 
substitu te: Provided, th a t nothing h ere ­
in shall em pow er any  official or court 
of the U nited S tates to issue any  order.



52 17. S., et al. v. Jeff. County Bd. of Educ., et al.

MR. BYRD of W est V irginia. ‘To issue any 
o rd e r’, bu t does it provide th a t the Office 
of E ducation  shall not cu t off F edera l 
assistance?

MR. HUM PHREY. But in order to cu t off 
F ed e ra l assistance, the P resid en t would 
have to issue the o rder, if the Senator 
will read  Section 602.

MR. BYRD of W est V irginia. The w ords are: 
No such rule, regulation, or o rder shall 
becom e effective unless and until ap ­
proved by the P residen t.

MR. HUM PHREY. T hat is correct.

MR. BYRD of W est V irginia. W hat a ssu r­
ance does the Senator give m e th a t the 
P resid en t will not approve such a  re ­
qu irem en t ?

MR. HUM PHREY. B ecause I do not be­
lieve the P residen t will vio late  the law .” 
(110 Congressional Record, P age  12715, 
June  4, 1964).

In  o rder to escape the c lear m eaning of the quoted 
sta tu tes  and the unquestioned intent of C ongress as 
illu stra ted  by the legislative history, the opinion sum ­
m arily  ob lite ra tes any distinction betw een desegre­
gation and in tegration . W ithin the context of the opin­
ion in tegration  m eans forced or enforced integration. 
A gain the  te rm  in tegration: Is applied only to  de jure  
segregated_seh:6ols. An analysis of the opinion demon-



U. S., et al. V.  Jeff.  County Bd. of Educ., et al. 53

s tra te s  th a t the  process of reasoning  used am ounts 
to an  unauthorized insertion  of the w ord  “ de ju re ” 
to achieve land m ain ta in  the de facto  and  de ju re  dis­
tinction w ith  w hich I dealt ea rlie r. By m ean s  of th is 
device the opinion converts the Civil R ights A ct of 
1964 into a  new and different concept en tirely  foreign 
to its tru e  m eaning. I quote sev era l typ ica l excerp ts 
from  the opin ion:

“W e  use the te rm s ‘in teg ra tio n ’ and  ‘desegre­
gation’ of fo rm erly  seg rega ted  public schools 
to m ean  the conversion of a  de jure  seg re­
ga ted  dual sy stem  to a  un itary , non rac ia l 
(nondiscrim inatory) system —lock, stock, and 
b a rre l: students, faculty , staff, facilities, 
p rog ram s, and ac tiv ities.” (E m phasis added) 
(footnote 5, page 6)

“The national policy is  plain: fo rm erly  de 
jure segregated public school sy s te m s  based  
on dual attendance zones m u st sh ift to uni­
ta ry  nonrdcial sy s tem s— w ith  or w ithou t fed ­
eral funds.” (E m phasis  in  orig.) (page 14)

* * *
‘‘A lthough the leg islative h isto ry  of the s ta t­
u te  shows th a t the floor m an ag ers  for the  
A ct and  other m em bers of the Senate and 
House cited  and  quoted these two opinions 
they  d id  so w ithin the context of the p roblem  
of de facto  segregation .” (E m phasis added) 
(P ag e  39) [The two cases m entioned a re  
Briggs  and Bell.]



54 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

“A s used  in the Act, therefo re , ‘deseg rega­
tion’ re fe rs  only to the d isestab lishm ent of 
seg rega tion  in de jure segregated schools.” 
(E m phasis  added) (page 74)

♦

“S enato r H um phrey spoke sev era l tim es in 
the  language of Briggs  bu t h is  references to 
Bell ind icate  th a t the  restric tions in  the  A ct 
w ere  pointed a t  th e  G ary, Ind iana  de facto  
type  of segregation .” (E m phasis added) 
(page 80)

A gain it should be said  th a t it is not easy  to under­
s tan d  the reasoning  by w hich the m a jo rity  concludes 
th a t the F e d e ra l C onstitution req u ires  in teg ra tion  
of fo rm erly  de jure  school system s bu t does not re ­
qu ire  the in teg ra tion  of de facto  system s. A pparently  
faced w ith  th is d ilem m a the m a jo rity  realized  th a t 
it  m u s t challenge the  ju risp rudence  estab lished  by 
Briggs v. E llio tt (E .D . S.C. 1955) 132 F . Supp. 776, and 
Bell V. School City of G ary  (N.D. Ind. 1963) 213 
F . Supp. 819, a ffirm ed  324 F.2d 209 (7 C ir. 1963). The 
opinion re fe rs  to these cases as “ two glosses on 
B row n’’. The rep eated  assertions of Senators show­
ing th e ir re liance  upon the two decisions in question 
give em phasis to the m eaning  of the  teach ing  of those 
two cases. S ena to r H um phrey  ac tua lly  s ta ted  th a t 
the th ru s t of Ju d g e  B eam er’s opinion in th e  G ary  case 
w as incorpora ted  into the  Civil R ights A ct of 1964.̂ ® 
The m a jo rity  disposes of Senator H um phrey’s com ­
m en t and the G ary  case  by asserting  th a t the school
IS See opinion page 81.



17. S., et al. V. Jeff.  County Bd. of Educ., et al. 55

d is tric ts  w ere  d raw n w ithout reg a rd  to race. The fol­
lowing is from  the opinion;

“S enato r H um phrey  spoke sev era l tim es 
in the  language of Briggs  bu t h is refe rences 
to Bell indicate th a t the res tric tio n s  in  the 
A ct w ere pointed a t  the G ary, Ind ian a  de fac­
to type of segregation .” (opinion page  80)

While it  m ay  be tru e  th a t the  fac ts  in  G ary  showed 
good fa ith  on the  p a r t  of the school board , it  is like­
w ise tru e  th a t the G ary  school sy stem  involved de 
ju re  segregation  w ith in  the m eaning of the m a jo rity  
opinion. We quote from  Judge B eam er’s opinion, 213 
F . Supp. a t  822:

“ P rio r to 1949, G ary  had  seg rega ted  schools 
in w hat is com m only known a s  the  P u lask i 
Complex. Two schools w ere  built on the  sam e 
cam pus, one w as called  P u lask i-E ast and  the 
other Pulaski-W est. One w as occupied by  N e­
gro studen ts and  the o ther by w hite students. 
This w as in accordance  w ith  the sep a ra te  bu t 
equal policy, then  p erm itted  by Ind iana law, 
(B urns Ind iana  S ta tu tes  A nnotated, 1948 R e­
p lacem ent, Section 28-5104)”

The difficulty of the m a jo rity  is fu r th e r in creased  
by v irtu e  of the fa c t th a t Judge B eam er cited cases 
w hich uphold the Briggs  doctrine. M ore im portan t, 
w hen the case w as a ffirm ed  by the Court of A ppeals 
of the Seventh  C ircuit, the so-called B riggs  d ictum



'56 17. S., et al. v. Jeff.  County Bd. of Educ., et al.

w as cited  as au thority  for the co u rt’s holding, 324 
F .2d  a t  213.

