# Shirley Bivins v. Bibb County Board of Education, Etc., Oscar C. Thomie, Jr. v. Houston County Board of Education > Court of Appeals for the Fifth Circuit · April 16, 1970 · 424 F.2d 97 URL: https://www.frixlaw.com/law-library/cases/9455457 ## Case - **Full name:** Shirley BIVINS Et Al., Appellants, v. BIBB COUNTY BOARD OF EDUCATION, Etc., Et Al., Appellees; Oscar C. THOMIE, Jr., Et Al., Appellants, v. HOUSTON COUNTY BOARD OF EDUCATION, Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** April 16, 1970 - **Citations:** 424 F.2d 97 - **Precedential status:** Published - **Opinion:** Opinion of the court - **Judges:** Coleman, Wisdom, Simpson - **Cited by:** 16 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/9455457 ## Opinion text PER CURIAM. These two school desegregation cases differ from many which this Court has lately reversed and remanded for compliance with Singleton v. Jackson Municipal Separate School System (and consolidated cases en banc), 5 Cir. 1969, 419 F.2d 1211 , Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19 , 90 S.Ct. 29 , 24 L.Ed.2d 19 , and now Carter v. West Feliciana Parish School Board, January 14, 1970, 396 U.S. 290 , *98 90 S.Ct. 608 , 24 L.Ed.2d 477 , for these two cases were among the cases consolidated in our en banc decision in Singleton. At that time the school boards were seeking approval of their freedom-of-choice plans in face of an attack by the private plaintiffs and the Department of Justice. 1 This Court included these two cases in the Singleton mandate, reversing and remanding them for compliance with Alexander v. Holmes County and the instructions of the Singleton decree. On remand, the school board, HEW, and the private plaintiffs each prepared and submitted new integration plans. The district court instituted the right of majority to minority transfer and faculty integration as of February 1 in accordance with the ratio set forth in Singleton, but in all other respects reinstated and reapproved the freedom-of-choice plans that had been presented to us in Singleton. The district court concluded that with these modifications, the freedom-of-choice plans fully comported with Alexander v. Holmes County, our decree in Singleton, and the Supreme Court’s decree in Carter . The plaintiffs have now filed a motion requesting injunctive relief pending appeal; a summary reversal of the district court’s orders; our order implementing plaintiffs’ proposed plans and retaining jurisdiction; and an award of costs and reasonable attorneys fees. The Bibb County School Board responded, opposing the motion. Houston County has filed no response. We conclude that the district court’s order of January 21, 1970, did not satisfy this Court’s order in Singleton to comply with Alexander v. Holmes County. BIBB COUNTY. In Bibb County, about twenty-five per cent of the Negro students are enrolled in formerly all-white schools. Only one white student is enrolled in a formerly all-Negro school, of which there are twenty. What Singleton approved in Bibb County was the district court’s “bold and imaginative innovations” which had resulted in some substantial voluntary desegregation. About nine per cent of the white students were participating or waiting to participate on a part-time basis in virtually all of the all-Negro schools in response to the incentive of special courses there such as home-making, industrial arts, remedial reading, and driver education. Nevertheless despite our approval of the district court’s efforts, we concluded that there should be more of a “merger of student bodies”, that is, greater student desegregation. The subsequent order requiring faculty integration and majority to minority transfer meets only part of our mandate. HOUSTON COUNTY. Faced with a freedom-of-choice plan for Houston County, the Court again reversed and remanded for compliance with Singleton and Alexander. The private plaintiffs had made various requests and objections. Singleton stated: “As in the Bibb County case, these are all questions for consideration on remand within the scope of such unitary plan as may be approved.” That language was intended to make clear that Singleton did not approve the freedom-of-choice plan then in existence, but required the submission of new plans. About twenty per cent of the Negro students in Houston County attend formerly all-white schools. No whites attend the formerly all-Negro schools except on a part-time basis as in Bibb County. Thus, Houston County also fails to comply with the Singleton mandate. Therefore, upon consideration of the appellants’ motion for injunctive relief pending appeal, the response of the appellees thereto in Bivins v. Bibb County Board of Education and the appellees’ letter-motion for oral argument in Biv- *99 ins v. Bibb County Board of Education, it is ordered 2 : 1. The motion for injunctive relief pending appeal is not passed upon. 2. The alternative motion for summary reversal is granted and the district court’s order of January 21, 1970, is summarily reversed. 3. The district court is directed to enter its order approving the plans proposed by the respective appellee School Boards and directing the appel-lee Boards 3 to put the plans into effect by or before February 16, 1970. Carter v. West Feliciana Parish School Board, 1970, 396 U.S. 290 , 90 S.Ct. 608 , 24 L.Ed.2d 477 [January 14]; Singleton v. Jackson Municipal Separate School District, 5 Cir. 1970, 419 F.2d 1211 [January 21], en banc mandate in consolidated cases, January 21, 1970. 4. The district court is directed to schedule expedited hearings for such modifications to the plans as may be necessary to correct unworkable elements in the plans and to allow the parties an opportunity to suggest improvements in the plans in the light of the actual workings of the plans to the end that student bodies will be more effectively desegregated than they were under the freedom-of-choice method. The hearings, however, shall not delay the full implementation of the plans by February 16,1970. 5. The appellants are awarded their costs in this appeal and the district court is directed to assess the same; the appellants’ motion for reasonable attorneys fees is denied. 6. The appellees’ letter-motion for oral argument in Bivins v. Bibb County is denied. 7. The mandate herein shall issue immediately and no stay will be granted for filing Petition for Rehearing or Petition for Writ of Certiorari. Judge Coleman reserves the right to file a dissent. . The United States was not a party to these two suits, but was asked prior to the en banc decision in Singleton to submit its views on all the cases consolidated there. . Under the stringent requirements of Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19 , 90 S.Ct. 29 , 24 L.Ed.2d 19 , which this Court has carried out in United States v. Hinds County School Board, 5 Cir. 1969, 417 F.2d 852 [November 7, 1969], and of Carter v. West Feliciana Parish School Board, 1970, 396 U.S. 290 , 90 S.Ct. 608 , 24 L.Ed.2d 477 [January 14] implemented in Singleton v. Jackson Municipal Separate School District, 5 Cir. 1970, 419 F.2d 1211 [January 21], this Court has judicially determined that the ordinary procedures for appellate review in school segregation eases have to be suitably adapted to assure that each system, whose case is before us, “begin immediately to operate as unitary school systems”. Upon consideration of the parties’ memoranda and so much of the record as is available or determined to be needed by the Court, the Court has proceeded to dispose of this case as an extraordinary matter. Rule 2, F.R.A.P. . We take some encouragement from the statement of the Bibb County Board of Education that the innovation of school complexes which it proposes as a desegregation solution in the secondary schools will also provide “an improved instructional program”. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455457. Public record. Not legal advice.