Carr v. Montgomery County Board of Education Brief for Plaintiffs-Appellants

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

*
M

»

NO. 74-2633

ARLAM CARR, JR., et al.,
Flaintiffs-Appellants, 

PENELOPE ANNE JENKINS, et al.,
Plaintiff-Intervenors-Appellants,

v.
MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

D efendants~Appe1lees.

Appeal From The United States District Court For The 
Middle District Of Alabama, Northern Division

BRIEF FOR PLAINTIFFS-APPELLA17 'S

SOLOMON S. SEAY, JR.
FRED T. GRAY 
Gray, Seay and Langford 
352 Dexter Avenue 
Montgomery, Alabama 36104

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 74-2633

ARLAM CARR, JR., et al.,
Plaintiffs-AppeHants,

PENELOPE ANNE JENKINS, et al.,
Plaintiff-Intervenors-Appellants,

v.
MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Middle District. Of Alabama, Northern Division

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned, counsel of record for the plaintiffs- 
appellants, certifies that the following listed pax'ties 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 May, 1964 are Arlam Carr, Jr., a minor by his parents
and next friends Arlam Carr and Johnnie Carr; John W. Thompson, 
Bathsheba L. Thompson, James L. Thompson and Phillip L.
Thompson, minors, by their parents and next friends Bishop 
S. Thompson, Sr. and Lois E. Thompson.

2. The original plaintiffs above-named commenced and 
maintained this action as a class action pursuant to S. R.
Civ. P. 23 on behalf of other Negro children and their parents

in Montgomery County, Alabama.
3. The United States of America, admitted to this case

as amicus curiae with full rights of a party.
4. The defendants are the Montgomery County Board of 

Education, a public.body corporate responsible for.the operation 
of the public schools of Montgomery County, Alabama, current 
members of the Montgomery County Board of Education, and
the current Superintendent■of Education of Montgomery County.

5. The National Education Association, Inc., admitted 
as a plaintiff—intervenor in this case to represent the 
interests of black teachers in Montgomery County.

6. The plaintiff-intervenors who were admitted as parties 
on February 15, 1974. They are minor school children in 
Montgomery County suing by their parents or next friends,
as follows: Jessie, Johnny, Queen Delois, Keith, and Joe Louis

2



Jackson, minors, by and through their mother, Ms. Queen 
Esther Jackson; Donald, Ronald, and Angela Dickerson, minors, 
by and through their mother, Ms. Nellie Dickerson; Kowkalwaski, 
Jacqueline, and Eunice Mangum Perkins, minors, by and through 
their mother, Ms. Ethel Perkins; Stanley and Richard Cotton, 
minors, by and through their mother, Ms. Delores C. Cotton; 
William, Rufetta, and Roslyn Davis, minors, by and through 
their mother, Ms. Addie Davis; Lee Hardy, a minor, by and 
through his mother, Ms. R. L. Hardy; Cheree Canty, a minor, 
by and through her grandmother and next friend, Ms. Annie 
Pearl Pinkard; Michael, Angelo, and Bruce Smith, minors, by 
and through their mother, Ms. Ethel Oliver;. Nathaniel Stykes, 
a minor, by and through his mother, Ms. Fannie Stykes; Larry, 
Cassandra, Vince Cornell, Mary Helen, and Felicia Wiley, minors 
by and through their mother, Ms. Daisy Wiley; Penelope Anne 
Jenkins, a minor, by and through her mother, Penny W. Jenkins; 
Wheeler, Christine, and Charlie Bell, minors, by and through 
their mother, Ms. Mae Bell; Terrand Thomas, a minor, by and 
through his grandmother, Ms. Katie R. Thomas; Renee and Xavier • 
Perkins, minors, by and through their grandmother, Ms. Loeva 
Perkins.

A

Attorney of Record for 
Plaintiffs-Appellants



I N D E X

Table of Authorities..............................  -j_ĵ
Issues Presented for Review ........................  1
Statement of the C a s e ..............................  4
Statement of Facts

The Montgomery County Schools in 1973-74 . . . .  10
The Board's P l a n .........................  13
The Plaintiffs' P l a n .....................  18
The Plaintiff-Intervenors' Plan . . . . . . . .  21
The Board's Response.....................  28
The Ruling of the District Court......... 31

ARGUMENT—
Introduction ..................................  34
I There Is No Basis, In Fact Or Law,

For The District Court's Ruling That 
The Remaining Black Schools In 
Montgomery Are Not Linked To The 
History Of Racially Discriminatory
School Board Action In Montgomery County . 35

II The District Court Applied The Wrong
Legal Standards In Evaluating The Plans 
Before It And In Determining That The 
School Board's Plan Was Constitutionally 
Sufficient..............................  41
A. The Plans Submitted By The Plaintiffs 

And Plaint iff-Intervenors Are Designed 
To Desegregate The Montgomery System,
Not To Achieve "Racial Balance" . . .  41

B. The District Court Made No Findings
Of Legally Cognizable Impracticalities 
Which Could Support Its Approval Of 
The School Board's Plan And Its Rejec­
tion Of The Alternatives............  46

Page



.p.a .g e

C. The School Board's Plan Is Inade­
quate As A Matter Of L a w ............ 49

III The School Board's Plan Disproportionately 
Burdens Black Schoolchildren By Closing 
Black Schools And Busing Black Children
To White Facilities . . . . . . . . . . . .  53

IV Appellants Should Have Recovered Their
Costs And Reasonable Attorneys' Fees . . .  56

Conclusion........................................  58

APPENDIX
4/24 USX-2, Report of 1973-74 Montgomery County
school bus transportation, routes by schools served
and race of riders ........ . . . . . . . . . . . .  la
Attachment A to post-trial brief of United States,
tabular comparison of results under plans before
District Court .. .................................   9a
Estimates of Additional Transportation Under Foster
P l a n ................................................ i4a
Estimates of Additional Transportation Under
Winecoff Plan A ......................................  15a
Estimates of Additional Transportation Under Board
P l a n ................................................ 16a

Certificate of Service

I N D E X  (continued)

- n -



Table of Authorities

Cases
Acree v. County Bd. of Educ-, 458 F.2d 486

(5th Cir.)/ cert, denied, 409 U.S. 1006
(1972)....................................  45

Acree v. County Bd. of Educ., 336 F. Supp.
1275 (S.D. Ga.), aff'd and remanded,
458 F.2d 486 (5th Cir.), cert, denied,
409 U.S. 1006 (1972)......................  47-48

Adams v. Rankin County Bd. of Educ., 485 F.2d
324 (5th Cir. 1973) ......................  42, 46

Adams v. School Dist. No. 5, Orangeburg, 444
F.2d 99 (4th Cir. 1971) .................. 42

Arvizu v. Waco Independent School Dist., No.
73-8030 (5th Cir., May 15, 1974).......... 55, 59n

Bell v. West Point Municipal Separate School
Dist., 446 F.2d 1362 (5th Cir. 1971) . . . .  55

Boykins v. Fairfield Bd. of Educ., 457 F.2d
1091 (5th Cir. 1972)......................  51

Bradley v. School Bd. of Richmond, 42 U.S.L.W
4703 (May 15, 1974) ......................  57, 58

Brice v. Landis, 314 F. Supp. 974 (N.D. Cal.
1969) ....................................  55

Carr v. Montgomery County Bd. of Educ., 429 F.2d
382 (5th Cir. 1970) ................ .. 1, 4, 12, 42

Carr v. Montgomery County Bd. of Educ., 289 F.
Supp. 647 (M.D. Ala. 1968)...............  37n

Cisneros v. Corpus Christi Independent School
Dist., 467 F.2d 142 (5th Cir. 1972), cert.
denied, 413 U.S. 920, 922 (1973)..........  40, 50

Cooper v. Aaron, 358 U.S. 1 (1958) ............  48
Davis v. Board of School Comm'rs, 402 U.S. 33

(1971)....................................41
Drummond v. Acree, 409 U.S. 1228 (1972)........ 45
Ellis v. Board of Public Instruction, 465 F.2d

878 (5th Cir. 1972) ...................... 35
Ellis v. Board of Public Instruction, 423 F.2d

203 (5th Cir. 1970) .......... ............ 33, 52n
Flax v. Potts, 464 F.2d 865 (5th Cir.), cert.

denied, 409 U.S. 1007 (1972)..............  38, 40, 51

Page



Goss v. Board of Educ., 482 F.2d 1044 (6th
Cir. 1973), cert, denied, 414 U.S. 1173
(1974)....................................  47n

Green v. County School Bd. of New Kent County,
391 U.S. 430 (1968) ......................  41

Harrington v. Colquitt County Bd. of Educ., 460 
F.2d 193 (5th Cir.), cert, denied, 409 U.S.
915 (1972)................................ 55, 59n

Henry v. Clarksdale Municipal Separate School
Dist., 480 F.2d 583 (5th Cir. 1973)........ 57

Hightower v. West, 430 F.2d 552 (5th Cir. 1970) . 33
Johnson v. Combs, 471 F.2d 84 (5th Cir. 1972) . . 57
Johnson v. Georgia Highway Express, Inc., 488

F.2d 714 (5th Cir. 1974).............. 46n
Kelley v. Metropolitan County Bd. of Educ., 463 

F.2d 732 (6th Cir.), cert, denied, 409
U.S. 1001 (1972).........................  39

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972),
cert, denied, 413 U.S. 919 (1973) ........  45, 51

Keyes v. School Dist. No. 1, Denver, 413 U.S.
189 (1973)................................ 38n, 40

Lee v. Macon County Bd. of Educ., 465 F.2d 369
(5th Cir. 1972) .................. .. 49

Lee v. Macon County Bd. of Educ., 448 F.2d 746
(5th Cir. 1971) .......................... 55

Mayo v. Lakeland Highlands Co., 309 U.S. 310
(1940)....................................  46

Medley v. School Bd. of Danville, 482 F.2d
1061 (4th Cir. 1973), cert, denied, 414
U.S. 1174 (1974).......................... 45

Miller v. Board of Educ., 482 F.2d 1234 (5th
Cir. 1973)...............................  50

Monroe v. Board of Comm1rs, 391 U.S. 450 (1968) . 49
Newburg Area Council, Inc. v. Board of Educ.,

489 F. 2d 925 (6th Cir. 1973).............  39, 52
Northcross v. Board of Educ., 412 U.S. 427 (1973) 57
Northcross v. Board of Educ., 466 F.2d 890 (6th

Cir. 1972), cert, denied, 410 U.S. 926 (1973), 
vacated in part and remanded, 412 U.S. 427 
(1973)....................................  52

Table of Authorities (continued)

Page

-iv-



Pate v. Dade County School Bd., 434 F.2d
1151 (5th Cir. 1970)...................... 59n

Ross v. Eckels, 434 F.2d 1140 (5th Cir. 1970) . . 59n
Singleton v. Jackson Municipal Separate School

Dist., 419 F.2d 1211 (5th Cir. 1969) . . . .  5n
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ........................passim

Table of Authorities (continued)

Page

United States v. Hinds County School Bd., 5th
Cir. No. 28030 ............................ 34n

United States v. Jefferson County Bd. of Educ.,
372 F.2d 836 (1966), aff'd en banc, 380 
F.2d 385 (5th Cir.), cert, denied sub nom.
Caddo Parish School Bd. v. United States,
389 U.S. 840 (1967)   40

United States v. Scotland Neck City Bd. of Educ.,
407 U.S. 484 (1972)   49

United States v. Texas Educ. Agency, 467 F.2d
848 (5th Cir. 1972) ......................  33, 40, 50

Weaver v. Board of Public Instruction, 467 F.2d 
473 (5th Cir. 1972), cert, denied, 410 U.S.
982 (1973)................................  50, 51

Statute
20 U.S.C. §1617.................................. 56

-v-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 74-2633

ARLAM CARR, JR., et a1.,
Plaintiffs-Appellants,

PENELOPE ANNE JENKINS, et al.,
Plaintiff-Intervenors-Appellants,

v.
MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Middle District Of Alabama, Northern Division

BRIEF FOR PLAINTIFFS-APPELLANTS 

Issues Presented For Review

Prior to the order reversal of which is here sought, a 
desegregation plan was last approved for the Montgomery County 
school system in 1970, see Carr v. Montgomery County Bd. of 
Educ., 429 F.2d 382 (5th Cir. 1970). That plan utilized only 
the pupil assignment techniques of contiguous rezoning and



reassignment of students bused into Montgomery city schools
from rural county areas; it incorporated no pairing, clustering,
or noncontiguous zoning and it involved no additional pupil
transportation. It was projected to result in the continued
operation (in this nearly 50%-black school system) of 29 schools
with student enrollments more than 80% of one race; and during
the 1973-74 school year (one all-black school having been closed
in the interim), 29 such schools still existed. Following the
filing of a motion for further relief, and in accordance with
a joint motion of the parties, the District Court in 1974
considered new plans for pupil assignment to the public schools
of Montgomery County. On May 22, 1974, the District Court
approved for implementation a Board of Education plan which is
projected to assign almost 60% of Montgomery's black.elementary

2/
students to schools more than 80% black, and which does not 
utilize any pairing, clustering, or noncontiguous zoning to 
desegregate these schools further. The District Court ruled 
that it was "impracticable" to desegregate these remaining all­
black and virtually all-black facilities, and that in any event

1/ The actual 1970-71 Enrollment showed 29 schools more than 
80% of one race. (See Appendix D to Motion for Summary Reversal)
2/ Ten of the eleven schools are more than 87% black.

2



their racial compositions were not the result, in whole or in 
part, of past discriminatory actions by the school authorities 
so that Swann did not invalidate the school district's use 
of wThat the District Court considered a valid "Ellis-type" 
neighborhood school assignment plan.

1. Did the District Court err in holding that the remaining 
one-race elementary schools in Montgomery need not be desegregated 
to the greatest extent practicable, under Swann and companion 
cases?

2. Did the District Court err in holding that further 
desegregation of the remaining one-race schools in Montgomery 
was impracticable within the meaning of Swann and companion 
cases?

3. Did the District Court err in accepting the pupil 
assignment plan offered by the Montgomery County Board of 
Education because, through school closings and reassignments of 
black children only to schools in eastern Montgomery, that
plan unfairly and discriminatorily puts the burden of desegrega­
tion upon black students in the Montgomery County system?

4. Did the District Court improperly rely upon claims that 
effective system-wide desegregation in Montgomery County would 
result in the withdrawal of white students from the system, in 
determining to reject alternative plans proposed by the plaintiffs- 
and plaintiff-intervenors-appellants which would have more 
completely desegregated the public schools of Montgomery County



than does the school board's plan accepted by the District Court?
5. Did the District Court err in taxing costs of this 

proceeding, brought to enforce Fourteenth Amendment rights and 
which resulted in' the adoption of a new plan of pupil assignment 
for Montgomery County (which new plan eliminates some of the 
one-race secondary schools which remained under the 1970 decree), 
against the plaintiffs and plaintiff-intervenors, who represent 
classes of black and white students and their parents seeking 
the desegregation of the Montgomery County schools?