If the alleged  Briggs  d ic tum  is  so c learly  erroneous 
and  constitutionally  unsound, it is difficult to believe 
th a t i t  would have been accepted  fo r a  period  of a l­
m ost twelve y e a rs  and  quoted so m an y  tim es. E ven 
the  m a jo rity  concedes th a t the court in Briggs  w as 
com posed of d istinguished ju ris ts . Judges P a rk e r, 
Dobie and  T im m erm an . If the m ajoirity is correct, 
it is en tire ly  likely th a t n ev er before have so m any  
judges been  m isled, including judges of th is  Court, 
fo r so long by such  a  c lear, understandab le , d irec t 
and concise holding a s  the language in B riggs  w hich 
the  opinion now condem ns. The language is s tra ig h t­
fo rw ard  and  sim ple: “The Constitution, in  o ther 
w ords, does no t requ ire  in tegration . I t  m ere ly  forbids 
d iscrim ination . ’ ’

I t  is in teresting  also to observe th a t the Suprem e 
Court h as  n ev er d istu rbed  the  Briggs  language, al­
though it h as  h ad  num erous opportunities to do so. 
As a  m a tte r  of fac t, it h a s  com e v e ry  close to approv­
ing it; if it  h as  not ac tua lly  done so. In  the case 
of Shuttlesioorth v. B irm ingham  (N.D. Ala. 1958) 162 
F . Supp. 372,378, the d is tric t court speaking through 
Judge  R ives quoted the B riggs  opinion. The Suprem e 
Court a ffirm ed  the judgm ent. Shuttlesw orth  v. B ir­
m ingham , 358 U.S. 101.

The m a jo rity  ru le  requ iring  com pulsory in teg ra ­
tion is neAV and novel, and  it has not been accepted

See the very clear dissenting opinion of Judge Cox.



U. S., et al. V.  Jeff.  County Bd. of Educ., et al. 57

by the  Supremie C ourt or by the o ther C ircuits. The 
ra tiona le  of Briggs  has been approved. Brow n  de- 
cisions, supra; Goss v. Bd. of Educ. of K noxville , su­
pra; Bolling v. Sharpe, 347 U.S. 497,498; P ennsyl­
vania V.  Board of Trusts, 353 U.S. 230,231; Cooper v. 
Aaron, 358 U.S. 1 (p a s s im ); Scull v. V irginia, 359 U.S. 
344,346; W olfe v. N orth  Carolina, 364 U.S. 177,182; 
GomilUon v. L ightfoot, 364 U.S. 339,349; G arner v. 
Louisiana, 368 U.S. 157,178; Turner v. City of M em ­
phis, 369 U.S. 350,353; Johnson v. V irginia, 373 U.S. 
61,62; W right v. R ockefeller, 376 U.S. 52, 57-58; 
Springfield  v. Barksdale  (1 Cir. 1965) 348 F.2d 261; 
B radley v. School Board of R ichm ond, Va. (4 Cir.
1965) 345 F .2d 310; Sw ann v. C harlotte-M ecklenburg  
Board of Educ. (4 Cir. 1966) 369 F .2d 29; Deal v. Cin­
cinnati Board of Educ. (6 Cir. 1966) 369 F .2d 55; Bell 
V.  School C ity of Gary, Indiana  (7 Cir. 1963) 324 F.2d 
209; C lark v. Board of Educ. of L ittle  R ock  (8 Cir.
1966) 366 F.2d 661; Downs v. Board of Educ. o f K an­
sas C ity  (10 Cir. 1964) 338 F.2d 988, cert, den., 380 
U.S. 914.

Conclusion

I t  is m y judgm ent th a t the de facto-de ju re  d istinc­
tion c rea ted  in  the opinion can  not be supported  as  a 
m a tte r  of law . P e rcen tag e  o r p roportional enrollm ent 
requ irem en ts  based  on race , and  enforced  in teg ra­
tion a re  in  violation of well established constitu tional 
concepts in m y  opinion.

While it cannot be denied there  has been recalc i­
tran ce  and resistance  to desegregation  as requ ired



58 U, S., et al. V. Jeff.  County Bd. of Educ., et al.

by the  Brow n  decisions in num erous a reas , I cannot 
sh are  in  the pessim ism  expressed in the opinion. 
Throughout th e  country  a  su b stan tia l effort h a s  been 
m ade  to elim inate  segregation  and  su b stan tia l prog­
ress  h a s  been  m ade. The Brow n  decisions contem ­
p la ted  som e difficulties and com plexities. A review  
of the h isto ry  of the difficulties involved strongly  in­
dicate  th a t the  g rea test p roblem s arise  w hen a  s ta r t  
or “ b reak  th rough” is initiated. R eca lc itran ce  and  re ­
sistance  w hich ap p eared  in itially  in m any  a re as  have 
now subsided o r d isappeared . I t  is also tru e  th a t the 
em phasis has shifted p roperly  fro m  “ d e lib e ra te” to 
“ speed” . I continue to have confidence in the local 
school boards of the nation. While som e of them  have 
perform ed  slowly and a  few  have not perfo rm ed  a t 
all, the v a s t m a jo rity  of school boards a re  com posed 
of conscientious, civic m inded, sincere  people who a re  
undertak ing  to do w h a t is best for the school children 
of the  nation. We should not in te rfe re  w ith  them  un­
duly.

F u rth erm o re , I continue to have confidence in the 
judicia l sy stem  of the  country  and  hold the  firm  be­
lief th a t the reco rd  of the courts in achieving com ­
pliance w ith  the Brow n  decisions d em onstra tes  th a t 
th e  courts h av e  given th e ir prom pt, carefu l and  dili­
gent a tten tion  to the p roblem s as  they h av e  arisen . 
In m y  view the heav iest bu rden  has been on the dis­
tr ic t courts, and  inevitab ly  the best solutions will 
com e a t  the d is tric t court level w here the judges a re  
in close con tac t w ith  local com plexities, obstacles 
and problem s. The p rim ary  responsib ility  should be 
left w here the Brow n  decisions p laced  it, w ith the 
boards of education under the supervision and  guid-



17. S., et al. V.  Jeff.  County Bd. of Educ., et al. 59

ance of the d is tric t courts. This is not to say  th a t the 
courts should not accord  full consideration  to the  ex­
pertise  of the D epartm en t of H ealth , E ducation  and 
W elfare; and  w.e should give due consideration  to 
HEW  G uidelines w hen it is app rop ria te  to do so. 
However, the  provisions of the  Civil R igh ts  A ct of 
1964 should not be by-passed. R ules, regu lations and  
orders  of genera l application should be enacted  in 
accordance  w ith  the requirem ents of due p rocess 
and school system s should not be penalized by  such 
rules, regu lations or o rders whiich a re  not approved  
by the P res id en t as provided by the Act. I t  is no an ­
sw er to say  th a t the guidelines a re  in terp re tive  reg u ­
la tions o r “housekeeping” rules. They a re  being used 
and applied as general rules, regu la tions o r o rders.

