Thomie v. Houston County Board of Education Brief of Appellants

    IN THE
UNITED STATES COURT OP APPEALS 

POR THE FIFTH CIRCUIT 
NO. 28407

OSCAR C. THOMIE, JR. et al.,
plaintiffs-Appellants,

v.
HOUSTON COUNTY BOARD OP EDUCATION

De fendants-Appe1lees.

Appeal from the United States District Court for the Middle 
District of Georgia, Macon Division

BRIEF FOR APPELLANTS

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

fegg.

Issues Presented for Review ..........................  1

Statement of the C a s e ................................  2

Argument

I. The District Court Erred In Approving 
Free Choice In Houston County Because 
The Record Conclusively Shows The 
Existence Of Feasible Alternatives 
Which Would More Rapidly Create A
Unitary School System ..........................  5

II. The District Court Erred In Permitting 
The School District to Limit The 
Operation Of Its Free Choice Plan At 
Predominantly White Schools Although 
No Such Limitation Was Effected at 
All-Negro Schools ..............................  12

III. The District Court Erred In Allowing
Appellees To Close The Elberta Elementary 
School ......................................... ^

Conclusion 15



TABLE OF CASES
Page

Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968) . . . .  8

Bowman v. County School Board of Charles City
County, 382 F.2d 326 (4th Cir. 1 9 6 7 ) ........... 7

Brice v. Landis, Civ. No. 51805 (N.D. Cal.,
August 8, 1 9 6 9 ) .............................. .. • 14

Felder v. Harnett County Bd. of Educ., 409 F.2d
1070 (4th Cir. 1969) ............................  14

Graves v. Walton County Bd. of Educ., 403 F.2d 189
(5th Cir. 1968) .................................  8

Green v. County School Board of New Kent County,
391 U.S. 430 (1968)..............................  2,3,6,7,9

Hall v. St. Helena Parish School Board, ___ F.2d
___  (5th Cir., May 28, 1 9 6 9 ) ...................  3

Hilson v. Ouzts, Civ. No. 2449 (M.D. Ga.,
August 8, 1 9 6 9 ) ..................................  8,9

United States v. Board of Educ. of Baldwin County,
___  F.2d ___  (5th Cir., July 9, 1 9 6 9 ) ........... 6,10,11

i i



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 28407

OSCAR C. THQMIE, JR. et al..
Plaintiffs-Appellants,

v.
HOUSTON COUNTY BOARD OF EDUCATION,

Defendants-Appellees.

Appeal from the united States District Court for the Middle 
District of Georgia, Macon Division

BRIEF FOR APPELLANTS 

Issues presented for Review

1. Whether the appellees demonstrated that their freedom of 
choice plan "promises realistically to work now" although four years 
of operation under free choice had resulted in but 21% of Houston 
County Negro students attending predominantly white schools and five 
schools without a single white student enrolled,

2. Whether the district court erred in approving continued 
freedom of choice despite testimony that pairing, zoning and



consolidation would result in greater integration and despite 
submission of an H.E.W. comprehensive plan of desegregation 
utilizing those techniques.

3. Whether the district court should have required attendance 
zoning of the all-Negro Elberta School, which is but one year old 
and which is located in a biracial community, instead of allowing 
the facility to be closed and its students bussed to distant 
schools.

Statement of the case
This is a school desegregation action.
On May 20, 1965, the Houston County schools were ordered by 

federal district court to desegregate on a gradual basis extending 
over several years. This order was subsequently amended April 24, 
1967 and a full Jefferson-type decree was entered June 22, 1967, 
requiring a mandatory exercise of choice by students in all grades 
beginning 1967-68.

The Houston County Board of Education operates 23 public 
schools (A. 122-23), of which number five have enrolled only Negro 
students (Ibid). During the four years in which freedom of choice 
has been offered to students in the county, no white child has ever 
exercised a choice to enroll in one of these five schools (A. 68). 
Through the same period, Negro enrollment in predominantly white 
schools has increased only to 21%.

