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Brief Collection, LDF Court Filings. Wellington Hereford v. Huntington Board of Education Brief for Plaintiffs-Appellees, 1974. 4748e41d-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/792bbd2d-e5bd-445b-aea7-85a8fd5c1e6d/wellington-hereford-v-huntington-board-of-education-brief-for-plaintiffs-appellees. Accessed July 01, 2025.
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sgrjxqux^xa Jog: sAsuaoq.q.V 6T00I XZOA M9N 'qxoA A\aN apa-xxo sn q u in xo o o i NIHHOVHD T NVWHON o a a a N a a a o > io v r £ 0 2 S£ Bu req^xv 'u re q B u x u u x a qqaojx s n u a A V q q q B x g X2T2 £ 0 2 S £ BureqBXY 'u r sq B u x u a x a qqaojsl e n u sA V q q a n o j 0£9T AaasoNiTTie Tiazao [saaaaaaav] saauaiiYria aoa aaiaa UOTSIAId U J a q se sq q a o N ''e u req^xY JO q.Dx;rq.sxa uxaqqxojsi aq i, x o a q x n o o qD T jrq sxa s a q a q s p a q xu fi aq i, u icua x ^ ^ Y * saaxx9<5<5v-s quapuagaa i .-[-•e j3 'Noiiivonaa ao oavoa aaaiASiimH 'voiyawv ao saa,vis aaj.ian 'sg:g:xq.uxx>xa /*x^ J3'ai 'crHoaaaaH noj.oniti3m aiNNOS £9££-^Z. *ON ■imoaio Hiaia am aoa NOiwaN *o snimawaa SA 'qtrexX^dY --iouaAaaqui-g:jxqux'ex<J savaaav ao ianoo sa>ivis aa^im am ni IN THE UNITED STATES COURT OF APPEALS FOR TIIE FIFTH CIRCUIT NO. 74-3363 SONNIE WELLINGTON HEREFORD, IV, et al. , Plaintiffs, UNITED STATES OF AMERICA, Plaintiff-Intervenor- Appellant, vs. HUNTSVILLE BOARD OF EDUCATION, et al., Defendants-Appellees. CERTIFICATE REQUIRED BY LOCAL RULE 13(a) The undersigned, counsel of record for the plaintiffs [appellees], certifies that the following listed parties have an interest in the outcome of this case. These representations are made in order that Judges of this Court may evaluate possible disqualification or recusal pursuant to Local Rule 13 (a): 1. The original plaintiffs who commenced this action in 1963 are Sonnie Wellington Hereford IV, by his father and next friend, Sonnie Wellington Hereford III; Herman Barley, by his father and next friend Howard Barley; Rodney Monk, by his father and next friend Luther Monk; John Anthony Brewton, by his mother and next friend Sidney Ann Brewton; Veronica Terrell pearson, by her mother and next friend Odelle Lacy Pearson; James Bearden, Jr., by his mother and next friend Georgia Bearden; and David C. Piggie, by his father and next friend Rev. Cleveland A. Piggie. 2. The original plaintiffs above-named commenced and main tained this action as a class action pursuant to F.R.C.P. 23 on behalf of other Negro children and. their parents in Huntsville, Alabama. 3. The United States of America intervened in this action in 1966. 4. The defendants are the school Board of Huntsville, Alabama and its members, and the Superintendent of Schools of Huntsville, Alabama. ■- V / j NORMAN J. CHA.CHKIN 2 TABLE OF CASES Acree v. County Bd. of Educ., 336 F. Supp. 1275 (S.D. Ga. 1972) ....... .......................... 4n Allen v. Board of Public Instruction, 432 F.2d 36 2 (5th Cir. 1970) ............................. 6 Anthony v. Marshall County Bd. of Educ., 409 F. 2d 1287 (5th Cir. 1969) .... ................... 7 Bell v. West Point Municipal Separate School Dist., 446 F . 2d 1362 (5th Cir. 1972) ................... 7 Boykins v. Fairfield Board of Educ., 457 F.2d 1091 (5th Cir. 1972) ............................ 3,4 Bradley v. School Board of Richmond, 317 F. Supp. 555 (E.D. Va. 1970) ............................. 4n Brewer v. School Board of Norfolk, 456 F.2d 943 (4th Cir.), cert. denied, 406 U.S. 905 (1972) .... 9n Page Brown v. Board of Education of Bessemer, 464 F. 2d 382 (5 th Cir.), cert. denied, 409 U.S. 981 (1972) ......... ...................... ....... 9n Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 142 (5th Cir. 1972), cert, denied, 413 U.S. 920, 922 (1973) ................ ............ 6u Davis v. School Dist. of Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970), aff'd 443 F.2d 573 (6th Cir.), cert, denied, 404 U.S. 913 (1971) ............... 8,9 Ellis v. Board of Public Instruction, 465 F.2d 878 (5th Cir. 1972) ............................. 5 Flax v. Potts, 404 F.2d 865 (5th Cir.), cert, denied, 409 U.S. 1002 (1972) ........... ................. 7 Hall v. St. Helena Parish School Bd., 417 F .2d 801 (5th Cir.), cert, denied, 396 U.S. 904 (1969).... 5 Table of Cases (Continued) Kelley v. Metropolitan County Bd. of Educ., 463 F . 2d 73 2 (6th Cir.)., cert, denied, 409 U.S. 1001 (1972) .................................... 7 Kelly v. Cuinn, 456 F.2d 100 (9th Cir. 1972), cert, denied, 413 U.S. 919 (1973) ........... . 8,9 Page Lee v. Macon County Bd. of Educ., 448 F.2d 746 (5th Cir. 1971) ................................. 7 Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir. 1971) ................... ......... 5 Mannings v. Board of Public Instruction, 427 F.2d 874 (5th Cir. 1970) ................ ............ 