Statement of the Case
This school desegregation case was last before this Court 

in 1970, 429 F.2d 382, at which time the Court approved a District 
Court decree accepting a plan of pupil assignment designed to 
eliminate racial dualism and to establish a unitary public school 
system within Montgomery County, Alabama. Following this Court's 
affirmance and remand, the District Court continued to retain 
jurisdiction over the case in accord with this Court's 
instructions that

the courts have a solemn obligation to determine 
whether the structure designed by the'school 
board will house a unitary school system . . . .
[A]ny imprimatur of judicial approval must be 
entered with the caveat that until construction 
of a unitary system is completed, change orders, 
when appropriate, will be issued to ensure that 
the designed structure in fact accommodates a 
unitary system and not a bifurcated one. Id., 
at 386.



On August 18, 1972, following submission of an enrollment 
report by the school board, plaintiffs filed a motion for 
further relief seeking greater desegregation. This motion 
was never acted upon, but on August 29, 1973, pursuant to the 
joint motion of the parties, an order was entered by the District 
Court which approved the closing of Billingslea Elementary 
School and assignment of its students to Momingview and the 
transfer of students from Goodwyn to Houston Hills Junior High 
School, and which established a schedule for the submission 
of further suggestions for eliminating "such one-race schools 
as may be required by Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, with special attention being given to 
achieving a desegregation solution for the Carver complex and

3/the Booker T. Washington Junior High facilities." (Such
submissions were ultimately evaluated by the District Court in 
accordance with "recent clarifications by the Fifth Circuit and 
the Supreme Court of the obligation of a school board to establish a

y
unitary school system. . . . "  (5/22/74 Op. at 5) ).

3/ The only other post-1970 proceedings had followed the filing 
of a school board motion to alter zone lines and construct new 
facilities in August, 1972. The District Court approved the zone 
revisions and reserved ruling on the construction proposals, which
were thereafter approved in July of 1973.
4/ Reproduction of the record for use by the Court in this appeal, 
see Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 
1211, 1222 (5th Cir. 1959), has been attended by difficulties. 
Following filing of Notices of Appeal by both the original plaintiffs



On September 7, 1973, a motion to intervene was filed by 
the American Friends Service Committee and thirty-four Montgomery 
County students (now known as plaintiff-intervenors-appellants 
Jenkins, et al.). At the conclusion of a hearing on October 8, 
1973, the District Court deferred ruling on this motion, which 
was subsequently granted as to the individual applicants for 
intervention by Order of February 15, 1974.

4/ (Continued)
and the plaintiff-intervenors, see infra, plaintiff-intervenors 
filed a motion pursuant to F.R.A.P. 11(c) to retain the record 
in the District Court pending preparation of appellate papers, 
which was granted by the District Court. An abbreviated record 
was transmitted to this Court by the District Court Clerk on July 
9, 1974, and the appeal docketed here on July 12, 1974. However, 
counsel for appellants were unable to withdraw the record from 
Montgomery and take it to New York for reproduction. Accordingly, 
counsel for plaintiffs-appellants secured the agreement of counsel 
for plaintiff-intervenors to have the record transmitted to the 
Fifth Circuit Clerk in order that it could then be withdrawn for 
reproduction. This move was blocked by counsel for the school 
board in order that the record could remain available for its use 
in Montgomery when preparing the board's brief. Plaintiffs- 
appellants have accordingly deferred the filing of additional 
copies of the record until after the briefs are in, except for 
three copies of the transcripts of the 1974 hearings, which have 
been lodged with the Clerk.

References throughout this Brief are therefore to the original 
papers, and employ the following forms: transcripts by date and
page, e.cp, "4/19/74 Tr. 280;" district court opinion (reproduced 
as Appendix A to the Motion for Summary Reversal herein) by page, 
e.£., "5/22/74 Op., at 5;" pleadings by date of filing and page, <s.£ 
"1/15/74 Submission of United States, at 2;" orders of District 
Court, by date and page, «s.g_. , "1/16/74 Order, at 1; " exhibits, by 
hearing date, identification and page, e.cp, "4/15/74 PX-1, at 7" 
(with "P" for plaintiffs, "PI" for plaintiff-intervenors Jenkins, et 
al., "D" for defendants, and "US" for United States). Selected 
exhibits frequently referred to herein have been copied and are 
attached to this brief in an appendix.



In the interim, the defendant Montgomery County Board of 
Education filed its proposal for "meeting constituticral 
requirements and mandates for a unitary school system in

yMontgomery County" (1/15/74 Plan, at 1). In accordance 
with the provisions of the August 29, 1973 Order, which had 
directed the parties to indicate "desegregation measures agreed 
upon and [to describe] remaining areas of disagreement," the 
United States on the same date forwarded to the Court its 
comments upon the board's plan (1/15/74 Submission of the United 
States). The government noted that plaintiffs had retained an 
educational expert to prepare an alternative plan but that it 
was not ready for submission or discussion at that time (id., at 
2, 4 n. 4). Also on January 15, plaintiffs sought an extension 
of time within which to complete preparation of their plan and 
for its submission to the Court, and a ten-day extension was 
allowed by the District Court (1/16/74 Order).

When plaintiffs1 witness was unable to complete preparation 
of a plan by the extended deadline, the District Court ordered 
the parties to show cause why the school board's plan should not 
be approved (1/29/74 Order). After a response was filed by the 
United States on February 13, the District Court in a memorandum 
opinion and order permitted the intervention of the Jenkins 
plaintiffs, and directed submission of further proposals by the

5/ The plan is reprinted as Appendix "D" to plaintiff-appellants' 
Motion for Summary Reversal previously filed herein.



parties:
»

§/

A study of the plan of desegregation filed 
by the Montgomery County Board of Education 
on January 15, 1974, reflects that the plan 
does not in some instances set forth informa­
tion with sufficient specificity, including 
zone lines, that will allow this Court to 
determine how the board proposes student 
reassignment. The plan should be amended so 
as to set forth this information. Further, it 
appears at this point that the plan proposed 
by the Board of Education does not provide a 
sufficient percentage of white students to attend 
Carver High School and Houston Hills Junior High 
School for the 1974-75 school term. Furthermore, 
the board's plan evidences a deficiency on its face for 
its failure to reassign black students from Carver Junior 
High, Carver Elementary, Hayneville Road Junior High, 
Booker T. Washington Junior High and Chilton Elementary 
Schools to predominantly white schools. Therefore, 
the school board will be directed to submit further 
desegregation proposals in accordance with the above 
observations. (2/15/74 Op., at 2).

The school boax'd sought reconsideration of this Order, which the 
District Court denied on the ground that the legal insufficiency 
of the board's January plan was established by controlling 
precedent (3/13/74 Order, at 3-4):

6/ The plaintiffs' proposed plan was filed February 16, 1974; 
by Order of March 5, 1974, the District Court directed the other 
parties to respond thereto. Subsequently, the District Court 
directed the preparation of a 7th-grade pupil locator map for the 
Montgomery County system in accordance with a discovery request 
by the plaintiff-intervenors (3/5/74 Order). Prior to the 
completion of this map, later introduced into evidence (4/19/74 DX-8), 
the system had no compiled information about residential location 
of its black and white students, and no such information for grades 
other than the seventh presently exists (4/19-22 Tr. 371).

8



Under the board1s proposal now submitted to 
this Court for implementation with the 
commencement of the 1974-75 school year, several 
of the elementary and junior high schools are to 
be, for all practical purposes, either all-white 
or all-black. The Montgomery County School Board 
has an excellent record in this case which has not 
only been formally recognized several times by 
this Court but also by the Supreme Court of the 
United States. Thus, with the several appellate 
decisions speaking so clearly as to the continued 
maintenance of one-race schools, the approval of 
the board's proposals in several areas would be 
an exercise in futility that would eventually result 
in an undue disruption of the Montgomery County 
Public Educational System and quite probably, 
considering the normal time it takes to get a case 
decided on appeal, into the middle of next school 
year. . . .

On March 29, 1974, the school board submitted a revision of its
1/January plan, and on April 1, 1974, alternative plans were submitted

§/by plaintiff-intervenors. After discovery depositions,
evitendiary hearings were held April 14, 19, 22, 24 and 25, 1974.
On May 8, 1974, the school board submitted further modifications

9/
of its proposed plan.

V Reprinted as Appendix "E" to the Motion for Summary Reversal.

§/ Reprinted as Appendix "C" to the Motion for Summary Reversal-.
9/in

Reprinted 
this cause.

as Appendix "F" to the Motion for Summary Reversal

9



May 22, 1974, the District Court issued its opinion and
judgment approving the school board's plan in_ toto and rejecting
the need for further desegregation of eleven remaining disproporti-

10/nately black elementary schools in Montgomery. Notices of
Appeal to this Court were filed by the plaintiffs and plaintiff- 
intervenors on May 30, 1974.

On June 27, 1974, plaintiffs-appellants1 Motion for Summary 
Reversal and the response thereto of the defendant Montgomery 
County Board of Education were presented to this Court, and had 
not been ruled upon at the time this brief was prepared.

Statement of Facts
The Montgomery County Schools in 1973-74.

Montgomery is a consolidated city-county school system 
which in 1973-74 operated some 53 schools, including special 
facilities (4/24 Tr. 16). Its Fall, 1973 report shows that the 
system had a variety of grade structures among its various 
buildings offering a regular instructional program:

30 Elementary schools serving grades 1-6 
6 Elementary-Junior High Schools serving grades 1-9

10/ The District Court taxed the costs of the proceeding one-half 
against plaintiffs and one-half against plaintiff-intervenors. The 
imposition of this sanction was stayed pending appeal upon the 
motion of the plaintiff-intervenors (6/6/74 Order).

10



7 Junior High Schools serving- grades 7-9 
4 Senior High Schools serving grades 10-12 
1 Senior High School serving grades 7-12 

(4/15 Tr. 9-11).

Pursuant to the District Court's 1970 decree, as modified 
in minor detail in 1972 and 1973, students were assigned to 
schools in basically two ways: within the city limits of Montgomery,
a geographic zone was established for each school, and students 
residing within that zone attended the school, except for

ii/majority-to-minority transferees. (The 1973-74 zones for
elementary, junior high and high schools within Montgomery are

12/
depicted on 4/19 DX-1, -4, -6, respectively.) Outside Montgomery
City, students fell within loosely defined "periphery" zones —

13/
except for students in extreme southern Montgomery County.

11/ But see 4/24 Tr. 151-55 . Furthermore, the 1973-74 closing 
of Billingslea and assignment of its pupils to Morningview created 
a non-contiguous zone for that school within the city.
12/ We regret that the maps are too large to permit reproduction 
in quantity for the members of the panel.
13/ These latter pupils were all assigned to Dunbar Elementary 
in grades 1-6, and Montgomery County High School in grades 7-12. 
None of the plans of the parties proposed to alter these 
assignments. (See, _e.c[., 4/19/74 PIX-4; 4/24 DX-1, -2).

11



Almost all students in "periphery" zones were transported to
school by bus, and most were assigned to schools in the city.
These pupils were to be assigned - in busloads - to schools of
the opposite racial concentration within Montgomery, in order

15/
"to further desegregation" (4/19 Tr. 277-78). See Carr v.

14/

Montgomery County Bd. of Educ., supra, 429 F.2d, at 384.
In 1973-74, the assignment techniques utilized resulted

in the continued maintenance of many racially identifiable
schools, according to the expert witnesses called by plaintiffs

16/
and plaintiff-intervenors (4/15 Tr. 9-12 ; 4/19 Tr. 9) .
Fifteen of thirty-six elementary schools were 87% or more black, 
while six other elementary schools were 87% or more white; 
seven of thirteen junior high schools were 85% or more black, 
while another two junior highs were 85% or more white; and two

14/ Six schools were located in the "periphery area" itself 
Catoma Elementary, Peterson Elementary, Southlawn Elementary, Madison 
Park Elementary, Pintlala Elementary, and Georgia Washington 
Elementary - Jr. High. (4/15 Tr. 15). These schools had no fixed 
attendance zones, but were attended by students living within the 
school board's 2-1/2 mile walking distance of them and by the students 
on the bus runs assigned to each school by the board (e.g., 4/19 Tr. 
276) .
15/ However, no specific assignments were made, or level of results 
projected, from this "periphery transportation" under the 1970 decree 
or plan. No map of periphery zone assignments was introduced by the 
school board below, but a study of the 1973-74 transportation patterns 
(11/15/73 Report; 4/24 USX-2) reveals numerous bus routes carrying 
large numbers of students to schools- serving predominantly pupils 
of the same race. For example, Route 126 transported 43 white student 
from north of the city to Lee High, over 70% white, although Carver 
High remained virtually all-black. See Appendix infra, pp. la-8a.
16/ See generally, 4/15 Tr. 5-8; 4/15 PX 1; 4/19 Tr. 3-8; Motion 
for Summary Reversal, at p. 8, n. 16.

-  12 -



senior high schools were more than 85% black. At the17/

same time, the school system was busing 11,176 pupils to
classes (4/24 uSX-2)— up from 7553 in 1968-69 (4/24 DX-7),
due primarily to increasing suburbanization (4/24 Tr. 97, 107).
However, no pairing or clustering (contiguous or non-contiguous),

!§/
or satellite zoning was employed within the city.

The Board's Plan
As noted above, on January 15, 1974, the school board filed 

its first proposal for further desegregating the Montgomery 
County schools, which it said would "[meet] constitutional 
requirements and mandates for a unitary school system. . . . "

At the senior high school level, the board proposed to 
reshape zones within the city and to reassign some "periphery 
students; the enrollment of black students at Lanier, Lee and 
Jeff Davis High Schools would have been increased but Carver 
High was projected to be 63% black. As noted above, the 
District Court on February 15, 1974 directed the board to submit 
a new proposal because its earlier scheme "does not provide a

Ylf See Table 2 to 5/22/74 Opinion of the District Court, 
reprinted as Appendix A to the Motion for Summary Reversal.
18/ Thus, even some contiguous school zones had widely divergent 
populations in 1973-74; e.£., Paterson (94% black) and Capitol 
Heights (20.5% black).

13



sufficient percentage of white students to attend Carver High
School. . ." (2/15/74 Op., at 2). The board's March 29 plan
(4/24 DX-1) extended the rezonings and peripheral reassignments
with the result that the city high schools were projected to

19/
enroll 37%, 37%, 39% and 43% black students, respectively.
The high school plan was not further amended, and was ultimately
accepted by the District Court.

The school board's January 15 junior high school plan
similarly relied upon rezoning and reassignment of periphery
students. In addition, the board proposed to close all-black
Booker T. Washington Jr. High School and reassign its students
to the adjacent Baldwin (46% black) and Houston Hill (85% black)
schools. Zone lines for other junior high schools were then
shifted in an eastward direction as permitted by the board's
proposal to reassign Georgia Washington elementary students

20/
to the two new elementary schools which will open in eastern 
Montgomery this fall, converting Georgia Washington to a junior

19/ Various tabular comparisons of the projected results under 
the plans put before the district court were introduced (e.g.,
4/15 PX-6). For the sake of legibility and simplicity, we attac 
at pp. 9a - 13a of the Appendix hereto, copies of the type­
written table submitted as Attachment A to the post-trial brief 
of the United States. Results projected under the several plans, 
for each grade level— except for the May 8 post-trial plan 
modifications described herein — may be compared by scanning the 
table.
20/ Eastern Bypass and Vaughn Road.