Due to developm ents in the ju risprudence, p a rticu ­
la rly  w ith  resp ec t to desegregation of facu lty  and 
staff, the  o rders of the d is tric t courts should be v a ­
cated  and the causes rem anded for fu rth e r considera­
tion and fo r ev iden tiary  hearings in the d is tric t courts. 
In  effect the appellees recognize the fa c t th a t th is 
m ust be done. We should not rev erse  the d is tric t 
courts on questions w hich w ere not issues before  them  
and fashion our own decree w ith respec t to such is­
sues w ithout any  ev iden tiary  basis or w ithout afford­
ing an opportunity  for the p resen ta tion  of evidence 
re la ting  to such issues in the d is tric t courts.

Judge BELL, w ith  whom  Judge GEWIN joins, DIS­
SENTING:

I respectfully dissent. The two-judge or original opin­
ion of December 20, 1966 is what the majority has



60 U. S., et a l .  V.  Jeff.  County Bd. of Educ., et a l .

adopted. T h a t opinion seriously erodes the doctrine of 
separa tion  of pow ers as betw een the E xecu tive and 
the Ju d ic iary . M oreover, m uch of its language is 
in the n a tu re  of overreach  and, as such, adds confusion 
and luirest to the already troubled area of school de­
segregation. The overtones of compulsory integration 
and school racial balances in the  original opinion can 
only chill the  efforts of school adm inistrators to complete 
the  task of eliminating dual school systems of the  South. 
In  addition, the other side of some of the  more important 
holdings of the majority opinion should be considered 
and those propositions stated which m ilitate against their 
validity.

The plain in tent of the two opinions is to establish a 
uniform law for the  school systems of th is circuit. Thus, 
the  opinions must be tested as laws. Their validity and 
efficacy as laws should be considered in the frame of 
reference of need, fairness, clarity and what is constitu­
tionally permissible.

I t is fundam ental in  law  making th a t laws should be 
fair as between people and sections. The requirem ent 
tha t laws be clear in meaning is also a fundamental. 
We cannot be expected to obey the law if we cannot 
tmderstand it. Caligula kept the meaning of the laws 
from the Romans by posting them  in narrow places 
and in small print^—it is no different today when the 
law is couched in vagueness.

 ̂ Suetonius, The Lives of the Tvs''elve Caesars, (Random House, 
1959), p. 191, 192.



17. S., et al. V. Jejj.  County Bd. of Educ., et al. 61

Then there is the m atte r of personal liberty. Under 
our system of government, it is not to be restricted 
except where necessary, in balance, to give others th e ir 
liberty, and to attain order so tha t all may enjoy liberty. 
History records that sumptuary laws have been largely 
unobserved because they failed to recognize or were 
needlessly restric tiv e  of personal liberty . Our experi­
ments w ith sumptuary-like laws are exemplified by the 
Dred Scott decision, 19 How. 393, Reconstruction, and 
the prohibition laws. All failed.

The m ajority opinions, considered together, fail to 
meet the tests of fairness and clarity. The advance ap­
proval given to a requirement of compelled integration 
exceeds what is constitutionally permissible under the 
Fourteenth Amendment. They cast a long shadow over 
personal liberty as it embraces freedom of association 
and a free society. They do little for the  cause of educa­
tion.

It is important, however, that this dissenting opinion 
not mislead any person having responsibility in the  area 
of school desegregation. The dual system of education 
must be eliminated. This was ordered in  1955. Brown 
V. Board o f  Education o f  Topeka, 1955, 349 U.S. 294, 75 
S.Ct. 753, 99 L.Ed. 1083. School boards were told to 
convert the dual segregated school systems into racially 
nondiscriminatory school systems. The court pointed to 
problems tha t might arise in the transition w ith respect 
to the physical condition of school plants, transportation, 
personnel, and in the revision of school districts and



62 U. S., et al. V. Jeff. County Bd. of Educ., et al.

attendance areas into compact areas. This order followed 
reargum ent of the question of remedy after the 1954 
decision holding segregated education xmder the separate 
but equal doctrine unlawful. Brown v. Board of Educa­
tion, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. A fter 
full argument, the transition was ordered. The separate 
but equal doctrine was already lost and the  tim e for 
remedy was at hand. Transition was the rem edy pro­
vided.

Transition to date has in the main consisted of follow­
ing a freedom of choice plan for pupil assignment. But 
freedom of choice without faculty desegregation and the 
elimination of discrimination in buildings, equipment, 
services and curriculum will not suffice to convert a dual 
system  into a unitary nondiscriminatory system. The 
slow progress to date toward eliminating dual systems 
is what has brought about the majority opinions, and is 
also at the root of the  disturbance betw een the Health, 
Education, and Welfare Department and many school 
boards. The objective m ust be, as the Departm ent of 
Justice contends, that there  be no white schools— n̂o 
Negro schools—just schools. But this is all tha t is re ­
quired and it can be accomplished without the  open-end 
compulsory integration language of the  majority opinions, 
or the geometric progression guidelines® of HEW which 
the majority opinion approves.

2 Even v/hile these cases were pending after en banc argument, 
HEW announced new guidelines. Now for a school 
system to receive approval without further investigation, 
it must show that the number of minority group students 
in integrated schools within the system in the school



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 63

The mandate of the Supreme Court in Brown II  can 
be carried out by the assignment of faculty and students 
w ithout regard to race, and by affording equality in 
educational opportunity from the standpoint of build­
ings, equipment, and curriculum. W here freedom of 
choice in student assignment is ineffective to the  extent 
tha t a dual system continues, it can be implemented 
by a neighborhood assignment plan. Assignments should 
then  be made by the  school board to the  school nearest 
the home of the student, whether form erly w hite or 
Negro. Then the  child would be given the option im der 
a freedom of choice plan of attending another school 
w ith priority to attend being based on proximity of 
residence to school. This m ethod of student assignment 
is comparable to what is being used in Charlotte. Cf. 
Swann v. Charlotte-Mecklenburg Board of Education, 
4 Cir., 1966, 369 F.2d 29 (En banc).

We should order the school boards in these cases, 
which they and the  entire court agree must be reversed, 
to forthw ith complete the conversion from dual to 
unitary systems by the use of these minimum but manda­
tory directions. School boards and the public would 
understand the objective—to convert dual school systems 
into im itary nondiscriminatory systems just as the Su­
prem e Court directed twelve years ago. School boards 
and the public would also understand the method to be 
followed in the conversion. But this approach is too 
simple for the  majority. Their view is th a t something

year 1967-68 will be double the number present in 1966- 
67 and in some instances triple the number. New 
Orleans Times-Picayune, March 16, 1967, page 1, Column 
4, Associated Press.



64 U. S., et al .  V.  Jeff.  County Bd. of Educ., et al.

more is required—a result which brings about substantial 
integration of students. The mandatory assignment of 
students based on race is the method selected to achieve 
this result. This is a new and drastic doctrine. I t is a 
new dimension in constitutional law and in race rela­
tions. It is new fuel in  a field where the  old fire has 
not been brought under control.

