Alabama State Teachers Association v. Alabama Public School and College Authority Jurisdictional Statement

    I n  t h e

dkmrt stt %  Imteit States
O ctobeb T e r m , 1968

No......... .

At,arama S tate T ea ch ers  A ssociation , et al.,
Appellants,

— v .—

Alabama P u b lic  S chool  and C ollege A u t h o r it y , et al.,
Appellees.

on  a ppea l  prom  t h e  u n it e d  states d istrict  court

FO R  T H E  M ID D LE D ISTR IC T OF ALABAMA

JURISDICTIONAL STATEMENT

J ack  G reenberg  
J am es M . N abrit , I I I  
M elvyn  Z arr 
F r a n k l in  E .  W h it e  
E l iz a b e t h  B . D u B ois 

10 Columbus Circle 
New York, New York 10019

F red 1). G ray

352 Dexter Avenue 
Montgomery, Alabama 36104

Attorneys for Appellants



I N D E X
PAGE

Opinion Below.......................... ................._...................  1

Jurisdiction .................... ..... ................................. .... . 1

Statute Involved...... .............................. .......................  3

Questions Presented ..... ............................ ................... 4

Statement of the Case ......................... ........................ 5

T h e  Q u estio n s  A re S u b sta n tia l

I. The Court Below Erred in Holding That the 
Scope of the Affirmative Duty to Disestablish 
a Dual Sytem of Education Is More Limited 
in the Area of Higher Education Than in the 
Area of Elementary and Secondary Educa­
tion and, Specifically, That It Does Not In­
clude Any Enforcible Duty to Consider Dis­
establishment as a Factor in the Planning of 
New Construction or the Expansion of Exist­
ing Facilities ......................... .......................... 12

II. The Court Below Erred in Upholding the 
Proposed Construction of a Branch of Auburn 
University in Montgomery Where the Record 
Shows That It Was Planned Without Regard
to Disestablishment of the Dual System ___  19

C o n clu sio n  ................     25

A p p e n d ix  A  ............... ..........................................................................  l a

A p p e n d ix  B  ................. ................... .................................. .......... ....... 14a

A p p e n d ix  C ...........................................................................    15a

A p p e n d ix  D ..............................   17a



11

T able oe A u t h o b it ie s

Cases: page

Brewer v. School Bd. of the City of Norfolk, 397 F.2d
37 (4th Cir. 1968) ....................... .............. ............. .. 15

Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955) ....12,13 
Broussard v. Houston Independent School District, 395

F.2d 817 (5th Cir. 1968) ........... .......... .... ................ 21
Brown v. Board of Education, 347 U.S. 483 (1954), 349 

U.S. 294 (1955) _______ ____ ___ ____ 6,13,14,16,17

Ex parte Bransford, 310 U.S. 354 (1940) ...................  3

Flast v. Cohen, 392 U.S. 83 (1968) ..............................  3
Florida ex rel Hawkins v. Board of Control, 350 U.S.

413 (1956) .....................................................     M
Franklin v. Parker, 223 F. Supp. 724 (M.D. Ala. 1963),

modified and aff’d, 331 F.2d 841 (5th Cir. 1964) ......  5, 7
Frasier v. Board of Trustees of the University of 

North Carolina, 134 F. Supp. 589 (M.D.N.C. 1955), 
aff’d, 350 U.S. 979 (1956) .............. ........... ................ 14

Green v. County School Bd. of New Kent County, 391 
U.S. 430 (1968) ........................................................13,16

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S.
713 (1962) .............    3

Kelley v. Altheimer, 378 F.2d 483 (8th Cir. 1967) ......  14

Lee v. Macon County Bd. of Educ., 267 F. Supp. 458
(M.D. Ala.), aff’d, 389 U.S. 215 (1967) .........5,14,16,21

Lucy v. Adams, 134 F. Supp. 235 (N.D. Ala.), aff’d 
228 F.2d 619 (5th Cir. 1955), cert, denied, 351 U.S.
931 (1956) 5



Ill

PAGE

McLaurin v. Oklahoma State Regents, 339 U.S. 637
(1950) ......... ............... ..... ........................................ . 14

Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938) 13
Montgomery County Bd. of Edue. v. Carr, 400 F.2d 1 

(5th Cir. 1968) .............................. ........... ................ 16

Query v. United States, 316 U.S. 486 (1942) .............. 3

Sailors v. Board of Educ. of the County of Kent, 387
U.S. 105 (1967) ......................................................... 3

Sanders v. Ellington, 288 F. Supp. 937 (M.I). Tenn.
1968) ............. .................... ....................................... 18, 23

Sipuel v. Board of Regents of the University of Okla­
homa, 332 U.S. 631 (1948) .............. ........................  13

Spielman Motor Sales Co. v. Bodge, 295 U.S. 89 (1935) 3
Sweatt v. Painter, 339 U.S. 629 (1950) .....................13,14

United States v. Board of Public Instruction of Polk 
County, Florida, 395 F.2d 66 (5th Cir. 1968) ....14,16, 20 

United States v. Jefferson County Bd. of Educ., 372 
F.2d 836 (1966), aff’d en banc, 380 F.2d 385 (5th Cir. 
1967), cert denied, 389 U.S. 840 (1967) ...... 13,14,16,21

Watson v. City of Memphis, 373 U.S. 529 (1963) ........  15
Wynn v. Trustees of the Charlotte Community College 

System, 122 S.E. 2d 404 (N.C.S.Ct. 1961) ................ 17

Statutes:
28 U.S.C. §1253 ........ ...................................................... 2
28 U.S.C. §1331 ............................. ................................. 1
28 U.S.C. §1343 ............... .......... ..................................... 1
28 U.S.C. §2281 ...................... ............. ....................... . 2
42 U.S.C. §1983 ......................... ............ ........................ 1



IV

PAGE

Ala. Acts, Eeg. Sess. 1967, No. 403 ..........1, 2, 3-4,10, 25, 28
Ala. Acts, 1st Spec. Sess. 1965, No. 243 ............2, 3,4, 5,10
Ala. Code, Tit. 52, §438 (1958) .....................................  5,6
Ala. Code, Tit. 52, §455 (1958) ................... -................. 5
Ala. Code, Tit. 52, §466 (1958) .....................................  5

Other Authorities:
Branson, Inter institutional Programs for Promoting 

Equal Higher Educational Opportunities for Ne­
groes, 35 J. Negro Educ. 469 (1966) ----------- ------ 27

Clement, The Historical Development of Higher Ed­
ucation for Negro Americans, 35 J. Negro Ednc. 299 
(1966) .........................................................................  24

Jencks & Riesman, T h e  A cademic R ev o lu tio n  (New 
York, 1968) ....... .................... ..... ..................23,24,26,27

McGrath, T h e  P r ed o m in a n tly  N egro C olleges and 
U n iv e r sit ie s  in  T ra n sitio n  (Institute of Higher 
Education, Columbia University, 1965) ....23, 24, 25, 26, 27

Patterson, Cooperation Among the Predominantly 
Negro Colleges and Universities, 35 J. Negro Educ.
477 (1966) .............. ............ ............................-.........  27

Pettigrew, A Social Psychological View of the Pre­
dominantly Negro College, 36 J. Negro Educ. 274 
(1967) ..... ............................................-......................  27

Plant, Plans for Assisting Negro Students to Enter 
and Remain in College, 35 J. Negro Educ. 393 (1966) 27

8 R.R.L.R. 448-58 ........... .............................................  5
Wiggins, Dilemmas in Desegregation in Higher Educa­

tion, 35 J. Negro Educ. 430 (1966) ........................... 27



I n  t h e

dmtrt at %  Imfrd &tut?s
O ctobee T e e m , 1968  

No.............

A labama  S tate  T ea c h ees  A ssociation ', et al.,
Appellants,

— v .—

Alabama P u b lic  S chool and C ollege A u t h o b it y , et al.,
Appellees.

O N  A P P E A L  EEO M  T H E  U N IT E D  STA TES D IST B IC T  CO U ET 

EO E T H E  M ID D LE D ISTB IC T  O P ALABAMA

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the United 
States District Court for the Middle District of Alabama, 
entered on July 26, 1968, denying declaratory and injunc­
tive relief, and submit this Statement to show that the 
Supreme Court of the United States has jurisdiction of the 
appeal and that a substantial question is presented.

Opinion Below
The opinion of the court below is as yet unreported and 

is set forth as Appendix A, pp. la-13a, infra.

Jurisdiction
This is a civil action brought pursuant to 28 U.S.C. 

§§1343 and 1331, and 42 U.S.C. §1983, for declaratory and 
injunctive relief against the operation of Ala. Acts, Reg. 
Sess. 1967, No. 403 [hereinafter cited as Act No. 403].



2

Appellants sought to restrain the enforcement of Act No. 
403 on the grounds that it violated their rights under the 
Equal Protection Clause by failing to encourage disestab­
lishment of the dual system of racially segregated public 
colleges in Alabama.

The judgment of the United States District Court for 
the Middle District of Alabama denying an injunction 
was entered July 26, 1968 (R. 695; App. pp. la-13a, infra). 
Notice of appeal to this Court was filed in the district court 
September 13, 1968 (R. 935 )J

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1253 to review the judgment of the district court 
of three judges necessarily convened pursuant to 28 U.S.C. 
§2281. Appellants in this case sought declaratory and in­
junctive relief against the operation of Act No. 403, which 
authorizes the Alabama Public School and College Author­
ity to issue and sell bonds in the principal amount of 
$5,000,000 for the purpose of establishing a 4-year college 
at Montgomery under the supervision and control of 
Auburn University.2 A three-judge court was properly 
convened under 28 U.S.C. §2281 because this is an action 
seeking to restrain state officials from enforcing a state 
statute on the ground that it is unconstitutional because 
it defines and effectuates a state policy of constructing 
facilities for higher education without regard to the para-

1 Notice of appeal to the United States Court of Appeals for the 
Fifth Circuit was filed August 23, 1968; and a motion to hold the 
appeal in abeyance pending disposition of the appeal in this Court 
was filed October 25, 1968, and granted November 5, 1968.