14



high only, and reassigning city white students to it.
The District Court's February 15 order also was critical

of the board's junior high plan (see excerpt at p. 8, supra).
The resultant March 29 plan (4/24 DX-1) , sought to meet the
court's specific criticisms by combining only Loveless and
McIntyre, reassigning the Hayneville Road students to
predominantly white schools; by reassigning some Booker T.
Washington students to Capitol Heights rather than Houston Hill;
and by additional peripheral reassignments. However, McIntyre-
Loveless would remain 98% black and Baldwin, previously majority-
white, was to become 82% black as the result of reassignments

22/
from Booker T. Washington and Hayneville Road. Only after
the District Court made it clear during the hearing (4/24 Tr.
257-59) that it would not accept this feature of the plan, did

23/
the board finally propose, on May 8, 1974, modifications 
to its junior high school plan. These changes, accepted by the

21/

21/ The school board also proposed to consolidate all junior 
high students from Loveless, Hayneville Road, and McIntyre junior 
high schools at McIntyre— resulting in one large, virtually 
all-black, junior high school.
22/ See table at pp. 9a-13a, infra.
23/ See Appendix F to Motion for Summary Reversal.

15



District Court, project enrollments between 31% and 39% black
at all city junior high schools except Bellingrath (62.8%),
Baldwin (73%), and McIntyre (98.2%). Almost 40% of all black

24/
junior high students in the Montgomery area will attend 
these schools under the board's final plan.

At the elementary school level, the board utilized the 
same basic techniques. The opening of Eastern Bypass and 
Vaughn Road elementary schools allowed the eastward shifting 
of zone lines, with the slack to be accounted for by the closing 
of Chilton (90% black), Goode Street (99% black), and Madison

25/
Park (100% black) elementary schools (see, e.g. 4/15 Tr. 94).
The February 15 District Court opinion did not evidence
dissatisfaction with the large number of virtually all-black
schools which would remain under the plan, but the Court did
take the board to task for reassigning black students from 

26/
closed schools to other black schools. In its March 29 
revision, therefore, the board modified its plan (see (4/24 
DX-1) by assigning black students who formerly attended Chilton 
and Goode Street schools across town to white facilities on the 
eastern edge of Montgomery, and by reducing the number of Carver

24/ The entire county except for the Dunbar-Montgomery County 
High School zone at its southern tip.
25/ The board also proposed to assign several hundred black 
students from Carver Elementary to Hayneville Road Elementary
(both schools virtually all-black) in order to obtain additional 
space at Carver Junior High.
26/ And from Carver, see note 25, supra.

- 16 -



students to be assigned to Hayneville Road the balance
likewise to be transported to white schools across town.
In a final post-trial adjustment, the board on May 8 eliminated 
the assignment of any Carver children to Hayneville Road, 
enlarging the satellite zones for the eastern and southern 

Montgomery schools.
In sum, then, as finally developed through three 

submissions at the coaxing of the District Court, the board's 
plan relies upon satellite zoning of black students primarily, 
reassignment of "periphery" pupils, rezoning, and black school 
closings, but eschews any reciprocal transportation of white 
students to black schools (see 4/24 Tr. 208-09, 211, 240), 
pairing or clustering (4/24 Tr. 20). It leaves almost 60% 
of Montgomery County's elementary students in eleven disproportion­
ately and identifiably black facilities, and retains two junior

high schools over 70% black.
According to the Superintendent, "we didn't start out 

with any fixed ideas about a percentage in each school. We 
tried to organize a plan that was convenient to Re ogle, a plan 
that was educationally sound; . . . "  (4/24 Tr. 211)(emphasis

supplied).

27/

27/ For 
infra.

the projected results, see table at pp. 9a - 13;

17



The Plaintiffs 1 Plan

On February 16, 1974, plaintiffs filed a suggested plan 
of desegregation which had been prepared at their request 
by Dr. Gordon Foster, Director of the Florida School 
Desegregation Consulting Center (see Appendix B to Motion 
for Summary Reversal; 4/15 PX-2, -3, -4, USX-1, -2, -3).
This plan was based upon limited data available to Dr. Foster: 
the 7th-grade pupil locator map had not yet been prepared 
(4/15 Tr. 17); Dr. Foster had no enrollment breakdown by 
race and grade (ibid) until shortly before the hearing, at 
which time he refined his enrollment projections accordingly 
(4/15 PX-3, -4). His plan dealt only with Montgomery city 
schools, since he lacked information on the out-county facilities 
(4/15 Tr. 18). Despite these handicaps, Dr. Foster prepared 
a plan based upon the board's 1973-74 zones (id., at 16) which 
fully desegregates all city schools through the use, at the 
elementary level, of pairing and clustering, with some modifica­
tion of the zones, primarily through reassignment of "periphery" 
students (id. at 20-25). Dr. Foster proposed desegregation 
of all secondary schools within the city using the same basic 
techniques as the school board: closing Booker T. Washington
Junior High School, rezoning, and reassigning transported

28/
students from the periphery area. (id. at 33-34, 38).

28/ Indeed, lacking precise transportation data, Dr. Foster 
relied upon the reassignment proposals in the board plan as an 
indication of feasibility (see Appendix B to Motion for Summary 
Reversal, at 40).

18



that racially unidentifiable schools in Montgomery should not,
in general, vary more than 15% above or below the system-wide
population, although he made "no attempt to press the schools

29/
within that mold" (4/15 Tr. 79, 121). While it uses pairing
and clustering at the elementary grade level, Dr. Foster 
judged it completely feasible administratively and educationally 
(id. at 58-66, 72̂ -73, 139). By dealing comprehensively with 
the city schools, in his opinion, the plan was likely to

30/
minimize resegregation and promote stability (id. at 48, 141--42) .

Dr. Foster's plan would work the greatest change at the 
elementary level, in the grade restructuring necessitated by 
the pairings and clusterings under his plan. Although most

31/

Dr. Foster's plan is based upon the flexible guideline

schools would have a 1-3 or 4-6 structure (4/15 Tr. 119),

29/ Dr. Foster selected the 15% figure because it has been used 
by some courts and administrative agencies as a measure of racial 
identifiability (4/15 Tr. 87).
30/ Projected results under Dr. Foster's plan may be found in the 
table, infra at pp. 9a - 13a . As for county schools wThich were
not dealt with in this plan, Dr. Foster testified that he had no 
objection to the board's proposal to close Madison Park and 
reassign its student body to Eastern Bypass (4/15 Tr. 66-67); and 
a Southlawn-Catoma-Pintlala cluster could be added to his plan 
(4/19 Tr. 60) .
31/ Twelve schools would retain grades 1-6 and two present 
1-9 facilities would also retain their present structure.

19



capacities did require deviation in two pairings (id. at 27),
where the division of grades was 1-2, 3-6 and 1-4, 5-6,

32/
respectively (id. at 138).

Dr Foster's plan would also require a significant increase
33/

in the number of pupils being transported in this system, 
although the times and distances of travel (4/15 Tr. 148-56) 
would be no greater than those for many students now bused 
in the south county, in "periphery" areas or to be reassigned 
across the city under the board's plan (see 4/19 Tr. 61; compare 

4/24 Tr. 217-18, 232).

32/ This alteration of grade structure avoids splitting the 
same grade into sections among the paired schools, a complaint 
made four years ago by the school board about the HEW-proposed 
pairings. See Brief for Appellants in No. 29521, at p. 27.
33/ There was no agreement among the parties, either during or 
"after the trial, about the extent of the additional transportation 
and expense which would be required under the various plans. The 
record evidence indicates potential inaccuracies in the computa­
tion of every set of figures introduced, a situation which led 
the United States to submit, as Attachment C to its post-trial 
brief, a comprehensive series of new transportation estimates 
with methodology. The District Court never resolved the factual 
differences, instead rejecting any use of transportation for 
desegregation, particularly at the elementary level, beyond that 
which the board was willing to do; thus, this Court need not 
settle the issues on this appeal. In order to describe the plans 
fully, however, we shall briefly summarize the parties estimates 
in notes and tables.

Dr. Foster initially estimated that his elementary pairings 
and clusterings would require the transportation of 5,204 pupils, 
and that his secondary reassignment proposals would add an 
additional 1992 students to those requiring transportation (4/15
PX—3,—4). However, he admitted that his calculations were only 
rough estimates which had been rapidly done in the early morning 
hours and were therefore likely to contain errors (4/15 Tr. 53 55 9

[continued]
20



The Plaintiff-Intervenors1 Plan

Following the granting of their Motion to Intervene, 
plaintiff-intervenors Jenkins, et al. retained the services 
of Dr. Larry VJinecoff, former Director of the South Carolina 
school desegregation center (4/19 Tr. 3-8), to study the school 
board's plan and prepare alternatives for submission to the 
District Court. Unlike Dr. Foster, Dr. Winecoff had available 
to him a grade-by-grade enrollment breakdown and a pupil 
locator map showing the residence of all seventh-grade

33/ (Continued)
142-45). The Board of Education projected an additional 5,169 
elementary and 3,043 secondary students requiring transportation 
under Dr. Foster's plan (3/20/74 Response . . .  to Plaintiffs 
Plan, at 25). The school system's transportation supervisor 
then testified at the hearing that Foster's plan would require 
new busing for 4,524 elementary students (4/24 Tr. .302). This 
was further altered in the board's post-trial brief to 3,403 
elementary pupils (5/13/74 Post-Trial Brief, at 8). The United 
States introduced evidence at the trial (4/24 USX-1) showing that 
Dr. Foster's plan would add 4,182 elementary and 1974 secondary 
students to those requiring transportation, and Attachment C to 
its post—trial brief indicated that it had revised these 
calculations to 3,502 elementary students and 1025 secondary 
students. See table at p. 14a , infra.

In addition to possible mathematical errors, the reasons for 
the welter of different estimates, which was repeated with respect 
to the other plans (see note 45, infra and tables at pp. 15a

16a , infraj, include the use of different base data by the
individuals making the computations (3/24 Tr. 318-24, 345), the 
use of differet interpolation figures in making estimates 
respecting the plaintiff-intervenors' plan (4/19 Tr. 340, 349-60, 
367), the use of different measures (e.g., 2-mile arcs versus 
2—1/2 mile road distance) in estimating students eligible for 
transportation (id. at 27, 45, 315), mechanical errors in counting 
from the pupil locator maps (id. at 290, 292, 336-38, 362) and the 
unavailability to all parties of grade-by-grade breakdowns of 
1973-74 transportation (id. at 324, 370).

21
[continued]



students. Dr. Winecoff employed this data to draw new
a34/

zone lines for the school system by calculating interpolation
ratios from which he could predict the number of students
in other grade levels residing within a given area (4/19 

35/
Tr. 14-16).

33/ (Continued)
Matters were made somewhat more confused by the school 

board emphasis on the number of students whose assignments 
would be"changed (with or without transportation) under the various 
plans (see 4/19 DX-10,-11, -12, - 13, - 14), figures whose 
accuracy was similarly the subject of challenge by the parties.

34/ See note 6, supra.
3_5/ Dr. Winecoff first counted all of the black and white 
pupils represented on the locator map. He found underrepresenta­
tion ranging from nine to fourteen per cent (4/19 Tr. 14-15), 
which was subsequently explained as having been caused by the 
exclusion of special education students from the map (id_̂_ at 
338-42; 4/19 PIX-22). By comparing the enrollment■for a given 
grade or set of grades (e.g., 1-3, 4-6, 7-9, etc.), by race, 
to the total system enrollment by race, Dr. Winecoff calculated 
ratios for each race and grade level which, when multiplied 
bv the number of dots on the locator map for each race, 
approximated the system-wide enrollment. These "interpolation 
ratios" were then utilized to project the number of black and 
white students at various grade levels residing within various 
geographic areas of the system, based on the residence locations 
of the seventh graders (4/19 Tr. 16).



areas, Dr. Winecoff first sought to achieve the maximum
desegregation feasible through alteration of attendance zones
in a contiguous fashion, within the school board's walking-

36/
distance regulations (ld_. at 17, 20, 24-25) ; Dr. Winecoff
also made use of the existing "periphery" transportation zones
(id. at 13). This contiguous rezoning took the form of "strip
zones" across the city from east to west, or northwest to
southeast (id. at 32, 47-48).

In order to achieve any substantial desegregation at the
elementary level with this technique, Dr. Winecoff found it
necessary to restructure elementary schools into primary (1-3)
and intermediate (4-6) school centers (4/19 Tr. 58-59). The
plaintiff-intervenors' plan thus entails separate, non-feeder

37/
and non-coterminus zone lines for grade levels 1-3, 4-6, 7-9 
and 10-12.

Not limited, as was Dr. Foster, to the existing attendance

36/ At the elementary level, Dr. Winecoff estimated the 2 1/2- 
mile road distance within which the Montgomery Board expects 
students to walk to school by drawing circles of 2-mile direct- 
distance radii from each school (4/19 Tr. 27). At the junior 
and senior high school levels, he used a radius of 2 1/2 miles 
(id . at 45).
37/ Except that the entire Montgomery area is divided into seven 
large sectors for grades 1-6, and while zone lines for the 1-3 
and 4-6 schools within each sector may not be coterminus, students 
in the first six grades do not cross the sector lines until junior 
high school (4/19 Tr. 12-14), except for a small portion of the 
Vaughn Road zone (id. at 30-31).

23



However, Dr. Winecoff further determined that even with

this grade restructuring and alteration of zone lines, 14
38/

elementary schools would remain racially identifiable and
he therefore pursued means of increasing the degree of
desegregation at the elementary level, selecting the method
of creatincr satellite, cross-busing sub-zones between certain

39/
of the grade 1-3 zones he had drawn (id. at 17, 20).

The "Plan A" recommended by plaintiff-intervenors and 
discussed in the District Court's opinion, therefore, consists 
of the following components: new zone lines and proposals for 4Q/
some cross-transportation, using satellite zones, at grades 1-3;

41/ 42/
new zone lines at grades 4-6; new zone lines at grades 7-9;

43/44/
and new zone lines for the senior high schools, grades 10-12.

38/ Dr. Winecoff's measure of racial identifiability was 
similar to Dr. Foster's: 10-15% deviation on either side of the
system-wide ratio (4/19 Tr. 24-25). His goal in devising his 
plan was to eliminate such schools, although he had no fixed 
guideline (id. at 83) and in fact the plaintiff—intervenors plan 
leaves racially identifiable schools in the Montgomery area 
(id. at 54-56).
29/ The basic 1-3 zoning plan without cross-transportation was 
eventually denominated "Plan A Alternate" and was not recommended 
by plaintiff-intervenors or any other party. Dr. Winecoff also 
prepared an alternate "Plan B," about which no evidence was 
introduced and which was likewise abandoned. See Appendix C to 
Motion for Summary Reversal.
40/

41/
42/
43/
44/

See 4/19 PIX-14, PIX-3, -4, DX-2, USX-1

See 4/19 PIX-14, PIX-6, -7, DX-3, USX-2

See 4/19 PIX-14, PIX-8, -9, DX-5, USX-3
See 4/19 PIX-11, -12, DX-7, USX-4 •
[See next page] 24



The results which Dr. Winecoff projected under the plan

are shown in Attachment A to the government's post-trial brief, 

pp. 9a-13a, infra. As previously noted, Plan A does retain some 

racially identifiable schools in the Montgomery area (4/19 Tr. 
54-56): Bellinger Hill, 1-3 (70% black); MacMillan, 1-3 (84%
black); Loveless, 1-3 (67% black); Peterson, 4-6 (81% black); 
Eastern Bypass, 4-6 (28% black). Dr. Winecoff testified that

he had done everything possible to minimize transportation 

under the plan (4/19 Tr. 53) and that he had "compromised" upon 

continuing disproportion at these schools to do so (id., at 65) . 
He noted that because of the locator map, Plan A was more exact 

than the plaintiffs' plan in some instances (id_. at 63), and 

that it maintained no exceptions to the 1-3, 4-6 grade structure 
in the Montgomery area (id. at 61), but that its primary advan­
tage was the smaller amount of additional transportation 

required (i_d. at 59). He found Dr. Foster's plan preferable 

because —  if amended to close Madison Park and cluster Catoma, 

Southlawn and Pintlala (id., at 60) —  it would eliminate all 

racially identifiable schools in the Montgomery area of the 

county. Because of its greater comprehensiveness, Dr. Winecoff

44/ (see previous page)
Dr. Winecoff1s plan also would establish firm zone lines for 

the county "periphery" areas (4/19 Tr. 13) and change the 
utilization of several school buildings, such as Baldwin Jr. High 
School (id. at 67-68, 75), as well as close Booker T. Washington 
Elementary and Junior High School, Chilton, Goode Street, Highland 
Avenue, Madison Park, the elementary grades of Hayneville Road and 
McIntyre, and the junior high grades of Carver and Loveless (see
generally, table at pp. 9a-13a, infra).

