Motion for Leave to Supplement the Record

     [||94bb6347-ac69-4e3d-b3a0-91ec995efa25||] NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

10 Columbus Circle, New York, N.Y. 10019 » (212) 586-8397 

April 19, 1977 

Honorable Edward W. Wadsworth 

Clerk 

United States Court of Appeals 
for the: Pifth Circuit 

600 Camp Street, Room 102 
New Orleans, Louisiana 70130 

Re: Rebecca E. Henry, et al. 
Vv. 

Clarksdale Municipal Separate 
School District, et al, 
No.76 - 1207 

Dear Mr. Wadsworth: 

Enclosed please find for filing four 
(4) copies of a Motion for Leave to 
Supplement the Record and Certificate of 

Service. 

Sincerely, 

\ 
\ 

Mel RR. Leventhal 

MRL: ja 
Encls. 

cc: Semmes Luckett, Esq. 

Cantril rN dre ded thle for US IR 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIPTH CIRCUIT 

No. 76-1207 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, et al., 

Defendants-Appellees. 

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division 

MOTION FOR LEAVE TO SUPPLEMENT THE RECORD 

JACK GREENBERG 

MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs- 
Appellants 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE PIPFPTH CIRCUIT 

No. 76-1207 

8 REBECCA E. HENRY, et al., 

. Plaintiffs-Appellants, 

VS. 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 
DISTRICT, et al., 

Defendants-Appellees. 

Appeal From The United States District Court For The 
Northern District of Mississippi 

Delta Division 

MOTION FOR LEAVE TO SUPPLEMENT THE RECORD 

1.Subsequent to the filing of the notice of appeal 

and the docketing of this case in this Court defendants 

y filed in the district court a Motion of Defendants for 

| Order of Dismissal a true and correct copy of which we 

attach hereto as Exhibit "aA." 

2. The attached motion, a part of the record retained 

in the district court, is relevant to this appeal and 

should be included in the record on appeal. 



WHEREFORE Plaintiffs-Appellants respectfully move 

the court for an order directing the district court 

Clerk to Lransmit to this Court, for inclusion in the 

record on appeal, the attached motion. To simplify 

the matter, the court may wish to accept the attached 

motion, which undersigned counsel certifies as true, 

in lieu of further communication with the district court. 

Respectfully submitted, 

JACK) GREENBERG 
MEL R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

( 

Attorneys for Plaintiffs- 
Appellants. 

CERTIFICATE OF SERVICE 

The undersigned certifies that copies of the foregoing 

Motion for Leave to Supplement the Record was served on 

counsel for the defendant by United States mail, postage 

prepaid, this 19th day of April, 1977, as follows: 

Semmes Luckett, Esq. 
121 Yazoo Avenue 
Clarksdale, Mississippi 38614 

Attqrpey for Plaintiffs 

- Di 



oTe Cad wll CEE Wat 

EXHIBIT "A" 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

DELTA DIVISION 

REBECCA E. HENRY, ET AL., ) 
PLAINTIFFS) 

) 
) 

4 VS. ) NO. DC 64-28-K 
) 
) 

CLARKSDALE MUNICIPAL SEPARATE ) 
SCHOOL DISTRICT, ET AL., ) A 

DEFENDANTS) 

MOTION OF DEFENDANTS FOR ORDER OF DISMISSAL 

Defendants move this court for an order of dismissal, 

and in support thereof show-- 

1) The Clarksdale Municipal.Separate School District 

operates, and has operated for the period beginning more 

than three years prior to the date of this motion, a unitary 

school system. 

2) During the period the Clarksdale Municipal Sepa- 

rate School District has operated a unitary school system, 

“ which, as aforesaid, has been longer than the three years 

immediately prior to the filing of this motion, defendants 

have been required to file semi-annual reports similar to 

those required in United States v. Hinds County School 

Board, 433 F. 2d. 611, 618, 619, and they have faithfully 

met such requirement. 

Dated January lL 1976. 

Lr wo 
“ATTORNEY FOR DEFENDANTS 



NOTICE OF MOTION 

1 TO THE HONORABLE MELVYN R. LEVENTHAL, ATTORNEY FOR 
] PLAINTIFFS: 

PLEASE TAKE NOTICE that the undersigned will bring 

the foregoing MOTION OF DEFENDANTS FOR ORDER OF DISMISSAL 

i ® : on for hearing before said court on January 26 _, 1976, 

at 10:00 o'clock in the forenoon of that day or as soon 

thereafter as counsel can be heard. 

Dated January 16, 1976. 

i 

ATTORNEY FOR DEFENDANTS 

S 

" CERTIFICATE OF SERVICE 

On January 16, 1976, I served the foregoing Motion and 

Notice on Honorable Melvyn R. Leventhal, attorney for 

plaintiffs, by mailing a copy of the same, postage prepaid, 

to Honorable Melvyn R. Leventhal addressed to him at 538% 
} 

North Farish Street, Jackson, Mississippi 39202. 