2 The formation of the Alabama Public School and College Au­
thority was authorized by Ala. Acts, 1st Spec. Sess. 1965, No. 243 
[hereinafter cited as Act No. 243] which gave the Authority, a 
public corporation, the power among others,

to provide for the construction, reconstruction, alteration and 
improvement of public buildings and other facilities for pub­
lic educational purposes in the State, including the procure­
ment of sites and equipment therefor. (R. 8)



3

mount federal obligation to disestablish the dual system 
based upon race. See, e.g., Flast v. Cohen, 392 U.S. 83 
(1968), Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 
U.S. 713 (1962), Query v. United States, 316 U.S. 486 
(1942). This is not, therefore, merely an attack upon the 
“unconstitutionality of the result obtained by the use of a 
statute which is not attacked as unconstitutional.” Cf. Ex 
parte Bransford, 310 U.S. 354, 361 (1940) (dictum). Nor 
is it a matter of purely local concern, because here relief 
is sought against the action of state agents, acting under 
a state statute expressing the state’s policy in relation to a 
new segment of the statewide system of public colleges. 
See, e.g., Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 
(1935); Sailors v. Board of Educ. of the County of Kent, 
387 U.S. 105 (1967).

Statute Involved
The statute involved in this case is Ala. Acts, Beg. 

Sess. 1967, No. 403, the complete text of which follows:
A n  A ct

To authorize the Alabama public school and college 
authority, a public corporation, to issue and sell 
additional bonds in the principal amount of $5,000,000 
for the purpose of constructing, equipping, establish­
ing, creating, supporting and maintaining a four-year 
college at Montgomery under the supervision and 
control of the board of trustees of Auburn University.

Be It Enacted by the Legislature of Alabama:
Section 1. The Alabama public school and college 

authority created and established under the provisions 
of Act No. 243, H. 29, approved May 4, 1965 (Acts, 
First Special Session 1965, p. 331) is hereby authorized 
to issue and sell its bonds in the principal amount of 
$5,000,000 in addition to all other bonds heretofore



4

issued or heretofore authorized to be issued by said 
authority. All bonds sold under authority of this Act 
shall be issued, secured by, and the principal and 
interest amortized and paid in the same manner and 
from the same funds as prescribed in said Act No. 
243 of the First Special Session of 1965 with respect 
to bonds previously issued by the authority. Proceeds 
of the sale of such bonds shall be deposited, and dis­
bursed for the sole purpose herein provided, and all 
work undertaken hereunder, and all contracts let 
hereunder shall be supervised and shall be in all other 
respects governed by the provisions of said Act No. 
243 of 1965.

Section 2. The proceeds of all bonds issued and 
sold by the authority under this Act remaining after 
paying expenses of their issuance shall be deposited 
in the state treasury, and shall be carried in the state 
treasury in a special or separate account. The net 
proceeds derived from sale of the bonds shall be dis­
tributed to Auburn University to be used by the board 
of trustees thereof for construction and equipment of 
physical facilities for conducting a four-year college 
or branch of the University in the City of Montgomery 
and for the support and maintenance of such college 
for each of the fiscal years ending September 30, 1968 
and September 30, 1969.

Questions Presented
1. Does the State have an affirmative duty to disestab­

lish a dual system of higher education based upon race!

2. Where the record shows that the proposed construc­
tion by a predominantly white university of a college in 
Montgomery duplicating an existing, virtually all-Negro 
college, was planned without regard to its effect upon the



5

disestablishment of the dual system, was it proper for the 
court to deny injunctive relief?

Statement of the Case
Until the recent past, the public institutions of higher 

education maintained and operated by the State of Alabama 
and its agencies were racially segregated as a matter of 
law, policy and practice. Statutes still on the books desig­
nate institutions as being for “whites” or “Negroes.” Ala. 
Code, Tit. 52, §§438, 455, 455(3), 466 (1958). Indeed, §10(h) 
of Act No. 243 (It 5), which established defendant Alabama 
.Public School and College Authority, designates various 
institutions as “Negro.” And as recently as 1963 a federal 
court was called upon to order Auburn University, the 
predominantly white institution whose establishment of a 
branch in Montgomery is challenged in this action, to ad­
mit Negroes, after findings that, apart from the two Negro 
institutions, all other public institutions of higher educa­
tion in the State of Alabama were for whites only, by 
statute, custom and tradition. Franklin v. Parker, 223 
F. Supp. 724 (M.D. Ala. 1963), modified and aff’d., 331 F.2d. 
841 (5th Cir. 1964).8 And in 1967 the court in Lee v. Macon 
County Bd. of Educ., 267 F. Supp. 458, 474 (M.D. Ala.), 
aff’d., 389 U.S. 215 (1967), noted that Alabama’s trade 
schools, vocational schools and state colleges4 “continue to

8 See also Lucy v. Adams, 134 P. Supp. 235 (N.D. Ala.), aff’d., 
228 F.2d 619 (5th Cir. 1955), cert, denied, 351 U.S. 931 (1956), 
where the court found the University of Alabama guilty of a tacit 
policy of excluding students from admission on the basis of race. 
The Negro who subsequently enrolled was expelled. And it was 
not until federal troops were brought in that Negroes applying in 
1963 were finally allowed to register. See 8 R.R.L.R. 448-58. It is 
the proposed expansion of the University of Alabama’s Extension 
Center that is the subject of this suit.

4 The court used the term “state colleges” to refer to “all state 
colleges or universities except the University of Alabama, Auburn 
University, University of South Alabama at Mobile, and Alabama



6

be operated on a segregated basis . . .  as if Brown v. Board 
of Education were inapplicable in these areas.”

The court below took judicial notice of the fact that 
“Alabama has traditionally had a dual system of higher 
education,” and found as a fact that “the dual system in 
higher education has not been fully dismantled.” (App. 
pp. 6a-7a, infra). And it is indeed clear that the dual sys­
tem is far from being “fully dismantled.” See Apps. B, C 
and D, pp. 14a-18a, infra?

Alabama State College is at present the only public, ac­
credited, degree-granting senior college in Montgomery. 
It is, for all practical purposes, an all-Negro school, created 
as such by statute, Ala. Code, Tit. 52, §438 (1958), and per­
petuated as such in fact. The record indicates that as of 
the fall of 1967, Alabama State had two white students and 
two white teachers out of a total of about 1800 students and 
85 teachers (R. 834, 847-48, 693; App. D, infra, p. 17a). In 
addition there exists in Montgomery the University of 
Alabama Extension Center. This is a small, predominantly 
white, non-degree-granting institution, providing college 
courses, mostly given at night.

Interest in another state-supported institution of higher 
education in Montgomery was initially generated by the

College at Montevallo, which institutions have separate boards of 
trustees and are not administered by the Alabama State Board of 
Education.” 267 F. Supp. at 474 n. 19.

B It is worth noting that even those state institutions—most of 
the trade schools and junior colleges—created in recent years have 
clear racial identification in faculty and student body (R. 685-86, 
721-29; App. D, pp. 17a-18a infra). Thus the State has not merely 
perpetuated, but is continuing to engender racial institutions. As a 
corollary it should be noted that the Alabama Education Study 
Commission, created by the Legislature in 1967 to study higher 
educational needs throughout the State and come up with a 10-year 
projected plan, has only white members (R. 783).



7

Montgomery Chamber of Commerce, an apparently all- 
white organization. Its Education Committee was reacti­
vated in January, 1966, under the chairmanship of Mr. 
Holman Head, primarily to work in developing a new col­
lege. The Committee had no Negro member (R. 746).

As the court below found, “apparently it was assumed 
from the beginning that expansion of the Alabama Exten­
sion Center was the way to proceed.” (App. 9a, infra). 
Officials of the predominantly white University of Alabama 
were first approached to see if they would be willing to 
undertake expansion of the Center. When the University 
of Alabama decided that it would not, negotiations turned 
to Auburn University.

Auburn University was established by statute as a white 
university, Ala. Code, Tit. 52, §455 (1958), and admitted 
its first Negro student in 1964 as a result of court action 
(R. 781; 60-61; and see Franklin v. Parker, supra, p. 5). 
In the fall of 1967, with the largest number of Negro stu­
dents ever, Auburn had only 41 Negro students out of a 
total enrollment of about 13,000, and only three part-time 
Negro teachers out of a total faculty of about 800 (R. 780- 
782; 104-06; 60-70, App. R, p. 14a infra). Ultimately it 
was agreed that Auburn would take over the University 
of Alabama’s Extension Center, and expand it to form a 
new branch of Auburn in Montgomery. The Chamber of 
Commerce Education Committee then met with the Mont­
gomery legislative delegation, headed by Senator Joe G-ood- 
wyn, who introduced Act No. 403, which authorizes the 
Alabama Public School and College Authority to raise 
money for the purpose of establishing a 4-year college at 
Montgomery under the supervision and control of Auburn. 
After the bill was enacted in September, 1967, the Cham­
ber of Commerce created a site selection committee, whose 
members were all white (R. 779, 234). And Auburn Uni-



8

versity set up a five-man committee, also all-white, to plan 
the educational program for its Montgomery Branch (B, 
79-80), and appointed Dr. Henry Handley Funderbunk, Jr., 
as Vice President for Montgomery Affairs.

Alabama State College was not consulted in any stage 
of the planning of the new college, nor was its participa­
tion sought in any manner. The sole contact with Alabama 
State was a visit in February, 1967, to Dr. Levi Watkins, 
President of Alabama State College, to advise him as to 
what was happening (B. 763-64, 829-31).

Indeed, up to this present time no Negro or Negro institu­
tion has been involved in any form in the planning of the 
new institution in Montgomery, nor have any Negro groups 
even been consulted regarding their needs for the proposed 
institution (B. 753-55).