8 Medley v. School Board of Danville, 482 F.2d 1061 (4th Cir. 1973), cert, denied, 414 U.S. 1172 (1974) 3 Miller v. School Board of Gadsden, 482 F.2d 1234 (5th Cir. 1973) 8 Monroe v. Board of Commissioners, 427 F.2d 1005 (6th Cir. 1970) 7n Northcross v. Board of Education of Memphis, 489 F. 2d 18, 19 (6th Cir. 1973) .................. . 9n Northcross v. Board of Education of Memphis, Civ. No. 3931 (W.D. Tenn., Jan. 12, 1972) ........... 4n Spangler v. Pasadena City Board of Educ., 311 F. Supp. 501 (C.D. Cal. 1970) .............. . 8 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) ............................. 1,3,4n United States v. Board of Educ., Tulsa, 429 F.2d 1253 (10th Cir. 1970) 8 United States v. Hinds County School Bd., 417 F.2d 852 (5th Cir. 1969), cert, denied. 396 U.S. 1032 (1970) 7n Table of Cases (Continued) United States v. Texas Educ. Agency, 467 F.2d 848 (5th Cir. 1972) ........................... 6 Weaver v. Board of Public Instruction, 467 F .2d 473 (5th Cir. 1972), cert, denied, 410 U.S. 982 (1973) ............. ........ .............. 4,5,9 Youngblood v. Board of Public Instruction, 448 F. 2d 770 (5th Cir. 1971) ..... ............ 5 Page w IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 74-3363 SONNIE WELLINGTON HEREFORD, IV, et al., Plaintiffs, UNITED STATES OF AMERICA, Plaintiff-Intervenor- Appellant, vs. HUNTSVILLE BOARD OF EDUCATION, et al. , Defendants-Appellants. Appeal From The United States District Court For The Northern District Of Alabama, Northeastern Division BRIEF FOR PLAINTIFFS [APPELLEES] Introduction This brief is submitted on behalf of the original plain tiffs, Sonnie Wellington Hereford, IV, et al., and the class of black children whom they represent in this litigation. Plaintiffs were the appellants in the earlier post-Swann review of this case, No. 71—2641. Because of a misunderstanding among counsel, plaintiffs did not participate in the evidentiary hearing on July 10-12, 1974 in this case, following which the Order which is the subject of this appeal was entered. For that reason, plaintiffs did not file a separate Notice of Appeal from that decree. Plaintiffs' counsel have been furnished with a copy of the Record by counsel for the United States, and file this Brief in order that the Court may be cognizant of their views. Plaintiffs agree fully with and support the excellent Brief for the United States, and we shall accordingly attempt to be as succinct as possible and to avoid any duplication of the thorough discussion and well-reasoned analysis in the government's brief. Statement of the Case The government's Statement is accurate and basically complete. Plaintiffs would emphasize that when the zoning plan (Plan A) for Cavalry Hill and Terry Heights was approved by fc. the district court and this Court in 1971, there was little focus upon some of the practical problems which have contributed to the subsequent failure of the plan, such as the difficulty of access to the school from the predominantly white portion of 1/ the enlarged zone (see Tr. 450-53), and the board's cancellation 1/ References are to the transcript of the July 10-12, 1974 proceedings. 2 of student transportation to the school (Tr. 236). The 1971 appeal presented to this Court the abstract question, without an extensive factual record of the sort now before the Court, whether the projected enrollments at Cavalry Hill and Terry Heights (under Plan A) were so substantially disproportionate that, without allowing a period of actual implementation within which to judge its resu3.ts, the case should have been returned to the trial court with instructions to adopt a new scheme. The relevant Swann language was novel and uninterpreted; the plan as a whole projected significant changes in the racial composition of many Huntsville schools. Under these circumstances, this Court in a short per curiam opinion said that it found no error in the district court's judg ment that Plan A should be given an opportunity to work. The present appeal involves new facts and legal issues, neither debated nor resolved in the 1971 proceedings. Whatever the Court's view of the "substantial disproportion[ality]" of two 65% black schools in a system of Huntsville's size which is but 17% black, cf. Medley v. School Board of Danville, 482 F.2d 1061 (4th Cir. 1973), cert. denied, 414 U.S. 1172 (1974), we submit that the insufficiency of a plan which, in that system, projects the continued operation of two contiguous schools respectively 72% and 97% black, is now apparent. See Boykins v. 3 Fairfield Board of Education, 457 F.2d 1091 (5th Cir. 1972); Weaver v. Board of Public Instruction, 4G7 F.2d 473 (5th Cir. 1972), cert. denied, 410 U.S. 982 (1973). Additionally, while the district court was reluctant in 1971 to require implemen tation of Plan B in part because it would require the institu tion of new grade structure patterns in the Huntsville