PROCEDUEAL B U E PROCESS AND THE APFROV- 
A L  OF THE GUIDEUNSS

The scope of the m ajo rity  holding as to the binding 
force on the  fed era l courts of the HEW  guidelines in 
the a re a  of school desegregation posed a serious sep­
a ra tio n  of pov/ers question. T hat fa c t alone should 
have indicated  th a t the valid ity  of the HEW  guidelines 
w as of p rim ary  concern. One of the m a jo r p rem ises 
of the original or panel opinion is th a t HEW  excuses 
those school system s w hich a re  under court order 
from  com pliance w ith its guidelines; hence, the neces­
sity  of the court setting  the guidelines as m inim um  
stan d ard s  to p reven t the. courts from  being used as an  
escape route. The orig inal HEW  R egulation prom ul­
gated  in 1964 m akes this possible. T itle 45A, C FR , § 
80.4(c). The HEW  sta tem en t of policy of 1965, T itle 45, 
CFR, § 181.4, receded from  this position but the la t­
est HEW  policy supersedes the 1965 sta tem en t which 
includes § 181.4, s u p r a .  See HEW  M arch and De­
cem ber 1906 S ta tem en ts—not reported  in CFR.

The HEW  S tatem ents of Policies for School D eseg­
regation a re  refe rred  to generally  in the school de-



17. S., et al. V. Jeff. County Bd. of Educ., et al. 65

segregation  w orld as guidelines. A t le a s t th ree such 
s ta tem en ts  have  been issued; one in 1965, one in 
M arch  1966, and ano ther in  D ecem ber 1966. There 
ap p aren tly  have been am endm ents. Footnote 2, supra. 
No guidelines w h a tev er w ere  in issue in  the  low er 
courts.® The guidelines of M arch  1966 h ad  not been 
prom ulgated  w hen the cases w ere there . Indeed the 
guidelines of D ecem ber 1966 had  not been prom ulgated  
w hen the cases w ere  subm itted  a fte r a rg u m en t to the 
orig inal panel of th is court. The fa c t th a t they  had  not 
been in issue did not de ter the court in the orig inal 
opinion. T here  it w as held th a t the “ . . . HEW  guide­
lines now in  effect a re  constitu tional and  a re  w ithin 
the s ta tu to ry  au thority  c rea ted  in  the  Civil R ights Act 
of 1964” This p e rh ap s  m ean t all guidelines prom ul­
gated  up to the date of the opinion, D ecem ber 29, 
1966, Any doubt as to the inclusion of the  D ecem ber 
1966 guidelines w as resolved when the m ajo rity  
in the en banc p e r cu riam  opinion s ta te d  th a t 
the 1965 and 1966 HEW  guidelines a re  w ithin 
the  decisions of this court and comply w ith the le tte r 
and spirit of the Civil Rights Act of 1964 and m eet the 
requirements of the United States Constitution. This is 
adjudication without any semblance of due process of 
law. It is an unprecedented procedure and a shocking

® The practice of hearing appeals in school cases on old 
records is very unsatisfactory. We do not know what 
changes in desegregation plans may have been made in 
the interim. It is a rapidly changing public area where 
plans as well as the law are in flux. Cf. Calhoun v. 
Latimer, 1964, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 
288, where the court took note of a supervening plan and 
remanded for an evidentiary hearing in the District 
Court.



66 U. S., et al. V. Jeff. County Bd. of Educ., et al.

departure from even rudim entary due process.'* Approval 
of future guidelines is limited by the  m ajority to those 

. -within lawful limits.”

The theory of the  court escape route and the necessity 
to hold all guidelines valid is apparently developed in 
the  in terest of supporting the national policy, as ex­
pressed in  the  Civil Rights Act of 1964, of eliminating 
discrimination in public education. The general them e 
of the majority is tha t HEW has the carrot in  the form 
of federal fxmds but no stick. A stick is needed in those 
situations w here a school board may not take federal 
fimds. The aim is to make a stick out of the federal coiuts. 
The courts should cooperate w ith HEW but they  cannot 
be made to play the part of any stick tha t HEW may 
formulate and th is is the tenor of the  original opinion. 
Courts are restricted to acting w ithin the  limits of the 
Fourteenth  Amendment in  the school desegregation area. 
I t may or may not be proper for a court to act within 
the limits of what the HEW policy may be in  allocating 
federal school funds. Sometimes there may be a  dif­
ference. A decent respect for the judiciary dictates that 
we make this plain.

* Section 602 of Title IV of the Civil Rights Act of 1964, 42 
USCA, § 2000d-l provides that no rule, regulation or 
order of HEIW shall become effective unless and until 
approved by the President. Whether the guidelines are 
such rtiles or regulations cannot be decided without an 
evidentiary hearing concerning their meaning through 
application. This question has never been put in issue 
in these cases.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 67

THE STANBAUD EEQUIEED BY THE E-IAIOBITY IS 
UNCONSTiTUTIONAELY VAGUE

The original opinion states in two places tha t the 
only satisfactory p lan  for desegregating a school system 
is one tha t works. One looks in vain for a definition of 
“one that works”. This is manifestly a vague standard. 
It cannot be followed. Moreover, it is subject to selec­
tive enforcement and a statute couched in such language 
would be patently unconstitutional.

In another place in the original opinion the statem ent 
is made that substantial integration must be achieved 
in disestablishing dual school systems. This is not clear. 
What is substantial? Is the reference simply to a system, 
or to each school, or to each class room?

The en banc per curiam opinion may have attem pted 
to improve the standard by saying that the criterion for 
determining the validity of a provision in a school de­
segregation plan is w hether the provision is reasonably 
related  to accomplishing the objective of educational 
opportunities on equal terms to all. Who knows the 
meaning of this? There is no mention of result.

These vague standards are perhaps the most mis­
chievous parts of the majority opinions. They place 
unfettered discretion in HEW in the area of school 
desegregation. No school board will ever know when it 
has perform ed its duty to eliminate the dual school 
system. No school board will ever know w hether federal 
funds will be made available. This type of standard



68 U. S., et a l .  V.  Jeff. County Bd. of Educ., et a l .

places school systems under m en and not laws. School 
boards and school patrons are entitled to  a clear and 
definite standard. The problem of desegregation will not 
be solved absent a clear standard.