Moreover, in none of the reports, surveys, discussions, 
and conversations regarding the establishment of the new 
institution was any mention made, or thought expressed, as 
to the effect of the proposed institution on the dual system 
of education in Alabama. Indeed, the state officials involved 
proclaimed their complete disinterest in racial considera­
tions.6 And, as the court below found, “defendants appar­
ently did not seriously evaluate Alabama State College’s 
potential as an alternative.” (App. 11a, infra). Alabama 
State College was said to have been rejected as a possibility 
because of the limitations of its “very basic curriculum” 
(B. 753), yet a small, non-degree-granting center offering 
primarily night school courses was chosen in its place for 
expansion. The failure to even consider the possibility of

For example, Holman Head was asked by counsel for the 
Alabama Public School and College Authority whether “in any of 
those discussions with Senator Goodwyn or any of your reports 
was there any mention of race or color in any respect?” His 
answer was “None whatsoever.” (R. 777).



9

either expanding Alabama State, or establishing a program 
in cooperation with it, is particularly striking in view of the 
fact that the new institution was intended to have essen­
tially the same kind of curriculum, with an emphasis on 
education, liberal arts, and business, as existed at Alabama 
State (R. 742-44, 818-19, 87-88; compare R. 131 with Plain­
tiffs’ Exhibit No. 3).

Finally, there is evidence that the proposed Auburn 
branch was designed to serve the needs of the white students 
in Montgomery now commuting to institutions outside of 
Montgomery rather than going to the Negro Alabama State 
College.7 Student recruitment efforts for the Auburn branch 
have been directed at white high schools to the complete ex­
clusion of Negro high schools. During December of 1967 
Dr. Robert Strong, the white Director of High School and 
Junior College Relations at Auburn, requested permission 
of various high schools in Montgomery and surrounding 
counties to visit them to explore senior interest in the Au­
burn branch. However, he neither contacted nor visited any 
Negro high schools.8 Although there was some indication 
in the record that Negro high schools were to be visited 
later, it cannot possibly have been a coincidence that the 
white schools were visited first, and in a group. Indeed, in 
one day Dr. Strong made a recruiting visit to three white

7 There was testimony at, the hearing that this was Senator 
Goodwyn’s reason for introducing the bill authorizing the new 
college (R. 903).

8 See generally R. 873-899; 912-927. Dr. Strong testified that he 
telephoned George Washington Carver High School but was unable 
to reach either the principal or the guidance eouneellor. However, 
while he left a message to return the call, the message apparently 
made no mention of the Auburn branch; Dr. Strong did not call 
again; and when the guidance eouneellor called back to inquire 
what the purpose of the call was, Dr. Strong made no mention 
of the Auburn branch, allegedly because the legal action had 
intervened and “my instructions were that we would delay this 
until something was settled.” R. 915-916.



10

high schools in Montgomery, two public and one private, 
hut failed to visit the four Negro high schools in Mont­
gomery. On Dr. Strong’s only other recruiting trip for the 
Auburn branch he visited a white high school in Wetumka, 
but failed to visit the two Negro high schools in that same 
town; instead he visited that same day a white high school 
in Prattville in another county, again failing to visit the 
Negro high school in that town (R. 923-925).

Appellants sought in this action declaratory and injunc­
tive relief against the operation of Act. No. 403, authoriz­
ing the creation of the Auburn branch at Montgomery.9 In 
its decision announced July 26, 1968, the court below noted 
initially that plaintiffs’ basic argument—that the duty to 
disestablish the dual system of education applied equally 
to higher education, and that that duty requires officials to 
utilize new construction as an opportunity to disestablish 
the dual system—presented a case of first impression. The 
court took judicial notice of the fact that Alabama had “tra­
ditionally had a dual system of higher education,” and 
found as a fact that “the dual system . . . [had] not been 
fully dismantled;” and it recognized that “the law is clear 
also that the State is under an affirmative duty to dismantle 
the dual system.” However, the court stated that it did not 
“agree that the scope of the duty should be extended so far 
in higher education as it has been in the elementary and 
secondary public schools area,” and stated that it was “re­
luctant at this time to go much beyond preventing dis­
criminatory admissions.” (App. 6a-7a, infra). The court 
noted that, unlike institutions of higher education, public

9 Originally appellants also sought relief against the operation 
of Act No. 243, authorizing the establishment of the Alabama Pub­
lic School and College Authority, but at the beginning of the hear­
ing on the merits of this case, plaintiffs announced that they did 
not “urge upon the Court at this time” their claim that Act No. 243 
was unconstitutional.



11

elementary and secondary schools were traditionally free 
and compulsory, and that, prior to “freedom of choice,” 
children were assigned to schools. The court concluded that, 
while in planning new construction or expansion the state 
legislature should consider numerous variables including 
impact on the dual system, “in reviewing such a decision to 
determine whether it maximized desegregation we would 
necessarily be involved, consciously or by default, in a wide 
range of educational policy decisions in which courts should 
not become involved.” (App. 7a-8a, infra).

The court nevertheless did consider the development of 
the plans for the Auburn branch in Montgomery, stating 
that “a brief review of the background of this case will, we 
think, reveal the wisdom of this conclusion” (that courts 
should not review construction decisions). (App 8a, infra). 
The court stated that plaintiffs had not shown that the 
Auburn branch was designed to provide for white students 
only. And in answer to plaintiffs’ contention that inade­
quate consideration was given to how the proposed Auburn 
branch might be operated so as to disestablish the dual 
system, the court stated that “it is at least as reasonable 
to conclude that a new institution will not be a white school 
or a Negro school, but just a school, as it is to believe 
that Alabama State would so evolve;” and stated further 
that “in the discharge of the duty to maximize desegrega­
tion, the Auburn branch is at least arguably as acceptable 
as any alternative proffered by plaintiffs.” The court con­
ceded that “defendants apparently did not seriously evalu­
ate Alabama State College’s potential as an alternative,” 
but noted that evidence was introduced indicating that 
Auburn was more appropriate for a variety of educational 
reasons (App. IQa-lla, infra).

The court concluded that, “as long as the State and a 
particular institution are dealing with admissions, faculty



12

and staff in good faith the basic requirement of the affirma­
tive duty to dismantle the dual system on the college level 
• • . is satisfied.” (App. 11a, infra).

THE QUESTIONS AEE SUBSTANTIAL

I.

The Court Below Erred in Holding That the Scope 
of the Affirmative Duty to Disestablish a Dual System 
of Education Is More Limited in the Area of Higher 
Education Than in the Area of Elementary and Second­
ary Education and, Specifically, That It Does Not In­
clude Any Enforcible Dirty to Consider Disestablish­
ment as a Factor in the Planning of New Construction 
or the Expansion of Existing Facilities.

The court below clearly held that the scope of the duty 
to disestablish the dual system of education does not 
include, in the area of higher education, the requirement 
enforced in the areas of primary and secondary education 
to plan construction so as to further the disestablishment 
of the dual system. The court’s entire discussion of the 
particular facts of the case was within the context of this 
holding (See II, infra pp. 22-23).

The court’s opinion, in concluding that as long as ad­
missions, faculty and staff are dealt with in good faith, 
the State’s obligations under the equal protection clause 
are satisfied, in effect, although not in words, denies the 
existence of any duty to take affirmative steps to uproot 
the dual system on the higher education level, and tacitly 
revitalizes the destructive dictum of Briggs v. Elliott, 132 
F. Supp. 776, 777 (E.D.S.C. 1955): “The Constitution . . . 
does not require integration. It merely forbids discrimina­
tion.”



13

Certainly the affirmative duty to disestablish the dual 
system has by now been firmly established, and the ghost 
of Briggs v. Elliott, supra, laid to rest, in the area of 
primary and secondary education. See, e.g., Green v. 
County School Bd. of Neiv Kent County, 391 U.S. 430 
(1968); United States v. Jefferson County Board of Educ., 
372 F.2d 836 (1966), aff’d. en banc, 380 F.2d 385 (5th Cir. 
1967), cert denied, 389 U.S. 840 (1967). There appears to 
be no legitimate reason to limit the scope of this duty in 
the area of higher education although, because of differ­
ences in the systems, different methods might be appropri­
ate in achieving integration. See infra, p. 17. In Jefferson, 
supra, the court pointed out that:

the central vice in a formerly de jure segregated public 
school system is apartheid by dual zoning: in the 
past by law. . . . Dual zoning persists in the con­
tinuing operation of Negro schools identified as Negro, 
historically and because the faculty and students are 
Negroes. (372 F.2d at 867)

In higher education the original vice was simply establish­
ment by law of separate white and Negro institutions; this 
too has resulted in the continuing operation of separate, 
identifiable, white and Negro institutions. The duty to dis­
establish this system by any available, appropriate method 
would seem to be equally important. Indeed, it is ironic that 
the lower court here should find this duty, stemming origi­
nally from Broivn v. Board of Education, 347 U.S. 483 
(1954) (Broivn I), 349 U.S. 294 (1955) (Brown II), of 
limited applicability in the field of higher education when 
the very forerunners of Broivn vrere cases involving higher 
education. See Missouri ex rel Gaines v. Canada, 305 U.S. 
337 (1938), Sipuel v. Board of Regents of the University of 
Oklahoma, 332 U.S. 631 (1948), Siveatt v. Painter, 339 U.S.



u

629 (1950), McLaurin v. Oklahoma, State Regents, 339 U.S. 
637 (1950). Indeed in Frasier v. Board of Trustees of 
the University of North Carolina, 134 F. Supp. 589, 592-93 
(M.D.N.C. 1955), aff’d., 350 U.S. 979 (1956), the court 
stated that there was nothing in Brown v. Board of Educa­
tion, supra, “to suggest that the reasoning does not apply 
with equal force to colleges as to primary schools. Indeed, 
it is fair to say that . . .  [it applies] with greater force to 
students of mature age in the concluding years of their 
formal education as they are about to engage in the serious 
business of adult life,” citing and quoting from Sweatt v. 
Painter, supra. And in Florida ex rel. Hawkins v. Board of 
Control, 350 U.S. 413-14 (1956), this Court held that the 
“deliberate speed” rule of Brown II was not applicable 
to graduate study, because it did not present the “problems 
of public elementary and secondary schools,” and there 
was therefore “no reason for delay.”

