Caddo Parish School Board v United States Brief in Opposition to Certiorari
Public Court Documents
January 1, 1976

65 pages
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Brief Collection, LDF Court Filings. Caddo Parish School Board v United States Brief in Opposition to Certiorari, 1976. 63c51343-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/fcee1f28-8120-4b30-bbad-cd4f21c9a588/caddo-parish-school-board-v-united-states-brief-in-opposition-to-certiorari. Accessed April 27, 2025.
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IN THE (Emu! of Hit States OCTOBER TERM, 1967 Nos. 256, 282, 301 CADDO PARISH SCHOOL BOARD, et al., Petitioners, v. UNITED STATES OF AMERICA, et al. BOSSIER PARISH SCHOOL BOARD, et al., Petitioners, v. UNITED STATES OF AMERICA, et al. JEFFERSON COUNTY BOARD OF EDUCATION, et al., Petitioners, v. UNITED STATES OF AMERICA, et al. BOARD OF EDUCATION OF THE CITY OF FAIRFIELD, et al., Petitioners, v. UNITED STATES OF AMERICA, et al. BOARD OF EDUCATION OF THE CITY OF BESSEMER, et al, Petitioners, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Petitioners, v. UNITED STATES OF AMERICA, et al. CLIFFORD EUGENE DAVIS, et al. BRIEF IN OPPOSITION TO CERTIORARI OSCAR W. ADAMS, JR. 1630 Fourth Avenue North Birmingham, Alabama ORZELL BILLINGSLEY, JR. 1630 Fourth Avenue North Birmingham, Alabama DAVID H. HOOD 2001 Carolina Avenue Bessemer, Alabama JOHNNIE A. JONES JACK GREENBERG JAMES M. NABRIT, III MICHAEL MELTSNER NORMAN C. AMAKER CHARLES H. JONES, JR. 10 Columbus Circle New York, N. Y. 10019 DEMETRIUS C. NEWTON 408 North 17th Street Birmingham, Alabama A. P. TUREAUD 530 South 13th Street 1821 Orleans Avenue Baton Rouge, Louisiana New Orleans, Louisiana Attorneys for Respondents I N D E X PAGE Citations to Opinions Below ............................................ 2 Jurisdiction .................................... -...... -............................ 4 Question Presented ............................................................ 4 Statement .............................................................................. 4 Argument .............................................................................. 5 Conclusion ............................................................................. -........ ^ A ppendix— Excerpts From Appellants’ Brief in Court of Appeals ...........................— ....... -----................... ----- l a Table of Cases Boykins v. Fairfield Board of Education, 10 Race Rel. L. Rep. 1009 .............................- ...................................... 3 Bradley v. School Board of City of Richmond, 345 IT.S. 310, judgment vacated, 382 U.S. 108 .................-........ 9,10 Brown v. Bessemer Board of Education, 10 Race Rel. L. Rep. 1015 .................................. -............. -....... - 2 Brown v. Board of Education, 347 U.S. 483 ................. 5 Brown v. Board of Education, 349 U.S. 294 — .........5, 7, 8 Colorado Anti-Discrimination Commission v. Conti nental Air Lines, 372 U.S. 714 ........ ....................... ----- H Davis v. East Baton Rouge Parish School Board, 214 F. Supp. 624 (E.D. La. 1963), 219 F. Supp. 876 (E.D. La. 1963) ....... ................. ....................... -.......... -............ 3,11 Davis v. East Baton Rouge Parish School Board, 372 F.2d 949 (5th Cir. 1967) ................................................ 2 11 PAGE East Baton Rouge Parish School Board v. Davis, 289 E. 2d 380 (5th Cir. 1961), cert, denied, 368 U.S. 831 (1961) ................................................................................ 3 Jones v. Caddo Parish School Board, 10 Race Rel. L. Rep. 1075 ............................................................... -..... 3 Jones v. Caddo Parish School Board, 10 Race Rel. L. Rep. 1569 (June 1965) .... .......................................... 3 Lemon v. Bossier Parish School Board, 240 P. Supp. 109, rehearing denied, 240 F. Supp. 743 (W.D. La. 1965), affirmed 370 F.2d 847 (5th Cir. 1967), cert, denied 18 L.ed.2d 1350 (June 12, 1967) ..................... 3 Stout v. Jefferson County Board of Education, 10 Race Rel. L. Rep. 1030 ............................................... -............. 2 United States v. Bossier Parish School Board, 349 F. 2d 1020 (5th Cir. 1965) ................ ............ ............. 3 United States v. City of Bessemer Board of Education, 349 F.2d 1021 (5th Cir. 1965) ................................ . 2, 3 United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966) ........................... .......... 2 Wheeler v. Durham City Board of Education, 363 F.2d 738 (4th Cir. 1966) 11 I n th e Cmtrt at tiir Inttefr States O ctober T erm , 1967 Nos. 256, 282, 301 Caddo P arish S chool B oard, et al., Petitioners, v. U nited S tates of A m erica , et al. B ossier P arish S chool B oard, et al., Petitioners, v. U nited S tates of A m erica , et al. B oard of E ducation of th e Cit y of B essemer, et al., Petitioners, v. U nited S tates of A merica , et al. J efferson County B oard of E ducation , et al., Petitioners, v. U nited S tates of A m erica , et al. B oard of E ducation of the C ity of F airfield , et al., Petitioners, v. U nited S tates of A m erica , et al. E ast B aton R ouge P arish S chool B oard, et al., Petitioners, v. Clifford E ugene D avis, et al. BRIEF IN OPPOSITION TO CERTIORARI 2 Citations to Opinions Below The opinion of a panel of the Court of Appeals, Decem ber 29, 1966, is reported sub nom. United States v. Jeffer son County Board of Education, 372 F.2d 836 (5th Cir. 1966). A per curiam in the Baton Rouge case appears sub nom. Davis v. East Baton Rouge Parish School Board, 372 F.2d 949 (5th Cir. 1967). The opinion of the Court of Appeals on rehearing en banc, filed March 29, 1967, is not yet reported; it is appended to the petition filed in No. 256, as Exhibit L. Opinions and orders of the District Courts, and opinions in prior proceedings in these cases are reported as follows: Bessemer Case. The District Court order reviewed be low, entered August 27, 1965 (R. Be. 85-86)/ is unofficially reported sub nom. Brown v. City of Bessemer Board of Education, 10 Race Rel. L. Rep. 1015. A prior order entered July 30, 1965 (R. Be. 64-66) appears in 10 Race Rel. L. Rep. 1013. That order was vacated sub nom. United States v. City of Bessemer Board of Education, 349 F.2d 1021 (5th Cir. 1965) (per curiam). Jefferson County Case. The District Court order entered August 27, 1965 (R. J. 70), is unofficially reported sub nom. Stout v. Jefferson County Board of Education, 10 Race Rel. L. Rep. 1030. A prior opinion and order of the Dis trict Court entered June 23, 1965 (R. J. 23, 27), are re ported at 10 Race Rel. L. Rep. 1025. An order entered July 23, 1965 (R. J. 52), is unreported; it was vacated sub 1 Record citations are to pages in the records as printed for use in the Court of Appeals in these six separate cases. The following abbre viations are used to designate the respective records: Bessemer (B e.); Bossier (B o.); Baton Rouge B R ) ; Fairfield ( F ) ; Jefferson County ( J ) ; Caddo Parish (C). 3 nom. United States v. Jefferson County Board of Educa tion, 349 F.2d 1021 (5th Cir. 1965) (per curiam). Fairfield Case. The District Court order of August 23, 1965, and opinion dated September 7, 1965 (R. F. 65, 67), are unofficially reported sub nom. Boykins v. Fairfield, Board of Education, 10 Race Eel. L. Eep. 1009. Caddo Parish Case. The District Court orders of August 3, 1965, approving a proposed plan of desegregation (R. C. 291-298), and an order amending the plan on August 20, 1965 (R. C. 300-304) are unreported. A prior decree of the District Court is reported sub nom. Jones v. Caddo Parish School Board, 10 Race Rel. L. Rep. 1569 (June 14, 1965). Bossier Parish Case. The order reviewed below, entered August 20, 1965 (R. Bo. 11-261), is reported unofficially sub nom. Jones v. Caddo Parish School Board, 10 Race Rel. L. Rep. 1075. A prior order entered July 28, 1965 (R. Bo. II. 251), and unofficially reported in 10 Race Rel. L. Rep. 1074, was vacated by the Court of Appeals sub nom. United States v. Bossier Parish School Board, 349 F.2d 1020 (5th Cir. 1965) (per curiam). Other proceedings in this case are reported as Lemon v. Bossier Parish School Board, 240 F. Supp. 709, rehearing denied 240 F. Supp. 743 (W.D. La. 1965), affirmed 370 F.2d 847 (5th Cir. 1967), cert, denied 18 L.ed.2d 1350 (June 12, 1967). Baton Rouge Case. The oral opinion of the District Court (R. BE. 242-250) and the order of the Court (R. BR. 158-159, 161-167) are unreported. Prior reported opinions in this case appear as follows: East Baton Rouge Parish School Board v. Davis, 289 F.2d 380 (5th Cir. 1961), cert, denied, 368 U.S. 831 (1961). Davis v. East Baton Rouge Parish School Board, 214 F. Supp. 624 (E.D. La. 1963); id. 219 F. Supp. 876 (E.D. La. 1963). 4 Jurisdiction The jurisdictional requisites are adequately set forth in the petitions for certiorari. Question Presented We adopt the question presented as stated in the Brief for the United States in Opposition, i.e.: “Whether the Court of Appeals for the Fifth Circuit correctly defined petitioners’ constitutional duty to disestablish the dual systems of schools based on race and permissibly formulated a circuit-wide school de segregation decree.” Statement This Brief in Opposition is submitted on behalf of the Negro pupils and parents who initiated school desegrega tion cases involving the public schools of the cities of Bessemer and Fairfield, Alabama, the schools of Jefferson County, Alabama, and of Caddo, Bossier and East Baton Rouge Parishes in Louisiana. In each of the cases, except the Baton Rouge case, the United States intervened as a plaintiff, and subsequently appealed a district court order approving desegregation proposals made by the school boards. The private plaintiffs, who also had opposed the boards’ proposals at trial, were permitted to intervene as appellants in the Court of Appeals. The Baton Rouge appeal was pressed by the private plaintiffs.2 2 Other private counsel represent the Negro plaintiffs in the Jackson and Claiborne Parish and City of Monroe cases from Louisiana in No. 256; the United States has also participated in the Jackson and Claiborne cases. 5 Neither of the petitions for certiorari includes any rea sonably detailed statement of the facts, the pleadings, or the desegregation plans approved by the district courts, and none of the petitions substantially relies on the facts of record as grounds for review. The Brief of the United States does contain a fair summary of the course of pro ceedings, the orders entered by the district courts, and the decree of the Court of Appeals. Accordingly, we omit any presentation duplicating that of the United States. But in view of the length of the records (totaling more than 1,800 pages in these six cases), we think it appropriate to make available to the Court a detailed recitation of the facts by reproducing as an appendix hereto the Statement submitted in our brief in the Court of Appeals on rehear ing en banc. See appendix infra, pp. la to 46a. ARGUMENT In the years since Brown v. Board of Education, 347 U.S. 483, 349 U.S. 294, the Court of Appeals for the Fifth Circuit, and the district courts of that circuit, have en gaged in a continuing process of development, of the law of school segregation. The opinion below is another step in that development. It reflects the Court’s long experience with the multiple manifestations of resistance to the Brown decision, from open defiance by public officials through the range of subtle evasions, and, of course, with delays, delays and more delays. The central fact of these par ticular cases as they were submitted to the Court of Ap peals was that the school boards had done very little to change the pattern of racial segregation created under segregation laws and practices. As the Court of Appeals summarized this: 6 In 1965 the public school districts in the consolidated cases now before this Court had a school population of 155,782 school children, 59,361 of whom were Negro. Yet under the existing court-approved desegregation plans, only 110 Negro children in these districts, .019 per cent of the school population, attend former “white” schools. (Jefferson I, p. 21.)3 The Court’s footnote to the above gave this data: Total Negroes Admitted Enrollment to Formerly W N White Schools Bessemer, Ala............... 2,920 5,284 13 Fairfield, Ala................ 1,779 2,159 31 Jefferson County, Ala. 45,000 18,000 24 Caddo Parish, La......... 30,680 24,467 1 Bossier Parish, La...... 11,100 4,400 31 Jackson Parish, La. .... 2,548 1,609 5 Claiborne Parish, L a ... 2,394 3,442 5 (Affidavit of St. John Barrett, Attorney, Department of Justice, attached to Motion to Consolidate and Expedite Appeals.) The companion case involving East Baton Rouge Parish, where litigation began in 1956, was similar: only 158 Negroes were in formerly white schools of a total of 21,708 Negroes and 33,186 white pupils in the system in 1965. (See Appendix infra, p. 39, and petition in No. 282, p. 66.) And, as the court below pointed out in 1965, there was no faculty desegregation at all in Alabama, Louisiana and Mississippi (Jefferson I, p. 21). 