- 25 —



thought Dr. Foster's plan would result in more stable

desegregation in this system (id. at 64).
Like Dr. Foster's plan, Plan A would require transportation

of additional students by the Montgomery County system. Dr.

Winecoff prepared estimates of this additional transportation

(4/19 PIX-15, -16) using the 7th grade pupil locator map, the
interpolation factors, and the maps of 1973-74 bus routes
(4/19 Tr. 165). A mathematics instructional supervisor in the
system used the same method in preparing estimates for the

board (4/19 DX-15, -16, -17, -18, -19), although she used
different enrollment figures, measures of road distance, and

interpolation factors (4/19 Tr. 315, 340, 345, 349-60, 367).
Not surprisingly, she came up with different estimates than

Dr. Winecoff (id. at 325). The transportation supervisor also
used different information and developed different figures

(4/24 Tr. 318-24), as did the United States in its post-trial

calculations. See note 33, supra. The varying estimates are
" 45/

shown in the table, infra, p. 15a.

45/ It should of course be noted that even the board's plan 
requires an increase in transportation. Because the board makes 
no attempt to desegregate the remaining virtually all-black 
elementary schools by assigning any white students to them beyond 
walking distance, its plan (coinciding as it does with the opening 
of two new elementary schools in far eastern Montgomery) results 
in a slight decrease in grade 1-6 pupils bused from 1973-74. It 
should also be kept in mind, however, that while many whites in 
eastern Montgomery will stop riding the bus by walking to newly 
opened Vaughn Road and Eastern Bypass, large numbers of black 
students will be taking school buses for the first time from 
western Montgomery (Carver, Chilton, Goode Street, etc.) to reach 
some of the same schools. The reduction in elementary transporta­
tion under the board's plan — putting aside all question of the

- 26 - [continued]



The distances to be travelled under Dr. Winecoff's plan 
are well related to those presently traversed by "periphery 
area" buses carrying Montgomery County students (4/19 Tr. 60- 
61, 205-11; 4/24 Tr. 146-47, 217-18, 232-33).

45/ (continued)
plan's effectiveness— is hardly equitably distributed (see 
4/24 Tr. 214-15):

Elementary Students Bused

Black White
1973-74 (actual) 3177 2211
1974-75 (board plan) 3157 1308
Decrease 20 903

(4/24 Tr. 139, 297-98). The Board's secondary plan underlines 
the Superintendent's comment that effective desegregation of 
the Montgomery system requires transportation (4/24 Tr. 30), 
for it increases the numbers of students bused in order to 
achieve a far more effective, albeit imperfect, result at 
the secondary level. The figures appear in the table at p. 
16a, infra.

27



The Board's Response
The Montgomery County Board of Education, in its 

pleadings and through its witnesses, responded to the 
alternative plans proposed by the plaintiffs and plaintiff- 
intervenors by (to use a current and apt phrase) "stonewalling 
it." The plans were condemned as educationally unsound,

46/ 12/
administratively unworkable, exorbitantly expensive, 
damaging to the school system a.nd in every way detrimental 
to the cause of desegregation which, the Board said, it 

desired to advance.
The School Superintendent testified at length on the 

supposed evils of pairing, grade restructuring and satellite 
zoning, leaving the impression that the hundreds of school 
systems across the South which have implemented desegregation 
plans utilizing such tools at the behest of this Court have

46/ See, e.g., 4/24 Tr. 163-65. As the United States pointed 
out in its post-trial brief, at 37 n. 50, this is not the first 
profession of impossibility from the Montgomery Board. In 
responding to Motions for Further Relief and an Order to Show 
Cause on August 8, 1969, the Board represented that it would be 
an "absolute administrative impossibility for the 1969-70 school 
year . . . to go beyond an additional 1,300 black students in
white schools."
47/ As with other statistical matters, and because it is 
directly related to the varying estimates of increased trans­
portation under the plans, the parties took very divergent 
positions on how much implementation of Dr. Foster's plan, Plan 
A or the Board's plan would cost. However, there is no evidence 
or testimony at all in the record as to the size of the board's 
current budget, or as to the specific impact which these 
additional expenditures, whatever they are, may be expected to have

28



suffered irreparable damage to their educational programs 
(4/24 Tr. 35-46). Even though the Superintendent recognized 
that, in this nearly half-black school system, one-race schools 
can be avoided only by substantial desegregation, which would 
require non-contiguous zoning or pairing (id. at 28, 30), the 
defendants rejected any use of such techniques as too disruptive 
to the educational process (id., at 20) . Not only was busing 
impractical, according to the Superintendent, but even the 
increased walking time necessitated by affirmative rezoning 
for desegregation such as that involved in Plan A of plaintiff- 
intervenors, he said, would seriously impinge upon the 
educationa.1 process (id. at 3 2-33) . Because in his view, 
crosstown assignments to desegregate would cause white flight, 
Superintendent Garrett predicted that effective desegregation 
plans such as those proposed by Dr. Foster or Dr. Winecoff 
would actually retard "long term" prospects for desegregation 
(id. at 34, 47). It would be better, in his view, to remove 
the racial identity of schools by such devices as field trips 
(id. at 59-60).

Superintendent Garrett mentioned the following educational 
problems, among others which he thought would be created by 
implementation of either the plaintiffs' plan or Plan A: 
resegregation would occur, typically, at schools more than 40%

29



black (id. at 36); siblings might be assigned to different48/

schools, placing children under emotional pressure (id. at 
37); increasing walking distances would lead to health, as 
well as safety, hazards (id. at 38-39); safety patrols could 
not be maintained (id. at 42); adult volunteerism in the schools 
would be reduced (id. at 43); and school administrators would 
have difficulty explaining the new assignments to parents 
(id. at 44; see also, 4/19 Tr. 279-80).

The board's witnesses emphasized the number of students 
whose assignments would be changed (with or without trans­
portation) if either the Foster or Winecoff plans were 
implemented (see, e.£., 4/19 DX-14), even though many students 
and schools are affected by its own plan (4/19 Tr. 268-70), 
reassignment is not unique to the plaintiffs and plaintiff 
intervenors1 proposals (id. at 274), and at least a quarter of 
all students are reassigned every year as they change grade 
levels (id. at 96). Superintendent Garrett also spent a 
considerable amount of time attempting to disparage the Foster

48/ Nevertheless, Superintendent Garrett testified that schools 
projected to be more than 40% black under the board s plan 
could be exoected to remain stable (4/24 Tr. 255-56). Dr. 
Winecoff testifed that population shifts were already well
under way in cities such as Atlanta, New Orleans and Washington, 
D. C., before school desegregation began (4/19 Tr. 80-81).

30



and winecoff plans by totalling the number of students who
would be assigned, under each, to what he termed 
"predominantly black" schools (4/24 Tr. 205). This turned 
out to be majority-black schools, which even Superintendent
Garrett admitted were not necessarily "racially identifiable
in this nearly 50%-black system (id. at 202-04).

The Superintendent frankly admitted that the board plan
avoided the transportation of any white student to a

49/
"predominantly black" school because students were expected 
to be withdrawn from the system rather than permitted to 
attend if assigned (idU_at 237, 240). The full gamut of 
excuses was employed by the Superintendent m  explaining why 
the board (prior to May 8) could not desegregate Baldwin Junior 

High School (see 4/24 Tr. 219-23).

The Ruling of the District Court
On May 22, 1974, the District Court approved the March 

29 school board plan (as modified May 8) as sufficient to 
establish a unitary school system in Montgomery County. The 
Court's opinion did not make specific findings regarding the

49/ The white students assigned to such schools under the 
board's plan are "unlucky" enough to live within the board's 
2-1/2-mile walking distance of such schools.

31



feasibility of either the plaintiffs' or plaintiff-intervenors' 
plan, but the Court held that both were designed to achieve 
"racial balance" rather than create a unitary system for 
Montgomery County. The District Court held that such plans 
went beyond the requirements of Swann v. Charlotte-Mecklenburg 
Bd. of Educ., 402 U.S. 1 (1971) and companion cases, for that
reason.

The Court praised the school board's plan for achieving 
specific racial percentage results at the formerly black

50/
Carver junior and senior high schools and held that the
entire plan met the requirements of the law. Although
disproportionately black schools would remain under the board's
plan, the District Court held that they were permissible upon
alternative grounds: first, because

in order to further desegregate any 
of these facilities, satellite zoning 
and the cross-city busing of white students 
would be necessary . . . [which] would not,
under the circumstances of this case, 
accomplish any effective and realistically 
stable desegregation.

and second, because
In each instance the situation is a result 
of residential patterns and not of the school 
board's action —  either past or present.

50/ These were the results which the District Court itself had 
virtually mandated by its interim orders in this matter (see pp. 
7-9, supra).

32



(5/22/74 Op., at 12-13). Later in its opinion, the District 
Court sought to justify its decision further by describing 
the board's elementary plan as a modified "Ellis [v. Board of 
Public Instruction, 423 F.2d 203 (5th Cir. 1970)]-type" 
neighborhood school plan (Id. at 17-20). The Court quoted two 
sentences from Hightower v. West, 430 F.2d 552, 555 (5th Cir. 
1970) in another effort to justify its decision (id. at 21) 
and claimed that plaintiffs and plaintiff-intervenors were 
ignoring the lessons of United States v. Texas Educ. Agency, 
467 F.2d 848 (5th Cir. 1972)(en banc) [Austin] by focusing 
their attentions upon remaining individual disproportionately 
black facilities rather than judging efforts of the system

51/
as a whole.

The Court then repeated its criticisms of Dr. Foster 
and Dr. Winecoff for advocating "racial balancing" (5/22/74 
Op., at 25-26) and concluded with a defense of its record 
in civil rights cases over the years (id. at 26-28).

51/ But cf. note 50, supra, and accompanying text.

33



A R G U M E N T

Introduction
In light of some comments in the Response of the defendants- 

appellees to the Motion for Summary Reversal in this matter, 
we think it appropriate to make clear, at the outset, that 
Judge Frank M. Johnson is not on trial in this case. This Court, 
is not asked to pass upon Judge Johnson's record, his honor or 
his integrity. The legal question presented on this appeal: 
whether the plan of pupil assignment approved for the Montgomery 
County public schools conforms to the applicable Supreme Court 
and Fifth Circuit decisions, would be the same no matter who 
the District Judge in the case was; and we have full confidence 
that it will be decided according to the law and without regard 
to who wrote the opinion below. While we continue to feel
the regret we expressed in the Motion for Summary Reversal, that 
the judge who described his record at pp. 26-28 of his opinion 
'ruled in this case in a fashion we believe is contrary to the law, 
we also have full confidence that, with the guidance of this 
Court, Judge Johnson will fully execute the constitutional mandate 
to effectuate a truly unitary system in Montgomery County.

52/ We are reminded of the comments of Judge Gewin in a letter 
o*f September 5, 1969 subsequently made a part of the record in
United States v. Hinds County School Ed., No. 28030 that "[u]nless 
otherwise provided by statute . . . the Government should be
treated as any other litigant." The judicial function requires no 
less evenhanded treatment of lower court rulings on appeal.

34



I

There Is No Basis, In Fact Or Law, 
For The District Court's Ruling 
That The Remaining Black Schools In 
Montgomery Are Not Linked To The 
History Of Racially Discriminatory 
School Board Action In Montgomery 

County

The District Court properly recognized in this case that 
the adequacy of the Montgomery County Board of Education's 
desegregation plan was to be judged according to the standards 
established by the Supreme Court of the United States in Swann 
v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971), 
notwithstanding this Court's 1970 acceptance of the board's 
prior plan as adequate to achieve constitutional compliance. E.g. , 
Ellis v. Board of Public Instruction, 465 F.2d 878, 879-80 (5th 
Cir. 1972). But the Court's application of Swann was erroneous 
and contrary to the settled law of this Circuit.

Swann teaches that
[t]he district judge or school authorities 
should make every effort to achieve the 
greatest possible degree of actual desegre­
gation and will thus necessarily be concerned 
with the elimination of one-race schools. No 
p>er se rule can adequately embrace all of the 
difficulties of reconciling the competing 
interests involved; but in a system with a 
history of segregation the need for remedial 
criteria of sufficient specificity to assure 
a school authority's compliance with its 
constitutional duty warrants a presumption 
against schools that are substantially dis­
proportionate in their racial composition.

35



Where the school authority's proposed plan 
for conversion from a dual to a unitary 
system contemplates the continued existence 
of some schools that are all or predominately 
of one race, they have the burden of showing 
that such school assignments are genuinely 
nondiscriminatory. The court should scrutinize 
such schools, and the burden upon the school 
authorities will be to satisfy the court that 
their racial composition is not the result of 
present or past discriminatory action on their 
part. 402 U.S., at 26.

The court below held, at least with respect to the remaining 
disproportionately black elementary schools under the board's 
plan, that the school board's burden had been met. 5/22/74 Op., 
at 13.

However, the Court's statement that "[i]n each instance 
the situation is a result of residential patterns and not of 
the school board's action —  either past or present" is sup­
ported by no factual findings or discussion of the evidence.
In truth, there is none to discuss, for not even the defendants 
argued that they had satisfied Swann in this fashion. Instead, 
they contended that there were simply no practical desegregation 
measures which could be effectuated at these facilities (4/24 
Tr. 70-92).

A clue to the District Court's reasoning is found earlier
in its opinion, where it states (at p. 5):

But changes in the facts of this case —  largely 
changes in residential patterns —  and recent 
clarifications by the Fifth Circuit and the 
Supreme Court of the obligation of a school

36



board to establish a unitary school system 
now necessitate an overall evaluation of 
this system's compliance with the requirements 
of the law.

Apparently, the District Court believed that under Swann, schools 
which had not been all-black at the time of its 1970 decree 
implementing a "neighborhood" zoning plan but which became 
predominantly black thereafter, need not be desegregated.

The thesis is incorrect and inapplicable to this case. In
the first place, of the ten elementary schools to which the

53/District Court refers (5/22/74 Op., at 12), all but three
were historically black schools under the dual system— and were
all-black in 1967-68, when the direct effects of defendant's
historic discriminatory practices still exerted their full 

54/influence. No "residential change" around these State-created
black schools could conceivably have been expected, particularly 
in a school district which has continued to locate its new
school facilities in uniracial neighborhoods. See Swann, 402 U.S.