Recognition of the affirmative obligation to disestablish 
the dual system led inevitably to the doctrine that, to the 
extent consistent with the proper operation of the school 
system, new construction and the expansion of existing 
facilities should be undertaken with this obligation in 
mind, a doctrine which is by now well-established. See, 
e.g., United States v. Jefferson County Board of Educ., 
372 F.2d 836, 877, 900 (1966), aff’d en banc, 380 F.2d 385 
(5th Cir. 1967), cert, denied, 389 U.S. 840 (1967).10 Lee v. 
Macon County Board of Education, 267 F. Supp 458 
(M.D.Ala. 1967) (3-judge court); United States v. Board 
of Public Instruction of Polk County, Florida, 395 F.2d 
66 (5th Cir., 1968); Kelley v. Altheimer, 378 F.2d 483, 496

10 “The defendants, to the extent consistent with the proper 
operation of the school system as a whole, shall locate any new 
school and substantially expand any existing schools with the ob­
jective of eradicating the vestiges of the dual system and of 
eliminating the effects of segregation.” (372 F.2d at 990)



15

(8th Cir. 1967); Brewer v. School Board of the City of 
Norfolk, 397 F.2d 37 (4th Cir. 1968).

These cases imply no distinction between grade schools 
and higher education. But the court below found this new 
construction doctrine inapplicable to the area of higher 
education on the grounds that: (1) higher education, unlike 
primary and secondary education, is traditionally neither 
free nor compulsory; (2) students choose which institu­
tion of higher education they will attend while, prior to 
“freedom of choice,” children were assigned to their pri­
mary and secondary schools; (3) higher educational insti­
tutions present a “full range of diversity in goals, facilities, 
equipment, course offerings, teacher training and salaries, 
and hiring arrangements . ■ . while grade schools are, in 
principle at least, substantially similar. The court con­
cluded, therefore, that in reviewing a decision regarding 
the construction or expansion of an institution of higher 
education “to determine whether it maximized desegrega­
tion, we would necessarily be involved, consciously or by 
default, in a wide range of educational policy decisions in 
which courts should not become involved.” (App. pp. 7a-8a, 
infra).

The court’s reasoning simply does not withstand analy­
sis. Public institutions of higher education may not be 
completely free, but they are still public institutions, sup­
ported and directed by the state. The fact that education 
is not compulsory in Alabama after the age of 16 should 
make efforts to further the desegregation of institutions 
of higher education less rather than more problematical 
since there is no question of forcing w'hites to attend schools 
with Negroes. In Watson v. City of Memphis, 373 U.S. 529, 
532 (1963), this Court, in holding that delay in the deseg­
regation of public parks and other municipal recreational 
facilities was not warranted, noted that such desegregation



16

did not “present the same kinds of cognizable difficulties 
inhering in elimination of racial classification in schools, 
at which attendance is compulsory, the adequacy of teach­
ers and facilities crucial, and questions of geographic as­
signment often of major significance.” (emphasis added). 
And the opinion noted that the need for delay in desegre­
gation had not been extended to state colleges and univer­
sities, “in which like problems were not presented.” 373 
U.S. at 532 n.4. See supra, p. 14.

The court’s second point likewise has no validity. While 
traditionally children were assigned to their primary and 
secondary schools, after the decisions in Brown v. Board of 
Educ., 347 U.S. 483 (1954), 349 U.S. 294 (1955), the 
Southern school districts almost uniformly changed to 
“freedom of choice” systems, and it was within the context 
of “freedom of choice” that the new construction doctrine 
was deveoloped. See, e.g., United States v. Jefferson County 
Board of Educ., supra, p. 14; Lee v. Macon County Bd. of 
Educ., supra, p. 14; United States v. Board of Public In­
struction of Polk County, Florida, supra, p. 14; Montgom­
ery County Bd. of Educ. v. Carr, 400 F.2d 1 (5th Cir. 1968). 
In Green v. County School Bd. of New Kent County, 391 
U.S. 430 (1968), this Court held that where freedom of 
choice failed to succeed in producing a unitary, non-racial 
system, school systems would have to abandon it in favor 
of zoning or some other system that promised to work 
better. Since, as noted below, “freedom of choice” seems an 
appropriate system for higher education, doctrines such 
as the new construction doctrine, which can be used to 
make freedom of choice succeed in producing a unitary, 
non-racial system, are of particular importance in the area 
of higher education.

The court’s third reason has more colorable validity, 
since public institutions of higher education have tra­
ditionally been supposed to present a greater diversity



17

of opportunities than grade schools. This distinction would 
be of considerable relevance to a decision as to whether 
zoning ought ever be substituted for freedom of choice 
in the area of higher education. But it appears to have 
no relevance to the propriety of the newr construction doc­
trine. The court’s argument is apparently that in deciding 
on construction or expansion in the area of higher educa­
tion, officials must, because of the greater variety in higher 
education, take into account a greater complex of variables 
than in making such decisions on the primary and second­
ary level. This however does not necessarily follow. There 
are numerous complicating factors on the primary and 
secondary level which don’t exist on the higher education 
level: for example, transportation problems (since grade 
school systems have traditionally provided free transporta­
tion), and capacity (since grade schools must serve all 
eligible students, while institutions of higher education 
can adjust their own admission standards to suit their 
capacity). Moreover, even if construction and expansion 
decisions in the area of higher education were more com­
plex, this would not justify the court’s conclusion that it 
should therefore refuse entirely to consider whether such 
a decision adequately took account of the duty to dises­
tablish the dual system of education.

Significantly, the one recent opinion11 dealing with issues 
comparable to this that appellants have found, rejected

11 The only other comparable case plaintiffs have found is Wynn 
v. Trustees of the Charlotte Community College System, 122 S.E. 
2d 404 (N.C.S.Ct. 1961), where the court held it was permissible 
for state funds to be used to build two separate colleges, noting that 
there was no evidence either college would exclude- any student on 
the basis of race. The decision was not grounded on any distinction 
between higher and other education, but rather on the clearly out­
dated and invalid theory that Brown v. Board of Education, supra, 
did not require integration, but merely forbade the exclusion of 
students from the schools of their choice solely because of race.



18

the approach taken by the court below. In Sanders v. 
Ellington, 288 F. Supp. 937 (M.D. Tenn. 1968), an action 
was brought to prevent the University of Tennessee from 
constructing a newr facility for expanding its evening 
course program at Nashville, also the location of the 
predominantly Negro Tennessee A & I State University; 
the court was also asked to order State officials to present 
a plan for the desegregation of the public universities 
of Tennessee. The court clearly held that there was “an 
affirmative duty . . .  to dismantle the dual system of higher 
education which presently exists in Tennessee,” and that 
an “open-door policy . . . alone does not discharge the 
affirmative duty . . . where, under the policy, there is no 
genuine progress toward desegregation and no genuine 
prospect of progress.” The court therefore ordered the 
State defendants to submit “a plan designed to effect such 
desegregation of the higher educational institutions of 
Tennessee, with particular attention to Tennessee A & I 
State University, as to indicate the dismantling of the dual 
system now existing.” (288 F. Supp. at 941, 942.) Signifi­
cantly, the Sanders court noted factors mentioned by the 
court below here: the fact that colleges are neither com­
pulsory nor free, and that students are not assigned but 
may choose where they will attend. But the Sanders court 
found these significant only to the extent they indicated 
that “the simple remedies which might be available to a 
county school board . . . are not available here,” and war­
ranted granting the defendants “a substantial amount of 
time for the submission of such a plan.” (288 F. Supp. at 
943.) Finally, while the Sanders court denied injunctive 
relief against the proposed construction, the opinion makes 
it clear that this is based on the particular facts of the 
case, not on any theory that the construction doctrine is 
inapplicable to higher education. Indeed, the court speci­
fically points out that, “in reaching this decision that in-



19

junctive relief should be denied, I have not grounded it on 
the recent case of Alabama State Teachers Association v. 
Alabama Public School and College Authority . . . , involv­
ing the construction in Montgomery, Alabama, by Auburn 
University, a historically white institution, of a facility 
completely duplicating a historically Negro public college 
in that city.” (288 F. Supp. at 942.)

II.
The Court Below Erred in Upholding the Proposed 

Construction of a Branch of Auburn University in Mont­
gomery Where the Record Shows That It was Planned 
Without Regard to Disestablishment of the Dual System.

The proper role of a court, in reviewing decisions re­
garding new construction,12 is to ensure that the State offi­
cials responsible for planning such construction gave proper 
consideration to the goal of desegregation. It is for these 
officials, not for the court, to make the initial assessment as

12 It is irrelevant whether the proposed college is characterized 
as a new institution in Montgomery or an expansion of the already 
existing institution. The label is unimportant. What is important 
is that any major change in the character of an institution in a 
dual system offers a fresh opportunity to channel that change in 
the direction of integrating the system. There can be no serious 
question that the Auburn Branch is a radical departure from any 
institutions heretofore existing in Montgomery. The University of 
Alabama Extension Center is basically a night school; it does not 
grant degrees; it has an enrollment of 400 or 500 students; its 
assets consist of one building worth about $225,000, equipment 
and furnishings, and a library which Auburn will only rent for 
the interim and which will later be moved to the main campus of 
the University of Alabama. In sharp contrast, the new institution 
is to be a degree-granting, daytime institution (which will also 
have evening courses) ; it will be a multimillion dollar college on 
an entirely new, large campus, with an eventual enrollment of 
15,000 students.



20

to whether planned construction will adequately satisfy the 
duty to disestablish the dual system. In United States v. 
Board of Public Instruction of Polk County, Florida, 395 
F.2d 66 (5th Cir. 1968), the Fifth Circuit discussed the 
necessity for the initial planning for construction by such 
officials to be made with reference to their obligation to dis­
establish the dual system:

The appellee contends that inasmuch as the planning 
for the school was made without reference to race, 
there was no conscious effort on the part of the Board 
to perpetuate the dual system. This does not meet the 
requirements of the court order. There is an affirma­
tive duty, overriding all other considerations with re­
spect to the locating of new schools, except where in­
consistent with “proper operation of the school system 
as a whole,” to seek means to eradicate the vestiges of 
the dual system. It is necessary to give consideration 
to the race of the students. It is clear from this record 
that neither the state board nor the appellee sought to 
carry out this affirmative obligation, before proceeding 
with the construction of this already planned school. 
(395 F.2d at 69)

Further, the court in Polk County emphasized that where 
officials plan new construction without regard to their duty 
to disestablish the dual system, no retroactive assessment of 
the affect of the plan on the dual system, by the officials or 
by the court, can validate it.

