Caddo Parish School Board v United States Brief in Opposition to Certiorari

    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).



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