# Rebecca E. Henry v. The Clarksdale Municipal Separate School District > Court of Appeals for the Fifth Circuit · March 6, 1969 · 409 F.2d 682 URL: https://www.frixlaw.com/law-library/cases/9454463 ## Case - **Full name:** Rebecca E. HENRY Et Al., Appellants, v. the CLARKSDALE MUNICIPAL SEPARATE SCHOOL DISTRICT Et Al., Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** March 6, 1969 - **Citations:** 409 F.2d 682; 1969 U.S. App. LEXIS 13365 - **Precedential status:** Published - **Opinion:** Dissent by Cox - **Judges:** Wisdom, Thornberry, Cox - **Cited by:** 67 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454463 ## Opinion text WILLIAM HAROLD COX, District Judge (dissenting). This school case was argued before and presented to this Court on May 25, 1966, with the other school eases presented to and decided by the Court in what is generally known as the Jefferson decision. 1 This case has been voluntarily held through the intervening time by the Court without any effort to dispose of it prior to this time. On August 10, 1965, Honorable Claude F. Clayton, as trial judge, 2 issued an opinion and entered a consequent order for a permanent injunction to end all aspects, of segregation of the public schools in Clarksdale, Mississippi. On December 18, 1965, another opinion was issued, and an order was entered for the final approval of school plans for the year 1965-1966. Notice of appeal to this Court was given by the plaintiffs “from this Court’s order entered December 14,1965.” The entire record with transcripts and exhibits was designated by appellants, and it is presumed that they complain of and appeal from the opinions and orders previously stated. The 1965-1966 school year has long since passed, and school laws have been updated and strengthened on several occasions in the interim. The people of Clarksdale have acquiesced in the mandate of the Supreme Court in its Brown decision and have displayed a good faith effort in this record to respect and comply with such requirements. The trial judge very carefully and very thoroughly and very skillfully assayed all of the facts and circumstances in this case in such school plan, now four years old, with full knowledge of the law and his judicial obligation in the connection. A completely voluntary advisory opinion by this Court under the circumstances would be and is unwarranted and improper. The trial judge not only knew the law, but knew facts and circumstances and drew inferences which unquestionably support his sound decision and judgment in this case. Clarksdale has a very nearly equal Negro and white population, and also has a very large Chinese population and even a large Indian population in the area. These school zones which were set up in these school plans followed natural barriers such as a railroad on an elevated right-of-way running diagonally (northeast to southwest) through and bisecting the city; another railroad dividing the southern part of the city, and Sunflower River dividing the city on the west. An effort was made by appellants to' convince the Court that some of these lines were gerrymandered, but the facts clearly show in this record that city streets were used as dividing lines for the school zones, and that in many cases white *691 people lived on both sides of the street; and that when they found themselves in a particular school zone that the children were obliged to attend schools in that zone regardless of predominance of race. The highly experienced and well informed trial judge carefully examined these plans and approved them for the school year indicated and observed that the plaintiffs had nothing better to offer toward complete eradication of segregation from the attendance center involved. The opinions and orders of the trial judge were carefully drafted to comply with all of the requirements of Civil Rule 52(a) as to finding of facts and conclusions of law where injunctions are involved. There is not a case cited by counsel, or to be found in the majority opinion of the Court in this case, or that has been found on independent research to support any inference or conclusion to the effect that these school zones, as contained in these school plans, with these perfectly natural boundaries and barriers, should not have been accepted and approved as they were at the time by the Court. The accusations of the plaintiffs that these appellees had anything whatever to do with the acquisition by the county of some dilapidated buildings for use of the land as a public park, 3 and that these appellees had anything whatever to do with the municipality changing its boundary as having any effect upon these plans is completely without merit as the trial judge properly held. There was simply nothing that the trial judge did in this case which is not abundantly supported as to its propriety by facts and circumstances in this record. 4 It is simply not for this Court to usurp the function of the trial court in making its own findings and conclusions of the facts and circumstances in this case independently of the findings and conclusions of that able trial jurist. It must be remembered that the United States Court of Appeals is a creature of statute, and is vested with only statutory appellate jurisdiction as an appellate court, and not as a court of original jurisdiction as a trial court. 