The United States contends that the school cannot be 
built at this location until the factors relating to pos­
sible steps assisting in eradicating the former dual 
system are evaluated by the Board having that re­
sponsibility. This has not been done. The conclusory



21

expression of opinion by the superintendent of schools 
that in his judgment the location of this school, long 
since planned, without reference to the requirements of 
Jefferson, would meet those requirements, cannot sub­
stitute for the absence of a planning study and analysis 
made in such manner as to be subject to review by the 
district court that is required under the Jefferson 
ruling.

# * #
The decision as to what is possible without adversely 
affecting the proper operation of the school system as 
a whole must be made by the Board. It should be made 
in such manner as would permit the district court’s 
review of the conclusion reached in order to determine 
whether the requirements of the decree have been fully 
understood and carried out. (395 F.2d at 69-70)

See also Lee v. Macon County Bd. of Educ., 267 F. Supp. 
458, 480-481, 489 (M.D. Ala. 1967); United States v. Jeffer­
son County Bd. of Educ., 372 F.2d 836, 877 (1966), aff’d 
en banc, 380 F.2d 385 (5th Cir. 1967), cert, denied, 389 TJ.S. 
840 (1967); Broussard v. Houston Independent School Dis­
trict, 395 F.2d 817, 822, 823, 824-26 (5th Cir. 1968) (Wisdom, 
J., dissenting.)

It is clear from the record in this case that, in all the con­
versations, meetings, and gathering of information that 
went into planning the establishment of a new institution 
of higher education in Montgomery, no consideration was 
given to the goal of furthering desegregation. See pp. 
6-10, supra. No effort was made to involve members of 
the Negro community in the planning, or to design an in­
stitution responsive to their needs. No thought was given 
to expanding Alabama State rather than the University 
Center, or to coordinating with Alabama State in any



22

significant way, although, these would have been obvious 
possibilities, meriting at least some consideration, had there 
been any concern with desegregation as a goal. And no 
efforts were made to attract a significant Negro student 
population to the proposed Auburn branch. Indeed to date 
recruitment efforts have been directed at white high schools 
to the complete exclusion of Negro high schools.

The opinion of the court below does not argue, as indeed 
it could not, that any consideration was given by appellants 
to disestablishment of the dual system in planning the 
Auburn branch. Instead the court proceeded to make its 
own assessment of the impact of the construction on dis­
establishment and concluded that “it is certainly as reason­
able to conclude that a new institution will not be a white 
school or a Negro school, but just a school, as it is to believe 
that Alabama State would so evolve,” and that “in the 
discharge of the duty to maximize desegregation, the Au­
burn branch is at least arguably as acceptable as any alter­
native proffered by plaintiffs.” (App. IGa-lla, infra.) It is 
not clear that these statements constitute anything more 
than dicta, since the court noted that its review of the back­
ground of the case would “reveal the wisdom of [its] . . . 
conclusion” that courts ought not review construction deci­
sions (App. p. 8a, infra). In any event, to the extent the 
court did make findings, it erred in imposing a burden on 
plaintiffs to prove that a particular alternative to the pro­
posed Auburn branch would be more effective in disestab­
lishing the dual system, and, indeed, in making any inde­
pendent, retroactive assessment of the impact of the pro­
posed plan on the dual system. Once plaintiffs had shown 
that in planning the proposed Auburn branch, defendants 
had not considered disestablishment of the dual system as a 
goal, the burden should have been placed on defendant offi-



23

cials to produce a new plan which did give adequate con­
sideration to disestablishment. See pp. 19-21, swpra.

Finally, even if the burden were properly placed on plain­
tiffs to prove that some alternative to the proposed Auburn 
branch would be more effective in disestablishing the dual 
system, we submit that this burden was satisfied. Under 
the proposed plan a traditionally white university was 
authorized to expand a traditionally white extension center 
to create a liberal arts college “completely duplicating a 
historically Negro public college in [Montgomery],” San­
ders v. Ellington, 288 F. Supp. 937, 942 (M.D. Tenn. 1968). 
Not only would this proposed expansion fail to aid in the 
disestablishment of the dual system; it would perpetuate 
and reenforce that system, by removing presently existing 
economic and geographic pressures on white students in 
Montgomery to attend Alabama State. If instead the ex­
isting funds were used to expand and improve Alabama 
State, that college’s capacity to attract white students would 
be much improved (see E. 843-44). The court below indi­
cates that the Auburn branch would be at least as likely to 
become an integrated institution; but this ignores com­
pletely the fact that Alabama State would then in all likeli­
hood remain a virtually all-Negro institution. While it is 
true that the development of Negro institutions of higher 
education into truly integrated institutions is rare,13 it has 
taken place. West Virginia State College and Bluefield 
State College in West Virginia, and Lincoln University in 
Missouri are examples of historically Negro institutions 
which have become predominantly white.14 Numerous other

13 See generally Jeneks & Riesman, The A cademic Revolution 
469 (New York,'l968).

14 Id.; McGrath, The P redominantly Negro Colleges and Uni­
versities in Transition 12 (Institute of Higher Education, Colum­
bia Univ,, 1965).



24

traditionally Negro institutions of higher education have, 
since 1954, attracted significant numbers of white students.16 
Moreover, one of the reasons that such integration seldom 
does take place is because in most cities in the South where 
a predominantly Negro college exists, there also exists a 
predominantly white college and, where there does not, 
there is a tendency to create a new institution for the white 
community rather than expanding the existing Negro in­
stitution.16

In any event, expansion of Alabama State was not the 
only alternative presented for the court’s consideration be­
low. In their post-trial memorandum appellants suggested, 
for example, that the court might require that there be no 
duplication of courses being offered at Alabama State Col­
lege by. any new college established; or that any new col­
lege coordinate its programs in various areas with Alabama 
State. These and other alternatives are discussed, infra, 
pp. 26-28. What is significant here is that there were many 
alternatives available offering a greater likelihood of de­
segregation than the proposed plan.

The court below noted that at the hearing evidence was 
introduced showing that Auburn would be more suitable 
than Alabama State “because it could offer a wider range 
of courses, greater breadth and depth of faculty, and 
greater physical resources.” (App. 11a, infra). But this 
does not support a conclusion that the creation of an inde­
pendent, duplicative facility constitutes an appropriate de­
cision from an educational point of view, completely apart 
from its effect on the dual system. McGrath, in his recent

16 See, e.g., Clement, The Historical Development of Higher Ed­
ucation for Negro Americans, 35 J. Negro Edue. 299, 303-04 (1966). 
See also McGrath, supra n. 14, at 12.

16 Jencks & Riesman, supra n. 13, at 470.



25

study of predominantly Negro colleges and universities, 
argues that the states:

. . . ought not to maintain two systems of higher edu­
cation, one for Negroes and one for other citizens. 
Quite aside from the legal and moral issues involved, 
segregation in higher education, as well as at other 
levels, is an economically wasteful and debilitating 
practice. More than others, the economically disad­
vantaged states where segregation is most widely prac­
ticed cannot afford to waste their limited resources as 
they now do in duplicating programs, facilities, li­
braries, and plant in two systems of higher education, 
one for Negroes and one for whites . . . .  The mainte­
nance of separate, segregated systems of higher edu­
cation involves economic consequences which neces­
sarily depreciate the entire educational program. 
(McGrath, supra n. 14 at 30).

#  # #

What has been said about the waste in a duplication of 
services in nearby institutions applies with particular 
force to segregated units of the same state systems of 
higher education. (Id. at 140)

CONCLUSION

In conclusion we submit that appellants, having shown 
that the proposed Auburn branch was planned without any 
consideration to disestablishment of the dual system as a 
goal, are entitled to an injunction against the operation of 
Act No. 403, and against the construction or expansion of 
any higher educational facilities until such time as defend­
ants produce for the court’s approval a plan which properly 
takes into account the obligation to disestablish the dual 
system.



26

While it is neither necessary or appropriate at this point 
for this Court, or for the court below, to require any par­
ticular alternative to the proposed Auburn branch, the 
Court can and should require that appellants, in the course 
of developing a plan, seriously consider and explore the 
following alternatives which, we submit, offer far more 
promise of producing a unitary, non-racial system than 
the proposed Auburn branch, while at the same time avoid­
ing wasteful duplication of public facilities for higher edu­
cation in the City of Montgomery.

1. Expansion of Alabama State College.

As indicated swpra, pp. 23-24, expansion of Alabama 
State College is at least an alternative which deserves seri­
ous consideration. Appellants should, for example, con­
sider what affect the proposed infusion of funds would 
have on the ability of Alabama State to provide for the ed­
ucational needs of the entire Montgomery community. In 
addition, appellants should consider the extent to which a 
change in name, an increase in white faculty members, ac­
tive recruitment of students in the white community, and 
other similar efforts would enable Alabama State to at­
tract an integrated student body.

2. D evelopm ent o f a new college in  M ontgom ery in  coordina­
tion w ith the gradual phasing ou t o f Alabama Stale College.

Appellants recognize the difficulty that Negro state col­
leges, whose traditional functions were to provide training 
in teaching and the agricultural and mechanical arts, may 
have in developing into first-rate educational institutions, 
capable of attracting first-rate students.17 To the extent 
that this is true in the particular instance, it offers some 
support for the establishment of a new institution in Mont-

17 See generally Jencbs & Riesman, supra, n. 13, at 428-444, 472- 
73; but see McGrath, supra, n. 14, at 5, for a less critical view.