THE BE JUEE-DE FACTO DOCTEINE IS INFAIR

The unfairness which inheres in the  majority opinion 
stems from the  new doctrine which the original 
panel fashioned under the concept of classifying segrega­
tion into two types: de jure segregation, called apartheid, 
for the  seventeen southern and border states formerly 
having legal segregation; and de facto segregation for 
the  other states of the nation. This distinction, which 
must be without a difference and somewhat hollow to 
a deprived child w herever located, is used as a beginning. 
The original opinion then goes on to require affirmative 
action on the  part of the school authorities in the  de 
jure  systems to integrate the schools. The neighborhood 
school systems of the nation w ith their de facto segrega­
tion are excused. The Constitution does not reach them.®

This reasoniag is necessary to reach the end of com­
pulsory integration in the so-called de jure states. It is 
the  counterpart to overruling the settled construction of 
the Fourteenth Amendment, to be next discussed, that 
integration is not commanded. The restrictions in  the 
Civil Rights Act of 1964 against requiring school racial 
balances by assignment and transportation are written

® The legislative history of the Civil Rights Act of 1964 does 
not show that Congress acted on a de jure-de facto 
basis. I would not attribute such a form of sectionalism 
to the Congress.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 69

out of the  law w ith respect to the de jure  states by 
using the  de ju re-de facto theory. Title IV, §§ 401(b), 
407(a), 42 USCA, §§ 2000c(b), 2000c-6. The overruling 
of the constitutional lim itation removes the other im­
pediment to compulsory integration. The way is thus 
cleared for the new dimension. The only question left 
is when, and to what extent. The authority to HEW is 
ca rte  blanche. We should disavow  the de jure-de facto 
doctrine as being itself violative of the equal protection 
clause. It treats school systems differently. I t trea ts  
children differently. It is reverse apartheid. I t poses the 
question w hether legally compelled integration is to 
be substituted for legally compelled segregation. I t is 
unthinkable tha t our Constitution does not contemplate 
a middle ground—no compulsion one way or the  other.

The de jure-de facto doctrine simply is without basis. 
Segregation by law was legal until the Brown  decision 
in 1954. Such segregation should hardly give rise to 
pimitive treatm ent of those states employing what was 
then  a legal system. The Supreme Court has never so 
indicated. Moreover, the Supreme Court holding in 
Brown was based on the finding that segregated educa­
tion was unequal. How can it be unequal in one section 
of the country and not another? Does Brown interdict 
only segregation imposed affirm atively by law, or does 
its rationale also include the state action of holding to 
neighborhood assignments thereby perpetuating de facto 
segregation? The majority decision limits the rationale 
to  the southern and border states type of segregation 
formerly imposed affirmatively by law. In such event 
compelled integration may be required in the de jure



?0 U. S., et al. V. Jeff. County Bd. of Educ., et al.

states but the logic of reaching this point, because of 
the  restrictions in the  1964 Act to the contrary, excuses 
the  de facto states from the Act and the Constitution.

The real answer is tha t no such new doctrine or theory 
is necessary. The schools of the South and border states 
must do what the Supreme Court has ordered—convert 
dual school systems into unitary nondiscriminatory school 
systems. The constitutional power already exists in the 
courts to see that this is done. This newly discovered 
source of power tends only to disturb settled doctrine. 
Its purpose can only be to require racial balances in the 
de jure states.

THE BRIGGS DICTUM

It is a  settled  constitu tional principle th a t the F o u r­
teenth A m endm ent does not requ ire  com pulsory in­
teg ra tion  but only p roscribes segregation. I t is the 
s ta te  action segregation w hich violates the equal p ro ­
tection clause. We have so stated  in the following 
cases; A very  v. Wichita Falls Independent School 
District, 1956, 241 F.2d 230; Borders v. R ippy,  1957, 
247 F.2d 268; R ippy v. Borders, 1957, 257 F .2d 73; 
Cohen v. Public Housing Administration, 1958, 257 
F.2d 73; City of M ontgom ery v. Gilmore, 1960, 277 F.2d 
364; Boson v. Rippy, 1960, 285 F.2d 43; Stell v. Savan- 
nah-Chatham County Board of Education, 1964, 333 
F.2d 55; E vers  v. Jackson, 1964, 328 F.2d 408; Lockett  
V. Board of Education of Muscogee County, 1965, 342 
F.2d 225.



U. S., et al. V.  Jejj. County Bd. of Educ., et al. 71

This princip le is euphoneously re fe rred  to in the 
orig inal tw o-judge opinion as the Briggs  d ictum . I t 
w as s ta ted  in Briggs v. E llio tt, E.D .S.C., 1955, 132 F. 
Supp. 776, but no court, un til now, h as  ever held 
the F o u rteen th  A m endm ent to m ean  otherw ise. The 
A m endm ent is en tirely  negative in c h a rac te r. The 
orig inal panel, as a p a r t  of its tw o-pronged approach  
to com pulsory in tegration , overru led  th is principle 
suh silentio.

The court, sitting en banc, could overru le th is set­
tled  p rincip le  and the m ajo rity  h a s  now done so to 
an  unknown ex ten t in p a ra g ra p h  3 of the p e r cu riam  
opinion. We will not know the ex ten t until the ques­
tion of ra c ia l p e rcen tages is squarely  presented . H ere, 
as I  understand  the p e r cu riam  opinion, the question 
is tan g en tia l except as it  re la te s  to converting to a 
u n ita ry  school system . In the f irs t sentence of p a r ­
ag rap h  3 the m a jo rity  holds th a t school boards have 
the affirm ative  duty under the F ou rteen th  A m end­
m en t to bring about a un ita ry  school sy stem  in w hich 
there  a re  no Negro or w hite schools—^just schools. We 
can  all ag ree  on th is  statem ent. The opinion does 
aw ay w ith any distinction betw een the te rm s “ in te­
g ra tion” and  “ segregation” in the  field of school de­
segregation law  insofar as  the distinction in te rfe res  
w ith the a ffirm ativ e  duty to b ring  about u n ita ry  
school system s. We can  all ag ree  on this. I t is then 
said  th a t in fulfilling th is duty it is not enough for 
school au thorities to offer Negro children the oppor­
tunity  to a ttend  fo rm erly  all w hite schools bu t th a t 
such opportunity  m u st be coupled w ith  the in tegra-



72 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

tion of faculty , facilities, and  activ ities. Then, w ith­
out m ore , the decisions of th is court setting  out this 
p rincip le  a re  overru led  to the ex ten t th a t they  con­
flict w ith the view of the m ajo rity . I am  left in doubt 
as to w hether th is  is a re tren ch m en t from  the panel 
decision. T im e will tell.

I t  m ay  be added th a t if the court is  overruling this 
settled  constitu tional principle, it b rings th is c ircu it 
into conflict w ith  the F irs t, F ourth , Sixth, Seventh, 
E ighth , and  Tenth  C ircuits. Springfield  v. Barksdale, 
1 Cir., 1965, 348 F .2d 261; B radley v. School Board of 
R ichm ond, V irginia, 4 Cir., 1965, 345 F .2d 310; Sw ann  
V.  Charlotte-M ecklenburg Board of Education, 4 Cir., 
1966, 369 F .2d 29; Deal v. Cincinnati Board of E duca­
tion, 6 Cir., 1966, 369 F.2d 55; Bell v. School, C ity of 
Gary, Indiana, 7 C ir., 1963 , 324 F.2d 209, cert, den., 
377 U.S. 924, 84 S.Ct. 1223, 12 L .Ed.2d 216; Clark v. 
Board of Education of L ittle  Rock, 8 C ir., 1966, 366 
F.2d 661; and  Downs v. Board of Education of K ansas  
City, 10 Cir., 1964, 336 F.2d 988, cert, den., 380 U.S. 
914, 85 S.Ct. 898, 13 L .Ed.2d 800. The case of Taylor 
V.  Board of E ducation of N ew  Rochelle, 2 C ir., 1961, 
294 F.2d 35 is not to the con tra ry . T here  the  rem edy 
fashioned w as freedom  of choice im posed on neigh­
borhood assignm ents. The case of Board of E duca­
tion of O klahom a City v. Dowell, 10 Cir., 1967, . . . .  F .
2d ____ [slip opinion dated  Ja n u a ry  23, 1967], does
not ap p ea r to be to the con tra ry . The court distin­
guished Downs by pointing out th a t Dowell involved 
a  finding of bad  fa ith  on the p a r t  of the school board  
in carry ing  out the  orig inal o rder of the D istric t Court 
to d isestab lish  the dual school system .



