Arizona Governing Committee v. Norris Reply Brief of Petitioners

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 28407

SHIRLEY BIVINS, et al..
Appellants,

- v -
BIBB COUNTY BOARD OF EDUCATION and 
ORPHANAGE FOR BIBB COUNTY, et al.,

Appellees.

On Appeal From The United States 
District Court For The Middle 

District of Georgia

BRIEF FOR APPELLANTS

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201
JACK GREENBERG 
NORMAN CHACHKIN

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

Issues Presented for Review • « • • • • • •  ........
Statement of the Case • • • • • • • • • • • • • • « ■
Argument

I. The District Court Erred In Approving A 
Free Choice Plan For Bibb County Where 
Five Years Of Operation Under Free Choice 
Had Resulted In But 27% Of The Negro 
Students Attending Predominantly White 
Schools And Twenty Schools Without A 
Single White Student Enrolled ............

II. An Otherwise Ineffective And Unconsitu- 
tional Freedom-Of-Choice Plan Is Not 
Made Legally Palatable By The Institution 
Of Elective Courses Offered Only At Schools Having All Negro Student Bodies . .

III. The District Court Erred In Permitting 
The School District To Limit The Opera­
tion Of Its Free Choice Plan At Pre­dominantly White Schools By Establishing 
A Maximum Number Of Negro Students Who 
Are To Be Permitted To Attend Those Schools, Although No Such Limitation 
Was Effected At All-Negro Schools ........

Conclusion .........................................

Page
1
2

7

11

14
16*



TABLE OF CASES
Page

Adams v. Mathews, 403 F.2d 181 (5th Cir, 1968) • • 10
Bowman v. County School Board of Charles City

County, 382 F.2d 326 (4th Cir. 1967) • • • • • 8
Brica v. Landis, Civ. No. 51805 (N.D. Cal.,

August 8, 1969) . . . . . .  ..................  i2
Graves v, Walton County Board of Education,

403 F.2d 189 (5th Cir. 1 9 6 8 ) ................  10
Green v. County School Board of New Kent

County, 391 U.S. 430 (1963)..................  2,3,7.8
Hall v. St. Helena Parish School Board___ F.2d ___ (5th Cir., May 28, 1969)........  3
Hilson v. Ouzts, Civ. No. 2449 (M.D. Ga.,

August 8, 1969).............. .. 10
United States v. Board of Education of

Baldwin County, ___ F.2d ___ (5th Cir.,
July 9, 1969) . . . . .  ............  . . . . .  4,7,13

United States v. Jefferson County Board 
of Education, 372 F.2d 836 (1966), 
aff'd on rehearing en banc, 380 F.2d 
385 (5th Cir.), cert, denied sub nom.
Caddo Parish School Board v. United
States, 389 U.S. 840 (1967)..................  2,9

- ii



IN THE
UNITED STATES COURT OP APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 28407

SHIRLEY BIVINS, et al..
Appellants,

- v -
BIBB COUNTY BOARD OF EDUCATION and 
ORPHANAGE FOR BIBB COUNTY, et al..

Appellees.

Appeal From The United States District Court 
For The Middle District Of Georgia

BRIEF FOR APPELLANTS 

Issues Presented For Review

1. Whether the district court erred in approving a desegrega­
tion plan contemplating freedom-of-choice pupil assignment where five 
years of operation under free choice had resulted in but 27% of the 
Negro students attending predominantly white schools and twenty 
schools without a single white student enrolled.

2. Whether an otherwise ineffective and unconstitutional 
freedom-of-choice plan i« made legally palatable by the institution



of elective courses offered only at schools having all-Negro student 
bodies.

3. Whether the district court erred in permitting the school 
district to limit the operation of its free choice plan at pre­
dominantly white schools by establishing a maximum number of Negro 
students who are to be permitted to attend those schools, although 
no such limitation was effected at all-Negro schools.

Statement 0f The Case

This is a school desegregation action.
On April 24, 1964, the Bibb County schools were ordered by 

federal district court to desegregate on a gradual basis extending 
over several years. This order was subsequently amended June 29, 
1967, to require the mandatory exercise of free choice by students 
in all grades beginning 1967-68, in accordance with this Court's 
opinion in United States v. Jefferson County Board of Education,
372 F.2d 836 (1966), aff'd. on rehearing en banc, 380 F.2d 385 (5th 
Cir.), cert, denied sub nonu Caddo Parish School Board v. United 
States. 389 U.S. 840 (1967). After the decision in Green v. County 
School Board of New Kent County. 391 U.S. 430 (1968) and companion 
cases, appellants (plaintiffs below) filed a Motion for Further 
Relief which sought to require implementation of a plan other than 
freedom of choice. September 16, 1968, the district court issued 
an "interim order" requiring appellees to reassess the operation

-  2 -



of the Bibb County schools under free choice in light of Green and
to report their conclusions to the Court, November 29, 1968, 
appellees accordingly proposed minor modifications of the plan but 
affirmed that freedom of choice was the best ~  and the only —  
method of pupil assignment which would create a unitary school 
system in Bibb County.