3 Here, as in the petitions and in the Brief of the United States, we use the pagination of the slip opinions reproduced by petitioners in No. 256, and refer to the panel opinion of December 29, 1966 (372 F.2d 836), as “ Jefferson I ” and to the e,n banc opinion of March 29, 1967, as “Jefferson II.” 7 The plans approved by the trial courts in these cases contained no provisions for faculty desegregation, no re lief with respect to construction programs under the dual systems, nothing eliminating discrimination and segrega tion in school facilities, services and programs, nothing- providing for upgrading inferior schools or otherwise eliminating the demonstrated inequalities in the educa tional opportunities afforded Negroes, and no orders for desegregating transportation systems, nor for any progress reports to the courts, nor for individual notices to pupils and parents of their rights under the transfer and choice systems proposed by the boards of education. The plans in the Alabama cases continued the routine placement of all pupils on a racial basis, allowing Negroes to apply for transfers to white schools subject to various restrictions. The Louisiana plans provided initial assignments in cer tain grades based on choice, but reserved to the school authorities the right to reject choices and assign pupils in accord with unspecified standards and procedures. Pupils who did not apply for transfers were continued in their racially segregated assignments. In short, the plans approved by the district courts in these cases dealt in an inadequate way only with the question of pupil as signment; none of them contained adequate provisions “ to effectuate a transition to a racially nondiscriminatory School System.” Brown v. Board of Education, 349 U.S. 294, 301 (emphasis added). Given this situation, it is hardly surprising that the entire en banc court of t"welve circuit judges was agreed that the district court decisions in each of these cases must be reversed.4 The petitioners have devoted little or no 4 Circuit Judge Bell, who dissented below, wrote: “We should order the school boards in these cases, which they and the entire court agree must be reversed, to forthwith complete the con version from dual to unitary systems by the use of these minimum but mandatory directions.” (Jefferson II, p. 63, emphasis added.) 8 argument to the defense of the district court plans in the petitions filed here. Each of these school boards, like most boards in the Fifth Circuit, has proposed and argued in favor of student assignment under “freedom of choice” plans. Notwith standing much of the argument in the petitions, which sounds as if free choice plans were rejected, the decree of the Court of Appeals approved the free choice plan for desegregation. The decree provides detailed requirements intended to safeguard free choice and to encourage aboli tion of the dual systems. It contains requirements for desegregation going beyond the mechanics of pupil as signments to strike at other basic characteristics of dual school systems. But essentially the decree provides for desegregation by free choice plans. The main thrust of the petitions for certiorari—all the argument about racial balancing, claims of conflicts of cir cuits, and protests that the special punishment is being visited on southern school boards—-is the boards’ reaction to what they think the opinion portends for the future. The boards protest because the Court of Appeals has refused to give free choice plans a blanket endorsement for the future, and has said that if free choice plans do not in practice elim inate the dual systems which the States have created, other plans for desegregation may be required. This caveat, which we believe entirely consistent with the obligation of the courts under Brown v. Board of Education, 349 U.S. 294, to use “practical flexibility” in evolving remedies and appraising the “adequacy” of desegregation plans to re form dual systems, elicits vigorous protest for one prin cipal reason: these school boards still resist desegregation and have retreated to free choice plans as “ another line of defense” in their resistance to Brown. Cf. concurring opinion by .Judges Sobeloff and Bell in Bradley v. School 9 Board of City of Richmond, 345 F.2d 310, 322, judgment vacated, 382 U.S. 108. Choice plans, almost unknown be fore the desegregation issue came to prominence,5 6 have been chosen by many boards precisely because they were thought to promise the least change in the segregated status quo. Given the realities of life in segregated com munities, the plans were viewed as least disruptive of segregation, promising to keep all-Negro schools virtually intact with minimum Negro transfers to white schools. The Court of Appeals’ promise that de minimis change will not suffice, that the evasive stratagems will not work, is what the noise is all about in these cases. But the Court of Appeals’ promise for the future, presents no litigable matter today. Surely the court below was precisely correct when it refused to bow to demands that it declare free choice valid for all times and places on the theory that abstractly it is “ constitutional.” Rather, as the court said: The governmental objective in this conversion is— educational opportunities on equal terms to all. The criterion for determining the validity of a provision in a school desegregation plan is whether the provi sion is reasonably related to accomplishing this objec tive. (Jefferson II, p. 6.) On the original arguments before a panel of the Court of Appeals, the Negro plaintiffs contended that free choice plans had produced so little reform of the segregationist regimes, and promised so little reform, that the court should reject them out of hand unless it was demonstrated that no alternative plans for desegregation were more 5 It must always be remembered that prior to the Brown eases, Negro children as a class, were considered as inferior beings and were relegated to segregated schools without any hint of choice, free or otherwise. 10 feasible in the particular communities. We still believe that in most communities in the deep South region, where segregationist sentiments prevail, where governors and leg islatures still defy the Brown decision, and where Negro families risk their lives in choosing white schools, “ free dom of choice” will prove to be a dismal failure, and will mean only continued segregation. But free choice plans with maximum safeguards (as in the decree below) had never really been tried in these communities, and a Court of Appeals plainly committed to equal educational oppor tunity indicated its view that the experiment with “ real” free choice should be attempted. On reargument en banc the Negro plaintiffs acquiesced in the panel’s decree and asked the court to affirm it. The experiment has now begun with spring registration during the past few months. The coming months, with periodic reports being filed under these plans, will provide evidence of the experience under the freedom of choice experiment. Review in this Court of the requirement that school boards adopt alternative plans, if free choice plans fail to produce reform, should await the entry or refusal of such an order. No order requiring any alternative to free choice is presented by these fundamentally moderate decrees. Each of the boards continues to function under a free choice plan. The boards also contend that the provisions of the decree requiring desegregation of faculty and staff are improper. As the brief for the United States has shown, all of the Courts of Appeals considering this issue since Bradley v. School Board, 382 U.S. 103, have required faculty desegregation. (Brief for the United States in Opposition, pp. 9-10.) The courts have rejected arguments that the validity of faculty assignments in a racially seg regated pattern was a matter to be determined differently in each case on the evidence of the effect of faculty seg 11 regation on equality of educational opportunities. Wheeler v. Durham City Board of Education, 363 F.2d 738 (4th Cir. 1966). The invalidity of faculty segregation practices is plain. As this Court said unanimously in Colorado Anti- Discrimination Commission v. Continental Air Lines, 372 TT.S. 714, 721: . . . [U]nder our more recent decisions any state or federal law requiring applicants for any job to be turned away because of their color would be invalid under the Due Process Clause of the Fifth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.” The boards’ faculty segregation practices, thus, have no colorable claim to validity, and the order forbidding them presents no substantial question for review. The petitions also attack the effort of the court below to prescribe uniform standards circuit-wide for school districts which adopt plans based on freedom of choice. The Court of Appeals’ opinion adequately justifies this measure and the details of the plan, by reference to the inherent difficulties involved in administering free choice plans, and by reference to its long experience in reviewing desegregation cases. That experience includes experience with plans approved by the district courts which were uniform, but uniformly inadequate. (See, for example, the five substantially similar plans approved in the Western District of Louisiana; petition in No. 256, pp. 44-76.) Nor was the court unaware of the difficulty presented by the attitudes of some district judges who candidly announced their opposition to the Brown decision. See, for example, the opinions of Judge West in Davis v. East Baton Rouge Parish School Board, 214 F. Supp. 624 (E.D. La. 1963), and the recent opinion denouncing the Jefferson decree as 12 “ ridiculous” on May 8, 1967, which is appended to the petition filed here in No. 282, pp. 51-63. Cf. the remarks of Judge Dawkins who announced in the Caddo Parish case that he ordered desegregation “not willfully or will ingly, hut because we are compelled by decisions of the Supreme Court . . . [and] . . . the Fifth Circuit . . . ” (R. C. 131). But, of course, notwithstanding the specificity of the decree, it plainly left the district courts the power to order modifications upon proper showings (Jefferson I, pp. 111-112), with the court indicating that the decree contemplated “continuing judicial evaluation of compli ance by measuring the performance—not merely the prom ised performance—of school boards in carrying out their constitutional obligation ‘to disestablish dual, racially seg regated school systems and to achieve substantial inte gration within such systems.’ ” (Jefferson I, p. 115). The petitions attack the opinion below for “ punitive sectionalism,” asserting that southern boards are being prohibited from engaging in practices which northern boards are allowed to continue. The opinion below ex pressly disclaimed any attempt to decide issues involving de facto segregation in other parts of the country: We leave the problems of de facto segregation in a unitary system to solution in appropriate cases by the appropriate courts. (Jefferson II, p. 5, n. 1.) In face of this disclaimer the charge of “ sectionalizing” the Constitution is an invention if it suggests anything like a legal double standard; it is a truism if it merely describes the refusal of the court to decide issues presented in other parts of the country and not present on these records. There is something grandly audacious in the boards’ arguments about “ racial balancing” and claims of parity 13 with “ de facto” segregated patterns in communities that never had segregation laws. Such arguments, it must he noted, are tendered for systems such as Caddo Parish, where the record showed one Negro pupil out of a total of 24,467 in a school with white children; for three Alabama districts where all initial assignments were made on the basis of racial segregation; and for Bossier Parish, where an expert comparison of Negro and white buildings showed fifteen of the seventeen white schools rated above the top Negro building (see appendix infra). The court below understood the prevailing attitudes of the school systems to which the decree was directed. See, for example, the response of the Bossier Parish School Superintendent to a written interrogatory inquiring about obstacles to deseg regation in the most “ federally impacted” community of its size in the South (E. Bo. Yol. I, p. 56): Bossier Parish, Louisiana can properly be termed a “hard core” segregation area. The people in Bossier Parish have strong and fixed opinions in opposition to integration. People here feel that negroes in Bossier Parish are treated fairly and with justice and there has been an unusual degree of racial harmony. In deed, from the negroes in Bossier Parish there has been no desire expressed for integration of the races other than that which come from Barksdale Air Force Base; that is, from non-Bossier Parish negroes. In contrast to some other areas of the South which have maintained segregated school systems, Bossier Parish is not ready for integration. / s / E m m ett C ope Emmett Cope, Individually and on behalf of the Bossier Parish School Board 14 This in March 1965! It is fortunate that the Fifth Circuit understands the problem as well as the opinion below attests. CONCLUSION For the foregoing reasons, it is respectfully submitted that