U. S., et a l .  V.  Jeff. County Bd. of Educ., et al. 73

It is h a rd  to know ju s t w h a t the court has held as 
betw een the panel decision and the en banc per cu ri­
am  decision. The labored  effort to estab lish  the de 
jure-de facto  concept and to overru le th is consti­
tu tional princip le h ard ly  seem s ca lcu la ted  as an  ex­
ercise in sem antics. I t is m ore in the n a tu re  of ju ­
dicial lagniappe for use on ano ther day. We w ill know 
the full im port of the opinions w hen a  m otion is p re ­
sented to assign  children on the  basis of race  so as 
to com ply w ith w hat each  p a rticu la r m ovant m ay 
deem  to be, in his view, a desirab le  ra c ia l com posi­
tion for the p a rtic u la r  school or schools. This leaves 
the law  in a v e ry  unsatisfac to ry  s ta te  and portends 
of u tte r confusion for school boards.®

A good example of the problems to be encountered in eliminat­
ing the dual school system is to be seen in the Taliaferro 
County, Georgia school system. See Turner v. Goolslry, 
S.D. Ga., 1965, 255 F.Supp. 724, for background. There 
were only two schools in the system and the board 
desegregated, effective in September 1966, on the basis 
of converting the white school into an elementary school 
and the Negro school into a high school. A perfect 
racial balance would be accomplished under the plan. 
In 1965 there were approximately 600 Negro children and 
200 white children enrolled in the system. The records 
of the Georgia State Department of Education as of 
January 19, 1967 indicate that there are now 527 Negro 
students enrolled in the Taliaferro County school system 
and no v,rhite students. This result raises serious ques­
tions. How is a “plan that works” to be formulated for 
this school system? What number of white students 
will be needed to make it work? Where will they come 
from? How will they be selected? Will a lottery system 
be used? Will they be compelled to attend the Taliaferro 
County school system? If so, how? Will the taxpayers 
of the system be compelled to pay for educating chil­
dren brought in from outside the system? Will the court 
ignore system lines although the laws of Georgia provide 
for separate school systems? What measures will be em­
ployed to avoid resegregation through families removing 
their residences from the school system? Granted this 
is an extreme example but it is nevertheless a factual 
situation.



74 U. S.) et al. v. Jejj. County Bd. of Educ., et al.

TH E D E C R E E

The use of a uniform  decree, as the m a jo rity  points 
out, is not novel. O ur school desegregation  decisions 
have tended tow ard  uniform ity  in the freedom  of 
choice m ethod of assignm ent and in  the ad m in is tra ­
tion of such plans. A uniform  decree v/ithin the lim its 
of m in im um  s tan d a rd s  would aid school boards and 
the d is tric t courts  but the uniform  decree en tered  in 
this case  can  be faulted because of its detail. This 
com es about through the unbounded a im  of the court 
to tra c k  the HEW  guidelines. I t m u st be rem em b ered  
th a t decrees m ay  have to be enforced by the court 
and a court should guard  against being pu t in the un­
feasible position of having to h e a r m otions based  on 
the alleged b reach  of some m inor and  insubstan tia l 
provision of its decree. I t is also not c lear to m e th a t 
sufficient la titude  is left to the d is tric t courts to ad ­
ju s t such p rac tica l difficulties as m ay  a rise  under 
the detail of the decree.

HEW has an advan tage  over the d is tric t courts, 
as the court has now re s tric ted  them , in the execu­
tion of school desegregation  plans. HEW  m ay  delay, 
excuse, and change. HEW  m ay  v a ry  its requ irem ents 
as betw een system s. The m ajo rity  has left no such 
pow er in the d is tric t courts. They a re  adm onished 
to follow HEW but it is a sad  day for the d is tric t 
courts, and fo r the  entire jud ic ia ry  as  w ell as for the  
p rincip le  of separa tion  of pow ers w hen the only dis­
cretion left them  is w ithin the lim its to be set by HEW.



U. S., et al. V. Jeff.  County Bd. of Educ., et al. 75

It also would ap p ea r im proper to constitu te  the 
courts as overlords of the  school system s of this c ir­
cuit to the extent done in the uniform  decree. The dis­
tr ic t courts m u st require school equalization to the 
extent set out in p a ra g ra p h  VI of the decree, i ts  scope 
is only a short step from  taking  over curricu lum . The 
building im provem ent provision m oves the courts in 
the d irection of levying local taxes. O rdering school 
boards to discontinue the use of buildings could 
am ount to taking property  vdthout due process and 
ju s t com pensation. Tliese a re  d ras tic  m easu res  and 
th e re  a re  no fac ts  before the court to dem onstrate  
the  necessity  for them . It is en tirely  p ro p er for the 
D istric t Court to d isapprove new construction w here 
it w ill p e rp e tu ate  the  dual school system  but th is is a 
m a tte r  for com plaint and hearing ra th e r  than  for ad­
vance supervision as is requ ired  under § VII of the 
decree.

By w ay of sum m ation, I re ite ra te  th a t the m ajo rity  
opinions a re  unfair to the ex ten t th a t  they  d iscover or 
estab lish  and then  re ly  upon the de jure-de facto divi­
sive sectional theory. The opinions expand, without 
constitutional authority , the  requ irem en t th a t dual 
school system s be converted into som ething m ore 
than  u n ita ry  school sy s te m s : to-wit, th a t substan tia l 
in tegration  be achieved in the  respective school sys­
tem s. This added requ irem en t is itself im perm issi­
bly vague as a s tan d a rd  w ithout fu rth er delineation. 
The opinions unduly re s tr ic t personal liberty  to the 
ex tent th a t com pelled in tegration  is approved or re-



76 U. S., et al. v. Jeff.  County Bd. of Educ., et al.

quired, and in this reg a rd  im properly  overtu rn  and 
expand the settled  m eaning of the  F o u rteen th  A m end­
m ent. The court e r rs  in p rem a tu re ly  holding th a t the 
guidelines issued by HEW  a re  constitutional and w ith­
in the scope of the Civil R ights Act of 1964. No guide­
lines w hatever w ere considered, by the d istric t courts. 
Some of those approved had  not been w ritten .