Dated January 16, 1976. 

iy’ a Ar 

ATTORNEY FOR DEFENDANTS 



THE CLARKSDALE MUNICIPAL SEPARATE SCHOOL DISTRICT 

HAS FOR MORE THAN THREE YEARS FILED THE SEMI-ANNUAL 

REPORTS USUALLY REQUIRED OF SCHOOL DISTRICTS MAKING 

THE TRANSITION FROM A DUAL SYSTEM TO A UNITARY 

SYSTEM 

In its order herein dated January 25, 1970, this court 

ordered defendants to-- 

file with the clerk of this court, and serve a 

copy thereof upon counsel for plaintiff, on March 21, 

1971, and on December 1 and April 1 of each school 

year subsequent to the 1970-71 school year, a report 

which sets forth the following information: 

ud § 

"a) The number of students by race enrolled in 

the school district; 

"b) The number of students by race enrolled in 

each sehbiok of the district; 

"¢) The number of students by race enrolled in 

each classroom in each of the schools in the district. 

"IY 

"a) The number of full time teachers by race in 

the district; 

"b) The number of full time teachers by race in 

each school in the district: 

"c¢) The number of part time teachers by race in 

the dsitrict; 

"d) The number of part time teachers by race in 

each school of the district. 



"III 

"A description of the requests and the results 

which have accrued, by race, under the majority to 

minority transfer provision which was a part of this 

court's order of January 10, 1970. 

"Iv 

"The number of thbedisieiot transfers granted 

since this court's order of January 10, 1970, the 

race of the students who were granted such transfers, 

and the school district to which the transfers were 

allowed. 

uy d 

"Whether all facilities such as gymnasiums, auditor- 

iums and cafeterias are being operated on a desegregated 

basis. 

"vl 

"A brief description of any present or proposed 

construction or expansion of facilities. 

"Vii 

"Whether the solivel board has sold or abandoned 

any school facility, equipment or supplies having a 

total value of more than $500. since this court's 

order of January 10, 1970. 

bls 1 

"A brief description of the work of the bi- 

racial committee since the last report to the court; 

attach copies of all recommendations made by the Bi- 

Racial Committee." 



Defendants have faithfully met the requirements of 

such order of January 25, 1970. There have been filed 

with the court reports setting forth the information re- 

quired by said order of January 25, 1970, on the dates 

following: 

On March 1, 1971. 

On December 1, 1971. 

On April 14, 1972. 

On November 1, 1972. 

On April 16, 1973. 

On November 30, 1973. 

On April 1, 1974. 

On November 27, 1974. 

On March 24, 1975. E 

On December 1, 1975, 



THE CLARKSDALE MUNICIPAL SEPARATE SCHOOL DISTRICT 
HAS OPERATED A UNITARY SCHOOL SYSTEM FOR MORE THAN 

; THREE YEARS 

In its order herein dated January 14, 1970, this court 

ordered defendants to -- | 

"ls begin immediately to operate a 

unitary school systen within which no person 

is to be effectively excluded from any school 

because of race or color, as required by the 

Supreme Court decision of Alexander v. Holmes 

County Board of Education, 1969, 24 L. Ed. 24 

19.” 

In that order this court further ordered defendants to 

take the following actions not later than February 1, 1970 -- 

1) To comply with the Singleton provisions with respect 

to its system's faculty and staff. 

2) To implement a majority to minority transfer policy. 

"The school district shall permit a student 

attending a school in which his race is in the 

majority to choose to attend another school, where 

Space is available, and where his race is in the 

minority." 

- 

3) To comply with the standard School Construction 

and Site Selection policy. 

"All school construction, consolidation, and site 

selection (including the location of any temporary 



classrooms) in the system shall be done in a manner 

which will prevent the recurrence of the dual school 

structure once this desegregation plan is implemented." 

4) To follow the usual "Attendance Outside System of 

Residence" policy. 

"If the school district grants transfers to 

students tivles in the district for thelr attendance 

at public schools outside the district, or if it 

permits transfers into the district of students who 

live outside the district, it shall do so on a non- 

discriminatory pasis, except that it shall not consent 

to transfers where the cumulative effect will reduce 

desegregation in either distrjct or reinforce the 

dual school system." 

5) To establish a single senior high school and a 

single junior high school. 

(a) A single senior high school shall be 

established in the buildings that now constitute 

the Clarksdale Senior and Suntée High Schools, made 

up as follows: grades 10, 11 and 12 from Higgins 

Senior High School and Clarksdale Senior High School, 

and also the present 9th grade in Clarksdale Junior 

High School. 

vib) A single junior high school shall be 

established in the buildings that now constitute 



el ERR TTR RET 

Higgins Jr.-Sr. High School and the Oliver Ele- 

mentary School, made up as follows: Grades 7, 

8 and 9 from Riverton Junior High School, Higgins 

Junior High School and grades 7 and 8 from Clarks- 

dale Junior High School." 