these petitions for writs of certiorari should be denied. Respectfully submitted, OSCAE W. ADAMS, JR. 1630 Fourth Avenue North Birmingham, Alabama ORZELL BILLINGSLEY, JE. 1630 Fourth Avenue North Birmingham, Alabama DAVID H. HOOD 2001 Carolina Avenue Bessemer, Alabama JOHNNIE A. JONES 530 South 13th Street Baton Eouge, Louisiana JACK GREENBERG JAMES M. NABRIT, III MICHAEL MELTSNER NORMAN C. AMAKER CHARLES H. JONES, JR. 10 Columbus Circle New York, N. Y. 10019 DEMETRIUS C. NEWTON 408 North 17th Street Birmingham, Alabama A. P. TUREAUD 1821 Orleans Avenue New Orleans, Louisiana Attorneys for Respondents Excerpts From Appellants’ Brief in Court of Appeals la Statement This consolidated Brief on Reargument is submitted on behalf of the Negro pupils and parents who, as private parties plaintiff, initiated these six school desegregation suits involving the public schools of the cities of Bessemer, and Fairfield, Alabama, Jefferson County, Alabama, and Caddo, Bossier, and East Baton Rouge Parishes in Louisi ana. In each of the cases, except No. 23,116, Davis v. East Baton Rouge Parish School Board, the United States of America intervened as a party plaintiff and appealed from a district court order approving a proposed desegrega tion plan. The private plaintiffs in these cases were per mitted to intervene as appellants in this Court. In the Davis case, supra, the appeal from a district court order approving a desegregation plan was taken by the private plaintiffs. Several briefs have been submitted before and after the original arguments in these cases. However, in order that the entire Court may have access to a statement of the proceedings and facts in each case, in a single volume, we restate them below. The opinion of the panel of this Court which decided the cases on the original arguments stated that the Court had “ carefully examined each of the records” and that: “ In each instance the record supports the decree” (Slip Opinion, p. 111). We agree. I. No. 23,335, United States, et al. v. Board of Education of the City of Bessemer The complaint in this action was filed by Negro students and parents on May 24, 1965, to desegregate the public schools of Bessemer, Alabama (R. 11-19). The City of Bessemer maintained ten schools for the 5,286 Negro and 2,920 white pupils enrolled during the school year 1964-65 2a (R. 100). The system has 1 white high school (grades 10-12), 1 white junior high school (grades 7-9), 4 white elementary schools (grades 1-6), 2 Negro schools offering grades 1-12, and 2 Negro schools offering grades 1-8 (R. 95-97). The procedures in the Bessemer desegregation plan presently before this Court adopt with minor modifica tions pupil assignment procedures utilized by the Bessemer board prior to the plan to maintain a rigidly segregated public school system. Detailed descriptions of these assign ment procedures, of other aspects of the system, and of the approved plan follow : A. Pupil Assignment Policy Bessemer maintained a dual system of schools, “ one set of schools for Negroes and one set for whites,” at the time this action was filed (R. 116). One map sets out the attendance ZGnes for each of the 4 Negro schools (R. 95) and a second map sets out zones for each of the white schools (R. 96). When asked at the hearing below if the racial zone maps were “being used at the present time,” the Superintendent responded: “To the best of my knowl edge, we are still following these maps” (R. 98). Counsel for the board asked that these maps be withdrawn from the court at the conclusion of the hearing because “ Dr. Knuckles has told us these are maps we need constantly” (R. 99). The board also maintained a map showing the residence and race of each student and location of each of the schools within the system, with “ red dots showing the location . . . of the Negro pupils” and “green dots indicating the resi dential location of the white pupils enrolled in school during this year” (R. 105-106). 3a The superintendent testified that the school system “ is geared to placing students in schools that are closest to their neighborhood” (R. 108). Yet, adherence to a policy o£ strict separation of the races in the schools did not al ways result in students being so assigned. Superintendent Knuckles further testified: Q. Do you have very many students who are at the present time passing by schools which are closest to their neighborhood! A. I am sure we have some. Q. Do you have any of your white students . . . who are passing by Negro schools to go to white schools! A. I expect there are some. Q. And vice versa! A. And vice versa, yes sir. (R. 108-109) Some students were required to pass a school maintained for children of the opposite race and “ cross a railroad track and some more than one railroad track” to reach a school maintained for their race (R. 159). School zone lines were changed periodically as condi tions changed, and in some instances the superintendent and the board “have administratively transferred the pupils who live in a particular area from one school to another as the school was built or as a school was added to or particular facilities were abandoned” (R. 146). The super intendent testified that when a particular zone contained more students than the school could accommodate “we just had to arbitrarily assign them to another school” (R. 147). Through this system of assignments the schools within the City of Bessemer were kept completely segregated. No white students attended Negro schools and no Negroes attended white schools (R. 28). B. The Plan Approved by the Court Below On July 30, 1965, the court below entered an order ap proving with minor modifications the first plan submitted by appellees (R. 64-66). An appeal was taken from that order and on August 17, 1965, this Court vacated the judgment and remanded for further consideration, United States v. City of Bessemer Board of Education, 349 F.2d 1021 (5th Cir. 1965) (R. 71-72). Thereafter, appellees filed an amended plan (R. 81-84) which was approved by the court below on August 27, 1965 (R. 85-86). The amended plan is the subject of this appeal-. . The plan adopts the racial assignment policy based upon a dual set of zones described above, subject to minor modi fications. Initially, pursuant to the plan, “ all pupils in all grades of the Bessemer system will remain assigned to school to which they are assigned or will be assigned to schools in accordance with the custom and practice for assignment of pupils that have prevailed in the school system prior to the entry of the judgment of the District Court in this case on June 30, 1965, such method of assign ment being necessary in order to prevent a disruption of the school system and to maintain an orderly administra tion of the schools in the interests of all pupils” (R. 45-46). Students entering the first grade are specifically required to report to the elementary school located in the zone maintained for their race—Negro students reporting to Negro schools and white students reporting to white schools (R. 44). Only after this segregated racial assignment procedure may “an application may be made by the parents for the child’s assignment to any school (whether formerly attended only by white children or only by Negro children)”' (R. 44). Similarly, students in all other grades are initially as signed to segregated schools maintained by appellees for 4 a 5a students of their race (R. 45).1 2 Once assigned to these schools, students in grades 1, 4, 7, 10 and 12 during the school year 1965-66, students in grades 2, 3, 8 and 11 dur ing the school year 1966-67, and students in grades 5, 6 and 9 during 1967-68 may apply for transfer “ to a school heretofore attended only by pupils of a race other than the race of the pupils in whose behalf the applications are filed” (R. 43-44, 88-83). Transfer forms must be picked up, completed, and returned to the superintendent’s office during the designated transfer period (R. 82). Transfer applications will thereafter “be processed and determined by the board pursuant to its regulations as far as is practicable” (R. 44).2 No regulations were ever introduced, and on cross-examination the superintendent was unable to say what regulations were referred to by 1 Q. Am I correct that the plan in essence will assign particular schools on the basis of race? A. Most of the pupils in Bessemer with the ex ception of the first graders are presently assigned to schools they are enrolled in and their records are there. Q. Even in the grades you are desegregating you contemplate they will attend the school that heretofore has been for their race unless a transfer application is filed and approved? A. That is correct. (R. 264) 2 Prior to the adoption of the plan and the possibility of desegregation of the schools, the board liberally granted transfers. Q. Is it fair to say you granted that request more or less as a matter of course as long as there was capacity in the school to which they were transferring? A. I think that is true. We attempted to accomodate people where we didn’t overburden the school, the classes or the teachers. (R. 148) » * * Q. Mr. Knuckles, you have testified in answer to some of my ques tions about transfers from one zone to another. Have they been initiated normally by either a letter or a telephone call? A. Yes, sir. Q. No particular form being used? A. No form. Q. And there has been no time limit for submitting them to the board? A. No, but I did tell you we have discouraged transfer during the school year. Q. After school is started? A. Yes, sir. 6 a the plan or their subject, except that they were “ general regulations under which we have operated for a long time” (R. 260). The above described transfer requirements do not ap ply to Negro students applying for transfers from one Negro school to another Negro school or to white students applying for a transfer from one white school to another white school. The Court: I think this plan after the first para graph only refers in cases where Negro pupils apply to transfer to schools heretofore attended only by white pupils in these classes and vice versa. I think that is the plan. Q. Is that the way you expect to administer the plan! A. Yes, sir. Q. So that procedure will be used only when a Negro applies to attend a white school or a white applies to attend a previous Negro school! A. In these grades. (R. 261) Students new to the system are similarly assigned on the basis of race.3 The plan is silent and the board is undecided on how applications to overcrowded schools will be processed. Q. I f a Negro child applies for the Bessemer Junior High School [a white school] in the seventh grade, a 3 A. They will appear at a school to enroll and will abide by the same regulations. I f a child asks to transfer to the school of another race and it is after the deadline date, I would assume that he, like other children who let the deadline pass for this time, just wait until his grade is open at another time. Q. Dr. Knuckles, a white child moving into the school district and is due to enter the seventh grade will automatically go into the seventh grade without making out any papers at all in a white school? A. A Negro child would do the same thing in a Negro school. We are proposing in this instance to follow the custom that has been followed for some time in the interim period. (K. 265) 7a desegrated [sic] grade, and lives closer to Bessemer Junior;High School than white children who will seek enrollment in the Junior High School, is there any decision which will have priority under the plan? Which will have priority if there isn’t room for both! A. That question has not been determined. Q. You don’t know? A. That is correct. Under the plan students will not be permitted to transfer from a school to which they are racially assigned to a school maintained for children of the other race to take a Course not offered at their school unless the student is enrolled in a grade reached by the plan.4 The plan provides for notice through publication in a local newspaper. No individual notices are contemplated (R. 266). C, Faculty and Administrative Assignments The plan makes no provision for non-racial faculty assignments. The board employs 285 classroom teachers, 175 Negro and 110 white (R. 115). For the 1964-65 school year the board had a teacher turnover rate of 11.85% (R. 119). The superintendent testified that all Negro teachers in the system have met the minimum requirements of the board and that they possessed “ the same or similar quali fications as . . . white teachers” (R. 122, 123). The faculty remains totally segregated with Negro teachers instructing Negro students and white teachers * Q. And it [the transfer application] will be considered even though the child is in a grade that has not yet been reached by the plan? A. I think we will live with and operate under the provisions laid out in this plan during this interim period. Q. And that is your answer to that question? A. Yes, sir. (R. 267) 8a instructing whites (R. 120). The board has .considered desegregating the faculty but has n ot reached a. conclu sion, “ simply because the request, had not come from parents at the time for the assignment of Negro children to schools other than those they were attending” (R. 