After the decision in Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968) and companion cases, appellants

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chosen in the past, and they were unlikely to choose in the future, 
to attend the schools in Houston County which had been built to 
serve Negro students (A. 53-55, 68); that the Board delayed 
consideration of phasing out an all-Negro high school until 
construction was completed (A. 75); that the Elberta and Southside 
schools, if zoned, would have biracial enrollments; and that 
schools in the city of perry would all be substantially integrated 
under a zoning or pairing plan (A. 79-80). However, the 
Superintendent said that in his opinion such a plan would lead to 
a loss of "quality education." (A. 81).

At the conclusion of the hearing, the district court ordered 
(A. 19-21) the Board to file proposed modifications of its freedom 
of choice plan and requested the Department of Health, Education 
and Welfare to prepare a proposed desegregation plan, within 20 
days of its order.

The school district's plan (A. 111-16), approved below, 
proposed to continue freedom of choice; to assign teachers on a 
five-to-one (Negro-to-white) ratio at the all-Negro schools (A. Ill) 
to close grades 9-12 at all-Negro Pearl Stephens High School, 
transferring the students to white schools (A. 112); to close the 
all-Negro Elberta Elementary School (A. 113); to "institute a 
study" of closing grades 7 and 8 at pearl Stephens in 1970 (A. 113) 
and to limit Negro choices at each predominantly white school so

2/that not more than 30% of the enrollment would be Negro (A. 113).
The Board also proposed the class exchange programs 

outlined in the order appealed from, A. 194-95.2 7



The H.E.W. plan (A. 117-80), on the other hand, proposed 
zoning for most elementary schools and a feeder system or pairing 
for the upper grades (A. 124-25). Under this plan, all schools 
would have integrated student bodies (A. 126-27). Under free 
choice, no whites could be expected to enroll in Negro schools 
(A. 53-55).

Following submission of the plans and the Board's objections 
to the H.E.W. plan (A. 180A-189), the district court approved 
continued free choice for Houston County on August 12, 1969 
(A. 190-96). Notice of Appeal was filed August 22, 1969 (A. 201).

ARGUMENT
I

The District Court Erred in 
Approving Free Choice in Houston 
County Because the Record 
Conclusively Shows The Existence 
Of Feasible Alternatives Which 
Would More Rapidly Create A Unitary 
School System

The court erred in approving appellees' desegregation plan 
because free choice has failed to achieve a unitary system in 
Houston County and there is no likelihood that it will do so in 
the predictable future.

Freedom of choice first went into effect in Houston County 
in September 1965, some nine years after Brown v. Board of 
Education, 347 U.S. 483 (1954). In 1967, a Jefferson-type decree 
was entered and freedom of choice was ordered for the entire 
system. Four years have elasped since free choice was first

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The H.E.W. plan (A. 117-80), on the other hand, proposed 
zoning for most elementary schools and a feeder system or pairing 
for the upper grades (A. 124-25). Under this plan, all schools 
would have integrated student bodies (A. 126-27). Under free 
choice, no whites could be expected to enroll in Negro schools 
(A. 53-55).

Following submission of the plans and the Board's objections 
to the H.E.W. plan (A. 180A-189), the district court approved 
continued free choice for Houston County on August 12, 1969 
(A. 190-96). Notice of Appeal was filed August 22, 1969 (A. 201).

ARGUMENT
I

The District Court Erred in 
Approving Free Choice in Houston 
County Because the Record 
Conclusively Shows The Existence 
Of Feasible Alternatives Which 
Would Mora Rapidly create A Unitary 
School System

The court erred in approving appellees' desegregation plan 
because free choice has failed to achieve a unitary system in 
Houston County and there is no likelihood that it will do so in 
the predictable future.

Freedom of choice first went into effect in Houston County 
in September 1965, some nine years after Brown v. Board of 
Education, 347 U.S. 483 (1954). In 1967, a Jefferson-type decree 
was entered and freedom of choice was ordered for the entire 
system. Four years have elasped since free choice was first

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instituted, but only 21% of the district's Negro students attend 
predominantly white schools and no white students have ever chosen 
all-Negro schools; yet appellees still insist upon using this 
method.