In its order herein dated May 8, 1970, this court 

decreed that-- 

“the prior order of this court with respect 

to public school desegregation entered January 10, 

1970, (is) supplemented and amended to provide for 

student desegregation to be instituted in all of the 

district schools effective September 1970, and to 

[1] 

continue thereafter until further order of this 

court as follows: 

“(a) a single senior high school, to be 

known as Clarksdale High School, shall be con- 

stituted for all students enrolled in grades 

0, 11 and 12, in the building complex con- 

sisting of Bobo, Elizabeth Dorr, the Annex and 

Supplenehtal units, located at 100 Second Street. 

. (These buildings formerly housed the Clarksdale 

Sr.-Jr. High School.) 

“{b) ‘A Stole junior high school, to be 

known as Clarksdale Junior High School, shall 

be constituted for all students enrolled in 

grades 8 and 9 in the buildings known as the 

Higgins Junior-Senior High School Complex. 

- 



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"(c) All students enrolled in grade 7 

shall attend the building known as Riverton 

Fonios High School, which shall be known as g 

: , Riverton Intermediate School. The Intermediate 

| School shall be a part, and subject to the 

administration, of the Clarksdale Junior High 

School." 

In its order herein dated August 24, 1970, this court 

ordered: 

"That the prior orders of this court respecting 

public school desegregation, effective for the school 

year beginning September 1970 and thereafter, are mod- 

ified as follows: 

"(1). The defendants, their agents and represent- 

atives, be, and they are hereby commanded to implement 

student desegregation in all of the district's schools 

effective for September 1970 and to continue thereafter 

until further order of the court in the following manner: 

"(a) A single senior high school to be known as 
. Clathvdale High School, shall be constituted for all 

| students enrolled in gardes 10, 11 and 12, in the 

building complex consisting of Bobo, Elizabeth Dorr, 

the Annex and supplemental units, located at 100 

Second Street. 

5 "(b) © A single junior high school, to be known 

as Clarksdale Junior High School, shall be constituted 

4 



qr oo 
a a 

for all students enrolled in grades 8 and 9 in the 

buildings known as the Higgins Junior-Senior High 

School Complex. 

"(c) All students enrolled in grade 7 shall 

attend the building known as Riverton Junior High 

School, which shall ve known as Riverton Intermediate 

School. The Intermediate School shall be a part, and 

subject to the administration, of the Clarksdale Junior 

High School. 

"(d) All children enrolled in elementary grades 

1-6 shall be assigned in accordance with the following 

structuring arrangement: 

"1. All pupils residing in the Heidelberg, 

Kirkpatrick and Riverton zones as heretofore existing 

shall attend grades 1 and 2 at Riversen Elementary 

School, grades 3 and 4 at Heidelberg Elementary School, 

and grades 5 and 6 at Kirkpatrick Elementary School 

ne. All gupils residing in the Oliver, Myrtle 

Hall and Oakhurst zones as heretofore existing shall 

attend grades 1 and 2 at Myrtle Hall Elementary School, 

grade 3 at Oliver Elementary School, grades 4, 5 and 6 

from Oakhurst and Nvrele Hall zone will attend Oakhurst 

Elementary School, and grades 4, 5 and 6 from Oliver 

zone will attend Oliver Elementary School. 

"3. All pupils residing in the Booker T. Washing- 

ton zone shall attend Washington Elementary School. 



"(e) Any student transferring from an elementary 

school, the majority of whose students are of his same 

race, to another elementary school, the majority of 

whose students are of a different race, shall be 

granted an absolute right for transfer, regardless of 

space, and his right to transfer shall not be dependent 

upon available space. Any. student thus displaced from 

an overcrowded school must attend the next nearly 

elementary school. 

"(2) Defendants are enjoined and prohibited from 

maintaining any classrooms within buildings on a 

racially segregated basis. 

"(3) Defendants are directed to implement faculty 

and staff desegregation in the manner and pursuant to 

the terms set forth in this court's prior order dated 

January 10, 1970." 

In its order herein dated January 19, 1971, this court 

ordered: 

"(1) That effective for the school year beginning 

.in September 1971 all children enrolled in elementary 

grades 1 - 6 shall be assigned in accordance with the 

following desestesstion plan: 

"(a) All pupils residing in the Heidelberg, 

Kirkpatrick and Riverton zones shall attend grades 

1 and 2 at.Riverton Elementary School, grades 3 and 



d
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4 at Heidelberg Elementary School, and grades 5 

and 6 at Kirkpatrick Elementary School. 

"(b) All pupils residing in the Myrtle Hall, 

Oakhurst and Booker T. Washington zones shall attend 

grades 1 and 2 at Myrtle Hall Elementary School, 

grades 3 and 4 at Booker T. Washington ‘Elementary 

School, and grades 5 and 6 at Oakhurst Elementary 

School. 

“"(c) Oliver Elementary School shall be re- 

established as an elementary school serving grades 

l - 6 to be attended by all pupils residing in the 

elementary zone heretofore established for Oliver 

Elementary School and such territory as may be added 

thereto to produce a substantial biracial assignment 

of pupils at said school." 