27

gomery, designed to serve the higher educational needs of 
the Negro, as well as the white community, and ultimately 
to supplant Alabama State College.18 Such a plan should 
presumably envision special remedial and compensatory 
programs at the new institution, as well as special recruit­
ment efforts in the Negro community,19 to ensure that the 
new institution would in fact serve the needs of the entire 
community, Negro as well as white.

3. M erger of the proposed A ub u rn  branch w ith Alabama 
State College.20

Merger might well be an appropriate alternative in view 
of the similarity of the programs of the proposed Auburn 
branch and of Alabama State, and the apparent strength 
of many of Alabama State’s programs.

Under either this or alternative No. 2, listed above, a 
variety of cooperative arrangements might be worked out 
for the transition period.21 For example, arrangements 
might be worked out whereby facilities such as libraries and 
special equipment were shared; programs in different fields 
were coordinated and presented on a joint basis; courses at 
one institution were open to the other’s students, etc.

18 See Jencks & Riesman, supra, n. 13, at 475. But see MeGratli, 
supra n. 14, at 6.

19 See, e.g., Plaut, Plans for Assisting Negro Students to Enter 
and Remain in College, 35 J. Negro Educ. 393 (1966); Wiggins, 
Dilemmas in Desegregation in Higher Education, 35 J. Negro Educ. 
430, 435-36 (1966).

20 See McGrath, supra n. 14, at 6, 24; Pettigrew, A Social 
Psychological View of the Predominantly Negro College, 36 J. 
Negro Educ. 274, 282, 283 (1967).

21 See generally McGrath, supra n. 14, at 101, 140 If.; Branson, 
Interinstitutional Programs for Promoting Equal Higher Educa­
tional Opportunities for Negroes, 35 J. Negro Educ. 469 (1966); 
Patterson, Cooperation Among the Predominantly Negro Colleges 
and Universities, 35 J. Negro Educ. 477 (1966).



28

4. D evelopm ent o f Alabama State College and any new in ­
stitu tion  as com plem entary institu tions w ith d ifferen t 
functions.

Such a plan might, for example, prohibit the new institu­
tion from offering the kinds of programs currently avail­
able at Alabama State; or it might provide for the develop­
ment of Alabama State as an institution providing pre­
college preparation and vocational training, leaving to the 
new institution the establishment of a broad liberal arts 
and professional program on the college level.

As noted above, we do not feel that this Court, or the 
court below, need decide what alternative is the appropriate 
one. We suggest the above simply to indicate the variety 
of promising alternatives that exist. And we submit, in 
sum, that all construction and expansion under Act No. 403 
should be enjoined until defendants have seriously con­
sidered and explored these and other alternatives, and have 
submitted for the court’s approval a plan which properly 
takes into account the obligation to disestablish the dual 
system of higher education in Alabama.

For the foregoing reasons, probable jurisdiction 
should be noted.

Respectfully submitted,

J ack  G reenberg

J am es M. N abrit , III
M elvyn  Zarr

F r a n k l in  E. W h it e

E l iza b eth  B. D u B ois 
10 Columbus Circle 
New York, New York 10019

F eed  D . G ray

352 Dexter Avenue 
Montgomery, Alabama 36104

Attorneys for Appellants



A P P E N D IX



A P P E N D IX  A

Opinion and Judgment Below

I n  t h e  U n it e d  S tates D istr ic t  C ourt  for  t h e  

M iddle  D istr ic t  of A labama 

N o r t h e r n  D iv isio n  

C iv il  A ctio n  N o. 2649-N

A labama  S tate T ea c h er s  A ssociation , a corporation; A l ­
v in  A . H o l m e s ; W illia m  S a n k e y ; A lbert  H a r r is ; S yl­
vester  P r e s s l e y ; and J oe L. R eed , on behalf of them­
selves and all others similarly situated,

Plaintiffs,
vs.

A labama  P u b lic  S chool  and  C ollege A u t h o r it y , a cor­
poration; A lbert  P. B r e w e r , individually and as Presi­
dent of the Authority; E r n e st  S to n e , individually and 
as Vice President of the Authority; R obert B. I ngram , 
individually and as Secretary of the Authority; A gnes 
B aggett, individually and as Treasurer of the Author­
ity; and E. L. W y n n , M . H . M oses, P a u l  S . H olley , 
R. C. B amberg , R edus  C o llier , J o h n  W . Overton , J o h n  
P ace, III, S im  A. T h o m a s , R oberts II. B r o w n , and 
F r a n k  P. S amford , as members of the Board of Trustees 
of Auburn University, and T h e  B oard of T r u stees  of 
A u b u r n  U n iv er sity ,

Defendants.

Before Ge w in , Circuit Judge, and J o h n so n  and P it t m a n , 
District Judges.



2a

Appendix A

J o h n s o n , District Judge:
The plaintiffs in this class action seek to prevent the 

State of Alabama from constructing and operating a four- 
year, degree-granting extension of Auburn University in 
the City of Montgomery, Alabama. Plaintiffs originally 
sought a declaratory judgment as to the invalidity of and 
an injunction against any action under or pursuant to 
Alabama Act No. 243 of 1965 and Alabama Act No. 403 
of 1967.1

1 Alabama Act No. 243 of 1965 authorizes the formation of the 
Alabama Public School and College Authority, a public corpora­
tion, having the power, among other things, “to provide for the 
construction, reconstruction, alteration and improvement of public 
buildings and other facilities for public educational purposes in 
the State, including the procurement of sites and equipment there­
for; to anticipate by the issuance of its bonds the receipt of the 
revenues” from those portions of the state sales tax and state use 
tax that are required to be paid into the Alabama Special Educa­
tional Trust Fund by issuing bonds solely out of and secured by a 
pledge of the said portions of those excise taxes. The Act author­
izes the Authority to issue, and sell bonds not exceeding $116,000,000 
in aggregate principal amount and provides for the allocation of 
proceeds from the sale of the bonds, in the amounts specified 
therein, to educational institutions (including Auburn University) 
named in Section 10 of the Act. Section 10 identifies some of these 
institutions as “Negro.”

Alabama Act No. 403 of 1967 authorizes the Alabama Public 
School and College Authority to issue and sell bonds in the prin­
cipal amount of $5,000,000 in addition to all other bonds thereto­
fore issued or authorized to be issued by the Authority, the net 
proceeds of which “shall be distributed to Auburn University to 
be used by the board of trustees thereof for construction and equip­
ment of physical facilities for conducting a four-year college or 
branch of the University in the City of Montgomery and for the 
support and maintenance of such college for each of the fiscal years 
ending September 30, 1968 and September 30, 1969.”

While originally alleging that both acts were unconstitutional 
as being racially discriminatory and that Act No. 243 was uncon­
stitutional “on its face and as applied,” plaintiffs at the beginning



3a

Appendix A

Jurisdiction is invoked pursuant to 28 U.S.C. §1343 and 
28 U.S.C. §1331. Plaintiffs seek a declaratory judgment 
that Act No. 403 of 1967 is unconstitutional and also seek 
an injunction against the enforcement, operation and ex­
ecution of the said act. A three-judge court was convened 
to hear this cause pursuant to 28 U.S.C. §§2281, 2284.

The defendant Alabama Public School and College Au­
thority is a corporation formed by the defendants the 
Governor, the State Superintendent of Education, and the 
Director of Finance pursuant to Alabama Act of 1965 
No. 243. Defendant is authorized, inter alia, “from time 
to time to sell and issue its bonds, not exceeding One 
hundred sixteen million dollars ($116,000,000) in aggre­
gate principal amount, for the purpose of providing funds 
for construction, reconstruction, alteration and improve­
ment of buildings and other facilities for public educational 
purposes in the State. . . .” Alabama Acts 1965 No. 243, 
§8. Section 10 of the Act sets out detailed appropriations 
of the authorized monies to the various public colleges. 
Alabama Acts 1967 No. 403 authorizes the defendant Au­
thority to issue and sell additional bonds in the principal 
amount of $5,000,000 for the purpose of constructing, 
equipping, establishing, creating, supporting and main­
taining a four-year college at Montgomery under the su­
pervision and control of defendant Board of Trustees of 
Auburn University.

of the hearing on the merits of this case announced an abandon­
ment of their challenge to Act No. 243:

“Mr. Gray: If  it please the Court, the plaintiffs do not insist 
and do not urge upon the Court at this time to declare uncon­
stitutional Aet Number 243, which was adopted on May 4, 
1965, creating the Alabama Public School and College A u­
thorities . . . ”



4a

Appendix A

Plaintiff Alabama State Teachers Association is a non­
profit corporation whose membership consists of approxi­
mately 10,000 Negro teachers, a majority of whom are 
graduates of Alabama State College, located in Mont­
gomery, Alabama, and many of whom are instructors and 
teachers at state-supported Negro colleges and schools in 
Alabama. Additional plainitffs are Negro students and 
alumni of Alabama State College and the Executive Secre­
tary of Alabama State Teachers Association.

This cause is now submitted upon the pleadings, several 
motions to dismiss and supporting briefs, the testimony 
of numerous witnesses and accompanying exhibits and 
post-trial memoranda.

The plaintiffs first contend that Act No. 243 designates 
certain of the schools named therein for use by members 
of that class or race of persons commonly referred to as 
Negroes. Racial classifications are always suspect and 
subject to the most rigid scrutiny and in most cases are 
irrelevant to any acceptable legislative purpose. Loving v. 
Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 
U.S. 184 (1964). We do not reach the issue, however, 
because plaintiffs claim no injury due to and request no 
relief from the operation of that statute. We will, however, 
as plaintiffs request, consider the racial classification set 
forth in Act No. 243 for whatever evidentiary weight it 
may have on the question of the constitutionality of Act 
No. 403.

Plaintiffs’ challenge to Act No. 403 proceeds on two 
grounds. First they argue that to the extent that this act 
authorizes the sale of bonds and the distribution of the 
proceeds thereof to Auburn University to be used for 
the “support and maintenance” of such college for each



5a

Appendix A

of the fiscal years ending September 30, 1968 and Sep­
tember 30, 1969, Act No. 403, when read in conjunction 
with §11 of Act No. 243, constitutes “a pledge of revenues 
of future fiscal years for the purpose of obtaining funds 
with which to meet current operating expenses,” and 
therefore contravenes Constitution of Alabama of 1901, 
Art. 11, §213.