My owm view is th a t the law  m akes no such requ ire ­
m en t as the m a jo rity  of the court im poses. No such 
rad ica l d ep artu re  is necessary  to accom plish w hat 
the  Suprem e Court has d irected  the lower courts to 
accom plish—the elim ination of the dual school sys­
tem . The Suprem e Court has not said  th a t every  
school m ust have children from  each race  in its s tu ­
dent body, or th a t every  school room  m ust contain 
children from  each race , or th a t there m u st be a 
rac ia l balance or a n ear rac ia l balance, or th a t there  
be assignm ents of children based  on race  to accom ­
plish a resu lt of substan tia l in tegration . The Consti­
tution does not requ ire  such. We would do w ell to 
“ stick to our la s t” so as to ca rry  out the Suprem e 
C ourt’s p resen t direction. It is no tim e for new no­
tions of w hat a free  society em braces. In teg ra tion  
is not an end in itself; a fa ir  chance to a tta in  person­
al dignity through equal educational opportunity is 
the goal. My view, however, is now lost in this 
court; hence this DISSENT.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 77 

COLEMAN, C ircuit Judge. SEPA RA TE OPINION.

These cases rem ind  m e of w hat Mr. Chief Ju stice  
Chase said  in Texas v. W hited

“We a re  ve ry  sensible of the m agnitude and 
im portance  of this question, of the  in te re st it 
excites, and of the difficulty, not to say  im pos­
sibility, of so disposing of it as to satisfy  the 
conflicting judgm ents of m en equally enlight­
ened, equally upright, and equally patrio tic .
But we m eet it in the case, and we m ust de­
term ine it in the exercise of our best judg­
m ent, under the guidance of the C onstitution 
a lone.”

This Court, exercising only such appellate  ju risd ic ­
tion as  Congress has seen fit to confer upon it, con­
fron ted  solely by a question of how best to p reserve  
an  a lread y  settled  C onstitutional right, should be 
guided by the Constitution alone and by nothing else.

No one denies tlia t to an  incalculable degree the 
fu tu re  of th is C ountry depends inescapably  upon the 
continued, constantly  im proved education of all its in­
habitants. Nor can it very  successfully  be denied tha t 
the best p rac tica l hope of a tta in ing  this objective is 
to be found and m ain tained  in the public schools. It 
becam e p lain  over a hundred y ears  ago th a t p riva te  
schools did not and could not reach  the m asses of the 
people.

Com pulsory d iscrim ination  in the public schools, 
founded on race  or color, is Constitutionally dead. No

1 74 U.S. 700,720; 7 Wall 700; 19 L. Ed. 227 (1868).



78 U. S., et al .  V.  Jeff.  County Bd. of Educ., e t  al.

Judge would dispute this. E x isten tia lly  it is like the 
wounded an im al Vv''hicfa bounds on for awhile a fte r it 
has been fa ta lly  shot. The c ritica l p roblem  now is th a t 
we m ust not w reak  irrep a rab le  in ju ry  upon public 
schools while executing the sentence of death  against 
com pulsory segregation. Thoroughly realizing this, the 
Suprem e C ourt left the details of the erad ication  to 
the sound jud icia l d iscretion of the D istric t Courts, 
sub ject only to appellate  review . To this day this as­
signm ent h as  not been changed. I do not suppose in 
our fo rm  of governm ent th a t it could be changed. 
Courts alone m ake binding adjudications on questions 
of Constitutionality, and litigation m ust begin a t the 
D istric t level.

The public schools of the Nation, not ju s t those of a 
p a rtic u la r  section, a re  now caught up a t the second 
battleground, legal and  political, not about the death  
of unlaw ful d iscrim ination  bu t about who and how 
m any  of any  p a rtic u la r  race  shall go to any p a rticu la r 
school w ith  how m any  m em b ers  of som e other race. 
If one looked only a t the g rea t volum e of litigation 
and its accom panying strife  and publicity  he would 
jum p to the conclusion th a t nothing m a tte rs  bu t the 
rac ia l com position of any educational facility. This is 
pursued reg ard less  of the rea l preferences, exercised, 
in genuine freedom , of those d irectly  involved, th a t is, 
those who m ust have an education. In the u ltim ate  
th is could becom e a g re a t tragedy  for those m ost af­
fected. An educational house divided against itself 
m ay have trouble standing. I t certa in ly  cannot oper­
a te  w ith m axim um  effectiveness.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 79

In  the  light of these considerations, as one who w as 
able to secure  an education solely because there  w as 
a public school in w hich th e re  w as an  opportunity  to 
obtain it, I shall now express m y views, as one Judge 
of th is Court, individually, as to the decision now 
about to be rendered .

In  doing so, I proceed upon the thesis th a t th e re  is 
nothing a t all inconsistent about being, a t the sam e 
tim e, both a  loyal A m erican  and a  Southerner. I  think 
A ndrew  Jackson  conclusively settled th a t point over a 
cen tury  ago.

I t is p a rticu la rly  unfortunate if our decision in these 
cases is in any w ay to be grounded on old scores 
against the S ta tes of this Circuit. This is con tra ry  to 
A m erican  legal trad ition ; it opens old wounds, re ­
kindles old fires, and lends itself as a w eapon to the 
futile cause of fu r th e r in transigency. P rio r to 1954, 
rac ia lly  sep ara te , if equal, schools had  not been con­
dem ned as im constitutional. One is not to be punished 
or h a ra ssed  for an ac t which w as law ful w hen it w as 
done’. Indeed, such condem nation in th is instance 
would inferen tia lly  include some of the m ost highly 
respected Judges who ever g raced  the Suprem e Court. 
They had  opportunities to condem n the system  but, in 
the exercise of p e rfec t jud icia l in tegrity , did not. As 
I understand  it, an O m nipotent God does not change 
yesterday  when it is p a s t and gone. C ertain ly  this 
Court cannot do it. We a re  now concerned w ith  rec ti­
fying the e rro rs  of the p resen t and forestalling , if we 
can. the an tic ipated  e rro rs  of the fu tu re. I decline to 
p a rtic ip a te  in any ex post facto  condem nations. I pre-



80 U. S., et a l .  V.  Jeff. County Bd. of Educ., et a l .

fe r to believe th a t this Court is not de liberate ly  doing 
so.

I fu rth e r believe th a t w hatever the F ou rteen th  
A m endm ent requ ires of any S tate it requ ires of all 
States. If w e a re  requ iring  som ething h ere  in  the en­
fo rcem ent of F ourteenth  A m endm ent righ ts th a t 
should not be requ ired  of all fifty S ta tes  then  we 
have exceeded our au thority  and we have m isap ­
plied the Constitution. I ag ree  w ith the action  of the 
m a jo rity  opinion in disclaim ing any in tention of 
passing  on the  valid ity  of educational operations in 
o ther C ircuits. T hat m a tte r is not and cannot be be­
fore us.

I t is out of reg a rd  for the desirability  of C onstitu­
tional uniform ity  th a t I agree, in principle, w ith the 
a ttem p t to fo rm ulate  a decree for the fu tu re  guid­
ance of D istric t Courts in this C ircuit. It is obvious 
th a t such a decree  cannot ad jud icate  cases in ad­
vance of a hearing in the D istric t Court, nor can it be 
applied in the absence of fac tual justification.

The decree  speaks for itself, of course, but I in te r­
p re t it to deal a t th is point w ith m aking freedom  of 
choice a rea lity  instead  of a prom ise. I do not under­
stand  th a t this C ourt has abandoned freedom  of 
choice, if th a t choice is rea l instead  of illusory.