In its order herein dated March 31, 1971, this court 

ordered: 

"That the Board of Trustees and Superintendent 

file with the Clerk of this court not later than 

April 20, 1971, a proposal for altering the zone lines 

for the Oliver Elementary School to serve grades 1-6." 
- 

In its order herein dated January 19, 1971, (which has 

been referred to) this court also ordered: 

"The school board shall not later than April 20, 

1971, file with this court in writing its views and 

a, 



J ns chat be 

recommendations for the Oliver attendance zone 

lines and such other zone line changes as it deems 

are in order to promote desegregation. 

In obedience to the directions of the court contained 

in said orders of January 19, 1971, and March 31, 1971, de- 

fendants proposed six changes for the court's consideration, 

and then, by way of an amendment thereto, stated to the court: 

ae defendants, and particularly the Clarksdale 

Wanicival Sepatate School District, now desperately 

need, are directions from this Court for the future 

operations of the schools of the district, coupled with 

a judicial determination that the schools of the dis- 

trict, operated in conformity with such directions, 

provide a Yunitazy’ school syste. This school 

district, if it is to provide the pupils of the 

district with the education they deserve, must attain 

that point spoken of in Swann: 

"'At some point, these school authorities 

and others like them should have achieved full 

compliance with this Court's decision in Brown 

I. The systems will then be 'unitary' in the 

sense required by our decisions in Green and 

Alexander.’ 

"By achieving a ‘unitary' status, stability 

would be returned to this school district. The citi- 

zens of the community should then have confidence that 



dias RB EIR 

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the constant shifting of zone lines will be a thing 

of the past. 

"In order to eliminate the possibility that the 

school :system which will result from the order of 

the court which will be entered herein, will not be 

sdoertng as a ‘unitasy? systen, defendants ask that 

the court make clear in its order that its arrange- 

ments for the future operation of the schools of this 

school district did not originate with any suggestions 

by defendants.” 

On May 27, 1971, when this cause came on for hearing 

again, defendants made it plain to the court that they would 
* 

‘implement any of the plans submitted by them in response to 

the orders of January 19, 1971, and March 31, 1971, which 

the plaintiffs might select and the court approve, or any 

different wn devised by plaintiffs and approved by the 

court, in order to bring an end to the continual disruptions 

in the operations of the schools of the district and so that 

plaintiffs could no longer contend’ that defendants were not 

operating a 'unitary' school system. 

Upon the making of such announcement by defendants, 

plaintiffs advised the court their desires in the matter, 

and the same being agreeable to the court, an order was 

entered, bearing date of May 27, 1971, by which this court 

ordered-- 



Fs a RR aT 

a 

(a) All pupils in grades 10, 11 and 12 shall be 

assigned to Clarksdale High School, which shall be housed 

in the building complex consisting of the Bobo, Elizabeth 

Dorr, and Annex buildings, located at 100 West Second Street. 

(b) All pupils in grades 8 and 9 shall be assigned to 

: Clarksdale Junior High School, which shall be housed in the 

buildings formerly used by the Higgins Senior-Junior High 

Schools. 

(c) All pupils in grade 7 shall be assigned to the 

Clarksdale Intermediate School, which shall be housed in 

the building formerly used by the Riverton Junior High School. 

This school shall be a part, and subject to the administration 
1} 

of, the Clarksdale Junior High School. 
. 

(d) All elementary pupils residing in the Heidelberg, 

Kirkpatrick, and Riverton Elementary Zones shall be assigned 

to the Heidelberg, Kirkpatrick and Riverton Eisnghtary Schools. 

; Hates 1 and 2 shall be assigned to Riverton, grades 3 and 4 

shall be assigned to Heidelberg, and grades 5 and 6 shall be 

assigned to Kirkpatrick. 

(e) All elementary pupils residing in the Myrtle Hall, 

Booker T. Washington and Oakhurst Zlesentaby Zonas shall be 

assigned to Myrtle Hall, Hodker 7. Washington and Oakhurst 

Elementary Schools. Grades 1 and 2 shall be assigned to 

Myrtle Hall, grades 3 and 4 to Booker T. Washington, and 

grades 5 and 6 to Oakhurst. 



4 . 
—— . 

i N\ 
i 

(£) All elementary pupils attending grades 1 to 6 

residing in the Oliver Elementary Zone and Zone E3-3 

shall be assigned to Oliver Elementary School. 

3. All terms and provisions of the prior orders of 

this Court not herein specifically altered or modified 

shall remain in full force and effect. 

In its order herein dated September 25, 1972, this court 

ordered: 

"That the defendants, their agents and represent- 

atives, be and they are hereby commanded and directed 

to provide bus transportation to all students attending 

the elementary schools of the City of Clarksdale (grades 

1 through 6) who attend schools located more than one 

and one-half miles from thei place of residence. Said 

transportation shall commence on Monday, October 16, 

1972, and defendants shall be charged with the duty 

and eseons ibility for scheduling bus routes, fixing 

times and points of pick up and delivery, and giving — 

public notice." 