This allegation raises a question of state law, a question 
which by itself would not support the jurisdiction of a 
federal court. While pendent jurisdiction over the state 
law claim might be said to exist because the claim also 
presents a substantial federal question, Brown & Root, 
Inc. v. Gifford-Hill $  Co., 319 F.2d 65 (5th Cir. 1963); 1 
Barron and Holtzoff, Federal Practice and Procedure §23 
(1960); this seems to be a case where that jurisdiction 
should be declined. Sunbeam Lighting Company v. Pacific 
Associated Lighting, Inc., 328 F.2d 300 (9th Cir. 1964); 
Strachman v. Palmer, 177 F.2d 427 (1st Cir. 1949); 5 A.L.R. 
3d 1040, 1058. Neither of the parties has expended energy 
on this issue; thus, because it has not been given a full 
adversary airing, this issue, with repercussions far beyond 
this case, is hardly ripe for determination by this Court. 
Plaintiffs’ claim on this issue is dismissed without prejudice 
to their proceeding in an appropriate state court.

Plaintiffs’ primary attack on Act No. 403 may be stated 
as a syllogism: Alabama historically has had a dual system 
of higher education by law; although no longer supported 
by law, the dual system in fact remains largely intact; 
this Court and the Fifth Circuit recognize in the elementary 
and secondary education area an affirmative duty to dis­
mantle the dual system, Lee v. Macon County Board of 
Education, 267 F. Supp 458 ((M.D. Ala. 1967), aff’d 389



6a

Appendix A

U.S. 215 (1967), United States v. Jefferson County Board 
of Education, 372 F.2d 836 (1966); aff’d en banc 380 F.2d 
385 (5th Cir. 1967), cert, denied 389 U.S. 840 (1967) ; that 
duty is equally applicable to higher education; that duty 
requires officials to utilize new construction or expansion 
of facilities as an opportuniy to dismantle the dual system; 
the history and operation of Acts Nos. 243 and 403 indi­
cate that in planning the construction of the Auburn branch 
at Montgomery defendants did not maximize desegrega­
tion; therefore, their action is unconstitutional and should 
be enjoined.

At the outset it should be noted that this argument 
presents a case of first impression. To our knowledge, no 
court in dealing with desegregation of institutions in the 
higher education area has gone farther than ordering non- 
discriminatory admissions. That is also as far as Congress 
went in the 1964 Civil Rights Act.2 The Department of 
Health, Education and Welfare has also largely limited its 
concern to admissions policies in administering Title 6 of 
the 1964 Civil Rights Act.3

We too are reluctant at this time to go much beyond 
preventing discriminatory admissions. Although much of 
plaintiffs’ argument is valid, several faulty premises lead 
us to reject the conclusion they urge upon us. We would 
judicially notice that Alabama has traditionally had a 
dual system of higher education. Furthermore, we find

2 42 U.S.C. §2000c-4(a) (2). Compare subsection (2) with sub­
section (1), which seems to authorize a wider range of civil action 
by the Attorney General in the elementary and secondary school 
area.

3 45 C.F.R. §80.4(d). Compare subsection (d) with subsection 
(c) which for elementary and secondary schools requires a plan 
for desegregation. Pursuant to this, H.E.W. has compiled an 
elaborate set of guidelines. See 45 C.F.R. §181 (1967).



7a

Appendix A

as a fact that the dual system in higher education has not 
been fully dismantled. The law is clear also that the State 
is under an affirmative duty to dismantle the dual system. 
Indeed, in Lee v. Macon County Board of Education, supra, 
we required the state colleges and junior colleges to refrain 
from discrimination in admissions and to begin faculty 
desegregation. We do not agree, however, with the charac­
terization of the college authorities’ conduct, nor do we 
agree that the scope of the duty should be extended as far 
in higher education as it has been in the elementary and 
secondary public schools area.

Plaintiffs fail to take account of some significant differ­
ences between the elementary and secondary public schools 
and institutions of higher education and of some related 
differences concerning the role the courts should play in 
dismantling the dual systems. Public elementary and 
secondary schools are traditionally free and compulsory. 
Prior to “freedom of choice,” children were assigned to 
their respective schools. This could be done with equanim­
ity because, in principle at least, one school for a given 
grade level is substantially similar to another in terms of 
goals, facilities, course offerings, teacher training and 
salaries, and so forth. In this context, although reluctant 
to intervene, when the Constiution and mandates from 
the higher courts demanded it, we felt that desegregation 
could be accomplished, and that the requirements of the 
law would be met, without our being involved in a wide 
range of purely educational policy decisions. Accordingly, 
we felt, in dealing with the problem of desegregating the 
elementary and secondary public schools, that we could 
and should review decisions concerning the impact of site 
selection for new construction or expansion without over­
reaching our area of competence.



8a

Appendix A

Higher education is neither free nor compulsory. Stu­
dents choose which, if any, institution they will attend. In 
making that choice they face the full range of diversity in 
goals, facilities, equipment, course offerings, teacher train­
ing and salaries, and living arrangements, perhaps only 
to mention a few. From where legislators sit, of course, 
the system must be viewed on a statewide basis. In decid­
ing to open a new institution or build a branch or expand 
an existing institution, and in deciding where to locate 
it, the legislature must consider a very complicated pattern 
of demand for and availability of the above-listed variables, 
including, also, impact on the dual system. We conclude 
that in reviewing such a decision to determine whether it 
maximized desegregation we would necessarily be involved, 
consciously or by default, in a wide range of educational 
policy decisions in which courts should not become involved. 
A brief review of the background of this case will, we 
think, reveal the wisdom of this conclusion.

At the present time there are four institutions of higher 
learning in Montgomery: two private—Huntingdon Col­
lege and Alabama Christian College—and two public— 
Alabama State College and the University of Alabama 
Montgomery Extension Center. The Center does not grant 
degrees; its offerings are similar to those of a junior 
college. Alabama State is a predominantly Negro four- 
year liberal arts college with an emphasis on education 
of teachers.

Interest in another state-supported institution in Mont­
gomery was initially generated in the local Chamber of 
Commerce. A committee was appointed to determine the 
need for such a school. Having determined that the need 
existed, they proceeded to investigate ways and means.



9a

Appendix A

Apparently it was assumed from the beginning* that expan­
sion of the Alabama Extension Center was the way to 
proceed. Thus, University of Alabama officials were ap­
proached to discuss their willingness to undertake an 
expansion. The University determined that it had sufficient- 
commitments with other branch expansions. At that point, 
Auburn University was approached and it agreed to under­
take the project. The University of Alabama agreed to 
cooperate in the transition from the University Center to 
the new operation. A Montgomery legislative delegation 
was then successful in securing a legislative appropriation 
for the project. Prior to this litigation a vice president 
for the Auburn branch was nominated. He submitted an 
academic plan that projected a long-range enrollment of 
15,000 students. Current plans call for undergraduate 
majors in Liberal Arts, Business, and Teacher Education, 
as well as graduate work in appropriate areas, e.g., Educa­
tion, Business Administration, and Political Science.

Plaintiffs make a number of contentions concerning 
this history. They maintain that the reason for having a 
new college in Montgomery was to provide for white stu­
dents in the area. To the extent that this may mean “to 
provide for white students only,” the record does not bear 
them out. Plaintiffs rely heavily upon testimony that 137 
students commuted from Montgomery County for the 
purpose of attending the Alexander City State Junior 
College located at Alexander City, Alabama, although 
Montgomery County is not supposed to be in that school’s 
geographic area. However, it is noted that 12 of those 
137 students are Negroes, and there is nothing in the record 
now before this Court to indicate that those Negroes, if 
they so desire, will not be absorbed into the new Auburn



10a

Appendix A

branch in Montgomery along with other Negroes and 
whites.

Plaintiffs further contend that inadequate consideration 
was given to how the proposed Auburn branch might be 
operated so as to eliminate the dual school system and that, 
because of this, the new college has become and will continue 
to be an identifiably “white” institution. This contention 
is based partly on the assertion that Auburn University is 
an identifiably “white” institution. In a sense that is so, 
but in that sense nearly every existing institution is 
“identifiable.” If such identity precludes expansion, none 
could expand. Plaintiffs’ contention that inadequate at­
tention was given to desegregation is also based on defen­
dants’ failure to give serious consideration to expanding 
Alabama State College as an alternative to establishing 
the Auburn branch. But this argument overlooks the fact 
that Alabama State is at least as identifiably “black” as 
Auburn is identifiably “white.” In terms of eliminating 
the dual school system, one label is no more preferable 
than the other.

We thus reject plaintiffs’ conclusion that, when the new 
college is put into operation, Montgomery will have two 
colleges—one Negro, one white. As plaintiffs themselves 
indicate: “In terms of anything heretofore existing in 
Montgomery, the Auburn branch will be for all practical 
purposes a ‘new institution.’ ” It is certainly as reasonable 
to conclude that a new institution will not be a white school 
or a Negro school, but just a school, as it is to believe that 
Alabama State would so evolve.

Much of the above discussion is based on speculation; 
this is necessarily true because much of plaintiffs’ argu­
ment is based on speculation. However, the discussion



11a

Appendix A

does serve to show that in the discharge of the duty to 
maximize desegregation, the Auburn branch is at least 
arguably as acceptable as any alternative proffered by 
plaintiffs.

Defendants apparently did not seriously evaluate Ala­
bama State College’s potential as an alternative. But at 
the hearing evidence was introduced that tended to show 
that Auburn would be more suitable for the purposes en­
visioned because it could offer a wider range of courses, 
greater breadth and depth of faculty, and greater physical 
resources. It was also considered important by the edu­
cator witnesses that Auburn had higher admission and 
transfer requirements. Some evidence that the preference 
for Auburn’s offerings over those of Alabama State was 
based on educational grounds is the fact that defendants 
rejected an offer to operate the branch from Troy State 
University, an institution not unlike Alabama State except 
that it is larger and is traditionally predominately white.