It is clear that free choice can no longer be tolerated in
Houston County. In Green v. County School Board of New Kent County
Virginia, 391 U.S. 430 (1968), the Supreme Court enunciated the
basic law on freedom of choice. In condemning the free choice plan
in that case, the court said:

The burden on a school board today 
is to come forward with a plan that 
promises realistically to work and 
promises realistically to work now.

Free choice has accomplished little in Houston County except
to open the doors of white schools to black students. But this
Court said in un~'.*;ed States v. Board of Education of Baldwin County,
____  F.2d ____  (5th Cir. 1969) ;

The indispensable element of any 
desegregation plan, the element 
that makes it work, is the school 
board's recognition of its 
affirmative duty to disestablish the 
dual system and all its effects.
That duty is not discharged simply by
opening the doors of white schools to
Negro applicants. The school from
which the NegroelT come must be
desegregated as well as the schools
to which they go. And in any
situation the school board should
choose the alternative that promotes
disestablishment of the dual system
and eradication of the effects of
past segregated schooling. (Emphasis added)

6



we urge that, as stated in Green and other cases, freedom of
choice is not an end in itself. Judge Sobeloff in Bowman v. County
School Board, 382 F.2d 326 (4th Cir. 1967), stated:

Freedom of choice is not a sacred 
talisman; it is only a means to a 
constitutionally required end. . . 
the abolition of the system of 
segregation and its effects. If 
the means prove effective, it is 
acceptable, but if it fails to 
undo segregation, other means must 
be used to achieve thc.s end. The 
school officials have the continuing 
duty to take whatever action may be 
necessary to create a unitary,non** 
racial system.

Not only did the Board and the district court fail to 
seriously consider any of the alternatives to freedom of choice 
which were available, including those suggested by the Department 
of Health, Education and welfare, but the Board had only the 
vaguest objections that pairing or zoning would result xn a loss

of "quality education."

F ---The district court's order approving the Board's P*®*
(A. 190 et seq.) fails to state why that plan is preferable 
to the hTe’.w V plan. There is no specific assessment of the 
H.E.W. plan. Compare Green, supra, 391 U.S. at

It is incumbent upon the school board 
to establish that its proposed plan 
promises meaningful and immediate 
progress toward disestablishing state- 
imposed segregation. It is incumbent 
upon the district court to weigh that 
claim in light of the facts at hand and 
in light of any alternatives which may 
be shown as feasible and more promising 
in their effectiveness.

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Appellees free choice has achieved and is achieving
desegregation (A. 7-8), bet in light of the fact that only 21% of
c-.i l negro students are enrolled in v/hite schools and no whits
students are in black schools, one finds it hard to accept thi*
conclusion* To the contrary, the results indicate the failure of
the method; the district court should have followed the rule
established in Adams v. Mathews, 403 !?.2d 181 (5th Cir. 1966?t

If in a school c.-.str A  there are still 
all-Negro school?? or .nly a small 
fraction of Nag> ' as o :  .rolled in white 
schools or no substantial integration of 
faculties and school activities then as 
a matter of law, the existing plan fails 
to meet the constitutional standards as 
established in Geaen. (Ercphasis added)

In Graves v. Wai.ton county Board of Fducntion, 403 P.2d 189 (5th
Cir. 1968), thi Cou. i reaffirmed its ruling and added;

i11-Negro schools in this circuit are 
put on notice that they must be integrated 
or abandoned by the commencement of the 
next school year.

in its opinion (A. IS 6) the district court refers approvingly 
to its opinion in Hr '..son v. Ouzts, Civ. No„ 2449 (M..D. Ga.,

yAugust 8, 1969) in support of the Court's approval of free choxce. 

3/ ' (continued)
The obligation of the district court, 
as it always has been, is to assess the 
effectiveness of a proposed plan in 
achieving desegregation. There is no 
universal answer to complex problems 
of desegregation; there is obviously no 
one plan that will do the job in every 
case. The matter must be assessed in 
light of the circumstances present and 
the options available in each instance.