55/
at 21. And the unbroken history of overwhelmingly black

53/ Pintlala, Davis and Bellinger Hill.
54/ See Brief for Appellants in No. 29521, at pp. 14-15.
55/ In 1968 the District Court ruled that the school board had 

deliberately created new racially identifiable white schools
in white neighborhoods and had expanded identifiably black schools 
in Negro neighborhoods. 289 F. Supp. 647, 650-51 (M.D. Ala. 1968) 
Cf. 4/15 Tr. 53.

37



enrollment at these facilities totally explodes the District
Court's finding that their present racial composition "is not

56/the result of present or past discriminatory action." '
Second, insofar as the three schools are concerned, the

apparent thesis of the District Court has been rejected by
this Court and in other Circuits. In Flax v. Potts, 464 F.2d
865, 868 (5th Cir.), cert, denied, 409 U.S. 1007 (1972), the
school board argued that it had

no constitutional obligation to dismantle 
these all-black schools because their 
racial composition occurred as a result of 
shifting residential patterns since the 
district's establishment in 1967 of what it 
maintains was a unitary school system. . . .

56/ The school board bears a heavy burden under Swann, for it 
must demonstrate that its discriminatory actions played no 
contributing role at all in the present composition of each 
school, if the matter is to be judged on a school-by-school 
basis at all. "We do not reach in this case the question v/hether 
a showing that school segregation is a consequence of other types 
of state action, without any discriminatory action by the school 
authorities, is a constitutional violation . . . 402 U.S., at
.23 (emphasis supplied) . Cf. Keyes v. School Dist. No. 1,_Denver,
413 U.S. 189, 210-11 (1973): "If the actions of school author­
ities were to any degree motivated by segregative intent and 
the segregation resulting from those actions continues to exist, 
the fact of remoteness in time certainly does not make those 
actions any less 1 intentional(emphasis supplied) And see, 
id■ at 211: " . . .  a connection between past segregative acts
and present segregation may be present even when not apparent 
and . . . close examination is required before concluding that
the connection does not exist. Intentional school segregation 
in the past may have been a factor in creating a natural envir­
onment for the growth of further segregation."

38



The argument failed:
But this language does not fit this case.
There has never been a constitutionally 
adequate compliance by the district with 
its affirmative duty to create a truly 
unitary school system. Before and after 
1967, nine of the eleven elementary schools 
were and are now virtually all-black schools.
The vestiges of state-imposed segregation 
had in no significant manner been eliminated 
from the assignment of elementary school 
students. Likewise, the all—black middle and 
high schools, further reflected, and continue 
to reflect, adversely on the existence of a 
unitary school system. Thus, there was in 
1967 no "elimination of racial discrimination 
through official action," which is basic to 
the Court's suggestion in Swann that at some 
point in time the obligation to desegregate 
ends.

Similarly, the Sixth Circuit said in Kelley v. Metropo 1 -1 a_n
County Bd .  of Educ., 463 F .2 d  732, 744 (6th Cir.), cert,, denied,

409 U.S. 1001 (1972) :
The fact that population shifts in the 
metropolitan school district have helped 
to some degree to change the racial 
comoosition of some schools during the 
course of the litigation does not eliminate 
the duty of the school board to present a 
plan for a unitary7 school system.

See also, Newburg Area Council, Inc, v. Board of Educ^, 489

F.2d 925, 928-29 (6th Cir. 1973).
Finally, we respectfully suggest that that District Court s

individual-school ("in each instance") approach to the Swann
inquiry is m i s c o n c e i v e d .  The presumption created in Swann, does

39



not invite hypothesis and speculation about the effect of
systematic discriminatory'' policies upon individual facilities
and neighborhoods; rather, the inquiry should be whether an
effective "system-wide policy of integration" was ever
successfully implemented, United States v. Jefferson County
Bd. of Educ., 372 F.2d 836 (1966), aff'd en banc, 380 F.2d 385
(5th Cir.), cert, denied sub nom. Caddo Parish School Bd. v.
United States, 389 U.S. 840 (1967), whether there was ever
system-wide "elimination of racial discrimination through official
action," Flax v. Potts, supra. One need no more find measurable
traces of past segregationist policies still extant at individual
schools in order to justify a system-wide remedy than one need
identify specific segregatory actions affecting individual
facilities in order to justify a finding of a dual system.
United States v. Texas Educ. Agency, 467 F.2d 848 (5th Cir. 1972) ;
Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 142
(5th Cir. 1972), cert, denied, 413 U.S. 920, 922 (1973); Keyes v.
School Dist. No. 1, Denver, supra, 413 U.S., at 213.

Since it is overwhelmingly clear in this case that no
comprehensive and effective desegregation of the Montgomery
County public schools has yet taken place, there is no warrant
for the District Court's conclusion that anything less than

57/"all-out" desegregation can be justified on other than grounds 
of compelling irapracticality.

57/ Keyes, supra, 413 U.S., at 214.
40



II

The District Court Applied The 
Wrong Legal Standards In Evalu­
ating The Plans Before It And In 
Determining That The School 
Board's Plan Was Constitutionally 

Sufficient

A- The Plans Submitted By The Plaintiffs And Plaintiff- 
Intervenors Are Designed To Desegregate The Montgomery 
System, Not To Achieve "Racial Balance"_______________
As long ago as Green v. County School Bd. of New Kent. 

County, 391 U.S. 430, 439 (1968), the Supreme Court instructed 
district courts supervising desegregation cases "to weigh 
[school board plans] 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." For, not just the school 
board but "[t]he district judge or school authorities should 
make every effort to achieve the greatest possible degree of

58/actual desegregation . . . Swann, supra, 402 U.S., at 26.
See Davis v. Board of School Comm'rs, 402 U.S. 33, 37 (1971).

Both appellants in this case presented, through expert 
witnesses, alternative desegregation plans before the District 
Court which hold every promise of achieving far better results 
than the school board's plan (see pp. 9a-13a infra). Both 
appellants pointed out that the board's plan makes no use of

58/ (Emphasis supplied).

41



such accepted desegregation tools as pairing, clustering, or
non-contiguous zoning. Thus, appellants' complaints were far
different from those described by this Court in 1970:

The plaintiffs are expressing displeasure 
with certain aspects of the plan, but in 
our view they cannot point to any basic 
flaw in the plan's overall effectiveness.

Carr v. Montgomery County Bd. of Educ., 429 F.2d, at 385.
Under these circumstances, it was incumbent upon the 

District Court to make detailed findings of fact about the 
practicality of plaintiffs' and plaintiff-intervenors' plans 
as a basis for its judgment approving one of the plans for 
implementation. E.g., Adams v. Rankin County Bd. of Educ.,
485 F.2d 324, 325 (5th Cir. 1973); Adams v. School Diet. No. 5, 
444 F.2d 99, 101 (4th Cir. 1971). But the District Court failed 
to make such findings because it determined that the design of 
these alternate plans went beyond Swann to establish "racial 
balance;" this reason alone provided sufficient ground for its 
approval of the school board's submission (5/22/74 Op., at 17, 
25-26). There was nothing illegal about the plans of plaintiffs 
and plaintiff-intervenors, and the District Court erred in so 
holding.

To the extent that the District Court characterized the 
plans as "racial balance" devices because it saw Dr. Foster's 
purpose to be "to bring each elementary school in each paired 
or clustered group, under his plan, within one-tenth of one

42



percent of the exact racial percentage in each of the schools
paired or clustered" (5/22/74 Op., at 7), the court was simply-
repeating a school board misunderstanding of how the plan
worked. Having selected schools within reasonable distance of
each other, but of opposite racial composition, for pairing or
clustering, grade restructuring and pupil exchange, Dr. Foster
was forced by lack of a racial enrollment breakdown by grade,
to estimate the racial composition of each grade as the same
as that of the entire school facility, in preparing his initial
projections of the results which would be achieved by the
groupings (see pp. 1-2, Appendix B to Motion for Summary Reversal)
It was for this reason that the projections contained in the
written plan indicated exactly equivalent■racial compositions
among paired or clustered facilities. But these figures were
but gross estimates, corrected by Dr. Foster as soon as data
became available to him. The more precise projections (4/19 PX-3)

59/do not exhibit such equivalence (see pp. 9a-13a infra).
1'n charging Dr. Foster and Dr. Winecoff with "formalistic 

and mechanical application" of the flexible guidelines which 
each used as a starting point in the preparation.of his plan

59/ There was certainly no manipulation of pupil assignments 
in order to achieve exactly equal enrollments by race, as is 
the implication of the District Court's opinion. Furthermore, 
there were considerable variations from the system-wide ratio 
among the groups of paired or clustered schools— far from the 
common connotation of a "racial balance" plan.

43



5/22/74 Op., at 26), the District Court ignored the uncontra­
dicted testimony of each that they were not bound to achieve 
any predetermined result (4/15 Tr. 79, 121; 4/19 Tr. 83).
Moreover, the 15% tolerances each kept in mind allow for wide 
variation in racial composition among the public schools of 
Montgomery— -up to thirty percentage points— and are far from 
constituting a fixed racial quota. The plans were designed to 
do what the Supreme Court required in Swann.: avoid "schools
that are substantially disproportionate in their racial composition 
where practicable,— 7 and nothing in the record permits the
District Court to hold otherwise.

The argument that any departure from contiguous geographic 
zoning designed to alter substantially the racial composition of 
school enrollments, constitutes "racial balancing" has been a

61/
perennial favorite of school boards in this and other Circuits.
But tokenism— and the argument— have been resoundingly rejected.

60/ 402 U.S., at 26.
61/ Indeed, the District Court so characterized the HEW plan in 
1970 because it recommended the pairing of a few groups of schoo s

Plaintiffs' objections and the few proposals 
made by the Office of Education . . . appear
to be based upon a theory that racial balance 

. . is required by the law. . . .  While
pairing of schools may sometimes be required to 
disestablish a dual system, the pairing of 
schools or the bussing of students to achieve a 
racial balance, or to achieve a certain ratio of 
black and white students in a school is not 
required by the law. Accordingly, the plaintiffs' 
objections and the counterproposals as made by the 
United States . . . are each hereby overruled.

(2/2 5/70 Op., at 2) .
44



The legal distinction was properly indicated by the Fourth
Circuit in Medley v. School Bd. of Danville, 482 F.2d 1061, 1063
(4th Cir. 1973), cert, denied, 414 U.S. 1172 (1974):

Under the Court's plan no child in Danville 
will attend a school located on the side of 
the river opposite his home until he enters 
the high school in the tenth grade. As a 
result forty-two per cent (734) of the city's 
1754 black elementary school children will 
be enrolled in two schools with black enrol­
lments of eighty-nine per cent and ninety-one 
per cent, respectively. Additionally, eleven 
per cent (210) of the black elementary school 
population will attend five schools with black 
enrollments of fourteen per cent or less.
Counsel for the school board suggest that the 
plaintiffs' reliance upon the foregoing 
statistics in their challenge of the plan is, 
in effect, an insistence that each school 
should mirror the racial composition of the 
entire system.
On the record in this case we do not find this 
characterization of the plaintiffs' position 
to be a valid one. . . .
In the light of the history of state-enforced 
segregation in the Danville schools, the marked 
residual disparity in the racial balance of 
the schools under the plan of the District 
Court strongly suggests that the plan is 
ineffective to attain an acceptable degree 
of realistic desegregation.

See also, e.g., Acree v. County Bd. of Educ., 458 F.2d 486 (5th 
Cir.), cert. denied, 409 U.S. 1006 (1972); Drummond v. Acree,

409 U.S. 1228 (1972); Kelly v. Guinn, 456 F.2d 100, 109-10 (9th 
Cir. 1972), cert, denied, 413 U.S. 919 (1972).

Accordingly, the District Court erred in rejecting the 

alternative plans on the ground that they sought to achieve 

"racial balance."
45



B. The District Court Made No Findings of Legally Cognizable 
Impracticalities Which Could Support Its Approval Of The 
School Board's Plan And Its Rejection Of The Alternatives

As we stated above, district courts in school desegregation
cases must support their decrees with detailed findings,
particularly if they approve implementation of plans other than
those which would achieve the greatest desegregation throughout
the school system. Adams v. Rankin County Bd. of Educ.. , .supra;

see, e.g., Mayo v. Lakeland Highlands Co., 309 U.S. 310 (1940).
Without such findings, the judgment of the trial court evidences

nothing more than its unreasoned preference for less than
complete constitutional compliance, exactly what Swann was

intended to avoid. While Swann reaffirms the "broad remedial

discretion" of the district courts in school desegregation
cases, it also establishes standards for the exercise of that 

62/discretion.
Swann directed school boards and district courts 'to 

•make every effort to achieve the greatest possible degree of 
actual desegregation. . . . "  402 U.S., at 26. It specifically
approved the use of pupil transportation, together with other 
techniques such as pairing, grouping, and grade restructuring 
of schools, as permissible tools to bring about the constitu­
tionally required result of actual school desegregation. And 
it suggested, if it did not explicitly state, that valid 
grounds for objecting to desegregation plans using pupil busing

62/ Cf. Johnson v. Georgia Highway Express, Inc., 488 F.2d 
714 (5th Cir. 1974).

46



exist only when "the time or distance of travel is so great 
as to either risk the health of the children cr significantly 
impinge on the educational process." 402 U.S., at 30-31.

The District Court's opinion in this case makes no such
findings about the plans of Dr. Foster or Dr. Winecoff. It
does no more than sketch the bare outlines of each plan,
pointing out that each would involve greater expenditures of
money and require additional and somewhat longer bus rides for
some Montgomery pupils, than does the school board's proposal
which it approves. But it is critical that the district court
specifically and deliberately failed to make those factual
findings which could just1fy a lesser degree of desegregation:
findings of impracticably long bus rides, inordinate expense

63/which the school district is unable to bear or substantial 
interference with educational programs.

There was no lack of evidence which the Court should have 
considered. The school board raised "a mishmash and embranglement 
of . . . [complaints] opposing desegregation of the system . . .
[with] every carping, contumacious objection conceivable." Acree 
v. County Bd. of Educ., 336 F. Supp. 1275, 1279 (S.D. Ga.), aff'd

63/ But see, e.cr. , Goss v. Board of Educ. , 482 F.2d 1044, 1046 
(6th Cir. 1973) , certm denied, 414 U.S. 1173 (1974) :

. . . the financial condition of the
City of Knoxville would not provide 
sufficient reason for failing to order 
the transportation of pupils if the 
Board of Education were found to be oper­
ating a dual public school system which 
required busing in order to become a 
unitary system.

47



458 F.2d 486 (5th Cir.), cert, denied, 409 U.S. 1006 (1972).—6 4 /

Although Dr. Foster and Dr. Winecoff testified that their plans 
were feasible, workable and capable of implementation in Mont­
gomery, the Superintendent flatly branded them both as "impossible" 
to put into effect. Yet the District Court made no findings 
of impracticability except on the subject of re segregations

The District Court determined to reject the alternatives 
offered by plaintiffs and plaintiff-intervenors because it 
credited the Superintendent's assertions that desegregation of 
the remaining all-black schools would lead to "white flight" 
and resegregation, and that the plans were in that sense impractical

The evidence in this case reflects that the 
plans proposed by the plaintiffs and by the 
plaintiff-intervenors will accomplish very 
little stable, long-term desegregation in 
this school system. This Court desires to 
emphasize that the remaining predominantly 
black schools in this school system under the 
board's plan cannot be effectively desegre­
gated in a practical and workable manner.