118- 119). Teachers were freely assigned by the board when such transfers met the administrative convenience of the dis trict. “ [W ]e had three rooms in this small school and we closed them and moved the children to one of the larger schools and moved the teachers and consequently we saved the operational cost of that building” (R. 244). Faculty meetings are held on a segregated basis (R. 251). Administrative and supervisory staff is also segregated. Of 10 administrators employed by the board, 9 are white. The one Negro administrator is in charge of Negro schools (R. 116) and is provided an office apart from the other administrators in a Negro school. No Negroes work in the central office (R. 118). D. Inequality The reeord contains many examples of the inequality between Negro and white schools, including: 1. Pupil-Teacher Ratios (R. 162-164): Negro High Schools White High School Carver 25 “plus” / l Bessemer H. S. 19.08/1 Abrams 25/1 2. Library Books per Pupil (R. 164-165): Abrams 8/1 Bessemer H. S. 19.08/1 Carver 3.17/1 3. Elective Subjects Offered in High Schools The superintendent admitted that more electives were offered in the white than the Negro high school but at tributed this disparity to “community pressure” (R. 166). Latin, Spanish, and two years of' French are offered in the white high school; the only language taught in the Negro high school is one year of French. Journalism is taught in the white but not the Negro schools (R. 167-168, 229, 233-234). The plan makes no provision for equalizing the facilities between Negro and white schools. E. School Construction The Bessemer school district contemplates expending approximately $460,000 for rebuilding or adding to exist ing segregated facilities (R. 125). The plan makes no provision to require that a rebuilding program be designed so as to aid in abolishing the dual system. F. Other Matters The plan contains no provisions for individual notice to pupils, no provision with respect to locating new school buildings or additional facilities in such a manner as to eliminate segregation, no provisions with respect to non discrimination in various school connected or sponsored activities or in extracurricular activities, and no provi sions with respect to periodic reports to the court con cerning desegregation. G. Administration of the Plan In the first year of the plan, 1965-66, only 13 of approxi mately 5,284 Negroes attended formerly white schools. (Affidavit of St. John Barrett attached to Motion to Con 10a solidate and Expedite Appeals in these cases, filed in this Court April 4, 1966.) In the second year of the plan, the current 1966-67 term, about 64 Negro pupils attend for merly white schools. (Information supplied to intervenors and appellants by U. S. Department of Health, Education and Welfare.) II. No. 23,345, United States, et al. v. Jefferson County Board of Education This action was filed June 4, 1965, by Negro students and parents against the Jefferson County Board of Edu cation requesting that the board be enjoined from continu ing to operate a system of dual and unequal public schools (R . 9-16). The Jefferson County Board of Education main tains approximately 117 schools for 45,000 white students and 18,000 Negro students (R. 80). The procedures incorporated in the plan for desegrega tion approved by the court below (R. 30-37, 66-68), adopt with minor modifications the pupil placement procedures utilized by the Jefferson County Board of Education since 1959 to maintain a rigidly segregated public school system. Descriptions of these pupil assignment procedures, of other aspects of the system, and of the plan follow. A. Pupil Assignment Procedures From 1959 until adoption of the plan under considera tion in 1965 the Board assigned all pupils pursuant to a pupil placement plan (R. 96-107). During this period the district remained completely segregated. On June 22, 1965, Superintendent Kermit A. Johnson testified that “at the present time” Negro and white children are separated within the school district.6 Total separation of the races 6 Q. Heretofore, and at the present time, it is the policy of the Board o f Education to separate Negro and white children in the school; isn’t that true? A. We have had them separated, and there has not been any I la within the Jefferson County School District was effected by utilizing the following pupil assignment procedures: a. Assignments: Students entering the first grade, stu dents newly moving into the jurisdiction of the board, and students residing within the district who have been attend ing school in another “ school community” * * * * 6 were “accepted, approved and enrolled” by a principal to his school upon determining that the student resides in his “ school com munity” and that the student “would normally attend his school.” 7 (R. 101-102). Without exception, students as signed to schools they “would normally attend” resulted in Negroes being assigned to Negro schools and whites being assigned to white schools (R. 164). other operation up until this point. I would hesitate to say the policy of the Board, because we have not had an application up until this time. Q. But the Board has never authorized you— A. Never taken the initiative for it or authorized me to make any changes. (R. 94) 6 Dr. Johnson described how a principal would define the boundaries of his “ school community” as follows: A. They are not defined except those who live relatively close to the school and then there is a broad area there where they might go to his school or some other school and this is a case where he would raise the question whether he should or shouldn’t take such students. Q. You state the only way the principal of any school would know what pupils reside in his school community is on the basis of addresses of the students already in school and who had attended the school in the past? A. That is one of the best guides. He doesn’t have a defi nition of a school community. It is a general thing. We don’t have the geographical zones. In genera! it is always the closest to his school would go to his school. (R. 163) 7 “How would a principal o f a white school, elementary school, know who would normally attend his school? What students would normally attend his school? A. Well, there would be the brothers and sisters of the students he had who lived in that general area. Q. Assuming a Negro child or a wThite child lived next door to one another, would that child be a person the principal would consider nor mally would attend his school? A. In the past they would not come under the general definition of “ normally attending that school.” (R. 163-164) 12 a b. Transfers: Students who desired to attend a school other than the one they “would normally attend” (a school provided exclusively for students of the white or Negro race) or the school within his “ school community” (the school nearest his home) were required to apply for a transfer (R. 101-104). Requests for transfers were granted only by the Central Office (R. 101-104). Seventeen “ fac tors” were considered by the Central Office in evaluating transfers.8 The list includes such matters as “ home en vironment,” “ severance of established social and psycho 8 The 17 factors (E. 103-104): “Assignment, transfer and continuance of pupils; factors to be considered— 1. Available room and teaching capacity in the various schools. 2. The availability of transportation facilities. 3. The effect of the admission of new pupils upon established or proposed academic programs. 4. The suitability of established curricula for particular pupils. 5. The adequacy o f the pupil’s academic preparation for admission to a particular school and curriculum. 6. The scholastic aptitude and relative intelligence or mental energy or ability of the pupil. 7. The psychological qualification o f the pupil for the type of teaching and associations involved. 8. The effect of admission of the pupil upon the academic progress of other students in a particular school or facility thereof. 9. The effect of admission upon prevailing academic standards at a particular school. 10. The psychological effect upon the pupil o f attendance at a particular school. 11. The possibility or threat of friction or disorder among pupils or others. 12. The possibility of breaches of the peace or ill will or economic retaliation within the community. 13. The home environment of the pupil. 14. The maintenance or severance of established social and psycho logical relationships with other pupils and with teachers. 15. The choice and interests of the pupil. 16. The morals, conduct, health and personal standards of the pupil. 17. The request or consent of parents or guardians and the reasons assigned therefor.” logical relationships” and the “morals, conduct, health and personal standards” of the pupil requesting transfer (R. 103-104, 158). Applications for “ transfers” 9 required the signature of both parents, the occupation and name of the employer of both the students’ mother and father or guard ian, the race of the applicant. This information was to be included upon a transfer application and submitted to the Superintendent’s Office. In considering transfer appli cations : “ [T]he superintendent may in his discretion require interviews with the child, the parents or guardian, or other persons and may conduct or cause to be con ducted such examinations, tests and other investiga tions as he deems appropriate. In the absence of excuse satisfactory to the superintendent or the board, failure to appeal for any requested examination, test or interview by the child or the parents or guardian will be deemed a withdrawal of the application.” (R. 100) . Superintendent Johnson testified that he never notified parents, students or anyone else in the County that Negro pupils could request assignment to a white school (R. 143). No Negro ever applied for a transfer to an all-white school (R. 94). During 1964-65, 200 requests for transfer were made and 95% were granted (R. 157), but none of these were requests for desegregation (R. 94). No trans fer period was designated; requests could be made at any time (R. 93). c. Reassignments: Once enrolled, either by assignment or transfer “ [A ]ll school assignments shall continue -with out change until or unless transfers are directed or ap 9 Plaintiffs’ Exhibit 2-A (R. 97-98). 14 a proved by the superintendent or his duly authorized rep resentative.” (R. 99). Negro elementary school graduates were automatically assigned to a Negro junior high school and Negro junior high school graduates were automati cally assigned to a Negro senior high school. Similarly, white students were automatically assigned on a racial basis.10 The district specifically recognized these automatic assignments or “ feeder” arrangements: “An application for Assignment or Transfer of Pupils Card must be filled out for each pupil entering your school for the first time either by original entry or transfer except pupils corning from feeder schools.” (R. 101) (emphasis supplied). Thus students were initially assigned to segregated schools and thereafter locked into these assignments. This lock-in effect continued on throughout the students’ public school career. Assignments—whether through transfer, reassignment or initial assignment—were all made to schools which were admittedly constructed exclusively for students of the white or Negro race (R. 130-131). Even as to proposed future school construction, the Superintendent was able to identify the race of the students for whom schools were planned but not yet constructed (R. 131-132). Racial dot maps, indicating the race and residence of every student within the district, are maintained by the Board (R. 89). 10 Q. What about students who are, for example, in the sixth grade going to the seventh grade in another school that is separate and distinct? A. Their names are passed over to the high school principal from the elementary principal and their permanent records kept in the individual folders. Every child has a folder with his records in it. They are passed on to the high school and by that procedure the principal knows the number and who it is he is expecting. Q. That is an automatic process? A. That has been the way it has operated in the past. (R. 195) B. The Plan Approved by the Court Below On July 22, 1965 the court below entered an order approving the first plan submitted by appellees (R. 52-53). The United States appealed that order and on August 17, 1965 this Court vacated the judgment and remanded the cause for further consideration. United States v. Jefferson County Board of Education, 349 F.2d 1021 (5th Cir. 1965). Thereafter appellees filed an amended plan (R. 66-68) which was approved by the court below on August 27, 1965. This amended plan is the subject of this appeal. The amended plan adopts the pupil assignment proce dures discussed above—procedures which effectively per petuated a totally segregated dual system of schools—• subject to the following modifications: 1. Every student is initially assigned to a segregated school. Students entering grades 1, 7, 9, 11 and 12 during school year 1965-66, grades 2, 3, 8 and 10 during 1966-67 and grades 4, 5 and 6 during 1967-68 may therafter apply for a transfer from the segregated schools they are initially assigned to. Transfer applications are to be con sidered in light of the “ factors” set out in footnote 8, supra.11 Transfer applications must be picked up and completed application forms must be deposited at the office of the superintendent (R. 67). 