June 4, 1969, appellants filed a second Motion for Further 
Relief (A. 1-8) relying upon this Court's decision in Hall v. St,
Helena Parish School Board, ___ F.2d ___ (5th Cir. 1969), again
seeking the district court's disapproval of free choice as a con­
stitutional means of operating the Bibb County schools. After a 
hearing July 7 and 8, 1969 (A. 106-322) the appellees submitted pro­
posed further modifications of their basic free choice plan (A. 29— 
37) to which appellants objected (A. 38-52). August 12, 1969, the 
district court approved continued free choice in Bibb County (A. 53- 
62) and this appeal followed.

The Bibb County Board of Education operates 58 public schools 
(A. 25), of which number 20 have enrolled only Negro students (A. 
140)• During the five 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 20 schools (ibid.). Through 
the same period, Negro enrollment in predominantly white schools has 
increased so that about one quarter of the county's Negro students 
are attending integrated schools (A. 24, 56). By the district's

- 3 -



own admission —- and giving credence to its claim to increase "free 
choice" integration by September 1, 1969 (see A. 56) —  over seventy 
per cent of the Negro students in the system are still in all-black 
schools.

The district sought to continue to assign students according
to a freedom-of-choice plan, but proposed to ameliorate it position
by instituting two elective courses, driver education (A. 172) and
prevocational training (A. 270) which would be offered only at
schools with all-Negro enrollments. Thus white students desiring
to take these courses would have to enter these all-Negro schools
for one or more school periods to receive instruction. By this
feature, and by promising to increase faculty integration to the
minimum levels required by this Court in United States v. Baldwin
County Board of Education. ___ F.2d ___ (5th Cir. 1969), the district
declared, it would achieve the goal of a unitary system without

1/"black" schools and "white" schools, but "just schools."

Little consideration was given to alternative plans of pupil 
assignment. Rather, the Board engaged in the circular reasoning 
that freedom of choice was the best plan "[o]n the basis that it

1/ However, to prevent "resegregation," the Board proposed to 
limit the number of Negro students who could choose to attend 
formerly white schools. A motion addressed to this Court, seeking 
an injunction pending appeal against this "quota" provision was 
denied September 24, 1969.

- 4 -



gives every individual an opportunity to select their own schools 
through freedom of choice and it is not discriminatory — " (A. 122- 
23). The district did not consider new feeder patterns (A. 132-33) 
or make any determined effort to develop any alternative to free 
choice (A. 137, 145, 213). Although its administrators opined 
that attendance zoning would not be feasible because of segregated 
residential patterns (A. 161-62, 262), they had never really tried 
to put actual zone lines on a map and evaluate the results (A. 284- 
85). It was admitted that pairing of school facilities was feasible 
(A. 180-81) but the district opposed this concept because it feared 
white students would change their residences causing both paired 
schools to become all-Negro (A, 187).

At the hearing, prior to the submission of the district's pro­
posed amendments to its plan, the district court expressed its 
desire to maintain free choice:

Let me say this. It looks like under 
the Green case the racial identiflability 
of these schools must be disestablished. I 
take it that is what you are trying to do.
I take it that is why you are putting in your 
education courses, . . .  Evidently you 
realize that this must be done, and evidently 
you realize that there must be an invasion of 
these erstwhile Negro schools by White teachers 
and vice versa.

There are certain alternatives that we 
may have to face, and those alternatives might 
be all this zoning that you don’t want. It 
might be this pairing that you don't want. • . . 
I'm not particularly anxious for it myself.
It may just possibly be that this is one

5



system where freedom of choice can work if, 
as X tried to tell you in my interim order, 
you want to make it work.

I think that the freedom of choice 
comports with the American dream much more 
beautifully than drawing lines and grouping 
people and herding them as if they were 
cattle, irrespective of their wills and their choices and irrespective of the wills 
and choices of their parents. I think freedom 
of choice is worth saving if we can save it. 
. . .  And there is another thing . . .  And I 
think Judge Parker of the Fourth Circuit was 
right, eternally right, when he said that the 
Brown decision did not say and was not intended 
to say that the people must bring about integra­
tion, meaning by that mixing for mixing's sake. 
It didn't say that.

Now for these reasons I'm willing to help 
the Bibb Board of Education try to save freedom 
of choice, because I don't think it works an 
imposition on anybody, if the Board of Education 
wants to save it, and wants to do and commit 
itself to do everything within its power to dis­
establish the racial identifiability of all of 
the schools of this country.
(A. 292-307).