Nor do I  understand  it to d irect th a t there  shall be 
a  specified percen tage  of the various races  in any 
p a rtic u la r  public school or th a t there  shall be p ropor­
tional representation  of the races  brought about by



17. S., et al. V. Jeff.  County Bd. of Educ., et al. 81

a rb itra ry  o rder. I ag ree  w ith Ju dges Gewin and  Bell 
th a t the opinion strongly  portends such a  possibility. 
But p a ra g rap h  5 of the en banc opinion certa in ly  dis­
claim s any such intention. The D is tric t C ourts a re  
left free  to consider all the evidence, including rac ia l 
a ttendance  percen tages, in determ in ing  w hether the 
children of any p a rtic u la r  school d is tric t have been 
offered a reality  instead  of a shadow. I t  is to be an­
tic ipa ted  th a t the bridge will la te r have  to be crossed 
when we come face to face w ith  a  situation  w herein 
th e re  can  be no doubt of the freedom  but the resu lts 
a re  displeasing and a re  a ttack ed  solely for th a t re a ­
son.

I think it all boils down to this. We once had  the 
doctrine of sep a ra te  but equal. We did not, I am  
so rry  to say, pay  m uch atten tion  to the “ equal” . We 
now have freedom  of choice. As Judge  Bell so splen­
didly s ta tes  it, we a re  now going to have to m ake ce r­
ta in  of the “ freedom ” . To fail in th is is to invite other 
action w hich a t th is tim e I reg a rd  as unconstitution­
al bu t w hich could soon be m ade Constitutional.

The decree is not as I would have w ritten  it had  I 
been charged  w ith sole responsib ility  for the effort. 
No offense is intended w hen I doubt th a t it is perfect. 
F o r exam ple, the en hanc opinion says th a t “ boards 
and officials adm inistering  public schools in th is c ir­
cuit have the  a ffirm ative  duty under the F ourteen th  
A m endm ent to bring about an  in tegrated , u n ita ry  
school sy stem ” . Yet II (o) of the decree prohibits 
any official from  influencing p a ren ts  o r students in



82 U. S., et al. V. Jeff.  County Bd. of Educ., et al.

the exercise  of a  choice. In  o ther w ords, if the offi­
cials feel th a t N egro ch ildren  should be encouraged 
to apply for adm ission to a fo rm erly  w hite school 
they a re  prohib ited  from  doing so. They a re  to be 
condem ned, on appearances, if no N egro child 
chooses to a ttend  a fo rm erly  w hite school; they a re  
not allowed, in the  exercise of o rd inary  freedom  of 
speech, to discuss the m a tte r  w ith  N egro children 
w ith a  view  to th e ir exercising a  preference in favor 
of a ttending  a  school they  have  not fo rm erly  a ttend ­
ed. The school official cannot win. In  one b re a th  he 
is told to ac t; in the nex t he is im m obilized.

E xperience will hone aw ay these  inconsistencies 
and im possibilities. This Court h as  d rafted  uniform  
decrees on p rio r occasions. These a re  now speedily 
outm oded, if not abandoned. Judges, like o ther hu­
m an  beings, do not alw ays w rite  in g ran ite ; they 
often find th a t they have only m ark ed  in the sand.

Since the HEW  guidelines w ere not the subject of 
a  hearing  in the  Courts below I do not d iscuss them  
here . In  m y view, they a re  not now before this Court.

The focal point of the whole m a tte r  is the  action of 
the en banc opinion repudiating  Briggs v. E llio tt 
and over-ruling our p rio r opinions w hich followed 
the sam e rationale, see Footnotes 1 and 2 for the ci­
tations.

I t  is m y view th a t these p rio r cases w ere correctly  
decided. O ther C ircuit C ourts in th is C ountry appear



U. S., e t  a l .  V.  Jeff.  County Bd. of Educ., e t  a l . 83

to feel likewise. If the reasoning in these over-ruled 
cases is in co rrec t then we sim ply face the  following:

The freedom  of the N egro child to a ttend  any pub­
lic school w ithout reg a rd  to his race  or color, firs t 
secured  in the Brow n  cases, is again  lost to h im  a fte r 
a short life of less th an  th irteen  years. He is left open 
to a  fu tu re  ad judication  th a t although he does not 
w ish to a ttend  School A and has in fac t expressed  a 
desire  to go elsew here th is is of no im portance. Be­
cause of his race  he can  be assigned  to a p a rticu la r 
school to achieve a  resu lt sa tisfac to ry  to som eone 
who probably  does not even live in the d is tric t but 
who w ishes to m ake a rac ia l point. Thus the child re ­
enters the sam e rac ia l d iscrim ination  from  w hich he 
escaped so short a tim e ago. He rem ains bogged in 
race . M oreover, w hen Negro children a re  to be se­
lected  by som eone, we know not who, to com ply w ith 
such a  rac ia l assignm ent, on w hat basis will the se­
lection be m ade? How will the wishes of som e be re­
spected and others re jec ted , solely because they 
happen  to be of the  Negro race? We a re  not freeing 
these children of rac ia l chains. We a re  com pounding 
and prolonging the difficulty.

The tru e  answ er rem ains, give h im  absolute free ­
dom  of choice and see to it th a t he gets th a t choice 
in absolute good faith.

In  conclusion, I w ish to say th a t in m y own case a 
burning desire to obtain an  education in the face of 
im possible c ircum stances is not a theoretical experi­
ence encountered only by others. I did not have an



84 17. S., et al. v. Jeff.  County Bd. of Educ., et al.

opportunity  to a tten d  school until I w as eight y ears  
of age. The delay w as quite unavoidable; th e re  sim ­
ply  w as no school to a ttend  a t th a t p a rtic u la r  tim e. 
My m other taugh t m e how to read  and w rite , to add 
and  su b trac t. My to ta l sym path ies a re  w ith the 
cause of education free ly  availab le  to all. This, of 
course, under the C onstitution requ ires  no special 
p riv ileges for any group or segm ent of the popula­
tion. I re g re t th a t w here once the concern  w as for 
schools to a ttend  we now have so m uch strife  about 
the details  of utilizing those so read ily  availab le.

W hat I have said  h ere in  is w ith  the g re a te s t defer­
ence for m y  B re th ren  who th ink otherw ise. We m ust 
and shall continue to w ork together according to our 
individual judgm ents of the law . The en banc deci­
sion m ay  portend m ore  problem s ahead  th an  we 
have heretofore  encountered.

I concur in the  rev e rsa l of the Judgm en ts  below, 
but m y views of the issues generally  a re  as here in  
set forth.

GODBOLD, C ircu it Judge, d issen tin g :
I respectfu lly  dissent. I w ish not to delay  appellate  

p rocedures if any of the p a rtie s  desire  to pursue  them . 
Therefore, I am  recording m y d issen t a t th is tim e 
and w ill file a d issenting opinion a t a la te r  date.

Adm. Office. U. S. Courts—E. S. Upton Printing Co., N. O., La.