5/22/74 Op., at 17. This was plain legal error. Predictions 
of resegregation are definitely not among the impracticalities 
which may excuse a school district from carrying out its consti­
tutional obligations. Cooper v. Aaron, 358 U.S. .1 (1958) ;

64/ Except that more comprdiensive, effective plans were put 
into evidence before the District Court, and that the law had 
significantly changed, the issues on appeal and the position of 
the school board is the same today as it was in 1970. See 
Brief for Appellants in No. 29521 at pp. 9-10, 25-27. [Three 
copies of the 1970 brief have been furnished the Clerk, for the 
convenience of the Court] The District Court's ruling was also 
the same, despite the intervening decisions of the Supreme Court 
and this Court. See note 61 supra.

48



M o n r o e  v. B o a r d  of Conim'rs, 391 U.S. 450 (1968); U n i t e d  States

v. Scotland Neck City Bd. of Educ., 407 U.S. 484 (1972). As
this Court said in Lee v. Macon County Bd. of Educ., 465 F.2d
369, 370 (5th Cir. 1972):

We are faced with the same alternative, 
however, that originally confronted the 
three-judge District Court. The HEW plan 
would effectively desegregate the schools 
though it may cause complete resegregation 
by resulting in a 100 per cent black school 
system. Nevertheless, it must be imple­
mented unless, as the United States points 
out in its brief, an equally effective plan 
can be produced by the Board or unless the 
Board can demonstrate the unworkability 
of the HEW plan.

Thus even if the District Court in this case believed the testi­
mony of the school officials that any use of the pairing
clustering or satellite zoning desegregation tools would lead

65/to withdrawal of white, students from the system, that does 
not constitute a legally cognizable impracticality of the Foster 
or Winecoff plans nor does it support their rejection in favor 
of a plan which leaves so many schools "substantially dispropor­
tionate. "

C. The School Board's Plan Is Inadequate As A Matter Of Law 
Not only should the District Court have concluded, upon 

proper consideration, that the Foster and Winecoff plans were

6 5/ Both Dr. Foster and Dr. Winecoff testified that a comprehensive 
desegregation plan affecting all, or almost all, Montgomery County 
schools, was more likely to produce stability than a partial plan 
leaving racially identifiable schools.

49



feasible ways of creating unitary public schools in Montgomery, 
but the Court should have rejected the school board's proposal 
as a matter of law because it failed to use recognized desegre­
gation devices.

This Court's decisions requiring the use of pairing, clus­
tering, noncontiguous zoning and pupil transportation for the 
purpose of desegregation are legion and we shall not attempt 
to list all of them. They establish with great clarity the 
unacceptability of the Montgomery board's plan, which fails even 
to utilize contiguous pairing for desegregation. (See note 18 
supra).

Where pairing or clustering promises better results than
geographic zoning, it must be utilized. Miller v. Board of Educ.,

66/482 F.2d 1234, 1236 (5th Cir. 1973); Weaver v. Board of 
Public Instruction, 467 F.2d 473 (5th Cir. 1972), cert, denied,
410 U.S. 982 (1973); United States v. Texas Educ. Agency, supra;
Cisneros v . Corpus Christi Independent School Dist,, supra.

66/ "The district court, in adopting the board's 
amended interim plan, has adopted a plan 
which rejects pairing or clustering of the 
central city elementary schools in favor of 
the promised Valhalla of educational parks.
Swann requires that we remand this case for 
immediate implementation of a plan which 
further desegregates the Gadsden elementary 
schools."

Compare the Superintendent's testimony that adoption of the Foster 
or Winecoff plans would retard "long term" desegregation (4/24 Tr. 
47) .

50



Here, as in Flax v. P o t t s , s u p r a , it is e v i d e n t l y  p r a c t i c ­

able to desegregate the public schools of Montgomery through 
the use of pairing, clustering, and/or noncontiguous zoning.
See 464 F.2d, at 868-69. All that is lacking is the commitment 
of the school board, or the clear judicial direction. The 
school board's plan, which deliberately avoids any use of these 
assignment methods, should have been rejected.

Approval of the board's plan is not justified by its 
results. The District Court's characterization of the remaining 
substantially black schools as only "a few" (5/22/74 Op., at 12) 
or "a small number" (id., at 17) is a cruel joke upon black chil­
dren in Montgomery. Even one or two all—black scnools may be 
constitutionally unacceptable if feasible alternatives for their 
desegregation exist. E.g., Weaver v. Board of Public Instruction, 
supra; Boykins v. Fairfield Bd. of Educ., 457 F.2d 1091 (5th 
Cir. 1972) .

The District Court refers to the Supreme Court's language 
in Swann that "the existence of some small number of one-race 
or virtually one-race, schools within a district is not in and 
of itself the mark of a system that still practices segregation 
by law," 402 U.S., at 26, to support its ruling. 5/22/74 Op., at 
17. Clearly, however, the Supreme Court did not intend thereby 
to validate continued substantial school segregation. Cf. Kelly 
v. Guinn, supra. As the Sixth Circuit recognized,

51



this language,— obviously designed to ensure 
that tolerances are allowed for practical 
problems of desegregation where an otherwise 
effective plan for dismantlement of the dual 
system has been adopted— was [not] intended 
to blind the courts to the simple reality 
that a formerly de jure segregated system has 
not dismantled its dual system when 87% of 
its black students still attend one-race schools.

Northcross v. Board of Educ., 466 F.2d 890, .893 (6th Cir. 1972),
cert. denied, 410 U.S. 926 (1973), vacated in part and remanded
on other grounds, 412 U.S. 427 (1973) . See also, Newburg Area
Council v. Board of Educ., supra.

It is virtually inconceivable that the District Court could 
characterize retention of 11 substantially black elementary 
schools, out of a total of 33 facilities, as leaving just "a few" 
substantially disproportionate schools. We do not suggest that 
this Court's school desegregation decisions of the past five years 
can be reduced (as the District Court apparently thought, see 
5/22/74 Op., at 16) to mathematical statements. But they 
establish beyond peradventure that plans which fail to utilize 
all available means of desegregation and which result in the
continuation of so many disproportionate schools are legally

67/unacceptable.

67/ The District Court also sought justification for the school 
board's plan in Ellis v. Board of Public Instruction, 423 F.2d 
203 (5th Cir. 1970). We respectfully refer the Court to the 
discussion of Ellis at pp. 22-24 n. 11 of the Brief for Appellants . 
in No. 29521 and at pp. 12-13 of the Motion for Summary Reversal 
previously filed herein.

52



For these reasons, we respectfully submit that the District 
Court's approval of the school board plan and its rejection 
of the Foster and Winecoff proposals was based upon the appli­
cation of incorrect legal principles and should be reversed.

Ill

The School Board's Plan Disproportionately 
Burdens Black Schoolchildren By Closing 
Black Schools and Busing Black Children To 

White Facilities

There is little controversy among the parties about the 
manner in which the school board’s plan places a disproportionate 
burden upon black pupils, particularly at the elementary level.
As the description of the mechanics of the board's plan (pp. 13- 
17 supra) should make clear, black schools have been closed 
and black students reassigned to white schools, but no white 
pupils are assigned to predominantly black facilities (4/24 Tr. 
240) or to formerly black facilities unless they would constitute 
a white majority. Particularly at the elementary level, the 
plan consists of one-way busing only (see note 45 supra).

The District Court failed to grasp the significance of the 
pattern. It stated:

The chief criticism of the plaintiffs and 
plaint iff-intervenors of the board's plan 
is that the board is putting the primary 
burden of desegregating the Montgomery school 
system on the black students. The evidence

53



does not bear this out. Approximately 4,000 
white students and 5,000 black students are 
reassigned under the school board's plan.
Furthermore, on the junior high level the 
board's plan proposes that three virtually 
all-black facilities be converted into predom­
inantly white ones, that is, Carver Junior 
High from zero percent white to 61 percent 
white; Georgia Washington from zero percent 
white to 69 percent white, and Houston Hill 
from 15 percent white to 65 percent white.

5/22/74 Op., at 13. We submit that the Court's justification
is not convincing.

First, of all, the burden of which plaintiffs and plaintiff- 
intervenors complain is not that of reassignment, a one-time 
phenomenon of no great significance. The problem is, particularly 
at the elementary level, that only black students are reassigned 
and transported to desegregate white schools, while white 
students are not reciprocally assigned because the board assumes 
they would refuse to attend the predominantly black elementary 
schools (4/24 Tr. 237, 240). Reassignment figures are not 
relevant to the issue.

Furthermore, such figures include white students reassigned 
to fill the newly opened Vaughn Road and Eastern Bypass Elementary 
Schools. In many instances these students no longer need bus 
transportation thanks to the opening of these schools in heavily 
white residential areas. See note 45 supra. Thus these "reassign­
ments" of white students are in no wise comparable to the burden 
placed upon the black elementary students who formerly went to 

Carver, Chilton or Goode Street schools. See 4/24 DX-1.

54



The comparison is further shaded by lumping elementary 

and secondary reassignments together since, except for McIntyre 

and Baldwin Junior High Schools, both black and white secondary 

schools will be desegregated under the board's plan.

This case is governed by the principles of Bell v. West 
Point Municipal Separeite School Dist., 446 F.2d 1362 (5 th Cir.
1971). There, school officials admitted frankly that they had 
closed black schools because they believed white students would 
not attend them if assigned. This was held to discriminate 
against black students. Here, the Superintendent conceded that 
no white pupil was transported to a predominantly black school 
for exactly the same reason. See also, Lee v. Macon County 
Bd. of Educ., 448 F.2d 746 (5th Cir. 1971); Brice v. Landis, 314 
F. Supp. 974 (N.D. Cal. 1969); Harrington v. Colquitt County 
Bd. of Educ., 460 F.2d 193, 196 n.3 (5th Cir.), cert. denied,
409 U.S. 915 (1972); Arvizu v. Waco Independent School Dist.,
■No. 73-3080 (5th Cir., May 17, 1974).

The cause of the unequal burdening of black students is 

directly and intimately related to the major defect of the school 

board's plan: its failure to eliminate substantially black facil­

ities. Thus this Court's direction to adopt and implement a 

better plan should be accompanied by explicit instructions to 
avoid burdening the black community. See Harrinqton v. Colquitt 

County Bd. of Educ., supra.

55



IV

Appellants Should Have Recovered Their 
Costs And Reasonable Attorneys' Fees

In its May 22 Order, the District Court taxed the costs 
of the 1973-74 proceedings in this case against the appellants, 
plaintiffs and plaintiff-intervenors. The Court does not 
explain its action and we can conceive of no sufficient justi­
fication for it. Indeed, appellants should have recovered not 
just their costs, but reasonable attorneys' fees in connection 
with this litigation.

§718 of the Education Amendments of 1972, 20 U.S.C. §1617, 
provides as follows:

Upon the entry of a final order by a court 
of the United States against a local edu­
cational agency, a State (or any agency 
thereof), or the United States (or any agency 
thereof), for failure to comply with any 
provision of this chapter or for discrim- . 
ination on the basis of race, color or 
national origin in violation of title VI 
of the Civil Rights Act of 1964, or the 
Fourteenth Amendment to the Constitution 
of the United States as they pertain to 
elementary and secondary education, the 
court, in its discretion, upon a finding 
that the proceedings were necessary to 
bring about compliance, may allow the 
prevailing party, other than the United 
States, a reasonable attorney's fee as part 
of the costs.

(emphasis supplied). And it is now settled law that ordin­
arily, where plaintiffs in a desegregation suit advance the 
process of school integration, they are to recover their costs

56



fees unless special circumstancesand reasonable attorneys' 
would render an award unjust. Northcross v. Board of Educ ,̂

412 U.S. 427, 428 (1973); Johnson v. Combs, 471 F.2d 84 (5th 
Cir. 1972) ; Henry v. Clarksdale Municipal Separate School_Dis_t^»

480 F.2d 583 (5th Cir. 1973).
in this case, plaintiffs and plaintiff-intervenors were 

clearly the prevailing parties. To begin, plaintiffs had filed 
a Motion for Further Relief in 1972 seeking to increase deseg­
regation over that accomplished by the District Court s 1970 
decree. This objective was in fact achieved, although the 
Constitution was not fully satisfied, with the entry of the 
District Court's May 22, 1974 decree.

Plaintiffs and plaintiff-intervenors both presented 

alternative desegregation plans to assist the District Court.

Even though the Court did not accept such plans, but rather 
approved the school board's submission, plaintiffs and plaintiff- 
intervenors prevailed since desegregation was increased in order 
to, as the District Court held, comply with changes in the law 
since its 1970 decree. Bradley v. School Bd. of Richmond, 42 

U.s .L .W.  4703 (May 15, 1974) .  In Bradley, plaintiffs were held 
to be the "prevailing parties" within the meaning of the statute 
on April 5, 1971— the date on which the district court in that 
case approved a school board plan providing for further school 
integration following plaintiffs' motion for further relief. Id

-57-



at 4705, 4711. And, as we pointed out in the Motion for 
Summary Reversal, the last series of changes in the board's 
plan came only after the development of evidence at the hearings 
in this cause.

This Court and the Supreme Court have stated many times 
that the responsibility for school desegregation lies with the 
public officials who must often, as here, be brought into court 
before they accept that responsibility. There can be no justi­
fication for requiring the victims of racial discrimination who 
bring court actions for this purpose to bear the costs incurred 
by public officials in resisting constitutional compliance.

CONCLUSION
WHEREFORE, for the foregoing reasons, and for those set 

out in the Motion for Summary Reversal previously filed herein, 
plaintiffs-appellants respectfully pray that the May 22, 1974 
judgment of the District Court be reversed and the cause remanded 
to the District Court with instructions: (1) to entertain the
necessary proceedings to adopt and implement a fully constitutional 
plan of desegregation for the Montgomery County public school 
system, including the appropriate use of pairing, clustering, 
non-contiguous zoning and pupil transportation to establish, 
at the earliest feasible opportunity and in no event later than 
the second semester of the 1974-75 school year, a unitary public

58



school system in Montgomery County; such plan to achieve at

least the same degree of desegregation as projected under the
68/proposals of the plaintiffs or plaintiff-intervenors;—

(2) to insure that the burdens of transportation and school
closings are equitably distributed among black and white students

6 9/in any plan approved; (3) to award costs -and reasonable
attorneys' fees to plaintiffs and plaintiff-intervenors pursuant 
to 20 U.S.C. §1617. Plaintiffs-appellants further respectfully 
pray that this Court award them their costs and reasonable 
attorneys' fees on this appeal.

6J3/ Pate v. Dade County School Bd. , 434 F.2d 1151 (5 th Cir. 1970);
r c - s v .  Eckels, 434 F.2d 1140 (5th Cir. 1970) .

69/ See Harrington v. Colquitt County Bd. of Educ,, supra; 
Arvizu v. V.'aco Independent School Dist., s mra.

Respectfully submitted

SOLOMON S. SEAY/ JR.
FRED T. GRAY 
Gray, Seay & Langford 
352 Dexter Avenue 
Montgomery, Alabama 36104

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants

59



APPENDIX



W
a. i

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ARLAN CARR, et al,
Plaintiffs,

NATIONAL EDUCATION ASSOCIATION, 
INC.,

5
5
g

Plaintiff-Intervenor, § CIVIL ACTION
vs. § NO. 2072-N
MONTGOMERY COUNTY BOARD Or 
EDUCATION, et al,

Defendants,
UNITED STATES OF AMERICA, 
AMICUS CURIAS.