Defendants have faithfully met the requirements of such 

orders. Prior to February 1, 1970, in obedience to the re- 

quirements of the order of January 14, 1970, they established- 

1) a single senior high school in the buildings 

which constituted the ClarksdaleSenior and Junior 



High Schools, made up as follows: grades 10, 11 

and 12 from Higgins Senior High School and Clarks- 

dale Senior High School, and also the 9th grade in 

Clarksdale Junior High School. 

2) a single junior high school in the build- 

ings which constituted Higgins Jr.-Sr. High School 

and the Oliver Elementary School, made up as follows: 

Grades 7, 8 and 9 from Riverton Junior High School, 

Higgins Junior High School and grades 7 and 8 from 

Clarksdale Junior High School 

In September 1970, in obedience to the requirements of 

the order of May 8, 1970, they constituted-- 

1) a single senior high school, to be known as 

Clatkesale High School, for all students enrolled in 

grades 10, 11 and 12, in the building comples con- 

sisting of Bobo, Elizabeth Dorr, the Annex and 

supplemental units, located at 100 Second Street. 

2) a single junior high school, to be known as . 

Clarksdale Junior High School, for all students 

enrolled in grades 8 and 9 in the buildings known 

as the Higgins Junior-Senior High School Complex. 

3) Sh inibrmedts te school, as a part of, and 

subject to the administration of the Clarksdale 

Junior High School, in the Riverton Junior High 

‘School, to be attended by all students enrolled in 

grade 7. 



oA a aE 

They also, in obedience to the requirements of the 

order of August 24, 1970, began in September 1970 to 

assign pupils in elementary grades as follows: 

1. All pupils residing in the Heidsibats, 

Kirkpatrick and Riverton zones as heretofore existing 

shail stent grades 1 and 2 at Riverton Elementary 

School, grades 3 and 4 at Heidelberg Elementary School, 

: and grades 5 and 6 at Kirkpatrick Elementary School. 

2. all pupils residing in the Oliver, Myrtle 

Hell and Oakhurst zones as heretofore existing shall 

attend grades 1 and 2 at Myrtle Hall Elementary School, 

4 grade 3 at Oliver Elementary School, grades 4, 5 and 6 

from Oakhurst and Myrtle Hall zone will attend Oakhurst : 

: Elementary School, and grades 4, 5 and 6 from Oliver 

zone will attend Oliver Elementary School. 

3.31} pupils residing in the Booker T. Washing- 

ton zone shall attend Washington Elementary School. 

Beginning in September 1971, in obedience to the re- - 

quirenents of the order of January 19, 1971, as supplemented 

: by the order of May 27, 1971, shay have assigned pupils in 

elementary grades as above provided, with these changes: | 

- 

1) All pupils in the Myrtle Hall, Oakhurst 

and Booker T. Washington zones have been thereafter 

required to attend Myrtle Hall, Booker T. Washington 

and Oakhurst Elementary Schools, with grades 1 and 2 



a B
A 

Myrtle Hall, grades 3 and 4 to Booker T. Washington, 

and grades 5 and 6 to Oakhurst. 

2) All pupils in Oliver Elementary School zone 

and Zone E3-A have been thereafter required to attend : 

Oliver Elementary School. 

Since Monday, October 16, 1972, they have transported 

by bus to and from school all elementary school children 

eligible for such transportation under the order of Septem- 

By way of summary, defendants have operated, pursuant 

to the orders of this court-- 

. At least since September 1970, a single high 

- school, for grades 10, 11 and 12, 

At least since September 1970, a single Junior 

high school, for grades 8 and 9. 

At least since September 1970, an intermediate 

school, for grade 7. 

Since September 1970, an elementary school for 

pupils in grades 1 to 6 in Riverton, Heidelberg, and 

Kirkpatrick zones, with grades 1 and 2 at Riverton, 

grades 3 and 4 at Heidelberg, and grades 5 and 6 at 

Kirkpatrick. 

Since September 1971, an elementary school for 

pupils in grades 1 to 6 in Myrtle Hall, Booker T. 



# ®_ 
7 

Washington, and Oakhurst Zones, with grades 1 and 

2 at Myrtle Hall, grades 3 and 4 at Washington," 

and grades 5 and 6 at Oakhurst. 

Since September 1971, an elementary school for y 

pupils in grades 1 to 6 in Oliver Zone and Zone 3-A, 

with all required to attend Oliver Elementary School. 

Since Monday, October 16, 1972, they have pro- 

vides bus transportation for all pupils deemed by the 

court to be entitled thereto. 

Since September 1970, defendants have implemented all 

faculty and staff desegregation requirements, and they have 

} : complied with all requirements of the Singleton provisions. 

Since not later than September 1971, defendants have 

operated a school system with an integrated student body, 

an integrated faculty, an integrated staff, an" integrated 

extra curricular program, an integrated athletic program, 

and integrated transportation all in integrated facilities. 