The district court’s order approving the plan as amended was 
entered August 12, 1969 (A. 53-61) and Notice of Appeal filed 
August 22, 1969 (A. 321).

6 -



Argument
I.

The District court Erred In Approving A Free 
Choice Plan For Bibb County Where Five Years 
Of Operation Under Free Choice Had Resulted 
In But 27% Of The Negro Students Attending 
Predominantly White Schools And Twenty Schools 
Without A Single White Student Enrolled.

The district court erred in approving a desegregation plan 
using freedom of choice in Bibb County because in five years, 
freedom of choice has completely failed to meet the mandate of the 
Constitution. It is relevant, as held in Green v. County School 
Board of New Kent County, Virginia, 391 U„S. 430 (1968), that many 
years elapsed before appellees made any attempt to comply with the 
Brown decision. Free choice became the vehicle of compliance but 
little progress towards desegregation has taken place. The same 
considerations which led the Court in Green to condemn freedom of 
choice require the same result here.

Free choice has accomplished little in Bibb County except to
open the doors of white schools to black students. But this Court
said in United States v. Board of Education of Baldwin County, ___
F.2d ___ (5th Cir. 1969):

The indispensable element of any desegrega­
tion 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 Negroes come must be

- 7 -



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)

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 this end. The 
school officials have the continuing duty to 
take whatever action may be necessary to 
create a unitary, non-racial system.

The appellees and the district court tend to view the law in 
a different light based upon their determination and desire to 
retain freedom of choice. That it has produced very little pro­
gress towards the institution of a unitary school system in Bibb 
County seemingly has no effect upon their thinking. Freedom of 
choice is taken to be the ultimate and only plan capable of working 
in the county, even though the Board has not even considered 
alternative steps that may prove to be better suited. Again we 
quote the Court in Green (391 U.S. at 441):

Where it offers real promise of aiding a 
desegregation program to effectuate con­
version of a state—imposed dual system to 
a unitary, non-racial system there might 
be no objection to allowing such a device

-  8



[free choice] to prove itself in operation.
On the other hand, if there are reasonably 
available ether ways, such for illustration 
as zoning, promising speedier and more 
effective conversion to a unitary, non- 
racial system, "freedom of choice" must be 
held unacceptable.

Free choice has had five years in which to accomplish the 
ultimate goal in school desegregation —  a unitary system having 
not "white schools," and "Negro schools," but just schools. Yet 
after five years only 27% of all Negro students are in predominantly 
white schools and no white students are enrolled in twenty all- 
Negro schools. This is not the result that this Court has required 
of desegregation plans chosen by school boards.

The appellees are nonetheless committed to continued use of 
free choice. They have not considered alternative plans or methods 
such as zoning, pairing or consolidation. During the course of 
the hearing on July 7 and 8, 1969, it was admitted that no serious 
thought has been given to any plan other than freedom of choice 
(A. 122, 137, 138, 144, 145). No reason was given except to say 
that it was felt free choice was the best possible plan. When asked 
upon what basis this conclusion was derived, Mr. Julius Gholson, 
Superintendent of Bibb County Schools, stated simply, "it gives 
every individual an opportunity to select their own school through 
freedom of choice." This type of reasoning has no validity because 
as the Court stated in Jefferson I, 372 F.2d at 888: "A school- 
child has no inalienable right to choose his school."

- 9



Appellees contend free choice has achieved and is achieving 
desegregation (A. 122), but in light of the fact that only 27% of
all-Negro students are enrolled in white schools and no white
students are in black schools, one finds it hard to accept this
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 F.2d 181 (5th Cir. 1968):

If in a school district there are still all- 
Negro schools or only a small fraction of 
Negroes enrolled in white schools or no sub­
stantial integration of faculties and school 
activities then as a matter of law, the 
existing plan fails to meet the constitutional 
standards as established in Green.
(Emphasis added)

In Graves v. Walton County Board of Education. 403 F.2d 189 (5th
Cir. 1968), this Court reaffirmed its ruling and added:

All-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. 61) the district court refers approvingly
to its opinion in Hilson v„ Ouzts, Civ. No. 2449 (M.D. Ga.,

2/August 8, 1969) in support of the Court's approval of free
choice. In Hilson the district court made clear it» adherence
to the long discarded Briggs dictum:

The segregation outlawed by Brown was 
enforced segregation based on race . . .

2/ On appeal to this Court, No. 28491.

10



and not segregation or separateness 
voluntarily chosen and preferred by the 
persons involved, [slip opinion at p. 5].

The law on the subject is clearly enunciated and free choice 
as operated in Bibb County does not meet the law's requirements.
The district court by its own admission favors freedom of choice 
(A. 292-307). It flouts the law by aiding the appellees in 
retaining an unconstitutional device.

II
An Otherwise Ineffective And Unconstitutional 
Freedom-Of-Choice Plan Is Not Made Legally 
Palatable By The Institution Of Elective 
Courses Offered Only At Schools Having All 
Negro Student Bodies.