§

§
g
§.

REPORT
COMES now the Montgomery County Board of Education and 

in compliance v;ith the Order of this Court dated August 29, 
1973 and paragraph 3..A. of the joint motion filed by all 
parties and files this report with attached Exhibits:

Exhibit 1. Students transported from military-
reservations showing school attended, 
grade,.number and race.

Exhibit 2. All students transported, schools 
attended, race and number.

Exhibit 3. All students transported showing
bus routes, schools attended, race 
and total number of students trans­
ported on each bur. route.

Tne rnformatio 
Iment in each s

4 (a) . Bus routes in the City of
Montgomery by numbor

4 (b) . Bus routes in the County of
Mon tgomerv by nu».ber.

>n s 5 O Cc;pacity for each , the actual enrol-
>oi , thc it acial co:raoo;sition of the student
and Staff members in each school and the
>r c-ach school is cl 3 shown in the report of
Cour t dated Sapto r 23, 197 3.

Res oectf uliv submitted,
HILL, non x r>02\ DULLER, 13 l1TZVtER i

/
/ . // Vv1../ / •

By / • / - '., ; *. , / v /
Aitorncr/s f.;oj: Mor.Lqo.T vrv Coun
Boa re! of Education

-la- _



CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing 

Report on the Honorable Ira S. Decent, United States Attorney 
ana the Honorable Solomon Seay, 'Jr., Attorney for the Plaintiff, 
by delivering a copy of same at their respective offices on 
this the 15th day of November, 1973.



i
t 1

vC'noi.

1 A/k 3 73 v*)

Exhibit 1

J u
3 b 
3 7 
37 
3 o 
32 
39 
39 10 <11 U

.ij ii
Goodw/n
Dunbar
MCriS
Dunbar
MCHS
C H Jr.
Morn ingvitiw 
P i n 11 a L :i 
Jeff Davis 
t; love relate

-3a-

35
21
12
2027
230
1321

1

2

lixhib It 3

m
 O

 “
j

 C
3 

CO
 t

o 
kK-

 !
J

 O
 O



4

a

j:o;\tcox3s.v public schools
City ar.c. County 

Xor.tgor.ery, Alabama

ALL TRANSPORTED STUDENTS

* ‘ Black White To Cal

Baldwin 272 371 643
Dear 75 57 132

'B allin greth  • 102' 25 133
Capitol Haights Elea. 3 276 277
C aiito l Heights Jr. 193 138 331
Ctr.'tr 621 1 • 622
Ca t.o.ia 53 155 214

' Ciovardale 90 306 834
? Crum 83 0 S3

_ ■Dalraida .................... 55 0 65
Dsnneliy SO 336 454
Dunbar 331 63 377
?lowars 121 165 265

: rloyd 273 . 211 439
ToresC Avenue • ■ 20 135 155

« G. Washington. 333 *>J 401
: Go ocurvit 231 663 749

Karri:; on 115 123 ' 233
liavnavillc Bond 733 3 79 7
Head 58 157 215

: ''Houston H ill 0 12 12
• - l Jefferson Davis 363 302 670

i JC'iV.15 0 ”» 62 11 .♦ r *5

= j Lanier 236 137 •451
. __i Lee 390 229 65.9

•Madison Peru 26 . 0 24
,• i Montgomery County High 397 47 444

Korningviav 194 ■ 150 354
: | ' Peterson . 177 295 473
: 1 P in tlala 205 ' 15 220

; *
Southiawn 152 104 256

;; i
TOTAL 6,257 4,919 11,176

i
Exhibit 2

ooIS 37 
3 7 3 3 33 3?394041 41

VjO'OU. ft 'j v i

Goodvryn
Dunbar
MC!!3
Dunbar
MCilS
C H Jr.
Mo rn i.nqview 
Pintlala 
Jeff Davis 
Clovurdalc

21 
12 
20 
27 2 3 012210

Exhibit 5

0 35
9 • 30

T 2 2 4
4 24
2 29

13 45
25 26
7 25
0 21

53 53



4 ■
• _ .. . ~ - * \.-V os~ciwo\-i

t ^ Dannellv
i' Jeff Davis
\ Flovd
2 Floyd■>j Peterson
•) Southlawn

Southlawn
5 Jeff Davis
5 Bellingrath
6 Peterson
6 . Peterson

C l Caoital Heig
7 Goodwyn
8 Dur.tar
8 MCHS
9 Gt?V) . rV'et S l •
9 Get . Wasa.
1C Be a:
•11 P i:: 11 a i a
3.2 Dup.ba r
.12 M ' • ;.; -2
13 Lea
14 C H J r .
14 C H Flem.
15 ' C H Jr.
15 Morningview
15 Dee
15 Flowers
17 Pir.tlala
13 Lanier
19 Lanier
19 Baldwin
20 Jeff Davis
20 Floy cl
20 'lannellv
21 Dalraida
21 ’’orninqv i aw
22 MCHS
23 Baldwin
23 South 1O 4 Baldwin
2 4 Lanic;
25 Baldwin
25 Lanie:
26 Jeff r'«viis
26 Be Ill ru} r ti r. ?■»
27 Danbor
27 MCHS
23 Catona
28 Catoma
29 Catoir.a
30 Geo. Wash.
30 Geo. Wash.
31 Jeff Davis
31 Floyd
32 Paterson
32 Baldwin
33 Dunbar
.. j MCHS
3 • Dunbar
3 - MCHS
3 *3 Jeff Davis
35 Dannelly
36 Goodwyn
36 Goodwyn
27 Dunbar
37 MCHS
J O Dunbar
VJ MCHS
•39 C i! Jr.
39 Morningview
■40 Pint .1 a 1 a
1 ;‘4 • uoff Davis
11 Cloverdale

r,rw..- / ^v j \»!! I ’ 1' jI rpr »' n -\ r

23 0 23
6 0 6

16 1 17
6 35 41

23 20 43
39 8 47
15 27 42
12 4 16
26 12 33
4 3 0 43
41 0 41
30 0 30
0 55 55
17 0 17
23 0 29
33 0 38
59 0 59
21 19 4 0
50 0 50
29 0 29
22 0 22
5 48 . 53
0 32 32
1 41 4 2

40 5 45
55 1 56
4 7 5 52
0 4 8 43

39 5 4 4
A 36 4 C
0 19 19
0 33 33

28 0 28
A 0 4

12 0 12
65 0 65
45 1 4 6
55 ■ 0 55
0 59 39
0 30 30
3 0 S

37 1 33
0 32 ' 32
0 10 1C
13 3 15
26 6 32
25 5 30
11 s 17
0 49 4 9
2 52 54

22 39 61
43 0 43
37 3 40
0 5 5

15 35 50
7 19 26
0 9 9

15 9 2 4
9 6 15

25 3 23
17 3 20
0 4.1 41
C 53 53
0 25 25

35 0 36
21 9 3 0
12 12 24

• 20 A-t 2 4
27 2 29
23 13 46
0 25. 26

13 7 25.
21 0 21
0 53 53

-5a-



i

-; CviCUiiia
•* ?• ' Lanier
*» 3 Floyd
'*! A Baldwin• j Harrison
A > Dura, a r
•: 6 MCHS, *
• : :? Dan: •• Lly
•'6 Jc*r ’ Javio
•17 jef* Davisc* 1 , • 1
J £ Clr <• rclal
‘1 c D a -  ily

— o p. * : son
50 F . • • I a 1 a_:> I M
32 .■ r> r : Dav i s
52 •». verda . ••
5 3 ".-.arson
r, > s H Jr.
5 4 ■'.arve r
54 Carver
5 4 Carver
5 5 Lee
55 Goodwyn
55 Head
56 Dunbar
56 MCHS
57 Lanier
57 Floyd
58 Lee
53 Dar.ne .
39 Jeff ' 'is
59 Floyd
60 r 10 / v.;
60 ' Danr.- • •
c 0 ■ex: * i- *
6 J. ;eo./• i0 : 300.
6 2 4oo- i - •
67 lood- '•*>
6 2 Ba lew.
6 3 Lan i •1
o 3 Pe t n: •> ■ n
6 » Johns '-n
6 4 Jef t '.avis
6 1 Bel 11norath
65 Pete rson
66 Baldwin
6 6 Lanier

Jeff Davis
6 7 Bailingrath
6 3 Flowars
6 3 Dunbar
c q MCHS
70 Baldwin

Southlawn
Hayneville

; 2 Fintlala
"i J a n  Davis

7 3 Floyd
7-4 Dunbar
" f'ICIiS
. 6 Baldwin

Lanier
• *i Dunbar
.’6 MCHS

Cloverdale
7 Dunneliy

• .* ‘.j Flowers
Lee
c; H Jr.
H :! nd

.» *» 1 J »• o
0 31 31
0 49 49

58 0 58
57 • 0 57
37 0 37
26 0 26
13 5 18
11 8 19
6 7 13

23 5 3 3
11 19 30
0 40 40
0 71 71
5 57 62
V3 3 41
25 0 26
21 0 21
0 20 20
2 52 54

2-1 0 24
52 0 52
27 0 27
55 0 55 ■
37 0 37
S'! 0 54
1 0 1

“ 7 0 7
13 2 15
38 h • 4 2
0 21 21
0 52 52

50 0 50
23 0 23
13 0 13
0 0 8

10 0 10
9 1 10
4 0 4

55 0 56
69 i) ' 69
0 55 55
0 4 0 40
0 15 15
0 10 10
0 41 4 3'
19 n

* . 21
10 1 ' 11-
19 0 23
2 73 75
o 25 23
5 20 25

21 0 21
37 3 40
33 2 3 5
22 8 30
23 8 ' 36
1 42 43
0 39 2.9

•14 0 •± hi

60 0 60
8 •c 8

35 . 0 35
13 0 13
18 0 18
4 28 32
5 17 o *■>

24 3 27
19 3 22

,1
-t 59 6 3
2 59 61

26 17 43
2U 0 20
35 0 35
4 7 0 •17

6a-



*
SCHOOL BLACK ■" V7HI Tit

. 00 Geo. Wash. 43 030- Geo. Wash. 53 . 031 Pe terson 2 3592 Dunbar 16 032 MCHS 41 0S3 Baldwin 5 333 4 Lae 19 24
8-1 Flowers 0 5135 Jeff Davis 25 03 5 Crump » 40 0S 5 Lanier 3 9SS Baldwin 9 21
8 o Peterson > 0 . - 4 5
8 7 Clovardala 0 5637 Eear 0 3 33.3 Ciovardale 0 4733 Jeff Davis 0 • 4 833 Baldwin ' 1 4 390 Peterson 54 491 Baldwin 25 991 Lanier 14 192 Carver 31 o
92 Carver 4 3 092 Carver 25 093 Clovsrdala 0 4393 Dann-elly 0 75''34 Carv-sr o*94 Car.^r 56 094 Fa y n * v i 11 -s 3cv*<l 5ft o95 Jeff Davis f95 Floyd i 195 ii ay navi 11-3 Bo.wi 4 5 095 Fav r-w-v ilia Ro ad 33 o97 Dunzva r 23 1. 97 MCH3 24 193 Lee 0 2593 i-’Icw-er 5 2 ’99 Lanier 299 Baldwin 10

100 Baldwin 53 0
100 Floyd 4 3 0
1 0 1 Jeff Davis 7 28
1 0 2 Goodwyn 4 4 0
1 02 Flowers 54 £103 3=Idwin 44 o103 Carver 20104 Cloverdale 34 7104 Floyd 1 1 2105 0 S3105 Goodwyn 0 39106 Morningview 0 41107 Goodwyn 4 3 0107 Lee 26
1 0 S Goodwyn 0 -
1 0 S C ;i Bleat. 0 r
109 Goodwyn 0109 Gcodwn 0 ..
1 1 C Goodwyn 0
1 1 0 Morn i r.gv: aw 1
1 1 1 Lee 0 • ,
1 1 1 C H rian. n ; •
1 1 2 Jeff Davis 0 \ f11 3 C H Jr. 7 A'i113 Head 0114 Cloverdale 50 0ii 4 Crump 43 0115 Lanisr 27 o115 Fayr.evilie Road 70 o116 Carver 52 o116 Carver 4 9 o117 Goodwyn 41 0117 Goodwyn 58 0115 Carv i r 52 04. 1 O Carver 6 2 0113 Carver 57 0

TOTAL
43
53
37
16
41 
4 3 
4 3 
51 
25
40 
12
30 
45
55
33
47
48
4 4 
53
34 
15
31
43
25 
•4 3 
75
5 5
56 
53

6
42 
45 
33
26 
2?
28
3 i 

6
2 6 - 

5 •
4 33 3
44 
53 
44 
21 •! 1 
13 
33 19
41
43 
26
50
51
4 9
52
35
4 4 
3 6 
31
c  --J •5 6
3 7 
50
4 3 
2 7 
70 
52 
49 
41 
58 
52 
62 
57

i
t

3 -7a-



i
1 'iw*’ iiiu'it:. ' TO'IWi

113 •mC H J r . 1 47 48
2X0 . Mornir.gviaw • 1 1 26 37
1 2 0 ' Baldwin 46 0 46
1 2 0 Harrison 56 0 56
1 2 1 Cloverdale 0 49 49
1 2 1 Ds.nr.aliv 0 67 67
1 2 2 Lanier 1 8 9
1 2 2 Baldwin 5 21 26
1 2 2 ■Flovd 53 0 53
123 Havnsvilla Road •a 61 0 61
123 Kayneville Hoad 63 0 63
123 Lanier 39 0 39
1 2 -4 Forest Avenue 15 32 1 7
125 . Clcvardale • 5 0 58 53
126 Lae 43 0 43
125 Mo r n i n gv i aw 19 22 41
127 Lar.iar 5 4 0 54
127 Southlawn 52 0 52128 Goodvyn 1 6 7 68
129 Kavnavilla Road 60 8 63
129 Hayneville Road 65 0 65
129 Hayneville Road 69 0 69
130 Lse 0 ■ 35 35130 C H Ele-ri. 0 51 51
131 Lanier 37 0 37
131 Southlawn - 46" 0 4 6
132 Jeff Davis 0 34 31
133 Clovercaia 0 A $ 48
133 323 r 2 3 5 23
1 3*1 C 1o v *j rda 1 y 0 t 3°
134 narr i son • J 6 l
13 5 Floyd , J 2 i
135 J e y : Davis 5 4 •->
155 Gcccv.v s 7 > -r
13 6 L* St? \ b • r.
137 J 31 i -> . m i 12 ■l !2
137 Oeff ,':aviy 4 4 *) 4 4
133 J 21 f  ’ • » V ?. «*5 4 2 0 42
133 Jeff Davis 16 0 35
139 Houston Rill 0 12 12
139 C K F la n . 0 4 4 4 4
14 0 Ha ad 4 43 4 7
14 0 Hs ad .0 57 57
141 Lea 42 0 42
1.41 Lee 38 0 38
14 2 Clover-dale 0 33 33142 Derm 2 1 1 y 0 50 50143 Cloverdale 0 6 4 64
14 3 Harrison 2 61 63
144 Mornir.gviaw . 63 0 6314 4 Goodwyn 0 1 114 5 Jeff Davis 1 45 46
145 "Cloverd-c ie 0 38 33
14 6 Forest Avenue 3 13 41
147 Haynevilie Road 60 0 60i4 7 Haynevi!la Road 53 0 5j
147 I*e n i a r 3 6 0 3614 3 3) 0 3 :
1 4 Q Cloverdale • 0 *> 7 3
149 C H Jr. 0 > ? 37
1-1 •? C H S’. o:a. 2 • 54 16
150 Cloverdale A. V. 6 3 ‘ * J
151 Cloverdale 0 2. - 22
151 Forest Avenue 2 . 41 4 3152 J oh n :•> o r. 23 *. 12
153 Haynevilie Road 58 j 8
153 Kaynevilie Road 45 45.15 4 Forest Avenue 0 2 4 24

6 ,2 5 7  4,91*4 1 1 ,1 7 6

-8a-



4

f

\II

ATTACH?:;! A •

KOMTCCOiE'iY COUNTY SCHOOLS ;
Enrollments and- Racial Cera- 
positions at Present a.no as 
Projected Under Each Desegre­
gation Plan.