REBECCA E. HENRY, ET AL., ) 
, PLAINTIFFS) 

) 
VS. NO. DC 64-28-K ) 

¥. 
CLARKSDALE MUNICIPAL SEPARATE ) 
SCHOOL DISTRICT, ET AL., ) 

) DEFENDANTS 

A SCHOOL SYSTEM WHICH HAS BEEN UNITARY THREE YEARS, 
AND HAS, DURING THOSE YEARS, FILED ITS SEMI-ANNUAL 

REPORTS, IS ENTITLED TO AN ORDER OF DISMISSAL 

In Swann, the Supreme Court spoke to the termination of 

federal court intervention in school cases: 

"At some colnet, ivese school authorities and others 

like them should have achieved full compliance with this 

Court's decision in Brown I. The systems would then be 

runiiary! in the sense required by our decisions in Green 

and Alexander. a | 

"It does rok follow that the communi ties served by 

such systems will remain demographically stable, for in 

a growing: obile society, few will do so. Neither school 

authorities nor Gistrint courts.are constitutionally re- 

quired to make year-by-year adjustments of the racial 

composition of student bodies once the affirmative duty 

to desegregate has been soomplisied and racial discrimi- 

nation Siviough official action is eliminated from the system. 

This does not mean that federal courts are without power 

to 26a) with Suture problems; but in the absence of a showing 

that oi thot the school authorities ot. soRe other agency of 

the State has. Jsliberately attempted to £ix or alter demo- 

graphic patterns to Agiect the racial composition of the 

schools, further intervention by a district court should 

not be necessary.” ek Et Li 

In steele vy, Board of Public Instruction of L n Co. 
hE 54 Is - # - 2 i 

Fla., (c. ca sth a Sept. 3 448 =. 2a 767, the 
Wht AEE : rs « 



court had before it the action of the district court which, 

sua sponte, had dismissed this school integration case after 

making a finding that the school system was desegregated and 

unitary in nature. 

In disapproving such action, the court ordered: 

"The order of the district court dismissing 

this action is vacated, and the cause is remanded 

to the district court with directions to reinstate 

the action, and to retain jurisdiction over the ac- 

tion for a period not less than three school years. 

During the next three school years the school dis- 

trict shall be required by the avurt below to file 

semi-annual reports with the district court similar 

to those required in United States v. Hinds County 

School Soard, 5 Cir. 1970, 433 F. 24 611, 618-819, 

"At the conclusion of three school years the 

district court should again consider whether the 

cause should be dismissed. In no event, however, 

shall the district court dismiss the action without 

notice to the plaintiffs below and a hearing provid=- 

ing opportunity to plaintiffs-appellants to show cause 

why dismissal of the cause should not be further 
“ws 

delayed.” 

In Youngblood v. Board of Public Instruction of Bay 

County, Fla., (C.C.A., 5th C., Sept. 14, 1971) 448 F. 2d 

770, the court was confronted with an identical situation 



PIER 1S RE STR 

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- [ = -— S———— AE. — ——  ——— ————— —— 

i 

and, in response, entered an order identical to that ordered 

in Steele. 

In Lee v. Macon County Board of Education, (C.C.A., 

5th C., Feb. 4, 1972) 455 F. 2d 978, the court, having affirmed 

the order of the district court, went on to say: 

"We believe it appropriate to remind the parties 

to this Litigation that the court below, under this 

Court's decision in United States v. Hinds County 

School Board, 5 Cir. 1970, 433 F. 2d 611, is required 

to retain jurisdiction for.at least three years follow- 

ing the achievement of a unitary school system. During 

this period, the parties ALL be free to seek such 

nodiEieations of the desegregation order as appear 

Justizied in the light of changed conditions, new 

insights into the educational problems confronting 

the public schools, or later developments in the juris- 

prudence." . : 

The Panel in each of the three last mentioned cases 

(Steele, Youngblood and Lee) consisted of Wisdom, Coleman 

and Simpson, Circuit Judges. 

In a footnote to Cisneros v. Corpus Christi Independent 

- 

School District, (C.C.A., 5th C., Aug. 2, 1972), 467 F. 2d 

142, the court, at page 153, said: 

"In making certain that the school system is 

unitary and that the discrimination has been 

eliminated, we have required that specified reports 



be filed for three years and that the case not 

be dismissed thereafter without giving notice 

to plaintiff." 

The identical footnote was added to the specially con- 

curring opinion (which was the majority opinion) in United 

States v. Texas Education Agency, {IC.C.A., 5th C., Aug. 2, 

' 1972) 467 F. 2d 848, at page 886. 

In Gordon vy. Jefferson Davis Parish School Board (5th 

C., June 28, 1971 and Aug 4, 1971) 446 F. (2d) 266, in which 

a panel composed of Wisdom, Coleman and Simpson was called 

upon to review a holding by the district aourt approving a 

desegregation plan without findings of fact and conclusions 

| of law with ’ respect to the closing of two formerly all-black 

schools, Wisdom and Sinpacn voted to remand the case. Cole- 

man wrote a strong dissenting opinion, in the course of which 

he said: 

"I believe, with regret, . that this decision 

retladte an unwillingness to leave a school system 

alone, even after it has been made unitary. The 

majority is now willing to consider the possibility 

' ; of dismantling a unitary school system, not a 

segregated one) This appears to be in conflict 

with the Seles oF another panel of this Court in 

ayier uv. Honaton Wunicivel Separate School District, 

5 Gir. 1971, 444 F. 24 118, in whlch ihe case vas 

remanded to the District Court ‘with .instructions 



to determine if the system is unitary and if so to 

enter a final order terminating the case.'" 