4/ on appeal to this Court, No. 28491.

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in Hilson the district court made clear its adherence to the long

discarded Briggs dictum:
1?he segregation outlawed by Brown 
was enforced segregation based on 
race. • .and not segregation or 
separateness voluntarily chosen 
and preferred by the persons 
involved, [slip opinion at p. 5 J .

Applying Green, supra, to this case, freedom of choice does
not meet the Constitutional test. The question then is whether
the institution of the steps in appellees' amended plan cures this
defect. Appellants emphatically feel it does not.

The amended plan consists primarily of a series of class
exchanges between white and Negro schools in specific subject
areas that are elective. How such an arrangement will do away with
the racial identity of the black schools escapes appellants. To
the contrary, the schools will retain their racial identity because
after the exchange period, students will return to their respective
schools - Negro students to Negro schools and white students to
white schools. A student does not become a member of a student
body simply because he takes a course there. He is considered a
student of the school where he has registered and where his records
are kept. No one could realistically say that a student who takes
one course at Pearl Stephens High but who has registered at Warner
Robins High and takes five courses there, is really a member of
the pearl Stephens student body.

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These courses are purely elective and as such there is no 
assurance that white students will enroll* In fact, it is 
highly probable that they will not, in light of the failure of 
white students to choose to attend Negro schools on a full-time 
basis prior to this exchange program. Likewise, the driver 
education program will not change the racial identity of Negro 
schools. The program is to be conducted on a site near two white 
schools (A. 63); students are to be transported to this site for 
instruction from all of the Warner Robins area secondary schools* 
Under these arrangements, it is extremely difficult to envision 
how this program will transform a Negro school into an integrated 
one. Similarly, the proposal for conducting summer schools in 
Negro schools has no merit. Again this requires the elective chc:.Cv 
of white students to enroll in these summer schools. Even if 
significant number of white students did enroll in summer school, 
this would still do nothing towards desegregation of Negro schools 
during the regular sessions.

The Board and the district court rely upon language in United
States v. Board of Education of Baldwin County, ___  F.2d (5th
Cir., July 9, 1969), where this Court said:

Steps which may be taken by the 
Board to eliminate racial identifica­
tion of the present all-Negro schools, 
in addition to the specific require­
ments of faculty integration, are the 
establishment of vocational or other 
special courses of instruction, summer 
schools and desegregation of staff and 
transportation and all types of extra­
curricular activities and facilities.

10



These cov.reas are purely elective and as such there is no 
assurance that white students will enrollo In fact, it is 
highly probable that they will not, in light of the failure of 
white students to choose to attend Negro schools or a full-tiwe 
basis prior to this xchar.ye program. IikawiLO.,. the driver 
education program will not change the racial identity of Negro 
schools. The program is to be conducted on a site near two white 
schools (A. 63); students are to be transported to this site for 
instruction from all of the Warner Robins area secondary schools* 
Under these arrangements, it is extremely difficult to envision 
how this program will transform a Negro school itofco an integrated 
one. Similarly, the proposal for conducting summer schools in 
Negro schools has 1 0  merit. Again this requires the elective cho:.c> 
of white students to enroll in these summer schools. Even if 
significant number of white students did enroll in summer school, 
this would still do nothing towards desegregation of Negro schools 
during the regular sessions.

The Board and the district court rely upon language in United
States v. Board of Education of Baldwin County, _____ F «2d (5th
Cir., July 9, 1969), where this Court said:

Steps which may be taken by the 
Board to eliminate racial identifica­
tion of the present all-Negro schools, 
in addition to the specific require­
ments of faculty integration, are the 
establishment of vocational or other 
special courses of instruction, summer 
schools and desegregation of staff and 
transportation and all types of extra­
curricular activities and facilities.