I ;It •
Iil

-9a-
\I



- Plaintiff-COr? 00 P la in t if f - ' Interv ’ s COr?
g Plaint i f f 's rr I n t e r v . 's ' Plan A rrrt Defendant's March

Curr.' o  o /-{ rr Plan ' cCO Plan A (1-3 AI te r .) G<n o 29, 1974 Plan
Grace Present P C Projec ted CJ G Projected •-Projec ted G rr p G ■ Projected

rhool Struc. Can. Enrollment fJ O Enroll rr.ent 0^1
Cj o Enrollment Enroll ment . Cl r* D O Enrollment

Tot. 7,3. "Tot. 7H_ Tot. 73 Tot. 7o3 Tot. 73

Til n a-, ant nr y
1 - 6 630 530 12.9 1-3 491 59 . 1-3 682 4S 627 7 1 - 6 680 ' 23

2 ~ '  nger H ill 1 - 6 300 149 71.1 1-3 286 49 1-3 24 6 70 246 72 1 - 6 229 81
ij *j v j*!r ^uok.n't^ton 1 - 6 420 ' '259 93.4 4-6. 344 • 55 -CLOSE — — 1 - 6 259 93
Capitol Heights . 1 - 6 570 583 20.7 4-6 607 55 4-6 575 50 • — — 1 - 6 311 33
Carver . 1 - 6 780 817 99.7 4-6 63 2 47 i. 1037 61 1092 £5 1 - 6 423 99
C n S c r.’ cl 1 - 6 ' 24 0 ’217 29 1 - 6 217 29 1-3 239 56 239 56 1 - 6 • 217 29
Chi iton 145 90.3 CLOSE CLOSE1 “ 0 Z “i u Li, . '
Cl: i-jholm 1 - 6 810 O 0 1 37 1 - 6 C C* T OOx 37 1- ^ 717 33 717 . O Q u  o 1 - 6 8S1 . 37
Cm.an 1-5 720 759 1 1 1-3 700 54 1-3 678 37 678 37 1 - 6 959 25
Daisy Lawrence i <*■L - 0 720 ■ 452 93.4 5-6 507 5 2 ; 1-3 3 i3 44 311 97 1 - 6 452 93
Da Iraida 1 - 6 630. 637 10.3 4-6 539 50 ! 1 - 3 65 2 49 65 2 23 1 - 6 531 26
Dannclly ■ 1 - 6  ' 7S0 984 9.2 1-3 443 64 1 4-6 •732 47 — - - 1 - 6 633 3 0
Davis *■ 1 - 6 630 705 87 4-6 734 48 j 4-6 501 42 - - 1-5 7C5 87
D'jnUr.r ' 1 - 6 660 391 87 1 - 6 391 87 1 1 - 6 391 86.1 194 89 v 1 - 6 391 87
Eastern Dy-Pass. Under 750 Under 1-4 4 06 46 ! 4-6 705 23 — - - 1 - 6 733 20

Const. Ccr.str. 1
7  own 1 - 6 7 20 443 99.5 4-6 6 23 43 ! 4-6 555 65 — - - 1-5 643 99

' !•'lowers 1-5 780 765 16.7 1-3 561 C *0 -9 ! 1-3 67 2 49 704 26 1 - 6 74 2 23
Fcres.t Avenue ,

1 rl-o 480 434 39 4-6 297 46 i 1-3 435 60 435 14 1 - 6 434 39
Cord:- St. 1 - 6 360 230 99 1 - 2 266 53 i CLOSE . — - - CLOSE (use for h.andic
linn* is on ■ 1 - 6 750 722 40.8 1 - 6 *722 41 1 / Ci 4-o 693 53 — - - 1 - 6 611 30
Head 1 - 6 O - w 595 1 1 . 2 4-6 532 52 I •• *■> i l “-3 305 32 351 8  ' 1 - 6 563 26
Highland Avenue 1 - 6 350 387 30 1-3 302 C 0 -9 U • CLOSE __ 387 30
Highland Cardens 1 - 6 1C 2.0. S35 33 1 - 6 8 8 6 « n J O 14-6 1C33 41 — — 1 - 6 8 S6 33
Johnson 1 - 6 660 5S3 7.2 1-3 565 55 . 14-6 685 •• -57. — - - 1 - 6 704 22



CO
r t

Curr.
Grr.ac

School Striae.

MacMillan 1 - 6
Madison Park t 1-5

"lir.g View » 1 - 6
P. arson 1 - 6  -» /•Peterson i - 0
Pintlala 1 - 6  ’
Southlawn 1 - 6
Vaughn Road Under 

Constr.

Eellingrath
• *

.1-9 ■

Floyd , 1-9

Georgia Washington ' 1-9

11. aesv ille  Rd. 1-9

Loveless 4 1-9

McIntyre 1-9

Oo r>r-i rr 1 i
Present ! cLn Project cd
Enrol 1_tt nnt 1 (V o Enrollment
Tot. 7,3 To t. 73

314 . 65 1 - 6 314 65 ■
137- 1 0 0 1 - 6 13 7 10 0

6 20 2 2 3-6 634 43
600 ' 94 1-3 581 61
474 37 1 - 6 474 37
09 o S3 1 - 6 2 2 0 93
'651 24 1 - 6 651 24
Under 1-4 556 49
Const

r 1 V1" 6 )
57215 53 .4 1-9 1139

( 1 -■ 6 )

535 40.3 1-9 13 69 : 34
( 1 -■6 )

332 1 0 0 See G corgi.
r * a c  17 T Vr* 7 A \ fWAb r i l i w  - JR.

( 1 -6 )
699, 95.7 1 - 6 1266 45

( 1 - 6 )
6 6237 99 1 - 6 393

( 1 - 6 )
606 99 See MCÎ nTRYE

JR. HIGH

Can.

390
300
600
810
600

' 2706C0
750

1230

1350

1290

1200
1140

1500

tructu

co

C~r*. fO O
1-3

4-6 
1-3 
4-6 
1-3 4-6. 

i 4-6

P la in t iff-  
In.terv . ' s 
Plan A 
Proj cctcd 
Enrollment 
Tot, .7.3
479 84

r>y ,03 £
545 33
647 ■49
494 81
235 42
657 43
793 32

P la in t if f -  
Ir.terv' s 
Plan A .
(1-3 Alter•
Projected _
Enrollment
T ot. 73

■470 84

647 ' 70

235 42

cnrrH.co  od rrfj c

Defendant's March 
29, 1974 Plan
Projected
Enrollment
T o t . 73 • .

1 - 6 314
CLOSE

65

1 - 6 620 2 2
1 - 6 600 94
1 - 6 474 37
1 - 6 2 2 0 .93
1 - 6 651 24
1-6 593 32

See BELLIMGRATH JR. High 

See FLOYD JR. HIGH

d-6)
1-9 198 51.5

d-6) ^
1-9 467 '32  "

I
r—̂

263 37 373 46 7-9 Close Elementary 

(1-5)
See HAYNEVILLE RD. JR HIGH 1 - 6 843 56 

( 1 - 6 )
604 67 604 1 0 0 1 - 6 907 99

See KCIRTRY2 JR. HIGH 7-9 Close Elementary



Plaintiff-

School

Curr. 
Grade 
Struc. Can.

Present
Enrollment

COr?
•-1

oii
>■1 rr fo p  c-ri (V o

. P la in t if f 's  
Plan
Projacted 
Enrollment

Structure
Grade

Plaint 
Interv 
Plan A 
Proj cc 
Enroll

. 's

ted
v.ent

Interv ' s 
Plan A .
(1-3 A lte r .)

: Projected _ . 
Enrollment ..

Structure
Grade

Defendant's March 
29, 1974 Plan 
Proj ected 
Enrollment

Tot. 7.3, ' “ Tot. 7.3 Toe. %B Tot. 7.B Tot. . 7.B •

Junior Kip.h
■ * i-

Baldwin 7-9 780 1 2 2 0 43 7-9 577 51 4-6 1234 57 _ „ M 7-9 596 82
(7 -9) . (7-9)

Bellingrath 1-9 1230 . 1074 60.9 1-9 See BELLING- 7-9 1239 56 __ 1-9 1066 63
• RATH ELEM-

"Booker Washington' 7-9 660 313 1 0 0 CLOSK CLOSE CLOSE CLOSE
Capital Heights. 7-9 1 2 2 0 1241 26.6 7-9 1172 38 7-9 1204 37 -- 7-9 1032 33
Carver 7-9 660 540 1 0 0 7-9 640 42 See CARVER Elen. 7-9 895 39
Clovcrdale -  7 - 9 1170 1510 10,7 7-9 1263 47 ■ 7-9 1203 48 - - 7-9 1279 32

(7 -9) (7-9)
Floyd « 1-9 1350 701 19.5 1-9 See FLOYD 7-9 1354 44 — 1-9 329 34.7

ELEM.
(7 -9) \

Georgia Washington 1-9 1290. 153 99 ' 7-9 1226 47 7-9 774 40 __ '7-9 1139 31 •
C  -  * Jv/yn 7-9 1500 1605 16.3 7-9 1447 43, 7-9 ‘ 1570 27 7-9 1535 33 .
h..yncvillo Road .. 1-9 1 2 0 0 .234 93.6 See PAYEE- 7-9 996 58 -- CIco c 3 . High

VILIE R0.
r:\<

Houston H ill * 7-9 570 380 34.7 7-9 449 47 7-9 ' 533 47 - - 7-9 553 31
(7 -9)

iri Loveless 1-9 1140 373 1 0 0 See LOVELESS Sea LOVELIISS ELEM. 1 - 6 Close Jr. High

'(7 -9 )
* .(7-9)

McIntyre 1-9 1500 402 96.5 7-9 1142 50 . 7-9 842'- 65 - - 7-9 806 98



School

M—tgomery Co.

Senior High 
Carver
Jefferson Davis
Lanier
Lee 4

I Montgomery Co.

’P la in t i f f ’ s 
Plan
Proj ec ted 
Enrollment 
'Tot 7.D

(7-9)
7-12 570 252 92.4 See MONT 

CO. Sh.
• high

1 0 - 1 2  ' ■ 1 1 0 0 1004 99 -* n. "i o IvJ- 1 2 113 0 4 2
1 0 - 1 2 2 1 0 0 2154 2 0 . 1 1 0 - 1 2 2C50 40
1 0 - 1 2 2250 2344 42.6 1 0 - 1 2 2059 42
1 0 - 1 2 2300 2272 ‘ 27.3 

( 1 0 - 1 2 )
1 0 - 1 2 2535 .35

7-12 570 204 85.7 7-12 462 8 6

rrO
o r>Curr. Orr

Grade Present PC-r.r,
S true. Can. Enrollment Q

'Tot 7,3, i

8
nna

nna
s

p la in t i f f -
P la in t if f - Interv ' s
Interv . ' s Plan A .
Plan A (1-3 A lter.
Projected Projected _
Enrollment Enrollment
Tot %B Tot. 73

7-9 255 82 — —
"

1 0 - 1 2 1115 47 _  _
1 0 - 1 2 . 2136 32 — - -

1 0 - 1 2 2214 47 - -
1 0 - 1 2 2341 34 . . — “ —
i
1 7-12 218 82 -- •

CO
rr
n Defendant' s 'March
cO o 29, 1974 Plan i-

o rr . Cj U Proj ccted t..
Cu n Enrollment,

T ot. 73 r,
r

(7-9)
7-12 252 92.4 ?

V

1 0 - 1 2 1106 39
1 0 - 1 2 2294 37
1 0 - 1 2 1835 43 |
10-12 2430 37 ^ 1 ;

/-s y-
* 0 1 ro V—
* 13

7-12 204 r*toco

tl

13
a



ESTIMATES OF ADDITIONAL TRANSPORTATION
UNDER FOSTER PLAN

Pupils Newly Transported 
Elementary Secondary

Foster, 4/15/74
(4/15 PX-3, -4)

5204 1992

Board, 3/20/74
(Response to Plaintiffs' Plan)

516 9 3043

Î oard - Harris testimony
(4/24 Tr. 282-83, 302)

4524 —

Board, 5/13/74
(Post-Trial Brief, at 8)

3403 3338

Government, 4/24/74 
(4/24 USX-1)

4182 1974

Government, 5/74 3502 1025
(Post-Trial Brief, Attachment C)

1973-74 Transportation
(4/24 Tr. 282-83, 297-98)

5388 5788



ESTIMATES OF ADDITIONAL TRANSPORTATION
UNDER WINECOFF PLAN A

Winecoff, 4/19/74 
(4/19 PIX-14)

Pupils Newly Transported 
Elementary Secondary

3050 230

Board - Jinright testimony 
(4/19 Tr. 314 et seq.) 
(4/19 DX-15 to -19)

1949 3462

Government, 5/74 - Method I 1719 1711
(Post-Trial Brief, Attachment C)

Government, 5/74 - Method II 2522 788
(Post-Trial Brief, Attachment C)

1973-74 Transportation
(4/24 Tr. 282-83, 297-98)

5388 5788

-15a-



e s t i m a t e s of a d d i t i o n a l t r a n s p o r t a t i o n
UNDER BOARD PLAN___________

Pupils Newly Transported 

Elementary Secondary

Board, 4/22/74
(4/19 DX-20)

- 923 1224

Government, 5/74 - Potential
(Post-Trial Brief, Attachment C)

497 1425

Government, 5/74 - Estimate
(Post-Trial Brief, Attachment C)

507 697

1973-74 Transportation
(4/24 Tr. 282-83, 297-98)

5388 5788



CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of July, 1974,
I served two copies of the Brief for Plaintiffs-Appellants 
in this matter upon counsel for the parties herein, by 

depositing same in the United States mail, air mail postage

prepaid, addressed to each as follows:
Vaughan Hill Robison, Esq.
Hill, Robison, Belser & Phelps 
815-30 Bell Building 
P. 0. Box 612 
Montgomery, Alabama 36102
Hon. Ira DeMent 
United States Attorney 
p. O. Box 197
Montgomery, Alabama 36101 (1 copy)
Joseph D. Rich, Esq.
William C. Graves, Esq.
Department of Justice 
550 11th St., N.W.
Washington, D.C. 20530 (1 copy)
Howard A. Mandell, Esq.
212 Washington Building 
P. 0. Box 1904 
Montgomery, Alabama 36103

Norman J . Chachkin
Attorney for Plaintiffs-Appell