In a supplemental opinion by Coleman and Simpson, not . 

joined in by Wisdom and probably resulting from Coleman's 

dissent, it was ordered: 

"The district court should retain jurisdiction 

of this case until such time as the respondent 

school board has complied with this order and so 

reported. When these matters are accomplished, the 

. respondent school board will in our judgment have 

achieved a unitary school system. Accordingly at 

to enter its order so finding and thereupon to dis- 

> 
miss these proceedings." 

In Bradley v. School Board of City of Richmond, Virginia 

(4th C., June 5, 1972) 462 F. 2d 1058, 1069, which was 

specifically based on the language in Swann quoted at the 

beginning of my original memorandum, the court said: 

"When it became 'clear that state-imposed 

segregation . . . (had) been completely removed, 

Green, 391 U.S. 430, at 439, 88 S. Ct. 1689 at 1695, 

within the school district of the City of Richmond, 

as adjudged by the district court, further interven- 

tion by the district court was neither necessary nor 

justifiable." 



a —— 

In George v. Davis (D.C., M.D. La., Oct. 23, 1973) 

365 F. Supp. 446, the court used this most pertinent 

language with respect to a "Motion for Supplemental Re- 

lief" in a school desegregation case: 

"Neither the pleadings .nor the evidence indicate 

in any way that there are any real plaintiffs in this 

motion Sitter than the attorney who filed ¥he motion, 

No specific plaintifee have been named and none 

testified. The unrefuted evidence adduced at the 

hearing Gor IELELY showed that there are no complain- 

ing plaintiffs and that the only real complainant is 

the attorney who filed the motion and who now demands 

of the Qefsndants a substantial attorney £56 for his 

efforts, “i. Git 

‘mie evidence presented to the Court consisted 

of nothing other than the testimony of the defendants 

who Wore fortes to testify under cross-examination 

as adverse parties. No plaintiffs were identified 

and none testified. No witnesses were presented on 

behalf of the mover, 2 

His cross-examinations amounted to nothing but a 

fishing evpedivion whlch points up dramatically the 

evil in permitting these cases to be reopened at the 

whim of a party or an attorney by the simple expedi- 

ent of filing a motion. This school and others have 



been integrates according to law od the cases 

involving such schools, some of which have been 

technically considered ‘active cases’ for as long 

as twenty years, should be closed. When a sand 

system has been judicially declared integrated, 

future violations of, the law, if they occur, should 

require the filing of a new. law suit with all of 

4 the protections attendant thereto. Specific plain- 

tiffs should be named and defendants should be 

served and given the opportunity to file preliminary 

motions as well as their answer to a specific com- 

plaint. The ‘motion practice’ permitted in these 

civil rights cases should be terminated once the 

soiect of the original suit has been accomplished. 

Simple due process of law requires that this be done." 

Whatever anbiguity is implicit in the foregoing cases 

was resolved by What the Court of Svpeats for the Fifth 

Circuit said INU. 8. uw State of Toran, wte., 509 F, 24 192 

(Feb. 19, 1975). In that case the court expressly held that 

if the school district has operated a unitary system for 

- ; three vedrsiang has, during those three years, filed its 

semi-annual reports to the court, it is entitled both to an 

order declaring it to be unitary in nature and dismissing 

the case. 



| Acting sua sponte, the District Court 

jismissed this school desegregation case 

from its docket. The United States ap- 

peals. Because the dismissal was not in 

sompliance with the standards prescribed
 

by Youngblood v. Board of Public In- 

struction, 5 Cir. 1971, 448 F.2d 770 we 

vacate and remand. 
: 

The facts are not in dispute. In © 

March, 1970, the United States com- 

menced an action in the District Court 

for Eastern Texas to consolidate and des 

segregate the San Felipe and Del Rio 

Independent School Districts. Consolida- 

‘tion and desegregation were ordered, 3 

United States v. State of Texas, 342 

F.Supp. 24 (E.D., Tex. 1971). . We af- 

firmed, but ordered the case transferred 

to the Western District of Texas for su-. 

pervision of the consolidation-desegrega- - - 

‘tion process, United States v.. State of 

Texas (San Felipe-Del Rio Consolidated 

Independent School District), 5 Cir. 1972, 

{466 F.2d 518. Thereafter, from August. : 

'29, 1972 to November 7, 1973 nothing 

‘happened in the District Court except 

the - filing of the customarily required - 

‘semi-annual reports by the School Board. 