28 U.S.C.A. § 1292 . In an injunction case, a plaintiff is entitled to such relief as may be justly due him at the time of the trial of the case, and not to a declaratory expression by this Court on a gratuitous basis, without regard to the facts and circumstances existing at the particular time, which may or not justify a trial judge as knowledgeable of the law, and certainly more familiar with the facts, to reach an entirely different conclusion. Surely, the Green case 5 and the Monroe case 6 may be expected to receive careful analysis and intelligent and proper consideration and application by the trial court when called upon to consider and apply its criteria; but there is surely nothing to be found in either of those cases which can be safely said to condemn the plans which were approved in 1965 by the trial court for the 1965-1966 school year in this case. The facts as disclosed in this record simply do not support any such conclusion or inference to the contrary here. 7 *692 There is no evidence in this record that anybody did anything in this school district to effect the vested rights of any colored child or to affect the resulting de facto segregation. Certainly nothing has been done under any law, or by force of any public authority or power to even contribute thereto. This Court is called upon to pass judgment on a plan for these Clarksdale schools now four years old. These plans will require and doubtless receive some necessary updating. The plan in suit surely does not aid or encourage or foster or preserve any aspect of segregation of the races under any sort of compulsion. An honest application of freedom of choice as a sound American principle should certainly satisfy all vested rights of all persons. Under the Green decision, it is surely the non-delegable duty of the school board and nobody else to devise a sound workable school plan in compliance with existing decisional law. No court has yet said that there must be forced mixing of the races in any particular ratio contrary to the expressed wishes of students and parents of both races! There could not be much, either constitutional or American, in such a judicial fiat. When the Court finds, as the trial court here found, that the board was acting in good faith and that its plan had real prospects for dismantling the state imposed dual system at the earliest practicable date, then the plan would meet all requirements of the last announcement of the Supreme Court on this subject. The principle of bona fide de facto segregation has been approved in four Circuits and the Supreme Court has never said aught to the contrary. In Bell v. School City of Gary, Indiana, (7CA) 324 F.2d 209 , cert. denied 377 U.S. 924 , 84 S.Ct. 1223 , 12 L.Ed.2d 216 , it is said: “Plaintiffs are unable to point to any court decision which has laid down the principle which justifies their claim that there is an affirmative duty on the Gary School System to recast or realign school districts or areas for the purpose of mixing or blending Negroes and whites in a particular school.” In Gilliam v. School Board of City of Hopewell, Virginia, (4CA) 345 F.2d 325 the Court held: “The Constitution does not require the abandonment of neighborhood schools and the transportation of pupils from the area to another solely for the purpose of mixing the races in the schools.” That principle was followed in Deal v. Cincinnati Board of Education, (6CA) 369 F.2d 55 , cert. denied 389 U.S. 847 , 88 S.Ct. 39 , 19 L.Ed.2d 114 ; and in Downs v. Board of Education, (10CA) 336 F.2d 988 , cert. denied 380 U.S. 914 , 85 S.Ct. 898 , 13 L.Ed.2d 800 . The same result was reached in Gilliam v. School Board of City of Hopewell, Virginia, supra, where the opinion of the trial court was vacated without opinion on such question in 382 U.S. 103 , 86 S.Ct. 224 , 15 L.Ed.2d 187 , because of a lack of an evidentiary hearing in the trial court. The case at bar was accorded a full evidentiary hearing by an experienced trial judge far more competent than any member of this panel to weigh and judge the problem from the cold pages of this record. The principle of freedom of choice was heralded in the Jefferson decisions which were companion cases to this case and were argued and presented to this Court at the same time. There is nothing wrong with that principle as a means of uprooting every vestige of state enforced segregation. The trouble with the plan not working in most instances is oeca *693 sioned by an insincere, less than halfhearted, effort on the part of some school authorities to see that such plan really worked. No devious devices should be allowed to be engrafted upon such a plan to keep it from being an honest expression of the free will and choice of the parent and child as to the school to be attended. 8 If these school plans in Clarksdale afforded a child a freedom of choice as to the desired attendance center (as does the Jefferson plan), such a plan would seem impervious to any just criticism. It is incumbent upon the board, as experienced school people, to devise a plan which will “work” within valid constitu-. tional limits. It should not be necessary for the public tó have any school closed, or any new school built just to accommodate a workable plan, but the board should have the power and authority to permit transfers from one zone to another within limits of existing facilities and without discrimination as to race. These observations, in response to suggested changes in the plan contained in the majority opinion, are doubtless vulnerable to. the same criticism as being dicta, if not obiter dicta. The suggestion of the majority that the board consider “incorporating a majority-to-minority transfer provision in its plan” is with deference a distortion of the farthest