2. Students entering grade 1 shall register at schools provided for students of their race—Negro students at Negro schools and white students at white schools. Any entering first grade student may apply for a transfer to another school by following the steps set out in para 11 White students are thereby insured of space in the formerly white schools. Applications for transfer by Negro students are to be considered in light of the space available at the school applied for. A ground for rejecting an application is overcrowding. See footnote 8, supra. graph 1 above only after registering at a segregated school (R. 164). 3. Negro students new to the district may attend a school formerly provided for whites only if the student is entering a grade being desegregated under the plan (R. 213). 4. Notice of the plan shall be published three times in a newspaper of general circulation within the county (R. 34). Superintendent Johnson was asked: Q. How then does this plan change the method of assignment which by your testimony has not resulted in any Negro attending any white school and white attending any Negro school? A. The biggest change I can think of is this will be the first time we have advertised the fact in the daily newspapers that they may do this and the requests will be considered seriously and probably approved. We have never done that before and this would be a change (R. 162). Appellees’ plan permits Negroes to transfer out of the segregated schools to which they are initially assigned, providing they submit a request for transfer on a form which they must pick up at, and after completion deliver to, the superintendent’s office; and, they are not dis qualified by one or more of the 17 tests set out in foot note 8, supra. Superintendent Johnson’s justification for initially as signing all entering Negro first graders to Negro schools is “we feel this would be the logical place for him to go. His brothers and sisters have gone there in the past and he would be in an atmosphere of people he had known I7a in the past and we think it is the easiest way for him to make his wishes known” (R, 164). C. Faculty Assignments The plan contains no provisions for ending faculty as signments based on race. The board employed a total of 2,268 school teachers, in cluding approximately 600 Negroes (R. 118). All Negro teachers possess qualifications required by the school board (R. 121); 35 white teachers failed to fulfill the school board’s minimum requirements (R. 136-137). Negro teachers teach only Negro students (R. 121). White teachers teach only white students (R. 122). Negro super visory personnel are confined to supervising Negro stu dents and schools (R. 122) and are provided offices apart from white supervisory staff (R. 123, 144). Teacher turn over within the system averages approximately 13% per year (R. 120). Dr. Johnson testified that the 2,200 teachers in the system were qualified to each any child in the system within their subject specialty but that “ the main problem” to teacher desegregation would be “ acceptance on the part of the parents” (R. 135), and Negro teachers would encounter difficulties in teaching white students “because of the traditions and practices of our people up until this time” (R. 144). D. Bus Transportation The plan contains no provision for desegregating trans portation facilities. The 253 buses maintained by the district were operated on a segregated basis (R. 123-124) pursuant to separate route maps— one setting out routes for Negro students and a second for white students. These routes overlapped each other in some instances (R. 127-128). 18a E. Inequality in Facilities for Negroes The plan contains no provision for eliminating various tangible inequalities in the facilities for Negroes and whites. The superintendent testified that although there is only one vocational school for white boys, Negro high schools have comparable vocational subjects not offered in white schools (R. 146). The only high school not accredited by the Southern Association is Negro Praco High which the superintendent said had not applied for an accredita tion (R. 220). The Negro Rosedale school has grades 1-12; white Shades Valley school has grades 10-12 (R. 221). The two schools are about half a mile from each other. Rosedale has five or six acres; Shades Valley has about twenty acres. Shades Valley has an auditorium, a stadium and a separate gymnasium; Rosedale lacks a stadium and a gymnasium (R. 221-222, 232).12 Although the superin tendent could name five white schools having summer school sessions, he could not “ recall” other schools hav ing such sessions (R. 232). Negro Gary-Ensley Elemen tary School has outdoor toilet facilities (R. 234). In Negro Docena Junior High School, there are pot-bellied stoves rather than central heating. Students must go a block away to use indoor toilet facilities (R. 233-34). The superintendent could not recall a Negro school which had a stadium with seats and lights. He stated that Negroes have not wanted to play football at night (R. 235). Most stadiums and lights, including an $80,000 stadium at white Berry High School, have been provided, according to the superintendent, by citizen efforts (R. 235-36). He did state, however, that the school system gives assistance to 12 jjy way 0f contrast to the Rosedale-Shades Valley situation, the superintendent testified that Negro Wenonah High School had facilities superior to white Lipscomb Junior High School (R. 240-41). 19a such efforts by grading the ground and furnishing the light fixtures (R. 236). An appendix to Intervening Plaintiff’s Exhibit No. 1, shows that of the 79 white and 32 Negro schools listed, 81.3% of the Negro schools and only 54.4% of the white schools had a student enrollment above capacity. Thus 33.3% of the Negro students (or 4,587 Negroes) were enrolled in schools having over capacity population, while only 10.1% of the white students (or 4,125 whites) were enrolled in such schools. The United States also proved that 45.6% of white schools but only 18.7% of the Negro school enrollments were under capacity (R. 203). F. Others Matters The plan contains no provisions for individual notice to pupils, no provision with respect to locating new school buildings or additional facilities in such a manner as to eliminate segregation, no provisions with respect to non discrimination in various school connected or sponsored activities or in extracurricular activities, and no provi sions with respect to periodic reports to the court con cerning desegregation. G. Administration of the Plan In the first year of the plan, 1965-66, only 24 of approxi mately 18,000 Negroes attended formerly white schools. (Affidavit of St. John Barrett attached to Motion to Con solidate and Expedite Appeals in these cases, filed in this Court April 4, 1966.) In the second year of the plan, the current 1966-67 term, about 75 Negro pupils attend formerly white schools. (Information supplied to inter- venors and appellants by U. S. Department of Health, Education, and Welfare.) 20a III. No. 23,331, United States, et ah v. Fairfield Board of Education The board maintains nine public schools in the City of Fairfield, Alabama which serviced a total school-age pop ulation of 3,095 children during the 1964-65 school term. Of this number 2,273 were Negro and 1,822 were white (Intervenor’s Exhibit No. 3). By long term policy and practice, the board segregates Negro school children from white school children through the use of dual racial school zones (R. 182, 183, Inter venor’s Exhibit 3). In 1954 Negro parents petitioned the board to desegregate the schools and again in May, 1965, Negro parents petitioned for desegregation. The board did not respond to either petition (R. 125-27, 220-23). On July 21, 1965, Negro parents and school children brought suit against the board asking for a preliminary and permanent injunction against continuing segregation of students and teaching staffs (R. 14-23). The district court found there was an illegally segregated system in Fairfield (R. 84), and pursuant to a court order the board filed a Plan and later an Amended Plan for Desegrega tion of Fairfield Schools System (R. 59).13 13 On August 17, 1965, the board filed a Plan for Desegregation of Fairfield School System (R. 48), which the court failed to approve. This first plan provided in part that (1) Negro children in the 9th, 11th, and 12th grades would be permitted to apply for transfers which transfers would “ be processed and deter mined by the board pursuant to its regulations . . (R. 49). (2) Negro children entering the 1st grade would be assigned to Negro schools, but if both parents accompany the child and sign an application on the first day of school, the child would be permitted to apply to a white school (R. 50, 151-155). (3) Applications to be acted upon for the 1965-66 term had to be filed at the office of the board between 8:00 A.M. and 4:30 P.M. on August 30, 1965 (R. 50, 151). (4) During the 1966-67 terms, the 2nd, 3rd, 8th and 10th grades would be desegregated. During the 1967-68 terms the remaining 4th, 5th, 6th 21 a The amended plan, which the district court approved, provides that: (1) Negro students in the 7th, 8th, 10th and 12th would be allowed to apply for transfer to white schools if their applications were submitted to the board on or before August 30, 1965, the applications to be processed by the board “pursuant to its regulations” (R. 60). (2) Negro children entering the 1st grade must attend a Negro school unless the parents of the child on the first day of school apply for his assignment at a white school (R. 61). (3) Applications of Negro children for admission to white schools or white children to Negro schools are to be reviewed by the superintendent “ pursuant to the reg ulations of the board” (R. 61). (A similar process is not required for applications of Negroes for transfer to Negro schools or white children to white schools.) (4) During the entire month of May 1966 applications by Negro children for transfer to white schools in the 2nd, 3rd, 9th, and 11th grades for the 1966-67 school term will be accepted. (No provision is made for publication of notice prior to May of 1966) (R. 61-62 and 157-158). (5) During May of 1967 applications by Negro students for transfer to the remaining segregated 4th, 5th, and 6th grades will be accepted by the board for the 1967-68 and 7th grades would be desegregated. Applications by students entering desegregated grades would be accepted from the period of May 1 through May 15 preceding the September school term opening for the desegre gated grades (R. 50-51). (5) Unless Negro students applied for and obtained transfer, they would be assigned to Negro schools (R. 51). (6) The Board would publish in a newspaper of general circulation the provisions of the plan on three occasions prior to August 30, 1965 (R. 51). 22 a school term. (No provision is made for publication of notice prior to May of 1967) (R. 62 and 157-158). (6) Except for those students applying for and receiv ing transfer, the schools within the Fairfield system will remain segregated. (7) One notice of the plan is to be published for three days prior to August 30, 1965 (R. 63). The plan is silent as to admission of named plaintiffs, desegregation of faculty and extracurricula activities, abolition of dual zone lines, and filing of progress reports with the Court. The plan also does not mention the con struction and location of new schools and their effect on desegregation. Under the plan, transfer applications are not granted as a matter of course, but the board, in its discretion, may deny transfer (R. 149, 166). As understood by school officials, the plan requires both parents request transfer to a white school before an ap plication will be considered (R. 150-152). This is also true for students applying to the first grade, although they are required to present themselves at schools with an applica tion signed by both parents and application forms are not available prior to the time of initial enrollment (R. 153) . Transfer forms are distributed to principals of schools in Fairfield but are not distributed to parents or students unless a request is made of the principal (R. 154) . A Negro unable to obtain certain courses because they are taught only in the white schools will not be considered for transfer unless the plan covers the grade in which he is enrolled (R. 159). The plan is also silent as to the standards to be applied to transfer requests from students moving into the district subsequent to the transfer period (R. 158). 