| -On November 7, 1973, acting on its 

{own initiative, without notice of the ae- 

'tion taken or an opportunity for a heur- 

“ing as to any opposition thereto, the Dis- 

‘trict Court found that the objective of a 

unitary school system had been achieved, 

felt that its supervision was no longer 

netessary or required, and, as alrcady 

stated, dismissed the case. PLE 

~The United States moved to vacate 

the dismissal, but this®motion was de- 

nied. .. : Fa dh i Bs 

In Youngblood the governing princi 

ples were clearly and succinctly stated: 

| It is ordered by the Court: 

{ * "1. The order of the District Court 

| dismissing this action is vacated, and 

' ” the cause is remanded to the District 

: © Court with directions to reinstate Lhe 

- action, and to retain jurisdiction over 

the action for a period not less than 

"three school years. During the next 

three school years the school district 

shall be required by the court below to * 

file semi-annual reports with the Dis 

trict Court similar to those required in 

_ ‘United States v. Hinds County School 

Board, 5 Cir., 1970, 433 F.21 611, 613- 

619. 

2 At the conclusion of three school 

years the District Court should amin 

consider whether the cause should be 

dismissed. In no event, however, shall 

the District Court dismiss the action 

without notice to the plaintiffs below 

and & hearing providing opportunity to. = 

plaintiffs-appellants to show cause 

why dismissal of the cause should be 

further delayed. See Wright v. Board = 

{ “of Public Instruction of Alachua Coun- * 5,0 = 0 

©. ty, Florida, 5 Cir., 1971, 445 Fold
 130% 5hpali £7 Teer] 

EY 
TT EE Tam 

| ~ UNITED STATES v. STATE OF TEXAS, ETC. 

et ac EE Ir 

a SUSIE Se mm p— a NE FE ARE 

| pm, \ ao. Fi? 

§ > 

*. Citoas 500 F.2d 192 (1933)" - hE, 

For cases following - Youngblood see 

Calhoun v. Cook, 5 Cir. 1971, 451 F.2d 

583; Steele v. Board of Public Instruc- 

tion, S Cir. 1971, 448 F.2d 67. See . 

Cisneros v. Corpus Christi Independent 

School District, 5 Cir. 1972, 467 F.2d 
142, - 

153 (n. 10); United States v. Texas Edu
- . 

cational Agency (Austin Independent 

School District), *5 Cir. 1972, 467 F.2d 

848, 886 (n. 2); Wright v. Board o
f Pub- 

lic Instruction, 5 Cir. 1971, 445 F2d 

1397; United States v. Hinds County 

~ School Board, 5 Cir. 1970, 433 F.2
d 611, 

| 618-19. -~. "ia Aa 
In dismissing ‘the case the District. 

Court relied on the following lang
uage 

appearing in Swann v. Charlotte-Meck- 

lenburg Board of Education, 402 US.
 1, 

32, 91 S.Ct. 1267, 1284, 28 L.Ed2d 554 

(1971): . EE . 

“.. Neither school authorities nor district 

courts are constitutionally required 
to 

. make year-by-year adjustments of t
he 

~" racial composition of student bodies. 

© once the affirmative duty to desegre- 

" gate has been accomplished and racial 

discrimination through official action 
This | is eliminated from the system. 

does not mean that federal courts are 

without power to deal with future 

problems; but in the absence of a 

“ showing that either the school author
i- 

ties or some other agency of the Sta
te 

"* has deliberately attempted to fix or 

alter demographic patterns to affect 

. the racial composition of the schools, 

further intervention by a district court 

should not be necessary. ; 

Our decision in Youngblood . was not 

intended to be a contradiction of these 

principles, nor do we think that it was. 

We were there enunciating guidelines by 

which, in the absence of a contrary. 

showing after notice, the District Courts 

could with confidence close the books on 

a school desegregation case. We were 

establishing a uniform rule upon which 

school authorities and District Courts 

might rely for insuring proper local and 

judicial administration of the school de- 

segregation process. It has never been 

- our purpose to keep these cases jnter- 

minably in the federal courts: : 
— 

a a i 

The appellate record indicates that 

subsequent to our affirmance (August 

29, 1972, 466 F.2d 518) reports hav
e been 

filed dated October, 1972, March 1973, 

and October, 1973. This leaves reports 

due for March, 1974, October, 1
974, and 

March, 1975, which apparently were no
t 

filed because of the dismissal. We as- 

sume that the records are available 
from 

which past due and current reports may 

-be filed. X 

Once these reports have been filed, 

then upon proper notice, and follow
ing a 

* hearing if one is appropriately sought, 

the District Court may proceed to dete
r- 

mine whether San Felipe Del Rio has 

-‘achieved unitary status. 

ha dismissal. is not out of order. 
If it has, then 

If, however, such reports have not 

been or cannot now be filed then the 

"matter may not be considered unt
il three 

additional semi-annual reports shall
 have. 

- been filed in due course. 

Vacated and remanded for further 

| proceedings not inconsistent her
ewith. [||94bb6347-ac69-4e3d-b3a0-91ec995efa25||]