reaches of Brown and is completely untenable as a sound principle of constitutional law. 9 The principles announced in Green are: “[That] it is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state imposed segregation;” that “where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system ‘at the earliest practicable date,’ then the plan may be said to provide effective relief.” These principles are simply not consonant with the newly devised principles found for the first time in the majority opinion here. The majority do not reverse or vacate the opinion and order of the trial court, but remand the case to the trial court and in such respects I concur. But insofar as the trial court is directed to enter a judgment consistent with and in conformity to the majority opinion, I very respectfully dissent: First, because the majority opinion in this state of record is mere dicta, if not obiter dicta; second, because the majority opinion assumes that the law requires forced mixing in these Clarksdale schools in some undesignated ratio as to race to satisfy present requirements as to desegregation of these schools as a matter of decisional law. Obviously, the delay of the majority in awaiting an announcement of any such principles from the Supreme Court of the United States to support their majority opinion was not fruitful or rewarding. Green said that in 1968 a plan had to *694 promise meaningful and immediate progress toward disestablishing state imposed segregation. Judge Clayton thought and found as a fact in 1965 that this plan did exactly that to his entire satisfaction and the plaintiffs then had nothing better to offer as he said after hearing all of the testimony and receiving all of the evidence in the case, and such finding may not be arbitrarily and capriciously brushed aside as clearly erroneous when it is so abundantly supported, as it is, by the proof in this record. I would affirm and remand. . United States v. Jefferson County Board of Education, et al., (5 CA) 372 F.2d 836 , 380 F.2d 385 , cert. denied 389 U.S. 840 , 88 S.Ct. 67 , 19 L.Ed.2d 103 . . Honorable Claude F. Clayton was inducted on November 24, 1967 to the bench of the United States Court of Appeals for the Fifth Circuit. . This park along both sides of Sunflower River as a recreation project will cost one and one-third million dollars according to recent estimate. . Yet Civil Rule 52(a) provides: “Finding of facts shall not be set aside unless clearly erroneous and due regard shall he given to the opportunity of the trial court to judge of the credibility of the witnesses.” . Green v. County School Board of New Kent County, Virginia, 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 . . Monroe v. Board of Commissioners of Jackson, Tennessee, 391 U.S. 450 , 88 S.Ct. 1700 , 20 L.Ed.2d 733 . . The trial court, with all of the facts and circumstances clearly before it, and being impregnable to any criticism under the clearly erroneous rule, found as a fact on a full evidentiary hearing that the plans of this Clarksdale school were proper, and afforded an education to each child at an attendance center as a part of a unitary system completely without regard to race and in compliance with the Brown cases. The Court further found that the natural barriers to these school zones constituted the lines of their boundaries; and that such boundaries were not gerrymandered, and that the school authorities had done noth *692 ing to make these boundaries to these school zones work in any particular way. These school zones were designed and grew gradually through the years by reason of economic destiny of the community with nothing else in view. The trial judge thus approved these zones where disparities in population as to race naturally grew and existed, and were accepted as de facto segregation. The facts and circumstances in tlie Green and Monroe decisions do not condemn or even disapprove such conclusion under the facts here. The Green and Monroe principles may not be distorted to say that a given percent or ratio of children as to race must exist as a mathematical equation under all circumstances to meet the requirements of law. . Significantly, as a declaration of Congressional policy in “Departments of Labor, and Health, Education and Welfare Appropriations Act, 1969” (P.L. 90-557; 82 Stat. 969 ; Title IV-General Provisions), it is said: “Sec. 409. No part of the funds contained in this Act may be used to force busing of students, abolishment of any school, or to force any student attending any elementary or secondary school to attend a particular school against the choice of his or her parents or parent in order to overcome racial imbalance. Sec. 410. No part of the funds contained in this Act shall be used to force busing of students, the abolishment of any school or the attendance of students at a particular school in order to overcome racial imbalance as a condition precedent to obtaining Federal funds otherwise available to any State, school district, or school.” . An unchanged Fourteenth Amendment to the United States Constitution was not violated said the Chief Justice of the United States speaking for every member of the Court in 1927 where it was complained that the state had a policy based on organic law and statutes which excluded a colored child from attendance at a white school. Gong Lum v. Rice, 275 U.S. 78 , 48 S.Ct. 91 , 72 L.Ed. 172 . In Brown, the Court decided the case as one of first impression. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454463. Public record. Not legal advice.