Auburn University has been ordered by this Court to 
admit all qualified Negroes on terms consistent with the 
equal protection clause of the Fourteenth Amendment. 
Franklin v. Parker, 223 F. Supp. 724 (M.D. Ala. 1963), 
modified and aff’d 331 F.2d 841 (5th Cir. 1964). It would 
appear that Auburn has abided and will continue to abide 
by that order in good faith. Testimony indicated that it 
has recruited and is continuing to recruit more Negro 
faculty members.

We conclude, therefore, that as long as the State and 
a particular institution are dealing with admissions, faculty 
and staff in good faith the basic requirement of the affirma­
tive duty to dismantle the dual school system on the college 
level, to the extent that the system may be based upon 
racial considerations, is satisfied.



12a

Appendix A

This is not to suggest that we view the problem as 
merely personal rather than systematic. As plaintiffs indi­
cated, nondiscriminatory admissions in higher education 
are analogous to a freedom-of-choice plan in the elementary 
and secondary public schools. We are also cognizant that 
recent Supreme Court decisions4 have cast doubt on the 
continued viability of freedom of choice in the public 
schools. But we do not interpret those decisions as apply­
ing to the operation of an education system on a college 
level. Freedom to choose where one will attend college, 
unlike choosing one’s elementary or secondary public school, 
has a long tradition and helps to perform an important 
function, vis., fitting the right school to the right student.

We believe that an effective beginning has been made at 
Auburn to dismantle the racial characteristics of that 
school system and that, as effective desegregation plans 
are developed in the elementary and secondary public 
schools, the problem will probably resolve itself in the 
case of higher education. If the Auburn branch at Mont­
gomery is administered as “just a school,” as we are as­
sured it will be and as we are confident it will be, our 
conclusions as herein outlined will receive significant con­
firmation.

Accordingly, it is the Order, J u d g m en t  and D ecree  of 
this Court that the challenged statute, Alabama Act No. 
403, 1967 Legislature, is not unconstitutional on its face or 
as applied to plaintiffs; it is further Ordered that the relief

4 Green v. County School Board of New Kent County, 36 U.S.L. 
Week 4476 (U.S. May 27, 1968), and the companion cases Monroe 
v. Board of Commissioners of the City of Jackson, 36 U.S.L. Week 
4480, and Raney v. Board of Education of Gould School District, 
36 U.S.L. Week 4483.



13a

Appendix A

h e r e in  so u g h t b y  p la in t i f f s  b e  a n d  th e  sa m e  is  h e re b y  d e ­
n ie d .

It is  f u r th e r  Ordered t h a t  th e  c o s ts  in  th is  p ro c e e d in g  be  
a n d  th e y  a r e  h e re b y  ta x e d  a g a in s t  th e  p la in t i f f s ,  f o r  w h ich  
e x e c u tio n  m a y  is su e .

Done, this the 26th day of July, 1968.

W alter  P. G e w in  
United States Circuit Judge

F ra n cis  J o h n so n  
United States District Judge

V ir g il  P it t m a n  
United States District Judge



14a

APPENDIX B

R acial I d e n t it y  of S tu d en ts  at S tate S en io r  C olleges 
and U n iv e r sit ie s  in  A labama , F all , 1967

Name of Institution Students Enrolled by Race
White Negro

Alabama A. & M. 15 1,960
Alabama State 2 1,731
Florence 2,938 67
Jacksonville 4,988 38
Livingston 1,296 17
Troy 3,820 62

Total 13,059 3,875
[Taken from Part I of P-1 to Dr. Stone’s Deposition,

R. 693, App. D, infra p. 17a]

Auburn University
White Negro

Undergraduate 11,979 28
Graduate 1,114 13

13,093 41
[Taken from P-1 to Dr. Pkilpott’s Deposition, R. 105,

106]

White Negro
University of Alabama 14,706 193
Alabama College 2,451 2
University of South Alabama 3,084 150

(Undergraduate Enrollment Only)
[Taken from App. C, infra]



15a

A P P E N D IX  C

The following material represents part of a summary 
of estimates submitted in compliance reports by most col­
leges and universities to the U. S. Office for Civil Rights 
for the fall of 1967 as reprinted in The Chronicle of Higher 
Education, April 22, 1968.

W h it e , N egro U ndergraduates at C olleges E n r o llin g  500 
or M ore, as C o m piled  from  R epo rts  to 

U.S. O f f ic e  for  C iv il  R ig h t s

Alabama White Negro Other

Alabama A&M C .... ............. 4 1,884 0
Alabama C ........................—-.....  2,451 2 5
Alabama St C ............. -........ 2 1,732 0
Alexander City St JC ....... . 852 24 0
Auburn U .......................-..... ..... 11,979 28 24
Birmingham Southern C ...... .....  1,049 19 0
Enterprise St JC ---- --------- 817 30 2
Gadsden St JC ............ ........ .....  2,080 54 0
Geo C Wallace St JC ........... 652 16 1
Huntington C ........................ 937 2 0
Jacksonville St U ................ .....  4,884 37 13
Jefferson St JC ...................~.....  3,437 163 1
John C. Calhoun St JC ....... .....  1,401 72 0
Livingston St C .................... .....  1,300 20 8
Miles C ......................-.......... 1 1,024 0
Mobile St J C ......................... 0 749 0
Northeast Ala St JC ........... 755 0 0
Oakwood C ___ __________- 3 620 3
St Bernard C .................. ..... 783 1 2
Spring Hill C ........ ............... .... . 1,011 42 2
Stillman C ...... .............. ....... 2 709 2
Troy St C ............................. .... . 2,833 9 0



16a

Appendix C

Alabama White Negro Other

Tuskegee Inst ........ ..... .....- 26 2,885 127
U of Alabama ........... .......-._......  14,706 193 35
U of South Alabama ........... ......... 3,084 150 2
Wenonah St JC .................. 0 702 0
Wm L Yancey St JG ........ ........  973 20 2



A P P E N D IX  D

[Taken from P-1 to Dr. Stone’s Deposition, R. 693]
RACIAL IDENTITY OF STUDENTS AND FACULTY MEMBERS OF 
JUNIOR COLLEGES, TRADE SCHOOLS AND COLLEGES UNDER 
SUPERVISION AND CONTROL OF THE ALABAMA STATE BOARD 
OF EDUCATION, FIRST QUARTER OR FIRST SEMESTER, 1967-681

Students Enrolled by Race Teaching Staff by Race
Name of Institution White Negro Other Total White Negro Other Total

I. Senior Colleges
Alabama A. & M. 15 1,960 1 1,976 12 90 8 110
Alabama State 2 1,731 0 1,733 2 75 8 85
Florence 2,938 67 2 3,007 187 2 0 189
Jacksonville 4,988 38 18 5,044 164 3 6 173
Livingston 1,296 17 2 1,315 60 0 0 60
Troy 3,820 62 23 3,905 159 2 1 162

Total 13,059 3,875 46 16,980 584 172 23 779
II. Junior Colleges

Alexander City 932 26 0 958 40 0 0 40
John C. Calhoun 1,401 72 0 1,473 69 0 0 69
Jefferson Davis 486 31 0 517 18 0 0 18
Enterprise 814 30 3 847 36 0 0 36
Gadsden 2,089 54 0 2,143 93 0 0 93
Patrick Henry 346 20 0 366 19 0 0 19
Jefferson State 8,432 163 1 3.596 173 0 0 173
Mobile 0 790 0 790 2 31 1 34
Northeast Alabama 753 0 0 753 33 0 0 33
Northwest Alabama 484 5 0 489 22 0 0 22
Snead 405 0 0 405 26 0 0 26
Southern Union 459 12 1 472 26 0 0 26
George C. Wallace 665 16 1 682 34 0 1 35
Wenonah 0 702 0 702 1 37 0 38
William L. Yancey 975 20 3 998 40 0 0 40

Total 13,241 1,941 9 15,191 632 68 2 702
1 Information not available prior to 1967-68. No information available on administrative personnel.



Students Enrolled by Race
Name of Institution White Negro Other Total
III. Trade Schools

Ala. Inst, of Avia. Tech. 260 4 0 264
Ala. School of Trades 1,131 9 1 1,141
Harry M. Ayers 245 27 2 274
Bessemer 381 111 0 492
John C. Calhoun 583 34 0 617
Carver 0 172 0 172
J. F. Drake 2 172 0 174
Gadsden 2 174 0 176
Richmond P. Hobson 152 1 0 153
J. F. Ingram 358 200 0 558
William Rufus King 170 7 0 177
Douglas Mac Arthur 241 13 0 254
Muscle Shoals 164 27 0 191
Northwest Alabama 290 3 0 293
N. F. Nunnelley 182 39 0 221
Opelika 439 56 0 495
John M. Patterson 313 8 0 321
Ed E. Reid 180 23 0 203
Shelton 321 18 1 340
Southwest State 509 13 2 524
Sparks 165 33 0 198
Councill Trenholm 0 556 0 556
Tuscaloosa 0 192 0 192
Walker County 169 25 0 194
George C. Wallace (Dothan) 348 41 0 389
George C. Wallace (Cullman) 166 3s 0 169
W enonah 0 291 0 291

Total 6,771 2,252 6 9,029
Grand T o t a l 33,071 8,068 61 41,200

2 Applied but not enrolled as of date report was made.

Teaching Staff by Race
White Negro Other Total

20 1 0 21
32 0 0 32
16 0 0 16
28 0 0 28
44 0 0 44

0 17 0 17
1 18 0 19
0 13 0 13

13 0 0 13
17 1 0 18
14 0 0 14
20 1 0 21
15 0 0 15
23 0 0 23
15 1 0 16
31 0 0 31
26 0 0 26
10 0 0 10
28 0 0 28
35 0 0 35
13 0 0 13
1 17 0 18
0 13 0 13

16 0 0 16
30 0 0 30
13 0 0 13
0 23 0 23

461 105 0 566
1,677 345 25 2,047

k
T3
a

cop



MEILEN PRESS INC. —  N. V. C. « ^ ^ » 2 1 9