23 a Prior to desegregation the board permitted applica tions for transfer during a three-month period but the desegregation plan reduces this period (R. 145). When asked by the district judge to explain why “ such a restric tive period” had been decided upon the superintendent stated: My reaction to that point would be we are moving, it seems, from a segregated school to an integrated school system, and the rules of the game are just going to be different in the future from what they have been in the past (R. 145). The record shows that the tangible facilities and ser vices available at the Negro and white schools are not equal. The white schools in the City of Fairfield are organized on a 6-3-3 plan, i.e. the first six grades in an elementary school; the seventh, eighth, and ninth grades in a junior high school; and the tenth, eleventh, and twelfth grades in a senior high school (R. 87, 96, 189-190). Although the 6-3-3 system is thought to be the most edu cationally sound school-organization plan by the school authorities, Negro schools are not organized on a 6-3-3 plan (R. 87, 96, 189-190, 192). The teacher-pupil ratios for the 1964-65 school term at the various schools are these: Grades 1-6 Negro Robinson 34/Teaeher Englewood 25/Teacher White Forest Hills 26/Teacher Donald 26/Teacher Grades 7-9 Interurban 35/Teacher Fairfield Junior High 28/Teacher Grades 10-12 Industrial High 29/Teacher Fairfield 20/Teacher (Computed from Intervenor’s Exhibits No. 3) 24 a The plant facilities provided for the Negro children are inferior to those provided for white students. The buildings are in disrepair (E. 217-218, 207-210); the lava tory facilities are unusable, in part, or otherwise of in ferior quality or condition (E. 108-109 and Defendant’s Exhibits 7 & 8). Vermin and ants have been found in eating facilities (E. 164-167, 218) and there is little recrea tional area provided around the Negro schools while each white school is provided with ample grounds (E. OI OS, 97, 98, 210, 211, 212, 218). The per pupil values of the plant facilities of the Fairfield school system are these: Negro White Robinson Elementary $ 258 Donald Elementary $ 743 Englewood Elementary 492 Forest Hills Elementary 920 Glen Oaks Elementary 817 Interurban Junior High 130 Fairfield Junior High 699 Industrial High 1,525 Fairfield High 2,476 (Computed from Defendant’s Exhibit No. 11) Numerous courses which are offered to the white stu dents in the junior and senior high schools are not offered to the Negro students in comparable grades in the various Negro schools (E. 90, 131-132, 215, 201). A full-time guidance counselor was provided for the white students at Fairfield High School and not for the Negro students at Industrial High School (Intervenor’s Exhibit 3). On August 23, 1965, the District Court overruled the objections of the Negro plaintiffs and the United States and approved the amended plan of the board (E. 65). On September 8, 1965, the court formalized its findings and ordered the desegregation of that system pursuant to the amended plan (E. 67-72). On August 20, 1965, the court rejected the objections raised by the Negro plaintiffs and the United States (E. 84). An attempt was 25 a made to show that the inferior condition of the Negro schools should have some effect upon the rate of desegre^ gation and the provisions of the plan, but the district court held this evidence to be irrelevant (R, 169-170). On October 22, 1965, the United States filed a Notice of Appeal from the order of the district court overruling its objections and approving the plan of the Fairfield Board of Education (R. 73). During the 1965-66 school year only 31 of 2,273 Negroes attended formerly all-white schools.14 The Department of Health, Education and Welfare informs intervenors and appellants that a total of 49 Negroes attend white schools during the present school year. None of the system’s 1,779 whites attended formerly Negro schools.15 IV. /Vo. 23,274, United States, et al. v. Caddo Parish School Board There are approximately 72 schools under the jurisdic tion of the board (E. 191) which includes the city of Shreveport and rural areas of the parish. Attending these schools are approximately 55,000 children of whom 24,000 are Negroes (R. 191, 189). The board employs approxi mately 2,200 teachers (R. 191). Racial separation within the system was maintained through the use of dual attendance zones (R. 69, 81). No Negro child attended any school in which white children were in attendance; no Negro teacher was employed at any school at which white children were in attendance (R. 74-75, 81, 91-92). Athletic facilities and bus trans portation were segregated (R. 107-08, 110-12). 14 Affidavit of St. John Barrett attached to Motion to Consolidate and Expedite Appeals filed April 4, 1966. 15 Ibid. 26a After the decision of the Supreme Court in Brown v. Board of Education, the board made no effort to end segregation in the schools, being of the opinion that it had no duty or responsibility to do so until, and only to the extent that, it was so ordered by a court o f the United States (R. 87-89). On March 23, 1965, Negro school children and their parents notified the board that they and other Negro children desired to attend the public schools of the Parish without discrimination on the basis of their race (R. 60). The board replied that it had “ gone the extra mile” in its efforts to provide the best education for all students, but took no affirmative action to desegregate or honor the request of these Negro children and their parents (R. 62, 73). On June 14, 1965, the district court found that thd school board had operated a compulsory segregated sys tem, enjoined the board from continuing and maintaining a racially segregated school system, and ordered the board to submit a plan to desegregate the schools of the parish (R. 133-36). The court stated that it issued the decree “not willfully or willingly, but because we are com pelled by decisions of the Supreme Court . . . [and] . . . the Fifth Circuit . . . ” (R. 131). The board submitted a desegregation plan on July 7, 1965 (R. 138-50). Ob jections were filed July 21, 1965 (R. 158-60) and hearing was held on the objections August 3, 1965 (R. 161 et seq.). The board first proposed a plan in which students, after being initially assigned on the basis of race, would be permitted to request transfer to the school closest to their residence (R. 141). It was established at the hearing that in many instances this would result in Negro children applying for transfer from one Negro school (the original 27a assignment) to another Negro school (the school closest to residence) (R. 273-274). As a result of the hearing, the plan was approved, as modified, and incorporated into an order by the District Court August 3, 1965 (R. 291-98). On August 20, 1965 the district court altered the plan in light of the deci sion of this Court in United States v. Bossier Parish School Board, 349 F.2d 1020 (August 17, 1965) (R. 300-04). The plan as finally approved provides for transfer ap plications for grades one, two, eleven and twelve during the 1965-66 school year, remaining grades to be covered during the 1966-67 and 1967-68 terms (R. 303-04). All initial school assignments of children entering the first grade and those presently enrolled from prior years, would “be considered adequate” subject only to these transfer provisions (R. 291-95). The community is to be advised of the plan by publica tion in a local newspaper advising of the right to request transfers. There are to be no individual notices. Negro children in the covered grades could apply for transfer to white schools only if they applied within a five-day period extending from August 9, 1965 through August 13, 1965, although prior to issuance of the plan transfer applications were permitted throughout the school year (R. 85, 95, 96). Application forms would not be dis tributed to all students but would be available from princi pals on request. Transfer applications would be granted if in “ the best interest of the child” and if applicants met transfer criteria (R. 182, 292-94) such as available space,16 age of the pupil as compared with ages of pupils already attending 16 All schools in the Parish are overcrowded (R. 258-59, 281). 28a the school to which transfer is requested, availability of desired courses of instruction, and an aptitude test (R. 147, 217, 243-48). These criteria are part of “ the pro cedures pertaining to transfers currently in general use by the Caddo Parish School Board” and are incorporated in the plan (R. 292). An interview may be required and if parents fail to attend the transfer application is con sidered withdrawn (R. 145, 146). The board specifically refused to obligate itself to pro vide busing for transfer students to formerly all-white schools although in some cases this would require students to arrange trips of about 19 miles (R. 70, 143, 206).17 The board was granted the right to reassign a transfer applicant to a “comparable” school nearer his residence. However, “ comparable” is not defined in the plan. Students moving into the parish are initially assigned according to race to formerly all-white or all-Negro schools (R. 177-78, 295). The order did not provide for assignment of named plaintiffs to white schools or for desegregation of faculty, extracurricular activities or transportation facilities. Prog ress reports to the court are not required. A spring pre registration of future first graders “ is very important” (R. 95, 94) to administration of the system but the plan is silent regarding its desegregation. The plan does not mention the construction and location of new schools and their effect on desegregation. During the first year of the plan’s operation, only one Negro child of the 24,457 attending public schools in Caddo 17 There was testimony that all or nearly all the white children from the rural area of Caddo Parish were bussed into Shreveport from as much as 19 miles away. Rural Negro children were provided with three Negro high schools located at various points about the county closer to their residence than the Shreveport schools (R. 274-75). 29a Parish (of whom approximately 1,720 are entering first- graders) has been admitted to a formerly white school (R. 78). (See the affidavit of Mr. St. John Barrett attached to motion to consolidate and expedite filed in this Court April 4, 1966). July 19, 1965, the United States sought leave to inter vene as of right as party plaintiff and to file objections to the desegregation plan submitted by the board. At the August 3, 1965 hearing on the plan, the district court denied the motion to intervene (R. 166) on October 4, 1965, the United States filed notice of appeal to this Court from the order denying intervention (R. 305). The panel found that “ the motion was timely filed and should have been granted” (Slip Opinion p. 116). V. No. 23,365, United States of America, et al. v. The Bossier Parish School Board This is the fourth appeal to this Court involving segre gation in the Bossier Parish schools. See United States v. Bossier Parish School Board, 220 F. Supp. 243 (W.D. La. 1963), aff’d per curiam 336 F.2d 197 (5th Cir. 1964), cert, den. 379 U.S. 1000, an unsuccessful attempt by the United States to sue for desegregation prior to the 1964 Civil Rights Act. See also two prior appeals in the present suit, sub nom. United States v. Bossier Parish School Board, 349 F.2d 1020 (5th Cir. 1965) (per curiam) and Bossier Parish School Board v. Lemon, No. 22,675, 5th Cir., Janu ary 5, 1967 (not yet reported). This suit was commenced in December 1964 by a group of Negro servicemen and their families who were assigned to the Barksdale Air Force Base near Bossier City, Louisi ana ; the United States intervened and brought this appeal. 