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But this is not all jiat the Court said. In keeping with its prior 
decisions, this Cour: still made it clear that freedom of choice 
is not the desired end anc that a school board should choose the 
plan that will work. Contrary to the belief of the district 
court that Baldwin Co ty is a carte blanche approval of free choice 
as long as there are desegregated vocational and other special 
programs, the decision did not establish such a rule. The 
prerequisite of the entire opinion is t ..a finding that due to
residential segregation and the location of schools, a rational

• y
pairing or zoning plan which would convert to a unitary system 
could not be devised in Baldwin County. Further, the panel was 
very careful to point out that another look at the district, 
especially with the aid of HEW, may produce a pairing or zoning 
plan that will be preferable to continued free choice.

Freedom of choice has failed and the institution of elective 
courses at black eoLcalj does not cure Z J z  constitutional defect.

11



II

The District Court Erred In 
Permitting The School District 
To Limit The Operation Of Its 
Free Choice Plan At Predominantly 
White Schools Although No Such 
Limitation Was Effected At All- 

Negro Schools

The district court erred in permitting appellees to 

impose a quota system on the predominantly white schools in Houston 

County. That the Court had to do so dramatically points up the 

failure of free choice as a workable device of dismantling the dual 

system. To the contrary, rather than dismantling the dual system, 

free choice facilitates its continued existence. As Negro children 

enroll in white schools, white students exercise their choice and 

move out.
Imposing a quota whereby no mae than 30% of a white 

school's student body may be black will not prevent the mass exodus 

of white students from these schools and thereby prevent resegre­

gation, because there is no corresponding restriction upon the 

presently all—Negro schools. If indeed resegregation is to be 

prevented by such a method, there should be a 70-30 ratio imposed 

on all schools. Since this is not the case, what it amounts to is 

that Negro students are restricted in their "choice" of schools 

unless they are lucky enough to be in the 30% that is first to pick 

a certain school. The only real choice belongs to the white

12



students. Such an arrangement is grossly inequitable and further 

points up the shortcomings of free choice.

Such a system imposes an additional burden on the Negro 

parents and students who choose integrated schools that have 

reached the 30% level. They are confronted with choosing another 

school that has not reached the 30% level, which is almost of 

necessity located quite a distance from their neighborhood; or, 

they must go to the all-Negro school that is nearest them.

Under this system, there is an even greater possibility 

of failure, in that if all of the white schools reach the 30% 

level, there will be no choice for black students at all. They 

must attend the all-Negro schools that the system will continue 

to maintain; the situation will be the same as it was before any 

steps were taken towards desegregation. Thus the quota system 

has the effect of reinforcing the pattern of all-Negro schools 

rather than eliminating them.

Ill

The District Court Erred In 
Allowing Appellees To Close 
The Elberta Elementary School

The closing of the Elberta Elementary School is an 

example of the lengths to which appellees will go in order to 

retain free choice rather than institute a plan which requires

13



to attend a formerly all-Negro school.

The Elberta School, opened in 1968, is located in a 

biracial community with a substantial white population (A. 76).

It was built to accommodate 356 students, but only 170 students, 

all Negroes, were enrolled at the school in 1968-69 (A. 90).

The white students were bussed out of the community to predom­

inantly white schools of their choosing.

These circumstances presented an ideal situation in 

which a zoning arrangement could have worked with a minimum of 

effort to desegregate the school, as the district court indicated 

(A. 90-96); yet, the court allowed the school to be closed, 

requiring transportation of Negro students to a Negro school 

outside of Elberta (A. 44) and white students to such white 

schools (A. 42).

Such actions on the part of appellees evidence a lack 

of good faith, contrary to the district court's finding. The 

closing of the Elberta School is educationally and constitutionally 

indefensible; it cannot be supported by any nonracial reasons.

See Felder v. Harnett County Bd. of Educ., 409 F.2d 1070, 1075 

(4th Cir. 1969); Brice v. Landis, Civ. No. 51805 (N.D. Cal.,

August 8, 1969), slip opinion at pp. 6-8.

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Conclusion

WHEREFORE, for all the above reasons, appellants 

respectfully submit that the order of the district court should 

be vacated and the case remanded with directions that the plan 

submitted by the Department of Health, Education and Welfare be 

implemented immediately in Houston County.

Respectfully submitted.

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

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