system, this year the board itself has proposed a multi-year transition to a new system-wide pattern, presenting an appropriate opportunity to make changes which further desegregation. ARGUMENT The District Court Should Require Prompt Desegregation Of Cavalry Hill and Terry Heights niementary Schools by The Most Efficacious Means Available This case is governed by principles now settled in this and other Circuits. Like Boykins v. Fairfield Board of Educ., supra, it is a case in which a desegregation plan, which had <0 received prior judicial approval based upon its "paper" pro jections, turned out in practice to be far less effective than 2/ had been anticipated by its designers. Under these circum- 2/ It is in fact likely that Plan A was fashioned by HEW prior to the decision in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)[see Brief for Plaintiffs-Appellants in No. 71- 2641, at pp. 2-3] and under artificial constraints with respect to technique, see Bradley v. School Bd. of Richmond, 317 F. Supp. 555, 563-66 (E.D. Va. 1970); Acree v. County Bd. of Educ., 336 F. Supp. 1275 (S.D. Ga. 1972); Northcross v. Board of Educ. of Memphis, Civ. No. 3931 (W.D. Tenn., Jan. 12, 1972). Whatever its defects in design, however, it is now clear that the plan did not work. 4 stances, and particularly within the three-year period during which district courts retain jurisdiction for the purpose of insuring that fully unitary school systems are actually established, e .3 ., Youngblood v. Board of Public Instruction, 448 F.2d 770 (5th Cir. 1971), new initiatives to eliminate schools which remain substantially disproportionate in racial composition are required by the Constitution in order to extirpate the last vestiges of the dual system. As this Court has noted in other contexts, good faith implementation of a plan adequate as conceived, but ineffective in practice, cannot substitute for constitutional compliance, Hall, v. St. Helena Parish School Board, 417 F .2d 801 (5th Cir.), cert, denied, 396 U.S. 904 (1969); unitary status is not achieved by a plan which does not prove itself over time. Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir. 1971); and plans which once received the judicial imprimatur may fail to withstand subsequent scrutiny in the light of more recent decisions, Ellis v. Board of Public Instruction, 465 F.2d 878 (5th Cir. 1972). The fact that desegregation issues in Huntsville have narrowed to the continued existence of two disproportionately black elementary schools does not make the constitutional problem de minimis. Cf. Weaver v. Board of Public Instruction, supra. Cavalry Hill was a state-imposed black school under the dual system, and it has remained a black school throughout the years of litigation and the variety of plans in this case. 5 Without question, the three-year attempt to desegregate by rezoning a minority of white students (in this heavily white system) into the school, has failed. Hornbook law in this 3/ Circuit requires that alternatives other than zoning be utilized. Mannings v. Board of Public Instruction, 427 F.2d 874 (5th Cir. 1970); Allen v. Board of Public Instruction, 432 F.2d 362 (5th Cir. 1970); see United States v. Texas Educ. Agency, 467 F.2d 848 (5th Cir. 1972); Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972), cert. denied, 413 U.S. 920, 922 (1973). Implementation of an effective plan cannot await the predicted three-year success of locating a 4th and 5th grade career education program at Cavalry Hill, Miller v. School Board 4/ of Gadsden, 482 F.2d 1234 (5th Cir. 1973). Nor can desegregation 3/ The existence of a deep and wide ditch as a physical barrier between the predominantly black and predominantly white residen tial sections of the 1971 Cavalry I-Iill zone (see Tr. 450-53) indicates not only part of the reason for the failure of the 1971 plan, but also a weakness in any rezoning plan involving Cavalry Hill. It is precisely where factors such as this, and location of the school in the middle of a virtually all-black residential comples (Tr. ), are found, that this Court has traditionally required the use of pairing and non-contiguous pupil assignment methods. 4/ The testimony showed that the school system had conducted no surveys of general white student interest in the "exemplary" program to be established at Cavalry Hill (Tr. 97). The Super intendent thought white students wou3.d not attend the school even if rezoned into it as a 70% majority (Tr. 99-100) but he maintained that the career education program would nevertheless be drawing more whites to Cavalry Hill within three years (Tr. 133.) . The principal of the school, however, did not anticipate any increased enrollment of whites as a result of the program (Tr. 538-39). 6 of Cavalry Hill be ignored because of projections of white 5/ flight. Anthony v. Marshall County Board of Education, 409 F.2d 1287 (5t:h Cir. 1969). Cfh Bell v. West Point Municipal Separate School District, 446 F.2d 1362 (5th Cir. 1972); Lee v . Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971). It is also well established that formerly white schools which shift in racial composition, for whatever reason, before §/ the desegregation process has been completed, may not be exempted from conversion to unitary, nonracial status as required by the Constitution. Flax v. Potts, 404 F.2d 865 (5th Cir.), cert, denied, 409 U.S. 1002 (1972); Kelley v. Metropolitan County________Board of Education, 463 F.2d 732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972). This principle clearly applies to a school which is now as substantially disproportionate 5/ This is true in spite of the system's claim that its fears of white non-attendance are based upon actual experience, cf. United States v. Hinds County School Board, 417 F.2d 852 (5th Cir. 1969), cert, denied, 396 U.S. 1032 (1970); Monroe v. Board of Commissioners, 427 F.2d 1005 (6th Cir. 1970); in any event, it seems doubtful that the Cavalry Hill experience furnishes an appropriate base from which to project the results of a plan which would seek to assign pupils to the school in such a way as to make its racial composition more typical of the entire system (see Tr. 410) . 6/ Even if the construction of a project by the local housing authority, with the support of the United States Department of H.U.D., were shown to be a primary factor in altering the racial composition of the attendance zone established prior to 1970 for the Terry Heights school, that would hardly insulate the Board of Education from responsibility for its determination to maintain 7 in racial composition as is Terry Heights; it was implicitly recognized by the board and by the trial court in altering the board's proposal to reassign middle school students from Cavalry Hill to Stone, which would have significantly increased the concentration of minority students at the latter. Indeed, the board's willingness to undertake widespread alteration of grade structiire, or repeated attendance zone changes (e.c£., Tr. 280-81) while carefully eschewing changes which would reduce the degree of segregation throughout the system, resembles the sort of conduct which has been held to violate the Fourteenth Amendment in cases arising outside this Circuit. E.cp , Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert, denied, 413 U.S. 9.19 (1973); Spangler v. Pasadena City Bcu of Ecluc ■ , 311 F. Supp. 501 (C.D. Cal. 1970); Davis v. School Dist, of Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970), aff‘d 443 F.2d 573 (6th Cir.), cert, denied, 404 U.S. 913 (1971); United States v. Board of Education, Tulsa, 429 F.2d 1^53 (10th Cir. 1970). As the Courtw 6/ (Continued) that zone, unaltered, despite increasing racial concentration, while regularly reshaping nearby attendance zones for other purposes. As the district court in the Pontiac case aptly put it, The question is no longer where the first move must be made in order to accomplish equality within our society; the question has become, and possibly has always been, who has the power and. duty to make those moves so as to advance the accomplishment of that equality. [309 F. Supp., at 742] 8 of Appeals for the Sixth Circuit has held, inconsistent application of educational criteria which produces significant racial segregation is a powerful indicator of intentional discrimination by the official agency. Davis v. School Dist. of Pontiac, supra; see also, Kelly v. Guinn, supra. Fortunately, this case presents no great practical difficulties. There are numerous alternatives for desegregating Cavalry Hill and Terry Heights — many considered and rejected 1/ by a school board intent upon rejecting "busing for desegregation" (see Brief for the United States, at 18-20) and others which were developed at trial (Tr. 287-89, 292-94) which are practical, indeed classically simple in design and execution. Cf. Weaver v. Board of Public Instruction, supra. The case should, therefore, 7/ The system's avowed aversion to the use of "busing" to assist in the desegregation of Cavalry Hill and Terry Heights is almost ludicrous in view of the extensive pupil transportation, including , routes many times the length of those projected under the alternative plans (Tr. 500-02, 508, 518), presently operative in the Huntsville system. Certainly the district court could ensure adequate transportation provision by the city council and city transit company should the school board encounter any difficulty in arranging suitable bus service to carry out an effective desegregation plan. See, <2.g. Northcross v. Board of Education, 489 F.2d 18, 19 (6th Cir. 1973); cf. Brewer v. School Board of Norfolk, 456 F .2d 943 (4th Cir.), cert, denied, 406 U.S. 905 (1972); Brown v. 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