30a The present appeal involves the “adequacy,” under Brown v. Board of Education, 349 U.S. 297, 301, of a court-ordered plan of desegregation (R. Yol. II, 251-258; as amended R. Vol. II, 261-263). (NB The record on this appeal is in two volumes. Volume I consists of the record multilithed for use in 5th Cir. Case No. 22,675, a prior appeal. Volume II is marked as Case No. 23,365 and consists of 281 pages.) Bossier Parish, which adjoins Caddo Parish in north west Louisiana, is a rapidly growing area (R. 11-40) which embraces both urban (Bossier City) and rural areas and several large federal installations, including the Barksdale Air Force Base. Its Superintendent of Schools described the system as the most federally impacted system of its size in the South (R. 11-38). The Superintendent also de scribed the areas as a “hard core segregation area” where people have “ strong and fixed opinions in opposition to integration,” and said in March 1965 that “Bossier Parish is not ready for integration” (R. 1-56).18 The school system had (in the spring of 1965) 15,267 students, including 10,894 white pupils and 4,375 Negroes, 18 The quoted remarks are from a written answer to an interrogatory inquiring what obstacles there were to complete desegregation in the 1965- 66 term (R. Yol. I, 40). The Superintendent responded (R. Yol. I, 56) with the following: Bossier Parish, Louisiana can properly be termed a “hard core” segregation area. The people in Bossier Parish have strong and fixed opinions in opposition to integration. People here feel that negroes in Bossier Parish are treated fairly and with justice and there has been an unusual degree of racial harmony. Indeed, from the negroes in Bossier Parish there has been no desire expressed for integration of the races other than that which come from Barksdale Air Force Base; that is, from non-Bossier Parish negroes. In contrast to some other areas o f the South which have maintained segregated school systems, Bossier Parish is not ready for integration. / s / E mmett Cope E mmett Cope, Individually and on behalf of the Bossier Parish School Board 31a in 23 school buildings (R. Vol. I, 45-46). There were 17 all-white and 6 all-Negro schools (Ibid.). About 1,100 students live on the Barksdale Air Force Base, and ap proximately 4,400 students are “ federally connected” (R. Vol. II. 36). The student population has a large turnover which includes an average of 1,000 to 1,500 newcomers each year, largely due to the federal installations and re lated industries (R. Vol. II. 38). The system received more than $1,860,000 for school construction from the Federal Government between 1951 and 1964 (R. Vol. I. 104), and also received substantial annual amounts of federal funds for maintenance and operation of the schools, including more than half a million dollars in November 1964 (R. Vol. I. 108). There was no desegregation of the Bossier schools until September 1965 when twenty-five (25) Negroes were ad mitted to six previously all-white schools (R. Vol. II. 266). Until 1965, the schools were completely segregated with a system of dual school zones for Negroes and whites (R. Vol. II. 43-45). The 700 teachers in the system were also assigned on the basis of race (R. Vol. II. 175, 179). In school taxation district 13, the urban area, all Negro children, regardless of residence, were assigned to either Butler School (grades 1-6) or Mitchell School (grades 7- 12) (R. Vol. I. 45-46; Vol. II. 160). White pupils in dis trict 13 were assigned to elementary, junior high or high schools on the basis of geographic attendance areas re flected on maps which were revised annually to adjust to changing conditions (R. Vol. II, 44, 67-69, 159-161, 168). Similarly, there were dual zones in the rural areas, all pupils having been assigned on a dual zone racial basis (R. Vol. II. 127, 130). Under the segregated system pupils were placed in schools by assignment and not by choice (R. Vol. II. 130). The board also maintained separate 32 a school buses, and bus route maps for Negroes and whites (R. Vol. II. 244-245). After the trial judge in April 1965 ordered the board to submit a desegregation plan, the board appealed that order19 but, as there was no stay in effect, submitted three alternative proposals for desegregation (R. Yol. II. 1-12). None of the proposals involved a start of desegregation until 1966, and the proposed completion dates ranged from 1970-71 (the board's first choice) to 1968-69. We omit any detailed description of the board’s proposed plan, except to state that under the proposal all prior initial assign ments—all of which were segregated—were “ considered adequate” , subject to a pupil’s right to transfer to “ the nearest formerly all-white or all-colored school” (R. II. 4). Although the plan was labeled as one considering both “ freedom of choice” and “ proximity” by the superintendent (R. Yol. II. 92), all Negro first graders were directed to register at the all-Negro Butler School and white children were directed to the white schools. The superintendent sought to justify this by his assumptions that the major ity of Negroes would want to go to Butler, and that they would get better registration advice from teachers of their own race (R. Vol. II. 124-125). The private plaintiffs and the United States filed objections to the plan (R. Vol. II. 13-15, 30-33), and a hearing was held on July 28, 1965. On July 28, 1965, the District Court entered an order re quiring desegregation in September 1965, in grades 1 and 12 (R. Vol. II, 251-258). The United States promptly appealed (R. Vol. II, 258), and this Court within a few weeks vacated the judgment and remanded for reconsideration (R. Vol. 19 This court rejected the board’s arguments on appeal calling them a “bizarre excuse” for segregation. Bossier Parish School Board v. Lemon, Xo. 22,675, 5th Cir., January 5, 1967. Undaunted, the board promptly filed a rehearing petition, still resisting the order to desegregate in Janu ary 1967. Rehearing was denied February 6, 1967. II, 260; see 349 F.2d 1020). The plan was then amended by the trial judge to permit desegregation in two additional grades in 1965 (R. Vol. II, 261-263). There were no other changes in the plan, and the United States then brought this appeal, in which the private plaintiffs were permitted to intervene. The Court Ordered Plan, as Amended (R. Vol. II, 251-258, 261-263) 1. Rate of desegregation. The plan, as amended, provides for desegregation in three years, as follows; School Tear Grades Desegregated The plan also provided that all pupils newly entering the school system would be eligible for desegregation in 1965 without regard to their grades (R. Vol. II, 255). 2. Method of assignment. a. 1965-66 school year. Initial assignments, already made on a completely segregated dual racial zone basis were “ con sidered adequate” subject to certain transfer rights (R. Vol. II, 251). Transfer provisions for the various grades af fected were as follows : Grade 1—Notice to be published in newspaper for three days advising that applications to first grade in any school could be made by applying in person at school board office during four day period (R. Vol. II, 252-25 ). As imple mented, the board ran a notice of this provision for “Any Negro child . . . who desires to attend a formerly all-white 1965- 66 1966- 67 1967- 68 1, 2, 11, 12 1, 2, 3, 4, 9, 10, 11, 12 All Grades school” to apply in person at the school board office in Benton, Louisiana accompanied by his parents or guardian (R. Vol. II, 271). Grades 2 and 11— The procedure prescribed in the order was similar to that for grade 1. The board’s newspaper notice, said that “Any Negro child . . . who desires to attend a formerly all white school, will report . . . in person, ac companied by his or her parents or guardian to the School Board office at Benton, Louisiana.” A three-day period was prescribed (R. Vol. II, 273). Grade 12— The order provided that all 12th grade stu dents, regardless of race, were to be mailed notices advising of the right to transfer to any school by applying in person, accompanied by parents, during a four day period (R. Vol. II, 252). The notice actually mailed to pupils (R. Vol. II, 269) said that pupils could apply for a transfer, but it con tained no statement indicating that pupils would be accepted in any school regardless of race, or that grade 12 was de segregated, or any similar explanation (R. Vol. II, 269-270). The court order did not grant an unconditional right of free choice. Rather, it provided that requested “ transfers or assignments . . . shall not be unreasonably denied” (R. Vol. II, 253). It listed certain criteria to be applied in granting or denying requests, including desire of pupils and parents, availability of space and other facilities in the school to which transfer or assignment is requested, age of the pupil as compared with ages of pupils already attending the school, and availability of requested courses of study (R. Vol. II, 253-254). The order also provided that the board may “ if it deems it advisable” assign a pupil to “ another school, in all respects comparable to the one to which transfer or assignment is requested, closer to the applicant’s residence” (R. Vol. II, 254). All pupils whose requests were denied were to get a notice setting forth specific reasons (R. Vol. II, 255). b. School years subsequent to 1965-66. Only very gen eral provision was made in the order with respect to the method of assignment in future years. The order provides only that “ initial assignments . . . shall be made purely and simply on the basis of individual choice, reserving to all pupils, however, the right to apply for transfer in accord ance with the procedures hereinabove established, and reserving to the School Board . . . the right to place a pupil in a comparable school other than the school of his choice . . . closer to the pupil’s residence” (R. Vol. II, 256). The order also provides that “ Dual school districts on racial lines shall be abolished” . Because these provisions are so general, a variety of things are unclear. The plan does not state (1) whether school attendance lines and the feeder system will be used in some manner in the future; (2) whether once assigned to a school, pupils will be required to make an annual choice of schools or will remain where they previously were assigned unless they seek transfers; (3) what will be done if pupils indicate no preference; (4) whether pupils already attending a school will have priority over others choosing a school in the event of overcrowding; (5) or any definition of the “ comparable school” discretion given to the school board. 3. Notice and related procedures. The procedures ordered and utilized for the 1965-66 term were set forth in the discussion above. The order gives no details with respect to the procedures in other years except the general statement that the assignments will be “ subject to all reasonable procedural requirements that may be adopted and promulgated by” the school board (R. Vol. II, 257). This leaves unclear, for example, whether the choice and transfer procedures will be only for Negroes and not for whites as they were in grades 1, 2 and 11 in 1965; whether there will be individual notices or only newspaper advertisements; and whether the school board may adopt its proposal of having all Negroes register at Negro schools and all whites at white schools. Other unresolved issues related to the content of notices, the time for transfer, whether pupils and parents must appear in person at the school board office, etc. The plan deals with none of these matters. 4. Transforation, The plan makes no mention of transportation facilities. In a somewhat confusing colloquy between the superin tendent and the Court, during trial, the superintendent may have indicated an intention to desegregate buses (R. Yol. II, 101-102). The extent, if any, by which the prior pattern of segregated buses, and bus routes for Negroes and whites is to be changed is unclear. 5. Faculty and staff desegregation. The plan makes no mention of faculty desegregation. The school authorities made clear that they had no plans to end the system of assigning faculties on a racial basis (R. Vol. II, 179-180). The faculty turnover rate was about 9.2% annually (R. Vol. II, 176). 6. School connected activities, extra-curricular activities, etc. The plan contains no provision with respect to these matters. 37a 7. New construction. The plan makes no reference to planning new facilities or additions so as to eliminate segregation. At least two new buildings had been built and opened on a segregated basis during the three years superintendent Cope had been in office (E. Yol. II, 80). 8. Unequal Negro school facilities. The plan makes no provision for steps to equalize educa tional opportunities for Negroes in the parish. The schools operated for white and Negro children in Bossier Parish show considerable disparity in a number of qualitative aspects. The white high school (Bossier) for one district offers 53% courses over a four year period, including two years of Latin, two years of French, two years of Spanish, and three years of art (R. Vol. II, 184- 185). However, the Negro high school (Stikes) for the same district offers only 28 courses, and offers no Latin, French, or Spanish (E. Vol. II, 186). Another district’s white high school (Airline) offers 43.5 courses, while the Negro high school (Mitchell) offers 30.5 (E. Vol. II, 189). Similarly, the white high school (Haughton) for a third district offers 40.5 courses, while the Negro high school (Princeton) offers 34 (R. Vol. II, 192). The Superintend ent stated that the criterion for offering a course was: if a course is requested on the senior high level by as many as ten students we attempt to offer that course in that particular school. Yet, at the same time, there are other factors where maybe ten students have not applied as far as conditions are concerned in the other schools and I think that situation has to be taken into consideration (E. Vol. II, 100). 38 a Disparities are found in other respects in addition to the number of course offerings. While there are two full time guidance counselors at Airline (white), there are none at Mitchell (Negro) (R. Vol. II, 190). In fact, while there generally are guidance counselors at the schools for whites in the parish, there are none at any of the Negro schools (R. Vol. II, 187, 194). At the Princeton school (Negro), there are 3.8 volumes of “ approved books in good condi tion” per pupil, while at Haughton (white) in the same district there are 6.3 per pupil (R. Vol. II, 190-191). Mr. William Stormer, of the United States Office of Edu cation, Department of Health, Education, and Welfare, an expert in the evaluation of the quality of school plants, testi fied on his inspection of the Bossier Parish schools in the summer of 1965 (R. Vol. II, 195-198). Using the Lynn- McCormiek Rating System which combines a number of weighted ratings to allow numerical comparisons between schools, he determined that the highest white school (A ir line) ranked at 82 on the scale, while the highest Negro school (Mitchell) ranked at 16 (R. Vol. II, 199, 202). F if teen of the seventeen white schools rated above the top Negro building (R. Vol. II, 202). When challenged upon cross-examination that there was really no dramatic dif ference between the Negro and white schools, he responded: “Yes, there is. I beg your pardon. For example, the wooden structures used at Stikes for what I presume to be ele mentary classrooms . . . there are no wooden structures at Curtis” (R. Vol. II, 209). Similarly, the structures used for elementary grades at Irion (Negro) are wooden, while those used for the same purpose at Benton (white) are not (R. Vol. II, 209). The home economics facilities at Stikes high school (Negro) are in a wooden frame two story struc ture, whereas similar facilities at Bossier high school (white) are in a modern main building (R. Vol. II, 200). 