The attempt by appellees to salvage free choice by the 
institution of elective courses in Negro schools (A. 30) is nothing 
more than another delaying tactic. There is nothing in the pro­
posals that gives the slightest indication that this plan has the 
remotest possibility of working. Quite to the contrary# if past 
experiences are an indication of success in conducting programs 
in Negro schools, these steps are doomed to failure from the outset.

An example in point is the Headstart Program conducted by 
appellees. When this program was started about four years ago, 
there were centers in both Negro and white schools. Few, if any, 
white students enrolled in the centers that were located in Negro 
schools. This resulted in centers racially identifiable as Negro

11



centers and white centers. The Office of Economic Opportunity 
recognizing this pattern and results, ordered all of the centers 
to be located in schools that were racially identified as white 
schools, as an attempt to encourage white parents to enroll their 
children in the program (A. 113, 241-244). Appellees are aware 
of these facts; yet they advance a similar proposal as a means 
of attracting white students to Negro schools. Like Headstart, 
the courses are elective, which in itself gives rise to a strong 
probability that few if any white students will enroll. Previous 
experiences have produced failure and appellants contend that 
similar results will be encountered in this instance.

The plan is further illusory because the racial identification 
of the Negro schools will remain intact. The plan calls for the 
white students, if any choose to enroll, to be bussed to Negro 
schools for a specific course and, upon completion of the hour of 
study, bussed back to the school from which they came. Such a 
step places the burden of desegregation entirely upon one racial 
group. Cf. Brice v. Landis, Civ. No. 51805 (N.D. Cal., August 8,
1969). The white student does not become a member of the student
body at the Negro school and to say he does is to say one becomes
a member of a family because he visits in that family's home on
occasion. Surely the district court is not so naive as to believe 
that Appling High or Ballard-Hudson High will loose their racial 
identification as black schools by the proposed device.

12 -



Appellants submit that appellees realize the futility of 
this proposal, but because of language in United States v. Board 
of Education of Baldwin County, supra, the district court feels 
the step is sufficient to comply with what it considers as the 
mandate of this Court. Although this Court said in Baldwin 
County,

Steps which maybe taken by the Board to 
eliminate racial identification of the 
present all-Negro schools, in addition to 
the specific requirements of faculty 
integration, are the establishment of 
vocational or other special courses of instruction, summer schools and desegrega­
tion of staff and transportation and all 
types of extracurricular activities and 
facilities

this is not all that the Court said. In keeping with its prior 
decisions, this Court still made it clear that freedom of choice 
is not the desired end and that a school board should choose the 
plan that will work. Contrary to the belief of the district 
court that Baldwin County 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 the finding that due 
to residential segregation and the location of schools, a 
rational pairing or zoning plan which would convert to a unitary 
system could not be devised in Baldwin County. Further, the pane], 
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 tc continued free choice.

13



Freedom of choice has failed and the institution of elective 
courses at black schools does not cure the constitutional defect,

III
The District Court Erred In Permitting The 
School District To Limit The Operation Of 
Its Free Choice Plan At Predominantly white 
Schools By Establishing A Maximum Number Of 
Negro Students Who Are To Be Permitted To 
Attend Those Schools, Although No Such Limitation Was Effected At All-Negro Schools,

The district court erred in imposing a quota system on the 
predominantly white schools in Bibb County, That the Court had 
to do so dramatically points up the failure of free choice as a 
workable device of dismanteling 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. Such was the 
case in the four schools upon which the district court originally 
placed the quota. In these schools there was a sharp decrease in 
the number of white students who chose them in 1968 as opposed to 
the number who chose them in 1969 (A, 2-3),

Imposing a quota whereby no more than 40% 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 resegrega­
tion, because there is no corresponding restriction upon the 
Negro schools. If indeed resegregation is to be prevented by

14



such a method, there should be a 60-40 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 40% that is first to 
pick a certain school. The only real choice belongs to the white 
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 40% level. They are confronted with choosing another 
school that has not reached the 40% level, which is almost of 
necessity located quit& a distance from their neighborhood; or, 
they must go to the all-Negro school that is nearest them. Such 
was the experience with students in the four schools now operating 
under the quota system. A total of 611 students were displaced 
(A. 63) by this device.

Under this system, there is an even greater possibility of 
failure, in that if all of the white schools reach the 40% 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 re-enforcing the pattern of all-black schools 
rather than eliminating them.

- 15



CONCLUSION

Appellants respectfully submit that the order of the district 
court be vacated and the case remanded with directions that the 
Department of Health, Education and Welfare be requested to 
formulate a comprehensive plan of desegregation for immediate 
implementation in the Bibb County School System.

Respectfully submitted.

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

JACK GREENBERG 
NORMAN CHACHKIN

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants

16