39a All of the Negro schools must use their gymnasiums as auditoriums, while Airline, Bossier, Benton, and Haughton schools which are all white have separate auditorium facili ties (R. Vol. II, 200-201). The gymnasium floors in all of the Negro high schools are constructed of cement or asphalt tile surface, compared to wooden floors in all of the white high schools (R. Vol. II, 200). 9. Periodic compliance reports. The plan makes no provision for periodic compliance re ports to indicate the extent of desegregation under the plan. However, in September 1965, the board voluntarily filed a report indicating that 25 Negroes had been admitted into six formerly white schools (R. Vol. II, 266-267). No subsequent reports have been made. VI. No. 2 3 ,1 1 6 , D avis v . East B a to n R o u g e P arish S ch o o l B oa rd The East Baton Rouge Parish school system includes the City of Baton Rouge, Louisiana’s state capital, as well as rural areas in the parish. The system, in 1965, had 87 schools housing 54,894 pupils (R. 70) and about 2,300 teachers (R. 123). About 60% of the pupils and teachers were white and 40% were Negroes.20 There were 33 all- Negro schools, 50 all-white schools, and 4 predominantly white schools attended by a few Negroes (R. 49-50, 93). Although this school desegregation litigation was com menced in 1956, the parish schools remained completely segregated until the court ordered a twelve year desegre gation plan to begin in the 1963-64 term. The early litiga tion is described briefly in the note below.21 20 There were 33,186 white pupils and 21,708 Negro pupils (R. 70-71). 21 The board was enjoined on May 25, 1960, and ordered to desegregate with deliberate speed. This Court affirmed. East Baton Rouge Parish In 1963, twenty-eight Negroes (of 38 applicants) were admitted to white schools at the 12th grade level (R. 93-94). In 1964, sixty-one Negroes (of 99 applicants) were admitted to white schools in the 11th and 12th grades (R. 99-100). Only four of the fifty-four white schools were desegregated (R. 93). No white pupils sought transfer to all-Negro schools (R. 61). No figures for 1965 appear of record, but apparently, about 130 Negroes were admitted to white schools in grades 1, 2, 10, 11 and 12 in September 1965.22 After the 1963 desegregation plan (R. 4-9; 219 F. Supp. at 885-887) had been in effect two years, the plaintiffs moved for amendment and acceleration of the plan, and made various objections to the manner in which it was administered (R. 11-28). Following a hearing (R. 170- 251), the Court ordered the board to present an amended plan in accordance with its directions (R. 158-159, 242-250). An amended plan was presented and approved (R. 161- 167). Plaintiffs appealed from the order approving the plan (R. 167). School Board v. Davis, 289 F.2d 380 (5th Cir. 1961), cert. den. 368 U.S. 831 (1961). On January 22, 1962, no steps to implement desegregation having been taken by the board, plaintiffs sought further relief in the trial court. In March 1963, Judge West, expressing his disagreement with the Brown decision, nevertheless “ reluctantly” ordered the school board to file a desegregation plan. Davis v. East Baton Bouge Parish School Board, 214 F. Supp. 624, 625, 626 (E.D. La. 1963). The board filed a plan to begin m 1964 and desegregate one grade a year for 12 years- the Court ordered desegregation to begin in 1963 under a grade-a-year plan. Davis v. East Baton Bouge Parish School Board, 219 F Supp 876 (E.D. La. 1963). 22 This estimate is extrapolated from the School Board’s original brief on this appeal where it is stated that a total of 219 Negroes were admitted to white schools in the three year period. (Brief o f Appellees, pp 6-7 ) The record reflects that in the spring of 1965, before the plan was amended by court order, 89 Negroes (o f 103 applicants) were accepted in white schools in grades 10, 11 and 12 (R. 107). 41a A. The 1965 Plan 1. Rate of desegregation. The 1965 plan provided that desegregation be extended to all grades by September 1968 according to the following schedule (E. 162): School Year Grades Desegregated Thus, under the plan one grade was desegregated in each of the first two years, 3 additional grades the third year, two grades the fourth year, three grades the fifth year, and two grades the sixth year of operation. 2. Method of assignment. The plan provides that as additional grades were covered by the plan “new districts will be prepared providing the students living within the boundaries of such districts a choice of school to attend on a first come-first served basis without regard to race or color (R. 163). The plan also provides that students will be accepted “ at any of the schools within their respective district” until such school is “ filled,” and that excess registrants shall be sent to the other school or schools in their district for registration (E. 164). It provides that no student shall be denied ad mission because of race (E. 184). These provisions must be understood in the context of the board’s practices and procedures. The board has main tained 100 school districts or geographic attendance areas 1963- 64 (under 1963 plan) 1964- 65 (under 1963 plan) 12 11,12 1, 2, 10, 11,12 1, 2, 3, 4,10,11,12 1, 2, 3, 4, 5, 6, 7,10,11,12 all grades 1965- 66 1966- 67 1967- 68 1968- 69 (E. 103). About 70% of the districts contained residences of both races (R. 103), and segregation was maintained by a dual system of attendance districts, with separate over lapping districts and maps for Negroes and whites (R. 74-76, 79-80). Elementary schools were designated as “ feeder schools” for designated secondary schools, also on a segregated basis (R. 77, 84-85, 105). This method con tinues in effect in all grades not yet “ desegregated” under the plan’s schedule. In those grades which are nominally desegregated, the Negro and white zones are combined into multiple-school districts, so that each zone contains one or more white and one or more Negro schools. Pupils are allowed to choose either the white school or the Negro school in their geographic attendance district (R. 76-78, 83-84). If a pupil fails to make a choice, he remains in the segregated school where he was previously assigned under the pre-existing arrangement (R. 209). The plan makes no mention of abolishing the segregated “ feeder system” which moves students on a racial basis if they express no choices. 3. Notice and related procedure. The plan provides that principals and teachers be noti fied of the attendance districts and that the districts be advertised in the local news media. A registration day is also to be advertised for at least 30 days (R. 163). The superintendent is authorized to use a better method if he can devise one (R. 163-164). There is no provision for in dividual written notice to pupils or parents. The plan does not specify the content of the public announcements beyond stating that the boundaries and registration date will be advertised. Similar procedures had been used under the 1963 plan (R. 92-93, 98, 107), in disregard of the court’s prior order 43 a that all pupils be given individual mailed notices of their transfer rights (R. 5). 4. Transportation of pupils. The school system operates 250 buses which transport more than 25% of the pupils to school (R. 128-129). The plan provides that transportation will be furnished or not furnished in accordance with state laws and policies with out regard to race (R. 164). The plan makes no reference to desegregation of buses or bus routes. Students are segregated by race on the buses (R. 129). This policy was applied to the Negro pupils admitted to formerly white schools (R. 129, 211). The superintendent was questioned about this (R. 211): Q. Would you agree that the way it has been oper ating in the past is that Negro children when assigned to desegregated schools are still being taken to and from the school in segregated buses! A. Yes. Q. And my question is: Is there any reason why you would change that, beginning with this Fall and, if not, why not! A. I just have not thought about it. Judge West sustained objections to questions about deseg regating the buses ruling: “We are not interested in the School Bus situation right now” (R. 213). 5. Faculty and staff segregation. The plan makes no provision for faculty desegregation. Judge West denied relief on the faculty issue (R. 246). All faculties were completely segregated on the basis of race (R. 124-125). Negro supervisory personnel assigned to the central administration were segregated in a separate building (R. 125-126, 226-227). Teachers are assigned to 44 a specific schools by the administration (R. 202). About 13 or 14 percent of the teachers are replaced each year in the regular turnover of personnel (R. 147-148). 6. School connected activities, extra-curricular activities, etc. The plan makes no provision with respect to equal ac cess to school connected activities, etc. without regard to race. 7. New construction. The plan makes no reference to planning new facilities or additions to facilities so as to eliminate segregation. At the time the trial was held, the school board was planning 17 new school buildings in the next five years (R. 130). The school system also made extensive use of temporary classroom building or “ T-Buildings” (R. 53, 69). Plaintiffs proffered, but the court refused to con sider, testimony of an expert witness, a school administra tion expert, that certain temporary buildings were ar ranged so as to preserve segregation. For example, tempo rary rooms were added to Negro schools while nearby white schools had vacant spaces (R. 267-271). B. Aspects of the 1963 Plan The 1963 plan expressly permitted the board to con tinue to make initial assignments on a racial basis (R. 5). As noted above, the board modified its dual zone proce dure so that some Negro pupils were permitted to transfer out of segregated schools to the white schools in their areas. This transfer right was subject to a screening process in which Negro pupils were measured .by a variety of criteria which had not been applied to white students attending the schools (R. 6-7). Ten Negro applicants were 45 a rejected in 1963 and 38 were rejected in 1964 by applica tion of these criteria. As an example, one Negro was re fused admission to a white school on the ground that he was “nervous” (R. 110). In 1965, the court ruled that the screening criteria could no longer be used (R. 249). C. Exclusion of Evidence on Adequacy of the Plan The trial court refused to permit an expert witness, called by the plaintiffs, to be sworn or to testify on the sole ground that the witness was from Massachusetts. The court said: “I don’t want someone from Massachusetts coming down to tell the Baton Rouge school board how to run their schools” (R. 228). The witness, Dr. Donald P. Mitchell, was experienced in educational administration and in making school surveys (R. 252-258). He is Execu tive Director of the New England School Development Council and a member of the Harvard University faculty (R. 261-262). The Court stated that Dr. Mitchell’s testi mony could be proffered by deposition and filed, but that the Court would not consider it (R. 228, 231). Dr. Mitchell’s deposition was taken and apjjears in the record at R. 251-287. He testified that the system “ is still a segregated system that has slight deviations from that overall pattern” (R. 262) ; that the “procedures for initial pupil assignment, regardless of grade level, are definitely ones which separate the races” (R. 262); that the trans portation was segregated (R. 263); that teachers and supervisors were segregated (R. 263). He said of the plan that “on the results of the last two years and this year approaching, unless the approach is changed, only a token result will come forth” (R. 266). He described the over lapping segregated bus routes as “ a prohibitive operation” causing the taxpayers “quite a load” (R. 272-273). He regarded the freedom of choice plan as “a bankruptcy deci 46 a sion on the part of a local district” and said that the board’s earlier policy of having geographic zones “made sense from an administrative point of view” (R. 273-274). He concluded that “ The idea that the freedom of choice is democratic is completely hypocrisy because it only applies to the Negro students” (R. 275). MEItEN PRESS INC. — N. Y. C. 219